A Solution in Search of a Problem: The Dangerous Invalidity of Divesting Military Commanders of Disposition Authority for Military Criminal Offenses

Introducing An Open Letter From Former U.S. Military Commanders & Judge Advocates to the Committees on Armed Services of the U.S. Senate and the House of Representatives

On June 30, 1775, the Continental Congress adopted our nation’s first military code. The 1775 Articles of War empowered commanders in the new Continental Army, Marine Corps and Navy to leverage the Article’s disciplinary and criminal provisions to help build a well-disciplined and combat effective force; a force that ultimately prevailed against the greatest military power in the world.  Entrusting commanders with disciplinary authority is the thread that runs through every iteration of the U.S. military criminal code to this day.  As we explain in a companion essay elsewhere on Just Security, command authority is the very foundation of our contemporary military justice system — a system that provides for a collaborative process in which multiple levels of military lawyers advise multiple levels of commanders with one commander ultimately deciding whether trial by court-martial is appropriate and will serve the interests of justice, good order, and discipline. Much has changed since 1775, but the responsibility of commanders to ensure mission capable and well-disciplined units able to prevail against any threat remains. It is this constant that animates American military law.

Unfortunately, the efforts of those who seek to cut this thread are currently manifested in two ongoing legislation initiatives. The first is §540F in the 2020 National Defense Authorization Act (NDAA), a provision that directs the Secretary of Defense to study and report to the Senate and House Armed Services Committees (SASC/HASC), no later than 300 days after enactment (December 20, 2019), on a proposed “alternative military justice system.” This proposal, if implemented, would at a minimum invert a time-tested and carefully calibrated command-lawyer relationship, making the commander the advisor and the lawyer the decision maker for the vast majority of military criminal offenses. Even more troubling is that if taken to its logical conclusion, commanders would play no meaningful role in the exercise of prosecutorial discretion in responding to the majority of military crimes allegedly committed by service-members assigned to their unit and for whom the commander is responsible.

Second, Sen. Kirsten Gillibrand (D-NY), who serves on the same SASC which directed the Secretary to submit the report due in mid-October, recently introduced the Military Justice Improvement Act of 2020 (MJIA 2020). While there are some differences, if enacted into law, MJIA 2020 would implement most of the sweeping changes that §540F directed the Secretary of Defense to study and evaluate in a report to Congress.

In response to §540F, we solicited former commanders and military lawyers up to the 3-star level to sign an open letter to the SASC and HASC expressing opposition to the proposal Congress directed the Secretary of Defense to study.  In isolation, it may seem premature to organize an open letter in response to Congress directing only a study and releasing that letter before the study’s completion. But viewing §540F a mere call for a study is analogous to characterizing the Trojan Horse as just a gift.  In the broader context of previous failed legislative initiatives to fundamentally amend the UCMJ coupled with the efforts of advocates for that change, § 540F is better understood as part of a coordinated campaign to divest commanders of their existing prosecutorial role and in so doing dilute the relationship between court-martial prosecutions and good order and discipline.

These efforts began several years ago and as part of a much broader initiative to enhance the credibility of the military response to sexual assault and harassment. This broader effort actually resulted in a number of important statutory and policy changes, but after careful consideration almost every expert involved in studying the military justice system rejected proposals to remove or transfer commanders’ prosecutorial authority. If anything, many of the changes related to investigating and reporting allegations of sexual misconduct in the ranks were designed to ensure high confidence that reports of such misconduct were presented to senior commanders entrusted with court-martial convening authority. This reflected the assumption that when these commanders are made aware of such allegations they will ensure a credible prosecutorial response.

All of the signatories to this letter understand that the vital importance of eradicating sexual misconduct from the ranks includes continuing efforts to enhance investigatory and disciplinary practices. But the continued effort to minimize or terminate the commander’s role in military justice is disturbing and if anything distracts from these other efforts. The fact that advocates for this change seem to ignore multiple Federal Advisory Committee Act reports rejecting proposals to implement such change is perplexing. For example, a subcommittee of the Response Systems to Adult Sexual Assault Crimes Panel recommended that Congress retain the commander’s current role with only one member of the subcommittee dissenting. Ultimately, this pattern of proposing the divestment of command prosecutorial authority, contrary to the recommendation of congressionally mandated studies, creates the impression that §540F essentially requires the Department of Defense to engage in a study of a solution in search of a problem.

So why now? As this letter evolved the principal authors discussed the question of timing. But events of last week preempted any concern the effort was premature. Thus, while our objective was to provide input on §540F, we believe the fact that the Senate is scheduled to discuss MJIA 2020 this week, which if enacted would mandate changes closely aligned with the §540F proposal, the timeliness, focus, and widespread support for this letter is apparent. The open letter with a list of signatories is reproduced below, with an Appendix showing how adopting this proposal would alter prosecutorial authority for UCMJ offenses is available here. We mailed copies of the letter to the SASC and to the HASC.

