Military Law – Week 5 Jay Canham. Convening a Court-Martial. Convening a Court-Martial . A court-martial is convened by a Commanding Officer who is known as the Convening Authority. Can not delegate the authority. Authority is in the position of Commanding Officer.
Convening a Court-Martial
The loss of Convening Authority because:
The military justice system has recognized the Constitutional protections afforded individuals while allowing the Commander to maintain good order and discipline. This balance of competing interests allows the recognition of due process while not losing sight of mission accomplishment by a military unit. The end result is a flexible system which meets the operational demands of the Commander.
Imposed by the Commanding Officer, who is not limited by any probable cause requirement, but must consider Due Process rights:
Valid Reasons a CO may restrain a service-member:
Legal Basis for pre-trial restraint is found in two areas:
Probable cause requires that:
“…required by the circumstances…”
If a CO approves the continuance of confinement, he must submit to the Initial Review Officer a written memorandum stating the following reasons for continued confinement:
The Supreme Court insisted that there be a judicial determination of the need for continued pretrial confinement within the first 48 hours of incarceration in order to meet the demands of the Constitution.
Bottom Line: 3-step process is consistent with the spirit of County of Riverside v. McLaughlin and strict adherence to the 48-hour rule is unnecessary.
Informal hearing with:
Who may Order Release of the Accused from Pretrial Confinement:
Rule: A person held for trial may not be subjected to punishment or penalty.
The bottom line is that unlawful pretrial punishment will be found where there is avoidable stigmatization.
Remedy for Unlawful Pretrial Confinement:
Assume an accused’s sentence includes 90 days confinement and he has spent 30 days in pretrial confinement on the day of his sentencing:
Over the years, the military justice system has created a set of rules which allows the Commander to use pretrial restraint as a force multiplier. This system has developed via judicial decisions and the creation of courtroom procedures which recognize the constitutional protections afforded individuals while allowing the commander to maintain good order and discipline. This balance of competing interests allows the recognition of due process while not losing sight of mission accomplishment by a military unit. The end result is a flexible system of justice which can meet the operational demands of the military commander.