# Can POTUS order someone in the military to be court-martialed? **URL:** \ **Category:** Factual Questions\ **Created:** [February 19, 2019, 7:33am UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814 "2019-02-19T07:33:20Z")\ **Posts on this page:** 8\ **Page:** 2
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [February 20, 2019, 7:34pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/21 "2019-02-20T19:34:56Z")
> [@Horatius](#): > > If the President is the one who wants to court martial Private Bailey for Criminal Feels Damage, who is the “superior competent authority” who would convene the court? I would imagine that if there’s a legitimate reason to court-martial Pvt. Bailey, one of the officers down the chain of command would do the actual charge-pressing (or whatever it’s called in the military), even if the President was the one pushing for a general court-martial versus nonjudicial punishment or even a summary court-martial. The more I read the thread and read up on this stuff, I’m not sure how the President _could_ call for a court-martial; if the offense is legitimate, he’ll already be on the hook from within the military anyway, and if it’s a politically motivated thing, the Article 32 stuff would likely prevent an actual court-martial. It’s not terribly dissimilar to the President calling for Hillary Clinton to be locked up; if there was reason to lock her up, the AG or someone would be doing it, and without that probable cause, it’s just so much hot air. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [February 20, 2019, 9:15pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/22 "2019-02-20T21:15:14Z")
> [@Horatius](#): > > Okay, how does section b apply when the “accuser” is the President? > > If the President is the one who wants to court martial Private Bailey for Criminal Feels Damage, who is the “superior competent authority” who would convene the court? The president is the civilian head of the military through the Secretary of Defense and the branch secretaries. He is not an officer and he is not the commanding officer. It may seem like a technicality but it is a legal difference. The actual charging and procedures would be done through the uniformed chain of command not the civilian authority even if the orders came from them. ---
**Author:** ![naita](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/naita/32/5862_2.png) [@naita](https://boards.straightdope.com/u/naita)\ **Post date:** [February 20, 2019, 9:19pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/23 "2019-02-20T21:19:57Z")
The president’s authority to convene a court martial has already been shown. It has to go via whomever is considered the president’s staff judge advocate for consideration though. The JAG will determine whether the offense claimed is actually a crime, if there’s evidence for it, and whether the president has jurisdiction. > [@](#): > > 1. ARTICLE 34. ADVICE OF STAFF JUDGE ADVOCATE AND REFERENCE FOR TRIAL > by admin on Jul.21, 2010, under 06. Pre-Trial Procedure > > (a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that– > > (1) the specification alleges an offense under this chapter; > > (2) the specification is warranted by the evidence indicated in the report of investigation under section 832 of this title (article 32) (if there is such a report); and > > (3) a court-martial would have jurisdiction over the accused and the offense. ---
**Author:** ![richw211](https://avatars.discourse-cdn.com/v4/letter/r/8797f3/32.png) [@richw211](https://boards.straightdope.com/u/richw211)\ **Post date:** [February 21, 2019, 8:43pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/24 "2019-02-21T20:43:50Z")
I have no legal training, military or otherwise, but I remember UCMJ Article 134 from my navy days decades ago: Article 134. General article: “Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.” It seemed like a catch all article that could be enforced very subjectively - i.e. someone who couldn’t be charged with any other UCMJ article violation, but was on one or more officer’s (poop)list. ---
**Author:** ![DinoR](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dinor/32/2821_2.png) [@DinoR](https://boards.straightdope.com/u/DinoR)\ **Post date:** [February 21, 2019, 9:36pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/25 "2019-02-21T21:36:04Z")
> [@bump](#): > > I would imagine that if there’s a legitimate reason to court-martial Pvt. Bailey, one of the officers down the chain of command would do the actual charge-pressing (or whatever it’s called in the military), even if the President was the one pushing for a general court-martial versus nonjudicial punishment or even a summary court-martial Senior commanders and court martial convening authorities can retain the right to make that decision taking it away from their subordinates. A sexual harassment case I dealt with as battalion commander is a good example. By division policy, the complaint was reported to division almost immediately. I appointed the 15-6 investigating officer but the division commander retained authority for UCMJ action at that point. There were strict time limits to complete the investigation, have