Lead Opinion
delivered the opinion of the Court.
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of two specifications of attempted forcible sodomy with a child, indecent acts with a child, and obstruction of justice, in violation of Articles 80 and 134, Uniform Code of Military Justice (UCMJ), 10 USC §§ 880 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for twenty years, total forfeitures, and reduction to grade E-l. The convening authority approved the findings and sentence as adjudged. The court below set aside the finding of guilty of obstruction of justice, dismissed that specification, affirmed the remaining findings, and upon reassessment, affirmed the sentence.
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY VIOLATING THE MANDATE TO GRANT CHALLENGES FOR CAUSE LIBERALLY WHEN HE WRONGLY DENIED THE DEFENSE’S CHALLENGE FOR CAUSE AGAINST A PANEL MEMBER WHO WAS THE SUPERVISOR/RATER FOR SIX OTHER MEMBERS OF THE PANEL.
For the reasons set forth, we find that the military judge abused his discretion when he denied the challenge for cause against Colonel (COL) Williams. Thus, we reverse.
Background
At trial, appellant elected to be tried by a panel of both officer and enlisted members. Ten members reported to the court-martial. COL Williams, a brigade commander, was the senior member.
During the military judge’s prehminary voir dire of the members, the following information was revealed:
MJ: Is any panel member in the rating chain, supervisory chain, or chain of command of any other panel member? If so, raise your hand.
Colonel Williams, who’s under your command or rating chain?
MEM [COL WILLIAMS]: [Lieutenant] Colonel Mereness is a battalion commander for me, [Lieutenant] Colonel Rogers is a battalion commander for me, Major Gonsalves is a battalion XO [executive officer] for me. [Lieutenant] Colonel Hough is my forward support battalion commander and the first sergeant down there at the end is also in my chain.
MJ: First Sergeant Waters. Who else?
*174 MEM [COL WILLIAMS]: Command Sergeant Major Arroyo also is in my BCT [Brigade].
Civilian defense counsel attempted to exercise a challenge for cause to remove COL Williams, based on implied bias, because of his supervisory position over six of the panel members. After questioning the members, the military judge denied the challenge for cause, stating:
MJ: Well, if this were some sort of military offense that occurred in the 2nd Brigade [COL Williams’s Brigade], I might look at it differently. But for a case of this type, I think the panel members can each approach this with an individual voice and consideration. They’ve all indicated that they could express their opinions’ freely and openly and that they would not be inhibited or unduly influenced by any superior.
Your challenge for cause is denied.
Defense counsel subsequently exercised his peremptory challenge against COL Williams and stated that, but for the military judge’s denial of his challenge for cause against COL Williams, he would have peremptorily challenged Major Gonsalves.
Discussion
Testing Impartiality
As a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel. United States v. Mack,
In this case, appellant takes issue with the judge’s application of, or to be more precise, his failure to apply his authority to remove a potential member for cause. RCM 912(f)(l)(N) provides that “[a] member shall be excused for cause whenever it appears that the member ... [s]hould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” In furtherance of this principle, this Court has determined that a member shall be excused in cases of actual bias or implied bias. United States v. Napoleon,
“The test for actual bias is whether any bias ‘is such that it will not yield to the evidence presented and the judge’s instructions.’” Napoleon,
Implied Bias
In the case at hand, appellant did not, and does not, challenge the composition of his panel on the grounds of actual bias. These officers and senior enlisted personnel, who swore to defend the Constitution, stated to a federal judge that they would not be swayed by the Brigade Commander because he was their commanding, rating, or supervising officer. COL Williams stated that he would not expect any jury room deference given his position. Appellant does not challenge the veracity of these voir dire responses. Rather, defense counsel challenged on the grounds of implied bias, citing to this Court’s decision in Rome. Thus, in accord with this Court’s precedent on RCM 912 and implied bias, including Rome, Daulton, and Dale, the issue here is one of public perception and the appearance of fairness in the military justice system.
