Tuesday, August 29, 2023

Brigadier General Cooke's Romig Lecture

Brigadier General (ret) John S. Cooke, now Director of the Federal Judicial Center, delivered the Third Thomas J. Romig Lecture on Principled Legal Practice at the Army Judge Advocate General's Legal Center and School in Charlottesville. Here's an excerpt from his discussion of some of the themes and lessons that can be drawn from American military justice history:

The first one goes back to what I talked about before, justice and discipline. Discipline had gone from something imposed on unwilling or recalcitrant people to something that is instilled and inspired by the court-martial system and by society in its approach to people and recognizing their dignity and autonomy and trying to foster that. William Tecumseh Sherman, a lawyer in the 1800s, said that justice and discipline are polar opposites. That may have been the case when all this started, but now they are joined. You cannot have one without the other. You need them both. To me, that is the overarching change that occurred throughout this time. It has happened in the court-martial process through some changes in the rules, but more in the changes in our attitudes and approach to what we are trying to get out of people and accomplish. Recognizing that courts-martial are important, it is a much broader approach to accomplish the justice and discipline that we want. Obviously, one trend has been the curtailment of the broad authority that commanders had under the original Articles of War. Their powers have been restricted at almost every step of this change. It is noteworthy that, for the most part during the period that I have talked about up through the eighties, the power of commanders were restricted because it was perceived that commanders had a thumb on the scale in favor of the prosecution, that they had a tendency to be too harsh, and that the imposition of discipline was given too much weight.

The changes that you are going to confront were made for a different reason. They were made because commanders were perceived rightly or wrongly, to be too lenient or too lax in exercising the prosecutorial function. That is a big change. I do not know the implications that really has going forward, but I think it is something that needs to be thought about. As commanders’ roles and authorities were restricted, lawyers stepped in and gained more authority and responsibility throughout this whole process. Sometimes it was done through regulation, rule, statute, or by default. Somebody had to do it. Commanders were not allowed to do it or did not want to do it. Lawyers stepped in and, as we have seen, they did so under some difficult circumstances, including the Korean War, the Vietnam War, and the turbulence of the seventies. Each time lawyers stepped up and did it, they did it while controversy may have continued at higher levels. The Pentagon, politicians, and others may have continued to fight and argue over whether this was a good change or a bad change. The lawyers on the ground, the company grades and the field grades, were out there making it work and doing it the best they could. It did work, and the system has improved throughout that process. It has not always been a straight linear line up. There has been bumps, but it has worked because people like you made it work. You put your head down and said, this is what we have got to do to get this done, and that is the broad history of it.

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