(Credit: istockphoto.com/franckreporter)
No. 2
Navigating Military Justice in Deployed Environments
By Lieutenant Colonel Katherine S. Gowel, Major Lance E. Clark, Major Jeffrey L. Rothstein,
Major Megan A. Herriford, Major Simone L. Jack, Major Kyle V. Burgamy, and Sergeant Keith E. Sayko
We need a system that is part of the Army to permit the
administration of justice within a combat zone, and to permit our
constitution and American legal principles to follow our servicemen
wherever they are deployed. Such a system allows us to enter into
agreements with foreign governments so that American servicemen
accused of civilian-type crimes in foreign countries may be tried according to American
rather than foreign principles of law.1
To function as intended, the entire military justice system—from the punitive articles of the Uniform Code of Military Justice (UCMJ) to provisions designed to protect constitutional rights—must be deployable. Certainly, this is a great challenge; but, as General Westmoreland observed during the Vietnam War, for the military justice system to ignore American legal principles and constitutional rights would be crushingly detrimental to Soldiers and to critical Army missions abroad.
To make the military justice system deployable and functional in all environments, including combat, judge advocates must prepare to support both commanders and Soldiers within our current, robust, system.2 Thus, judge advocates must prepare for assisting commanders with imposing non-judicial punishment, conducting investigations, and trying courts-martial overseas, as well as in maintaining American legal principles and Soldiers’ constitutional rights abroad.
Observations and Recommendations on the Administration of Military Justice Overseas
The Europe and Asia (EURASIA) region of the U.S. Army Trial Defense Service (TDS, EURASIA) provides trial defense services to every Soldier stationed and forward-deployed in Europe, Africa, and Southwest and Central Asia. Members of TDS, EURASIA, also have a front-row seat to almost every military justice action, and every court-martial proceeding, across these three continents and several forward-stationed and deployed General Court-Martial Convening Authorities (GCMCAs). Judge advocates of TDS, EURASIA, know that commanders can successfully conduct military justice in deployed environments. Conversely, TDS, EURASIA, sees frequently—recurring, universal challenges to deployed military justice.
In this article, former members of TDS, EURASIA, offer recommendations to support all judge advocates in planning, training, and preparing to administer military justice in any deployed environment, based on military justice experiences from Poland to Afghanistan, and many countries in between.
This article also outlines specific recurring challenges and pitfalls that affect all commands, legal advisors, and Soldiers overseas. It notes the consequences of not addressing these challenges, which could severely hamper commanders’ ability to discipline Soldiers overseas. Finally, the article suggests ways for judge advocates to plan and train to advise commanders in administering all aspects of military justice—including protecting Soldiers’ constitutional rights—in any theater or deployed environment.
Universal Challenges to Achieving Military Justice Overseas
Our line officer counterparts engage in realistic training to test their combat systems and [their] ability to command and control formations. We do not have that luxury. A warfighter exercise does not test our ability to investigate a crime, advise a commander, prefer charges, and conduct a court-martial in combat. Nevertheless, we must be able to accomplish that task and to do so without any formal additional training. We must ensure that we have the requisite knowledge of the law and the wisdom to know how to employ that knowledge.3
While judge advocates may not be sharpening cross-examination skills or advising Criminal Investigation Command (CID) agents on forensics examinations during warfighter exercises, they do have ample opportunities to train how to administer military justice in deployed environments. From an inside view of military justice across three continents, members of TDS, EURASIA, see several universal challenges to deployed military justice. These challenges are enduring, and legal advisors and commanders should expect to face them in any deployed theater. Fortunately, all judge advocates can plan and prepare for these challenges by learning from the experience gathered every day by judge advocates serving across around the globe.
There are three universal challenges to administering military justice in deployed environments: (1) supervising military justice for Reserve component units and Soldiers; (2) managing witness requirements for military justice actions and courts-martial overseas, and (3) proactively ensuring that military defense counsel assets are available to represent and advise Soldiers wherever they are deployed.
Plan to Manage Unique Challenges of Non-Traditional Units and Soldiers
Judge advocates must prepare to administer military justice across the spectrum for all types of units and for all types of Soldiers. Almost every mission overseas includes nontraditional units and Soldiers from the Army National Guard (ARNG) or United States Army Reserve (USAR). The Army will no longer fight or support itself with only active duty Soldiers from numbered divisions. To prepare for this challenge, judge advocates must coordinate with active duty, ARNG, and USAR counterparts and educate themselves on the intricacies of managing military justice actions from each of these perspectives.
