Vail Daily column: The Uniform Code of Military Justice
He claims to be the shooter. He claims he is the ex-Navy SEAL who fired the fatal shot that killed bin Laden. He claims he placed a bullet in bin Laden’s forehead and then a second one as he was crumpling to the ground.
Others aren’t so sure.
Others say he is a narcissist. There is, they say, no “I” in SEALs.
Some say he’s a traitor.
What is clear (with apologies to Dr. Doolittle) is that SEALs don’t talk. When you join the military — and especially elite forces like the SEALs — you check certain rights at the boot camp door. Including the right to certain forms of free speech. Like those that might threaten the security of the nation you’ve upped to honor and defend.
When you work for an outfit that tells (not asks) you where to live and work, what to wear, how your hair can stand up on your head, when to eat, sleep and hoist a weapon, then it should come as no surprise that different rules just might apply. And, for the most part, those rules may be found in the Uniform Code of Military Justice which we will wend our way to in just a sec.
He-who-claims-he-is-the-shooter asserts that since higher-ups have talked about the Abbottabad raid, he is free to chirp like a canary in a coal mine. And, hey, he claims, this is America; he’s free to make a living. The Pentagon, however, has another view and has made clear that the swaggering self-promoter is “still bound” by military non-disclosure agreements and could well face criminal prosecution.
Who are the SEALs?
They are to warfare what the NFL is to football. They are the fittest of the fit, the toughest of the tough, the best of the best. The United States Navy’s Sea, Air, Land Teams are the Navy’s principal special operations force and are part of the Naval Special Warfare Command and United States Special Operations Command. The SEALs duty is to conduct small-unit maritime military operations which originate from, and return to a river, ocean, swamp, delta or coastline. Tellingly, the official magazine of the Navy SEALs is called the Ethos (Greek for “character” — which generally does not sanction or encourage self-aggrandizement). “Ethos” is the root from which the word “ethical” derives.
But law ain’t necessarily about ethics (although that certainly is part of it). Law is mostly about following the rules (which, incidentally, are guided by a common standard of ethics).
When you are in the military — and at times even when you separate from the military — what informs one’s legal conduct is the Uniform Code of Military Justice.
FOUNDATION OF MILITARY LAW
The UCMJ is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given to it by the United States Constitution in Article I, Section 8, which provides that “The Congress shall have Power … . To make Rules for the Government and Regulation of the land and naval forces.” UCMJ allows for personal jurisdiction over all members of the uniformed services of the United States: the Air Force, Army, Coast Guard, Marine Corps, Navy, National Oceanic and Atmospheric Administration Commissioned Corps and Public Health Service Commissioned Corps.
Courts-martial are conducted under the UCMJ and the Manual for Courts-Martial United States. If the trial results in a conviction, then the case is reviewed by the convening authority — the commanding officer who referred the case for trial by court-martial. The convening authority has discretion to mitigate the findings and sentence, set aside convictions, and/or to remand convictions and/or sentences back to a court-martial for re-hearing.
If the sentence, as approved by the convening authority, includes death, a bad conduct discharge, a dishonorable discharge, dismissal of an officer or confinement for one year or more, then the case is reviewed by an intermediate court. There are four such courts — the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Air Force Court of Criminal Appeals and the Coast Guard Court of Criminal Appeals.
After review by any of these intermediate courts, the next level of appeal is the United States Court of Appeals for the Armed Forces (CAAF). The Supreme Court of the United States has discretion under 28 U.S.C. § 1259 to review cases under the UCMJ on direct appeal where the CAAF has conducted a mandatory review (death penalty and certified cases), granted discretionary review of a petition or otherwise granted relief. The Judge Advocate General’s Corps is charged with prosecuting courts-martial.
There is not space here to detail how the system is different from civilian courts. Suffice it to say, there are distinctions most of which contemplate the unique circumstances of military service and requisites of national security.
Today is the day after Veterans Day which, if you trace its origins, can reasonably be counted as the 95th such observance in honor of their sacrifice. It is also the day after Part 1 of “The Man Who Killed Bin Laden” will premiere on cable. I’ll leave the irony to you.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.