Monday, January 13, 2014

Department of Unfinished Business: Military Judicial Terms of Office

Sometimes reading in one field can be thought-provoking in a seemingly unrelated field. In this vein, my mind turned to Military Justice the other day when, preparing for my Federal Indian Law course, I came across the following in a report by the Indian Law Resource Center, Restoring Safety to Native Women and Girls and Strengthening Native Nations: A Report on Tribal Capacity for Enhanced Sentencing and Restored Criminal Jurisdiction (Fall 2013):

"The length of judicial terms of office varies widely among tribal court systems. Of the twelve tribes surveyed, one indicated a term as short as one year for associate justices, and two indicated that they have no defined terms of office. The Navajo Nation has a two-year probationary period after which the Judicial Committee of the Navajo Nation Council can recommend a permanent appointment until the judge is 70. Most other tribal court judges serve terms of three to six years. Many tribes have different term lengths for different types of judges or courts." Id. at 80 & nn.526-30 (footnotes omitted).

The 566 federally-acknowledged tribes are entitled to maintain court systems, and roughly half do so. Many tribes are working to improve their judiciaries, and tribal judicial independence has unfortunately been an issue from time to time over the years.

Given the varied tribal judicial terms of office arrangements described above, what is the situation in the United States armed forces? The Supreme Court held in Weiss v. United States, 510 U.S. 163 (1994), that the Constitution does not require military judges to have the protection of fixed terms of office (of any duration). Nothing in the UCMJ provides fixed terms for trial or appellate military judges. The Army and the Coast Guard years ago gave their judges three-year terms by regulation, while judges in the Navy, Marine Corps and Air Force continue to serve on an at-will basis. Significantly, judges in one branch can and do preside over trials of members of other branches.

The current military judicial tenure hodgepodge is indefensible.

Now back to Indian tribes. They enjoy sovereign rights. Each is independent, with its own laws, so the inter-tribal variation indicated above is not surprising. The armed forces, however, are all subject to the same Uniform Code of Military Justice. Numerous countries with military justice systems have recognized the connection between terms of office and judicial independence.

Isn't it time Congress fixed this aspect of our system? Until it does, our system merits three Georges.

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