Scholarship Saturday: A proposal to help Senator Gillibrand’s bill better “improve military justice”
Readers of CAAFlog are, no doubt, well-aware, that Congress is primed to, in the near future, strip commanders of prosecutorial discretion. On Thursday, the Chairman of the Joint Chiefs of Staff, General Mark Milley, said he was open to “significant and fundamental change” in that regard. The most likely vehicle by which military commanders will be denuded of their authority as prosecutors is the Military Justice Improvement and Increasing Prevention Act (MJIA) of 2021. The official text of that bill was recently made available here on Congress.gov. The bill’s sponsor, Senator Kirsten Gillibrand, has marshaled a super-majority in support of the measure, overcoming significant resistance from within her own party.
The relative merits of the proposal have been recently discussed, extensively, by other authors on this blog. They have penned articles such as--
More from the Virtual Hill -- Fidell, Cave, Hillman, and VanLandingham on "Pink Courts" (June 10, 2021)
The Hill: Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study' (June 10, 2021)
Maurer: Comparative Analysis of UCMJ Reform Proposals (June 4, 2021)
NYT on Status of MJIA (June 3, 2021)
Paradis Tomorrow on Lawfare Live (June 3, 2021)
Prof. Dunlap Enters the Fray (June 2, 2021)
A Short Response to Fidell & Cave on Command Responsibility (June 2, 2021)
[Updated] Paradis Enters the Fray (June 1, 2021)
How far have we come (May 30, 2021)
A Reformist Response (May 28, 2021)
Christensen Responds to Schlueter and Schenck (May 16, 2021)
Cave Responds to Schlueter & Schenck (May 15, 2021)
From The Hill today: Schlueter & Schenck on commander disposition statistics (May 10, 2021)
The question of whether commanders should act as prosecutors may have reached culmination recently, but, as this column discussed six months ago, we have long heard the drums, drums in the deep. Indeed, the very first article I wrote on CAAFlog, published in this Scholarship Saturday column more than 4 years ago, was entitled, “The ongoing discussion regarding the placement of military prosecutorial discretion.”
As we move forward, it is important to note that this robust discussion, some of which is captured in the links above, has extended well beyond the narrow question of how commanders exercise prosecutorial discretion. The military justice community's conversations have grappled with fundamental questions about how the military justice system is structured, and whether it adequately provides either justice or good order and discipline.
No. 21-0149/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO HAVE HIS COUNSEL MAKE A PROPER ARGUMENT ON THE EVIDENCE AND APPLICABLE LAW IN HIS FAVOR. DID THE MILITARY JUDGE ABUSE HIS DISCRETION WHEN HE ALLOWED THE MEMBERS TO RECALL THE COMPLAINING WITNESS AFTER DELIBERATIONS BUT REFUSED THE DEFENSE REQUEST TO PRESENT A RENEWED CLOSING SUMMATION ON HER NEW TESTIMONY? DID THE LOWER COURT ERR BY REFUSING TO CONSIDER THIS ISSUE?
II. AN APPELLANT HAS THE RIGHT TO EFFECTIVE REPRESENTATION BY APPELLATE COUNSEL. WERE APPELLATE COUNSEL INEFFECTIVE WHERE: (1) COUNSEL FAILED TO ASSIGN AS ERROR THE MILITARY JUDGE'S DENIAL OF A RENEWED CLOSING ARGUMENT DESPITE DEFENSE COUNSEL'S OBJECTION AT TRIAL; (2) THIS COURT DECIDED UNITED STATES v. BESS, 75 M.J. 70 (C.A.A.F. 2016), ONE MONTH BEFORE COUNSEL FILED A SUPPLEMENTAL BRIEF RAISING ASSIGNMENTS OF ERROR BEFORE THE LOWER COURT; AND (3) THE LOWER COURT REFUSED TO CONSIDER THE ISSUE WHEN IT WAS RAISED DURING A LATER REMAND TO THAT COURT?
The NMCCA opinion is here.
From the CAAFlog desk.
Court of Appeals for the Armed Forces
We are advised the Government may well certify United States v. Mellette to CAAF (discussed here). (From the CAAF Desk.)
United States v. Kyle joins the post-trial issues trailer park. ACCA pointed to the issue in a footnote.
