The stated topic for this panel is the jurisdictional boundary between civilian and military criminal justice, or, more broadly, the desirability of continuing to maintain a separate military justice system or separate military courts. These two ways of framing the topic are related but they are far from the same thing.
BLUF, as they say: in my view,
(1) a separate military justice system should be maintained, but
(2) its judicial architecture needs to be changed in several important respects, and
(3) its reach should be reduced as to both subject-matter and personal jurisdiction.
In the remarks that follow, please note that I am in general speaking from a policy perspective; some of what I have to say is not, under current jurisprudence (with which I disagree), constitutionally mandated. As a result, the ultimate audience for these comments is not the courts, but Congress and the Executive Branch, each of which could do things that go beyond what the Supreme Court has told us the Constitution demands.
There is nothing wrong, in principle, in having a military justice system. The Constitution and original practice contemplate such a system. Nor does human rights jurisprudence forbid such a system. So the first question is really quite an easy one. On the other hand -- and here I’m addressing friends who question our even having a military justice system -- the fact that such a system is lawful does not necessarily mean it is wise. I’m satisfied that it is both, but I do want to make some changes, at least one of which (equal access to the Supreme Court) is required by the Constitution.
There is a good deal that is wrong with the current judicial architecture of the American military justice system. I’ll note several aspects for discussion during this panel. In addition, let me mention two forthcoming law review articles that will touch on issues we will consider. The first, by Col. Jim Young and me, is called Military Justice and Modernity, which perhaps will be accepted by some deserving law review. The second, by me alone, The Case for Termination of the United States Court of Appeals for the Armed Forces, will appear this summer in the Journal of Appellate Practice and Process. If you are curious, these articles are available on SSRN.
The thrust of the Modernity article is two-fold: first, that certain aspects of the current U.S. system are holdovers from the pre-UCMJ and certainly the pre-1968 era and are redundant and wasteful; and second, that the system suffers from bloat. Bloat at the top also figures in the Termination article.
In a nutshell, the military trial bench is too big for its caseload. In 2022, the combined corps of military judges tried roughly 1.35 cases per month per judge, as I posted earlier this month on the Global Military Justice Reform blog. That number is derived from the CY2022 reports the TJAGs filed in accordance with Art. 146a, UCMJ. A single, consolidated trial judiciary would, in my opinion, make far more sense than the current arrangement. It would permit more efficient allocation of judicial resources.
While I am discussing the trial courts, I have repeatedly heard that courts-martial are more complicated than they once were. Whether or not that is true overall, I cheerfully admit that military judges at times have to decide complicated issues even in cases that no civilian litigator would call “complex litigation.” Personally, I would therefore like to see military judges have access to law clerks. I’d also give the judges greater independence by extending their terms to eight years, which is what full-time federal magistrate judges have.
Bloat is also on my mind with regard to the Special Trial Counsels who will assume much of the convening authority’s charging power in late December. The numbers I have seen in the TJAGs’ reports and elsewhere for new judge advocate billets strike me as significantly inflated, since the STCs will be assuming responsibility for functions previously performed by standard-issue pre-Gillibrand JAs. Why can’t the STC billets mostly if not entirely be reallocated from the existing military justice billet structure? This expansion of the JAG Corps is deeply ironic given the TJAGs’ lockstep resistance to the historic reform effected by the FY22 and FY23 NDAAs.
As for the courts of criminal appeals, sua sponte review of every record of trial is an unnecessary, wasteful holdover from the days before 1968. After seven decades, surely we can expect appellate defense counsel to do a professional job of identifying prejudicial errors, rather than having O-5s and O-6s doing it for them at the service courts. Would we lose anything if there were a single CCA, especially if, as I am about to suggest, CAAF’s jurisdiction is transferred to an Article III court?
I have been a close and basically friendly observer of CAAF and CMA for many years. Nonetheless, I cannot support the court’s continued existence given the dramatic shrinkage in its output and the price tag ($17 million last time I checked). Moreover, after years of reading the court’s opinions, the job does not require specialized knowledge. Its work concerns garden-variety appellate issues. A vanishingly small portion of the cases involve arcane issues that are truly peculiar to military law. And as to those few, with proper briefing by appellate counsel, appellate review can be done perfectly well by Article III gen-eralists. I would abolish CAAF and give its jurisdiction to the D.C. Circuit. I would also open the doors of the Supreme Court so GIs were at last on an equal footing with federal and state criminal defendants and military commission accused. For the reasons Phil Cave, Brenner Fissell and I explained in the Yale Law Journal Forum in 2021, that change is required by several strands of constitutional doctrine.
Finally, let me say a few words about personal and subject-matter jurisdiction and the implication of this panel’s topic that there is a “boundary” between military and civilian criminal justice. That may be misleading given the dual sovereignty doctrine, under which the same offense can be prosecuted by both military and state authorities. The dual sovereignty doctrine is settled law in light of Gamble v. United States, but nothing prevents Congress or the President from forbidding military prosecutions following a state prosecution, nor does the Constitution prevent a state from tying its own hands so as to rule out a state trial following a military trial.
Over the last several decades, American military justice has displayed a voracious appetite for both personal and subject-matter jurisdiction. Think: retirees, whose amenability to trial court-martial will shortly be the subject of a cert petition in Larrabee. We will see how that turns out. (Full disclosure: I am one of Mr. Larrabee’s attorneys.) I think he should prevail, as Judges Leon and Tatel thought. Even if he doesn’t, Congress should repeal the retiree-jurisdiction provisions of Art. 2(a), UCMJ, because they are unnecessary and irrational. After all, why subject some old codger who is never going to be recalled to trial by court-martial while hale-and-hearty reservists are subject to court-martial only when they are performing duty?
Solorio did away with the O’Callahan-Relford service-connection doctrine. Solorio was wrongly decided -- again, full disclosure: I argued for the ACLU as an amicus in the Supreme Court -- but nothing prevents either Congress or the President from excluding from court-martial jurisdiction offenses that are not service-connected. Trying cases without a service nexus serves no military purpose. Worse yet, it operates capriciously, as when a civilian victim or her family are upset at what they consider an unfair refusal of civilian officials to prosecute or an unjustified acquittal or (in their eyes) inadequate sentence.
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