UPDATED: Reform Roundup

7/29/2021

Dunlap fires back at VanLandingham--over at Lawfire.

Editor's note:

I admire Prof. Dunlap for going to the heart of the matter and not dithering around the edges. He writes: "The complex process of leading servicemembers to wage war in the name of state is a task that requires equipping the chain of command with disciplinary power as thousands of years of military history demonstrates that the coercive effect of that authority is one element of what is necessary to get people to do what is ordinarily unthinkable: to kill other human beings (or be part of the process that does so). "

Note how strong this claim is--not that the personal unified authority helps with or adds to the coercive toolbox, but that it is necessary to it. This claim is the foundation of everything, but is it correct?

Prof. Dunlap fails to cite to or address the scholarship that has interrogated this precise question and has come to the opposite conclusion. See, e.g., Elizabeth L. Hillman, On Unity: A Commentary on Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 New Eng. L. Rev. (2015): "History and social science can help us assess the claim that a command structure 'reinforced by the ability to impose punishment' is essential for a military unit to perform well under stress. Studies in those fields suggest that service members follow orders because of social and ethical norms more than command authority, that discipline is as much an internal practice than an external system of punishment, and that the chaos of a battlefield may actually be the environment in which individuals' behavior is least likely to be influenced by an authoritarian commander." (citing Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, 86 CALIF. L. REV. 939, 1026-27 & nn.343-44 (1998)).

Michel on the IRC over at Lawfare.
Christensen comments on the conflicting (?) proposals coming out of SASC.
Fidell on the role of legal expertise in the reform debate, over at the Bulwark.

Isaac Kennen

7/27/2021 06:39:54 pm

Speaking to Professor Fidell's argument that it is essential that lawyers handle the disposition of felony-level offenses.

I'm no opposed to having lawyers exercise prosecutorial discretion.

But, I am not persuaded that going to law school necessarily makes a person better at deciding whether to prosecute a case.

Commanders are very familiar with weighing evidence, applying policy, and overseeing processes. Warfare demands nothing less. What is operational and targeting intelligence if not evidence? What is strategic and operational planning if not the application of policy? And, who would claim that a commander capable of marshaling forces and resources across an entire theater of war isn't capable of handling the administrative demands of a prosecutor's office?

And, what exactly about law school makes for wise prosecutor?

Harvard law recommends that students pursing their "law and business" course of study take the following courses as "foundational courses": corporations, taxation, introduction to accounting, introduction to finance concepts, business strategy for lawyers, business valuation and analysis, securities regulation, and analytical methods.

Once they've established their "foundation," Harvard recommends students who are in the law and business course of study take the following "intermediate" and "advanced" courses: securities regulation, corporate finance, mergers and acquisitions, negotiation advanced deals, venture law and finance, corporate theory, corporate governance of the public firm, regulation of financial institutions, and regulation of financial markets.

In addition to taking those foundational, intermediate, and advanced courses, Harvard Law also recommends business law students take courses in a specialty area. Those interested in entering taxation practice should take: taxation of business corporations, trusts and estates, and law of nonprofit organizations. Those interested in bankruptcy and commercial law should take: secured transactions, bankruptcy, and corporate reorganizations. For international business: international finance, international trade law, international antitrust law.

After taking all of those courses - foundational, intermediate, advanced, and specialty - Harvard also recommends would-be business lawyers to take seminars on: capital markets regulation, comparative corporate governance, current issues in executive compensation, current topics in financial regulation, dispute systems design, international finance, law and economics, markets and religions, law and finance of start-up companies, and tax policies.

To meet their ABA-required clinical coursework, Harvard recommends the transactional law clinic.

Beyond those course offerings in the law school, Harvard recommends taking courses at the business school, the kennedy school of government, and MIT Sloan.

I don't see anything in that course of study that would make a lawyer better at deciding whether to prosecute a fellow citizen.

Law school doesn't teach justice, or at least not necessarily. The idea that lawyers will be better at it than commanders is, I think, folly. The failure of the legal profession to do substantial justice is written, persuasively, and emphatically, across this Nation's history. Lawyers certainly have not demonstrated a greater capacity for wisdom than the military commanders they now seek so eagerly to supplant.

Brenner Fissell

7/27/2021 07:35:57 pm

Zeke,

Interesting thoughts.

1. Surely you are right that there can be no expert in “justice,” but is anyone saying that that is the relevant expertise here? In demonstrating the supposed irrelevance of a law degree to criminal prosecution it seems tendentious to quote at length the *corporate* law curriculum. Isn’t the expertise application of law to facts, and assessment of admissibility (including crim pro effects on admissibility)?