It is well settled that a senior-subordinate/rating relationship does not per se require disqualification of a panel member. Rome,
In Murphy and Harris, this Court tested the presence of two and three members on panels that included their rating officers. In contrast, in this case the President of the panel and his subordinates comprised the two-thirds majority sufficient to convict, a factual scenario outside the margin of tolerance reflected in our case law. Thus, appellate review of this case neither requires application of per se principles nor rejection of Rome’s guidance that implied bias should be invoked rarely.
Where a panel member has a supervisory position over six of the other members, and the resulting seven members make up the two-thirds majority sufficient to convict, we are placing an intolerable strain on public perception of the military justice system. This is a contextual judgment. The President anticipated in the preamble to the Manual for Courts-Martial that judges would
What is reasonable and fair from the public’s perception, as well as this Court’s judgment as to what is reasonable and fair, would be different in the case of national security exigency or operational necessity. In a particular case, operational needs may impact the availability of members of a command, thereby significantly limiting the pool from which potential members might be selected. Here, deployed units may have diminished the potential pool of members, but the Government failed to demonstrate that it was necessary for the Brigade Commander to serve on this panel. The record shows that there were at least two combat brigades at Fort Stewart at the time of trial, in addition to support elements, from which to select a qualified member in lieu of COL Williams.
In short, in this case, the Government has failed to demonstrate that operational deployments or needs precluded other suitable officers from reasonably serving on this panel, thus necessitating the Brigade Commander’s participation.
To address this issue from the standpoint of performance reports misses the point. With or without the prohibition against unlawful command influence under Article 37, UCMJ, 10 USC § 837, we reject the notion that officers and non-commissioned officers, who swear to uphold the Constitution, might breach that oath willfully in the deliberation room in an effort to influence a performance report. The American public should and does have great confidence in the integrity of the men and women who serve in uniform, including their integrity in the jury room.
However, public perception of the military justice system may nonetheless be affected by more subtle aspects of military life. An objective public might ask to what extent, if any, does deference (a.k.a. respect) for senior officers come into play? The public perceives accurately that military commissioned and non-commissioned officers are expected to lead, not just manage; to command, not just direct; and to follow, not just get out of the way. For lack of a more precise term, appellant’s trial defense counsel described this concern as creating “the wrong atmosphere.”
We also disagree with the military judge’s suggestion that he might treat the question of implied bias differently in a case involving an offense particular to the military justice system, as opposed to one of child abuse. Implied bias undermines public confidence in the military justice system regardless of the offense.
Whether one agrees with appellant that the panel would constitute a “brigade staff meeting” or not, we have no doubt that “viewed through the eyes of the public,” serious doubts about the fairness of the military justice system are raised when the senior member of the panel and those he commanded or supervised commanded a two-thirds majority of members that alone could convict the accused. This is not “knowing it when you see it,” or appellate judges attempting to extrapolate “public perceptions” from the bench. This is a clear application of law to fact, and illustrates well why this court recognizes a doctrine of implied bias, as well as one of actual bias, in interpreting ROM 912.
Prejudice
Appellant preserved this issue for appeal by peremptorily challenging COL Williams and indicating that, but for the military judge’s denial of his challenge for cause, he would have used the peremptory challenge against another officer.
There is no constitutional right to a peremptory challenge. Ross v. Oklahoma,
Armstrong remains the law in the military. When a statute or rule confers a right greater than the Constitution, an accused is entitled to the benefit of that greater right, unless it conflicts with a higher source of law. Armstrong,
Decision
Based on the foregoing, we hold that the military judge abused his discretion in denying the challenge for cause against COL Williams and that such error resulted in prejudice to appellant.
The decision of the United States Army Court of Criminal Appeals is reversed, and the findings of guilty and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A new trial may be ordered.
Notes
. This Manual provision is identical to the one in effect at the time of appellant's court-martial.
. Murphy and Harris both involve instances of multiple superior/subordinate relationships between members. In Murphy, the President of the court-martial was in the chain of command of two junior members and may have been required to sign as a rater for them if their senior officer was not present. Yet another member was the reporting official for one other member and a "reporting official once removed for a second member.”
. Defense counsel stated: "And that’s just an awful lot of people who he influences. And if you take him off, you don't have — you kind of break up that number of superior/subordinate rating chain relationships____ It creates the wrong atmosphere — .” We agree. This is a different case without the presence of the brigade commander and six of his subordinates.
