Military Standards of Conduct and Professionalism

On one issue there is agreement: the need for a military code of professional conduct to consolidate the unique standards of conduct required for military legitimacy. In his list of elements for an ethical canon Colonel Matthews has included most of the requirements of military legitimacy: the oath of office (which incorporates the Constitution, democracy, human rights and the rule of law), military values, the Uniform Code of Military Justice (UCMJ), the laws of war and the Code of Conduct.³¹ The only omission is domestic US law (OPLAW), which is discussed as it relates to specific military activities in Chapter 2.

Every true profession has a code of professional conduct to hold its members accountable. But while the medical and legal professions have codes of ethics that define minimum standards of conduct expected of their members,³² the military has no comparable code. The Army does have a 'Professional Ethic', but that ethic does not provide specific guidelines for ethical conduct at all, only institutional values.³³ Why is there no military code of professional conduct? Defense doctrine on the subject reflects the views of military ethicists who think of ethics only in terms of values, and argue that specific standards degrade ethical values. Their emphasis on values is correct, but misplaced^.34 Without standards, values do not relate to behavior in a meaningful way, and there can be no accountability. And without accountability, professionalism has no real meaning.

The values of the Professional Army Ethic - duty, loyalty, integrity and selfless service - are the context of military legitimacy, but without standards they do not constitute professional ethics.

Professionalism is defined as the conduct, aims or qualities that characterize or mark a profession.³⁵ The standards of conduct of the profession of arms, as with other professions, are those minimum standards required to perform its public trust. The public looks to military authority to regulate the profession according to its own standards, so long as they are consistent with the rule of law and national values. Military professionalism is inseparable from military legitimacy, and both reflect the quality of military leadership. Military standards for the use of force

The management of lethal force requires special standards similar to those expected of civilian law enforcement officers. As with police officers, public confidence in the military is essential to its legitimacy; and ethical conduct is essential for that public confidence. For the military and police, the excessive use of force that violates human rights - military or police brutality - undermines public confidence and legitimacy.

Rules of engagement (ROE) provide the military standards that limit the use of lethal force and protect human rights. Peacetime ROE are based on self-defense and are similar to standards used by civilian law enforcement officers. While the improper or excessive use of force can be a crime, as evidenced in the trials of Los Angeles police officers involved in the Rodney King incident, as a standard of conduct it is more often the basis for taking administrative action rather than criminal action against the offender. Military standards for conflicts of interest

In addition to restrictions on the use of lethal force, military personnel are subject to strict standards in the handling of public property. The Standards of Ethical Conduct for Employees of the Executive Branch published in August 1992 apply the Code of Ethics for Government Service enacted by Congress in 1978 to military officers, replacing AR 600-20, Standards of Conduct.

The Department of Defense put special emphasis on standards of conduct after the Packard Commission's report to the President in 1986.³⁷ That report underscored the need to restore integrity as well as effectiveness to the government procurement process. Unfortunately, many military officers, both active and retired, have used public office for private gain. In so doing, they have undermined public confidence in the procurement process and military legitimacy as well. The Code of Conduct

The only Code of Conduct denominated as such, and the one referred to by Colonel Matthews, does not provide standards at all and is not applicable to operations other than war. It was promulgated after the Korean War to provide moral guidelines - not enforceable standards for American personnel during combat and when captured. Its six articles are related to more specific, obligatory standards of conduct found in the punitive articles of the UCMJ and the Geneva Conventions Relating to Prisoners of War.³⁸

The articles of the Code of Conduct are more like a supplement to the values of the Professional Army Ethic for prisoners-of-war than standards of conduct. They do relate to military legitimacy, providing guidelines for US prisoners-of-war. But any punishment for misconduct must be under the punitive articles of the UCMJ. In short, the Code of Conduct has a useful but limited purpose; it is not a comprehensive code of military standards. Military standards vs. military crimes

While there is no code of military standards of conduct there is no shortage of such disciplinary standards. They are found in service regulations and the punitive articles of the UCMJ.

Examples of non-criminal standards of conduct in the punitive articles are Article 86 (absence without leave), Article 89 (disrespect toward a superior commissioned officer), Article 91 (insubordinate conduct), Article 133 (conduct unbecoming an officer and a gentleman), and Article 134 (all disorders and neglects to the prejudice of good order and discipline, or of a nature to bring discredit upon the armed forces). These are only some of the disciplinary standards treated as crimes. Confusing the two has complicated concepts of military professionalism and military legitimacy.

Perhaps the best example is Article 133: conduct unbecoming an officer and gentleman. This article includes conduct below the minimum standards expected of an officer. Examples of prohibited conduct are making a false official statement, dishonorable failure to pay debts, cheating in an exam, opening and reading a letter of another without authority, and using insulting or defamatory language to or about another officer.³⁹ While these offenses give meaning to the value of integrity, they are not true crimes.

