Courts-martial in the United States
||This article possibly contains original research. (June 2014)|
Courts-martial in the United States are criminal trials conducted by the U.S. military. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice (UCMJ), which is the U.S. military's criminal code. However, they can also be convened for other purposes, including military tribunals and the enforcement of martial law in an occupied territory. Courts-martial are governed by the rules of procedure and evidence laid out in the Manual for Courts-Martial, which contains the Rules for Courts-Martial, Military Rules of Evidence, and other guidance.
Courts-martial are adversarial proceedings, as are all United States criminal courts. That is, lawyers representing the government and the accused present the facts, legal aspects, and arguments most favorable to each side; a military judge determines questions of law, and the members of the panel (or military judge in a judge-alone case) determine questions of fact.
- 1 Historical development
- 2 Constitutional foundation for courts-martial
- 3 Types of court-martial
- 4 Court-martial process
- 5 Appeals
- 6 Courts-martial and appellate courts as legislative (Article I) courts
- 7 Access to the U.S. Supreme Court after appeals
- 8 See also
- 9 References
- 10 Further reading
From the earliest beginnings of the United States, military commanders have played a central role in the administration of military justice. The American military justice system, derived from its British predecessor, predates the Articles of Confederation and the Constitution. While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.
Tribunals for the trial of military offenders have coexisted with the early history of armies. The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous, fighting forces. Both the ancient Greeks and the Romans had military justice codes, although no written versions of them survive. Moreover, nearly every form of military tribunal included a trial before a panel or members of some type.
The greatest influence on the modern court-martial comes from the Court of Chivalry in England and the military code of Sweden's King Gustavus Adolphus. These courts both struck a balance between the demands of good order and discipline and the concepts of due process. This, in turn, laid a foundation for modern systems of military justice that strive to do the same. The Court of Chivalry had a direct impact on the British Articles of War. The early British Articles of War reflected a concern for due process and panel member composition.
When war broke out between the American Colonists and the British in 1775, the British were operating under the 1765 edition of the Articles of War. This version would serve as the template for military justice in the Continental Army. When the United States declared independence and fought the Revolutionary War, "it had a ready-made military justice system." Despite the Colonists' dissatisfaction with the British, they still recognized the intrinsic value of the British military justice system in providing good order and discipline to its own armed forces.
While the 1765 British Articles of War were the template for the American military justice system, the Founding Fathers decided to break away from the British system in significant ways. First, the American Articles of War were created by a legislative enactment and not by an executive order. In the American system, the legislature undertook the government of the armed forces from the beginning - military justice was not going to be left to the executive. Second, Congress demonstrated its flexibility and willingness to change the Articles as necessary. The top military lawyer, Colonel William Tudor, informed Congress that the Articles were in need of revision. Congress would go on to revise the Articles several times to reflect the realities of a small military force. Nonetheless, the commander retained his role in the administration of justice.
81st Congress sets out to create the UCMJ
The Eighty-First Congress (1949–51) set out to create a unified system of military justice for all the services, and appointed a committee chaired by Harvard Law Professor Edmund Morgan to study military justice and draft appropriate legislation. According to Professor Morgan, the task was to draft legislation that would ensure full protection of the rights of individuals subject to the UCMJ without unduly interfering with either military discipline or the exercise of military functions. This would mean a "complete repudiation of a system of military justice conceived of only as an instrument of command," but would also negate "a system designed to be administered as the criminal law is administered in a civilian criminal court." The result was the Uniform Code of Military Justice (UCMJ) - a code that granted unprecedented rights to service members, while still retaining command control over the appointment of court-martial members.
The UCMJ was not an ideal system of justice, but given its purpose of sustaining good order and discipline within the military without unduly impairing operations, it could not be. Many individuals, groups, and organizations protested, but Congress retained the commander as the central figure of the military justice system. However, Congress significantly modified the commander's powers and added statutory checks and balances to limit outright despotism.
Subsequent measures in Congress on UCMJ
The next time Congress had formal hearings on the UCMJ was when it passed the Military Justice Act of 1983. In 1999, the Secretary of Defense was required by Congress to study the issue of command selection of panel members. Congress did not take action when the Joint Services Committee (JSC) concluded that the "current system is most likely to obtain the best members within the operational constraints of the military justice system."
In 2001, the Commission on the 50th Anniversary of the Uniform Code of Military Justice disagreed with the 1999 JSC Report, noting "there is no aspect of military criminal procedure that diverges further from civilian practice, or creates a greater impression of improper influence than the antiquated process of panel selection."
