Fewer and fewer people these days remember the work of Pulitzer Prize-winning cartoonist Rube Goldberg, who died in 1970. For those who do, the name brings a smile. A “Rube Goldberg” contraption is a piece of machinery with many moving parts of various types, maniacally designed to accomplish some simple goal. Thanks to Congress, the key feature of military justice — the decision to prosecute — has become a Rube Goldberg machine par excellence.
If all Congress had done was to take the long way around, we could chuckle. But in fact the system it has, by steps, put in place is rife with potential for yet more command influence, a vice that generations of judge advocates have been taught is the “mortal enemy of military justice.” Worse yet, despite changes that were intended as reforms, especially with regard to sex offenses, the result has been to skew the process against the accused by treating prosecution as the default disposition. Let me explain.
First, unlike the arrangements in place in many other countries, courts-martial in the United States are not standing courts. They are created ad hoc (“convened”) by a civilian or military official authorized by law to do so. The president, the secretary of defense, and the service secretaries are among the authorized “convening authorities,” but they rarely function as such. Instead, convening authorities are typically military commanders.
A convening authority possesses the power to dispose of charges and select members of the military to form the equivalent of a jury. The disposition decision is highly discretionary, and is subject to non-binding guidance promulgated by the secretary of defense (see here and here). Permissible dispositions include the dismissal of charges (which is without prejudice to future prosecution, unless time-barred or pardoned in the mean time), referral of charges to a court-martial for trial, or forwarding the case to a higher or lower commander in the chain of command.
For several years, there has been considerable legislative support for transferring the disposition power from convening authorities, who are almost invariably non-lawyers, to a chief prosecutor outside the chain of command. Indeed, Congress has directed the Defense Department to submit a report on this subject later this year (see § 540F of the 2020 National Defense Authorization Act). I have supported such a shift, and recently suggested in an article for Just Security that, as a pilot project, a service secretary could simply create a Court-Martial Command headed by a senior uniformed lawyer who would function as convening authority for serious offenses (this proposal could be considered in any hearing on the Defense Department’s § 540F report). These proposals are not the theme of this post, but I mention them for the lay reader’s situational awareness. What follows refers to the current architecture of the military justice system.
Four Kinds of Courts-Martial
The Uniform Code of Military Justice (UCMJ) provides for four kinds of courts-martial. Summary courts-martial are for minor offenses and have been held by the Supreme Court to be noncriminal in nature. Accordingly, I will not refer to them further. For more serious offenses, there are, under a recent updating of the UCMJ, two kinds of special courts-martial. These are for the trial of what would, in the civilian criminal justice system, be misdemeanor-level offences. Finally, there is the general court-martial, which can try any offense under the UCMJ, and which has exclusive jurisdiction over certain offenses, such as those for which the minimum sentence is life imprisonment and those involving penetrative sexual offenses and related attempts (see here, here and here). Except for those offenses, the jurisdiction of special and general courts-martial is concurrent.
For over a century, Congress has provided that no case can be referred to a general court-martial unless there has first been a pretrial investigation. The predicate proceeding is now called a preliminary hearing and, following abuses that impelled Congress to dial back what had long been a valuable discovery tool for the defense, is now a mere probable cause hearing, conducted whenever possible by a uniformed lawyer.
According to the current Rules for Courts-Martial (RCM), the deliverable is a recommendation from the preliminary hearing officer to the convening authority as to how the charges should be disposed of (see RCM 405). That recommendation is at present not binding (see statement of Col. Jeffery R. Nance (ret.) here), although this issue is slated for further analysis.
Consequently, a convening authority can currently refer charges to a court-martial for trial despite a contrary recommendation by the preliminary hearing officer, or can refuse to do so, again despite a contrary recommendation. The dismissal of charges prior to trial by either a commander or a convening authority is without prejudice (see RCM 401 and 403). A superior convening authority can also take a case away from a subordinate (see RCM 601 and 401).
The Staff Judge Advocate: Advice Heeded – or Not
Here things begin to get complicated.
Before a charge can be referred to a general court-martial, the convening authority must receive a recommendation from the staff judge advocate (i.e., the convening authority’s uniformed lawyer). As amended most recently in 2016 (effective Jan. 1, 2019), this “Article 34” recommendation must address three questions: does the charge state an offense, is there probable cause, and is there jurisdiction over the accused and the offense? Unless the staff judge advocate finds each of these, the convening authority cannot refer the charges to a general court-martial.
Article 34 advice thus has teeth that are missing from the recommendation of a preliminary hearing officer. However, for many offenses, adverse advice is not the end of the road, since the statute does not bar referral to a special or even a summary court-martial. For offenses that, by law, may be tried only by a general court-martial, however, referral to any court is precluded.