To illustrate, ARNG and USAR Soldiers comprise almost the entire force in Camp Lemonier, Djibouti, and Kosovo, and they are a significant portion of the forces located at both Camp Buehring and Camp Arifjan, Kuwait. Those units have experienced and well-trained legal advisors and robust legal sections. However, the judge advocates within ARNG and USAR units do not spend their careers advising commanders on active duty military justice actions, or coordinating with active duty commanders serving as convening authorities. Similarly, active duty legal advisors do not spend much of their careers advising commanders on the unique aspects of managing military justice actions for reserve component Soldiers or units. This lack of familiarity results in a lack of planning on both sides, and is a significant challenge to the ultimate goal of administering military justice for all deployed units and Soldiers.
Indeed, because of a lack of planning, active duty legal advisors overseas seem to learn the hard way that ARNG and USAR Soldiers and units have very different planning factors than active duty units and Soldiers. For example, ARNG and USAR deployment timelines differ, so many Soldiers may redeploy or rotate out of theater after a short period. Their entitlements are different and very complex. After they redeploy, ARNG and USAR Soldiers usually demobilize and re-join their civilian lives; they become civilians who are spread all across the United States. These are issues that active duty, ARNG, and USAR legal advisors must jointly consider and plan for before conducting military justice actions in deployed environments.
The legal advisors for active duty convening authorities must plan, for example, how they will administer military justice if a commander decides to court-martial an ARNG Soldier. They must prepare for complex issues regarding orders extensions, pay and entitlement changes, maintaining the mobilization status of potential witnesses, and understanding how court-martial sentences or other military justice actions will affect ARNG Soldiers. They must anticipate the time frames necessary to accomplish many of these administrative tasks, and advise their commanders accordingly. They must also understand how TDS support will work for each type of action and for each type of Soldier, from action initiation through ultimate sentence or results.
Failing to plan to administer military justice across all components can leave commanders unable to administer justice effectively or efficiently. For example, some mobilized USAR and ARNG Soldiers working in senior-level headquarters across Europe have been accused of entitlements fraud. Commanders have sought to discipline the Soldiers through the military justice system. However, since active duty legal advisors typically do not understand the very nuanced and complex entitlements for USAR and ARNG Soldiers, they were challenged to provide comprehensive legal advice to commanders. In some cases, commanders initiated lengthy investigations against Soldiers who had not violated the law. Conversely, failing to understand USAR and ARNG entitlements hampers commanders’ ability to discipline Soldiers who have committed fraud.
A second example involves a commander in U.S. Central Command (CENTCOM), who convened an administrative separation board for a USAR Soldier. At the board, the trial counsel argued that the board should recommend the Soldier be separated with an Other Than Honorable discharge. However, the trial counsel had not advised the commander that the board composition was improper and that the board, as convened for a USAR Soldier, was only entitled to recommend a General or an Honorable discharge. Had the trial counsel been more familiar with the nuances of military justice actions regarding USAR and ARNG Soldiers, the commander would have had more discipline options.
There are many significant consequences when judge advocates do not properly manage USAR and ARNG Soldier witnesses for courts-martial. We discuss this in-depth below, but it is critical for judge advocates to understand that witness challenges can significantly affect commanders’ ability to court-martial Soldiers. Fortunately, active duty, ARNG, and USAR judge advocates across U.S. European CommandEUCOM, U.S. Africa Command (AFRICOM), and CENTCOM address these challenges daily. Legal advisors who are planning and training to deploy must learn from brethren managing these issues and begin planning and training to meet this universal challenge.
Develop A Plan to Ensure Witness Availability
Another military justice challenge facing legal advisors overseas and across deployed theaters is managing witnesses. All Soldiers accused of crimes have the right to confront their accusers, as the U.S. Constitution requires.4 At courts-martial, this means that witnesses must either travel overseas to testify regarding alleged crimes and offenses or be deposed in the United States. Furthermore, some witnesses in deployed or overseas environments may not be U.S. citizens, and cannot be compelled to testify at a court-martial. For legal advisors focusing on ensuring justice and upholding American legal principles and Soldiers’ constitutional rights, these witness challenges are significant.
