On courts martial
By lex, on January 29, 2006
In a quarter century of naval service I’ve never known anyone who was court martialed. Never have I been called to serve on one. In command, I never felt the need to convene a court martial, although such was in my power – all the sundry offenses brought before me were in the nature of military-style misdemeanors, and courts martial are generally reserved for very grievous offenses, felony equivalents that for whatever reason were not referred to civilian jurisdiction.
We do not do courts martial so very often in the US military.
Which might be a mistake.
Our predecessor service will court martial an officer pretty much at the drop of a hat. Run your ship aground? Court martial. Crash a jet? See you in the dock. Wasn’t your fault? Good – It will all be there in the legal record, for all the world to see. You will have clearly delineated rights: You may question your accuser, assail his (or her) motives, and independently examine evidence. There are due process protections, and evidentiary custody rules. You’ll have a fully empowered attorney by your side. There will be a formal review process, to ensure your rights were protected. The UCMJ is a branch of federal law, and court martial decisions may be appealed all the way to the Supreme Court of the United States. Which is maybe why we so rarely convene them.
No, we over here are much more likely to take a disciplinary problem to non-judicial punishment, NJP – much lower on the scale of military justice than any of the various courts martial. The accused has rights, but not so very many. Once he has been read his rights, such as they are, and has agreed to participate in the process – at sea he does not even have the privilege of refusal – he is committed to the end result, whatever that might be. There are no rules of evidence. Witnesses may not be questioned or impeached. No one stands by the side of the accused, and is on his side – his division officer and his chief will be there to speak either for him or against him as his performance has merited, but ultimately these individuals work for the commanding officer himself, the man convening what we in the Navy call Captain’s Mast, and in the Marine Corps is referred to as Office Hours.
This CO that convened the Mast will be the same man will decide upon the guilt or innocence of the accused, and is the same man who will decide upon his punishment. Having been found guilty, the accused will have the right to appeal to higher authority, but such appeals are almost inevitably fruitless. It is an administrative, rather than judicial process, and as such the penalties are less severe, although in my service a man can still be sentenced to three days bread and water in the brig, demotion, extra duties, “extra military instruction,” loss of pay and restriction of liberty.
Which is why I think that so much of the criticsm of the Black/Whisenant issue is so misguided. Because the Academy has another tacit mission apart from that explicitly quoted in the linked post – Survival: In order to continue “preparing midshipmen morally, mentally and physically,” the Academy must itself continue unhampered and unhindered. The institution believes in itself.
Letting an issue such as LT Black’s boorishness – never mind the institutional response to his boorishness – become the topic of Congressional conversation is strategically unwise. Even if that conversation does not actually threaten the institution’s survival – and let us be clear, the enemies of the several service academies and their theoretical “elitism” and “miltarism” are both powerful and numerous – it will at least make it difficult to complete the assigned mission.
LT Black made an egregious error in judgement, but that error is his alone – he owns it. On the other hand, a decision to “let bygones be bygones” would take the ownership of his malfeasance and transfer it to the Academy. This would allow his behavior to be imputed to the institution and, by extension, the officer corps and naval service in its entirety. That decision might be critically examined by forces inimicable to the institution’s survival, not to mention those unsupportive of the naval mission.
A lesser UCMJ process such as NJP would manage the not inconsiderable tasks of being both more dangerous to LT Black’s prospects while also opening up the motivation of all participants – Black, Whisenant, the Admiral, the officer corps, the Navy – to unwelcome, even tendentious scrutiny. No matter what is decided, partisans on every side will have the grass with which to make their sectarian hay.
Black’s misdeeds, as trivial as they might seem are now a matter of open discourse, but very little else is besides – everywhere is whisper and unhealthy innuendo. Let us have our court martial, let us swear in all witnesses, question their motives and examine all evidence.
Let us shine the light.