The Framers consciously placed the government and regulation of the military in the hands of the legislative branch. Congress has provided oversight of the military "jury" selection process since the Founding. In over two hundred and twenty-five years of congressional control over the court-martial system, the practice of command selection of the "jury" has survived every attack. Over the years, Congress has statutorily limited the discretion of the convening authority and created a justice system that seeks to balance the legitimate needs of the military with the demands of due process.
Following both World War I and World War II, there were outcries[who?] for Congress to reform military justice. When the troops returned from WWI, the public was outraged with stories of miscarriages of justice. This led to the first public movement to civilianize military law. In 1920, Congress made revisions to the Articles of War. This led to the imposition of a set of personal criteria for the commander to consider in selecting a panel. After WWII, there were more concerns by veterans’ organizations and bar associations about military justice, and, in particular, the problem of unlawful command influence of the courts-martial. Congress again made reforms to the Articles by attempting to solve the problem of unlawful command influence by prohibiting the convening authority and other commanders from censuring, reprimanding, admonishing, coercing, or unlawfully influencing any member in reaching the findings or sentence in any case.
Constitutional foundation for courts-martial
The Framers of the Constitution were cognizant of the power struggle between Parliament and the King regarding the powers of the military. Many of the Framers were combat veterans from the Continental Army and understood the demands of military life and the need for a well-disciplined fighting force. The solution to the government of the armed forces was a classic balancing of constitutional interests and powers. They assured that Congress - with its responsiveness to the population, its fact-finding ability, and its collective deliberative processes - would provide for the government of the armed forces.
The Framers of the Constitution had a great respect for the value of separation of powers. One of the primary goals of the Constitutional Convention, in remedying the defects of the Articles of Confederation, was to create a government in which separate branches of power served as a check and balance against the other. Principles of separation of powers also applied to the military. The Framers vested power in the executive and legislative branches, but left the judiciary with only a collateral role in governing the armed forces.
By distributing power over the armed forces between the legislative and executive branches, the Framers "avoided much of the political-military power struggle which typified so much of the early history of the British court-martial system." Moreover, the Framers made it clear that while the command of the military lie with the executive, the military would be governed and regulated according to the law handed down by the legislative branch. Therefore, the government of the armed forces would always reflect the will of the people as expressed through their representatives in Congress.
After ratification of the Constitution in 1789, the First Congress undertook legislative action to provide for the government and regulation of the armed forces. On September 29, 1789, the Congress expressly adopted the Articles of War that were currently in place for the Army. It can thus be said that Congress continued the court-martial as previously established, and "the court-martial is perceived to be in fact older than the Constitution, and therefore older than any court of the United States instituted or authorized by that instrument."
The Framers consciously placed the court-martial and military law in the legislative branch of the government. The First Congress and the Framers were also cognizant of the age and history of the court-martial with commander involvement, as well as the customs and traditions that pertained to it.
Types of court-martial
There are three types of courts-martial—summary, special and general. A conviction at a general court-martial is equivalent to a civilian conviction in a federal district court. Special courts-martial are considered "federal misdemeanor courts" because they cannot impose confinement longer than one year. Summary courts-martial have no civilian equivalent.
Trial by summary court-martial provides a simple procedure for resolution of charges of relatively minor misconduct committed by enlisted members of the military. Officers may not be tried by summary court-martial. The enlisted accused must consent to be tried by summary court-martial, and if consent is not provided then the command may dispose of the allegation through other means, including directing that the case be tried before a special or general court-martial. The summary court-martial consists of one individual. That one officer acts as the sole finder of fact. The maximum punishment at a summary court-martial varies with the accused's paygrade. If the accused is in the pay grade of E-4 or below, he or she can be sentenced to 30 days of confinement, reduction to pay grade E-1, or restriction for 60 days. Punishments for service members in paygrades E-5 and higher (e.g., Sergeant in the Army or Marines, Petty Officer 2nd Class in the Navy) are similar, except that they can only be reduced one paygrade and cannot be confined. An accused before a summary court-martial is not entitled to receive legal representation from military defense counsel. However, while not required by law, some services, such as the United States Air Force, provide the accused at a trial by summary court-martial free military counsel as a matter of policy. If the government chooses not to provide free military defense counsel to the accused, then that person may retain civilian counsel to represent them, at their own expense.
A special court-martial is the intermediate court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused may also request trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than forfeiture of two-thirds basic pay per month for one year, and additionally for enlisted personnel, one year confinement (or a lesser amount if the offenses have a lower maximum), and/or a bad-conduct discharge. An accused before a special court-martial is entitled to free legal representation by military defense counsel, and can also retain civilian counsel at his or her expense.
