COL. SMITH: Judge Everett what is the Uniform Code of Military Justice and to whom does that apply?

JUDGE EVERETT: The Uniform of Military Justice is a statute that was enacted by Congress in 1950. It became effective in 1951. It applies, basically, only to service members.

COL. SMITH: Some commentators say the UCMJ restricts or circumscribes some constitutional rights enjoyed by Americans who are not in the armed forces. If this is true -- is this true and if so, what might be some examples?

JUDGE EVERETT: Well, certainly there are some rights that the service members do not possess under the uniform code. For example, they have no right to jury trial, no right to a grand jury indictment. The Constitution does not give them that right either. And so I guess we can say in some instances, there are rights which would exist in civilian life which do not exist to the same extent in the military arena. I think there are instances actually where the Uniform Code gives broader rights than civilians enjoy, and then there are situations where rights such as free speech are somewhat limited by the circumstances of the military society. The Supreme Court has said the military is a specialized society and it's pretty clear that there are slightly different rules that exist even where there are constitutional rights for the military.

COL. SMITH: The UCMG is broadly divided into procedural, jurisdictional and punitive or articles. Would you explain what the punitive articles are to what they equate in civil society.

JUDGE EVERETT: Well, the punitive articles which are articles 77 through 134 basically equate to the articles of a state penal code which describe what constitutes crimes and they define the various crimes that are recognized by military law. There are some additional crimes that are incorporated by reference from other statutes, but basically, that tells what are crimes under military law.

COL. SMITH: One of the punitive articles 133 is headed "Conduct unbecoming and officer and gentleman." What or who determines the punishable activities that fall under this article?

JUDGE EVERETT: Well, to some extent, it's a matter of determinational in light of the customs of the service, and ultimately a court martial makes that determination. Incidentally, even though it's entitled "unbecoming an officer and a gentleman," it does apply to females as well.

COL. SMITH: Right. Another article, 134, is simply headed, "General." It addresses two elements which have been in the news recently: good order and discipline in the armed forces and conduct of a nature to bring discredit upon the armed forces. What do these phrases mean and how might they affect when a member of the military services could or could not do?

JUDGE EVERETT: Actually, that Article 134 had three clauses. It has one about service discrediting conduct. That's designed to deal with conduct that in some way discredits the armed services, the idea being that a person who wears the uniform carries with him the reputation of the service. If he or she does something wrong, then that discredits the entire military establishment. The provision is to good order and discipline is by the same token designed to prevent conduct which in some way is disruptive of military discipline. Then there's a third clause referring to offenses not capital which basically incorporates the entire federal penal code applicable to civilians so there are certain instances when crimes that are defined in Title 18 of the United States Code are incorporated in the military law and a service member could be prosecuted under those articles as well. There's a lot of flexibility in that article. And by the way, that general article as well as the one you mentioned earlier, Article 133, really go back almost a couple of centuries to the original articles of war. They are very time honored.

COL. SMITH: With regard to the phrase "breach of custom of the service" which you have already mentioned, the manual for courts martial covers this when it discusses 134. How important to military discipline are the customs of the service and is there any parallel in U.S. civil law?

JUDGE EVERETT: I'm not sure there's any real parallel in civil law. There are some very general crimes in civil like breach of the peace or disorderly conduct, that sort of thing which in some ways may be analogous. But I would say that this is fairly unique to the military. And the customs of the service are customs that have allegedly defined over a long period of time. And they'll be different from one service to the other. For example, I think at one time, it was contrary to the custom of the service for an officer in Army to carry an umbrella while it was not for an officer in the Air Force.

COL. SMITH: It still is.

JUDGE EVERETT: There are variations between the services.

COL. SMITH: In your experience on the court, did you find at some point that a custom of the service, of a service changed and therefore effected cases which came before you.

JUDGE EVERETT: As a matter of fact, there was a case that came up from the Air Force in the around 1983/84 period in which an Air Force court said that the -- that as to consensual sexual intercourse between an officer and an enlisted person, the custom that previously had existed no longer existed, so in that instance, at least, there was a custom which apparently had vanished in the Air Force although it apparently would still remain or might still remain in the other services. Now, I think that you can't -- it's pretty hard to show that there is a new custom. I mean, custom implies something from the past. So there's some of the old customs which have vanished along the way and some are all in the services. I'm not aware of any new customs which have developed. Perhaps, thirty years from now, they'll have to find some new custom in the service.

