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Power of Process for Military Justice

Whether it is in the decision making of command about what derogatory action to take (if any), in charging by military prosecutors, or in whether to make a senior leader show cause why he should be retained, the overarching theme of military justice is the power in process.

Recently I was explaining why military guilty pleas take so long, especially in comparison to their civilian counterparts. The answer is fairly simple: power. There is supposed to be added scrutiny and oversight in a military guilty plea because of the disparate imbalance of power. In the civilian world, a guilty plea takes a matter of seconds as judges verify that the person answers a few simple questions about their decision to plead guilty. In the military arena, there is what’s known as the Care inquiry (from a case, not that someone particularly “cares”) where a military accused has to provide a factual predicate for why and how it is he is guilty. He must be placed under oath and recite how the elements of the offenses apply to what he did. The risk of a military accused being ordered, pressured, or coerced to plead guilty is so high that a guilty plea’s redundancy of process is well structured. A military accused is asked whether there are any under the table agreements, whether he anyone has pressured him to plead guilty, whether he is satisfied with his defense counsel’s advice on the guilty plea and even in general.

The safeguards of transparency in place for a guilty plea would do well to be replicated in other aspects of military justice.

In speaking recently with someone about principles of military justice, I was reminded that the Department of Defense is the only part of federal government where our court filings are not a matter of public record. The military has no online filing system where anyone in the public arena could login to appreciate what is happening in any given case. I cannot fathom why there is this lack of transparency.

Military members are entitled to public hearings, public trials, and public process. Our guilty pleas last hours and sometimes days. Why, then, would the rest of the processes not put in safeguards to rebalancing power? What policy is furthered by existing in the shadows and hiding behind delays and large redactions in FOIA releases?

If the military wishes for its processes to be looked upon favorably among the public, then I submit that it must demonstrate transparency. Without transparency, one cannot begin to trust that the command’s power is not resulting in military “injustice.”

 

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