However, these challenges are also enduring. It is an indisputable and inescapable fact that civilian witnesses cannot be required to travel overseas,5 and that foreign witnesses cannot be required to travel to the United States. In every court-martial tried overseas, command legal advisors must consider how they will prove charged offenses and how and where they will summon necessary witnesses. Legal advisors must assume that accused Soldiers will exercise their right to confront witnesses, and ask witnesses to speak on their behalf before sentencing at courts-martial. Some witnesses will not or cannot travel and must be deposed in the United States. And, occasionally, trial counsel must ask military judges to find witnesses unavailable. All of these challenges are predictable and enduring; nonetheless, members of TDS, EURASIA, have seen many attempted courts-martial without solid plans for witness testimony overseas..
Additionally, legal advisors often focus solely on the location of the witnesses required to prove the charged offenses, with little thought as to the availability of potential defense witnesses. While it is unreasonable to expect that the government will be able to identify every potential defense witness, trial counsel should devote some time to viewing cases from the defense perspective prior to preferral. Was a prior inconsistent statement made by the complaining witness to a civilian friend? Did a fellow USAR Soldier, who did not deploy with the unit, attend the pre-deployment party on the night in question and witness something advantageous to a potential defense theory of the case? Article 46, UCMJ, mandates equal opportunity to obtain witnesses by all parties, so legal advisors must be cognizant of potential witness production issues so they can properly advise the command.
Failure of judge advocates to recognize and train for the universal challenge of witness availability limits commanders’ discipline options. For example, a trial counsel may deny a defense request for witness production of a civilian witness, and advise the commander to convene a court-martial in a forward combat zone where the civilian cannot travel. If the military judge then orders production of the civilian witness, the commander will not be able to discipline as anticipated. The commander may have to transfer the trial to another venue, or not be able to court-martial at all. Similarly, if a trial counsel does not understand that a demobilized USAR Soldier must be specifically placed on active duty orders to travel overseas for a court-martial, then she may struggle or fail to complete the process on time, and she may not be able to prove the government’s case.
Overall, to be prepared to achieve military justice in deployed environments, judge advocates must be prepared to address witness travel and testimony. More importantly, they must be prepared to advise commanders that such travel and testimony will be required to achieve justice at courts-martial. Judge advocates must educate commanders concerning potential unit impacts and actual financial costs associated with holding courts-martial in a deployed environment.
Fortunately, judge advocates across Europe and Western Asia manage this complex issue daily. Indeed, witness travel and appearance are significant challenges to military justice overseas, but they are not unknown or surprise challenges. Military justice leaders must ensure that all judge advocates learn from the constant, predictable challenge of witness production overseas, so all judge advocates will be better prepared to achieve military justice in combat.
It is critical for judge advocates to understand that witness challenges can significantly affect commanders’ ability to court-martial Soldiers
Always Plan to Ensure TDS Support for Soldiers
We must remember that the military justice system is an adversarial criminal process that must honor the non-negotiable constitutional protections for an accused. Our scales of justice are balanced for sound reasons—our sacred charter is to ensure we show proper respect for both sides of the scale.6
Finally, to effectively administer deployed military justice, legal advisors and their commanders must proactively plan to protect Solders’ rights and American legal principles. As General Westmoreland noted in 1971, and Lieutenant General Charles N. Pede, The Judge Advocate General of the U.S. Army, discussed with Congress in 2019, military justice simply cannot occur without protecting Soldiers’ rights.
The Judge Advocate General’s (JAG) Corps today is universally challenged to protect Soldiers’ rights abroad because legal advisors often do not plan for, or advise commanders on, the importance of establishing consistent legal representation for Soldiers abroad. Indeed, legal advisors themselves may not understand how TDS attorneys support Soldiers. However, for commanders to maintain discipline through the UCMJ, TDS support must be present and functional in every area of operations where significant numbers of Soldiers serve.7 Army TDS attorneys represent Soldier-clients; they cannot do that effectively if they are not present and prepared to support Soldiers.
