Tuesday, April 29, 2014

Gambling in Casablanca?

The Judge Advocates General
and their clients testify before the
Senate Armed Services Committee
CAAFlog, an unofficial blog co-sponsored by the National Institute of Military Justice and devoted to close examination of American military justice, especially at the appellate level, has this post by Capt Zachary D Spilman of the Marine Corps. He maintains that, in light of a recent spate of cases, there is an appearance of bias in the fact that the Judge Advocate General of the Air Force lopsidedly uses his power to certify cases to the U.S. Court of Appeals for the Armed Forces for the benefit of the prosecution rather than the defense. The certifications are "suspiciously one-sided" and "uncertified cases, when juxtaposed with the cases that were certified, are evidence of a pro-prosecution bias in the certification process employed by the Judge Advocate General of the Air Force" (emphasis added).

Thinking about this recent post about the Judge Advocate General of the Canadian Forces, should anyone be surprised if holders of these offices act (or appear to act) as partisans of the management rather than as impartial decision makers exercising a judicial function? Isn't the real issue not whether the certification power is being used asymmetrically (or looks that way), or whether, as Capt Spilman notes, the process is insufficiently transparent and adversarial, but whether the U.S. service TJAGs should have such a power at all? Whatever sense it made when the UCMJ was enacted in 1950, times have changed and the certification power not only does nothing today to foster public confidence in the administration of justice, but, as he suggests, detracts from it.

This structural issue merits consideration by DoD's Military Justice Review Group.


  1. I commented on this issue, reference to this thought at CAAFLog.
    It seems to me that removing the certification power and giving the government the power to petition for review in the same manner as the appellant does not damage the system, notions of justice and fair process, and frankly it seems to me removes one of several nits where the TJAGs are perceived as biased.

  2. If Congress is in a mood to reform the appellate process, why not simply give both sides an appeal as of right in all cases?


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