. We do not need to debate for the purpose of this appeal the implication that there is a qualitative difference between traditional military offenses, like desertion, and offenses committed by or against military personnel or their families, such as child abuse. We find it hard to imagine that a commander would not consider both types of offenses with equal gravity and concern.
. Senior Judge Sullivan renews his opposition to this Court's precedent regarding implied bias as an interpretive framework for applying RCM 912. Senior Judge Sullivan may disagree with the majority view that where the President of a panel commands or supervises a two-thirds majority of court members sufficient to convict, serious doubts about the fairness of military justice are raised, but that does not make the majority view ultra vires. The duty of judges is to say what the law is. Marbury v. Madison,
Dissenting Opinion
(dissenting):
After the seven-game 1960 world series victory by my hometown Pittsburgh Pirates over the heavily favored New York Yankees, that ended when Bill Mazeroski hit a dramatic ninth inning home run over Yogi Berra’s head and the left center field wall of Forbes Field, Yogi explained the loss by saying, “We made too many wrong mistakes.”
It is unclear whether the doctrine of implied bias even exists as a matter of law. See Smith v. Phillips,
The majority tests the military judge’s denial of a causal challenge against Colonel (COL) Williams for abuse of discretion.
All military accused, like their counterparts in civilian criminal courts, have a right to a trial before an impartial factfinder. See Weiss v. United States,
See also Phillips,
The American public with which I am familiar is both perceptive and informed. When presented with all the facts, it is most capable of making a fair and reasoned judgement. It is not limited to a handful of individuals dedicated either to vilifying or lionizing the role of a convening authority in the selection of court-martial members. The informed public understands the differences between courts-martial with members and trials in the civilian sector with civilian jurors. American citizens are also capable of understanding the differences between the military justice system and the various civilian criminal law systems, and knowing that in the military justice system, a convening authority selects court-martial members “by reason of age, education, training, experience, length of service, and judicial temperament.” Art. 25(d)(2), UCMJ, 10 USC § 825(d)(2).
The thoughtful, conscientious public with which I am familiar would first want to know the facts before jumping to a conclusion. The record of trial establishes the following facts:
(1) COL Williams, the 2d Brigade Commander, was a permanent member of Court-Martial Convening Order Number 4. Lieutenant Colonel (LTC) Rogers, one of COL Williams’s battalion commanders, as well as LTC Rogers’s executive officer (XO), Major (MAJ) Gonsalves, were also permanent members of Court-Martial Convening Order Number 4. Command Sergeant Major (CSM) Arroyo was also designated as a member by this Court-Martial Order whenever an accused requested enlisted membership on the court.
(2) LTC Mereness and LTC Hough were detailed to appellant’s court-martial only by Court-Martial Convening Order Number 6.
(3) LTC Hough was a Forward Support Battalion (FSB) commander assigned to the Division Support Command. He had a command supervisory relationship with COL
Williams only when LTC Hough’s battalion was in direct support of the 2d Brigade, such as during deployment situations.
(4) COL Williams only had rating responsibility for three members — his two battalion commanders, LTC Rogers and LTC Mereness, and LTC Rogers’s XO, MAJ Gonsalves. The record discloses that COL Williams was the reviewer of First Sergeant Waters’s enlisted efficiency report, but not a rater.
(5) Appellant challenged three individuals based on implied bias at trial — COL Williams, MAJ Gonsalves, and CSM Arroyo. There is no stated rationale why trial defense counsel challenged the most senior member of the panel (COL Williams), but then challenged two subordinates (MAJ Gonsalves and CSM Arroyo) instead of those members’ superior officers, LTC Rogers and LTC Hough, respectively.
(6) The military judge found that there were two combat brigades with the 3d Infantry Division stationed at Fort Stewart, one of which was deployed to Kuwait. The military judge also correctly found that the FSB (LTC Hough and CSM Arroyo) was not a part of the 2d Brigade.