A general court-martial is the highest court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of five officers sitting as a panel of court-martial members. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused may also request trial by judge alone. In a general court-martial, the maximum punishment is that set for each offense under the Manual for Courts-Martial (MCM), and may include death (for certain offenses), confinement, a dishonorable or bad conduct discharge for enlisted personnel, a dismissal for officers, or a number of other forms of punishment. A general court-martial is the only forum that may adjudge a sentence to death. Before a case goes to a general court-martial, a pretrial investigation under Article 32 of the Uniform Code of Military Justice must be conducted, unless waived by the accused. An accused before a general court-martial is entitled to free legal representation by military defense counsel, and can also retain civilian counsel at his or her expense.
Detention before trial
Under Article 10 of the UCMJ, 'immediate steps' should be taken to bring the accused to trial. Although there is currently no upper time limit on detention before trial, Rule 707 of the Manual for Courts-Martial prescribes a general maximum of 120 days for 'speedy trial'. Under Article 13, punishment other than arrest or confinement is prohibited before trial, and confinement should be no more rigorous than is required to ensure the accused's presence at trial.
Composition of courts
Under Article 25 of the UCMJ, members of the court are selected from members of the armed forces by the convening authority.
Although the Founding Fathers of the United States guaranteed American citizens the right of a jury trial both in the text of the Constitution and in the Bill of Rights, they determined that Congress would establish the rules for disciplining the armed forces. From the beginning, Congress has retained the long-standing practice whereby, contrary to the principle of random jury selection, the convening authority personally selects the members of a court-martial panel. Whether this practice is conducive to fair process has been the subject of critical investigation.
A court-martial has always been an ad hoc tribunal created and appointed by the order of a commanding officer, as the convening authority. The tribunal is established with the express purpose of considering a set of charges that the commander has referred to the court. The convening Authority considers the statutory prescription offered by the United States Congress, those "best qualified," in selecting the "panel" or jury for the court-martial. In turn, the members of the court-martial, who are generally under the command of the convening authority, take an oath to "faithfully and impartially try, according to the evidence, their conscience, and the laws applicable to trial by court-martial, the case of the accused." By their oath, the panel members expressly agree to leave behind any influence from the commander who appointed them. The current practice in the United States Armed Forces is to appoint a number of officers to a standing panel of members. In cases where the accused is an enlisted member, the accused may request that enlisted service members be appointed to the panel.
The appointed or retained defense attorney may challenge both the military judge and members of the panel for cause. However, the military judge determines the relevance and validity of any challenge. The prosecution and defense initially possess one peremptory challenge to members of the court-martial. The accused may also challenge a member of the panel for cause "at any other time during trial when it becomes apparent that a ground for challenge exists." The UCMJ prohibits a convening authority from unlawfully influencing the court. A defense attorney may bring a motion to challenge the validity of the court-martial where it appears that a convening authority has unlawfully influenced court-martial members.
Burden of proof
At a trial by court-martial, the accused service member is presumed innocent and the government bears the burden of proving his or her guilt, by legal and competent evidence, beyond a reasonable doubt. Reasonable doubt as to the guilt of the accused must be resolved in favor of the accused. In other words, an accused service member must be "given the benefit of the doubt."  If the accused is charged with an offense that carries a mandatory sentence to death, then a conviction on that allegation requires all of the court-martial members to vote "guilty."  Otherwise, for all other offenses, a conviction requires a two-thirds majority of the court-martial members to vote "guilty."  If an accused service member elects to be tried by a military judge sitting alone, rather than by a panel of court-martial members, then the military judge will determine guilt.
Sentencing in a trial by court-martial is carried out by the same forum that adjudicated guilt. In other words, if an accused service member elects to have court-martial members determine his or her guilt, those same court-martial members will adjudge a sentence upon a conviction. If an accused service member elects to be tried by military judge sitting alone, then that military judge will sentence the accused if a conviction results. A sentence to death requires trial by court-martial members and all the members must unanimously concur in that sentence. A sentence to more than ten years of confinement may adjudged in a trial by military judge sitting alone, or if the accused elects to be tried by members, then by the concurrence of three-fourths of the court-martial members. Any lesser sentence may be adjudged in a trial by military judge sitting alone, or if the accused elects to be tried by members, then by the concurrence of two-thirds of the court-martial members.
There are procedures for post-trial review in every case, although the extent of those appellate rights depends upon the punishment imposed by the court and approved by the convening authority. Cases involving a punitive discharge, dismissal, confinement for one year or more, or death will undergo automatic review by the appropriate military Court of Criminal Appeals. Further review is possible to the Court of Appeals for the Armed Forces.