First, it is critically important for all legal advisors to understand how TDS attorneys support Soldiers. Army TDS attorneys are prescribed duties in three different tiers: Priority I duties include general and special court-martial representation; Priority II duties are all other assigned TDS functions, such as suspect rights, Article 15s, administrative separations, and summary court-martial advice; and Priority III duties include, such as reprimands, evaluation report appeals, and other adverse administrative actions. It is important for all legal advisors, especially those without TDS experience, to consider these priorities when evaluating the available TDS staffing and their respective resourcing when deciding whether to court-martial a Soldier.8
Judge advocates and their commanders must plan to proactively seek sufficient TDS support, and properly resource TDS. Army defense counsel represent commanders’ Soldiers and help maintain those Soldiers’ constitutional rights.. However, legal advisors currently do not train commanders to ask: Where is my TDS support? How will my Soldiers reach and stay in contact with their TDS attorneys? Do our servicing TDS attorneys have phones, paper, and copiers so they can support my Soldiers? Are the TDS attorneys given priority in terms of flights within my area of operations? How can we conduct military justice if we do not have anyone nearby to represent Soldiers? If I myself were charged with a crime, would I be satisfied with intermittent telephonic communication with a TDS attorney located in a different country?
Indeed, judge advocates must train commanders to ask these critical questions when planning their missions. But judge advocates must first train themselves to plan for this critical asset. To judge advocates, TDS support can no longer be an afterthought or a secondary consideration for deployed military justice. To achieve military justice—the JAG Corps’s statutory mission—legal advisors must always plan to make Soldiers’ constitutional rights, protected by defense counsel, a critical priority. All legal advisors can do this by proactively ensuring TDS is present and functional wherever Soldiers deploy.
To achieve military justice—the JAG Corps’s statutory mission—legal advisors must always plan to make Soldiers’ constitutional rights, protected by defense counsel, a critical priority
Co-located and functional TDS support is critical to achieving military justice overseas. Trial Defense attorneys are tasked with and ethically bound to provide zealous representation and advocacy for their clients. Often, especially in court-martial cases, that representation involves investigation and interviewing witnesses. If TDS attorneys are not present in the same area where crimes allegedly occur, they are challenged to investigate and interview witnesses in a timely manner. In fact, they may not ever find critical, time-sensitive evidence necessary to defend Soldiers properly if they are not able to access alleged crime scenes. Further, if TDS support is not present alongside Soldiers, those Soldiers do not receive the robust level of representation their non-deployed counterparts doreceive. Communication problems, time differences, and the inability of Soldier-clients to have reliable, private contact with their attorneys significantly hampers TDS support for Soldiers. It is unfortunate that Soldiers in combat, who normally receive the very best from the United States Army, often do not receive the best legal representation because either TDS is not present,9 or commanders have not prioritized Soldiers’ rights.
For example, the advice during the Article 15 process is much less robust overseas. In garrison, new clients are escorted to TDS and able to watch a video informing them ofn the process while a TDS paralegal carefully reviews their individual packet. After that, they can sit down in an office to discuss potential defenses or extenuation and mitigation face-to-face with an attorney, and then easily be in contact with that attorney for follow-up meetings or calls. However, Soldiers in deployed environments often cannot meet with a TDS attorney in person. Soldiers receiving Article 15s in deployed environments are frequently denied their own individual copy of the evidence because, often, unit paralegals don’t do not have the tools to provide electronic or physical copies to Soldiers. At their remote locations, they sometimes must sit at a common area desk where they are only able to discuss their Article 15 with a TDS attorney telephonically, using DSN or SVOIP phone lines that routinely go down. The witnesses they wish to call may be spread out across the area of operations, or even stateside, where they will often be asleep at the time the second reading takes place half a world away.
The several examples above illustrate the special challenges of protecting Soldiers’ rights overseas and highlight the idea that all legal advisors must proactively plan and advocate for comprehensive, physically-present TDS support in all areas of operations.
Overall, these are only a few of many challenges to administering military justice overseas and in hostile areas. Certainly, legal advisors must plan for as many scenarios and challenges as possible. This article discusses three universal challenges because they are enduring. Hopefully, legal advisors can identify and plan for each when preparing for deployment. In addition, experienced judge advocates gain overseas today, in all environments, is extremely relevant to preparing for future military justice actions in all deployed environments, including combat.
