Courts-martial of the United States
While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.
[1] The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous, fighting forces.
[11] Further, the Continental Congress broke away from the British system in an even more significant way: the American Articles of War were created by a legislative enactment and not by an executive order.
[13] After World War II, concerns from veterans’ organizations and bar associations regarding the military justice system in general,[14] and, in particular, the problem of unlawful command influence of courts-martial, led to substantive Congressional reform.
Many of the Framers were combat veterans from the Continental Army and understood the demands of military life and the need for a well-disciplined fighting force.
One of the primary goals of the Constitutional Convention, in remedying the defects of the Articles of Confederation, was to create a government in which separate branches of power served as a check and balance against the other.
The Framers vested power in the executive and legislative branches, but left the judiciary with only a collateral role in governing the armed forces.
[20] After ratification of the Constitution in 1789, the First Congress undertook legislative action to provide for the government and regulation of the armed forces of the United States.
"[21] The Framers consciously placed the power to regulate courts-martial and set military law in the legislative branch of the government.
Summary courts-martial have no civilian equivalent, other than perhaps to noncriminal magistrate's proceedings, in that they have been declared by the US Supreme Court to be administrative in nature, because there is no right to counsel; though, as a benefit, the Air Force provides such to Airmen so charged.
Trial by summary court-martial provides a simple procedure for resolution of charges of relatively minor misconduct committed by enlisted members of the military.
[24] The summary court-martial consists of one individual, who is not a military attorney, but still functions as judge and acts as the sole finder of fact.
[27] However, while not required by law, some services, such as the United States Air Force, provide the accused at a trial by summary court-martial free military counsel as a matter of policy.
Before a case goes to a general court-martial, a pretrial investigation under Article 32 of the Uniform Code of Military Justice must be conducted, unless waived by the accused; this is the equivalent to a civilian grand jury process.
The convening Authority considers the statutory prescription offered by the United States Congress, those "best qualified," in selecting the "panel" or jury for the court-martial.
[40] Military judge-alone sentencing in general and special courts-martial will be mandatory for offenses for which the death penalty has not been sought by the government after December 27, 2023 per the 2022 NDAA.
There are procedures for post-trial review in every case, although the extent of those appellate rights depends upon the punishment imposed by the court and approved by the convening authority.
Cases involving a punitive discharge, dismissal, confinement for one year or more, or death will undergo automatic review by the appropriate military Court of Criminal Appeals.
[43] Prior to 24 June 2014, federal law provided that a convening authority's discretion to modify a finding or sentence to the benefit of a convicted servicemember was a matter of command prerogative, and was final.
[45] After 24 June 2014, convening authorities may not dismiss or reduce a conviction to one for a lesser offense unless the maximum possible sentence of confinement listed for the offense in the Manual for Courts-Martial is two years or less, and the sentence actually adjudged did not include a dismissal, dishonorable discharge, bad conduct discharge, or confinement for more than six months.
[48] Exceptions to this limitation on the power to reduce those types of punishments exist for when the convicted service member enters into a pretrial agreement to plead guilty in return for having any adjudged dishonorable discharge reduced to a bad conduct discharge, or when the convicted service member provides "substantial assistance" to the investigation or prosecution of another person.
From the service court of criminal appeals, a service member, if sentenced to either death, dismissal, dishonorable discharge, bad conduct discharge, or more than a year confinement, may also petition the United States' highest military court—the Court of Appeals for the Armed Forces (CAAF).
For the fiscal year beginning on October 1, 2012, and ending on September 30, 2013, CAAF received 964 cumulative filings and disposed of 900 cases.
[53] As a final measure of appeal, a convicted service member may also petition the President of the United States for a reprieve or pardon under the Constitutional authority granted in Article II, Section 2.
The Court apparently agreed with the arguments of counsel for the United States, Ransom Hooker Gillet, that the Army's discipline in Kansas was in question because several officers found it appalling that they might have to enforce the Fugitive Slave Act.
Congress has used its enumerated powers under the Constitution in conjunction with the Necessary and Proper Clause to create specialized tribunals, including courts-martial.
Article I, Section 8 of the Constitution says Congress shall have the power "To make Rules for the Government and Regulation of the land and naval forces."
The Article III courts will not invalidate the balance reached by Congress as regards the administration of military justice unless the "fundamental right" being affected is "extraordinarily weighty.
"[55] Today's court-martial system, including command selection of jurors, the lack of unanimity in verdicts, and the allowance of 3 or 5 member panels, has thus far withstood scrutiny.
Since 2005, various bills have been introduced in Congress to give service members an appeal of their cases to the United States Supreme Court.
