The problem of the military’s ‘Burger King justice’ in a goat kebab world

I’ve been catching up with the September issue of "The Army Lawyer." If your copy hasn‘t arrived, there is an interesting article by Maj. Franklin D. Rosenblatt assessing how the court-martial system has worked in Afghanistan and Iraq. His answer: Not very well.

By any measure — numbers of cases tried, kinds of cases, reckoning for service member 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 their innocence or present a defense — it cannot be said that the American court-martial system functioned effectively in Afghanistan or Iraq.

Tom again: Rosenblatt is especially concerned by the fact that the bigger the base a soldier serves on, the greater the chance he has of facing a formal military justice procedure. Or, as he puts it, "If a soldier can eat at Burger King, he is also more likely to face court-martial for any serious misconduct he may commit." One troubling aspect of this, he notes, is that the more a soldier interacts with the local population, the less likely he is to be punished for misconduct. The result of this is that holes in the disciplinary system may enable soldiers to behave in ways that undercut counterinsurgency efforts to protect the population and win its cooperation.

He recommends that instead of trying to conduct court-martials in combat zones, the Army follow the Navy’s example and use non-elective non-judicial punishment. (That is, do away with the right of a soldier in trouble to demand formal court martial proceedings.) In other words, under his proposed change, they cannot have it their way.