Should the Generals fight to keep UCMJ authority over Sexual Assualt and other Major Crimes?
As we all know the military Leadership is fighting hard to retain control over cases involving Sexual Assault, harrasment and major crimes. I am beginning to wonder if maybe we are fighting to hard for something that is inconsequential in the big picture. Why shouldnt we hand that off to the civilian court systems?
As I got to thinking about this the other night, I came to the conclusion that as long as Commander's retain UCMJ authority over our regulations (Article 15 mainly), we can still use it as a tool for good order and discipline. Seldom is there a case where we take a Soldier to General Court Martial, who is found guilty and then want to retain, rehabilitate. By turning it over to the civilian courts, we increase our transparency in these cases.
It will also come with the added benefit of saving the military some money. We can still do the investigation, but then turn it over to the civilians. This will save time (we dont have to take Soldiers away from their duties) and money (we dont have to pay for expenses, it becomes a federal case). We already have a federal court system in place, we can use that. With the black eye we have received recently due to percieved mis-handling of cases, this is the perfect opportunity to relieve ourselves of that perception.
Another impediment to using Federal Courts is application of the UCMJ outside of the United States. If a military member violates the UCMJ in a foreign country, a military court can try him or her in that country. If the UCMJ is handled only in the Federal Courts, then the military member would have to be returned to the US for trial. Major jurisdictional issues will emerge with the Federal Courts contending they have preview over the case, the military saying they have jurisdiction to conduct the investigation overseas, and the host nation possibly involved demanding the service member be tried under local law.
If the incident occurred on base, it was a federal offence and the military , and/or other federal agencies, assumed responsibility for the process.
Now consider the same crime occurring aboard ship, or in an operational situation overseas. Does it make any sense to detach the defendant, the victim and all material witnesses from their duties, transport them to the nearest US court, along with any foreign witnesses considered material by either side, for the duration of the trial? Do we transfer additional personnel into the unit to replace individuals involved in the legal proceedings to accomplish the critical tasks for which those involved were responsible? The only justification for such operational and financial burdens to be required are if a fair and just legal process cannot be provided by the military.
In my 25 years service, things happened where I did not agree with the outcome. Having significant time as a civilian under my belt, I have observed the same results; I do not agree with everything civil authorities decide.
Proponents for civil authorities handling the legal proceedings being discussed are basing their argument on the assumption that the military is incapable or unwilling to fairly adjudicate the cases in question. I do not accept their premise and feel the military processes such cases in as fair and impartial manner as the civil authorities and has a demonstrable requirement to retain that authority.
The military understands reasoning behind the judicial system. What is needed is a check and balance against the corrupt practices including Article 15 contests and personality conflicts. On the other hand, keeping MST within the unit continues to compound the problems because of conflict of interest, inherent threats, cronyism, not fully understanding the law and the context of the case, etc.
SHARP
Discipline
UCMJ
Authority
