Sins of the General’s

Why did Major Matt Golsteyn Waive his Article 32 Hearing? Because it was a smart move.

For a number of years, the Congress and Senior Military Leaders have discussed and implemented changes to the UCMJ and the Manual for Court Martials. Many of these changes gutted the rights of the accused.

In the early 50’s Congress implemented the UCMJ in an effort to provide a fair and just system. After all, out of the sixteen million servicemen that served in World War II, two million received courts-martial; by the way, that is 1 in 8. Of course, when the war ended these WW II veterans proceeded to petition Congress for relief revealing many injustices within those 2 million courts-martial.

As Congress became aware of these abuses, they initiated reforms to establish a fair military justice system that reinforces the rights of the individual similar to civilian courts. Those reformers recognized that the new UCMJ would not work unless it was perceived as fair. Consequently, when you look at the current Manual of Court Martial, you find that it contains the word fair, or a derivative of fair, over 60 times. Article 32 Investigations were billed as a fairness showcased because they fulfill the requirement for a thorough and impartial investigation before trial.

Under our civilian Rules of Law, the prosecutor has “discretionary authority”. This means that he has almost complete authority to decide whether or not to prosecute a criminal case. He is an elected official and has been given this authority because he is the government’s lawyer. He alone decides if a criminal case, investigated by the police, can be brought before a court for adjudication.

The military judicial system is very different. Because the UCMJ is the commander’s tool to maintain the good order and discipline of the command, all judicial authority is vested in the commander to include discretionary authority. In the case of a general court-martial, the commanding general, call the “convening authority” decides the cases to be investigated and sent to trial. The convening authority also appoints the members of the court-martial. Generally speaking, all authority we see spread between the judge, prosecutor, investigators (police) in a civilian court, rests with a single person; the court-martial convening authority.

Another interesting fact is a military court martial findings are considered recommendations to the convening authority. The convening authority can accept, reject or modify a court-martial’s findings. In addition, the convening authority also has the authority for the first level of the military three-tiered appellant process.

Initially, one of the checks on the convening authority was the Article 32 Investigation. Remember, that there are no "Grand Jury" proceedings in the military judicial system. Our Constitution guarantees, “No person shall be held to answer for a capital, or otherwise infamous crime” without a Grand Jury indictment. Until 2014, the Article 32 Investigation substituted for the Grand Jury hearing with two purposes. This procedure acted as a “Discovery” proceeding for the accused and it also acted as a safeguard against baseless charges. The defense attorney could question evidence, present facts, and challenge witnesses. For over 60 years the Article 32 procedure never changed. Starting in 2014, under the “Gillibrand Reforms”, the Article 32 Investigation procedures protecting the rights of the accused were gutted.

The consequence of the political Gillibrand reforms is the Article 32 procedures are now a rubber stamp for the prosecution. In fact, the Article 32 procedure conducted before a court-martial is no longer called an investigate. It is now demoted to a hearing.

How they did this was by stating there will be a preliminary hearing and that hearing “shall be limited to”: probable cause, whether the convening authority has court-martial jurisdiction, the form of the charges, and disposition recommendations of the case. In addition, the accused can no longer present anything he desires but is now limited to the four restrictive purposes of the hearing.

The desire here is to bring the Article 32 Hearing into line with a grand jury hearing. What the reformers missed is that normally a grand jury consists of at least 16 people. In an Article 32 Hearing, the jury consists of a single officer appointed by? Yep! You guessed it, the convening authority.

Why did Major Matt Golsteyn and his lawyer, Phil Stackhouse, waive Matt’s right to an Article 32 Hearing? Because it is a rubber stamp for the prosecution. Instead of allowing the defense to question and present witnesses and evidence, the Article 32 Hearing has become a “Kabuki” theater for the prosecution. Now the prosecution can showcase charges not warranted, withhold and delay the release of exculpatory evidence, and make improper and misleading statements to the media. In other words, the convening authority gets to build his political case against the accused and the accused does not get to exercise his rights to build his legal case. The scales of fairness have become significantly tilted in the prosecutor's favor.

Post Contributed By:

Bob Weimann LtCol. USMC Ret.

UAP Board of Directors Member



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