Friday, January 11, 2019

Chief Gallagher's case and commander-centric military justice

Former New York police commissioner Bernard B. Kerik and Manhattan private practitioner Timothy C. Parlatore have written this critique of commander-centric charging under the Uniform Code of Military Justice in the context of the case of SEALs Chief Petty Officer Edward Gallagher. Making common cause with Sen. Kirsten E. Giilibrand (D-NY), they write:
. . . A feature, unique to U.S. military courts alone, whereby the commander exercises almost unfettered control over the criminal prosecution of his or her subordinates. 
Imagine in any other context, a person’s employer being the sole decision maker of whether they will be charged with one or more criminal offenses. Imagine further, that this employer is not a lawyer and has no experience as a criminal investigator. While they are advised by lawyers and investigators, ultimately, they can choose to reject that advice and either drop charges against someone who appears to be guilty, or worse, pursue charges against an employee, even though investigators have determined that there was no evidence of guilt. Imagine even further that the prosecutor and all the members of the jury also work for this same employer. Sound far-fetched? It is not; it has been happening for hundreds of years in the United States military.
Under the Uniform Code of Military Justice, decisions to prosecute felony cases are not made by professional prosecutors, but rather by Admirals and Generals, whose primary concern is in the best interest of the unit, and quite often, in the best interest of their own careers. Oftentimes, the accused, the witnesses, or even the victim, all work for that same General or Admiral. In their role of overseeing criminal prosecutions, these Generals or Admirals are called the “convening authority.”
The authors' claim that commander-centric charging is unique to the UCMJ is incorrect. That it should be abandoned--as numerous other democratic countries have done--is not. Query: will conservative federal legislators add their support to Sen. Gillibrand's proposed Military Justice Improvement Act? Rep. Duncan D. Hunter (R-CA) has written to President Donald J. Trump concerning Chief Gallagher's conditions of pretrial confinement. Rep. Hunter himself is facing federal criminal charges. (He was re-elected in 2018.)

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