This maybe because military courts pit the individual against the power of the state in unusually dramatic ways.


The historic British model, based originally on the sovereign’s sole powers and only later on Mutiny Acts enacted by Parliament, conferred on military commanders broad powers over the administration of justice within their units. Commanders alone decided who would be charged with what offenses, who would serve on the military equivalent of the jury, and what sentence would be approved. This commander-centric legacy has in important respects been abandoned by the UK and has been significantly modified elsewhere. Nonetheless, it remains largely intact in the US.


The military is the rare part of contemporary society that enjoys the privilege of policing the behavior of its own members, with special courts and a separate body of rules.


Courts-martial can punish only offenses prescribed by law, although some of the punishable offenses (such as disobedience, disrespect, or unauthorized absence) may have no counterpart in civilian criminal law.


The 3 levels of American courts-martial:

  • One-officer summary courts-martial for the trial of minor offenses.
  • Special courts-martial with at least 3 jurors and punishment powers limited to a year’s confinement and a bad-conduct discharge from the military.
  • General courts-martial with at least 5 jurors having power to impose any sentence up to death. Capital cases require at least 12 jurors.

Can a soldier be tried in civilian court? Certainly. Whether a case should be handled by a military and civilian authorities, but in the US nothing prevents a civilian court from prosecuting a soldier for a crime under state or federal law.

In some countries, military personnel may be subject to civilian trial only with the consent of military or other authorities. Permission is rarely if ever granted to prosecute a soldier in civilian court. The danger of impunity is obvious under such a legal framework.


Congress requires that court-martial procedure, modes of proof, and rules of evidence conform with those generally recognized in the trial of criminal cases in US district courts when not impracticable. It has delegated to the president the power to make rules for courts-martial.


The Supreme Court has had appellate jurisdiction over courts-martial only since 1984. It accepts very few court-martial appeals, and only when a case presents a constitutional or other major generic issue.


What about minor disciplinary offenses? Non-judicial punishment is imposed by the commanding officer. Whether a case will be handled by court-martial or non-judicial punishment is decided by the commanding officer, typically after consultation with a military attorney.


The most important characteristic of a military unit is that it is a unit. To be effective, and something more than a collection of individuals with weapons, a unit must be commanded. Commanders are responsible for achieving the unit’s objective, a function that requires them to ensure that subordinates will do as they are told. This is more than window-dressing; there can be heavy legal consequences for failure to comply. Under the law of war, with power comes responsibility. Specifically, a commander can in some circumstances be penalized for the misconduct of subordinates.


Commanders can not only dispense justice directly for minor disciplinary offenses through non-judicial punishment but can also decide — as “convening authority” — whether to convene ad hoc courts-martial, and determine such critical matters as who shall be prosecuted on what charges and at what potential level of severity, and what resources the defense will have to prepare for trial, whether there will be a pretrial agreement or grants of immunity, who will server on the jury, and even, in some cases, whether the findings and sentence should be approved or modified before appellate review.


The arguments against the change are phrased in many ways but boil down to 3 core claims: commanders need to have the disposition power because they are responsible for unit good order and discipline; they need it because they could be held responsible for their subordinates’ misconduct; they should have it because they are tough on crime and will prosecute cases that lawyers would not pursue.


US law permits members of the service to retire only in the highest grade in which they have satisfactorily served, so at times general and flag officers may wind up retiring in pay grades one or more levels below the last rank they held on active duty. The result may be enormous financial losses.


No court-martial death sentence can be executed without the chief executive’s personal approval, and members of the service who have been convicted may, like other federal convicts, apply for pardons or other forms of executive clemency that are the president’s prerogative.


A classic example is Obama’s ill-advised remark that any service member who is convicted of sexual assault should receive a dishonorable discharge — a punishment that can only be imposed by a general court-martial. As a damage control measure, SecDef Chuck Hagel promptly issued a memorandum saying that all personnel were expected to exercise their own judgment.


Summary courts-martial combine the functions of judge, jury, prosecutor, and defense counsel in one person.


Military judges lack the protection of fixed statutory terms of office.


Today fewer than half of the states criminalize adultery even on paper, and civilian prosecutions are as rare as hen’s teeth. Yet this offense shows up on military charge sheets with surprising frequency. Almost invariably, it is an add-on and something else more serious explains the prosecution.


