Comparative systems subcommittee report issued (and don't skip the dissent)

The Comparative Systems Subcommittee of the Response to Adult Sexual Assault Crimes Panel has released its final report. It can be found here, on the panel's website. The subcommittee is chaired by Professor and Academic Dean Elizabeth L. Hillman of Hastings College of the Law. The full panel's next public meeting will be held on June 16 at the United States District Court for the Southern District of New York.

The report includes a separate statement (a dissent, really) by retired Colonels Lawrence J. Morris of the U.S. Army and Dawn Scholz of the U.S. Air Force begins at p. 239. In the course of a larger discussion of the subcommittee's proposal to require that Article 32 investigations be conducted by military judges, they refer to three-year tour length as "soft tenure." P. 243 & n.1138 (citing Request for Information 147(c)). RFI 147(c) asked "How long do [military judges] serve as military judges?" That is a different question from "How long is the term of office for military judges?" The services' April 11, 2014 responses can be found here, and are revealing. They speak, variously, of how long some judges actually happen to serve, general rules, exceptions, typical tours, minimum periods, terms that may be curtailed or extended, terms that vary from one judicial duty station to another, back-to-back and non-back-to-back tours, follow-on tours that may or may not happen, normal personnel assignment processes, the needs of the service and officers' career development. The results are neither uniform across the services nor sufficient.

"Soft tenure" obscures the difference between "tour length" and "fixed term." The two are distinct, as the Army and Coast Guard belatedly recognized years ago when they instituted explicit terms of office for military trial and appellate judges -- something the Air Force, Navy and Marine Corps astoundingly still refuse to do. Nor are short renewable terms sufficient to ensure independence. That's why legislation or a Manual change mandating uniform nonrenewable lengthy terms is required.