Schlueter & Schenck's Final Version of their Defense of Commander Discretion

5/8/2021

Today Prof. Schlueter sent us the final draft of his defense of commander disposition authority. Read Taking Charge of Court-Martial Charges (posted in draft form earlier) here.

Editor's note: In the central section of the argument, Part 5, the authors aim to demonstrate an inherent connection between commander disposition authority and good order and discipline. The core of this section is a citation to the famous case Curry v. Secretary of the Army, 595 F.2d 873, 878 (D.C. Cir. 1979). But Curry is a judicial defense of the congressional balance struck regarding Due Process in military justice.

It is an expression of judicial restraint: "At the outset, we note the difficult burden a litigant shoulders when he challenges congressional decisions governing military practices. Article I, section 8 of the Constitution empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces.” The importance of maintaining an effective military to insure national security renders this power especially broad. Consequently, a court reviewing legislatively approved military procedure “must give particular deference to the determination(s) of Congress.” Curry v. Sec'y of Army, 595 F.2d 873, 876–77 (D.C. Cir. 1979).

What, then, would Curry have to say to a legislator who is herself tasked with striking the balance?

3 Comments

FormerDC

5/9/2021 08:41:10 am

Read the article, still not persuaded.

Modern courts martial are so far removed from the deck plate that they have only the most tenuous, academic connection to good order and discipline,

As long as a commander can serve as an accuser under the UCMJ they can take appropriate action. There is no need for them to serve as the one who approves the draft charges, serves as the grand jury, negotiates any plea, approves/disapproves experts, stacks the jury, constantly risks UCI, and has (thoroughly neutered) clemency authority.

Convening authorities will still have NJP authority for the run-of-the-mill mischief, and I’m not persuaded that removing non-lawyers from the legal process will have any adverse effect on good order and discipline.

As long as a commander can look at a bad Apple and say “I’m accusing you of [UCMJ Offense], you’re administratively transferred out of my unit, and the JAGs will deal with you” I think commander’s have what they need to discipline our all-volunteer force.

John Einwechter, USA Retired

5/10/2021 12:29:32 pm

Curry indicates the commander needs to have the power to refer cases for reasons of resource allocation and "maintenance of discipline and order is imperative to the successful functioning of the military." Congress could give resources to another entity to handle cases, although there could be problems pulling troops out of combat or training to be witnesses. Transfer of the authority to a person outside the chain of command risks damaging the successful functioning of military justice and erodes the power of the commander without providing much benefit. Shifting the responsibility for military justice should not be undertaken without very strong reasons and statistical support that a different system will be more effective. So far no convincing arguments for such change have been made, and if such a radical change is contemplated, it should be tested first through a pilot program in one general court-martial jurisdiction or a single service.

Donald G Rehkopf, Jr.

5/11/2021 03:32:46 pm

SCOTUS has answered this question:

"Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings." Weiss v. US, 510 U.S. 163, 176 (1994).

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Schlueter & Schenck's Final Version of their Defense of Commander Discretion

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