Why Can’t Your Serve on Your Platoon Mate’s Court Martial?
llison-Barbo-Feat-Sapper” src=”http://nationalsecuritylawbrief.com/wp-content/uploads/2012/08/Allison-Barbo-Feat-Sapper-150×150.jpg” alt=”" width=”150″ height=”150″ />There has been a lot of attention paid to the Uniform Code of Military Justice in recent months because of a case working its way through the military appeals courts. That case, United States v. Ali, was most recently heard in the United States Court of Appeals for the Armed Forces. The background of the case gives the story of a civilian contractor and Iraqi national who was court-martialed under United States military jurisdiction. The defendant appealed claiming that the United States could not exercise military jurisdiction over him because of his civilian status. The case has rejuvenated the debate about the fundamental fairness of the court-martial system.
It would be impossible to devote the necessary attention to each argument in a single blog. As a result, I will focus on just a single provision in the Uniform Code of Military Justice. The particular provision can be found in Article 25 Section C. What Article 25 does is define who may serve on Courts-Martial. A commissioned officer may serve on any court-martial. A warrant officer may serve on any court-martial, except one of a commissioned officer. However, an enlisted member may on serve on a court-martial of enlisted members and only then if they are not in the same unit.
Why is this? Courts-martial panels, which are similar to juries in the civilian justice system are supposed to be made up of the accused peers. This concept is manifested in the Article 25 requirement that an accused armed forces member may not be tried by a member junior in rank to the accused. But why can commissioned and warrant officers sit in judgment
of the fellow members of their unit when enlisted members cannot? What purpose does this seemingly arbitrary restriction have towards the process of serving justice? Wouldn’t an enlisted member in the same unit be the exact person we would want on the equivalent of a jury of your peers? Isn’t this just another example of how the military justice system provides less protection to our service members that the civilian justice system does?
To answer these questions we need to know when and why this provision was included in Article 25. The Uniform Code of Military Justice was created after the Second World War and in response to the numerous injustices faced by drafted enlisted members during the old military justice system. During the Second World War, each military branch had its own code of military justice. The United States Army operated under the Articles of War. Shortly following the war, but before the passage of the Uniform Code of Military Justice, the US Army drastically amended the Articles of War through the Elston Act in order to address the concerns over unjust treatment of enlisted members. The Article 25 provision in question originated under the Elston Act.
The military justice reformers during this period identified a number of components of the Articles of War
that tended to lead to unjust treatment of enlisted members. Prime among these components was the tendency of commanding officer, who often called the court-martial in the first place, to put undue influence on enlisted members of the court-martial to reach a certain decision. In the civilian system this would be the equivalent of the district attorney having one third of a jury comprised of junior district attorneys from his office. This Article 25 provision was just one of the methods under taken in the Elston Act to lessen the potentially dominating force that commanding officers had on the conduct of the court-martial.
While the process is not perfect by any means, and requires smaller branches to travel far to gather enough eligible members of a court-martial panel, it was designed to protect the rights of enlisted members. Though this bit information certainly will not convince many people of the fundamental fairness of the military justice system, it is illustrative of the point that a system does not lack fairness simply because it is different.
 The author’s source for information on the military justice reformation can be found at the National Archives and Records Administration in College Park, Maryland. The reader should seek out the “Decker Collection.”