By Lt. Col. Scott T. Ecton, 51st Fighter Wing Judge Advocate
/ Published August 15, 2007
OSAN AIR BASE, Republic of Korea -- "Discipline is the soul of an army. It makes small numbers formidable, procures success to the weak, and esteem to all." - George Washington
I recently read an article in the local paper about the Pat Tillman fratricide and the military's need for a scapegoat over handling of that incident. In that article, it referred to "military" and "justice" as an oxymoron - that the two words were somehow incompatible and did not belong together. The implication that our military justice system is unfair, one that could be used by some to indiscriminately punish a member indicates a gross ignorance of how our justice system works in the United States military.
If you were to argue with someone about the fairness of our criminal justice system in the U.S. compared to that of any other country, no one would disagree that the U.S. sets the standard for fundamental fairness and due process for its criminals. So why then is there the perception that our justice system in the military abdicates fairness and due process for our military members? Perhaps a side-by-side comparison of the military justice system to the Federal civilian criminal justice system can dispel some of that myth.
First, everyone who's watched "Law and Order" knows the civilian Miranda rights - "You have the right to remain silent ..." But, did you know that those rights only apply to a person during a "custodial interrogation?" Under the Uniform Code of Military Justice the similar Article 31 rights apply whenever a member is suspected of an offense, whether or not they are in custody. Second, the military member is entitled to be represented by counsel at no expense, regardless of whether he can afford to pay for his own attorney or not.
Next, commanders' options under the UCMJ include both criminal and administrative action, allowing them to dispose of minor criminal offenses outside the court system. Before going to court in the Federal civilian system, a grand jury must issue an indictment against a defendant, who will not be notified of the charges until he is brought to court for the first time. Under the UCMJ, an accused will be informed of the charges before facing the military equivalent of the grand jury, the Article 32 investigation. At an Article 32 investigation, the accused has the right to be present, to be represented by counsel, to cross-examine witnesses, to present witnesses at government expense, and to have the hearing open. None of these rights are available to a defendant in the Federal civilian system.
At trial, the military and civilian systems are very similar. Both have a jury system and are governed by rules of evidence that are nearly identical. In the military system, however, the accused is entitled to have witnesses appear at government expense, whereas in the civilian system the defendant must pay his own costs unless he is indigent.
Finally, under the UCMJ, there is automatic review of convictions by the convening authority and additional review by two appellate courts (one military, one civilian) in the most serious cases. During the appeal process, the military member will be represented by an additional counsel at no cost. No similar rights of appeal or representation exist in the Federal civilian system.
It is certainly true that discipline is the soul of any fighting force. Commanders charged with enforcing that discipline for the good of the unit may lead others to perceive that our system of justice is levied at the expense of the member's rights. However, an informed understanding of the military justice system would lead you to the only sensible conclusion: by any objective evaluation, the military justice system is as fair, or even moreso than its civilian counterpart.