In Quarles (1955), the United States Supreme Court presciently stated: “There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution.” Since the promulgation of the Articles of War through the present, American military justice has always had a tension between due process and military good order and discipline. Through trial and error, the military judicial system evolved into a system that had a balance between the two, albeit a different balance then drawn in the civilian judicial system. In some respects the military system had fewer protections for an accused (due to military necessity) and in other respects had greater protections (at least partially to balance the former). Today, to put it bluntly, Congress (with the acquiescence of military leadership) has removed those protections and simply left the detriments for a military accused (often making them worse). Today, there is no such thing as a fair trial under the UCMJ (especially in cases of alleged sexual assault). Yes, defenders of this new system point out that over 30 years ago the Supreme Court found the UCMJ to be constitutional. That’s nice. That was a different UCMJ. It’s like assigning college FBS playoff slots based upon a school’s play 35 years ago. Irrelevant.

Until quite recently, mlitary jurisdiction was generally limited to military-specific offenses, such as desertion, making false official statements, violations of the laws of war and other non-common-law offenses. Frederick B. Wiener, Courts-Martial and the Constitution: The Original Practice II, Harvard Law Review (1958). Military courts were viewed as a lesser, inherently unfair, judicial system that existed only as a matter of necessity. Indeed In 1957 the Supreme Court noted that “Every extension of military jurisdiction … acts as a deprivation of the right to jury trial and of other treasured constitutional protections.”
Reid v. Covert. Since then, UCMJ jurisdiction has expanded greatly. However, as it did so, due process rights (both substantive and procedural) were extended to the accused in military justice in order to ensure that this UCMJ expansion was constitutional.

Now I want to talk about the single greatest constitutional violation in the military (which was only justified by other measures to protect the accused, measures that have been taken away); and in later posts I will talk about the removal of those protective measures. The greatest single violation is quite simply the lack of the Sixth Amendment right to a jury trial in the military.
The most single significant impairment the Accused suffers in comparison to his civilian counterpart is the lack of an unanimous verdict by a jury of his peers, appointed by an impartial authority. As the Supreme Court noted in Jones in 1999, the unanimous jury verdict serves as “‘the grand bulwark’ of English liberties” (quoting Blackstone). In fact, see Clauses 39 and 40 of the Magna Carta (1215). Further, Supreme Court precedence is clear that in felony cases the size of the jury is also of paramount importance. See Ballew v. Georgia (1978) (conviction set aside because the jury had only five members); see Burch v. Louisiana (1979) (conviction set aside because the six-member jury was not unanimous).
Contemporary courts-martial panels can have as few as three members (this will soon change to as few as five) (federal courts require 12 member unanimous juries), do not have an unanimity requirement and are personally chosen by the same commander who decided to prosecute a military accused! Also in Ballew the Supreme Court cited to research showing that smaller juries are less likely to engage in effective group deliberation and less likely to overcome the biases of their members. Nevertheless, under the UCMJ neither unanimity nor large panels are required.

In addition, panel member selection under the UCMJ is particularly objectionable from the perspective of substantive due process. “There is no aspect of military criminal procedures that diverges further from civilian practice, or creates a greater impression of improper influence, then the antiquated process of panel selection.” Hon. Walter T. Cox III et al., Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice (2001). The same commander that decides to prosecute a military accused also personally selects the members of his court martial panel. From the external perspective, it is impossible to see how this is fair. The Article 25, UCMJ, process is akin to an U.S. Attorney who handpicks the jury and then selects the prosecutor (one of his assistants) in a criminal case. Further, if you have experience with military panels it is simply a truism that the Article 25, UCMJ, criteria, combined with the practical effect of the potential panel members most likely to be known to a convening authority, results in a self-selected group of high-achievers and disciplinarians who will be less sympathetic to an Accused (especially on sentencing) than a true cross-section of the community.

Ultimately, I want reiterate this simple point. The same commander who decides to prosecute a service member also hand picks the jury. And the prosecutors work for that commander! There is a reason why court after court and Congressional committee after committee (until they decided they only wanted convictions) has expressed great concern over this process. More to follow.