We note that the convening authority failed to take action on appellant's adjudged sentence, and we considered this as part of our review of appellant's case. In light of United States v. Coffman, 79 M.J. 820 (Army Ct. Crim. App. 2020), we find the convening authority's failure to act on appellant's sentence as required by the applicable version of Article 60, UCMJ, while error, was neither jurisdictional nor prejudicial to appellant's substantial right to seek clemency from the convening authority. In making this assessment, we note the appellant pleaded guilty and did not use the opportunity to submit matters to the convening authority under R.C.M.1106. Accordingly, the convening authority's error is harmless in this case.
Courts of Criminal Appeals
They are actively deciding cases, most are summary affirmances.
Potential Appellate Cases
United States v. A Marine. This Marine was accused but not indicted by a grand jury in MA. His GCM began Monday for allegations of murder, voluntary manslaughter, and assault. He was an “on-duty” Reservist at the time of the offenses. (Courtesy of NBCboston.)
United States v. An Air Force Major. A female major is in trial at the USAFA for allegations of sexual and professional misconduct. The accusations include “abusive sexual contact,” abuse of a leadership position, and dereliction of duty, the release stated. In 2019, while working at the Air Force Academy Preparatory School, EC was accused of groping a female trainee on at least two occasions. She was also accused of buying alcohol for underage cadets at the Academy and of having an unduly familiar relationship with a subordinate, according to case records. (Courtesy of The Gazette.)
Pending Appellate Cases
United States v. Stafford. Stafford, an Airman at Mountain Home Air Force Base and covered by the Mountain Home News in 2014 & 2018 with no local court convictions. So reports the Mountain Home News. The non-commissioned officer was prosecuted and convicted of four rapes, one count of attempted sexual assault, one count of aggravated assault, and two counts of simple assault. He was sentenced to 18 years, six months of confinement, reduced in rank to airman basic, and given a dishonorable discharge during his General Court Martial hearing in March 2021.
United States v. Matthews, United States v. DeDolph, United States v. Maxwell, and United States v. Madera-Rodriguez. Army Times has a quick summary. See here, from 2019, which are termed “leaked details.” Madera-Rodriquez is in trial this week.
Cheers, Phil Cave.
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In United States v. Sigrah. An enlisted panel convicted Appellant of one sexual assualt while intoxicated and sentenced him to 18-months, and a DD+.. (The appellate briefs are here.)
ACCA addresses two of five assigned errors. (The Ramos issue was raised as a Grosty.)
CID had the standard video interviews of Appellant, the victim, and two witnesses. Only the Appellant's interview was properly preserved and available for trial. The other videos had been "automatically overwritten" before being preserved on a disc, so were no longer available.
Having found a R.C.M. 914 violation, we next address whether the military judge abused her discretion in finding that the government’s failure to produce the qualifying statements in this case did not constitute a violation of R.C.M. 914 because the loss was excusable under the good faith loss doctrine. The military judge, in a “finding of fact,” concluded there “was no evidence presented that law enforcement acted in bad faith or in a negligent manner in recording” the victim’s and SPCs D and B’s statements. We agree with the military judge’s determination that there was no evidence of bad faith but find her conclusion as to negligence is clearly erroneous in light of the record.
The error however was harmless because the defense had witness statements, interviews, and the opportunity to cross-examine. Of course this does ignore the fact that we often find seeds for fruitful cross-examination from recorded videos. Sometimes you wonder if two different people wrote the statement and gave the interview.
ACCA casts the discovery issue as a bare assertion of error because the trial defense counsel effectively waived the issue. No IAC claim was raised.
[The defense] was first made aware of the DNA report the day before trial. Defense counsel did not raise any concern at that time, or request a continuance. Defense counsel averred that the defense did not receive a copy of the DNA report until the panel was deliberating on a sentence. Defense counsel made clear that he was “not specifically alleging anything at this time,” and that if, after studying the report, he believed appellant was “entitled to relief under Brady . . . the defense will make a request for a post-trial Article 39(a) session with the Court.” In his concluding sentence, defense counsel reiterated, “We do not request a decision today.” A month later, defense counsel submitted post-trial matters discussing the issue but requesting no specific relief. He never requested a post-trial hearing. The record before this court merely contains a copy of the DNA report in question marked as an appellate exhibit, but we have no testimony, much less expert testimony, as to its meaning. We have no litigation or rulings concerning if and when the report was disclosed or made available to the defense. We have no litigation or rulings as to whether the DNA report contains information within the ambit of Brady.
Nor, apparently, did ACCA consider a Dubay hearing. Appellant's Brief of Assignments of Error contains this sentence.
[In the 1105 submitted] defense counsel noted that the USACIL report excluded appellant as a semen contributor to all of the tested items, making this report material to preparation and defense of his case. (Clemency Matters).