2. The expertise argument is certainly weaker than the more important argument: independence & lack of bias. Rebutting the expertise argument does not rebut the independence argument (I understand you are not claiming to do so here).

3. The expertise argument is about *comparative* competence. It is not that lawyers are amazing and commanders are total shit. It’s that lawyers are comparatively better than commanders.

Brian L. Cox link

7/28/2021 01:20:53 pm

Brenner,

Excellent points, as always (and thanks for the round-up...always a service to the community).

I want to address your points 3 and 2, in that order. To a certain degree, my points here preview similar points I make in forthcoming scholarship on the topic...but I'll just summarize here since these points may add something useful to the conversation.

First, on the topic of comparative competence and expertise: you're right, lawyers are indisputably better at commanders at making disposition decisions...but *only* one aspect of the decisions. This is something I find incredibly frustrating about much of the current discourse on the topic of disposition authority (I say this with all the respect in the world, but that includes Gene's rundown over on Bulwark). A decision whether to take an offense to trial actually involves two related - but completely separate - aspects. The first is a technical analysis: what offenses are available based on this casefile, what are the elements, what evidentiary challenges will I face, what are the defense's most likely arguments, etc. The second is a justice analysis - the exercise of prosecutorial discretion: based on the technical analysis, I think there is a reasonable prospect of prosecution if I move forward - BUT are the interests of the community best served in doing so? In the civilian sector, the ADA or AUSA or a similar job title has the sole authority to conduct *both* analyses. Their version of prosecutorial discretion - the "good of the community” aspect - is different than in the military since echelons of command in the military are specifically tasked to accomplish assigned goals together. We really do need to stop treating the military prosecution decision process as though it were the same as in the civilian sector – doing so is incredibly unproductive. Brenner, I think it would be fair to say that commanders *are* shit at making the technical analysis aspect of prosecution decisions...but we're not really asking them to do that aspect - that's why they've got lawyers on staff. As a (now former) TC, *I* am shit at making the "good of the community" aspect of the prosecution decision - mostly because I don't have responsibility for everything that community does or fails to do. Unless there is a reason for the commander *not* to make that decision based on my advice on the technical aspects, we should trust her to do so.

That brings me to your point #2, Brenner: the more important argument about independence and lack of bias. There will always be at least a perception of bias if the commander is the "boss" but also gets to decide whether to initiate prosecution (summarizing and channeling Don Christensen's main point from the NYT video op-ed from a few weeks ago). If perception is the primary basis driving reform, we're always going to think the MJ system is failing. Look to current discussions in the UK, Canada, Israel, and others as case studies on that point. If we're going to be driven by reality rather than perception, which I suggest is a better driving force, we need to establish that commanders actually *are* utilizing unfair bias when they are making disposition decisions. For a few months now, I've been studying in depth the "evidence" that is usually cited to support such a claim, and my assessment thus far of the evidence is that it is weak sauce.

More to follow on these observations as I finish some scholarship and decide it's time to publish some other stuff. In short for now, though, I suggest it’s time to achieve much better fidelity regarding the problems we are trying to address and what needs to be done about them. For any number of reasons, the civilian sector is not a particularly productive comparison set for the MJ discussion.

Nathan Freeburg

7/27/2021 08:02:01 pm

I’d really love to see a defense of how plea negotiations work in the military under the current system. (Good luck…they primarily work to waste the time of the lawyers.)

Concerned Citizen

7/27/2021 09:06:59 pm

I don't find the expertise argument persuasive at all. The commanders all have s lawyer on staff to advise them on the various technical aspects of the case. Also, I don't think I have ever seen or heard of a referral decision or non decision that actually turned on some genuinely technical decision, like admissibility if evidence; it's usually something obvious like witness credibility that a lay person can judge.

Really not any different than having a panel of the same commanders deciding guilt with a military judge to guide them on technical legal issues.

The one genuine good point for me would be getting rid of the absurd Rube Goldberg contraption of running everything up the chain of command and sitting around until the next CG meeting, where everything has to be packaged up just so, versus the SJA or whoever just going, uh yeah sounds good deal.

Recovering SJA

7/27/2021 10:24:27 pm

As a lawyer who has advised and works closely with Commanders, I can tell you they aren’t qualified to make the decisions, and they don’t have the bandwidth to make solid, evidence based decisions. Often they make decisions based on their belief about how their career will be impacted, not on what the evidence in a case requires. It’s why so many cases go forward on weak evidence or without probable cause. Not to mention the fact that they are making decisions about their employees, which makes them far from independent, neutral, and fair.