Of course, an astute and inquisitive general public would not be limited to the record of trial when gathering facts to test the fairness and impartiality of appellant’s court martial. Inquiring minds would also discover that one
Since the informed and reasonable American public understands the structure of the United States armed forces, to include the necessity for superior-subordinate relationships, the public would disagree with the majority when it finds that COL Williams had a superior-subordinate relationship with six of the other nine members. Actually, COL Williams was superior to all of the other members of the court-martial panel. Furthermore, the public would understand that the president of every court-martial is superior in rank to all other members of the panel. Since the public will accept the majority recognizing that the members were, in fact, impartial, and will know that appellant has not challenged the veracity of any individual member’s responses to voir dire questions, the inquiring public could be perplexed by the majority’s logic.
Finally, I believe that the American public, after reading the Supreme Court’s views in Weiss v. United States,
In sum, the average American would find that since the first combat brigade at Fort Stewart was deployed to Kuwait at the time of trial, appellant’s court-martial members were selected out of elements of the 3d Infantry Division remaining at Fort Stewart. After examining all of the underlying evidence associated with appellant’s court-martial and knowing all the facts, I believe a reasonable member of the public would find no unfairness, bias, or other illegality in the selection of those members who heard appellant’s court-martial, or in the denial of the challenge for cause against COL Williams.
The fundamental goal of a military court-martial member selection system, as in civilian society, is to identify and select a panel of court-martial members that is competent, fair, and impartial. A military system, however, must also produce panel members who are available without unduly restricting the conduct of the military mission or national security.
Department of Defense Joint Service Committee on Military Justice, Report on the Method of Selection of Members of the Armed Forces to Serve on Courts-MaHial 8 (1999). This goal was achieved in this case. Accordingly, I would affirm the decision of the Court of Criminal Appeals.
. Yogi Berra, The Yogi Book 34 (1998).
. The origin of "implied bias" in this Court can be traced to Judge Fletcher’s individual opinion in United States v. Harris,
In the two decades that this Court has wrestled with the doctrine of implied bias, the focus of this Court has shifted from examining whether an average person, sitting in the position of the court member in controversy, would be fair and open-minded, to a concern about the impartiality of our military judicial system in the eyes of the public at large. Justice O’Connor’s admonition in Smith v. Phillips,
. The convening authority, normally a senior commander in a chain-of-command, has always occupied a prominent role in militaiy justice. After World War II, in response to numerous complaints of perceived injustices, there were a number of investigating committees. Many of the organizations investigating the state of military justice, to include the American Bar Association’s Vanderbilt Committee, the American Legion, and the Veterans of Foreign Wars, advocated curtailing, if not removing, the convening authority from his central role in the court-martial process. The Secretary of War rejected changes that precluded a commander from appointing and reviewing courts-martial. See Gerald F. Crump, Part II: A History of the Structure of Military Justice in the United States, 1921-1966, 17 Air Force L.Rev. 55, 58-60 (1975); 1 Francis A. Gilligan & Fredric I. Lederer, Court-Martial Procedure §§ 1-44.00 & 1-45.00 at 14-16 (2d ed.1999).
Passage of the National Security Act of 1947 and the creation of the Department of Defense brought forth new legislation to make military justice uniform among all the services. Although the Elston Bill made many reforms in the military justice arena, "Congress acquiesced in the Army’s unwillingness to surrender the commander’s control of court-martial processing, but it made coercion of the court a criminal offense. The drafters felt that this provision, coupled with the broadening of review and establishment of an independent Judge Advocate General’s Corps, was a sufficient check on the commander’s abuse of his powers.” Crump, supra at 63 (footnotes omitted). Like most legislation, the Uniform Code of Military Justice represented a compromise, designed to ensure fairness in courts-martial proceedings. In particular, commanders still convened and reviewed courts-martial, but did so under exacting guidelines in such areas as legal advice, court-martial member selection, and a prohibition against unlawful command influence.
Military justice can and should be a dynamic process, where introspection and reexamination take place. Cf. Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice (2001). It would appear, as my colleague Judge Effron recently opined, that "Congress ... has been sensitive to the need for fairness in military justice proceedings. In Article 25, Congress has provided members of the armed forces with a valuable protection by requiring the convening authority personally to select those members of the armed forces 'best qualified’ to serve as court members by reason of judicial temperament and related statutory criteria.” See United States v. Benedict,
. While I fully agree with the majority’s view that what is “reasonable and fair from the public's perception” might differ based on national security exigencies or military necessity, I totally disagree with the majority’s shifting the burden to the Government to demonstrate necessity for a particular member’s service on the panel.
