Is a Major Change to Military Justice in the Works?

In the most recent National Defense Authorization Act, Congress directed the secretary of defense to make a recommendation as to whether the Uniform Code of Military Justice (UCMJ) should be amended in a way that will 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 (defined as anything that could result in a sentence of a year or more) to a specially designated senior judge advocate (that is, a military lawyer). The secretary’s report is not due until the fall, but in a “shadow report” released last week, a group of prominent military justice scholars endorse the idea as a long-overdue fix to military justice. The report suggests that the change should be implemented promptly via a three-year pilot program.

This change in who decides whether a particular service member should be court-martialed is intended to reform what the shadow report aptly describes as the existing “command-centric” 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. This discretionary power is part-and-parcel of what the U.S. Court of Appeals for the D.C. Circuit has described as the commander’s imperative duty to maintain “discipline and order.”

In military jargon, this power is called “convening authority.” The name derives from the fact that military tribunals are not free-standing courts. Instead, all military tribunals are ad hoc bodies, in which the judge, the lawyers, and the service members who make up the ersatz jury (called the “members”) are literally “convened” together by the commander’s order to try a particular subordinate for a particular crime. Once these participants have reached their verdict and delivered the sentence, their work is done and they disband. No court continues to exist. And ordinarily, and historically, commanders have had the discretion to enforce or disregard the verdict and sentence rendered by the tribunal based on their judgment as to what will best serve their broader mission.

The impetus to reform this practice now is a decade’s worth of controversy over the military’s handling of sexual assault cases. Sen. Kirsten Gillibrand, in particular, deserves credit for elevating sexual assault within the military to the public’s attention. It’s a problem exacerbated by the perception (and all-too-frequent reality) that commanding officers were dismissive of sexual assault allegations against subordinates who were otherwise valuable to the commander’s mission. A series of legislative and regulatory changes to the court-martial system over the past few years has already curtailed or provided additional oversight over commanders’ discretion to bring charges against subordinates accused of sexual assault. This most recent proposal effectively takes the final step by abolishing commander discretion altogether.

At first blush the proposed reform may appear quite modest. Indeed, the shadow report endorsing it suggests that it’s merely the final step in a gradual process of reform. The report highlights how legislative reforms have consistently “reduced commanders’ original sweeping authority over the administration of military justice” and effectively removing that authority altogether now “is a justified incremental step in the same overall direction.”

But it is difficult to overstate what a radical reform to the basic underpinnings and logic of the court-martial system that this seemingly modest reform would be. That is because, at its root, military justice was never about “justice.” Its purpose was to ensure a disciplined chain-of-command that could be relied on to follow orders under fire. And this instrumental view of military justice is baked into its theoretical underpinnings in Anglo-American law. In his “Commentaries on the Laws of England,” William Blackstone wrote that “[t]he necessity of order and discipline in an army is the only thing which can give [military law] countenance.” Justice—and its preoccupations with procedural fairness, victims’ rights, and sentencing proportionality—was historically incidental (at best) to this principal disciplinary purpose.

Up close, this could look pretty ugly. During World War II, when 7 million men and women mobilized to serve in the armed forces from all walks of American life, nearly one in four were subject to some kind of court-martial. And the military justice they encountered bore little semblance to the jury trials they would have been accustomed to back home. Courts-martial were presided over, not by a judge, but by panels of officers. Typically none of them was a lawyer, and all had been hand-selected by the same commander who decided that one of his sad-sack subordinates should be punished in the first place. Indeed, the generations-old joke is that military justice bears the same relationship to actual justice that military music bears to actual music (though this certainly undersells the quality of a lot of military music).

The result of the Greatest Generation’s unhappy experience was the ground-up restructuring of the military justice system that was enacted in 1950 as the UCMJ. Congress has continually revised the UCMJ over the years, and has pursued various tracks of reform that have cumulatively made military justice less and less distinguishable from any other civilian criminal justice system in the United States. It has achieved that by bolstering the pursuit of justice at the expense of commanders’ prerogative discretion to discipline subordinates.

The primary track of these reforms has been the military judiciary. The position of military judge was created in 1950, and courts-martial are now presided over by a single official who decides questions of law. Over the years, military judges were required to be lawyers, were given their own chain-of-command, were afforded various statutory protections to provide a modicum of formal independence, and now have even taken to wearing black judicial robes. Also in 1950, two levels of appellate review were established over courts-martial, including what is now called the Court of Appeals for the Armed Forces, a body of civilian Article I judges whose decisions on questions of military law now enjoy a presumption of deference by the ordinary federal judiciary.

