This article originally appeared at SOFREP.com and was written by Special Operations Medic Derrick Gilmer.
Military commanders are responsible for maintaining discipline in their unit. Bestowed absolute power over their subordinates, by the Uniform Code of Military Justice (UCMJ), they have the final say during criminal cases, even if they have no legal experience.
By the mid-twentieth century, Americans who served in the armed forces protested against an unfair military legal system. As a result, the Uniform Code of Military Justice (UCMJ) was established in 1950.
Over the next 30 years, changes were made in the UCMJ to improve public perception and legitimize the legal process. Although these changes helped secure the rights of the accused, unethical and illegal actions by military leaders, prosecutors, and investigators persist. If the UCMJ is intended to protect the rights of accused servicemembers, why do the men and women who investigate, charge, and persecute our nation’s warriors continue to violate rules to win cases?
Therefore, a comprehensive review and investigation of the military legal system and UCMJ must be conducted to stop criminal and unethical behavior to ensure the protection of our servicemembers’ constitutional rights.
Proper conduct on the battlefield is nothing new in American culture. The United States takes pride in winning wars with honor. Early in America’s history, although there were no legal guidelines, the U.S. military handled criminal behavior to maintain such honor. As warfare changed, so did the military justice system. Armed forces began traveling great distances to fight on foreign soil, and leaders needed a self-sufficient judicial system. Initially, investigating and trying servicemembers was elementary. Discipline was a primary responsibility for commanders, and the military justice system was a tool that leaders could use to enforce authority over subordinates. Prior to the UCMJ, a senior officer from the unit, typically the commanding or executive officer, served as the judge, and two lower-ranking officers from separate units were selected to act as prosecutor and defense counsel. Unfortunately for those accused of crimes, none of the individuals chosen to investigate, charge, and try their case possessed legal knowledge. According to the Harvard Law Review, “the commander historically had virtually unchecked control over military justice.”
During WWII, harsh military justice brought about resentment from troops rather than a reinforcement of discipline. For any criminal justice system to function properly, legitimacy must be maintained. To mitigate negative perception, the U.S. Congress officially adopted the UCMJ in 1951 as a means, “to strike a balance between the individual rights of servicemembers and fairness, on the one hand, and the interest in maintaining discipline and command authority, on the other.”
Problems persisted under the UCMJ until the Supreme Court intervened during the Vietnam War era, writing, “courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.” The Military Justice Act of 1968 improved the process by instituting the placement of a military judge to preside over federal level offenses as well as creating a formal appeals process. Another significant change took place in the early 1980s when independent commands responsible for the oversight of prosecutors and defense counsel were created. Changes continued in the UCMJ until 1994 to ensure an essential feature of an effective criminal justice system — legitimacy.
The UCMJ must be followed by all servicemembers. If violated, commanders use their discretion to determine the severity of punishment. Multiple forms of disciplinary action can be used. Lower level offenses are typically handled by minor administrative measures such as verbal or written counseling, a non-punitive letter of caution or commander authorized extra military instruction. Mid-level offenses may result in more severe paper-work or non-judicial punishment (NJP). Such penalties remain on military service records but do not necessarily end one’s career. For more severe offenses, commanders can choose administrative separation from the military or court-martial. There are three levels of a court-martial; summary, special, and general. To better understand these levels, a general court-martial is reserved for federal crimes.
Unlike civilian law, in which a line prosecutor selects the defendant and determines whether or not to pursue charges, a senior military commander assumes the role of convening authority makes those determinations. Since the convening authority has no legal experience or expertise, they rely on information from investigators, prosecutors assigned to the case, and the commands staff judge advocate (SJA) who advised the commander on legal matters.
UCMJ structure gives a great deal of power to the convening authority, including the final say on legal matters normally decided by legal experts in civilian law. Examples include referring charges to a general court-martial despite recommendations from a judge to dismiss them after an article 32 hearing (similar to a grand jury), selecting the panel of jurors, and approving or denying defense witness requests. Additionally, and not often seen, are second and third-order effects. Defendants may face pre-trial confinement, losing their security clearance, and being denied specific special pays. The convening authority makes these determinations.
Military prosecutors play a much smaller role in procedures and decisions before and during a court-martial. However, they are granted the full power and funding of the government. During an investigation and pre-trial activities, prosecutors take part in witness interviews, organizing evidence, and recommending charges to the convening authority. Prosecutors do not work directly for the convening authority and do not fall under their jurisdiction.
