Civilian Prosecution of Military Case is the Wrong Answer

The Nov. 9th decision by a military appellate court that then Commandant of the Marine Corps General James Amos had excesses unlawful command influence in the court-martial of an SSgt. accused of urinating on deceased military combatants has renewed a call for DOJ oversight, even handing all prosecutions over to civilian authorities. But, like many knee-jerk reactions to an unfavorable situation doing so would do more harm than good.

A growing number of legal professionals, including many former military attorneys, have long lobbied for handing military prosecutions over to civilian authorities from the Department of Justice. Supports claim that unlawful command influence, concerns for the military’s public image and even covering up unsuccessful policies, no evidence have been the driving force behind who does or does not face punishment. They claim that by placing civilians outside the military chain of command in charge of the judicial system this outside influence will be removed. But will it?

The short answer is “No”. While various commands may pursue charges based upon the overall damage it may do to the military as a whole or even the commander’s record, it is really no different than the civilian legal system. Many a District Attorney, United States Attorney, and Attorney General have made this very decision for political or public relation reasons – even if not supported by the facts or evidence. How many times have you heard of a defendant being tried in the “court of public opinion”?

Not only would replacing military attorneys with civilians not address the issue of unlawful command influence it would have the potential for causing far greater damage to the military. The military justice system handles not only the run of the mill cases familiar to any prosecutor but must also address those committed during the height of battle. How can a fresh out of law school DOJ attorney without any military experience never mind the time in a combat zone be expected to fully understand the Rules of Engagement or stresses those involved faced? No, a civilian prosecutor is not expected to have the life experience necessary to understand every case but that cannot be helped. But by having experience military attorneys, some of whom have they themselves experience tours in combat areas, oversee military prosecutions it is possible to achieve this in the military justice system.

Finally, there is the possibility that the civilian authorities will at some point work for an Executive Branch which looks unfavorably on the military as a whole. How hard do you think it would be for that chain of command to exercise the same degree of undue influence?

No, the military justice system is not perfect. But neither is the civilian justice system. Trading one for the other will not eliminate a problem but simply shift the source of the underlying cause.

Disclaimer: The content in this article is the opinion of the writer and does not necessarily reflect the policies or opinions of US Patriot Tactical.

Tom Burrell

Tom enlisted in the US Marine Corps Reserves in 1987. Following service in Desert Storm, he transitioned to active duty with the US Coast Guard. In 1997 he left the USCG to pursue a position in conservation & maritime law enforcement. Tom is currently a Captain and he oversees several programs, including his agency investigation unit. He is also a training instructor in several areas including firearms, defensive tactics and first aid/CPR. In 2006 Tom received his Associate’s Degree in Criminal Justice from Harrisburg Area Community College and in 2010 a Bachelor’s Degree from Penn State University.
Tom Burrell

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