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The Battle Over the Article 32(b) Proceeding

I am currently preparing for my first oral argument to take on the government’s efforts to systematically deprive the military accused of the special protections he has long since enjoyed under Article 32(b) proceedings. Historically, the military accused was afforded protections above and beyond those of his civilian counterpart because Congress LONG AGO recognized that a military accused is especially vulnerable to being steam-rolled by his command. Congress once recognized the importance of the fact that the military commander and the rule of law by order of superior over subordinate is so all-encompassing and overwhelming that statutory provisions were ONCE thought necessary to ensure that a military accused received an appropriate level of protections, given that he is a member of a specialized society. That specialized society makes illegal the failure to obey the order of a subordinate; the same specialized society that can imprison one of its own for disrespecting a superior by deportment (how he carries himself).

Do Not Accept Defeat

As I prepare for this oral argument and I am forced to review the drivel that the government has assembled to combat the defense’s efforts to ensure that an Article 32 proceeding is more than a speed-bump on the government’s road to a general court-martial, I find myself more and more disheartened and discouraged by a generation of practitioners who either cannot recall or choose not to remember their role as practitioners. Active duty judge advocates that stand before military courts-martial, even as prosecutors, are sworn to uphold the law. Period. By taking a position that the military accused has “more rights” than his civilian counterpart and thereby taking the stance that the military accused essentially should count himself “lucky” and go silently to general court-martial is something I find personally revolting.

Do Not Go “Gentle Into that Good Night”

As I review the government’s response to the defense’s pleading, what is evident is that the government’s position is that a military accused should count himself lucky to have the “protections” the law affords him and move on “gentl[y] into that good night.” Well, silently he will not. Not so long as he is represented by tireless and zealous counsel. The ridiculous position that civilian case law has decreed a grand jury system as good enough, so the military accused should roll over and accept his fate has no basis in the entire body of military law. Some might argue that as a defense practitioner, I should not find fault with the individuals who espouse the “government position” because they are merely advocating for the position that is being thrust upon them. I find such a position to be without merit and completely hypocritical. As students of the law, and as practitioners who are governed by the rule of professional responsibility (code of ethics), we were all taught that there is a duty of candor to the tribunal and in most jurisdictions, practitioners are not permitted to put forth an argument that lacks merit under the law. Perhaps I am giving government counsel more credit than they are due; perhaps the judge advocates actually have come to believe that the positions they assert have merit under the law. Frankly, I don’t know which position is scarier or disheartening: that they make argument that they know lacks merit or that they make arguments that they don’t realize lack merit.

Active Duty Practitioners Making Baseless Arguments

The state of military “justice” practice in this era is one that I find deeply troubling. As a former judge advocate, I found myself ONCE forced to argue a position that I found completely lacking merit and one that I was ordered to take. Afterward, the military judge that presided over the case remarked to me that he knew the position I was taking was not one that I agreed with or thought was meritorious and that my “tell” was that when I argued, I began each statement with “it is the government’s position.” The position I was being forced to argue was that just because the government prosecutors were consulting with an expert in DNA and serology did not mean that the defense was entitled to their own consultant in the same fields. It was utterly preposterous; in fact, about one year later, military appellate courts decided a case that at least implied that if one side has an expert in a particular field, the other side had better receive one as well, or the proceedings would be highly suspect. To any judge advocate that is being told to argue a position that they recognize lacks merit, I must urge you to have the courage to make it clear to your superiors that the argument lacks merit and that above all, you owe a duty to the tribunal and to the system to not make an argument that lacks merit, just because the position would make the job easier of convicting a military accused.

Answers Won’t Come Easy or Soon

The day of reckoning about what rights are owed a military accused under Article 32(b) are approaching, even if they are not fast approaching. It may very well take more than a year before we practitioners in the field receive an answer. For those of us who have now been practicing military law long enough to recall four separate Article 120, UCMJ, statutes, we know that the fight is long from over. Congress has not thrown at us yet their worst. All we can do is hold fast to our convictions that a military accused has above all else done something for his country that no civilian criminal defendant counterpart has: he has answered the call to serve and served he has. For that commitment of selfless service, he is entitled to the best possible defense, whatever the accusations, whatever the evidence, and whatever hurdles Congress continues to throw our way.

For any military accused that is worried that his counsel is not doing everything to ensure that he leaves no stone unturned and no defense unexplored, call for a consultation to discuss the particulars of your situation.