In every case resulting in conviction, the convening authority (usually the same commander who ordered the trial to proceed and selected the members of the court-martial) must review the case and decide whether to approve the findings and sentence.  Prior to 24 June 2014, federal law provided that a convening authority's discretion to modify a finding or sentence to the benefit of a convicted servicemember was a matter of command prerogative, and was final. However, the authority of convening authorities to grant a convicted service member relief has been significantly curtailed. 
After 24 June 2014, convening authorities may not dismiss or reduce a conviction to one for a lesser offense unless the maximum possible sentence of confinement listed for the offense in the Manual for Courts-Martial is two years or less, and the sentence actually adjudged did not include a dismissal, dishonorable discharge, bad conduct discharge, or confinement for more than six months.  Further, the convening authority may not dismiss or reduce a conviction for rape, sexual assault, rape or sexual assault of a child, or forcible sodomy, regardless of the sentence actually adjudged at trial.
Further, after 24 June 2014, convening authorities may not disapprove, commute, or suspend an adjudged sentence, in whole or in part, an adjudged sentence to be dismissed, dishonorably discharged, to receive a bad conduct discharge, or to serve more than six months of confinement. Exceptions to this limitation on the power to reduce those types of punishments exist for when the convicted service member enters into a pretrial agreement to plead guilty in return for having any adjudged dishonorable discharge reduced to a bad conduct discharge, or when the convicted service member provides "substantial assistance" to the investigation or prosecution of another person.
Intermediate service courts of criminal appeals
After a conviction has been reviewed by the convening authority, if the sentence includes either death, dismissal, a dishonorable discharge, a bad conduct discharge, or confinement for a year or more, then the case is reviewed by the appropriate service Court of Criminal Appeals. In cases where the sentence is not sufficiently severe, there is no right to appeallate review. The four service Courts of Criminal Appeals are:
- Army Court of Criminal Appeals
- Navy-Marine Corps Court of Criminal Appeals
- Air Force Court of Criminal Appeals
- Coast Guard Court of Criminal Appeals
The service courts of criminal appeals have the power to reverse convictions when they are either legally or factually insufficiency, and they may also reduce sentences that they deem to be inappropriately severe. The power to determine factual sufficiency is a unique power for an appellate court to possess, and in exercising that authority the courts of criminal appeals may separately weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, even though only the trial court saw and heard the witnesses. The accused will be assigned an appellate defense counsel to represent him on appeal free of charge. Civilian counsel may be retained at the accused's own expense.
Court of Appeals for the Armed Forces
From the service court of criminal appeals, a service member, if sentenced to either death, dismissal, dishonorable discharge, bad conduct discharge, or more than a year confinement, may also petition the nation's highest military court - the United States Court of Appeals for the Armed Forces (CAAF). This court consists of 5 civilian judges, appointed for a fifteen-year term, and it can correct any legal error it may find. Appellate defense counsel will also be available to assist the accused at no charge. Again, the accused can also be represented by civilian counsel, but at his or her own expense. Review by the CAAF is discretionary and a limited number of cases are reviewed each year. For the fiscal year beginning on October 1, 2012 and ending on September 30, 2013, CAAF received 964 cumulative filings and disposed of 900 cases. Of these 900 cases, 39 were disposed of by signed or per curiam opinions and 861 were disposed by memorandum or order.
Request for pardon
As a final measure of appeal, a convicted service member may also petition the President of the United States for a reprieve or pardon under the Constitutional authority granted in Article II, Section 2.
Courts-martial and appellate courts as legislative (Article I) courts
In parsing the debate about command selection of panel members, it is important to place the court-martial in its context as a legislative (Article I) court. Article III courts do not handle all of the judicial business in the United States. For over two hundred years, Congress has used its enumerated powers under the Constitution in conjunction with the Necessary and Proper Clause to create specialized tribunals, including courts-martial, which are free from the protections of Article III. There are no constitutional infirmities in the creation of these courts. In fact, these courts help Congress carry out its enumerated powers efficiently - the court-martial is an example where the protections, procedures, and inherent inefficiencies of Article III courts would interfere with the military's ability to use the system effectively to help maintain good order and discipline. In fact, Article I, Section 8 of the Constitution says Congress shall have the power "To make Rules for the Government and Regulation of the land and naval forces."
Even where life and liberty are at stake, legislative courts are not required to grant due process rights that are intrinsic to the Article III courts. The Supreme Court has, instead, employed an analysis that examines whether the statutory due process system of a given legislative court grants what it calls "fundamental rights." The Supreme Court simply applies a different constitutional analysis to legislative courts than to Article III courts.
