Chapter 25
Military Justice in Operations
I. INTRODUCTION
A. Our military justice system was designed to be portable. It was designed with combat in mind. That is good news for military justice practitioners: when you deploy, you use the same exact system that you have been using in garrison. Over the last decade of conflict, we have seen that our system functions downrange, although our system has seen criticism.
B. The other good news is that you will generally have the time in a deployed environment to solve military justice problems by turning to your standard resources – the MCM, your service regulations, the Military Judge’s Benchbook, etc. You should not use this chapter to try to solve complex problems. Use this chapter to familiarize yourself with some of the unique issues related to deployed environments and then go to the primary sources to work your way to the right answer.
C. Before you deploy, review this chapter. Then, you must read the military justice sections of the most recent CLAMO AARs. Within those, you will find expanded discussions of many of the points that are mentioned in this chapter.
II. ESTABLISHING the JURISDICTIONal scheme
A. The term “jurisdiction” is used here to describe GCMCA scheme, not to describe a court-martial’s legal authority to render a binding verdict and sentence. Getting your jurisdictional scheme right may be the most important “deployed justice” thing that you do! Command and control relationships can be very complex in a deployed environment. The person who is commander of both a division and an installation may deploy, which creates the issue of who is the GCMCA forward (the division commander?) and who is the GCMCA in the rear (a new installation commander?). You will have to decide what to do with cases that have already been referred – take them forward, or transfer them to a different commander. Brigade combat teams may deploy in whole or in part, supported by slice elements and personnel, who may be supplied by sister units or even sister services. This is an area where attention to detail is critical. If you do not get the jurisdictional paperwork correct, you may have all of your courts-martial invalidated. Whether you are the Chief of Justice for an OSJA that supports a GCMCA, a brigade judge advocate (BJA), or a command judge advocate advising a battalion, you should start this planning as soon as you learn of the upcoming deployment. If you need assistance regarding jurisdictional issues, contact the Office of the Judge Advocate General, Criminal Law Division. They will help you to ensure that your jurisdictional schemes are properly created.
B. Under the UCMJ, any convening authority may refer any case to trial. As a general matter, the convening authority with administrative control (ADCON)[1] over the accused service member exercises primary UCMJ authority. However, your command may want to set up area jurisdiction. All Soldiers, whether deploying or not, should be assigned or attached to a unit that can dispose of criminal and administrative actions that may arise during the deployment period. The unit adjutant should initiate a request for orders to attach non-deploying Soldiers to a unit remaining at the post, camp, or station. For the Army, AR 27-10, para. 3-8, lists specific language that should be included in attachment orders to indicate a Soldier is attached to a unit for the purpose of Article 15.
C. This is an ongoing process as new Soldiers (and possibly members from other services) will be incoming to the command. This requires coordination with the appropriate G-1/S-1 staff elements. For units, it is useful to keep track of the tactical task organization (usually stated upfront in mission orders) in order to keep track of which subordinate units are operating under the control of which parent units. Consider creating a “jurisdiction chart” for all of the commands in your area of operations. Although the jurisdictional alignment for UCMJ actions may not directly track the tactical task organization, the task organization provides a good starting point.
D. Once the jurisdictional scheme is created, you will need to select panels for those GCMCAs. Again, reference Deploying Justice as well as other traditional resources like Practicing Military Justice to guide you through this process. This is a standard business practice – do it here just like you would do it in garrison. Remember, the system was designed to be portable. If you have a GCMCA with area jurisdiction that covers small, remote outposts, that GCMCA (or even a SPCMCA) can create a panel out of the Soldiers that are on that outpost and try the case right there.
E. Recognize that the commanders and senior non-commissioned officers of provisional units may not have much military justice training, and the commanders and leaders of Reserve and National Guard units may not have much experience in military justice. Arrange for them to receive training.
iII. Legal nondeployables and pending actions
A. You will encounter a tension as your unit prepares to deploy – the tension between processing your legal non-deployable Soldiers quickly so that a replacement will arrive (which usually means a lower disposition), versus ensuring that serious offenses are resolved at the appropriate level (which usually means more processing time). Ultimately, the commanders own the system and they are the ones that resolve this tension. You should provide sound advice based on your experience with the system, to include understanding the norms that prevailed in our system before the current period of conflict, so that your commanders can strike the correct balance.