COL. SMITH: With regard to good order and discipline, the manual for courts martial makes a distinction between actions or neglects of action that are directly prejudicial. And those are the prejudicial only in a remote or indirect sense. In practice what does this distinction mean in what might it be -- or what might it be some generic examples?

JUDGE EVERETT: Well, the basic idea is that some conduct is so remote from the day-to-day activities of military that it wouldn't have any effect. For example, a -- let's suppose a service member not in uniform is publicly drunk a long distance from a military post. That probably wouldn't have any effect either on good order and discipline or on the credit, the honor of the service. If, on the other hand, that same conduct occurred in uniform in some public place near a military post, it might be viewed as contrary to good order and discipline.

COL. SMITH: Shifting gears a little bit, what is fraternization and why does the military make such an issue of it?

JUDGE EVERETT: Fraternization basically refers to social contact between persons who are of different rank. The military makes a great deal of it. There's a custom against certain types of fraternization because of the idea that if you have a superior officer, let's say, an enlisted man who very close on a social basis, then this may affect the performance of duty. It may lead to complaints of favoritism. As for example if that enlisted person is given different assignments, less onerous assignments than those given to other people, that would be a complaint. There would be a perception of favoritism. So that the custom has developed in the military over many decades of basically saying there are certain barriers between persons of different rank. And at one time it was all male service. That might refer to drinking together -- an enlisted man and an officer going out and having a drink in a tavern together. Currently, it primarily refers to sexual conduct involving persons of different rank.

COL. SMITH: In the past year in the media has occurred numerous stories about past and present both criminal and consensual sexual relations involving many of the ranks in the services. In terms of consensual relations between the sexes, why does the military impose restrictions that do not exist in civilian life?

JUDGE EVERETT: Well, I think that the military being a unique society where people are thrust together in a way that they're not put together in civilian society, the military believes that there are special restrictions on conduct that are necessary, that conduct that -- consensual conduct that might not be punishable in the civilian society might be very harmful to military morale. You've got people who have to be ready to take dangerous assignments on short notice and it's very important that they be cohesive, that they think as a unit and I think for this reason the military feels that certain types of consensual conduct, sexual conduct, maybe more harmful -- the military may have a danger that it does not have in the civilian community.

COL. SMITH: Along the same lines, consensual sex between equals, of equal ranks, do not seem to be regarded as a problem in the military. Can one ignore this case without loosening regulations against the relationships between different ranks?

JUDGE EVERETT: Well, I might say first that consensual sex can itself be a problem if one of the parties is married where you have an adultery situation. But where there is a difference in rank, then often there's going to be a complaint on the part of the woman -- in the situation and the male superior and the woman inferior rank -- they'll be a complaint that it wasn't really consensual, that it really wasn't consensual, that it was sort of a subtle coercion arising out of rank. Rank certainly is an influence in relationships and there is a danger that it would not really be true consent under those circumstances. So, I think that's one of the problems that the military is concerned with.

COL. SMITH: There have been occasional references to the charge or occasional charges, rather, that the military doesn't treat men and women equally who are involved in consensual sex. Is this in your experience have any validity?

JUDGE EVERETT: It's very hard for me to say in that regard. The number of women in the military has increased dramatically over the years. I know when I first was on active duty -- I was on active duty early in my career soon after getting out of law school and at that time there were very few women in the service. Those few were primarily officers and there were problems that at that point which quite different than the problems today. Indeed, the problem -- the whole issue of fraternization was not that significant. And there were not really that many complaints about difference in treatment. There may have been complaints that the woman got special treatment if anything. Now in more recent times, we are confronted with situations where there are claims of sexual harassment and claims of discrimination. I'm not sure that the problem is as pronounced as some would indicate. Certainly there's been a lot of publicity about it and one of the reasons for the publicity may actually be that it's in the interest of some of the parties to publicize it. They use the media to help their particular claims. I think certainly the military is making a -- to my belief -- a sincere effort to deal with the problem, but it's a very difficult problem. And I'm not sure that the various commissions that have studied it will be able to come up with a solution or the Congress will be able to come up with a solution. It's a very difficult problem when you have a lot of young people of different sexes thrown together under conditions where they may deploy for long periods of time together. It's just very, very difficult and they're undoubtedly going to be some complaints of different treatment of the male and female and I don't -- I'm not sure that it's going to be possible to eliminate all of those complaints.