Training and Planning to Achieve Military Justice Worldwide
A military trial should not have a dual function as an instrument of
discipline and as an instrument of justice. It should be an instrument
of justice and in fulfilling this function, it will promote
discipline.10
The commander ensures Soldiers retain their dignity in combat. One
necessary method to enforce battlefield standards is through
court-martial. Indeed, at its foundation, the preservation of good
order and discipline is why the commander has this authority.11
To administer military justice—especially courts-martial—that promotes discipline and dignity in the Army and for Soldiers, legal advisors and commanders must employ the tools of the UCMJ and protect Soldiers’ rights. However, while legal advisors and commanders appreciate and understand the importance of legal representation for Soldier-clients, they are not always adequately planning or training for it. A commitment to deployed military justice demands a full-spectrum plan for both command actions and results, as well as legal representation for Soldier-clients. Based on extensive military justice experience overseas, this section offers illustrations of how to plan to uphold American legal principles and protect Soldiers’ rights abroad. Further, it discusses several different types of units and deployed environments.
Rotational Unit in Eastern Europe
An active duty, brigade-sized unit is rotating through Eastern Europe for nine months. A brigade judge advocate (BJA) likely plans where her paralegals will sit, how commanders will administer urinalysis tests, and how First Sergeants (1SGs) will get medical support for administrative separation physicals. Those are critical issues to consider and plan for. But does the BJA plan how and where Soldiers receiving Article 15s will exercise their right to talk to a defense attorney? Does she plan for and advise commanders that Soldiers will need to arrange transportation so that they can speak privately with their TDS attorney? Does she at least arrange for phone access, internet access, and a private place for the Soldier to speak to a TDS attorney? Likely, she does not.12
However, commanders cannot administer military justice if Soldiers cannot exercise their constitutional rights. For example, commanders cannot conduct Article 15s or administrative separations if Soldiers haven’t have not had a meaningful opportunity to consult with legal counsel. Likewise, TDS attorneys cannot adequately advise their clients if they do not have a complete copy of the Article 15 packet, chapter packet, or preferral packet, including all supporting evidence or materials being considered by the command. Judge advocates must plan to support Soldiers’ right to seek legal representation, not only theoretically, but practically. Legal advisors with rotational units should seek out trial defense and legal assistance offices that support their areas of operations and plan early to establish necessary support for military defense counsel. They must plan how Soldiers will contact their attorneys not only when communications are working well, but when communications are compromised. They must establish reliable systems to ensure required documents are provided to the detailed defense attorney prior to consultations with the Soldier. They must establish procedures for making witnesses available to be interviewed by defense attorneys. These planning factors are complex but critical to administering military justice overseas. Thus, judge advocates can no longer put planning and preparing for TDS support on the back-burner. To administer justice and promote good order and discipline, they must proactively prepare to support Soldiers’ rights in all environments.
Courts-Martial in Combat
A second, more complex challenge would be for a unit forward-deployed in a hostile area to conduct a court-martial. Likely, the legal advisor has prepared and trained on how he might conduct a court-martial overseas: he has thought through the mechanics of CID support for investigations, administrative support for preferral and referral, and selecting a deployed panel. But, has he considered that the Soldier being court-martialed has many rights throughout the process? Does he expect and plan for the Soldier to exercise his or her rights? Members of TDS, EURASIA, have seen very successful courts-martial tried overseas in hostile areas, but they have also seen less successful attempts.
In the former, successfully-tried cases, legal advisors considered all of the necessary factors for military justice, including protecting Soldiers’ constitutional rights. They decided to hold courts-martial in developed areas in theater, where both government and defense witnesses could easily travel. They closely considered the types of offenses being tried and ensured witnesses necessary to prove their cases, as well as those that could potentially be called by the defense, would be available in theater, or deposed in a timely manner in the United States. They considered that expert witnesses might be necessary and that a military judge and court reporter would often have to travel to the theater. They closely managed timelines, knowing that they should complete the courts-martial before the units or the accused Soldiers’ attorneys had to re-deploy.
On the other hand, some courts-martial were not successful. In those cases, legal advisors appeared not to consider practical challenges that inevitably arise when conducting courts-martial overseas. Trial counsel pushed to hold courts-martial in hostile areas, where witnesses, including civilian witnesses, would have great difficulty traveling. They seemed not to consider the types of offenses being tried or whether witnesses required to prove the government’s case would be available in theater at the time of the court-martial. In some cases, necessary witnesses were available in theater but were unavailable due to the high operational tempo of the ongoing mission. They did not hold depositions. They appeared not to consider the challenges for military judges and court reporters having to travel repeatedly to remote locations. They failed to establish priority of travel for witnesses, panel members, the court, and attorneys traveling to the court-martial. Ultimately, because of the one-sided focus and lack of sufficient planning, many of these cases could not be tried in forward-deployed locations. These cases resulted in alternate dispositions, requests by the government to change venue, or judges ordering them to be tried in the United States.13
To be prepared to conduct courts-martial overseas, and particularly in a combat or hostile area, legal advisors must consider how they will address universal challenges, such as witness appearances, and how they will protect accused Soldiers’ constitutional rights. Commanders must have a complete understanding of both the legal and practical considerations so that they can make informed decisions about convening courts-martial in deployed and combat environments.