B. BJAs and military justice advisors (MJAs) should monitor the status of those Soldiers within their jurisdiction who may be non-deployable for legal reasons. Judicial action by military or civil authorities may not necessarily be a bar to deployment for actual combat operations. BJAs should also advise commanders of those Soldiers who are not themselves the subject of legal action, but who are required to participate in legal proceedings (such as witnesses or court or board members). The Commander, usually after coordination with the BJA, decides whether these Soldiers will deploy.
C. In the Army, personnel status is tracked using a Unit Status Report (USR). See U.S. Dep’t of Army, Reg. 220-1, Unit Status Reporting (15 Apr. 2010). Preparation of the USR at the battalion and brigade level is typically an additional duty for a staff officer. In practice, this means the USR officer may be prone to declaring any Soldier remotely connected with “JAG” as “non-deployable for legal” reasons. Judge Advocates should get directly involved in preparation of the USR to the extent necessary to prevent over counting of “non-deployable for legal” Soldiers.
D. Judge Advocates must consider whether to take pending actions to the deployed setting or leave them in garrison. For courts-martial, this will largely be a function of the seriousness of the offense and whether the witnesses are primarily civilian or military. Serious criminal offenses or cases with primarily civilian witnesses often stay in the garrison. Similarly, Soldiers pending administrative separation normally should remain in garrison pending separation. NJP actions often go forward with the deploying force.
iV. PERSONNEL AND EQUIPMENT
A. Deploying personnel. Successful management of military justice actions during a deployment requires planning and training of key personnel. The size of the deployment will often dictate who deploys from a legal office. Deployed settings present difficult supervisory challenges, primarily caused by increased distances between JAs, communication and transportation limitations, and “imported” counsel (JAs crossing over from legal assistance, administrative law, operational law, or claims) who may be inexperienced with common military justice actions. Supervisors must therefore attempt to identify and train potentially deployable JAs before deployment to ensure they are knowledgeable about investigations, NJP procedures, court-martial procedures, and administrative separations.
B. Non-deploying personnel. A military justice supervisor in the rear detachment should prepare for military justice challenges in the rear because of fewer resources available. Also, the supervisor should expect that rear detachment commanders have little to no experience in military justice actions and will need training and guidance, particularly in areas such as unlawful command influence. Rear detachment military justice supervisors must plan for and prepare legal briefings for all new OICs/commanders in the rear detachment and additional training as necessary.
C. Office equipment. Resources, to include electricity, phone lines, internet, e-mail, scanner, and fax capability, are ordinarily limited in deployed settings. Judge Advocates must deploy with relevant regulations and legal forms in electronic format and hard copy. Computers may help to eliminate the need for some hard copy resources. However, given the potential unreliability of computers in the harsh environment of a deployment, JAs must plan for the worst. Past Army deployments have demonstrated the need to deploy with a hardbound set of essential publications, including the Manual for Courts-Martial, AR 27-10 (with any relevant supplements), the Military Judges’ Benchbook, AR 15-6, AR 635–200, a Military Rules of Evidence (MRE) hornbook, a Military Evidentiary Foundations book, Deploying Justice, and Practicing Military Justice.
V. TAKING STOCK OF OUTSIDE RESOURCES AND BUILDING RELATIONSHIPS
A. One of the most important things you can do to have a successful deployment is to build relationships with the other people that work within the system: trial defense attorneys, military judges, magistrates, law enforcement, Special Victim Counsel (SVC), Victim Advocates (VA), Sexual Assault Response Coordinators (SARC), Victim-Witness Liaisons (VWL), confinement facility commanders, etc. Find out who these people are or who they are going to be and start communicating with them now.
B. Trial defense and trial judiciary. Deployment support from trial defense and the trial judiciary should be coordinated early. Depending on the deployment, your OSJA may be responsible for the care and feeding of these Soldiers. If you intend to hold courts-martial at forward operating bases, you will need to coordinate early with the trial judiciary. Talk with the trial judiciary about their plan for part-time military magistrates and if they intend to limit their role or otherwise intend to create new SOPs for their use while deployed.
