Is there a big change coming in the UCMJ? In the most recent National Defense Authorization Act, Congress directed the Secretary of Defense to review and make a recommendation as to whether changing the Uniform Code of Military Justice (UCMJ) would change the basic structure of the court-martial system.
Specifically, Congress asked if it should give the discretionary power to charge service members with serious crimes to a specially designated senior judge advocate. Reportedly a group of prominent military justice scholars endorsed this concept.
This change in who decides whether a particular service member should be court-martialed is intended to reform what is described as the existing model of military justice. Ordinarily, and historically, the decision to try a service member for a military crime has been left to the discretion of that service member’s commanding officer (also known as the Convening Authority). This discretionary power is part-and-parcel of what the U.S. Court of Appeals for the D.C. Circuit is described as the commander’s imperative duty to maintain “discipline and order.”
Historically, commanders have had the discretion to enforce or disregard the verdict and sentence rendered by the jury based on their judgment as to what will best serve their broader mission.
Allegations that commanding officers were dismissive of sexual assault allegations against subordinates who were otherwise valuable to the commander’s mission. Recent changes in the way sexual assault-related cases have already minimized and diluted that Commanders’ prerogative. This most recent proposal effectively takes the final step by abolishing commander discretion altogether.
The purpose of ‘military justice’ has been generally (and legally) accepted on the premise that the purpose of military justice is to ensure a disciplined chain-of-command.
The reform Congress is now contemplating is touted as a reform to whom the law gives prosecutorial discretion. The position that it is time to abandon military justice’s disciplinary rationales in favor of making the military system nothing more or less than a justice system doesn’t fly in my book.
I believe this plan gives too much authority to a single office of judicial review. It also touts this proposal would be a model of efficiency and a cost saver, not to mention that it would be a model of fairness.
These workload issues also raise fairness concerns. The group’s report speculates that it would be more appropriate for this new convening authority would reduce processing time for each case because he/she would be an attorney who is aware of the system and standards involved in the charging process. My questions is could such a person be fully and intimately aware of the facts of each case? How much case analysis will necessarily be delegated to staff attorneys? How will their work be supervised? Will they help to build cases and direct investigations? Will they be responsible for ultimately prosecuting cases as their assistant U.S. attorney counterparts would be? Unless each of these new prosecuting attorneys were co-located at each installation, the timeliness and inherent coordination problems will just add to the confusion. Duplicative efforts and delays will abound, not to mention that the additional cost and territorial jealousies will cause problems of in their own right.
Depending on how these questions are answered, such a system will either create a costly amount of duplicative effort or simply become a rubber stamp for the prosecutorial zeal of the local military prosecutor (called the “trial counsel”) who initiated the charges (but does not wield convening authority), which is at least theoretically tempered by the command-centric structure that presently exists.
Abolishing the command-centric structure of the military justice system may be desirable to some. But no one should underestimate what a fundamental rethinking of nearly every aspect of the military justice system such a change would entail. Some proponents note that many of our allies have already adopted systems similar to the proposed system and some have abolished military trials altogether. I don’t support the concept of doing something just because someone else is doing it.
We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for the performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served.
Proponents say it may be time to take the final step and fully commit to a model of military justice whose only purpose is justice. But if that is so, Congress will have to undertake a ground-up restructuring of the system as a whole rather than pretend that the reform to convening authority now under consideration is just an incremental fix.
I submit that changing something as fundamental as the role of the commander as convening authority while attempting to leave everything else in place is bound to make this problem worse. The current system, although not infallible, works. Leave it alone and let’s not try reform just for the sake of reform. We, all too often, see what a mess our current civilian ‘justice’ system is and how messed up it is. Let’s not create a new model to image a worse one.
Potions of this article were extracted from Lawwfareblog.com. Refer to their article for more details and additional arguments. https://www.lawfareblog.com/major-change-military-justice-works.