To be prepared to conduct courts-martial overseas . . . legal advisors must consider how they will address universal challenges, such as witness appearances
Military Justice in Undeveloped Theaters of Operations
Planning to administer military justice in undeveloped theaters of operations, such as Africa, is especially challenging. Likely, such a theater has new senior commands: AFRICOM, for example, has only existed since 2008, and Army units and missions are still developing. The Army probably does not have good infrastructure in the theater, and Soldiers often work in joint environments, leaving them to receive legal advice from sister-service uniformed judge advocatesinsister-services.
To be prepared to administer military justice in undeveloped theaters, legal advisors must plan that most of the challenges addressed above will become more extreme. The units and Soldiers deployed to these theaters will likely heavily consist heavily of mobilized USAR and ARNG elements, and other non-traditional Soldiers and units, such as Special Operations Forces. These Soldiers will likely be in very remote locations. Further, the lack of infrastructure will make other military justice actions especially difficult. Providing TDS support will take extensive planning, as there likely will not be any TDS presence in theater, and communications infrastructure may not easily allow private communications between Soldiers and defense counsel. Additionally, should commanders plan to conduct courts-martial, legal advisors would have to prepare extensively for witness travel and administrative support. It may be extremely difficult or even impossible to convene courts-martial in undeveloped theaters, so legal advisers should be prepared to move all court-martial parties to other suitable locations.14 Legal advisors must also plan for both government and defense counsel to be able to gather evidence and interview witnesses in theater. This likely means those attorneys and paralegals need official passports, visas, special travel documents, and maybe possibly immunizations or other medical evaluations.
Overall, in such a developing theater with little infrastructure, administering military justice, especially courts-martial, is particularly challenging. It is also probably not on the top of commanders’ priority lists. But, legal advisors must specifically plan and train to administer military justice in developing theaters because it is such a challenge. And, as in any other theater of operations, military justice is incomplete and ineffective without protecting our American legal principles and Soldiers’ constitutional rights.
Conclusion
In all theaters, environments, and units, commanders must ensure discipline through military justice. Judge advocates are responsible for advising commanders on military justice in the Army. In advising commanders, judge advocates’ advice must address how to protect Soldiers’ rights. Military justice actions—from reprimands to Article 15s to courts-martial—must be instruments of justice themselves, or they will not promote or support discipline. If judge advocates have not planned and trained on how to ensure their commanders’ actions are instruments of justice, they are not prepared to advise in combat.
Fortunately, judge advocates can train to administer military justice overseas, try courts-martial in combat, and maintain Soldiers’ constitutional rights. Judge advocates have myriad opportunities every single day, in every theater of operations, that can assist them to plan and train to administer justice throughout the world and in any environment. However, judge advocates must take full advantage of these opportunities and constantly assess enduring challenges. Judge advocates must also always plan to administer military justice as a system that “permit[s] our constitution and American legal principles to follow our servicemen wherever they are deployed.”15
TAL
LTC Gowel, Branch Chief, Military Personnel Law, Office of The Judge Advocate General, Washington, D.C.
MAJ Clark, Senior Defense Counsel, Western Germany.
MAJ Rothstein, Deputy Chief, Administrative Law, U.S. Army Pacific.
MAJ Herriford, Student, 68th Graduate Course, The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia.
MAJ Jack, Chief, Federal Litigation, III Corps and Fort Hood, Texas.
MAJ Burgamy, Associate Professor, Administrative and Civil Law, The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia.
SGT Sayko, Paralegal NCO, III Corps and Fort Hood, Texas.
