Finally, the UCMJ is unconstitutional because the American Constitutional guarantee of substantive due process when the government infringes upon a person’s fundamental rights are absolutely applicable in the law enforcement and criminal law context. There are a whole host of Supreme Court cases standing for this proposition. During the last couple years Congress has arbitrarily removed several major legal rights of the military accused under the UCMJ that were in place to balance other negative aspects of the military system (such as the Article 25 panel selection process). Congress may well have done this not even knowing about these other impediments to a fair trial, but Congress’ intention is irrelevant. What matters is the actual effect. These arbitrary actions are not narrowly tailored and they infringe directly on a service member’s right to a fair trial, thus violating a service member’s due process rights.

Despite what military trial judges often seem to think, they have the authority to find Congressional changes to the UCMJ unconstitutional. (They just seem afraid to do it….probably partially because they do not have tenure and still report to the Judge Advocate Generals of their respective services. Just like the prosecutors in their courtrooms. No, the military does not have an independent judiciary. Another Constitutional problem.) Thankfully, occasionally the highest military appellate court (the only one that isn’t composed of uniformed, non-independent judges) does weigh in on Constitutional matters. But as for the matters I discussed in the first couple posts, we can find an interesting similar scenario with the Canadians. The Canadian equivalent of the UCMJ came into being in 1950. Based upon the same body of law as our UCMJ, until 1992 it provided for a similar panel selection process as Article 25. But, Article 11(d) of the Canadian Charter of Rights and Freedoms contains a very similar due process guarantee as that of our Constitution for an accused, providing that he or she should “be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Just as with our Constitution there is a clear conflict between that guarantee and military panel selection. So, the Supreme Court of Canada eventually found that due to the panel selection process (among other factors), there was not an independent and impartial tribunal in their military cases. Today, Canadian service members are tried by independent juries and judges. And their military hasn’t fallen apart. It’s time for the U.S. military to do the right thing. It’s time for the military courts to do the right thing. It’s time for Congress to do the right thing. It’s time to honor the Constitution. It’s time to protect our military men and women under the law.