Thursday, December 30, 2021

More from Maurer

Lieutenant Colonel (and professor) Dan Maurer of the U.S. Military Academy at West Point has posted this measured personal-views-only essay on Lawfare describing what the NDAA for FY22 does and does not do to military justice. It is must reading for Town Hall 23 on January 10 -- to which readers of Global Military Justice Reform are cordially invited. Excerpt:

In sum, the most significant changes wrought by the 2022 NDAA only shift the burden of prosecutorial judgment from certain flag officers in command to actual experienced and specialized prosecutors, who also happen to be in uniform and who swear the same oath to protect and defend the Constitution. These judge advocates, in addition, may consider the advice and recommendations of those very commanders whose troops were impacted, one way or another, by a certain limited menu of offenses they no longer have the discretion to address personally. Finally, the transfer of this burden is a foreseeable next step along the decades-long arc of “de-militarizing” military justice, not just in the U. S. but all over the world. This civilianization has happened in all the key and essential matters of due process and civil rights enjoyed by civilians facing criminal charges and punishment by the state. There is little reason to think that this arc will not continue. As this post reveals, there remains a host of prosecutorial and judicial-like powers that may, ultimately, cede to uniformed lawyers or civilian courts. This NDAA reform—as compromise-ridden as the final bill ultimately became—proves that the executive branch has not yet justified sufficiently the continuing relevance and necessity of these powers on principled grounds, to the satisfaction of Congress.

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