While we acknowledge some differences between the proposal §540F directs to be studied and the changes to military law included in MJIA 2020, the open letter directly addresses three points of similarity between the two:

1. The plea to Congress to reject any dilution of prosecutorial authority which the Uniform Code of Military Justice currently vests in commanders;

2. The indelible relationship between the existing prosecutorial authority vested in commanders and the creation and maintenance of an effective and well-disciplined force;

3. The unnecessary and substantial risks associated with implementing the changes in either §540F or MIJA 2020.

The extent of our collective opposition to these changes and concern about the risks they represent is reflected in the breadth of signatories.  More than one hundred officers signed the open letter, including more than forty retired Generals and Admirals and a substantial mix of former commanders and military lawyers.

The signatories include former commanders and military lawyers from the Army, Marine Corps, Navy, Air Force and Coast Guard who served on active duty and in the reserves. The list is cross-generational and includes, at one end of the spectrum, two retired Marine Generals who learned about the indivisible link between good order and discipline and  command and control during the Korean War, with one of them serving at Chosin Reservoir, to officers who relatively recently retired or otherwise ended their military service, at the other end of the spectrum. The signatories represent combat service in Afghanistan, Iraq, Korea, Libya and Vietnam, peacekeeping duty in Haiti and the Balkans and peacetime service in the United States and countless overseas bases, camps and stations, at sea and in the air. They also reflect the various ways to join and serve in the military: former military recruiters, entry level/training unit commanders, a non-commissioned officer who transitioned to commissioned service, an officer candidate school graduate, a chief warrant officer, and ROTC and service academy staff and faculty.

The former commanders served at all levels up to and including serving as:

in the case of former Army commanders: the head of Multi-National Security Transition Command–Iraq and NATO Training Mission–Iraq, United States Army North, Joint Special Operations Command, the Southern European Task Force (SETAF) now designated US Army Africa, Recruiting Command, Special Forces Command, the Provost Marshal for US Army Europe and as the Chief of Staff at U.S. Cyber Command;

in the case of former Marine commanders: the Director of the Defense Intelligence Agency, the head of Marine Forces Command, the Commander and Deputy Commander of Marine Corps Development and Education Command, the Deputy Commander at U.S. Cyber Command, the head of the 1st Marine Division during the Battle of Falujah and as the Legislative Assistant to the Commandant of the Marine Corps;

in the case of former Air Force commanders: the Vice Commander for the US Air Force in the Pacific, the Associate Director of Central Intelligence for Military Support, the Coalition Forces Air Commander for Operation Odyssey Dawn (Libya air campaign), the Director of the Air Force Sexual Assault and Prevention Office, the Chief of Staff for Cyber Command, the Commander of U.S. Central Command Air Forces (forward), the head of 17th Air Force and as the Director of Regional Affairs.

The former commanders reflect the tremendous occupational diversity within the armed forces, including air force/aviation, engineers, communication, cyber, finance, human resources, infantry, intelligence, inspector general, military police/law enforcement, and special operations.

The former military lawyers include The Judge Advocate General and/or Deputy Judge Advocate General from the Army, Navy, Air Force and Coast Guard and two former Staff Judge Advocates to the Commandant of the Marine Corps.  Other military lawyer signatories served as legal advisors to Combatant Commanders, to the Chairman of the Joint Chiefs of Staff, to Service Component Commands, to the U.S. Navy’s Seventh Fleet, as Staff Judge Advocates at all levels, in garrison and deployed, as the Commandant and also the Dean at the Army JAG School, as the head of the U.S. Army’s Criminal Law Division, the Government Appellate Division and the Litigation Division. Similar to the former commanders, the former military attorneys served in a wide range of legal disciplines, administrative law, criminal law, international, and operational law. They served in policy positions, as military prosecutors, defense counsel, military judges at the trial and appellate level, appellate counsel, prosecution and defense supervisory positions, department chairs and professors at the Army JAG School and at West Point.

The text of the letter is provided below and is also available as a PDF.

Open Letter From Former Military Commanders & Judge Advocates on Commander Authority to Administer the UCMJ… by Just Security on Scribd

 

About the Author(s)

Geoffrey S. Corn

Retired U.S. Army JAG Officer, Vinson & Elkins Professor of Law at South Texas College of Law Houston, Distinguished Fellow for the Jewish Institute of National Security for America’s Gemunder Center for Defense and Strategy

Chris Jenks

Chris Jenks served as Special Counsel to the General Counsel of the Department of Defense (2017-2018) where he was awarded the Secretary of Defense Medal for Exceptional Public Service. He is a Professor at the SMU Dedman School of Law. He formerly served as Chief of the U.S. Army’s International Law Branch in the Pentagon. You can follow him on Twitter @ChrisJenks_SMU.

Timothy C. MacDonnell

Timothy C. MacDonnell is a Clinical Professor of Law at Washington and Lee University School of Law and the Director of the Advanced Administrative Litigation Clinic. Professor MacDonnell served on active duty in the United States Army for 21 years and retired as a Lieutenant Colonel. During his service, Professor MacDonnell was an Air Defense Artillery Officer for four years before transitioning to the Judge Advocate General’s Corps (JAG).