C. Law enforcement. Identify who will be providing law enforcement services (CID and MPI) in your area of operations and reach out to them. Find out how they plan to secure evidence while they are downrange and where they plan to have the evidence locker.
D. SHARP personnel. Likewise, reach out to the deployed VAs and deployed SARCs that will be working in your area of operations. Check on their training – they may not have received much before the deployment. Conduct battle drills for how you will respond to an allegation of serious misconduct, to include sexual assault allegations.
E. VWLs. The rules still apply while you are downrange. Your VWL in garrison may be a civilian and so will not be going with you. Identify who your VWL will be IAW AR 27-10, para. 17-7, and start training him or her.
F. Confinement facilities. With the exception of the Vietnam War, Army forces have typically not maintained confinement facilities in theater for U.S. personnel. Although jails run by U.S. or U.N. forces may exist for local nationals, they are not intended, and generally should not be used, for holding U.S. military personnel.[3] When the Soldier first goes into confinement, the unit may need to set up a holding area, separate from enemy prisoners of war that does not have unduly harsh conditions. The Soldier is normally then shipped to the rear (Sembach, Germany or CONUS). In mature theaters, confinement facilities may be created in theater. In OEF/OIF, a confinement facility was established at Camp Arifjan in Kuwait for pre-trial confinement and sentences of 30 days or less. Before deploying, learn the process for transporting inmates from the site of initial confinement to the local confinement facility to a rear confinement facility. You do not want to send a Soldier and his or her escorts on a week-long trip only to find out that you cannot check the Soldier into the facility.
G. Urinalysis. Based upon mission requirements and command guidance, you should ensure your units have the ability to conduct urinalysis testing in theater. Steroid use was a serious problem in Iraq and drugs were a serious problem in Afghanistan. Some commanders will be resistant to conducting urinalysis screenings because of the length of time it takes to get results back – sometimes three or four months. However, testing is critical to both detecting criminal behavior and preventing it. Coordination should be made with unit Alcohol and Drug Control Officers (ADCOs), the Installation Biochemical Testing Coordinator and the relevant stateside lab prior to deployment to find ways to make the process more efficient. The unit needs to bring enough supplies (bottles, etc.) for the deployment because they may not be able to get the supplies downrange.
H. The outgoing MJ shop. Contact the outgoing MJ shop to find out what cases you may be inheriting. Get copies of the files now.
I. Gaining GCMCA or subordinate units. Start building relationships with the gaining command and units that may be subordinate to your GCMCA. You need to start building trust so that you can each provide each other with the necessary support and ensure that everyone has visibility on important actions.
VI. GENERAL ORDERS
A. Consider the need for or the existence of a General Order (GO) for the operation. A GO is a commander’s tool to promote mission accomplishment and protect deployed forces. Much like the Rules of Engagement (ROE), GOs are a flexible way for the command to centrally plan, but de-centrally execute the commander’s intent. General orders include prohibitions on the use of privately owned weapons, alcohol, or entry into local religious or cultural buildings. GOs can be used to quickly get after unexpected misconduct, like the poaching of local wildlife or the introduction of designer drugs. A common area of concern is visitation by Soldiers of the opposite sex in housing units. See examples at the end of this chapter (GOs for operations in Desert Shield, Haiti, and Allied Force).
B. Based upon mission requirements and command guidance, military justice supervisors and TCs must draft the general order (GO) for the operation and have it ready for publication as soon as possible. The GO must be published and disseminated to all Soldiers prior to deployment. Violations of a properly published GO may be punished under Article 92, UCMJ. Even though the government need not prove knowledge of a lawful GO as an element of the offense, the contents of the GO should be aggressively briefed to all deploying Soldiers. Consider including the GO as part of the predeployment briefing and having each Soldier sign a copy of the GO.
