Maurer on Maurer
A Logic of Military Justice? by Dan Maurer is about to be published in 53 Texas Tech L. Rev. 669 (2021). We have invited him to provide the following preview.
As with earlier articles (here, here), this article is part of a larger project to encourage the military and lawmakers to reflect seriously on why the military does "justice" the way it does -- why do its idiosyncratic elements (e.g., certain commanders having certain kinds of investigative, prosecutorial, and judicial-like authorities; non-random, hand-picked panels, non-unanimous guilty verdicts) remain in place, while other elements (and other peer nations' MJ systems) continue to "civilianize?"
This article first describes Ortiz v. United States, a relatively recent Supreme Court case in which the justices seem to have inadvertently recast the "purpose" of military justice, contradicting its earlier rationale (from, e.g., Parker v. Levy; Orloff v. Willoughby; Burns v. Wilson; and implicit in Solorio) for supporting this unique code of military criminal law. The “purpose” of military justice – as a separate code of criminal prohibitions for a “separate community – used to be about enforcing disciplined obedience to commands in support of mission accomplishment (from the tactical to the national strategic scale). This "national security" rationale allowed the Court to defer to Congress's determination (usually) about the subject matter jurisdiction (except of course for O’Callahan’s now-defunct and unworkable “service connection test”) and various rights/due process established in the Code. The most recent description of military justice in Ortiz, however (and I think partially correctly), says that any value the commander gets from this criminal justice system is incidental to the bigger picture: not national security, but "justice."
This case should force us to stop and rethink the claims we (Congress and the military services) make in both defending and criticizing military justice's substance, procedure, consequences, and mistakes. The article's second part undertakes to unpack every expressed and tacit claim in the "logic" underpinning American military justice. Not only does it make them explicit for the first time and all in one place, the article assesses their strength by labeling them as "presumptions," "assumptions," "speculations," "facts," or "normative judgments."
Sneak preview of the conclusion: arguments explaining and justifying the current form of military justice rest far more on speculations and assumptions than on facts, and the conclusory "normative judgments" we offer to the public and ourselves are based too often on anecdotal, context-free, "evidence," and result in an argument that looks too much like: "just trust us, we're the professionals." This is a perversion of actual professional expertise and undermines the always fragile “civil-military relationship.” As such, it is not just a matter of reforming (or not) a criminal code; it is also pushing up against what it means to have effective “civilian control” over the military. As a military of volunteers, in non-partisan service to the country and in defense of the Constitution, we must do a better job defining, defending, and reacting to progressive reform, especially if the Code's purpose is doing "justice," just like every other criminal code and system. This article is meant to help, or at least encourage both critics and supporters to be more nuanced, careful, and refined in their arguments.
LTC Dan Maurer.
Currently Assistant Professor of Law, United States Military Academy at West Point and a Fellow, Modern War Institute.
Scholarship Saturday: Nonunanimous court-martial convictions are no longer constitutionally defensible
The military justice system’s failure to require a unanimous verdict has long exposed it to criticism. Indeed, as this column has highlighted, even the military institution itself has, from time to time, called the practice into question. Seventy-five years ago the War Department published a recommendation that in trials by court-martial, “a unanimous vote should be required for non-military offenses.” Report of the War Department Advisory Committee on Military Justice (December 13, 1946) at 123.
Despite decades of such dissent inside and outside of the military establishment, in 2016 Congress chose to continue allowing military service members to be sent to prison on non-unanimous convictions. Rather than abolishing the practice altogether, Section 5235 of Public Law 114-328 merely raised the quorum required to convict a service member from two-thirds of the panel to three-fourths. That change was a result of a December 2015 recommendation from the Department of Defense which the Department hoped would “enhance fairness” in its court-martial proceedings. Such an effort is certainly welcome. However, it is perhaps lamentable that, even when trying to “enhance fairness,” Congress and the Department of Defense still chose to fall 25% short of treating service members equally to the civilians they are sworn to defend.
Since the half-measures taken by the Department and Congress in 2016, the practice of allowing non-unanimous criminal convictions has only grown less defensible, especially after the Supreme Court’s decision this week in Edwards v. Vannoy, No. 19-5807 (May 17, 2021). Nonunanimous verdicts harm both society and individual accused, and those harms demand political, social, and legal remedies.
This week, Scholarship Saturday is pleased to present the work of 3rd-year UMass Law School student Alexandria Murphy. Her piece, starting after the break, introduces an article written by UC Berkley law professor Orin Kerr concerning the constitutionality of the internet content preservation statute that is so often used by military law enforcement agencies, especially when investigating online crimes.
- Isaac Kennen, Scholarship Editor
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