Closely related is general Article 134, which prohibits 'disorders and neglects to the prejudice of good order and discipline in the armed forces', and 'conduct of a nature to bring discredit upon the armed forces'. Listed under Article 134 in the Manual for Courts-Martial (MCM) is a formidable list of military standards of conduct intermixed with traditional and sometimes anachronistic misdemeanors, including abusing a public animal, wrongful cohabitation, disloyal statements, drinking liquor with a prisoner and fraternization.⁴⁰

Even now, such misconduct is routinely punished administratively ar by non-judicial punishment rather than by court martial.⁴¹ This is because smart commanders have discovered that administrative procedures are less complex but provide adequate means to maintain good order and discipline.

But expediency should not be the sole reason tor handling disciplinary measures administratively rather than applying criminal law. While military policy should conform to what has been recognized as good practise, the requirements of professionalism should also be a factor; and disciplinary action (as opposed to criminal prosecution) can be used to promote military professional development.

In the military the standards of professional conduct must begin with disciplinary standards. Punitive articles that are actually disciplinary standards should be decriminalized in order to promote professionalism. When disciplinary infractions are punished as crimes rather than standards of conduct, punishment has little relevance to professional development. When soldiers understand how misconduct relates to professional development, however, the disciplinary process can enhance professionalism. Military standards in service regulations

Punitive articles are not the only source or standards tor professional conduct. In fact, most military standards of conduct are found in service regulations. But since Article 92 of the UCMJ makes the failure to obey any lawful regulation a military crime, the standards of punitive regulations can be treated as criminal standards.

In addition to providing specific standards of conduct, service regulations also define the relationship between discipline and command authority which is at the heart of a military code of conduct. Army command policy in AR 600-20 provides:

Mihtary discipline is founded upon self-discipline, respect tor properly constituted authority, and the embracing of the Professional Army Ethic with its supporting values.⁴²

Among the military standards of conduct defined in AR 600-20 is the prohibition of 'improper relationships among military personnel'.

The Tailhook scandal illustrates the relevancy of these standards to military legitimacy and leadership. The failure of the Navy chain of command to take prompt disciplinary action against those involved in improper relationships (sexual harassment) at a Las Vegas convention was a failure of leadership that compromised military legitimacy; it resulted in the forced resignation of the Secretary of the Navy, his top military lawyer, and the inspector general. Had the chain of command taken prompt disciplinary action in the matter, the resulting fiasco could have been avoided.

The requirements for a security clearance should be considered de facto professional standards since all positions of responsibility require such a clearance. The requirements are comprehensive and categorized as follows: loyalty, foreign preference, security responsibility, criminal conduct, foreign connections and vulnerability to blackmail, financial matters, alcohol and drug abuse, refusal to answer and sexual misconduct, including homosexuality.⁴⁴

Homosexuality is not just a security concern. Personnel regulations describe homosexuality as incompatible with military service and make it a basis for involuntary separation from the service.⁴⁵ New regulations have been developed, but recent judicial decisions requiring the reinstatement of avowed homosexuals have cast their legality in doubt. Standards based on attitude rather than conduct are not likely to pass the test of constitutionality:

The problem, as i ail hook so clearly reveals, already exists; the fundamental issue in the short run will not be attitude, but behavior. The services will have to review policies on acceptable conduct, on and off duty. Research on maintaining cohesion without scapegoating homosexuals and treating women as sex objects will have to be undertaken.⁴⁶

There is likely to be more lively debate over military standards of conduct before the conflicting issues of sexual freedom and military effectiveness are resolved by policymakers and the courts. Continuing conflict between military and civilian values is certain; the level of tension has been evident in violent incidents between military personnel and homosexuals. Such violence cannot be condoned if the public trust and confidence necessary for military legitimacy is to be maintained.

It will remain difficult tor the military to adapt to changing standards, such as those regarding sex; but the long-term danger of conflicting values to military legitimacy outweighs the short-term problems of transition. Standards for induction and separation, improper relationships, and fraternization are among those that must be periodically reviewed and modified to reflect changing societal norms. This does not mean that military standards must be identical to civilian standards, but significant deviations must be continuously validated as essential to good order and discipline.⁴⁷ Enforcement: command influence and military justice

Public controversy over sexual harassment and homosexuality in the military reflects changing and sometimes conflicting civilian and military concepts of justice. The term military justice has come to be associated with the enforcement of military standards of conduct, whether as criminal prosecution or the administrative enforcement of disciplinary standards. Drawing a distinction between judicial and administrative enforcement procedures is just as important to professionalism and legitimacy as the distinction between crimes and military standards of conduct.

