Congress is examining a significant Obama administration legislative proposal concerning military justice. The proposal provides an occasion to think not only about what ought to be changed in our system, but about law reform in general and how it ought to be achieved. Law reform as such is not studied systematically in law schools. The pending proposal should therefore be considered as merely an example. Are there aspects of reform that apply equally well to other areas? Caution: There is a bit of unavoidable “inside baseball” in what follows.
The importance of military justice as a subject cannot be denied. Without a functioning system of military justice, the discipline of our armed forces — and hence our national security — would suffer. Without a system that enjoys public confidence, it is difficult to see how we could, without resorting to conscription, maintain the force levels that world events seem to demand of us. After all, who would join the armed forces if there was reason to believe that fairness, justice, and the rule of law were not assured? Who would encourage their child or sibling to do so?
For most Americans, including many who are currently in uniform, military justice comes to mind in connection with particular cases, some of which are as high-profile as any in the civilian criminal justice system. But I would like talk wholesale, rather than retail, and about three questions: First, when and why does reform occur? Second, how should the process of reform function? Third, what should we make of the comprehensive changes proposed by the Obama administration at the end of 2015?
The Reform Imperative
Military justice reform occurs for a host of reasons, and they vary considerably not only from country to country but also within countries. Let me give some examples. Not long ago, Taiwan basically got rid of its peacetime military justice system after a conscript died of exhaustion while undergoing disciplinary punishment. Large demonstrations ensued, and in the blink of an eye the legislature acted. Whether this was wise or an over-reaction is not the point. Rather, I cite it as an indicator of how more or less random, or at least isolated, events can have far-reaching consequences. A second illustration is Belgium, where military justice died a quick death a few years ago for reasons that had little to do with military justice, but lots to do with other events in that country. The process was perhaps made easier by the pattern among northern European countries to abandon military justice in peacetime, and rely on the civilian courts for anything rising above the level of minor disciplinary infractions.
Reform can also come about as a result of judicial decisions, whether they be from constitutional courts, as happened in Canada, or from regional human rights bodies, as happened in the United Kingdom.
But even without these discrete and more or less external forces, military justice reform comes about because pertinent legal norms morph over time. What seems fair — what engages public confidence — in one decade may be left behind as society’s expectations evolve. A national shift from a conscription environment to an All-Volunteer Force environment (which the United States experienced in the 1970s) is an example. Or, quite simply, the citizenry’s expectations may change. For example, in an age of autonomy, will citizens in uniform put up with being jailed by a commander? In an age of privacy and connectivity, will citizens in uniform bridle at having a uniformed superior seeing what websites they frequent or what they say on social media? Finally, the nation’s jurisprudence may evolve. Couldn’t military justice have been affected, subliminally or otherwise, by the decisions of the Warren Court? Or by later decisions regarding consensual sodomy or same-sex marriage?
There is a growing recognition that change is inevitable in military justice. Indeed, the UN has had a draft of Principles Governing the Administration of Justice Through Military Tribunals pending since 2006, one of which expressly calls for the periodic reevaluation of national legislation. While these so-called Decaux Principles (after the draftsman, Prof. Emmanuel Decaux of the University of Paris) have not received the UN final benediction, they are widely respected in the world of human rights.
On the national level, systematic reviews have been undertaken or are currently underway in several jurisdictions. Examples include Canada, Australia, India, China, and the US. Sparked by widespread public and congressional consternation over the sheer number of sexual assaults and their handling under the Uniform Code of Military Justice, as well as by the passage of time since the last significant UCMJ modifications in 1983, the Defense Department created a Military Justice Review Group two years ago that is headed by a universally and deservedly respected former chief judge of the US Court of Appeals for the Armed Forces. The review group’s proposal for changes in the Code was vetted within the Executive Branch and recently submitted to Congress, where it will likely receive favorable attention. Let’s consider the effort from both a procedural and a substantive point of view.
The Flawed Process of Reform
Procedurally, I’m afraid the Military Justice Review Group effort does not receive Honors. The group has a website, which is a step in the right direction, but the website is about as passive and uninteresting — perfunctory is not an unfair description — as you can imagine. A few key documents were posted at the outset, and the website solicited suggestions for change. In addition, letters seeking suggestions were sent to bar organizations, interested NGOs, and individuals. The review group engaged in outreach to explain in broad but candid terms how it was going about its business and some of the major issues it was examining. Eventually, the legislative proposal that grew out of the effort was posted on the website. The posted document, which is about three inches thick, includes a summary, section-by-section analysis, legislative text, and helpful detailed discussion. These will be key interpretive materials down the road, once the legislative dust settles.
That, regrettably, is where the good news ends with respect to the process. What was missing?
- The review group never posted the comments it received from the public on its website; only a handful of these became available when commenters chose to make them available through other means.
- The review group was structured so as to avoid the constraints imposed by the Federal Advisory Committee Act.
