Mil.com: Congress Faces Decision on Military Justice Overhaul

10/24/2021

Congress Faces Decision on Military Justice Overhaul

"At the end of the day, this will happen if the president wants it to happen, and if the military listens to their commander-in-chief," [Sen. Gillibrand] said. "And the only other way it happens is if I'm given the opportunity for an up-or-down vote, and we don't let four men in the room decide everything."

Margaret “Meg” Ryan

10/24/2021 03:22:00 pm

Why have a separate military justice system at all, if these tweaks occur? The camel’s nose is in the tent.

Brenner

10/24/2021 03:30:17 pm

The answer lies, I think, in substantive criminal law, and not in procedure. The procedures may become identical, but there are substantive offenses one would want on the books that a regular jurisdiction will not have. One would also want this substantive law to be uniform and in force worldwide (state law of course wouldn’t give us this).

1984

10/26/2021 01:57:51 am

They should only have court-martials for serious military-type offenses. Any non-military offense can be tried in a District Court, and if the feds refuse and the JAG still wants to pursue, or in minor cases, it should be an Article 15/discharge board.

Anon

10/27/2021 03:29:39 pm

Is a rape in the barracks of a soldier not a military offense? What about theft of a weapon? Attempting to lure a child online to meet? Any why District Court? What about a soldier in Germany or Marine in Okinawa where there aren’t federal courts. Also It would destroy many accused way beyond any UCMJ punishment, ie - CP cases.

1984

10/27/2021 08:23:19 pm

Yes on the first two, due to a military nexus, no on the online predator. Was this supposed to be hard?

I thought about your last point, but I declined to add that since everyone knows what district courts handle out of country crimes.

William Cassara

10/25/2021 02:30:00 pm

IMO Senator Gillibrand will not be happy until the presumption of innocence is eliminated in courts-martial. I know that sounds Draconian but she has done so much to take away the rights of accused service members that it is the only conclusion I can draw.

Anon

10/25/2021 06:52:52 pm

That’s your conclusion? I think that’s absurd. Her desire to remove CA authority from the line betrays a lack of understanding (or lack of caring) of the system for sure. I think a lawyer driven system could result in fewer SA cases preferred and referred, it is the line that is pushed into referring SA cases. But how does this attack a presumption of innocence? Or part of a master plan aimed at that?

Concerned Citizen

10/25/2021 07:06:39 pm

I can't speak for Mr. Cassara, but the focus on numbers of prosecutions and conviction rates is concerning to a lot of members of the defense bar.

William Cassaara

10/25/2021 07:16:07 pm

That is not the only change she has advocated. If it were, I would agree. But she was part of the impetus to do away with the Article 32,remove factual sufficiency review from service courts,and other initiatives that have enured to the detriment of accused service members. So no, I don't think it is absurd. Many in the defense bar agree with me.

Tami a/k/a Princess Leia

10/25/2021 08:31:15 pm

Bill Cassara's observation is spot-on. A lawyer-driven system only draws blame from general officers to JAGs. "Start by believing the victim" turns into "how dare you challenge the victim's credibility" which undermines the presumption of innocence.

Anon

10/25/2021 09:42:50 pm

There is no doubt that the victim's rights lobby has led to an increase in calls for punitive outcomes. One of the goals of the reformers is to solve an "underpunishment" problem. But many others may support the move to take away commander discretion because of an "overpunishment" problem. The arguments from racial bias proceed along these lines, but the problem transcends bias. Incompetent decisionmakers who are mostly concerned about advancing in their careers (and not law or justice) may take the easy way out in most cases, and prosecute even the weak case.

Joshua Kastenberg

10/26/2021 01:08:41 pm

There is quite a bit of hyperbole here. I do not know what anyone's motivation is to reform military justice other than my own. I believe that the system is antiquated. Military judges ought to be more independent and less subject to the judge advocate general than is now the case. I am not arguing to civilianize the military justice system - but rather to move the judges into a more permanent position until retirement under the DoD. I think that a unanimous jury is a proper consideration.

There was a time that Strom Thurmond wanted to move the predecessor to CAAF under the Fourth Circuit - that didn't make him a destroyer of military justice. He distrusted the military appellate process including the Article I construct.

It isn't as though the military justice system is being removed to another branch of government. The "reforms" debated here maintain a commander in chief ownership over the system. (I am not advocating for the reforms other than those I have noted, I am just observing that some of these comments lack substance)

With regard to Judge Ryan - the day that military offenses are taken off the table is the day the justification for the separate system disappears. But right now, there is a policy debate and a part of that debate is whether CAs are in the proper place.

Anon

10/26/2021 09:37:27 pm

If you had MJ’s move into a permanent position until retirement, how does that impact retention of career officers? If they could many MJ’s would stay as MJ’s. It may freeze the judiciary with minimal opportunities for mid career officers. One of the non-monetary incentives to remain in military justice is the opportunity to become an MJ. Chances are small in the civilian world but play your cards right it isn’t too hard to be a trial and then app judge. Limit those opportunities and I suspect a certain amount of people you would want to become MJ’s would leave. There are also some MJ’s who are horrible (as are some civilians) and to give them the opportunity to stay for 10 years would be detrimental to everyone. I don’t have an answer but I am curious as to how such permanent appointments would work long term.

Joshua Kastenberg

10/27/2021 09:31:34 am

Anon

You raise important policy considerations that are certainly worth considering. There is a way to get rid of "bad judges" and the means for doing so are through the ethics rules as well as through administrative actions. An underperforming judge can be retired or moved into the judicial administrative machinery that such a system will invariably create. But my point in bringing this matter up goes to the the heart of your question on assignments and career progression.

Becoming a trial judge in an inferior tribunal (as opposed to being an administrative law judge in a forum which cannot sentence someone for a crime or produce a federal conviction) should not be an assignment action or a career progression move. And yet, an ALJ at Social Security has greater protections in place than a military judge.

Chief Justice Rehnquist in the Weiss opinion recognized that there was the possibility of a judge being reassigned to Alaska for issuing a legally correct but unpopular ruling. But he wanted to give the military (the executive branch) or Congress to assess whether protections were needed. Justice Scalia observed in his concurrence

"no one can suppose that similar protections against improper influence would suffice to validate a state criminal-law system in which felonies were tried by judges serving at the pleasure of the Executive.”

If a considerable lynchpin of fairness in criminal trials is an independent judiciary, then I would argue - not merely based on my own personal experience - that your entirely valid but answerable questions/concerns are outweighed by a reform which maintains the court-martial in the military and judges under the authority of the DoD, but gets the court-martial closer to the fairness aspects we believe of embedded in the Bill of Rights and commensurately under the Fourteenth Amendment.

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Mil.com: Congress Faces Decision on Military Justice Overhaul

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