THE SEVEN BASIC MYTHS ABOUT MILITARY JUSTICE:
Why It's Much Fairer To Defendants Than You May Have Been Led to Think

Since the start of America's war on terrorism, military justice has earned considerable attention. So have its cousins - military tribunals and enemy-combatant detentions, including several detentions of U.S. citizens. Arguments over the fundamental fairness or unfairness of the military justice system have taken on a new edge in this new era.

Many of the discussions, however, have been seriously misinformed. Despite the best public-relations efforts of the Pentagon, a series of myths has continued to persist in the debate - often to the detriment of the system. In this column, I will examine some of the most common myths, and explain why they do not reflect reality.

The First Myth: Military Courts Just Follow What the Commander Wants

Many observers complain that because military commanders pick the judge and jury in a court martial, the courts simply do what the commander (or President) wants. They ask: How can this system possibly be fair to the defendant?

Like many myths, this one contains a kernel of truth. Military courts do serve the commander, in the sense that they exist to promote military effectiveness. And military courts do answer to their "convening authority," who is usually the highest ranking officer of that base or unit. He (or she) convenes the court martial, selects its judge and jury, and decides whether to accept the verdict or not.

But remember: this is a system designed for wartime, not designed for peacetime. In both war and peace, commanders have a finite number of officers and enlisted personnel who can be jurors. Commanders don't have the luxury of voir dire, in which attorneys can interrogate jurors drawn from the area's entire civilian population, and dismiss them for cause (or based on peremptory challenges). Other goals - namely, winning America's wars - have to come first.

The result if a commander does so? He not only risks the defendant's conviction, but risks criminal charges against himself as well. Only a foolish commander would take the chance of intervening.

Federal law also requires commanders to approve all military verdicts. This might seem to put the commander even more firmly in charge. But by law, this can only work to the defendant's advantage. Even if a defendant is convicted, he has a second chance - the commander may decline to approve the conviction.

Convicted defendants can submit anything to this authority to mitigate their verdict or sentence - their submissions don't have to follow the rules of evidence. (That means hearsay and other inadmissible material is fair game.)

Moreover, a commander can vacate a verdict or reduce it to a lesser charge, but he cannot increase the punishment. In practice, this operates to add another level of review to military justice that doesn't exist in the civilian world, albeit an executive form of review.

The Second Myth: Military Jurors Are Punished If They Disagree With Authority

The second prevailing myth about military justice is that military jurors (called members of the court) work for their commander - so their careers suffer if they don't vote the way he wants. The reality, however, is again quite different.

Military jurors do serve in the same unit as the accused (in most instances), and their evaluations are important to promotion and assignments. But as part of its prohibition on command influence, Rule 104 absolutely forbids any sort of retaliation by the commander against military jurors. If the commander breaks this law, he too can be charged with a crime and court-martialed. Again, only a foolish commander would retaliate.

Jurors in military courts do differ from civilian jurors. In general, military juries are better educated than civilian juries (all officers have a college degree, and most senior sergeants do as well). During their jury service, military jurors receive their same salary, and report to the trial as their sole place of duty. Post-trial surveys show that military jurors take this duty very seriously, and that they show more diligence in following every rule of evidence and jury instruction.

Another reason for military juries is that they form a better peer group for the accused than a civilian jury - especially in so-called "pure military offenses." Civilian juries may be able to try a case of assault or murder, but how could they understand the charge of "failure to obey (an) order" or "conduct unbecoming an officer and a gentleman"?

The Third Myth: Military Justice Deals Only With Uniquely Military Crimes

Another prevalent myth is that military justice should - and typically does - only deal with uniquely military crimes, such as disobeying orders. Those who believe in this myth argue that civilian courts should try soldiers for ordinary crimes like assault, selling drugs or murder.