C. A common problem with GOs is conflicting GOs. Before attempting to draft a GO, you must determine if the higher headquarters already published a mission or theater-specific GO. You should also see what GOs subordinate commanders have issued. Judge advocates must also be aware that the higher headquarters may also prohibit or limit the ability of lower headquarters to promulgate general orders. This often happens when different commands that occupy a single large base issue different regulations on things like housing visitation. To clear things up, the highest commander issues a policy and restricts lower commanders from making any more restrictive policies.
VII. THE UCMJ DURING COMBAT OPERATIONS
A. “Time of War” under the MCM.
1. The phrase “time of war” is a legal term of art. The phrase is not defined by Congress in the UCMJ, although Congress has defined it in other statutes. The President has defined it as “a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that time of war exists.” (RCM 103(21)). For a complete discussion of “time of war,” see the analysis to RCM 103(21).
2. The definition applies only to the following portions of the MCM (It does not apply to statute of limitations and/or jurisdiction over civilians):
a. Offenses that can only occur during time of war: Improper use of a countersign (UCMJ art. 101), Misconduct as a prisoner (UCMJ art. 98), & Spying (UCMJ art. 103).
b. Offenses that may be punished by the death penalty only in time of war: Desertion (UCMJ art. 85), Assaulting or Willfully Disobeying a Superior Commissioned Officer (UCMJ art. 90), & Misbehavior of Sentinel or Lookout (UCMJ art. 95).
c. Aggravating Factor for some offenses: The maximum penalty that may be imposed by court-martial is increased in time of war for drug offenses, malingering, and loitering/wrongfully sitting on post by sentinel/lookout. The maximum period of confinement may be suspended in time of war for solicitation to desert, mutiny, misbehavior before the enemy, or sedition.
d. Nonjudicial Punishment. A commander in the grade of major/lieutenant commander or above may reduce enlisted members above the pay grade E-4 two grades in time of war if the Service Secretary has determined that circumstances require the removal of peacetime limits on the commander’s reduction authority. See MCM, pt. V, para. 5b(2)(B)(iv).
e. Statute of Limitations. UCMJ art. 43 extends the statute of limitations for certain offenses committed in time of war. There is no limitation on the prosecution of absence without leave or missing movement when these offenses occur in a time of war. Persons accused of these crimes may be tried and punished anytime. (UCMJ art. 43(a)). Also, murder, rape or sexual assault, and rape or sexual assault of a child, as well as any other offense punishable by death, may be punished at any time. The President or Service Secretary may certify particular offenses that should not go to trial during a time of war if prosecution would be inimical to national security or detrimental to the war effort; statute of limitations may be extended to six months after the end of hostilities. (UCMJ art. 43(e)). The statute of limitations is also suspended for three years after the end of hostilities for offenses involving fraud, real property, and contracts with the United States.[4]
B. Article 134, UCMJ. The three clauses of Article 134 have considerable utility for misconduct while deployed that is not addressed by the other enumerated articles in the UCMJ or those offenses the President has listed under Article 134. However, Clause 3 of Article 134 should be exercised with extreme caution, if at all, while deployed. In order to use Clause 3 of Article 134 in a location outside of the United States, the statute must either (1) apply in the location where the conduct occurred, or (2) apply to the misconduct regardless of where it occurs. Practitioners must look to the specific language in the statute to determine which category of federal crime they are dealing with. In the first category, practitioners must determine where the conduct occurred and whether the statute applies in that location. The second category is very narrow. The two examples of federal crimes of unlimited application that are provided in the MCM are counterfeiting (18 U.S.C. § 471) and frauds against the Government not otherwise covered by Article 124.[5] In cases where the MCM or UCMJ do not address the alleged misconduct at issue, clauses 1 and 2 of Article 134 (as well as Article 133 where applicable) generally provide an adequate means of punishing misconduct without resorting to Clause 3.
C. Violations of the Law of War. While the UCMJ and the MCM empowers courts-martial to try violations of the law of war in certain circumstances, persons subject to the UCMJ should ordinarily be charged with a specific violation of the UCMJ, rather than an offense under the law of war. See RCM 307(c)(2) discussion.