- The review group never made its draft public, so at present there is no way of knowing what was changed between the version it proposed, the version approved by the Defense Department General Counsel, and the version that has been sent to Congress. This seems to be the result of provisions of OMB Circular A-19. Perhaps those provisions should be changed.
Should this process have been conducted with greater transparency? I think so. The procedural shortcomings are significant and all the more regrettable because experience teaches that such a proposal may not receive the careful scrutiny it merits in sustained, open hearings before the House and Senate Armed Services Committees. I hope I will be proven wrong on this, although it is not encouraging that today’s Senate Armed Services Committee hearing will not be open to the public. It is beyond belief that such a hearing, in 2016, would be closed.
The Good, the Bad, and the Missing
Now for the merits. These can be divided into “the good,” “the bad,” and “the missing.”
There are many good things in the administration’s proposal. For example:
- Tour lengths for military judges will have a statutory basis. This is a step towards fixed terms of office.
- Military judges will be able to make certain rulings before a convening authority refers a case to trial.
- Military judges will have sentencing power even if the merits of the case are decided by the members (jurors).
- Sentencing will no longer be open-ended, without guidance.
- Military jury size will be fixed, rather than having minimum jury sizes, as at present.
- Required votes for conviction will be made uniform.
- Convening authorities’ charging decisions will be subject to guidance like that currently applicable to Justice Department prosecutions.
- Timely public access to case documents will be facilitated (although the end result may not look quite like the federal courts’ PACER system).
- A standing body will be created to monitor and report on the need for further systemic changes.
- All special and general court-martial cases will be subject to review by the military appellate courts.
- The prosecution will be afforded the right to seek appellate review of sentences, along the lines of government sentence appeals in the Article III courts.
It is harder to find things in the administration’s proposal that are downright bad. I’ll mention a few that jumped out at me.
- Since 1920, American military law has required an investigation or (since 2013) a preliminary hearing before a case can be referred to a general court-martial (the military’s felony-level forum). The primary focus of preliminary hearings has been to determine the existence of jurisdiction and probable cause, as well as to recommend a disposition of the charges. Regrettably, the administration’s proposal would make the disposition recommendation non-mandatory. In effect, this subtly underscores the power of the convening authority to do as he or she likes with the charges — thereby moving the system in precisely the wrong direction.
- The proposal permits juries of as few as four members to convict personnel of offenses with jail sentences of up to a year’s confinement, and to do so by non-unanimous vote.
- The proposal extends the statute of limitations (or, apparently, restarts it if it has already expired) when a person is implicated as a result of DNA testing. This mirrors civilian federal criminal practice but is nonetheless not a good idea.
However little there is in the proposal that is affirmatively bad, there is also much that is missing. Here are some examples:
- Retention of commander-centricity. Above all, the proposal leaves in the commander’s hands such key powers as the disposition of charges, selection of members, negotiation of plea bargains, suspension of sentences (subject to a favorable military judge recommendation), and post-trial action in some cases.
- The color purple. The proposal perpetuates the substantial autonomy of each armed force with respect to the administration of justice.
- Access to the Supreme Court of the United States. The proposal makes no change in the current arrangement under which only cases in which the Court of Appeals for the Armed Forces grants discretionary review or grants relief in an extraordinary writ case are even eligible for review by the Supreme Court.
- Complexity. The proposal not only retains summary courts-martial, but adds yet another forum: a judge-alone special court-martial with limited sentencing powers.
- Standing trial courts. The proposal continues to rely on ad hoc “convened” trial courts, rather than standing courts. Creating standing courts would render it unnecessary to give military judges limited pre-referral powers, as the proposal would do.
- Vessel exception. The proposal retains the so-called “vessel exception” to the right to refuse non-judicial punishment. Important details about the vessel exception will not be known until the proposed Manual for Courts-Martial changes are made public.
- Misdemeanor-level cases. The proposal makes some misdemeanor-level cases subject to only discretionary review by the service courts of criminal appeals. These cases can result in significant terms of imprisonment and ought to be appealable as of right.
- United States Court of Appeals for the Armed Forces. The proposal retains the court’s political balance requirement and makes no change in its practice of entertaining petitions for review that cite no errors.
- Certificates for Review. The proposal perpetuates the power of the Judge Advocates General to require the Court of Appeals to rule on certified questions rather than having to rely on appeals by the government and defense.
- General Article. Although the proposal usefully codifies a host of previously listed offenses under the UCMJ’s General Article, it leaves intact the core proposition that unlisted forms of conduct to the prejudice of good order and discipline may yet be punished criminally.
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In summary, the administration has proposed a host of important and in many respects desirable changes that will help the military justice system run smoothly and more efficiently. In numerous respects, however, the proposal falls short or cannot be fully evaluated until implementing regulations are made public. Congress should therefore not adopt the proposal as submitted; significant amendments are essential. If, 66 years after enacting the UCMJ, Congress is in a rare mood to update military justice comprehensively, it should set its sights higher than the Obama administration has done with the current proposal.