Judge Frank Whitney’s seat on the U.S. District Court for the Western District of North Carolina will be vacant the rest of this year.
Consider it an excused absence.
In his 30th year as a member of the U.S. Army Reserves, Whitney began a seven-month deployment on May 28 that will carry him overseas to preside over special and general courts-martial in Kuwait, Iraq and Afghanistan. Whitney will be stationed at Camp Arifjan, located south of Kuwait City.
"I am excited about it," stated Whitney, who has served on the U.S. District Court in Charlotte since 2006. "It will be very challenging, very exciting, and certainly it will be unique to preside over a criminal proceeding in a combat zone."
Whitney received his orders May 4, but he has known since February that deployment was likely. In the interim, however, his assignment has changed from serving as a member of the commission staff to serving as a military judge in a theater of war.
"The southwest Asia region is called the Fifth Circuit of the Army Trial Judiciary," Whitney says of the area where he will be serving. "North Carolina is in the Second Circuit, which includes Fort Bragg, Fort Jackson in South Carolina, and Fort Benning, Fort Stewart and Fort Gordon in Georgia.
"I have presided over courts-martial in the Second Circuit, but only at Fort Gordon and Fort Jackson."
Whitney does not expect to be overseas the entire deployment.
"I will probably not be in the theater that long," Whitney said. "I might come back in October. I will be bridging the gap between two active duty military judges. The bridge is there so there is not a period of time when there is no judge in the theater. But there will only be one month when I am alone.
"I will take over from the military judge who is there now, and will be under his tutelage for six weeks. The tutelage is more about learning how you get around and handle a court martial in a combat zone. I will be wearing body armor and carrying a side arm, something I normally would not do.
"So I have to go through that kind of training, and do the same to train my successor. After bridging the gap between the two rotations, I will come back and still work for the Army. should be "The Chief Judge of the Army Trial Judiciary will assign me as a military judge, assign me to a military commission or have me preside over military courts-martial here in the States.
"I will be back in Federal Court by January, maybe earlier than that."
Whitney departs with the blessings of Chief District Court Judge Robert Conrad and Chief Judge Robert Traxler of the Fourth U.S. Circuit Court of Appeals.
"The chief judge of the district has been very gracious," Whitney said. "We have worked out a plan, and it is fortuitous that Judge Max Cogburn has come on board right before I am leaving. I am closing out a large number of cases and am about to have that done, doing 12 months of work in six. I have done a hundred sentences in six weeks which is a lot.
"When I leave, Judge Cogburn will take over the criminal caseload and Judge Graham Mullen will take over the civil caseload. Luckily the civil caseload is down because those cases don’t move as quickly. When I return in January I will come right back to trial."
Whitney added that without the support of his colleagues, especially the chief judges, he could not leave.
"They could have vetoed it," Whitney said. "It is wonderful to have their support."
"Judge Whitney’s devotion to court and country is laudable," Judge Conrad stated. "He has made extraordinary efforts to manage his docket and to make sure his cases are in good shape before he is deployed. His enthusiasm is only exceeded by his work ethic."
Whitney also has excellent support at home, where his wife, Catherine, and teenage daughters Annie (15) and Hunter (13) will carry on in his absence.
"They have the hardest job, not me," Whitney said. "I will not be around during the summer and fall. When they are back in school and Hunter is playing field hockey, I will miss her games.
"That is very disappointing to me but I am very lucky that my mobilization is only for 210 days. For active duty personnel these deployments are usually at least 12 months and sometimes 13. The military judge I am replacing and the one replacing me are in for yearlong deployments, so I am very lucky in that respect."
Whitney expects to hear a wide range of cases.
"General Order No. 1 in theater gives restrictions on soldiers that do not apply outside the combat zone, prohibiting alcohol except for special events, so that one is pretty popular. Eighteen, 19 and 20 year olds are not old enough to drink, but 21 year olds and older are not allowed to drink in a combat zone.
"Alcohol and possession of pornography, those are relatively popular offenses, and you usually don’t get court-martialed for the first time. There are other, nonjudicial ways of punishment, so if it gets to the courtroom that means the soldier has done it a couple of times before."
Charges of sexual assault and larceny are also heard by the court.
"Crimes that are unique to the military, like going AWOL or desertion, conduct unbecoming, are prosecuted over there. The military likes to get those prosecuted quickly to make sure there is a deterrent to long-term desertion. It is interesting because we have an all-volunteer military, you have soldiers who want to be there. The soldiers are usually pretty well educated, or want to get an education through the military, so you don’t see the number of courts-martial as in the past.
"During World War II, there were over a million courts-martial. At the height of Vietnam, in the mid ‘60s, there were 50,000 courts-martial a year. In 2010, in all of the services, fighting two fronts, there were 3,000 courts-martial overall and only 1,000 in the Army.
"A lot of that has to do with the fact that we have a smaller force and they have chosen to be there, as compared to Vietnam when we had the draft and political views that were hostile to the war."
Whitney is a 1982 graduate of Wake Forest University and 1987 graduate of the University of North Carolina School of Law. He previously served as an assistant U.S. attorney for the Western District (1990-2001) and U.S. attorney for the Eastern District from 2002 until replacing the late H. Brent McKnight on the federal bench.
He has served in the U.S. Army Reserves since 1982.
"I have been doing this for 29 years," Whitney said. "I was commissioned on May 17, the day I graduated from Wake Forest. You have to retire after 30 years, so yes, this is my swan song. I will have five months of reserve status left after this is over and will retire in May 2012.
"I am honored that the Army has entrusted me with this responsibility, as a reserve military judge, to preside over courts-martial in a theater of operation. But I do have to tell anyone before thinking that I am doing anything heroic that I am not.
"The Army doesn’t let old soldiers like me go outside the wire. Everywhere I go I will be inside the wire, what they used to refer to as the Green Zone, with that level of security.
"I am not heading up into the mountains of Afghanistan."