it reviewed by division legal staff, and report my recommendations through Brigade to Division. I had no authority to make decisions about the disposition of the case at that point. Once the division commanding general had reviewed the investigation into the case he allowed the chain of command to take over. (He was careful to make sure to avoid Unlawful Command Influence by suggesting how the chain of command handled it from that point.) The brigade commander retained authority on the disposition of the case at that point. My replacement in command still didn’t have the authority to do more than make recommendations to the brigade commander. > [@](#): > > The more I read the thread and read up on this stuff, I’m not sure how the President _could_ call for a court-martial; if the offense is legitimate, he’ll already be on the hook from within the military anyway, and if it’s a politically motivated thing, the Article 32 stuff would likely prevent an actual court-martial. Not necessarily. If it’s serious enough to rate even a summary court martial it **should** already have subordinate commanders heavily engaged. I’d certainly hope they were. Hope is not a method. The UCMJ provides a method for superior commanders and court convening authorities to intervene. That still leaves open some cases that the UCMJ needs to be able to address even without the chain of command failing. Unified Combatant Commanders and the Chairman of the Joint Chiefs don’t have uniformed superior officers. If there’s a good reason for SECDEF to not be involved, like he was the one assaulted or was potentially complicit and being investigated, that leave POTUS as the court convening authority of last resort. The UCMJ is built to provide system that provides for all uniformed members. ---
**Author:** ![Drum\_God](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drum_god/32/44_2.png) [@Drum\_God](https://boards.straightdope.com/u/Drum_God)\ **Post date:** [February 21, 2019, 11:17pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/26 "2019-02-21T23:17:45Z")
Wow. I am certainly not surprised that the US military has an established procedure for pretty much everything and even the POTUS is going to have some trouble bucking that procedure. I still imagine that being on the wrong side of POTUS, even a capricious one like Trump, would be a dangerous place to be for the average soldier. But how do these procedures hold up in the fog of war. Thinking about a “total war” situation where the fate of the nation hangs in the balance (a WWII sort of dustup), do all of those things still happen? If Private Bailey is suspected of absconding with his CO’s liquor trunk while deployed to the front (wherever that may be), is Pvt. Bailey looking at all this Article 32 stuff or is he simply going to be in line for the next one-way mission? Does Bailey’s CO (or LT or SGT or whoever) face consequences if it can be shown that he put Bailey in the way of the next “prolly gonna get killed” mission? Or does that simply not happen? ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [February 22, 2019, 1:59pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/27 "2019-02-22T13:59:22Z")
One of the slightly more mundane Navy procedures is the use of the Courts-Martial after the loss of a ship. [Wiki link](https://en.wikipedia.org/wiki/Court-martial) > [@Wikipedia](#): > > Most navies have a standard court-martial which convenes whenever a ship is lost; this does not presume that the captain is suspected of wrongdoing, but merely that the circumstances surrounding the loss of the ship be made part of the official record. So a Courts-Martial is not always a criminal procedure. > [@Drum God](#): > > If Private Bailey is suspected of absconding with his CO’s liquor trunk while deployed to the front (wherever that may be), is Pvt. Bailey looking at all this Article 32 stuff or is he simply going to be in line for the next one-way mission? Unit C.O.'s have the option of [Non-Judicial Punishment](https://en.wikipedia.org/wiki/Non-judicial_punishment). There are rules/regulations guiding the use of these powers, as well. As far as placing your subordinates under “undue” risk, every officer has a superior in the chain of command who is supposed to be paying attention to what that officer is doing, particularly how they are managing (or not managing) their service members, what plans they used to accomplish a mission, etc. I imagine a clever officer can get away with murder, just like a clever civilian can get away with murder, but openly admitting that you ordered Pvt. Bailey to clear a minefield with a toothbrush is not going to pass muster. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [February 22, 2019, 4:01pm UTC](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814/28 "2019-02-22T16:01:03Z")
> [@mlees](#): > > One of the slightly more mundane Navy procedures is the use of the Courts-Martial after the loss of a ship. > … Read about some admiral who had a sign on their desk - “A collision at sea can ruin your whole day.” [Previous page](https://boards.straightdope.com/t/can-potus-order-someone-in-the-military-to-be-court-martialed/829814.md?page=1)