An Idea: A Court-Martial Command
Nothing in the UCMJ prevents the creation of a military command whose sole function would be to make charging decisions. The next president could direct one of the service secretaries to create a Court-Martial Command and designate it as a general court-martial convening authority under Article 22(a)(8) of the UCMJ (10 U.S.C. § 828(a)(8)). That new command could be created with a sunset date so the effort could be a pilot project for what [Sen. Kirsten] Gillibrand’s bill would do on a permanent basis.
The commander of this new command would be a senior judge advocate (i.e., a uniformed lawyer) outside the normal chain of command, and with a nonrenewable fixed term of office to ensure decisional independence. That officer would report directly to the service secretary.
The president also could prescribe categories of charges that can be referred for trial only by the Court-Martial Command. These could include the type of offense, the maximum permissible punishment, and the accused’s officer/enlisted status and pay grade. This can be done under current law. Rule 401(a) of the presidentially prescribed Rules for Courts-Martial provides that “[a] superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases, types of cases, or generally.”
Actual prosecutions would continue to be conducted by JAG officers in the field, so the commander of the new command would never become an “accuser.” In addition to putting charging decisions, which are quintessentially lawyers’ work, in the hands of a lawyer, this arrangement would reduce the risk of unlawful command influence, to which the current system has long been susceptible. A suspect’s regular command could weigh in with a recommendation reflecting any special disciplinary considerations that might affect the disposition decision. The accused and any complainant could also comment and respond to the regular command’s recommendation.
Nearly 50 years ago, a respected member of the Senate, Birch Bayh of Indiana, proposed legislation that would have created a Court-Martial Command. His Military Justice Act of 1971 (and 1973) sank without a trace, other than long-forgotten references in the Congressional Record and law reviews. A similar measure offered by Representative. Charles Bennett of Florida met a similar fate.
After a half-century, it’s time to bite this bullet. If Congress won’t do it, the next president should at least give it a try. Public confidence in the administration of military justice is not a given. It’s been tested sorely in recent times. Decisive change cannot happen without decisive leadership.
Section 540F of the FY20 NDAA calls for a study of a possible statutory pilot project. See http://globalmjreform.blogspot.com/2020/02/540f.html.
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