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?
Under current procedures, DoJ functions on MCM changes, as with all proposed Executive Orders, for both "form and legality" before they are submitted to the President for signature. 1 CFR § 19.2(b). Having a Justice Department representative involved in the process earlier on makes sense not only to avoid last-minute delays but also because a proposal may raise criminal justice policy issues that transcend "legality." In addition to letting Justice have a seat at the table (without prejudice to later DoJ scrutiny under Pt. 19), why not include a private practitioner with criminal (and perhaps military) justice experience? This legal Mount Rushmore can accommodate another head.
ReplyDeleteExactly Gene. Why not someone such as someone from the NIMJ or NACDL's Military Law Committee as the "private practitioner?" DISCLOSURE: I'm the Co-Chair of the NACDL's Military Law Committee.
ReplyDelete