Thursday, August 24, 2017

Prof. Schlueter analyzes the Military Justice Act of 2016

Prof. David A. Schlueter 
One of the country's leading military justice scholars, Prof. David A. Schlueter of St. Mary's University School of Law, has just published an exhaustive 158-page analysis of the Military Justice Act of 2016. It can be found here. There is a great deal packed into the article, but two initial comments come to mind:

First, as Global Military Justice Reform has noted, Congress held no hearings on the bill that grew out of and drew heavily on the work of the Pentagon's Military Justice Review Group. Here is what Prof. Schlueter writes (p. 20):
"Congress considered the recommended changes, without holding any formal hearings on the legislation.90
"90. The Group’s Report explains that extensive consultations were held with a wide range of groups interested in military justice or with those who had prior experience in the system. The public was invited to submit suggestions to the Group for its consideration. Apparently, Congress was content that the DoD had sufficiently vetted the proposals and believed that hearings would not provide any additional benefit, except for publicity purposes."
More needs to be said, and perhaps other scholars who examine the law will do so and be more judgmental.

Under OMB rules, the Military Justice Review Group seemingly could not circulate a draft of proposed legislation to the public before anything had been submitted to Congress. There were numerous briefings and suggestions were solicited, but no one outside the government was, so far as is known, afforded an opportunity to comment on a draft of what eventually went to Congress. Then the train left the station.

The Review Group of course cannot be faulted for Congress's abject failure to involve the public (quite the reverse, it made substantial outreach efforts to let interested parties know how it was proceeding and provide a sense of where it was headed), but Congress can and should be faulted. Whatever "vetting" took place cannot plausibly be considered a substitute for meaningful legislative hearings. As this blog noted in vain on December 28, 2015,
One now must hope for open, meaningful, unhurried hearings before the House and Senate Armed Services Committees. The proposal unveiled today should be the beginning of the legislative process, not the end.
The fact that Congress wound up not accepting everything DoD proposed does not answer the mail on this point since the process that led to those alterations was itself not transparent. It is a pity that the legislative process functioned so poorly, in terms of public participation, on legislation this important. As this blog observed on May 26, 2016,
Shame on Congress for conducting the public's business in this fashion on an issue as important as military justice. "Public Law" is not a figure of speech. It is difficult to think of a more effective -- or more profoundly scandalous -- way to erode public confidence in the administration of military justice than to frame legislation, effectively, in secret.
Second, on the provision regarding undefined minimum tours (Pentagon-speak for "terms of office") for military judges, Prof. Schlueter writes (p. 38):
It is hard to imagine that an appellate court would reverse a court-martial conviction because a military judge was reassigned before the period of the tour ended. An accused is not entitled to any particular military judge. Thus, an accused would not have standing to complain that the military judge was reassigned before her tour as a judge was scheduled to end.
If this is so, hasn't Congress wasted its time in mandating trompe l'oeil minimum tours? Practitioners should not treat Prof. Schlueter's reading as the last word. Those involved in the development of implementing regulations should include some teeth so the legislation has real meaning from the standpoint of ensuring judicial independence.

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