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The Slow Civilianization of Courts Martial

There is a history of resistance by some military leaders to efforts to “civilianize” the military criminal justice system. 9 This resistance appeared most famously during the 1920s in the offi ce of the Judge Advocate General of the Army over the availability of appeal from certain court martial cases (Lindley, 1990). Commanders resisting such change perceive the military criminal justice system principally as a means of promoting discipline to protect the authority and effectiveness of the military command and view efforts to civilianize the military system as a threat to those goals. For example, William Winthrop, “the greatest departmental authority upon Military Law,” stated in 1886 that “Courts- martial are not courts, but are, in fact, simply instrumentalities of the executive power provided by Congress for the President as Commander-in-Chief to aid him in properly commanding the army and enforcing discipline therein” (Winthrop, 1886, p. 54). This tension pits the “demands of disci- pline” against “the requirements of justice” (Barry, 2002, p. 67).

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Courts martial are Article I rather than Article III courts (Duke & Vogel, 1960). As such, courts martial were not established along the same guidelines or, really, for the same purpose as civilian courts. Courts martial are an extension of the executive power (provided by Congress) to aid the President in maintaining discipline in the armed forces. “Despite periodic reforms, the military justice system, like the military system as a whole, has long been viewed as an extension of the Executive Branch to serve its military needs” (Turley, 2002, p. 665). One aspect of this is that courts-martial “need not provide a military accused with the same procedural rights available to a civilian defendant in a criminal trial conducted under Article III” ( Willenbring v. Neurauter , 1998, p. 157). Courts martial form an essential part of a commander’s tools for maintaining effective command and control.

Accordingly, courts martial historically have not been held to the same due-process standards as civilian courts. While many of the protections of the Bill of Rights have been applied to the mili- tary through statute, civilianizing changes typically have been resisted by military personnel (Wiener, 1958b, pp. 294–296). As early as 1912, the Judge Advocate General of the Army stated in a Con- gressional committee hearing that “the introduction of fundamental principles of civil jurisprudence into the administration of military justice is to be discouraged” (Ansell, 1919, p. 7). In subsequent testimony, the Judge Advocate General of the Army emphasized again that a court martial must



28 The Death Penalty and the U.S. Armed Forces


be—fi rst and foremost—the tool by which a commander maintains discipline and control (Lindley, 1990, pp. 66–68). A thorough history of the courts martial system and efforts to “civilianize” the system over the past century, by Kevin J. Barry (Captain, U.S. Coast Guard Ret.) (2002), casts these efforts as long, hard-fought battles met with great resistance by the military.

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