Prof. Hansen on tenure for military judges

Prof. Victor M. Hansen

New England Law Associate Dean and Professor Victor M. Hansen has written an article on The Impact of Military Justice Reforms on the Law of Armed Conflict: How to Avoid Unintended Consequences, 21 Mich. St. Int'l L. Rev. 229 (2013). It is mostly concerned with other proposed reforms, but includes the following on the subject of tenure for military judges:

One final reform that has been a feature in the reforms in both Canada and the United Kingdom is to give the military judge a greater degree of independence from the chain of command and the executive. In the United States there have been calls for some type of tenure for military judges. Reform[er]s contend that tenure is needed to give the military judge the independence needed to decide issues and cases without fear of professional retribution by the command or the executive.

It is hard to see how an independent military judiciary would adversely impact the commander’s ability to legitimately maintain order and discipline. Military discipline must strike the right balance between maintaining discipline and order and preserving fundamental fairness for the accused service member. If the commander can manipulate the system by sanctioning or adversely affecting a military judge’s career because the commander disagrees with the judge’s decision in a particular case, it will have a chilling effect on judicial independence and undermine confidence in the system. If there is widespread distrust of military justice in a unit, that distrust can undermine discipline in the same way as a lax command climate would. Commanders do not lose any of their legitimate authority when military judges are given meaningful independence and are free to decide issues and cases without undue influence from the commander. Reforms that provide protection and independence for military judges do not undermine command responsibility in any appreciable manner. [Pp. 270-71.]

The current state of play in the United States is that neither the Constitution nor any Act of Congress confers fixed terms of office on military trial and intermediate appellate judges, and only Army and Coast Guard judges have fixed terms of any duration (three years, and even then with loopholes). Judges in the Navy, Marine Corps and Air Force serve on an at-will basis, being subject to transfer from their judicial assignment at any time. Thus, co-accuseds who happen to be members of different branches might come before judges with different terms-of-office arrangements. Moreover, since military trial judges can preside over cases from different branches from their own, even personnel in branches whose judges have fixed terms can be tried by judges without fixed terms, and vice versa. Make sense?

Here's one reform that everyone can get behind. Congress? DoD? White House? Anybody home?