In this article, I argue that to combat the over-delegation of power to military tribunals, some limiting principles must exist to prevent prejudiced and unwarranted second-chance prosecutions. The United States’ criminal justice system purports to embrace sturdy protections against double jeopardy, meaning no person shall be tried twice for the same offense. Yet, this ideal is far from the reality. In a legal system governed by various, distinct sovereigns, prosecutors often have two, or more, opportunities to try a case. The United States Supreme Court reaffirmed this reality in Gamble v. United States, which left service members particularly vulnerable to successive prosecutions in military courts.
This degradation of protection against repeated prosecution requires intervention from the Department of Defense (DOD). In this article, I seek to demonstrate that under the current system, double jeopardy exposure is a compounding threat to service member’s legal rights. Consequently, this article proposes several limiting principles to minimize the use of successive prosecutions and enhance protections for service members during court-martial proceedings. Collective confidence in the legal system demands that when a service member’s liberty is on the line, every precaution be taken to protect against unjust and imbalanced successive trials.