Unless …
The “unless” is that a convening authority who is faced with a staff judge advocate’s adverse finding on any of the three required points can, instead of dismissing the charges, refer them to a superior convening authority (see RCM 403, 404 and 407). That officer, in turn, can require his staff judge advocate to prepare a new recommendation. If the new recommendation makes the three required findings, the superior convening authority can refer the charges to a general or other court-martial as appropriate.
On the other hand, if this second staff judge advocate concludes that one or more of the required findings cannot be made, the superior convening authority may, like the first-level convening authority, refer the matter to a yet higher official. In theory, this cycle could repeat itself through two, three, or more echelons.
Staff judge advocates are not protected by the parts of the UCMJ and the Manual for Courts-Martial (specifically RCM 104) that seek to prevent unlawful influence. Thus, nothing prevents a convening authority from attempting to exert pressure on a pliant staff judge advocate to make Article 34 findings that can, as a practical matter, take the convening authority off the hook by precluding referral to a general court-martial.
Changes to Address Sexual Assault
Matters are further complicated by several military justice measures that have been included in defense authorization legislation but are not codified in the UCMJ. These have been prompted by congressional zeal to drastically reduce sexual assault in the armed forces. Thus, Congress has directed the secretary of defense to require the service secretaries “to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.” If a convening authority does not refer a sex-related case for trial despite the staff judge advocate’s recommendation for referral, “the convening authority shall forward the case file to the Secretary of the military department concerned for review as a superior authorized to exercise general court-martial convening authority.”
In addition, “[i]n any case where a convening authority decides not to refer a charge of a sex-related offense to trial by court-martial, the Secretary of the military department concerned shall review the decision as a superior authority authorized to exercise general court-martial convening authority if the chief prosecutor of the Armed Force concerned, in response to a request by the detailed counsel for the Government, requests review of the decision by the Secretary.” Finally, if the staff judge advocate “recommends that charges of a sex-related offense should not be referred for trial by court-martial and the convening authority decides not to refer any charges to a court-martial, the convening authority shall forward the case file for review to the next superior commander authorized to exercise general court-martial convening authority.” (see §1744 here and §541 here).
The uncodified provisions are implemented in detailed service regulations (see, e.g., ¶ 5-28(c) here). Their purpose, quite plainly, is to drive as many cases of alleged sexual assault as possible into the trial process, rather than run the risk of meritorious or simply litigable cases being swept under the rug by commanders who might be tempted to protect the taxpayers’ investment in valuable members of their unit (criminality aside), play favorites, or protect themselves by understating the incidence of criminal conduct in their units. Especially when coupled with the notorious instances in which senior commanders who exercised their disposition discretion in ways that ran counter to the views of powerful legislators lost promotions and wound up retiring prematurely, the uncodified provisions put a thumb on the disposition-of-charges scale and both restrict and drive the exercise of command discretion at every echelon.
Deleterious Side Effects
The cumulative effect of these recent changes is unfortunate, however strongly one feels about the deleterious effects of sexual misconduct by members of the U.S. armed forces or the need vel non for commanders to retain control over the disposition of charges. They make what was once a fairly simple process vastly more complicated — and more complicated by far than it needs to be. They tuck away, in uncodified provisions, critical matter that ought to be in the UCMJ itself. They impose a shared responsibility on commanders and lawyers who are their military subordinates, thus thwarting accountability. They give those same staff judge advocates something approaching the power to kill a case under Article 34 (subject, to be sure, to the check represented by the uncodified provisions), but without affording them the same protection other decision makers and participants in the military justice process enjoy against command influence. They are subject to manipulation that can entail buck-passing. They create, in critical respects, a special regime — a kingdom within the military justice kingdom — for a single category of offenses.
As icing on the cake, the recent changes cumulatively skew the exercise of command discretion in favor of prosecution, leading to a noticeable increase in the acquittal rate in a category of disturbing cases (sexual assault) that accounts for a large share of the system’s overall throughput. Acquittals are all well and good when warranted, but when they skyrocket, as they have, they erode confidence in the administration of justice at the critical disposition stage.
Congress needs to resist the temptation to keep adding to the decisional layer cake. It should look for ways to collapse some of the layers and thereby achieve both prompter closure for all concerned and improved accountability.
No one — neither the die-hard defenders of what remains of our George III-era legacy of military justice that gave charging powers to commanders, nor its numerous critics — should be content with the dog’s breakfast Congress has served up. But Rube Goldberg would have loved it.