Who's on first?

Global Military Justice Reform contributor Commander (ret) Philip D. Cave writes in The Hill about pending issues regarding the disposition of charges and who should pick court-martial panel members. He cautions against misreading judicial precedents as if they foreclosed legislative action. Excerpt:

Since Solorio, court-martial jurisdiction over the person is based only on their status as a member of the armed forces — nothing more. Neither O’Callahan nor Solorio gave or took authority from the commander to prosecute. The issue was about who was charged, not who did the charging. Congress chose to make personal status a jurisdictional requirement, and nothing in the Military Justice Improvement and Increasing Prevention Act will change that. The bill puts the discussion and decision of “who” on the floor for debate and potential adoption. Regardless of the outcome, the courts will defer to Congress.

Separately, one of two significant concerns with the proposed legislation is the failure to address who appoints the “jury” members. The military calls the jury a “panel of members,” yet a panel discusses and decides a case similar to a jury in federal or state court. The commander appoints the initial pool of members who sit to determine guilt and a sentence — the commander influences who sits on the jury. You might say this is the home team manager selecting the umpire for the baseball game. If the authority to prosecute is removed, the power to appoint the jury also should be removed.