A Proposal to Make Courts-Martial Courts: The removal of Commanders from Military Justice

This article proposes a comprehensive revision of the Uniform Code of Military Justice (UCMJ). The authors argue that it is not acceptable to allow legally untrained military commanders to participate in the military criminal justice system, as required by the UCMJ at the time of the article. The authors recommend giving control of the system of military justice to military lawyers and military judges. The introduction provides information on the authors, explaining that while they do not agree on all aspects of military justice, it is the authors’ hope that a jointly written article, involving thinking informed by their respective differing stances concerning American military justice, may be a valuable source for potential reform. Section one discusses the current state of military law and the position of the military commander (referred to in military law as the convening authority), in relation to the military justice system. Section two discusses the authors’ proposed system for changing the military justice system. In section three, the authors discuss pretrial proceedings, contrasting the present practice with their proposal for change. Similarly, section four contrasts the military’s present practice in trial proceedings with the authors’ proposed practice. Section five discusses post-trial proceedings, again contrasting the present practice with the authors’ proposals for change. The article contains a brief conclusion, followed by an appendix, which represents the authors’ approach to the task of substituting legal personnel for convening authority in the military justice system.