How just is US military justice?

Hearing on collision of sub and Japanese fishing vessel will put new scrutiny on armed services' code of justice.

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In the high-tech military of the 21st century, the captain of a nuclear-powered US naval vessel can throw a sailor in the brig with nothing but bread and water to sustain him.

A soldier on leave who robs a bank can be prosecuted by the Army as well as by the state. An airman who commits a capital offense can be given the death penalty by a jury of just five people. And a Marine Corps captain could be in big trouble for "conduct unbecoming an officer and a gentleman."

Is "military justice" an oxymoron?

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The Navy's formal hearing on the accident involving a US submarine and a Japanese fishing vessel, which begins today in Honolulu, comes at a time when the 50-year-old Uniform Code of Military Justice (UCMJ) is coming under sharp scrutiny.

It sounds dry and legalistic, but there is great drama, too. From Herman Melville's "Billy Budd" to Herman Wouk's "The Caine Mutiny," the civilian public has been fascinated with stories of crime and punishment at sea. And the inquiry involving Cmdr. Scott Waddle, commanding officer of the USS Greeneville, which struck the Japanese fishing trawler Ehime Maru and sent it to the bottom of the Pacific Ocean, promises to be just as riveting.

A better deal?

In some ways, service personnel get a better deal in military courts than they would in civilian forums of justice.

Defendants are automatically provided attorneys to represent them. Long before the "Miranda warning" was crafted to prevent civilians from incriminating themselves under pressure from arresting authorities, such protection was in place in the armed services. And while civilians in the United States are facing the death penalty at record rates, the military services have not executed anybody in 40 years.

"In many ways, it's a lot more progressive than many of the civilian systems," says Robinson Everett, a senior judge of the US Court of Military Appeals and professor of law at Duke University in Durham, N.C.

Also, those in uniform who find themselves in trouble face judges, lawyers, and juries who understand military customs and culture - especially important at a time when fewer and fewer Americans have ever served in the military.

"I would much rather have a court or investigation that is directed by my [military] superiors than have a bunch of civilians who have no understanding of what goes on," says Charles Shoemaker, a retired US Navy commander who spent most of his 23 years in the Navy on sea duty aboard submarines. "It's a different culture, it's a different philosophy, it's a different sense of responsibility."

That culture and philosophy include things that might seem hard for civilians to understand, such as the constant focus on the need for morale, unit cohesion, and the "good order and discipline" that can be crucial in combat.

But critics see the need for reform, including more judicial independence for military judges and juries, and they say many crimes committed off-duty need not be prosecuted under the UCMJ.

"In peacetime, it wouldn't kill us to have civilian offenses handled in civilian courts," says Eugene Fidell, president of the National Institute of Military Justice in Alexandria, Va.

Different standards

Others wonder why some punishable offenses - adultery, "fraternization" between officers and enlisted personnel, bad-mouthing a colleague, and making critical comments about the president, for example - should apply to those in uniform when they don't to civilians. Some offenses, they add, make little sense at all.

"I think the prohibition on dueling could safely be done away with," says Mr. Fidell, a former US Coast Guard lawyer who now defends military personnel.

Careers ruined

Moreover, critics say, those in the military who are charged but exonerated very often have their otherwise exemplary careers abruptly ended. The former commander of the Navy's hotshot Blue Angels flight demonstration team, for example, once on the fast track for admiral, now flies civilian airliners.

The Greeneville's accident sent a shudder through the elite and close-knit submarine Navy.

"The first thought that immediately entered my mind was, 'There but for the grace of God go I,' " says Mr. Shoemaker. "It could have been me. It could have been any of those captains out there."

Among the issues likely to be examined in the naval inquiry is the extent to which the 16 civilians on the boat - brought onboard by an officer senior to Commander Waddle - may have distracted the sub's officers and crew.

"That's a very normal kind of showboating thing," says Shoemaker. "That's what sells the Navy."

Command responsibility

Investigators also will want to know whether the actions of subordinate officers and enlisted men added to the circumstances that led to the collision, which resulted in the loss of nine Japanese crewmen, teachers, and high school students.

"How command responsibility is interpreted will be very interesting," says Judge Everett.

In the end, say military lawyers and other officers, it is very unlikely that Waddle will ever again be skipper of a submarine.

Says retired submariner Shoemaker: "You live with the expectation that if something like this happens, you are going to have to answer for it one way or another."

(c) Copyright 2001. The Christian Science Publishing Society

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