Command-centric justice defended

LTG Thomas W. Spoehr,
U.S. Army (Ret)

Retired Lieutenant General Thomas W. Spoehr of the U.S. Army (now at the Heritage Foundation) has written a column for The National Interest seeking to explain why commanders need to keep the power to dispose of charges, a power American military justice inherited from the system that existed under George III. He claims that giving that power to lawyers outside the chain of command would backfire. 

The Editor urges visitors to Global Military Justice Reform to take a few moments to study the column. Come back when you've done that.

[Pause]

Okay, now that you've read LTG Spoehr's column, let's consider his claims. He makes three. The Editor's comments appear in italics.

1. It would weaken the military overall by stripping commanding officers of the ability to enforce good order and discipline for personnel under their command. 

A commanding officer in the military has a wide range of tools available to enforce good order and discipline. These tools include mild administrative remedies, such as informal counseling, formal counseling, executive officer inquiry, and non-judicial punishment under Article 15 of the Uniform Code of Military Justice. This does not show the need to keep in the commander's hands the power to dispose of serious criminal charges.

These administrative tools allow for flexible, quick, and effective discipline to address misbehavior or lack of attention to detail by those who violate rules. They help the commander show the troops that there are consequences, immediate and swift, for poor decisions or performance and minor misdeeds. Other than for non-judicial punishment (which is confined to minor offenses), the military justice system is not swift. Ask anyone. The proposal to shift the disposition power would keep minor offenses in the commander's hands, where they belong. In addition, sending a case to an independent prosecutor for criminal proceedings also sends a message. Beyond this, if the case is doubtful, and results in an acquittal or insubstantial penalty, the commander looks silly if she has the disposition power, whereas the commander does not look silly if the referral is done by someone else. Which is better?

The ultimate administrative remedy is the ability to “fire” a service member for misconduct. The power to send a soldier, sailor, airman, or Marine to an Administrative Discharge Board (referred to as an “Admin Board” in the military) sends a clear message to all those who serve under the commanding officer: There will be consequences for misconduct or neglect of duty. This sounds like it concerns minor disciplinary issues, not serious criminal conduct.

The ultimate remedy for any commanding officer is the power to refer a suspected criminal in their unit to a court-martial. Taking that power away from commanding officers eliminates an indispensable authority that cannot be delegated or transferred to another—at least not if we are to demand accountability from commanders for prosecuting and preventing sexual assaults and other serious crimes. Of course something is wrong if a unit is rife with serious crime, and higher echelons would be right to be concerned, but it does not follow that a commander must have the disposition power for serious criminal offenses (or, for that matter, the power to pick the court-martial members, as our system currently provides). If a commander acts promptly and decisively to refer serious criminal charges to an independent prosecutor, and that prosecutor promptly and successfully tries those cases that merit prosecution, the commander cannot be faulted -- provided she has done all of the many things that are open to a commander to establish and maintain a law-abiding and productive command environment.

The first black-letter assertion in LTG Spoehr's column is a conclusion. His explanation doesn't support it. 

2. Removing this power from commanding officers would weaken the military’s unique criminal justice system. 

Unlike the civilian criminal justice system, where prosecutors or police file charges against an accused in a standing court, the military justice system has no standing courts and must create one for each individual case. Courts-martial are “created” by the power vested in a convening authority. The convening authority creates a court-martial by issuing a convening order. This assumes nothing can be done about the ad hoc nature of American courts-martial. Congress could change that, as other countries have done. In any event, the ad hoc nature of our current system (another legacy of George III) is irrelevant to who should have disposition authority over major crimes.

The convening authority has a role that cannot be reduced to either a prosecutor nor judge. This authority assigns military personnel to be members of a court-martial, decides on the charges to be filed, decides whether to use non-judicial punishment or an administrative proceeding in lieu of a trial, approves or rejects requests for expert witnesses, and accepts plea agreements. The commander's power to pick the members of a court-martial has been cited repeatedly as a serious weakness of the system, not a strength. Commanders also have no business making decisions on such matters as requests for experts. Trained prosecutors obviously would be better suited to negotiating plea agreements. This paragraph of LTG Spoehr's column does not support his thesis.

In contrast, civilian prosecutors decide only whom to investigate, whom to charge, and what to charge. The reason for the difference is that civilian prosecutors are not responsible for the defendant’s training, good order, and discipline in the way that a military commander is. Strip commanders of the ability to refer cases to a court-martial, and you send a loud and clear message to troops under her command that she does not really command them, in the full sense of the word.  This is a conclusion, not an empirical claim. The commander's responsibility for training and good order has nothing to do with who should decide whether a Soldier who rapes someone or murders a cab driver downtown should be prosecuted.

LTG Spoehr's second black-letter assertion is conclusory and the few specifics he relies on do not prove his overall claim that retention of the current system for the disposition of serious criminal charges is better than the independent-prosecution model the UK, Canada, Ireland, Australia, New Zealand, South Africa, Israel, Brazil and other countries have embraced -- without detriment to their military effectiveness. 

3. If commanders are stripped of convening authority, fewer cases would go to a court-martial, including sexual assault cases. 

As a non-lawyer and convening authority, I was not bound by the ethics rules that all lawyers are required to follow. When I believed that there was probable cause that one of my subordinates committed a crime under the Uniform Code of Military Justice, I could refer that soldier to a court-martial. And I did several times in my career. Why? To hold them accountable for their suspected criminal misconduct. This paragraph is an "own goal." For prosecution decisions to be made by an official who is unconstrained by the professional responsibility rules is not something to write home about. It's a flaw to which thoughtful legal scholars with military chops have pointed, not a strength.

Whether the prosecutor proved the case beyond a reasonable doubt was beside the point. I had a duty to enforce good order and discipline. Sending a soldier to a court-martial when he was suspected of a crime sent a loud and clear message to my troops that I was in command, and that I would not tolerate misconduct in my ranks. "Beside the point"? This is like the thirteenth stroke of a clock -- questionable in itself and casting doubt on all that has gone before. One would have thought a commander would have the profoundest interest in knowing the outcome of a case she referred for trial. This paragraph suggests that, as a convening authority, LTG Spoehr was more focused on sending messages than on doing justice (or conserving resources). Being able to put a case in the hands of an appropriately zealous military prosecutor would equally well send a message that the commander will not tolerate misconduct in her ranks.

LTG Spoehr's third black-letter claim is unsupported by his explanation. Worse yet, it presumes that the purpose of the proposed reform, widely adopted around the world, is simply to drive up the number of cases. It's not. The purpose is to have a system for the disposition of major charges that fosters public confidence by relying on professionals with serious legal training who are outside the chain of command and hence less susceptible to conflicting pulls on the exercise of their discretion. Commanders would still have a voice, even in major cases, since a reformed system could (and should) afford them the right to communicate their views as to the proper disposition of any particular case -- views that should be made available to the accused and victim(s) for response.

Has LTG Spoehr persuaded you?