A reply to the report of the commission on the 50th anniversary of the Uniform Code of Military Justice : "the Cox Commission" - May 2001 - 50th anniversary of the Uniform Code of Justice

Air Force Law Review, Wntr, 2002 by Theodore Essex, Leslea Tate Pickle

It is encouraging that, after all the evidence was examined, the commission, with its 150 years of collective experience, could find no actual problems with the UCMJ and MCM. It is disturbing that a commission with such a depth of experience would suggest changes based solely on perceptions. The better course of action would be to determine whether the perceptions were accurate, and if not, suggest ways to correct them.

I. INTRODUCTION

To note the 50th anniversary of the Uniform Code of Military Justice (UCMJ), the National Institute of Military Justice sponsored a commission chaired by the Honorable Walter T. Cox III. (1) The Cox Commission reviewed the UCMJ, accepting testimony and documentary evidence from interested parties. At the conclusion of its investigation, the Commission produced a report recommending that a number of changes be made to the UCMJ and the Manual for Courts-Martial (MCM).

This article will examine the Cox Commission's recommendations for changing the current military justice system. Our position is that the changes suggested by the Commission are not needed because there are no actual systemic problems with the UCMJ or the military justice system. The UCMJ should only be modified when the change will correct a real problem. This article will show that the current system already includes checks and balances that adequately address the Commission's concerns.

II. FAILURE TO KEEP PACE WITH STANDARDS OF PROCEDURAL JUSTICE

The Cox Commission Report (CCR) correctly notes that the UCMJ set the standard for modem criminal justice systems. It guaranteed certain rights to the accused years before those rights were recognized by the United States federal or state courts. (2) The UCMJ has served as the model for many systems of justice throughout the world. The CCR does not dispute that the UCMJ and the MCM led the way in implementing modem military criminal justice procedures. However, the CCR now finds that it is behind the times:

"This landmark legislation created the fairest and most just system of courts-martial in any country in 1951. But the UCMJ has failed to keep pace with the standards of procedural justice adhered to not only in the United States, but in a growing number of countries around the world, in 2001." (3)

It is difficult to discern what the Commission means by this statement. As discussed below, the UCMJ provides more procedural protection than an accused would get in the federal civilian criminal court system. (4) It also provides more protection than an accused would typically receive in state or foreign courts. The CCR does not define what it considers to be procedural justice, nor does it cite a single example of injustice under the UCMJ.

HI. NO EXTERNAL SCRUTINY

The CCR states, "The UCMJ governs a criminal justice system with jurisdiction over millions of United States citizens, including members of the National Guard, reserves, retired military personnel, and the active-duty force, yet the Code has not been subjected to thorough or external scrutiny for thirty years." (5) This statement makes it appear that there are no provisions in place for reviewing the UCMJ. This is simply not the case. The UCMJ, as federal law, is subject to the oversight of the legislature. If the President proposes amendments to the UCMJ, there will be congressional oversight. Additionally, both the judiciary and the armed services committees have jurisdiction to review matters of military justice. There is even a Department of Defense directive (6) that establishes a Joint Service Committee on Military Justice that is required to report to the President annually and to propose legislation to improve military justice. The committee's annual review of the UCMJ is both thorough and extensive. (7)

Another check is in the U.S. code itself. Article 146 (8) provides: "A committee shall meet at least annually and shall make an annual comprehensive survey of the operations of this chapter." The term "this chapter" refers to 10 U.S.C. Chapter 47, which is the UCMJ. The committee consists of the judges of the United States Court of Appeals for the Armed Forces (USCAAF), who are all civilians, the Judge Advocate Generals (TJAGS) for each of the services, and the Commandant of the Marine Corps, along with two civilians appointed by the Secretary of the Air Force (SECAF). Moreover, another oversight is the American Bar Association which has a standing committee on Armed Forces Law that produces reports, recommendations, and investigations. Finally, in cases brought under the UCMJ, virtually all hearings are public hearings, including Article 32 investigations (9) and appellate procedures. (10) Indeed, it would be hard to identify a system of criminal justice that is more open or more carefully examined than the UCMJ.

IV. COMPARISON OF THE UCMJ WITH THE MILITARY JUSTICE SYSTEMS OF OTHER COUNTRIES

The Commission states, "In recent years, countries around the world have modernized their military justice systems, moving well beyond the framework created by the UCMJ fifty years ago." (11) The Commission cites the military justice systems of the United Kingdom, Canada, Austria, India, Ireland, Israel, Mexico and South Africa. (12) These countries did change their justice systems. However, the changes they made do not mean that the UCMJ is outdated. Rather, the countries that changed their military justice systems had other problems to correct. In the two cases cited by the Commission, Findlay v. United Kingdom (13) (England), and R V. Genereux (Canada), the legal issues decided were quite different than any that could be raised with regard to the UCMJ. (14)