Military Justice

The court-martial of Americans charged in the fatal bombing of four Canadians puts the focus on the process and integrity of the system.

January 26, 2003|By Michael Hill | Michael Hill,SUN STAFF

The military justice system has never exactly enjoyed a great public image.

In films from Stanley Kubrick's Paths of Glory set in World War I, to the Australian Boer War masterpiece Breaker Morant, to the World War II drama The Caine Mutiny, the system has usually been portrayed as a tool of injustice, cynically used to protect the powerful by tormenting the powerless.

As the saying goes, "Military justice is to justice as military music is to music." Groucho Marx is credited with that though it might be best known as the title of a 1974 muckraking book by Robert Sherrill, yet another indictment of this mixture of military hierarchy and the judicial process.

This system is under scrutiny as it judges whether two Air Force pilots -- Majs. Harry Schmidt and William Umbach -- responsible for dropping a bomb that killed four Canadian soldiers in Afghanistan -- deserve to be court-martialed for criminal negligence and manslaughter. Their Section 32 hearing -- the equivalent of a grand jury proceeding -- ended late last week in Louisiana.

If the United States enters into another war with Iraq -- with pilots and soldiers and sailors unleashing unbelievable amounts of destructive force in increasingly complex technological battlefield arrangements -- the system will probably get an even closer look. In the 1981 gulf war, 35 of the 148 U.S. soldiers who died were killed by the same kind of "friendly fire" that killed the four Canadians.

Those familiar with the military justice system say that, despite its oft-tarnished public image, it actually works quite well.

"I know if I was going to be prosecuted on a charge against me, I would rather have it done in a court-martial than in the downtown court here in Durham," says Scott Silliman, director of the center for law, ethics and national security at the law school of Duke University in Durham, N.C.

Silliman and others argue that while the negative image might once have been accurate, a half-century of increasing professionalism has made the military justice system an admirable judicial institution.

Where once regular officers sat in judgment -- sometimes on trials that affected those they knew -- court-martial judges are now professionals whose military career has careers have been on a judicial track. The attorneys -- both prosecutors and defense -- are drawn from similar ranks.

"They are good prosecutors and good defense lawyers," says Abraham Dash, a professor at the University of Maryland School of Law.

"And it's not like in the old days when the court-martial board was set up by the commander, who could load it anyway he wanted. Now military judges come out of a separate category. They spend their career being military judges. When they sit as a judge they control the court-martial board," says Dash, a pilot in the Korean War who went on to a career as a military lawyer. "I'm not saying it's an ideal world, but it doesn't deserve the bad reputation it sometimes gets."

That goes for the rights of defendants as well.

"The military is more fair than the civilian system in the protection it affords the accused," says Benjamin Lucas, an adjunct professor at the University of Baltimore law school. He points out that the accused is entitled to a lawyer who can cross-examine witnesses at the Section 32 stage while civilian defendants have no such rights before grand juries.

Dash says the accused have other legal protections in the military.

"When I argue in defense of military justice, I remind many of my colleagues that way before the Miranda ruling required police officers to notify anyone taken into custody of his rights, the military was advising anyone the military police talked to about the right to remain silent," he says.

Perhaps most important, the possibility of someone pulling rank to influence a legal outcome has been diminished.

"It's called `unlawful command influence' and it's a bugaboo in military justice," says Lucas, who spent 23 years as a military lawyer. "Senior commanders putting pressure on their juniors about a court-martial is one of the biggest concerns in military justice and they guard against it very carefully. Everyone is human, but I know the effort that is made. People go out of their way to avoid any indication of the appearance of impropriety."

Lucas says this was not always the case. "There was an unfortunate history of unlawful command influence, but in the last 30 years or so, the system has been working to negate that."

What can make this system appear opaque to outsiders is that it is not judging defendants according to civilian laws - it is looking at the application of military procedure. That is what is at stake in the current Section 32 proceeding about the deaths of the Canadian soldiers.

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