Another offense that applies only to commissioned officers is Article 88, which criminalizes the use of contemptuous words against the president, VP, Congress, SecDef and homeland security, the service secretaries, and even the governor and legislature of the state in which the offender is on duty or physically present. The purposes of such a provision in a democratic society are clear: to protect civilian political control from military influence and discourage disloyalty among subordinates who might be influenced by their officers.


On the other hand, truth is not a defense, so that even if a president actually is a notorious womanizer, that will not bar disciplinary action if an officer says so.


Typically, every effort is made to deal with those who violate the prohibition on contemptuous words or otherwise show themselves to be soreheads in a low key a manner as possible, while still getting rid of them.


Article 88 plainly reduces free speech, and as a result the armed forces tend to tread carefully in this area.


Judicial independence is such a given in democratic countries that it tends to be taken for granted. Certain societies have to remain alert to the familiar threats to judicial independence: arbitrary dismissal or voter recall of judges: “telephone justice” that is influenced by party, political, or underworld leaders, or undue coziness with prosecutors. But judicial independence is even more vulnerable in the context of military justice because of the inherently insular nature of such systems.


In the classic British model on which the US system was constructed, there was no judge at a court-martial. The court was simply a board of senior officers assembled for a particular purpose, much as might be done if a ship sank, a battle was lost, or some other significant mishap occurred that merited investigation.


Neither the statute or service regulations gave military judges the basic protection of a fixed term of office, much less the life tenure the US Constitution provides for federal district and circuit judges and justices of the Supreme Court. The only protection the military judges had was that provided by the unlawful command influence provisions of the Code, which forbade retaliation against them. They could be transferred from the bench at any time, simply by being issued a new set of orders.


A staff judge advocate — the uniformed legal advisor to a commander — does not have an attorney-client relationship with the commander. Instead, the lawyer’s duty is to the institution. Thus, unlike the usual legal client, a commander cannot expect that the legal advisor will take his confidences to the grave.


Worse yet, in most instances, the defense counsel will not be selected by the accused, but rather, will be detailed to the case by the armed forces. Hence, the interpersonal dynamic between attorney and client may be radically different from what one finds in civilian criminal justice systems.


It is an unfortunate fact that these situations arise in every armed conflict, and international law imposes a duty on states to investigate and punish these crimes. In US practice, such offenses are not prosecuted as “war crimes” but rather according to the underlying conduct.


Even where the governing rules are clear, a common them is that events were moving fast, adrenaline was flowing, visibility was poor, and the actors were themselves in mortal danger.


It is fair to say that no country enjoys putting its own troops on trial for conduct in the heat of battle, or even in an area that has recently seen battle.


Only 40-55% of soldiers indicated they would report a unit member for injury or killing an innocent non-combatant.


Where should trials be conducted when crimes are committed on deployment? This has proven to be a messy issue. Plainly, it is unwise to create an incentive for GIs to commit crimes in order to get a ticket home. Similarly, key witnesses, both soldiers and local civilians, will be more readily available (and more likely to testify) if the trial is conducted in the country in which the offense was committed. A local trial also makes it easier to reassure local residents that the visiting force is taking active measures to punish the guilty.


American practice remains inconsistent. Some branches of the military have tried cases “in-country,” nearer to the scene of the crime, while others have tended to ship them back to the continental US for trial. At the very least, doing so reduces the chance of local unrest if there is an acquittal or what seems to be an unduly lenient sentence.


After WW2, the only people who took any interest in military commissions were legal historians. That ended suddenly soon after 9/11, when President Bush signed a “military order” authorizing revived military commissions to prosecute unlawful enemy combatants.


The procedures failed to meet contemporary standards in large part because the Bush administration had worked from a WW2-vintage model that did not reflect any of the intervening dramatic changes in military justice or the criminal justice revolution, much less the growing body of human rights law.


Military justice is generally change-adverse. Countries that have workable systems tend to resist change absent some compelling reason. The reasons for this are both cultural and practical. Culturally, military leaders tend to be conservative. Practically, resistance to change is defended on the basis that any tinkering may jeopardize national security in a dangerous time or neighborhood. It is also a fact that in many countries legislators are likely to defer to the judgment of military officers.