It's true that every military crime has a "jurisdictional hook" which makes it a part of the military system and not the civilian one. For a number of uniquely military offenses, this hook is an extra element. Military prosecutors must prove, for example, in a case of illegal fraternization that the conduct was prejudicial to "good order and discipline." Without such proof, the defendant cannot be found guilty.

However, the military system also includes the laundry list of common crimes, such as assault, murder, rape, and theft. Many have questioned the military's right to charge these seemingly civilian crimes, saying such cases would more properly be tried in a civilian court. But the military's response has been persuasive: what can be more destructive to military order and discipline than a murderer in the ranks, or a barracks thief?

The military thus rightly claims jurisdiction over these offenses as well. In doing so, the military implies a connection between the crimes and military effectiveness. Unit cohesion is the bedrock of military effectiveness, and crime breeds mistrust in the ranks. Mistrust can be a very dangerous thing in the military, where your life depends on the performance of the man or woman next to you.

Understanding these realities may make it more palatable for many to accept trials of terrorist offenses - even domestic ones - in military courts. The truth is that military courts are used to trying offenses that are not uniquely military, and they do a good job at it. It will not be new for them to address allegations of violent crimes, such as terrorism, in their forums.

The Fourth Myth: There's No Appeal of a Military Court Verdict

Perhaps the most egregious myth about military courts is that they don't prove any right of appeal. That's simply untrue. Military justice does have appellate review, and it also has access to the Supreme Court for petitions in extreme cases. The appellate system is different - but that's because the Constitution makes it that way, not because of any military plot to whittle down defendants' rights.

Article I, section 8, of the Constitution states that Congress - not the Article III (judicial branch) courts - shall have the power to make laws for regulation of the military. Over the years, this has come to mean that Article II (executive branch) courts hear and decide military cases - including appeals. Only after military appeals have been exhausted, can defendants petition the Supreme Court for review.

In contrast, in the military system, defendants go through a court martial, and then an intermediate court of review. After that, they can appeal to the U.S. Court of Appeals for the Armed Forces (CAAF), which is equivalent in statute to a federal Circuit Court of Appeals, and which was set up by Congress to decide on criminal appeals in the military.

That means that military defendants get one automatic review, and one discretionary review, before the Supreme Court - one more than civil defendants get. Defendants can also petition a U.S. District Court for a writ of habeas corpus or other collateral relief. Moreover, from the CAAF, appellate defendants can still petition the Supreme Court to hear their case, although their chances are only as good as a civilian defendant in this regard.

The Fifth Myth: There Are No Procedural Safeguards in the Military System

Another myth with little basis in reality is that even if the military has appellate courts, those courts have little to do. Unlike civilian courts, this argument goes, the military system lacks many of the key procedural safeguards that exist in the civilian system. So why would a military conviction - which isn't required to accord with civilian procedural safeguards - even be reversed based on a procedural flaw?

During World War II, such an argument might have been persuasive. Military courts tried 2 million courts martial during World War II - with a total military population of 16 million. Many draftees complained after the war that the military system lacked the basic safeguards they had expected as American citizens.

But crucially, these complaints led to a change in the military justice system. After the war, the draftees lobbied Congress and President Truman, who responded by passing the Uniform Code of Military Justice in 1950. The "UCMJ" contains almost all of the procedural safeguards that the civilian system does. So much for the myth.

The Sixth Myth: There Are No Miranda - or Other - Rights in the Military

Another myth about the military is that it does not honor Miranda rights. This could not be more untrue. The most infamous safeguard in the UCMJ is the military's right against self-incrimination, which was actually used as a model by the U.S. Supreme Court in Miranda v. Arizona.

Moreover, the military rule is actually stronger than the civilian rule. Article 31 of the UCMJ presumes that all interviews - in an administrative or criminal context - could lead to some kind of criminal action because of the relationship between leaders and subordinates. Thus, the military right against self-incrimination kicks in whenever a superior interviews a subordinate, and there is some cause to think it may result in an investigation down the road.

