Back to the Future with the Uniform Code of Military Justice: The Need to Recalibrate the Relationship Between the Military Justice System, Due Process, and Good Order and Discipline
The military justice system is unique. At the center of this system is not a judge or even an attorney, but rather a military commander. The commander has the authority to charge service members with offenses, refer these cases to courts-martial, select the panel member who will hear the case, and to then review the findings and sentences adjudged by the court-martial. The primacy of the commander stems from the dual goals of the military justice system: to preserve good order and discipline, while also ensuring justice is achieved. Recently, though, reformers have argued that commanders have failed the system. Highlighting the recent increase in military sexual assaults and the rash of service member misconduct during deployment, these reformers argue that commanders should be removed from the military justice system. This paper argues, however, that it is not the commanders that failed the military justice system, but rather the military justice system that failed the commanders. For commanders to ensure service members abide by their orders, they must be able to effectuate punishment that is credible and transparent. Simultaneously, this punishment must be viewed as legitimate. A balanced military justice trinity weighing good order and discipline, due process, and the military justice system provides the commander with these tools. The current system, though, does not present this balance. The gradual increase of due process into the military justice system has rendered the court-martial an obsolete tool, and consequently commanders rarely utilize it. Thus, commanders lack the capability to deter service member misconduct. This paper argues that only by restoring the balance, specifically by scaling back the extra-constitutional due process rights afforded to accused service members, can commanders effectively combat the increase in service member misconduct.