Probable Cause and the Military Prosecutor's Duty

The following is adapted from a memorandum I wrote in 2017 while serving as Chief of Military Justice at Tyndall Air Force Base. The memo was addressed to my chain of command and argued what I believed should have been uncontroversial: that probable cause is not a suggestion, and that a military prosecutor who brings a case without believing it meets that standard has committed legal malpractice, regardless of the political pressures of the moment.

I wrote the memo because I had come to believe that the standard was being treated, in practice, as no standard at all. The prevailing institutional view—stated bluntly and outright—was that probable cause was a “low standard,” which in practice meant that any allegation from a willing alleged victim, regardless of the evidence, was sufficient to prefer charges. I believed then, and I believe now, that this approach was both legally indefensible and morally corrosive. The problems I describe here are not unique to this memo—they reflect a broader pattern within the military justice system.

The Standard

Probable cause is the constitutional threshold that separates lawful prosecution from state-sponsored harassment. The Supreme Court has defined it as requiring “a reasonable ground for belief of guilt”—a standard that demands more than bare suspicion but less than proof beyond a reasonable doubt. In practical terms, the evidence available at the time of charging must make the accused’s guilt more likely than not.

This is not a high bar. It is, as the Court has acknowledged, a practical and commonsense standard. But it is a standard, and it exists for a reason. As the Court explained in Brinegar v. United States, 338 U.S. 160 (1949), the probable cause requirement exists to “safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime.” The standard represents “the best compromise that has been found for accommodating” the competing interests of law enforcement and individual liberty.

The military justice system has adopted this standard. Article 32 of the UCMJ requires a preliminary hearing officer to determine whether probable cause exists to believe an offense has been committed. Rule for Courts-Martial 601(d)(1) requires that charges “shall not be referred to a general court-martial unless the convening authority has been advised in writing by the staff judge advocate” that “the specification alleges an offense under the UCMJ” and that “there is probable cause to believe the accused committed the offense.” The standard is embedded at every level of the process.

The Duty

A military prosecutor who brings a case to an Article 32 hearing knowing it lacks probable cause has committed legal malpractice and has violated both Air Force standards and, most likely, the rules of professional conduct governing their state bar membership.

This is not my opinion. This is the requirement of the Air Force’s own professional conduct standard, DAFI 51-110, Standard 3-3.9, which obligates military prosecutors to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” It is also the requirement of the ABA Model Rules of Professional Conduct, Rule 3.8(a), which provides that a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

The prosecutor’s duty is not merely to secure convictions. It is to seek justice. Attorney General Robert H. Jackson—who would later serve on the Supreme Court and serve as chief prosecutor at the Nuremberg Trials—articulated this principle in his famous 1940 address to United States Attorneys:

“The citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”

Jackson understood what too many military prosecutors have forgotten: that the power to prosecute is the power to destroy, and that this power must be exercised with restraint, not merely with vigor. The prosecutor who brings a case they do not believe in—because a commander expects it, because the political climate demands it, because declining to prosecute carries career risk—has betrayed the office they hold and the Constitution they swore to defend.

The Problem

The institutional culture I encountered did not take this duty seriously. Probable cause was treated as a “low standard”—a phrase I heard repeatedly from senior JAG officers—which in practice meant it was no standard at all. The working assumption was that any allegation from a willing alleged victim, regardless of the evidence, was sufficient to prefer charges. Commanders were terrified to decline prosecution, because they knew that a single decision not to prosecute—regardless of the evidence—could cost them a Senate confirmation vote for a general officer billet. The pressure was not toward careful evaluation of the evidence. It was toward prosecution for its own sake.

To prefer charges where no probable cause exists would leave law-abiding servicemembers at the mercy of the “whim or caprice” of the current political environment—a violation of the due process principles our system was designed to protect. One injustice cannot absolve another. The fact that there were real cases in which perpetrators escaped accountability does not justify a system that abandons the charging standard in the opposite direction. The remedy for under-prosecution is not over-prosecution. It is competent, rigorous, constitutionally grounded prosecution—the kind that respects both the rights of the accused and the gravity of the offense.

The Principle

The prosecutor’s duty runs in both directions. The guilty shall not escape, and the innocent shall not suffer. As the ancient proverb warns: “Acquitting the guilty and condemning the innocent—the LORD detests them both” (Proverbs 17:15). The prosecutor who forgets the second half of that obligation—who treats conviction as the only measure of justice—has ceased to be a minister of justice and has become an instrument of oppression.

I wrote this memo because these principles were not self-evident to the senior lawyers over me. That I had to write it at all tells you everything you need to know about the culture within the JAG Corps at the time. The institutional response to the memo was instructive: it was not engaged on its merits. It was simply ignored. Leadership relented when I recused myself from prosecuting cases I believed lacked probable cause, though the prosecutions went forward nonetheless.

I do not regret writing it. The duty to seek justice—not merely convictions—is not a preference. It is an obligation. And it is one that every military prosecutor, regardless of the political pressures of the moment, is bound to honor.