Notes
1. General William C. Westmoreland, Military Justice: A Commander’s Viewpoint, 10 Am. Crim. L. Rev. 5, 20-21 (1971).
2. Certainly, other options are viable, such as working with Congress to amend the Uniform Code of Military Justice (UCMJ) to make it more expedient in deployed and combat environments. Changes might include: commanders taking actions without providing Soldiers the opportunity to consult with counsel; prohibiting Soldiers from hiring civilian defense counsel in certain combat environments; or prohibiting Soldiers from turning-down non-judicial punishment in combat or similar environments. Many judge advocate leaders have suggested these and similar courses of action, and they certainly have merit.
See, e.g., Major Franklin D. Rosenblatt,
Non-Deployable: The Court-Martial System in Combat from
2001-2009, Army Law., Sept. 2010, at 12. Major John Brooker, Target Analysis: How to Properly Strike a Deployed Servicemember’s
Right to Civilian Defense Counsel, Army Law., Nov. 2010, at 7. Telephone interview with Chief of National Security Law, U.S. Army Europe (Mar. 24, 2019) (discussing the communications challenges and difficulties with trial defense representation in high-intensity conflict environments). However, the goal of this writing is to assist judge advocates in administering military justice within the existing system, accounting for the full provision of Soldiers’ rights. Id.
3. Brigadier General Susan Escallier, The Wisdom of Courts-Martial in Combat, Army Law., Sept./Oct. 2018, at 3.
4. U.S. Const. amend. XI. “[T]he accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” Id.
5. See, UCMJ art. 46(b)(3) (2018). U.S. Army Reserve (USAR) and Army National Guard (ARNG) Soldiers not on active duty are treated as civilian witnesses for purposes of witness production. Id. See also Manual for Courts-Martial, United States, R.C.M. 703(e)(1) discussion (2019). Alternatively, these witnesses
can be placed on orders for the court-martial. If so, consideration
should be given to the time required, coordination, and fiscal
constraints in doing so. Id.
6. Sexual Assault Prosecution and the Role of the Commander: Hearing
Before the H. Subcomm. on Military Pers., 116th Cong. 7 (2019) (statement of Lieutenant General Charles N. Pede Hearing Statement, The U.S. Army’s Judge Advocate General) [hereinafter Pede Hearing Statement].
7. The author strongly recommends that, under most circumstances, Trial Defense Service (TDS) counsel should have offices in areas of operations with over 5,000 Soldiers, and a Special Court-Martial Convening Authority (SPCMCA)/brigade commander. This may not be possible in some contingency or austere environments, but it should be a goal for the Judge Advocate General’s (JAG) Corps. Defense counsel can, and do, travel to meet clients and interview witnesses, and they advise clients over the phone/email. However, for contingency operations located far from the United States. or other permanent U.S. bases, TDS support to Soldier-clients will be slow and limited without physical TDS presence.
8. Legal advisors should also bear in mind that many remote TDS Field Offices are often staffed by a single attorney. Therefore, if a command convenes a court-martial in a deployed environment with only one resident TDS attorney, that court-martial will become the detailed TDS attorney’s primary mission. The practical implications will almost certainly include delayed Priority II services (such as Article 15 and separations actions), which commanders and senior Noncommissioned Officers (NCO’s) rightfully expect to process efficiently in order to maintain unit discipline.
9. The physical presence of TDS is dependent upon command and senior legal advisor support. Trial Defense Services cannot, alone, secure slots to fill with counsel; rather, senior legal advisors must prioritize TDS support within their commands by explaining the critical nature of TDS presence for the functional and fair implementation of military justice.
10. Westmoreland, supra note 1, at 8.
11. Pede Hearing Statement, supra note 6, at 4.
12. At present, TDS attorneys supporting rotational forces throughout Europe, from Norway to Ukraine, and most countries in between, rely heavily on personanel cell phones and applications, such as WhatsApp, to conduct private consultations with clients.
13. As discussed above, a second-order effect of courts-martial being unexpectedly moved to the United States is that forward-stationed TDS attorneys, having formed attorney-client relationships with Soldiers being tried, have to travel to the Continental United States unless released by their client, leaving all other deployed Soldiers without available representation for prolonged periods of time.
14. For example, a more suitable location might include necessary access to a Sensitive Compartmented Information Facility, particularly where special forces and other non-traditional Soldiers are involved in classified operations. The case may require the ability to review classified evidence. This includes extenuation and mitigation that could be expected to be presented by the defense, such as classified OERs, NCOERs, or awards.
15. Westmoreland, supra note 1, at 8.