Who should get to revise the Manual for Courts-Martial (MCM), that well-thumbed bible of American military trial practice?
It is hard to overstate the importance of this manual on the practice of criminal law in American military courts. Consider size alone: the UCMJ statute is under 40 pages but the MCM is 884.
UCMJ article 36 allows the president to prescribe rules for military courts. So far presidents have done this through the Defense Department with a group called the Joint Service Committee on Military Justice. This has given DoD a monopoly on revising the MCM, and the institutional inertia to keep things this way. Other agencies can comment but are, with a minor exception, excluded from committee membership.
Look at the MCM cover on the left. The Department of Defense seal suggests, "we got this!"
Perhaps a manual on military justice should hear from both departments of "military" and "justice." It is especially important to have Justice Department input since Article 36 also requires the president to make court-martial rules consistent with rules of federal district courts whenever possible.
My Mount Rushmore team to revise the MCM:
- a representative from each of the four services
- a Department of Homeland Security representative for the Coast Guard
- a judge from the Court of Appeals for the Armed Forces (non-voting)
- a civilian representative with extensive experience litigating criminal cases in federal courts (DoJ pick)
- a senior-status federal district court judge (DoJ pick)
- a State Department representative (to monitor military justice's consistency with American treaty obligations)
Whom would you choose?