And Miranda rights are not alone. Most of the other safeguards in the civilian system also exist in some form within the military system. Defense attorneys get automatic discovery of prosecution evidence in the military system. They can cross-examine witnesses and offer their own affirmative defenses, just as in the civilian system.

Before accepting a plea, a military judge has to conduct an exhaustive inquiry of the defendant - a more-detailed inquiry than required of a federal judge who takes a plea bargain. And all military lawyers also have security clearances, so in cases where classified material may be used, they may have an easier time reviewing the material and using it to prosecute or defend the defendant.

The Seventh Myth: Fundamental Bias Against Military Defendants

Even those who are knowledgeable about the military system's true nature may argue that, despite its safeguards, the system is still fundamental biased. To support their argument, they point not to the system's structure but its results: The statistics as to guilty verdicts. This critique, too, is unfair - as a comparison to the civilian justice system will show.

The reality is this: Imagine a system where 90-97 percent of defendants plead guilty to offenses before they are ever tried; where almost all trials result in a guilty verdict; where few if any convictions are ever reversed on appeal. Sounds worrisome, right?

But this isn't the military system - it's the civilian criminal system. Many have criticized the military system for its unfairness, but the average state criminal system pushes more defendants (in percentage and absolute terms) through its doors than the military system.

It should come as no surprise that the military courts find most defendants guilty. Civilian juries do the same - it's because few defendants make it that far in the criminal system unless there's a lot of evidence on the prosecutor's side, enough that the prosecutor wants to risk a trial, with its time, expense, and use of society's resources.

The military does have a couple of wrinkles that don't exist in the civilian world. Almost all court-martial defendants are first-time defendants. Why? Because the military almost universally discharges its convicted felons after their sentence; discharge is usually a part of the sentence. Thus, there aren't that many second-time defendants to go around.

Another wrinkle is that officers and senior enlisted personnel rarely get court martialed. This as much a social phenomenon as a legal one. Senior military professionals do not commit crimes as often as junior soldiers for a variety of social reasons that are beyond this essay's coverage. (Moreover, it is unlikely a troubled junior soldier will ever be promoted, so seniority itself may self-select against those who tend to commit crimes.)

For instance, a junior soldier who gets a DUI may receive a severe administrative punishment, but still serve out his enlistment (though perhaps never be promoted). An officer who gets a DUI - or worse, who uses drugs - will quickly be court-martialed or kicked out of the service.

Nonetheless, some still maintain that the system treats officers unfairly because it lets them "resign in lieu of court martial" for conduct that would earn a junior soldier some kind of legal action.

This is half-true. Officers like Air Force Lieutenant Kelly Flynn and Army Major General David Hale have been allowed to resign in the face of accusations of sexual misconduct. But in both cases, junior soldiers would have likely been informally punished - if at all.

Minor transgressions are often prosecuted much harder for officers than enlisted personnel. And officers only get the chance to resign if it's a minor case.

In major cases of misconduct, such as the sexual harassment case of Army Sergeant Major Gene McKinney, the military usually prosecutes the case to show that leaders will be held to the same standard as their followers. And indeed, in virtually ever case, the leaders are held to the same or higher standards.

The Importance of Rebutting the Myths About Military Justice

As we debate whether terrorism cases should be tried in the civilian or military justice system, all these facts are important to keep in mind. Military proceedings are not one-sided summary proceedings, as they often have been portrayed to be in the media. The truth is that military proceedings are fundamentally different from civilian ones - but not necessarily fundamentally unfair.

Military justice exists to support military units in combat. That imperative sometimes conflicts with concerns about fairness, such as in the area of picking jurors. In creating the military courts, Congress balanced these concerns as best it could, and developed a system that takes defendants' rights very seriously.

Military courts may be different than civilian courts - but ultimately they're still fair. In debating where terrorism cases should proceed, critics of the military system should focus on real contrasts, not inaccurate myths.