Public perceptions of military justice are based on civilian standards, and the traditional differences between military and civilian justice have raised issues of legitimacy. As an authoritarian system that emphasizes discipline, the rules and enforcement procedures of military justice seem harsh compared with more permissive civilian standards. The contrast is reinforced by a separate system of justice; the military is the only public bureaucracy with its own criminal court: the court-martial.

While differences remain between civilian and military justice, the latter has come a long way since the American Revolution. Then summary procedures and capital punishment were the norm. During the Civil War it was not unusual for a field commander to summarily execute a soldier who refused to fight. Due process in the military was non-existent; punishment was a command prerogative and military justice an oxymoron.

Today most of the constitutional protections accorded a civilian accused are available to those in the military. These include the Fourth Amendment right to be free from unreasonable searches and seizures; the Fifth Amendment right to remain silent and to due process (no person shall be deprived of life, liberty, or property without due process of law); and the Sixth Amendment right to counsel and to a speedy trial.

Even with the same fundamental rights as their civilian counterparts, the perception remains that the military accused has been shortchanged. That is because command influence - the pervasive effect of military authority - continues to plague military justice. And as long as commanders are involved in military criminal prosecutions, a fair and impartial trial by civilian standards will be illusory.

Because the military must remain an authoritarian organization in a democratic society, there will continue to be distinctions between military and civilian concepts of justice. Military legitimacy requires that these distinctions be minimal and absolutely necessary. Otherwise the unique characteristics of the court-martial, especially the potential for command influence, make it a lightning rod for public criticism.⁴⁸ One military law scholar has acknowledged the vulnerability of military justice to public criticism by describing it as 'a legal system looking for respect'.⁴⁹

When commanders influence criminal prosecutions it contaminates the constitutional standards of due process. Command influence need not be egregious to be unlawful. Too often commanders say or do something that may influence a member of the court-martial or a witness, denying an accused his or her right to a fair and impartial trial. Command influence is pervasive since the authoritarian military environment is oriented to command directives. The Court of Military Appeals has described command influence as the 'mortal enemy' of military justice since it '... tends to deprive service-members of their constitutional rights'.⁵⁰

The UCMJ specifically prohibits unlawful command influence,⁵¹ and the military justice system has evolved to limit the role of a commander in courts-martial. As a result the court-martial has gradually become the province of military lawyers and judges. But senior commanders (convening authorities) still have significant roles: they convene (create) the court-martial, refer cases to it, appoint the court members, and approve their findings. These quasi-judicial powers make the line between lawful and unlawful command influence fuzzy; and they make impartiality, at least by civilian standards, impossible. These remnants of command-controlled justice in the military have been recognized as an impediment to its legitimacy, but there is disagreement over how to remedy the problem.⁵²

During wartime and times of involuntary service (the draft) there are justifications for more command influence in military justice. The overriding needs of good order and discipline require a degree of coercion not required in an all-volunteer peacetime force, and the court-martial is accepted as a necessary instrument of military discipline. Command influence and limited due process, like collateral damage, are tolerated as the natural byproduct of war.

In a peacetime all-volunteer military the standards of legitimacy are different. There is no justification for command influence in criminal trials. Criminal sanctions are not required to maintain discipline; and when service-members are accused of serious crimes there are civilian criminal courts to try them. Commanders can maintain discipline with administrative and non-judicial procedures which do not require the complex standards of due process required in courts-martial.⁵³

With a decreasing number of courts-martial in the all-volunteer peacetime Army⁵⁴ and increasing pressure to reduce defense costs by eliminating non-essential services, the peacetime court-martial should become the responsibility of those reserve components that must provide it in wartime. Commanders would have a choice: criminal cases could be prosecuted either by civilian prosecutors in civilian courts or, if courts-martial were deemed necessary, by reserve component lawyers and judges. In neither event would command influence be an issue.

Reservist lawyers and judges could handle the relatively few peacetime courts-martial on a part-time basis, representing the government or the accused as they would any other client. It would provide reservists with the best training possible for their wartime responsibilities, and result in significant savings in the process.

In addition to savings, military legitimacy would also benefit from such a restructuring of the court-martial. Reservist lawyers and judges who regularly practise in civilian criminal courts would bring to the military courtroom a healthy mix of civilian and military values, helping moderate public suspicions of a separate and less equal standard of military justice, They would help bring much-needed public respect to military justice.

While command influence should be removed from the courtroom, it should be restored to the disciplinary process. Military discipline in peacetime should rarely require criminal prosecution. For violation of military standards of conduct, as distinguished from criminal standards of conduct, there are ample administrative actions and non-judicial punishments available to the commander short of court-martial. These disciplinary measures do not prohibit command influence they require it.⁵⁵