This bolstering of the military judiciary has overall created a reasonably robust check against commanders’ arbitrary severity against their subordinates. But what about the kind of arbitrary leniency that came to the fore after the military’s handling of sexual assault received greater scrutiny? What should be done when a commanding officer elects not to pursue charges against a subordinate, who justice would say deserves to be considered for punishment?

The reform Congress is now contemplating is therefore a reform to whom the law gives prosecutorial discretion. The shadow report argues that it is now appropriate, at least for serious crimes, to sever “the relationship between operational command and the disposition power.” In other words, 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, just in uniform.

The report does not go so far as to endorse the creation of standing military courts. Instead, it says that convening authority (that is, the power to decide to try service members) for sexual assault, or any other serious crimes, should be wielded by a senior judge advocate, who would assume of the role of a single-purpose convening authority. (The report is unclear on whether there would be one single occupant of this role for all of the military, or whether each service or command would have a designated judge advocate.) This single-purpose convening authority would be the rough equivalent of a U.S. attorney and his or her sole responsibility would be to make prosecutorial decisions based on traditional prosecutorial considerations, such as whether there is enough evidence to secure a conviction.

The shadow report is careful to say that the views of commanding officers should not be ignored entirely. It suggests that an accused’s commanding officer should be able to submit written recommendations to this single-purpose convening authority, in which he or she can explain what impact a prosecution is likely to have on “mission readiness, command climate, and unit cohesion.” This written recommendation would be weighed along with written recommendations submitted by any victims or the accused themselves. The key, according to the shadow report, is to reorient the court-martial system away from the “current command-centric system” toward “‘a true judicial system’ for military justice.”

The shadow report addresses a number of the potential logistical and legal problems that this reorientation would likely present. All of these problems, it concludes, are either readily solvable or worth the trade-off. I would suggest, however, that as the secretary prepares the final report to Congress this fall, at least some of these problems should be given a closer look.

For example, on the question of cost and administrative burden, the shadow report suggests that consolidating prosecutorial discretion into a single-purpose convening authority would require “few if any additional requirements for legal personnel.” The report lacks empirical analysis to support this claim, and it is easy to imagine that the staffing needed to achieve the proposed consolidation of convening authority could be quite significant.

This would be particularly so if, as the report suggests, there was a single “purple” judge advocate who presided, not just like a regional U.S. attorney, but like the assistant attorney general for the Criminal Division, wielding convening authority for all the armed services. The workload such an individual would confront is likely to be substantial. For example, a study by the Department of Defense’s Judicial Proceedings Panel of sexual assault cases, identified 963 sexual assault claims serious enough to come to the attention of the military justice system in fiscal 2015 alone. That workload is distributed unevenly across the services, and the Army, due to its far greater size, accounts for half of all such cases. But even if each service had its own single-purpose judge advocate to perform this duty, these judge advocates would each be presented with thousands of serious crime allegations—not only sexual assaults but also a host of other violations—to review annually.

There is no prior experience to draw on for how a single-purpose convening authority would manage such a caseload. The only partial example, which the shadow report mentions in a footnote, is the Office of the Convening Authority that was established within the Office of the Secretary of Defense to administer convening authority for the military commissions in Guantanamo. That experience offers some cause for concern, however. While the Guantanamo military commissions are sui generis for a variety of reasons, the Office of the Convening Authority maintains a staff of 40 full-time personnel even though it has needed to administer only about a dozen cases over the past decade.

As things currently stand in the court-martial system, the review of individual cases by individual commanders is an ancillary duty that is distributed over hundreds of individual commands and made easier by both their physical proximity to and familiarity with the people and places typically involved. Parkinson’s law certainly raises some reason to doubt that the bureaucracy required to consolidate this workload into a single entity or even a handful of service-specific entities will be a model of efficiency.

These workload issues also raise fairness concerns. The shadow report speculates that the proposed consolidation of convening authority “should somewhat reduce case processing times since the decision maker will be an attorney fully and intimately aware of the system and standards that govern charging decisions, instead of having to come up to speed.” But will—or even 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?

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.

After all, the court-martial system—both presently and as imagined—lacks the check of the grand jury. The homologous preliminary hearing system under the UCMJ (called Article 32 hearings) is only advisory. Will this process also have to be reformed? And what of the variety of other responsibilities that convening authority entails, such as the selection of the members, the funding of experts and other attorney resources, the approval of witnesses, the granting of clemency, and so on? If you take away the overriding prerogatives of command that now justify a commander’s exercise of convening authority, what rationale could there possibly be for consolidating such an ungainly mixture of prosecutorial, judicial and policymaking discretion into a new single-purpose convening authority?

Abolishing the command-centric structure of the military justice system may be desirable. But no one should underestimate what a fundamental rethinking of nearly every aspect of the military justice system such a change would entail. The change reopens everything from these more prosaic practicalities to the fundamental question of whether the United States should have a military justice system at all.