Of all the legislative courts created by Congress, courts-martial have received the most deference from Article III courts. Under a standard of review known as the "separate community" or "military deference" doctrine, the courts have proclaimed the armed forces to be a distinct subculture with unique needs, "a specialized society separate from civilian society." While some scholars have argued against the idea of a separate legal system for the military, the Article III courts continue the doctrine of deference. Where there is a conflict between the constitutional rights of the individual service member and an asserted military purpose, the courts have deferred to Congress' ability, and duty, to balance the appropriate factors and reach a necessary compromise.
Today's court-martial system, including command selection of jurors, would seem to pass muster under the Supreme Court's constitutional analysis for legislative courts. The accused enjoys due process rights similar to the "fundamental rights" the Court recognized in other legislative courts. A defendant has many rights, including:
- assistance of counsel at all levels of the court-martial;
- information of the charges brought against the defendant, including a bill of particulars;
- a speedy trial;
- compulsory process of witnesses and evidence;
- the privilege against self-incrimination; and
- extensive appellate review in cases where the sentence received is sufficiently severe.
When placed in its context as a legislative court, the statutory grant of due process in a court-martial compares favorably with what an accused criminal can demand as a matter of right in other legislative courts. The balance that Congress has struck between an individual's rights and the purposes of the military will not lightly be disturbed by an Article III court.
Access to the U.S. Supreme Court after appeals
In certain limited circumstances, service members have their cases heard by the Supreme Court. Since 2005, various bills have been introduced in Congress to give service members an appeal of their cases to the United States Supreme Court. None of these bills has been enacted, and as of 2010 there is legislation pending.
- Report, page 7
- Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice p. 2
- Rule for Courts-Martial 1301(b), Part II, Manual for Courts-Martial United States (2012)
- Article 20, UCMJ, 10 U.S.C. section 820
- Article 20, UCMJ, 10 U.S.C. section 820
- Article 16, UCMJ, 10 U.S.C. section 816
- Rule for Courts-Martial 1301(d), Part II, Manual for Courts-Martial United States (2012)
- Rule for Courts-Martial 1301(e), Part II, Manual for Courts-Martial United States (2012)
- Air Force Instruction 51-201, paragraph 188.8.131.52 (6 June 2013)
- Rule for Courts-Martial 1301(e), Part II, Manual for Courts-Martial United States (2012)
- Manual for Courts-Martial
- "The Court-Martial Panel Selection Process: a Critical Analysis". Military Law Review. Retrieved December 19, 2010.
- "Reforming Court-Martial Panel Selection: Why Change Makes Sense for Military Commanders and Military Justice". George Mason Law Review. Retrieved December 19, 2010.
- 10 U.S.C. § 851(c)(1)
- 10 U.S.C. § 851(c)(2)
- 10 U.S.C. § 852(a)(1)
- 10 U.S.C. § 852(a)(2)
- 10 U.S.C. § 851(d)
- 10 U.S.C. § 852(b)(1)
- 10 U.S.C. § 852(b)(2)
- 10 U.S.C. § 852(b)(3)
- 10 USC 860
- 10 USC 860(c)(1) (2013)
- Pub.L. 113-66, Div. A, Title XVII, Section 1702(b), (d)(2), Dec. 26, 2013, 12 Stat. 955, 958
- 10 USC 860(c)(3)(B) (2014)
- 10 USC 860(c)(3)(D) (2014)
- 10 USC 860(c)(4)(A)
- 10 USC 860(c)(4) (2014)
- 10 USC 866(b)
- 10 USC 866(c)
- 10 USC 866(c)
- Macomb, Alexander, A Treatise on Martial Law, and Courts-Martial as Practiced in the United States. (Charleston: J. Hoff, 1809), republished (New York: Lawbook Exchange, June 2007), ISBN 1-58477-709-5, ISBN 978-1-58477-709-0
- Pollack, Estela I. Velez, Military Courts-Martial: An Overview, Congressional Research Service, May 16, 2004
- CAAF Fiscal Year 2013 Annual Report
- Macomb, Alexander, Major General of the United States Army, The Practice of Courts Martial, (New York: Harper & Brothers, 1841) 154 pages.
- Macomb, Alexander, A Treatise on Martial Law, and Courts-Martial. (Charleston: J. Hoff, 1809), republished (New York: Lawbook Exchange, June 2007), ISBN 1-58477-709-5, ISBN 978-1-58477-709-0
- Saltzburg, Stephen; Schinasi, Lee D; & Schluster, David A., Military Rules of Evidence Manual. (Newark: LexisNexis, January 2003). ISBN 0-87215-969-8; ISBN 978-0-327-16329-9