COL. SMITH: In your view, does the UCMJ reflect the values generally accepted by Americans?

JUDGE EVERETT: Well, I think in some respects it reflects different values because there are restrictions which are not customary for persons in the civilian society. For example, if I go to a civilian job and I insult my superior, there's nothing that can be done. Now, certainly they can fire me, but they can't send me to jail. If I walk off the job, sure I can be fired, but I can't be sent to jail. So that there are some constraints of the military which reflect values that are not as important as -- which are more important in the military than they are in civilian life -- the importance of having people who are ready on the job, the importance of ensuring respect to the commander who has to make decisions, often very difficult decisions. I think civilians if they consider all the circumstances would agree with most of the values that are implicit in the Uniform Code of Military Justice. But certainly, they have certain -- there are some situations where the values that are being considered in the military are somewhat than those which are differently considered in civilian life.

COL. SMITH: Among which would be the absolute -- the need for absolute trust.

JUDGE EVERETT: I think that's right. Absolute trust. Integrity. Knowing that if you're commanded, if you give the order that it will be obeyed. Knowing that if you're the subordinate that the commander who is giving you the order is giving it in good faith, is a person of integrity, is not -- is not playing favorites, that type of thing.

COL. SMITH: In 1983, Chief Justice Warren Burger noted that the special status of the military has required and the Constitution has contemplated, Congress had created and this court has long recognized, two systems of justice, to some extent parallel, one for civilians and one for military personnel. Is this distinction still valid and if so, why should it persist?

JUDGE EVERETT: Well, I think it is still valid to some extent, perhaps to a lessered extent than when Chief Justice Burger made those comments. It's interesting that military law has become more civilianized over the years. For example, there are now military judges who are the counterparts to federal district judges. There were no military judges, say, forty years ago even in the first of the -- first years of the Uniform Code. I think even today, however, there is enough difference between the military society if I may use that term, and the civilian as to justify a different system of courts and of judicial procedure. For one thing, the military may deploy anywhere around the world and it may be necessary to convene courts far away from the United States. It may be impossible otherwise to get the evidence to provide the necessary evidence for the prosecution for the defense so that the necessities of military life require, I think, a different court system. Interestingly, we've had -- we had cases of the court of military appeals which came to us from all over the world. And it would have been impossible, really, to have put many of these cases into federal district courts, so that I think for a variety of reasons the basic thrust of Chief Justice Burger's comments is still correct.

COL. SMITH: That was the last of the questions I had. Is there something you would like to add we haven't covered?

JUDGE EVERETT: I think basically, my observations are that this problem of gender in the military is an exceptionally difficult one to solve. The increasing importance of living in the military, their presence there has created tensions in many instances which previously didn't exist. We're dealing in many instances with young people, and they have very strong drives, sexual and otherwise and that can create -- create tensions. But certainly your problems with let's say the service member is part of a unit containing persons of another sex deploys, may be away for several months in the Persian Gulf or Bosnia or somewhere else, away from his or her family, they're going to be tensions and there are going to be problems. So, it's very difficult to solve those problems in a fair and impartial way. I think it is very important to set out the ground rules as clearly as possible and I remember years ago in an opinion I wrote or an opinion I participated in concerning the Air Force fraternization procedures. My view was it was primarily important to make it clear what was prohibited and what was allowed and to make it clear that if certain things were done then there would be punishment. And I think that's still correct.

COL. SMITH: Let me follow just up on that last comment. Do you think that those guidelines or that dividing line to know what's right and what isn't has in fact been incorporated by the services into their regulations and their rules?

JUDGE EVERETT: I'm not sure to what extent the Air Force which was the concern -- the service I was concerned with has done that. I think they moved in that direction. We had held the customer -- the service had -- or at least the Air Force according to itself had held the custom as the service as to certain types of conduct which previously had been punishable as fraternization no longer existed, yet they still wanted to punish it. And my view was that they might be needs which justified punishing that particular conduct, but it was important to put it into a regulation so that it would be clear that if you violated that regulation, then you could be punished, rather than relying on a custom of the service which might be less difficult -- which more difficult to establish.

COL. SMITH: Okay. Do any of you have any questions?

INTERVIEWER 2: I have a question.