In fact, one of the more enlightening aspects of the shadow report is its comparative analysis, looking at how democratic U.S. allies deal with crimes committed by their service members. One of the report’s key findings is that about half of these allies have already adopted a system like the one proposed. But just as notable is its finding that the other half have abolished military trials altogether, including major NATO partners like Germany and France.

It is easy to forget, given their settled usage, that military tribunals are conspicuously absent from the Constitution. Their only oblique sanction derives from an exception to the Fifth Amendment’s Grand Jury Clause, which as a textual matter applies only, by its terms, “in time of war or public danger.” It was not until the middle of the 19th century that the Supreme Court upheld the constitutionality of military tribunals on the strength of Congress’s power “to make Rules for the Government and Regulation of the land and naval Forces,” the so-called Make Rules Clause (Article I § 8, cl. 14).

The rationale for reading the Make Rules Clause as implicitly sanctioning the operation of a rival federal court system rested then and now on the fact that military trials are a traditional extension of the military’s broader authority to enforce good order and discipline. Said more crassly, if a commanding officer historically had the right to flog or even summarily execute misbehaving subordinates, then tempering that command discipline with the formalities of a pseudo-judicial process is permissible. As the Supreme Court reiterated soon after the passage of the UCMJ:

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 performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served.

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Court-martial jurisdiction sprang from the belief that, within the military ranks, there is need for a prompt, ready-at-hand means of compelling obedience and order. … [Where Army discipline will not be improved], considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.

The shadow report is dismissive of the idea that shifting away from command-centric military justice poses constitutional concerns. Drawing on a few narrow exceptions and informal practices that exist under current law, under which convening authority can occasionally be exercised by individuals outside a particular service member’s chain-of-command, the report asserts “there can be no objection in principle to that decision being made by an officer who has no operational role at all.” In other words, because it is already possible for convening authority to be given to noncommanders, there can be no principled objection to taking convening authority away from commanders entirely and giving it to a single-purpose judge advocate.

But the principled objection to generalizing a handful of narrow exceptions into the rule should be obvious and may be constitutionally significant: If the lodestar of a decision to punish someone is not a consideration of discipline and of maintaining obedience and order, but instead is a military lawyer’s abstract evaluation of the interests of justice, why should service members—who already sacrifice so much in the service of the country—lose their rights to presentment before a grand jury, trial before an impartial Article III judge and judgment by a jury of their peers?

The question of why and when it is constitutional to deny service members their constitutional trial rights has bedeviled the Supreme Court over the years, even with the command-centric rationale of good order and discipline firmly in place. In the late 1960s, the court attempted to reconcile service members’ rights as citizens with the military disciplinary interest by limiting court-martial jurisdiction to “service-connected” crimes. The court ultimately abandoned the effort as unworkable in the 1980s. But if the military justice system dispenses with any pretense that its mission is disciplinary for those accused of serious crimes, it is also dispensing with the settled rationale for denying service members myriad constitutional rights and protections.

To be sure, over the past 50 years, the Supreme Court has been increasingly deferential to Congress’s power under the Make Rules Clause, when deciding what rights service members should and should not have. Only two terms ago, the court held that the modern military justice system stands on equal footing with state and territorial courts as a bona fide judicial system. But the reforms contemplated by the National Defense Authorization Act and endorsed by the shadow report, at bottom, entail military officers overtly asserting the prerogative to administer justice under federal law and to adjudicate guilt or innocence untethered from any countervailing considerations about what is necessary to maintain good order and discipline within the chain-of-command.

While the trend of the Supreme Court’s jurisprudence suggests that any law in this area is likely to be upheld, such an unapologetic rivaling of the federal court system’s core function—justice— may just be a bridge too far. And even if the court does not ultimately strike down the proposed change as an unconstitutional encroachment into the federal judicial power, reorienting the military justice system away from its disciplinary rationale is likely to reopen otherwise settled questions of military law in unpredictable ways.

Perhaps that risk and the associated costs are worth it to stamp out the lingering unfairnesses and inefficiencies of the command-centric model of military justice. The modern court-martial system, due both to procedural changes and to the considerable professionalism of those who implement it, has become much fairer and more regular than the drumhead courts that led to the enactment of the UCMJ. It may therefore 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 is well advised 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.

As Gene Fidell, one of the authors of the shadow report, aptly described it, the modern military justice has become a Rube Goldberg contraption of statutes and regulations that have been awkwardly layered on top of one another in the 70 years since the enactment of the UCMJ. 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. Better then to be clear-eyed that doing so is not a modest tweak to an otherwise stable system and that such a fundamental change requires a thoughtful reassessment of what purposes the military justice system should serve in the 21st century and how those goals can best be achieved.