Because of how the report was saved, we cannot copy and paste excerpts. The parts that attempt to defend the current commander-owned-and-operated system (that's the Army's phrase) can be found on pp. 5-6 and 13-14. The report asserts (pp. 6, 11) that recent systemic reforms are "unparalleled in any other jurisdiction." Unparalleled? What about the fact that democratic countries such as the UK, Canada, Ireland, South Africa, Australia and New Zealand have all shifted the disposition power to prosecutors outside the chain of command?
A military justice system in which commanders make charging decisions for major criminal offenses is not independent. Human rights norms require that courts be independent as well as impartial. Someone might explain this to Sen. McSally, because the task force's report certainly doesn't.
And let's not even start* about commanders picking jurors (er, panel members).
* Actually, let's. The Editor does not believe that commanders need to have disposition power over major crimes (i.e., violations of the UCMJ's "punitive articles" that rise above the minor-disciplinary-matter category) in order to be able to lead their units and set the norms of conduct required to achieve the mission. Congress sets those norms when it enacts punitive articles. After all, it is the entity vested by "We, the People" with "mak[ing] rules for the government and regulation of the land and naval forces." Military personnel have notice of what is criminal and what is not, just as everyone in the country is on notice of the federal crimes set forth in title 18, U.S. Code. Indeed, the UCMJ goes a step further and requires that personnel be affirmatively informed of what misconduct is criminal. Federal and state criminal law do not require this.
Now for the part that led the Editor to add this morning-after footnote.
Commander selection of jurors is the 13th stroke of the clock: Questionable in itself and casting doubt on all that has gone before. It is not necessary (or appropriate) for setting norms. It also is ludicrous given the fact that few general court-martial convening authorities can claim personal acquaintance with the officers and enlisted personnel who are eligible to serve as panel members. Worse yet, the case law of the U.S. Court of Appeals for the Armed Forces has made a mockery of the criteria Congress prescribed in Art. 25, UCMJ, by accepting any prosecution cock and bull story as proof that the accused has not been prejudiced by a blatant violation of those criteria.
Allowing commanders to continue to be jury commissioners (as well as district attorneys) can be explained only as a means of control, which is to say, as a dilution of court-martial independence.
The selection and disposition powers are two sides of the same coin, and their cumulative/synergistic effect has to be acknowledged. Keeping the jury-selection power in commanders' hands makes it clearer--if greater clarity were needed--that what defenders of the status quo, such as the task force, wish to preserve at all costs is control over the administration of justice. Which brings us full circle: the armed forces have had years and years to fix these critical parts of the military justice system. They have failed, as the Pentagon's own data show year in and year out. The problem is systemic, not one of providing a little more training (law school takes three years) or trying to achieve greater uniformity in decision making.
The required systemic fixes could not be more obvious: relieve commanders of disposition power over major offenses and liberate them from the charade of pretending to be jury commissioners. Either power is, by contemporary standards, indefensible; together, they are preposterous.
No comments:
Post a Comment
Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).