COL. SMITH: Sorry, Judge.

INTERVIEWER 2: [inaudible] if you were to bring a claim in federal district court, you would have a right of appeal then to a circuit federal court?

JUDGE EVERETT: Right.

INTERVIEWER 2: How are the lower military courts that -- below the court of appeals for the armed forces -- how are those structured -- in what various ways might somebody who's in the armed forces -- what would be their first contact -- what court would they be in and what possible courts might they go to on their way to the court of appeals for the armed forces?

JUDGE EVERETT: Okay. The way it works is this. If there is a special court martial or a general court martial, then their access to appellate review depends on a sentence of a certain severity. For example, if it's a special court martial, unless there is a sentence including a punitive discharge which would be a bad conduct discharge there would be no direct appellate review. If on the other hand, there is a sentence to a discharge by that court or if in a general court martial there's a sentence to a discharge or in the alternative, a sentence of one year confinement even without a discharge, then there's an automatic review that doesn't require a petition, anything of that sort. There's a lawyer assigned automatically and it goes forward from there, it's reviewed by the intermediate court which used to be called the court of military review in the Army and the Air Force and the court of review -- well it was actually court of military review in all the services. The name has now been changed to Court of Criminal Appeals for the Air Force, Court of Criminal Appeals for the Navy, Court of Criminal Appeals for the Army. And a Court of Criminal Appeals for the Coast Guard as a matter of fact. It goes there. There is this review. From that point, it can go to the Court of Appeals -- the Court of Appeals for the Armed Forces on the petition of the accused or it can be repealed by the government. And if it's repealed by the government, then it is entertained as a matter of course, a matter of right. Also, if there's a capital case, it's reviewed as a matter of right. Most of the cases, however, go up on a petition for discretionary review of which maybe 8 or 9 percent are granted. If the petition for discretionary review is not granted, that's the end of the matter. If it is granted, even if it's granted only to the extent of saying, "the decision below is affirmed," then it becomes eligible for review by the Supreme Court. I remember there are some cases where rather than denying review, we would -- if the sentence were very severe, we might just order an affirmance making it eligible for certiorari to the Supreme Court.

Now, in theory in some instances you can go into a federal district court after the appellate review has -- the direct repeal has been concluded, and can have review on habeas corpus. But that's very, very difficult. Also you might be able to sue for back pay in the Court of Federal Claims. There's a practical matter. This route of direct appeal -- if the sentence reaches a certain threshold followed up by discretionary review by the Court of Appeals for the Armed Forces with a right to go to the Supreme Court in some instances is a way these cases arise. It's [all] an interesting situation because the Court of Appeals for the Armed Forces is actually the gate keeper for the Supreme Court and I don't know of any circuit court that has that authority.

COL. SMITH: Thank you.

INTERVIEWER 2: [inaudible] One is -- is I just don't know. What is a court martial? Who hears that claim and I think you mentioned there were two different types of court martials and then the second question is, if you're in the armed forces, there are some [inaudible] you're saying you might have a -- no appellate -- no right to appeal at all and so that might be a distinction between the civil law and being a regular citizen and being in the military. Is that right?

JUDGE EVERETT: I think that's true. Now, there are three types of court martial. I mentioned the two that could ultimately be reviewed by an intermediate military court. There's a summary court martial in addition which is just a one officer court that can impose a sentence in certain circumstances up to 30 days. It's sort of like a police court. What it amounts to is that for a summary court martial or for certain special and general courts martial your only avenue is by -- for review is by petition to the judge advocate general. You do not have any direct appellate review by any court. And that is different as you say from the civilian situation right where even if you had a parking ticket with a $10 fine, conceivably you could take it all the way to the Supreme Court. So, to that extent, the service member has a -- has less protection than his civilian counterpart. Interestingly, the military go further in preserving -- in providing counsel, I think, than is true of any other -- any other court system. There's no requirement of showing indigence. You could be a four-star general and still get free legal counsel provided by the military.

So there are some trade-offs. There are trade-offs in connection with interrogation. The Miranda Rule is included in the military, but also there's an Article 31 which has a warning requirement even when there's no custodial interrogation. Actually, I think the military justice system is a pretty good system on balance. And it's been improved over the years and I'm sure there will be some further improvement.

COL. SMITH: Okay. Thank you very much.

End of Interview As Recorded