D. Wartime Offenses. Certain violations of the UCMJ penalize conduct unique to a combat environment. As described above, several offenses may occur only in time of war or have increased punishments in time of war. Understand that these offenses may attract both political and media attention when charged. This warning is not provided either to encourage or to discourage charging these offenses, but to alert the practitioner that a strategy for prosecuting one of these offenses must necessarily address political and media concerns. The following crimes need not occur in time of war to be criminal, but they have elements that may occur only in a wartime situation:
1. Misbehavior Before the Enemy (UCMJ, art. 99).
2. Wrongful Destruction of Private Property (UCMJ, art. 109).
3. Wrongful Taking of Private Property (UCMJ, art. 121).
4. Mutiny or Sedition (UCMJ art. 94).
5. Subordinate Compelling Surrender (UCMJ art. 100).
6. Improper Use of Countersign (UCMJ art. 101).
7. Forcing a Safeguard (UCMJ art. 102).
8. Aiding the Enemy (UCMJ art. 103b).
9. Spying (UCMJ art. 103).
10. Malingering (UCMJ art. 83).
11. Offenses by a Sentinel (UCMJ art. 95).
12. Straggling (UCMJ art. 134).
VIII. COMMON DEPLOYMENT ISSUES
A. Joint Military Justice.
1. The key for working in a joint environment is to build relationships. You need to understand the discipline culture of the other services and work closely with them to solve discipline problems. Even if your command clearly has the command discipline responsibility for the servicemember involved, you should closely coordinate your actions with the legal representative of the other service. In many cases, senior joint commanders set up subordinate sister-service commands to handle discipline issues that arise out of each service.
2. Commanders may refer court-martial cases on personnel of other services assigned or attached to their units, however they must take care to follow the service regulations of the accused.[6] Commanders may also impose NJP on personnel of other services assigned or attached to their units; however, commanders must do so IAW the accused servicemember’s service regulation.[7]
B. Civilian misconduct.
1. Civilian misconduct can come from several angles: US government employees that accompany the force; contractors that accompany the force; host-country nationals that commit misconduct; and even third country nationals that commit misconduct. With US citizens, a common problem is that some of them may not follow the General Order and may consume alcohol or drugs or have relations with the opposite sex.
2. Your commander has some powerful tools short of prosecuting civilians. Your commander can bar the person from the base, and if the civilian is a contractor, your commander can work with the contracted company (the Contracting Officer Representative) to seek discipline.
3. There are three jurisdictional “hooks” available for prosecuting civilians who commit crimes while employed by, accompanying, or serving with the armed forces: The Military Extraterritorial Jurisdiction Act of 2000 (MEJA), Art. 2(a)(10), UCMJ, and the U.S. Government “missions or entities in foreign States” provision[8] of the Special Maritime and Territorial Jurisdiction (SMTJ) statute. MEJA provides for federal (not military) jurisdiction, and Art. 2(a)(10) provides for court-martial jurisdiction. Commanders seeking to prosecute civilians or have DoJ prosecute civilians are required to follow certain procedures. This is another area where you want to build relationships early, this time with the Department of Justice. Get a copy of the most recent DoJ SOP for handling MEJA cases, and get a copy of the current DoJ/DoD MOA, if one exists. These problems are not rapid fire drills and often have high-visibility – find the correct resource and work the problems carefully if they arise.[9]
C. Conducting courts-martial. Trying cases downrange can be difficult, but it can be done. As a sample of the issues that arise, consider witness travel; for that matter, any travel; judge availability; translators; witnesses from the armed forces of our partners; pretrial confinement issues; post-trial confinement issues; funding civilian witness travel; providing for experts; getting country clearances; getting security clearances for civilian defense counsel; keeping prosecuting and defense witnesses separate while you are operating out of tents. The list goes on and on – but that is why we joined the JAG Corps. Not everyone can do these things. You can. Read the CLAMO AARs to see how others have dealt with these issues and read Major E. John Gregory, The Deployed Court-Martial Experience in Iraq 2010: A Model for Success, Army Law., Jan. 2012, at 6. For some cases, it may not make sense to try them downrange – but be an advocate to your commander for trying the appropriate cases downrange.