. See United States v. Giles,
. We have forgotten our observation in United States v. Smart,
Dissenting Opinion
(dissenting):
THE MAJORITY’S HOLDING
The majority effectively holds today that where one officer commands a significant number of the members of a panel, he may not sit as a member of that panel if challenged by the defense. The Congress and
In my view, the majority’s holding in this case creates new law, and it is law which Congress or the President should make, not the judiciary. See U.S. Const. Art. I, § 8, cl. 16; Article 36, UCMJ, 10 USC § 836. Congress could have provided that a member shall be disqualified if he or she is the military commander of a significant number of the members of the panel. See Article 25(d), UCMJ, 10 USC § 825(d) (“No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same ease.”). Congress has been aware that, for years, commanders have sat on panels with their subordinates. Congress could have prohibited this situation by law but failed to do so. A court should not judicially legislate when Congress, in its wisdom, does not.
With respect to judicial rulemaking (the clone of judicial legislation), the President, acting pursuant to Article 36, UCMJ, could also have provided that a challenge must be granted where a member is a brigade commander of a significant number of the members of a court-martial panel. RCM 912(f)(1), Manual for Courts-Martial, United States (1998 ed.), states:
(f) Challenges and removal for cause.
(1) Grounds. A member shall be excused for cause whenever it appears that the member:
(A) Is not competent to serve as a member under Article 25(a), (b), or (c);
(B) Has not been properly detailed as a member of the court-martial;
(C) Is an accuser as to any offense charged;
(D) Will be a witness in the court-martial;
(E) Has acted as counsel for any party as to any offense charged;
(F) Has been an investigating officer as to any offense charged;
(G) Has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority;
(H) Will act in the same case as reviewing authority or as the legal officer or staff judge advocate to the reviewing authority;
(I) Has forwarded charges in the case with a personal recommendation as to disposition;
(J) Upon a rehearing or new or other trial of the case, was a member of the court-martial which heard the case before;
(K) Is junior to the accused in grade or rank, unless it is established that this could not be avoided;
(L) Is in arrest or confinement;
(M) Has informed [sic] or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged;
(N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.
The President could have made a new rule barring commanders of a significant number of other members of a panel from sitting on a court-martial, but he did not. Like judicial legislation, courts should refrain from judicial rulemaking. See generally United States v. Torres,
Congress has provided that a military accused may make challenges for cause, and the military judge is to decide these challenges. Article 41(a)(1), UCMJ, 10 USC § 841(a)(1). The President, pursuant to Article 36, UCMJ, has specifically delineated circumstances where a challenged member shall be excused. As noted above, nowhere is it said that a member shall be excused because he is the military commander of a significant number of the members of the panel. See RCM 912(f)(l)(A)-(N). Congress passed the UCMJ legislation knowing that
To the extent that the majority relies on RCM 912(f)(l)(N) as the legal basis or authority for its holding in this case, I also must disagree. It generally says:
A member shall be excused for cause whenever it appears that the member ... (N) should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.
In my view, RCM 912(f)(l)(N) does not contemplate mandatory exclusion rules such as that fashioned by the majority in this case. See United States v. Greer,
My analysis shows that the trial judge did not abuse his discretion in this case. The judge exercised his discretion with no knowledge that this Court would expand the law as the majority does today. When the judge made his ruling that is overturned today by the majority, there was no case law suggesting this holding. Interestingly enough, the majority cites no case law as support for this new extension of the law.