The UCMJ only regulates the convening authority, but a military prosecutor is certified by the American Bar Association (ABA) and must abide by regulations set forth by the ABA and UCMJ. Although a military lawyer must follow ABA guidelines, stipulations within the UCMJ allow them to ignore some of those rules. For example, rule 3.8 from the ABA outlines the special responsibilities of a prosecutor. The rule states, “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” Rule 3.8 is important in civilian law because the prosecutor decides to charge an individual based on probable cause. In military law, the convening authority can charge individuals with or without probable cause.
Before a general court-martial, the accused participate in an Article 32 hearing. The hearing allows the preliminary hearing officer (PHO) or judge to listen to witness testimony, hear from defense counsel, and review all evidence regarding the case. The PHO then provides a recommendation to the convening authority to either dismiss charges or proceed to court-martial based on probable cause. Even if the PHO determines there is not enough evidence warranting probable cause and recommends the convening authority to dismiss that charge, it is only a recommendation which the convening authority can ignore. Oddly enough, the prosecution must also overlook the insufficient probable cause, contradicting rule 3.8. According to the Fundamentals of Military Medicine, “Commanders have prosecutorial discretion under the UCMJ to determine how to handle alleged offenses… commanders are charged with exercising their independent judgment, free from unlawful command influence by more senior commanders directing an outcome.” However, unlawful command influence (UCI) has become a common practice.
In 2005, U.S. Marines from 3rd Battalion 1st Marine Regiment (3/1) were accused of killing 24 Iraqi civilians. An investigation was launched, and charges were brought against multiple marines, including Lieutenant Colonel Jeffrey Chessani, the Battalion commander of 3/1, for failing to report the incident properly. Before the trial began, Chessani’s defense team filed a UCI motion claiming the convening authority, Lieutenant General James Mattis, was unlawfully influenced by his SJA, Colonel John Ewers.
Despite Ewer’s assignment as the 1st Marine Expeditionary Force (MEF) SJA, an advisory role to the commander, he was selected to assist in Chessani’s investigation. Ewers conducted multiple witnesses’ interviews, to include Chessani, and helped draft the findings and conclusion report for the convening authority. Mattis was advised by Marine Corps Central Command SJA that Ewers’ report was “tainted” because his role as both SJA and investigator was not allowed under the UCMJ. Despite such information, Ewers continued his lead legal advisory role during weekly 1st MEF meetings that entailed the Haditha investigation.
Once a judge determines that there is a probable cause of UCI, the burden to prove beyond a reasonable doubt it does not exist lies with the prosecution. In June 2008, the military judge assigned to Chessani’s case granted the motion to dismiss all charges based on UCI findings. In the judge’s conclusion of the law from U.S.A. v. Chessani, it was noted:
“This court finds, and actually is convinced of one thing beyond a reasonable doubt, that a disinterested member of the public would harbor significant doubts as to the fairness of the proceedings against this accused and the military justice system as a whole if they knew this accused main interrogator was… seated at the side of the convening authority as a trusted legal adviser… and offered legal advice and strategy which would determine whether this accused would be prosecuted.”
Although it was discovered Mattis and Ewers violated UCMJ and ABA rules, their careers continued to flourish. Mattis retired from the Marine Corps as a four-star general, and Ewers finished his career as a major general and SJA to the Commandant of the Marine Corps.
Rule 8.4 in the ABA provides strict guidelines concerning unacceptable behavior for lawyers. Subsection (b) and (c) describes professional misconduct when lawyers, “(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects [and] (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” When civilian lawyers violate ABA rules, specifically criminal acts, they are disbarred. However, military lawyers are not held to the same standard.
In 2019, the case against Navy SEAL Eddie Gallagher caught the attention of mainstream media and the nation. During the court-martial process, it was discovered that the prosecution team spied on emails between Gallagher and his defense counsel. Such an act is illegal, unconstitutional, and violates ABA rule 8.4. Lead prosecutor, Commander Christopher Czaplak, claimed his actions were due to concerns that the defense team was leaking case information to the media. However, his reasoning does not justify his actions, which were undoubtedly unconstitutional. Defense counsel requested the case judge, Captain Aaron Rugh, to dismiss charges or remove all prosecutors from the case. After Rugh reviewed evidence of Czaplak’s misconduct presented by the defense, he determined, “… it was not in his power to determine whether Cmdr. Christopher Czaplak violated ethical or professional rules, but the potential for a probe into those actions required that he be removed from the prosecution.” In spite of the fact prosecutors had broken the law, the convening authority did not dismiss the charges.