7/28/2021 09:52:03 am

Anecdotal evidence is of little value to the discussion since we all have experience with commanders of varying degrees of competence. For every poor decision-maker in command or in a judge advocate’s billet, there is a brilliant officer to build a counter-narrative around.

It’s not that all commanders are wonderful. But then, neither are all lawyers.

And our Nations history has shown us that a criminal justice system run by lawyers is no more competent at doing substantial justice than one run by soldiers, sailors, marines, airmen, coastguardsmen, or guardians. Indeed, the military justice system was created by lawyers in Congress, is overseen by lawyers on the military trial and appellate benches, are litigated by lawyers in the court-room, and shepherded by lawyers advising convening authorities.

With all that lawyer involvement, it strains credulity to argue that lawyers aren’t at the heart of the disparities plaguing military justice. The claim now by those same lawyers that they are the solution to the problems they created seems a bit farcical, and indicative of a culture that does not accept responsibility for its shortcomings. Giving such a community more power seems, in my view at least, dangerous to the interests of justice.

7/28/2021 12:15:09 pm

My experiences are all I have to go on. I’m not aware of any research or data that show a Commander adds value, I’m just aware that a Commander has other considerations than justice when making decisions. Independence is usually central to a justice system, it’s part of the reason the President isn’t supposed to weigh in on specific cases at the DOJ. I don’t think the military is exceptional in this respect, rather I believe Commanders inject impermissible or unjust motivations into the system.

Scott

7/30/2021 05:01:48 am

The DAC-IPAD report would suggest that the data is in line with “Recovering SJA’s” experience.

Bill Cassara

7/29/2021 12:50:08 pm

I have not opined on this issue, because I don't think it matters much. Lawyers are pretty much calling the shots anyway. It isn't like commanders are routinely declining prosecution on cases that lawyers want to take to trial or even vice versa. Congress and the media make it seem like lawyers have no role in deciding which cases go to trial under the current system, which is false.

Allan

7/29/2021 01:22:22 pm

IMHO, there are two separate and distinct issues. First, what does a commander need to do to ensure good order and discipline (or as Dunlap puts it, ensure that servicemembers will go out and fight)? Second, what does society need to do to ensure that (non-military-type) crimes are addressed appropriately?

These can be handled by different parties. If a soldier commits a crime that affects good order and discipline, take any necessary disciplinary measures necessary, up to and including -kick him out of the service. Then, if the crime is bad enough, have it addressed by the appropriate civilian authority.

I am a firm believer that the commander is in the best position to determine who should be under his/her command. If he/she thinks having a murderer continue to be in the unit enhances good order and discipline, the only people who really should question the decision are his/her superiors (all the way to the president).

So. A soldier murders his neighbor (on or off base). Out he goes. If it is worth prosecuting as a crime, there are state and federal officials that can take it on.

At the outset, it seems, we had courts martial because there was no other way to discipline soldiers. Now, there are other ways to do it.

IMO there is nothing inherently good or bad with having non-military crimes in the UCMJ. But, if the thinking is that commanders are not using their discretion properly, simply put enforcement of the criminal code in the hands of civilians. It worked (depending on your point of view) for Jeffrey MacDonald's case.

Victim Advocate

7/29/2021 01:49:33 pm

I suspect that a Commander’s primary concern is to be able to fight/employ the ship. But what does that mean? From a shipboard perspective, that means you want to keep the sailor that runs the work center, that is qualified to stand a watch that only one other individual is qualified to stand, that is the number 1 trainer or expert on certain pieces of equipment because the Chief is useless. Or the sailor is a chief who keeps a division together. But then, that sailor is accused of sexual assault. Now there’s a victim. Art. 6b, the Manual for Court-Martial, and a number of instructions require the command to grant the victim a military protective order, separate the offender from the victim, for the victim’s welfare. The victim and offender are in the same shop, so the offender is transferred TAD out of the division. Now that entire division is disrupted. The top trainer, watchstander, go-to guy is facing criminal charges. Suppose that watchstander is the only qualified EPCC or EOOW…Now the ship can’t get underway. The CO has to inform the ISIC that he can’t get underway because he has failed to qualify for watchstanders. These are a COs primary concerns: how do I effectively employ my ship?

Yes, the CO is concerned about the victim, but he has obligations as a commander. What will the CO do?

One would think that good order and discipline requires rooting out bad actors regardless of their value and creating an environment where one doesn’t have to fear for their physical safety…and from shipmates nonetheless.

