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.
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