Written by attorney Douglas L Cody

The Nature and Purpose of Military Law and the Need for Civilian Counsel

U.S. servicemembers accused of offenses under the Uniform Code of Military Justice are often overwhelmed by a criminal justice system that is principally concerned with the maintenance of good order and discipline in the military. In the military justice system, the autonomy, dignity and individual and Constitutional liberties of our nation’s volunteers are too often treated as subordinate concerns. Under these circumstances, it is critical for accused servicemembers to have the benefit of experienced and independent legal counsel.

Nature and purpose of military law and the need for civilian defense counsel

Military law consists of the federal statutes and regulations governing the armed forces, the constitutional powers of the President and regulations issued pursuant thereto, and the inherent authority of military commanders. Military law includes the jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders in imposing nonjudicial punishment.

“The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States." Part I-1, Manual for Courts-Martial (MCM), United States (2008 Edition)

The civilian criminal justice system in the United States is often described as a synthesis of two competing and opposing perspectives, or models: the Crime Control model and the Due Process model. [1] The Crime Control model sees the efficient, expeditious and reliable screening and disposition of persons suspected of crime as the central value to be served by the criminal process. [2] Its principal goal is to enforce the law and to maintain social order. The Due Process model sees that function as limited by and subordinate to the maintenance of the dignity and autonomy of the individual. Its goal is best encapsulated by the words of Sir William Blackstone: “It is better that ten guilty persons escape than one innocent suffer."

The criminal laws of the various jurisdictions within the United States reflect the tensions between these two models, and the resolution of these competing values in our criminal codes reflects a political judgment about which concerns are more compelling in each specific area of criminal law. For example, the law has long struggled with our constitutional exclusionary doctrine, i.e., whether or not to exclude from trial perfectly reliable evidence that was nevertheless obtained in violation of a defendant’s rights against unreasonable searches and seizures. Justice Clark famously defended the exclusionary rule as necessary to the proper functioning of a democratic government:

“There are those who say . . . that under our constitutional exclusionary doctrine, “[t]he criminal is to go free because the constable has blundered." . . . In some cases this will undoubtedly be the result. But . . . “there is another consideration – the imperative of judicial integrity." . . . The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. ..." [3]

On the other hand, Justice White has noted:

“The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights has long been a source of concern. “Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of government rectitude would impede unacceptably the truth-finding functions of judge and jury." [4]

In this and other areas of the civilian criminal justice system, we see that these legal and political disputes have been resolved incrementally, with deliberation and over time, so that in each context we can see “justice" as an evolving balance between the need to protect society and the need to protect individual liberties.

By contrast, the modern military justice system did not have the benefit of centuries of evolution; it was largely created intact in the mid-twentieth century with the adoption of the Uniform Code of Military Justice, though it has since undergone several important revisions. The military justice system was designed to serve a unique purpose, beyond those of crime control and due process. “The purpose of military law is to . . . strengthen the national security of the United States." Thus, in the military justice system, the traditional balance struck between State power and individual liberty is often overpowered by the overarching need to maintain a well-disciplined and effective national fighting force.

Consequently, U.S. servicemembers accused of offenses under the Uniform Code of Military Justice are often overwhelmed by a criminal justice system that considers their autonomy, dignity and individual liberties as subordinate concerns at best. Under these circumstances, it is critical for accused servicemembers to have the benefit of experienced legal counsel with a full understanding of the limitations imposed by the law upon the otherwise unbridled prerogative of commanders, who are of necessity concerned primarily with the good order and discipline of their units. In the context of a criminal justice system that exists to strengthen the State, servicemembers also need fiercely independent advocates who are free from the pressures of command influence, reward and retribution, and who can see the issues from a perspective beyond the institutional and parochial.

[1]Packer, Two Models of the Criminal Process, 118 U.Pa.L.Rev. 1-68 (1964).

[2]Yale Kamisar, Wayne R. LaFave & Jerold H. Israel, Modern Criminal Procedure (Eighth Edition)(1994).

[3] Mapp v.Ohio, 367U.S. 643, 659-660 (1961)(internal citations omitted).

[4]United States v.Leon, 468U.S. 897, 907 (1984)(internal citations omitted).

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