Document Type
Article
Publication Date
2011
Abstract
There have been no empirical studies examining how well the court-martial system has actually performed in America's recent conflicts. This Article attempts such a study, and the findings largely contradict the conventional wisdom. After-action reports from deployed judge advocates show a nearly unanimous recognition that the full-bore application of military justice was impossible in the combat zone. In practice, deployed commanders and judge advocates exercised all possible alternatives to avoid the crushing burdens of conducting courts-martial, such as sending misconduct back to the home station, granting leniency, and a more frequent use of administrative discharge procedures. By any measure - numbers of cases tried; kinds of cases; reckoning for servicemember crime; deterrence of other would-be offenders; contribution to good order and discipline; or the provision of a meaningful forum for those accused of crimes to assert innocence or present a defense - it cannot be said the American court-martial system functioned effectively in Afghanistan or Iraq. In an era of legally intensive conflicts, this court-martial frailty is consequential and bears directly on the success or failure of our national military efforts.
Recommended Citation
44 Creighton L. Rev. 1045