Friday, May 17, 2019

In defense of commander control of military justice

From Unity of Command: Authority and Responsibility Over Military Justice, by U.S. Marine Corps Reserve judge advocate Major Lindsay L. Rodman, in the current issue of Joint Forces Quarterly (at p. 77; footnotes omitted):
It is worth noting, however, that justice is not compromised by retaining the commander’s authority over military justice. The commander is in the best position, from the perspective of all stakeholders in the criminal process, to oversee military justice. Commanders have no incentive to condone criminality or harbor those who commit misconduct. Lack of discipline is toxic to mission accomplishment. At the same time, commanders want justice for their troops and have an incentive to ensure that proceedings are fair. Commanders do not have an incentive to railroad innocent Servicemembers; they have a strong incentive to take care of their troops. For victims of crimes, this means providing additional resources to help with recovery, both mental and physical. 
Especially with respect to sexual assault cases, the military has developed in many areas, with the help of some legislation, pressure from leadership in the White House and Congress, and consultation with advocacy organizations. The military has vastly improved its ability to support victims in the past few years, including the advent of the victims’ legal counsel and efforts to incorporate new methods into the victim support processes, such as counseling and workplace support. There is a need for culture change within the military to address sexual assault. But removing the commander from disciplinary decisions is not the way to achieve culture change. As the RSP [Response Systems to Adult Sexual Assault Crimes Panel] stated, “Historically, commanders have proved essential in leading organizational responses during periods of military cultural transition, as the Services have relied on them to set and enforce standards and effect change among subordinates under their command.”
Especially in the area of victims’ needs and rights, it is imperative that commanders stay involved. Commanders will be, and should be, held accountable for ensuring, first, that the rate of sexual assault decreases (that is, fewer victims are created), and, second, that victims are well supported if a sexual assault should occur. A commander who is powerless over the justice process is also powerless to ensure that a victim’s needs and input are taken into consideration.
Rejecting the experience of other democracies, the author writes (at p. 76):
There are many reasons that other countries have modified the commander’s role regarding military justice. The primary reason is lack of capacity and professional capability in their court-martial systems. Smaller militaries cannot achieve a critical mass of experienced and professional litigators to competently try complex cases. Lawyers need years of trying a variety of cases to become well-prepared for higher stakes cases. In other countries, justice is better served by letting civilian authorities handle those cases. This is a problem that the U.S. military has addressed by working hard over the past decade to better professionalize and train its litigators, including a requirement that complex cases be tried by specially qualified prosecutors.
This is an odd argument for keeping the disposition power in commander's hands: other countries have too few cases to amass the necessary litigation expertise among their uniformed lawyers, so we are going to keep the charging power in the hands of officials who have no professional legal training. Seems like a non sequitur, no? Moving right along (also at p. 76):
There is also a pragmatic utility to ensuring that commanders have control over the discipline of their units and do not have to refer to other officers, other lawyers, or other units to make swift determinations that best meet the needs of the mission. Countries that do not find themselves fighting in similar environments consistently may not prioritize these mission effectiveness considerations to the same extent as the United States.
The article cites no case in which a commander's disposition of a major battlespace offense was afforded lower priority because of operational exigencies. Nor is it at all realistic to believe that a reformed system in which uniformed lawyers had charging power for serious offenses would put trials ahead of operational needs. The prioritization claim seems, therefore, to be a mere debater's point. Additionally, when it comes to major offenses, commanders are hardly at liberty, as the first quoted sentence implies, to dispense with legal advice requirements in a combat environment.

The author concludes (at p. 78):
Legislation that would further distance commanders from their command responsibility will degrade discipline, decrease effectiveness, and impair command response to victim needs and enforcement of victim rights. Future legislative, executive, and regulatory efforts should adopt a harmonized approach to the codification of principles consistent with both command responsibility and the fundamental principle of unity of command. The reforms made to the military justice system in this last round of litigation [sic; presumably should read "legislation"] are truly transformative. They promise to professionalize the military justice system, bringing it further in line with civilian practice without sacrificing the pivotal role of the commander.
What in the Military Justice Act of 2016 "promises to professionalize" the military justice system? What was unprofessional about it before 1 January 2019? Has the author made a persuasive case that non-lawyer commanders must have the final word on who gets charged for what when it comes to serious crimes that go beyond minor disciplinary matters, and get to pick the members of the court-martial jury? These powers transcend "oversight" (p. 72; see also p. 77 ("oversee")) of the system. The author writes (at p. 72): "If commanders are accountable for what happens in their units—that is, whether their troops are following orders and maintaining discipline—then they must have the concomitant authority and responsibility to address disciplinary infractions." Is murder or rape the kind of thing we think of as a "disciplinary infraction"? Should sex-offense and related culture-change concerns drive congressional decision making on structural issues that apply to all major crimes? Why is the acquittal rate in sex cases so high? Can't a system in which the serious-offense disposition power and jury selection are taken away from commanders properly address victims' needs? In the end, isn't it enough that commanders be encouraged to express their views about the disposition of major offenses to judges advocates with charging power who are outside the chain of command?

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