A Matter of History and LawĪlthough military court-martial proceedings now look similar in most ways to Federal civilian criminal proceedings, their history is quite different. Finally, it addresses some of the practicalities associated with the commander’s role and major counterarguments. Then it discusses the commander’s role as a doctrinal imperative. First, the article examines the commander’s role over military justice as a historical matter and as established in the law. This article explains more thoroughly what many military justice practitioners have taken for granted for some time: the importance of retaining authority of the commander over the military justice process. Rather than disaggregate the various services and processes that go into investigations, courts-martial, and victim rehabilitation, the commander is uniquely positioned to ensure that the system is effective holistically, as well as in its component parts. Commanders have the ability to take a systems-based approach to protect the rights of both victims and those accused of crimes. Similarly, if commanders are accountable for the well-being of their troops, then they must have the authority and responsibility to take care of them, which includes things like enabling access to health care and responding to the needs of victims of crimes.Ĭommanders’ oversight of the military justice process is not only an imperative from an accountability perspective, but it is also actually what is best for all stakeholders in the military justice process: the accused, the victim, and those who seek justice. If commanders are accountable for what happens in their units-that is, whether their troops are following orders and maintaining discipline-then they must have the concomitant authority and responsibility to address disciplinary infractions. There are many reasons for commanders to retain authority over the military justice process, but primarily the question of accountability must be paired with responsibility. ![]() ![]() The answer is simple: it would be inconsistent with our doctrine, and the needs of our globally deployable military, to organize our justice system in any other way. Many onlookers have therefore understandably asked why commanders must stay at the center of the U.S. Very few other countries with similar civilian justice systems continue to maintain as central of a role for commanders in justice matters. That role has been under attack over the past decade by legislators who believe that the system would be more just if decisions were taken away from commanders. 3Ĭommanders have always been at the center of the military justice process. 2 For more serious misconduct, it is the commander who determines whether a court-martial is appropriate, and if so, whether a summary, special, or general court-martial is warranted. For lower level misconduct, the commander can choose to impose administrative punishment, that is, anything from a reprimand to nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). ![]() ![]() Commanders have the authority to direct investigations and then to determine what forum is appropriate for the adjudication of misconduct. The military places commanders at the center of all disciplinary decisions related to their troops. Perhaps the most important outcome of all of these reforms is not what has changed, but what has remained the same: the role of the commander in the military justice process. Many important changes will come out of this legislation, including sentencing reform, a reformed appellate process, and changes to jury composition. 1 These changes went into effect on January 1, 2019, bringing with them the modern era of military justice. The most sweeping reforms in 30 years, the result of a comprehensive 2-year Department of Defense (DOD) review, were passed by Congress in late 2016 and implemented via executive order on March 1, 2018. This period of flux, however, is coming to an end. The military justice system has been undergoing constant change for the past decade, as a seemingly endless stream of legislation continues to modify the procedures through which we achieve justice and accountability.
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