Review for Abuse of Discretion by the Trial Judge
The assigned legal question before us is whether the military judge abused his discretion when he denied the defense’s challenge for cause against COL Williams. Appellant asserts that the judge clearly did, especially in light of the military justice system’s “liberal grant policy” for such challenges,
Implied bias has been said to exist in military law when, “regardless of an individual member’s disclaimer of bias, ‘most people in the same position would be prejudiced [ie., biased].’ ” United States v. Napolitano,
Appellant complains that the presence of COL Williams on a panel where so many members were subject to his command supervision created an appearance of its unfairness. Appellant argues “[e]ven with the panel members’ disclaimers, an outside observer would reasonably perceive the court-martial to be unfair when COL Williams, a brigade commander, held such an influential position over a majority of the panel members. See (R. at 146.); [United States v.] Youngblood, 47 MJ [338,] 341 [(1997)]; RCM 912(f)(l)(N). The perception of unfairness,” appellant further argues, “increases exponentially considering the fact that, including himself, COL Williams held a commander, supervisor or rating position over enough panel members (seven of ten) to convict SGT Wiesen. (R. at 136-7, 146.); see RCM 921(c)(2)(B).” Final Brief at 7.
The military judge, however, provided several reasons for his rejection of the defense challenge for cause against COL Williams. First, the judge stated that military case law did not require him to grant such a challenge simply because a challenged member had a military supervisory relationship over another panel member. Second, the judge asserted that such a relationship, even with a majority of the members, would not be a significant factor raising a suspicion of unfairness in a ease where that command’s organizational interests were not directly at issue. Third, the judge noted that the extensive voir dire of all the members of the court-martial panel established no other circumstances suggesting COL Williams should not sit in this case in the interest of the appearance of fairness.
In my view, the military judge did not abuse his discretion in denying the defense challenge for cause for these reasons. See generally United States v. Napolitano,
[T]he mere fact that the senior, or other member of the court, coincidentally has the duty to prepare and submit a fitness report on a junior member, in and of itself, does not affect the junior’s “sense of responsibility and individual integrity by which men judge men.” Dennis v. United States,339 U.S. 162 ,70 S.Ct. 519 ,94 L.Ed. 734 . So, if, as in the hypothetical case cited by the board of review, the convening authority designates two officers to serve on a court, one of whom is the normal reporting senior of the other, no reasonable man would believe that the senior is put in a position to exert undue control over the deliberations of the other. Their association as court members and the submission of a fitness report is not incompatible. We seriously doubt that either member would give thought to the fact that one is charged with the responsibility of reporting on the general fitness of the other.
(Emphasis added.)
Moreover, the military judge was also correct in suggesting that the fact a number of members of the panel were subject to the military supervision or evaluation of the president of the court-martial did not per se require disqualification of that officer. See United States v. Harris,
So, if a reporter from the newspaper came in and said, ‘You mean to tell me that five of these guys work for the President?” I think that a reasonable number of the American public who read that newspaper would say, ‘Yeah, right,” about the military justice system. And that’s why I’m saying in this case, five’s a lot.
(R. at 166).
In my view, attributing such skepticism to the American people was unwarranted, and
In this regard, I note that in 1968, Congress specifically amended Article 37, UCMJ, to expressly prohibit the rating or evaluation of court members on their court-martial duty performance. Article 37(b) now states:
(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial[.\
(Emphasis added.) I believe the American public is well aware of this bedrock of modern military law and would consider its statutory protection when forming a judgment as to the appearance of fairness of appellant’s court-martial panel. See also Weiss v. United States, supra at 180-81,
Finally, I note that the evidence in this case showed brigade relationships between COL Williams and the other members of the panel, but that it also showed appellant was not a member of that brigade. See United States v. Ai,
In closing, today’s holding by the majority effectively bars commanders from sitting on courts-martial where their subordinate officers constitute a significant number of the members of the panel. Thus, it may preclude courts-martial in small commands or on ships, where procuring members outside the local chain of command is not a realistic option. I do not believe this is the will of Congress. See generally Article 5, UCMJ, 10 USC § 805 (the UCMJ applies in territory worldwide).
Congress and the President, not this Court, should make these important decisions. See United States v. Scheffer,
. Interestingly, this policy is in sharp contrast with current practice in the British criminal justice system. In Britain, attorneys are not allowed to voir dire or cross-examine the jurors to ferret out possible grounds for bias, as is common in American criminal trials. As a result, very little is known about individual jurors, and attorneys rarely have grounds to support a challenge for cause. See Sean Enright, Reviving the Challenge for Cause, 139 New Law Journal 9 (1989).