Military and Civilian Justice

With the Navy Department’s decision, Rosa Sutton would enter a forum—in fact, a separate subculture—that was as unfamiliar to her as it was to most civilians. Then, as now, Americans lived in “a democratic society committed to civilian control of the military . . . .From its educational institutions to its justice system, the U.S. military still tends to close ranks against outsiders in the face of criticism; this response may cause more public outcry than the original offense warranted.


— [pgs. 75, 301]

America’s Constitution ensures that Congress and the executive branch of government have power over the armed forces. But military society remains separate from civilian society. Historically, there has been a reluctance to interfere in the operations of military justice out of respect for the mission of our armed services, which exist in part to protect Democratic values.

In 1909, enlisted men and officers were subject to command authority of the most arbitrary type—to men whose primary goal was to make sure that order, discipline, conformity to rules and loyalty to one’s unit were paramount. A person’s innocence and guilt could be less important to those in command than the good of the service. Although there is now a Court of Appeals for the Armed Forces with three civilian judges who do not have life tenure, before 1951 this court did not exist.

Civil law provides for impartial judges, indictment by a grand jury, and due process. But some Americans’ rights as civilians, including  complete freedom of expression, are given up by those who join the military. Formal and unspoken rules about free expression exist for military personnel because the need for absolute loyalty to one’s leader is so essential for an effective fighting force. No disrespect may be shown to superior commissioned officers or to high-ranking government officials from the president on down. For many months the media in the United States has focused on how much command authority the executive branch of the government should have over individual rights.

Should situations exist in which loyalty trumps truth?  As was true 100 years ago, many face this question inside courts martial or courts of inquiry. The insularity of military personnel from the civilian world—considered necessary but now under increasing scrutiny—could certainly encourage military witnesses to justify silence or a memory lapse during a court proceeding for the good of the service. Enlisted men and women are under orders to be absolutely loyal to their superior officers; all Marines, for example, put loyalty to their band of brothers first. Testifying against them could put them in conflict with what they have been trained to do.