Argersinger and the Right to Counsel in the Military

The dramatic advances made since 1965 in recognizing the right to counsel for accused indigents have steadily, albeit unevenly, extended to military courts-martial. Despite this progress, many questions remain unresolved regarding right to counsel both generally and in the military. While the right to counsel is solidified in general courts-martial, it remains precarious in special and summary courts-martial, for the right to lawyer counsel is defeasible where a military exigency is shown in the former and lawyer counsel is not yet required service-wide in the latter. The military exigency exception to full sixth amendment rights to easily degenerates into a catchall which allows officials to deny lawyer counsel for a multitude of reasons which sound more like "inconvenience" than true "exigency." A recent United States district court opinion cleared away some of the confusion by holding that lawyer counsel must be made available to all defendants in summary courts-martial. Of equal importance was the same court's restrictive view of the military exigency exception. By holding that only the most extreme military operative reasons may be offered for use of nonlawyers at summary trials, the court showed a new willingness to police the unfettered discretion of commanders in deciding whether or not law-trained counsel are "available."