Unjust: The problem with court martial reform

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More recently, an Air Force lieutenant colonel convicted of sexual assault by a court martial saw his conviction and prison sentence overturned by his commander, a fellow fighter pilot.

In response, the Defense Department has asked Congress to remodel military justice, removing the power of the "convening authority" -- the military commander who orders a court martial to take up a set of charges -- to overturn such a court's guilty verdict in sexual assault cases. Rep. Jackie Speier (D-Calif.) has introduced legislation that would do just that, creating a new military bureaucracy to handle the prosecution of sex crime allegations in the ranks.

These discussions are all very familiar. "It is no longer acceptable," wrote army judge Charles W. Schiesser and law professor Daniel H. Benson in a law review article, "to allow legally untrained military commanders to participate in our system of military criminal justice...The time has come to effect those changes in the Uniform Code of Military Justice that would remove convening authorities from military justice matters."

It sounds like something from this week's news, but that article was published in 1976. It was one of many scholarly essays and muckraking articles that took up the campaign for military justice reform in the aftermath of the Vietnam War. After several years of urgent debate over the role of the convening authority in courts martial, the status quo prevailed. Here we still are.

The reality is that military justice can usually bend the way military leaders wish to bend it, regardless of the formal rules and systems that armed forces put in place.

Describing the punishment of American provincial troops during the Seven Years' War, the historian Fred Anderson has written about the way that company commanders overcame the imposition of tough British army regulations on the forces they led: they lied. Or, rather, they creatively reported misbehavior, softening details to earn subordinates the more mild discipline that they thought appropriate. They made the crime fit the desired punishment.

In other instances, American troops implemented their own justice altogether, by means they simply invented. During the War of 1812, for example, a private in Rhode Island's Newport Artillery tried to kill the sergeant of the guard during an argument. Agreeing with their commander that a court martial might sentence him to death for a wartime assault on a superior, the members of the private's company voted not to report the crime to the state.

Instead, they convened a company "court of inquiry," which they had no authority to do, and voted to cast the private out of both the Newport Artillery and the social company of its members. They may have saved his life, but their decision was that he was dead to them as a neighbor and friend.

For more then two centuries, American military justice has been shaped by the social judgments and personal values of the men and women who wear their country's uniform.

It has been shaped, also, by the stubbornness of command authority – a problem with the same social roots. The historian Edmund Morgan, who led the major effort in the 1950s to reform the American system of military justice, testified before a Senate committee about his own memories of court martial service as an army officer during World War I. Commanders had done all they could to keep lawyers away from military trials, Morgan said, because of their concern that men with legal training "would [mess] up the thing by telling them some law." They knew what justice they wanted, and they didn't want anyone getting in its way.

Today, reformers demand that the armed forces create a new organization to bring sexual assault charges before courts martial. They demand, in other words, that sex crime charges be moved from one office on a military post to another. The military has resisted and evaded those kinds of changes before, in substance, while accepting them in form.

Changes in institutional culture are a slower and much more difficult problem, and the only thing that can actually matter.

Bray is an adjunct professor at Pitzer College in Claremont, California, and a former U.S. Army infantry sergeant.