D. Handling sexual assault cases. You must be prepared to deal with allegations of sexual assault in theater. These investigations necessarily involve many players to include the command, CID, Deployed Sexual Assault Response Coordinator, Deployed Victim Advocates, and the legal office. Handling all of the procedural hurdles associated with these allegations requires close coordination. Prior to deployment, you should run through battle drills for responding to an allegation of sexual assault.
E. Deployment-related misconduct. You will see misconduct downrange that you don’t normally see in garrison or to the same degree. You will see a lot of crimes where the evidence is stored in a digital medium – and when that happens, you may see a significant delay in processing that evidence. You will also see drug use, in particular, steroids, prescription drugs, designer drugs, marijuana and hashish, and even alcohol consumption. You need an active urinalysis program to get after that problem, and also recognize that if the accused does not plead guilty and you want to try that case downrange, you will need to bring in some lab techs as witnesses. You will also see a lot of negligent discharge cases.
F. Summary courts-martial. Summary courts-martial are a great tool for the commander to use downrange – but for them to be effective, you need a confinement facility. If you plan to use this tool, work out the confinement piece before you get there.
G. Training downrange. Military justice training cannot stop just because you are downrange. Very often, you will have junior trial counsel working these actions and trying these cases in a very difficult environment. Find ways to train, even if that only involves watching TJAGLCS videos online.[10]
H. Synchronization calls. Many successful units in Iraq and Afghanistan set up weekly MJ synchronization calls among the different MJ shops in theater. By doing so, they could quickly see the current issues and could shift resources among themselves to run an efficient system.
I. Searches and seizures and health and welfare inspections.
1. Commanders downrange do (and should) conduct a lot of health and welfare inspections. Some may move aggressively against certain problems. For example, contraband like alcohol and designer drugs often come through the mail; therefore, commanders may want to open incoming mail. However, a commander may only inspect mail containers, and shall not, through inspection procedures open individual parcels. See DoDM 4525.6-M paras. C10.7.6.1.2 and C10.7.9. This does not prevent commanders who are conducting inspections from using reasonable technological or natural aids (such as drug detection dogs) during the inspection of mail containers.
2. One of the other big issues that arises is whether the commander can conduct a health and welfare inspection or a search of a contractor’s living quarters or a business that is operating within the fence line. Generally, the garrison or base commander has the inherent authority to conduct inspections and searches within the fence line; however, that power may have been limited by contract or policy. Find out what the policy is for where you are going. In addition, in some jurisdictions, the military judge may limit the magistrate’s ability to issue search and seizure authorizations when civilians are involved. You need to know if any restrictions are in place.
IX. REDEPLOYMENT
A. One of the key decisions is what to do with cases that are referred downrange. One option is to transfer the accused and the case to the incoming unit; the other is to take the accused and the case back to garrison. This decision will likely be based on such factors as the complexity of the case, the length of time until trial, the availability of witnesses (are they in the redeploying unit or are they from the local population), etc. If you hold the trial in theater, you also need to be prepared to extend the deployments of key witnesses.
B. Upon redeployment/demobilization, the military justice supervisor must ensure the following is accomplished: return to the original convening authority structure; end provisional units; units and personnel are assigned/attached back to appropriate organizations for administration of military justice; designations of home station convening authorities are revoked; individual cases are transferred to the appropriate CA for referral or initial action;[11] and the general order for the operation is rescinded.
X. References
A. Manual for Courts-Martial, United States (2019) [hereinafter, MCM].
B. U.S. Dep’t of Army, Reg. 27-10, Military Justice, 20 November 2020.
C. U.S. Dep’t of Air Force, Instr. 51-201, Administration of Military Justice, 6 June 2013. (See: Air Force Guidance Memorandum 2016-01 dated 3 August 2016.)
D. U.S. Dep’t of Air Force, Instr. 51-202, Nonjudicial Punishment, 31March 2015.
E. JAGINST 5800.7G, Manual of the Judge Advocate General (JAGMAN), 15 January 2021.
F. The Judge Advocate Gen.’s Legal Ctr. & School, Criminal Law Deskbook, Practicing Military Justice, https://tjaglcspublic.army.mil/criminal-law-deskbook [hereinafter, Practicing Military Justice].