Is the CO, who has all these external pressures and motivations the unbiased arbiter we want in a sexual assault case? Cases which are already messy with collateral misconduct, intoxication, and minor inconsistencies? And why do we expect cases to not be messy? Most victims and offenders of sexual assault are 18-24, yet they are judged by those who are wiser, more reasonable, and who aren’t as susceptible to the coercive environment that surrounds junior sailors.

If you came here for answers, I have none but this:

The commanding officer sets the command climate. CO’s have sailors from all walks of life learning how to be adults, and these sailors are placed under extreme pressures. Their juvenile minds don’t fully develop until they reach 25 (which is further complicated by childhood traumas). So, instead of worrying about the erosion of disciplinary power, I would suggest focusing on rooting out sexual harassment, which only emboldens would-be offenders to cross the threshold into sexual assault.

And let’s be clear, it is the military’s handling of sexual assault and domestic violence cases that has led to this result.

7/29/2021 03:05:35 pm

Responding to the portion of the editor's note citing this study finding: "History and social science can help us assess the claim that a command structure 'reinforced by the ability to impose punishment' is essential for a military unit to perform well under stress."

This is certainly interesting and important data, but it seems to me that the study isn't necessarily focused on the correct aspect of command authority. Yes, an echelon of command must be able to function together under stress to perform well under fire. It also seems reasonable to conclude that punishment is not a significant motivating factor for an individual servicemember to refrain from engaging in misconduct while in a stress environment.

The more important aspect of command authority on which to focus, it seems to me, is the role of discipline in shaping unit coherence long *before* the stress and danger of combat. Since this is an inherently abstract topic, the best way I can think of to illustrate my point is to relate a personal experience.

In 2003, I was the passenger in a HMMW-V as we were just about to RTB after about a 6-hour road trip. I was zoning out more than I should have been, and suddenly we hit an IED/small arms complex ambush. Without thinking, I immediately returned effective fire and helped terminate the ambush. It was the first time I had ever fired a weapon at another person, and this is probably why I remember every detail now as if happened yesterday.

The fact that I returned fire without thinking was pure survival instinct. The authority my commander held over me had nothing to do with that. The fact that I returned *effective* fire is attributable to the hours and hours of training we spent practicing reflexive fire drills at the range before the deployment.

Troops need to be well-disciplined to function well together under fire - sure. But they get that way long before the fight. While we were back at home station doing our pre-deployment training, if I got so drunk the night before a duty day and I therefore missed a trip to the range, my commander is in the best decision to decide whether NJP or CM or some other disposition is appropriate. If I can't shoot straight and as a result I or someone else in my unit gets killed in an ambush, it is my commander who is ultimately responsible for the result.

I agree with Charlie's observation that the "coercive effect of [command] authority is one element of what is necessary to get people to do what is ordinarily unthinkable: to kill other human beings (or be part of the process that does so). " Focusing on the aspect of military service wherein the servicemember is actually doing the unthinkable, as the studies cited in the editor's note seem to do, is useful. How does one go about studying and quantifying the effect of military justice and command authority in shaping discipline and unit cohesion *before* the unit members are called upon to kill other human beings? Unless we are able to quantify this aspect of command authority, it seems to me that such studies are informative but not necessarily conclusive.

Former DC

7/30/2021 08:46:28 am

I have seen no argument that Commanders should lose their authority to: (1) act as an accuser if they think an offense has been committed; (2) utilize non-judicial punishment; or (3) take administrative action to preserve good order an discipline.

Why is it necessary to insist that commanders exercise enormous influence over the outcome of an otherwise purely legal process while they still have those 3 enormous tools at their discretion.

I've been an operational CO - I've exercised the authority to impose NJP as a corrective measure, and when that failed remove someone from the unit.

Even if these proposals pass as written, COs will retain enormous power to incentivize their subordinates to carry out their lawful orders.

7/30/2021 02:16:43 pm

Meh.

Current draft of the Senate version of MJI-IPA:

"(d) Requirements And Limitations.—The disposition of charges covered by subsection (a) shall be subject to the following:

(1) The determination whether to cause charges to be ***preferred*** or refer such charges [most "felonies"] to a court-martial for trial, as applicable, shall be made by a commissioned officer of the Armed Forces designated as a court-martial convening authority in accordance with regulations prescribed for purposes of this subsection from among commissioned officers of the Armed Forces in grade O–6 or higher who..." [is a qualifying JAGO].

https://www.congress.gov/bill/117th-congress/senate-bill/1520/text?q=%7B%22search%22%3A%5B%22military+justice+improvement+act%22%5D%7D&r=1&s=6#idE73B79E7A4A643E8B46ADAA5BE7608DC

Comments are closed.

CAAFlog

UPDATED: Reform Roundup

Categories

Archives