This is Why Civilianizing Military Justice Can Work
Last week, War on The Rocks published my essay with James Weirick entitled “SEXUAL ASSAULT IN THE MILITARY AND THE UNLAWFUL COMMAND INFLUENCE CATCH-22.” They followed it with a response by Charlie Dunlap, formerly the number two lawyer in the Air Force, titled “CIVILIANIZING MILITARY JUSTICE? SORRY, IT CAN’T — AND SHOULDN’T — WORK.” Yesterday afternoon, they published our rebuttal, “THIS IS WHY CIVILIANIZING MILITARY JUSTICE CAN WORK.”
Trying to summarize the thread here would be more confusing than illuminating, so follow the links if you’re interested.
Good article, James — short, and to the point.
My take is that, basically, if it’s a felony in the civilian world, it should be tried in civil courts. If it’s only a crime because you’re in the military, it should left to the military. It is just as absurd to try rape and non-combat murder cases in the military justice system as it would be to try fraternization and disrespect cases in civil courts.
(Murder in combat, e.g. violation of the Rules of Engagement, is sufficiently unique to the military that I think you need to leave it with the military justice system. And no, just because it happened in Iraq or Afghanistan does not make it “in combat”…)
Edit: one easy rule is that crimes for which conviction would not necessarily require discharge from the service should be handled by military justice. I don’t think I’d go the other way ’round, though — see my example above.
Considering that the military is by definitions a special case, and soldiers, sailors, airmen and marines are supposed to be held to a higher standard of conduct AND that in the fine print of that contract you sign is a statement that goes something to the effect that you VOLUNTARILY SURRENDER many of your CIVIL RIGHTS when you enlist/re-enlist Military justice should remain just that Military justice, The UCMJ is a relatively simple set of rules and is posted EVERYWHERE . UCMJ: Uniform Code of Military Justice
Despite the argument that some crimes, such as rape, have direct analogues in civilian jurisprudence, I believe that the uniqueness of the military environment demands that alleged crimes committed in a military setting are best handled by courts martial. I’ve spent equal parts of my adult life in military and civilian environments spanning over 40 years, and I believe that the uniqueness of military situations and influences demands that the military should retain jurisdiction, even if there are seemingly strong parallels between the civilian and military laws.
@Boyd:
I’d be curious to hear you expand on this. I can understand making that distinction for crimes that involve abuse of chain of command, which I suppose would include some rape cases. But my gut reaction is to strongly resist any suggestion that for ANY crime a civilian court could not judge properly because they just don’t understand the military culture. For most crimes, isn’t culture irrelevant to culpability?
@DrDaveT: I think civilian courts are more likely to be lenient than courts martial, due to their unfamiliarity with military culture. I believe we should hold military personnel to a higher standard than the general population.
I also believe that abusive convening authorities should get some of the harshest punishments available. Not life or anything like that, but definitely some imprisonment, plus discharge under conditions other than honorable. They certainly shouldn’t be allowed to quietly (or even loudly) retire. Such behavior is despicable.
@Boyd:
I guess that’s where we disagree. I believe that we should (and do) hold military personnel to an additional standard — namely, the UCMJ. But I do not believe that any crime is more or less heinous just for having been committed by a member of the armed forces. This was especially true in the days of conscription, but even for an all-volunteer force I don’t see it.
And, where you fear that civilian courts might be too lenient, I fear that military courts might be too deferential to high rank.
@walkingjay: CaPs MuCh?