MILITARY JUSTICE CHANGES – BAD NEWS FOR THE ACCUSED SERVICEMEMBER
PART II – THE GUTTING OF THE ARTICLE 32 HEARING
Colby C. Vokey, LtCol USMC (Ret.)
Over the last several years, radical changes have been made to the UCMJ, the Rules for Courts-Martial (RCM), and the Military Rules of Evidence (MRE). None of these changes have been made for the benefit of the individual servicemembers. As a result of Congressional pressure on the military regarding sexual assault, the law and rules have been changed to appease those on the Hill and other special interest groups. Many of these changes were made because false or exaggerated facts and assumptions. The end result is a military justice system that is designed to convict rather than seek justice. I previously discussed the new mandatory minimum sentences. The focus in this article are the recent changes to Article 32 investigations.
Perhaps the most significant and disturbing recent change to military justice is the modification of the pre-trial investigation under Article 32 of the UCMJ. It is often said that the Article 32 is the military’s version of the grand jury. However, this generalization is not exactly accurate. It is a probable cause hearing required before one can be taken to a general court-martial for felony-level offenses. But there is no 5th Amendment right to a grand jury for servicemembers. The military is different. It is unique and our courts have recognized this uniqueness and the permissible denial of a servicemember’s right to a grand jury. Until the most recent changes, the Article 32 was a wonderful procedure that was designed to serve as a probable cause hearing and to serve as a tool of discovery. Facts, issues and witnesses were often flushed out during an Article 32. It provided the defense counsel, prosecutors and commanders with additional information which aided each in the performance of his/her job. Now, however, recent changes have destroyed this full and fair proceeding. The Article 32 is no longer to serve as a means of discovery for the defense or to confront witnesses. The right to have witnesses produced for the hearing has been minimized, if not obliterated. There are now more protections for alleged victims at these hearings than for the accused servicemember who is actually facing years in prison, dishonorable discharge and other punishment.
There have been many other changes to the Article 32 as well. Even the name of the magistrate-like officer presiding over the hearing has been changed from “Investigating Officer” to “Preliminary Hearing Officer.” Even the name change suggests that this once-important procedure has now been reduced to an empty show hearing. None of these changes have been made for benefit of an accused military member. The message is clear – we want a completely one-sided proceeding so that we can prosecute and convict regardless of the evidence or those pesky Constitutional rights.
Two years ago I attended the American Bar Association’s Military Service Committee meeting at the semi-annual conference in Dallas, Texas. What I witnessed was disturbing and disgusting. Service Judge Advocate Generals, Assistant Judge Advocate Generals, service General Counsel, CAAF Judges and other senior military and civilian attorneys all gathered to discuss the “sexual assault problem.” The real problem was that no one could articulate what was actually wrong with our justice system or specifically say how the law was failing. Instead, the entire focus of the meeting was to discuss ways to answer those in Congress who were calling for more convictions. There was not one mention of the Constitution or the rights of the men and women in uniform who face prosecution. There was a great deal of discussion regarding the (at that time) new pilot program by the Air Force of victim’s legal counsel. And how this program would please members of Congress. During this entire meeting, only one senior lawyer in the entire room spoke up to even question this program (DoD General Counsel). This was a gathering of the most senior and powerful attorneys surrounding the military. And this is the same group who would soon approve and endorse the gutting of the Article 32 proceeding. No one can argue that sexual assault awareness and education are a bad thing. Teaching our young men and women to look out for themselves and each other will pay dividends. However, these recent changes to the Article 32 bring back memories of pre-UCMJ military justice when servicemembers had few rights and were convicted in often unfair and unjust trials. If those in power today could go back to the original Articles of War and exercise that absolute control over military justice, I believe they would jump at the opportunity.
These drastic changes have been made for one reason – to increase convictions for sexual assault. This is being accomplished by seriously limiting the rights of military members and making it more difficult to defend themselves. These rights under Article 32 of the UCMJ have been in place for over 60 years. While no system of justice is perfect, the military justice system was often lauded as superior to those other systems found in state and federal courts. But all of a sudden it became necessary to limit the rights of an accused military member. Was the system broken before? Were scores of guilty soldiers going free? Were senior military leaders knowingly and intentionally allowing sexual offenders to go free? The answer is a resounding “No!” But the political machinations of several members of Congress and special interest groups have put pressure on the Pentagon and general officers to make these Draconian changes or face losing funding for major projects and losing military justice control. So instead of standing up for what is right and just, our military leaders at the top capitulated and compromised so that they wouldn’t lose power or programs. This has to be one of the most cowardly acts ever seen from the same leaders who are supposed to be looking out for the rights of the men and women of the armed forces. This is the ultimate irony. Our young men and women serve their country in order to “protect and defend the Constitution of the United States.” Little did they know that their senior military leaders, Congress and President would do everything in their power to deprive them of those same Constitutional rights.