Rugh’s response to defense requests raises another concern. How can a judge not have the power to determine ethical violations by lawyers? Former Marine Corps prosecutor and military judge, Gary Solis, who currently teaches law at Georgetown University commented that Czaplak’s actions were, “Contrary to legal ethics and common sense. Unprecedented is too tame a description for what he did… His conduct has been entirely inappropriate.” When considering the legitimacy of the military justice system, such an act raises the question; would a civilian case be dismissed if the prosecutor violated the defendant’s constitutional rights?
The Naval Criminal Investigative Service (NCIS) is a federal agency within the Department of the Navy. Comprised entirely of civilian members, NCIS “is the civilian federal law enforcement agency uniquely responsible for investigating felony crime, preventing terrorism and protecting secrets for the Navy and Marine Corps.” Because NCIS investigates serious crimes for the Navy and Marine Corps, they must abide by all rules and regulations governing the conduct and responsibilities of a federal agency. Such responsibilities include the treatment of witnesses, gathering evidence, and objective reporting. Most important is the proper turnover of evidence. According to SECNAV INSTRUCTION 5430.107, outlining the mission and functions of NCIS, specifically regarding the dissemination and retention of reports, “NCIS shall: Provide to each command, prosecutorial authority or other appropriate activity a full report of investigation regarding any offenses or incidents investigated affecting that entity.” Evidence obtained through the investigatory process and given to trial counsel is vital to a case because prosecutors must hand over all findings to the defense team.
During the case against Gallagher, NCIS misconduct played an important role in his defense strategy. Suspicions arose before the trial that lead NCIS investigator, Special Agent Joe Warpinski, determined Gallagher was guilty before witness interviews began in 2018.
According to a Navy Times article, Warpinski is accused of, “working to ensure that witness interviews were documented in a manner that would minimize anything that did not support his pre-determined conclusions.” The statement was obtained from a motion filed by lead defense counsel Tim Parlatore. Initial witness interviews were recorded and handed to prosecutors as evidence. However, follow-on interviews conducted in early 2019 were not recorded, and allegations that Warpinski reconstructed witness statements based on his notes were presented to the presiding judge.
The Navy Times inquired with NCIS regarding the allegations. Agency spokesman Adam Stump replied that all agents, “are expected to uphold the highest standards of professional conduct when conducting interviews.” However, NICS agents involved in the 2005 Haditha case against U.S. Marines were accused of investigative misconduct. According to marines involved in the investigation, interrogations would last up to 18 hours in segregated “dungeon-like” rooms, and in some instances, witnesses were not allowed to eat or use the restroom. Unethical tactics used during interviews were also called into question. According to the Thomas Moore Law Center, “witnesses reported that the questioning was accusational, confrontational, and at times insulting. One officer stated that agents yelled and threw things at him… One witness stated… NCIS agents had an agenda — they were going after the officer.” Concerns over the actions of investigators were brought to unit leaders who immediately notified senior agents in Iraq but were disregarded by NCIS officials.
Three arguments support the need to change certain aspects of the military justice system: the power granted to the convening authority is in proportionate to civilian law; leaders, prosecutors, and investigators take cases personally; and political pressure sways a commander’s legal decisions. Senior leaders are burdened with a great deal of responsibility. They must answer for the actions of their subordinates, whether good or bad, to service secretaries, the Secretary of Defense, and even the President of the United States. According to Harvard Law Review, “In evaluating the performance of a commander, senior officers and service secretaries often take a commander’s handling of military justice and the discipline of his subordinates into consideration… [a convening authority] can be subjected to greater scrutiny by his superiors. Accordingly, a convening authority can more easily be held accountable for the full scope of his exercise of prosecutorial discretion rather than just that which concerns spectacular crimes.” When incidents threaten good order and discipline, convening authorities will vigorously attempt to prosecute those suspected of crimes.
