New military judges

8/11/2021

The Navy JAG Facebook page just posted this update:

On July 2, after an academically rigorous and stressful three weeks, over fifty of our military's most accomplished and credentialed attorneys and justice practitioners graduated from the 64th Military Judges course at the Judge Advocate General's Legal Center & School. These graduates are now the most visible symbols - and central figures - of a military justice system. Their time of the bench will bea mong the most challenging and rewarding assignments they will ever undertake. In the face of staunch criticism from very high places, they will make the tough calls, tune out the noise, and fiercely guard their independence. They will be the very definition of principled counsel. Ultimately, as military judges, they will ensure our military justice system is just, efficient, and effective because lives literally depend on it. Bravo Zulu!

Good luck to the new military judges.

Frank Rosenblatt

Isaac Kennen

8/11/2021 11:17:57 pm

Military judges.

Professional? Certainly.

Impartial? Maybe.

Independent? Certainly not.

If, as the DC Circuit found, Vance Spath lacked the independence expected of a judicial officer in the military commissions system merely because he applied for a job with the agency appearing before him, then it is hard to see how military judges could fare better. They actually work for the the agency that litigates cases in front of them, and they depend on that agency for their continued employment, promotion, and assignments after they inevitably leave the bench.

We need true independent judicial officers in courts-martial - not folks serving temporary assignments who are appointed by, and directly accountable to, the same TJAGs who oversee all prosecutions (and regularly face the wrath of Congress for perceived prosecutorial failures).

Until we have an independent judiciary, it’s an open question whether it is even possible to have an impartial one.

Brenner

8/12/2021 08:56:32 am

What changes do you propose? A separate career track? GS-15 ALJs?

Donald G Rehkopf, Jr.

8/12/2021 10:23:40 am

I suggested civilian AJ's years ago. If it works within DoD's DOHA system, it will work with courts-martial. Zak nailed it!

Concerned Citizen

8/12/2021 10:18:02 pm

If it is anything other than military officers, why not Article III judges?

Frank Rosenblatt

8/13/2021 01:59:48 pm

Scrapping, or at least extending, mandatory retirement dates for military judges would be a start.

Rory Fowler link

8/15/2021 11:21:28 am

A Brief Canadian Perspective:

In the Canadian Forces, we struggled, and continue to struggle, with the independence of Military Judges. The Canadian version of certain elements of the UCMJ were challenged 30 years ago in R v Généreux, [1992] 1 SCR 259. Prior to that judgment, our Military Judges (referred to at the time as Judge Advocates) were selected on an ad hoc basis by the Judge Advocate General (in US parlance, TJAG) from a list maintained by the JAG. Panels for General and Disciplinary Courts Martial were selected by the General Officer who was the Convening Authority. Prosecutors were selected on an ad hoc basis by the JAG. There was, ostensibly, no prosecutorial independence, no meaningful judicial independence, and the executive selected the Panel Members for Court Martial.

Généreux precipitated significant legislative amendment to the structure of our Courts Martial. Following the enactment of Bill C-25 in 1998, Military Judges would be appointed to positions (albeit on 5-year fixed terms, renewable by the Minister of National Defence), a separate Director of Military Prosecutions (still under the general supervision of the JAG) was created, and a Court Martial Administrator would select the Panel Members at random.

But Military Judges were appointed to fixed terms (which was expressly mentioned, with approval, in Généreux). The impact of fixed terms on the independence of Military Judges was successfully challenged in R v Leblanc, 2011 CMAC 2, which gave rise to further legislative amendment, in which Military Judges were appointed until compulsory retirement age (60). Gone was the impact of 're-appointment on fixed terms'.

Concerns about independence of military judiciary persist. This led to a series of applications in 2020, which eventually led to a stay of prosecutions for select cases in the Fall of 2020. These decisions were successfully appealed by the DMP in R v Edwards, et. al., 2021 CMAC 2. Although the CMAC held that Military Judges are now sufficiently independent, I must confess that I find the judgment thin on reasoning. In the Third Independent Review of the National Defence Act, completed 30 April 2021, former Supreme Court of Canada Justice Morris Fish's first recommendation was to 'civilianize' the military judiciary. This issue is not yet fully resolved.

Comparison of different military justice systems can be a challenge. There are obvious fundamental differences between Continental and Common Law systems. However, even across the five principle Anglo Common Law systems (US, UK, Canada, Australia, NZ) there remain some marked differences, due in no small part to some significant constitutional differences. Cherry picking factors or examples can be a recurring temptation in comparative analysis. However, such analysis would be a worthy endeavour at this point in time.

Rory Fowler link

8/15/2021 12:29:50 pm

Oh, and here's a fun fact:

After Canada entrenched the Canadian Charter of Rights and Freedoms (Charter) in our constitutional law in 1982, subsequent initial judgments on the independence of the judiciary, generally, (e.g. Valente v The Queen, [1985] 2 SCR 673) and the examination of the right of a person charged with an offence "... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ..." pursuant to s 11(d) of the Charter relied heavily on pre-Charter case law that focused on the independence of military judiciary (MacKay v The Queen, [1980] 2 SCR 370).

We have now come full circle...

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New military judges

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