Who should have the charging power?

George III

On April 24, 2017, the editor wrote a post for the Just Security blog titled U.S. Military Justice and "Operational Mishaps": a Primer. On May 31, 2017, a senior Army judge advocate, writing unofficially, responded with this post on another blog. From his conclusion:

[I]t is critical that U.S. commanders continue to hold prosecutorial discretion over operational offenses because they are best qualified to make those prosecutorial judgments. The role of the Military Lawyer in this decision making process is profound and fundamental. Commanders, unsurprisingly, are mission focused, and lawyers play an indispensable role in ensuring the commander appropriately considers the Constitutional Rights of our service-members in making a prosecutorial decision. Conversely, command involvement ensures prosecutorial decisions are not made devoid of operational considerations which could inadvertently impact world-wide U.S. military operations. Together the Commander/Lawyer relationship best balances the rights of the Soldier with the demands of our national defense. [Emphasis added.]

There's no need to rehash the unresolved debate about whether the military justice (including the charging power) must be (as the Army itself puts it) "owned and operated" by commanders. We'll see how events unfold in Congress in the coming years, and whether our country remains content with a system the central feature of which is straight out of the 18th century or joins other liberal democracies such as the UK, Canada, Ireland, Australia, New Zealand and Israel in abandoning the vestigial cornerstone of George III's Articles of War.

Contrary to the conclusion quoted above, putting the charging power in the hands of lawyers who are independent of the chain of command does not mean commanders will have no influence over charging; they simply won't have the whip hand. If a commander has an opinion about how a particular offense should be disposed of in light of operational considerations, all she would need to do is send a memorandum to the independent official who has the disposition power, setting forth her opinion and its basis (and send a copy to defense counsel). Many cases, of course, such as the disturbingly steady flow of sex offenses (often involving child victims), have little or no operational dimension.