In some cases, the prospect of promotion and recognition drives legal decisions, increasing the probability of misconduct. NCIS agents and prosecutors are promoted based on cases solved and the number of guilty verdicts. Leaders are scrutinized even more if there is a perceived lack of discipline or assumption they are “losing control” over their subordinates. Since the UCMJ and military justice system falls under the Department of Defense (DoD), everyone operating within those entities must abide by DoD policies. DoD policy states, “individual conduct, official programs, and daily activities within DoD shall be accomplished lawfully and ethically…” Those responsible for investigating, charging, and prosecuting servicemembers are expected to uphold the highest ethical standards while maintaining their integrity. Political pressure also impacts military justice.
In recent years, conduct among special operators received a great deal of negative publicity. In a Military Times article from 2019, Meghann Myers writes about a special operations community mired in scandal and what the pentagon must do to fix the issue. Myers stated, “Misconduct lurks in any corner of the military, but over the past couple of years, the range and depth of charges facing members of these elite units have alarmed the congressional leadership responsible for funding their operations.” But her article does not provide any quantifiable or qualitative data to support such a claim. Instead, statements such as these only capture the attention of the public and political leaders. Politicians pressure commanders to make immediate changes throughout the special operations command (SOCOM) without knowing if a problem truly exists. Current SOCOM commander, General Richard Clark, ordered an ethical review of his command. According to Clark’s report, the review “found the force does not have a systemic ethics problem.” But Clark’s statements were never discussed in mainstream media.
Countering these arguments is the military’s requirement for leaders to control their men and women to maintain good order and discipline. Without that, America’s warriors could not function in the demanding capacity required of them. Therefore, commanders must be allowed to control their troops through disciplinary means such as administrative action, NJP, and court-martial. In addition to punishment, the convening authority is granted discretion to dismiss charges at any point in the adjudication process, grant post-conviction clemency, and grant reprieves. To make the UCMJ as fair as possible, a great deal of control is given to the command, and measures are in place to mitigate UCI. If discovered, remedies include, “setting aside the findings and sentence with prejudice.” Conviction rates under the UCMJ are also substantially lower than civilian courts. Unlike the military, the civilian system is judged by popular perception, particularly cases involving heinous crimes. As a result, “the law of criminal procedure and the substantive criminal law have steadily evolved to make convictions easier to obtain.” Such a trend is not evident in the military and proves changes made to the UCMJ benefit the servicemember.
Throughout the history of the UCMJ, changes were mandated by Congress to improve the military legal process. As recent events show, changes are required. For the UCMJ to properly work as a legitimate system in which all determinations are made by lawyers and judges, personnel with no legal experience should not be allowed to make decisions affecting the outcome of the case. The convening authority is bestowed a significant amount of power during a case. Overlooking the fact that a convening authority’s interests sway decision-making abilities is a disservice to the men and women in uniform. Matters such as referral of charges, witness approval, and jury pool selection should be the responsibility of an unbiased third party not associated with the command. Although the convening authority is allowed to dismiss charges or even reduce sentences, those facts become a moot point if guilt and maximum punishment were their intent from the start. Each service branch is equipped with its own Judge Advocate General (JAG) Corps responsible for handling all legal matters. The JAG Corps should be responsible for all final legal decisions based on ABA and UCMJ guidelines, thus eliminating subjective decisions made by the convening authority.
Currently, the Justice for Warriors Caucus composed of congressional representatives is reviewing the UCMJ and identified unconstitutional practices that must be ratified to better support servicemembers. In an interview with Shawn Hannity staff, caucus chairman, Representative Louie Gohmert stated that, “The Justice for Warriors Caucus is going to try and improve the system and change the laws, make it fairer so we don’t convict our heroes.” One option proposed by the caucus is to remove federal crimes from the DoD and place them under the jurisdiction of the Department of Justice. Doing so ensures decisions are based solely on the law and supported by the constitution.
In conclusion, military leaders will never accept surrendering absolute disciplinary control, nor should they. Minor offenses must be handled by commands to ensure good order and discipline. But when servicemembers are charged with federal crimes, a military legal system that upholds constitutional rights must be utilized. The cases against the Haditha marines and Chief Gallagher prove military leadership, prosecutors, and NCIS misconduct is taking place, and immediate action is required to solve the problem. Too much-presumed faith is granted to military leaders to make the right decision. “Personal ambition can cloud ethical judgment and make fools of us all. In the military, careerism can lead us to become yes-men, to cover for ourselves in our effort to look good at all costs.” If the punishment of America’s warriors is decided by military leaders, those same leaders sworn to uphold good order and discipline must be held to the same standard.