Unequal Justice
Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine
Important military justice proceedings are shrouded in secrecy. Behind closed doors, an obscure five-member Pentagon board decides what changes will be made in court-martial rules and procedures. The Joint Service Committee on Military Justice holds just one public meeting a year. This year's lasted 22 minutes. Moreover, while court-martial trials are open to the public, not all the records from the proceedings are made available to the public once the matter is concluded. Citing a two-decades-old Pentagon advisory opinion as the basis for withholding information, military officials refuse to release personal information or even law-enforcement reports introduced as evidence at trial. This policy extends to military appellate courts.
On paper, the Pentagon's criminal justice system is an impressive one. There are prosecutors, defense lawyers, and rules of evidence. In addition to appellate review courts for each service, there is a supreme court of sorts--a five-member civilian panel, the U.S. Court of Appeals for the Armed Forces.
"Thorough and impartial." A key player in the justice system is the judge advocate general. Each service has one. The JAG appoints all military trial judges and supervises the activities of military prosecutors and defense attorneys. In interviews, JAG officials point out the benefits of military justice. Military law provides substantial legal protections, they say. Suspects cannot be forced to incriminate themselves. Once accused, a service member is provided a free military lawyer for trial and, if convicted, for appellate proceedings. In the most serious cases--a general court-martial, which can lead to long-term confinement--the Uniform Code provides for "a thorough and impartial" Article 32 investigation, the military equivalent of a civilian grand jury. A commander, usually a general or admiral, appoints an officer to conduct a preliminary investigation. Many civilian defense lawyers, hired by service members, prefer the Article 32 proceeding over the civilian grand jury process because they can present evidence and cross-examine witnesses.
But there's a rub. An Article 32 hearing officer can only recommend a course of action--whether a case should be dropped or pursued at court-martial. The recommendation is not binding. And a commanding officer can reject an Article 32 officer's advice to drop a case and instead refer charges to court-martial, which occasionally happens, according to civilian and military defense lawyers.
Senior military officials say that nobody relishes prosecuting service personnel. "You have to remember, this is our human capital we are talking about," says Rear Adm. Stephen Pietropaoli, the chief Navy spokesman. "Everyone we put in the slammer, put out of the Navy, is a hole we have to fill."
Some commanders and their aides go too far, however, and unlawful command influence--what the appellate courts have called the "mortal enemy of military justice"--remains a touchy subject in the military legal hierarchy. In an October 2001 memo to subordinates at Fort Hood, Texas, Army Maj. Gen. Raymond Odierno laid it on the line: "Unlawful command influence continues to be an insidious problem in our military justice system and is of grave concern to me."
Many former active-duty lawyers echo those sentiments. "There have been documented cases where the convening authority tried to stack the deck," says Dwight Sullivan, a Baltimore attorney who worked as a Marine prosecutor and defense lawyer. "A convening authority deliberately picking women to sit on sexual assault cases--it is rare, but it happens." Grant Lattin, a top Marine Corps lawyer before retiring in 1995, is even more blunt: "You realized command influence was going on. You ignored it. You knew it was terminal to your career if you said anything about it." Last year, a blue-ribbon panel of outside experts in military law issued a report calling for sweeping reforms. Most pressing, the panel urged, was the need to avoid even the appearance of unfairness and corruption in court-martial trials as a result of commanding officers' influence over the proceedings. The silence at the Defense Department was deafening.
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