Court-Martial Trial Practice Blog
Greg Bruno, Backgrounder: Closing Guantanamo, Council on Foreign Relations, 12 February 2009.
You will notice a reference to trial by court-martial under the UCMJ.
Some, including legal experts with the Congressional Research Service,
suggest the current UCMJ structure might run counter to constitutional
protections such as the right to a speedy trial.
Good question. How would the prosecution deal with an:
Article 10, UCMJ, issue? There used to be a court imposed 90 day rule. That was later overruled by the then C.M.A., now C.A.A.F. There has developed an informal 120 rule similar to that in R.C.M. 707. But years? Remember that under Article 10, UCMJ, the clock starts ticking on the date that the person is confined, or charges preferred, whichever is the earlier.
Article 13, UCMJ, issue? Assuming allegations on torture, would that be pretrial punishment warranting sentence credit? And would there be difficulties with offering admissions or confessions?
Article 37, UCMJ, issue? Yes, the "Command influence is the mortal enemy of military justice" United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986); or "Undue and unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically eradicated." United States v. Gore, 60 M.J. 178, 184 (C.A.A.F. 2004).
R.C.M. 701 – 703 (obtaining discovery and witnesses)?
All assuming a preferral, an Article 32, UCMJ, investigation, and referral to general court-martial.
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