Photo Credit: A Few Good Men[1]

By: Ben Haight

“There is a fundamental anomaly that vests a commander with life-or-death authority over his troops in combat but does not trust that same commander to make a sound decision with respect to justice and fairness to the individual.”

-General William Westmoreland[2]

In November, 2012, Lt. Col. James Wilkerson was found guilty by court-martial of aggravated sexual assault. Wilkerson was serving at the Aviano Air Force Base when he was accused and convicted of sexually assaulting a physician’s assistant in her sleep following a party. Three months after his conviction, however, Lt. Gen. Craig Franklin, an Air Force three-star general, overturned the conviction of Lt. Col. James Wilkerson, enabling Wilkerson to be reinstated to the Air Force.[3] This situation, along with the recent increase in sexual assaults in the military, has generated vast civilian criticism of the military justice system and the convening authority powers.

In response, Secretary of Defense Chuck Hagel formed a panel comprised of former congressmen, judges, and JAGs to investigate and analyze the Uniform Code of Military Justice (UCMJ). This panel’s purpose will be to make recommendations to Congress on how to improve the UCMJ in order to better adjudicate sexual assault cases. The provision of the UCMJ most likely to be the focus of the debate will be Article 60, which grants a convening authority “absolute power to disapprove the findings of a military judicial proceeding, and sentence, or any part thereof, for any or no reason, legal or otherwise.”[4] One critique of this provision is that many believe that this level of control given to one person creates an arbitrary and unfair system.

However, before jumping to any conclusions about UCMJ reformation, it is important to remember the underlying purposes and character of the military justice system. The purpose of the military justice system differs significantly from its civilian counterpart because it serves as the primary tool for military commanders to maintain discipline among the ranks.[5] But the system must maintain respect for the rule of law. This is important, because a military that respects the rule of law is able to obtain respect from allies and adversaries around the world.[6] Because of this, Congress worked to strike a balance between command authority and individual rights when formulating the UCMJ in 1951.

Under the UCMJ, the convening authority has extensive powers before and after the court-martial. The convening authority decides which cases proceed to courts-martial and, if the accused decides to be tried before a military panel, picks the members who will give the verdict.[7] At the conclusion of the court-martial, the convening authority must approve of the findings and sentence and has authority to dismiss any charge, change the finding of guilt to a lesser charge, modify the sentence, or order a rehearing or reversion.[8]

To many, these powers push the system over the line and are deemed to be arbitrary, unfair, and prejudiced. The Supreme Court of Canada invalidated many of its military justice provisions regarding the convening authority.[9] Within the last twenty years, the European Court on Human Rights reformed the British system by favoring an independent and impartial tribunal over commander authority.[10] Many legal scholars and proponents of individual rights have used these examples as justification to reform the UCMJ.[11] As two of America’s closest allies with similar democratic values, this might make sense.

However, it would be very unwise for America to completely eliminate the convening authority and stray too far away from the original articles of the UCMJ. Currently, the United States has almost 1.5 million active duty military personnel.[12] The United Kingdom, on the other hand, has less than 200,000 on active duty, while Canada has approximately 70,000.[13] Furthermore, Canada and the United Kingdom perform only a few courts-martial per month in contrast with the United States, which performs thousands of courts-martial every year.[14] The sheer size of America’s military personnel and the resulting necessary command control makes it a completely unrealistic comparison to Canada and the United Kingdom.

While the Executive controls the military, Congress regulates it by law, ensuring the will of the people is expressed and civilian control of the military exists.[15] Today, Congress must remember that the founding fathers of our nation had extensive military experience when creating the original courts-martial.[16] Furthermore, the military justice system cannot take precedence over the military. Command control is essential. Major Christopher Behan has stated “To hold a commander responsible for good order and discipline, without a corresponding grant of authority over the system of disposition of his personnel involved in it, places him and the system itself in an untenable position.”[17]

While the current military justice system ensures fairness and flexibility, some change is necessary to keep up with the changing judicial times. For instance, the convening authority does not need the power to pick panel members. Instead, panel members should be chosen at random by uninterested military personnel. This will not minimize command authority over their personnel to an impractical level. Additionally, while it is wise to allow convening authorities to adjust sentences, the power to overturn findings of guilt undermines the judicial process. Therefore, Congress should make these minor amendments to Article 60 of the UCMJ to reflect these changes. Additional amendments are not necessary as the original UCMJ struck a fair balance between military objectives and due process.

Ben Haight is a third-year law student at The Pennsylvania State University. Ben is a Senior Editor on the Penn State Journal of Law and International Affairs and is an Ensign in the Judge Advocate General’s Corps, U.S. Navy.