ACCA goes on to hold that even if there was a Brady issue, it would be a loser anyway.
During oral argument, appellate defense counsel contended the CAAF’s opinion in United States v. Garlick, 61 M.J. 346 (C.A.A.F. 2005) precluded this court from finding waiver. We disagree. Having carefully reviewed Garlick, not only is it factually distinguishable from appellant’s case, but nowhere does it state, expressly or impliedly, that Brady claims are not subject to waiver.
Maybe CAAF will take this issue of waiver? Will CAAF want to decide that there was a meritorious claim of harm or order a Dubay? Another person's sperm matched the tested evidence and Appellant's did not. Appellant's brief argues that,
[D]ue to the government’s malfeasance, appellant was unable to present a full and complete defense. The presence of SPC ’s sperm cell DNA in the bed would have made the defense case stronger in at least four key areas.
One of the four key reasons arguably raises the SODDI defense.
Cheers, Phil Cave.
Deep-rooted racism, discrimination permeate US military
"The AP also found that the Uniform Code of Military Justice does not adequately address discriminatory incidents and that rank-and-file people of color commonly face courts-martial panels made up of all-white service members, which some experts argue can lead to harsher outcomes."
Check out the SASC hearing from this morning at 1:06:00 -- Link here.
"No. 21-0234/AR. U.S. v. Logan T. Kyle. CCA 20190372. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF CRIMINAL APPEALS OF JURISDICTION UNDER ARTICLE 66, UCMJ.
No briefs will be filed under Rule 25."
The Hill: Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study'
"The United States’ top general on Thursday said he thinks a proposal to remove military prosecutions of all serious crimes from the chain-of-command 'requires some detailed study' while reiterating his openness to such a change only for sexual assault prosecutions."
On June 3, 2021, the Supreme Court decided Van Buren v. United States. The six-justice majority had the first opportunity to interpret the vague language of the Computer Fraud and Abuse Act of 1986. This federal statute imposes liability on unauthorized access of computers. Ultimately, the court held the CFAA does not extend to individuals retrieving available information with improper motives but only to those who obtain information not otherwise available or accessible by authorization.
Facts and Procedural Posture
Nathan Van Buren was a former police sergeant in Georgia. As part of an FBI operation, Anthony Albo asked Van Buren to search a state law enforcement database for a specific license plate number in exchange for $5,000. Van Buren, using his valid credentials, searched his patrol car database for the requested entry. He was in breach of department policy which prohibited the use of a law enforcement database for non-law enforcement purposes. Consequently, Van Buren was charged with a felony violation of the CFAA because running the license plate violated the “exceeds authorized access” clause of 18 U.S.C. § 1030(a)(2). The jury convicted Van Buren, and the District Court sentenced him to 18 months in prison. On appeal, the Eleventh Circuit upheld the conviction under the CFAA. Van Buren appealed to the Supreme Court, which granted certiorari in April 2020.
The Supreme Court decided whether Van Buren violated the Computer Fraud and Abuse Act of 1986, which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.” However, the opinion hinges upon linguistical questions. For example, what does “exceeds authorized access” mean? What is the meaning of “is not entitled so to obtain”?
The majority opinion
Justice Barrett, writing for the majority, first addresses a conflict in the circuits regarding the meaning of “exceeds authorized access.” The statute defines “exceeds authorized access” as “to access a computer with authorization and to use such access to obtain … information in the computer that the accessor is not entitled so to obtain” 1010(e)(6). The definition lends itself to yet another question, what does “is not entitled so to obtain” mean?
Van Buren suggests the phrase mentioned above is best read to mean accessing information that one is under no circumstance entitled to obtain. Thus, getting information from a computer an individual has access to, regardless of purpose, would relieve one of liability under CFAA.
Whereas, the government, taking a different interpretation of the phrase, insists “is not entitled so to obtain,” means obtaining information “one was not allowed to obtain in the particular manner or circumstance in which one obtained it.” It urges the court to adopt a reading that would include liability for obtaining information for an unauthorized or improper purpose.
Justice Barrett ultimately agrees with the petitioner’s textual analysis. On one end of the spectrum, an individual “exceeds authorized access” when a person is not entitled under any circumstance to obtain the information. On the other hand, “an individual [also] “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in specific areas of the computer – such as files, folders, or databases – that is off-limits to him.” The inclusion of the word “so” refers to a previous manner or circumstance cited in the statute itself. Here, it refers to Van Buren’s right to obtain the license-plate information through a manner previously identified in the definition (i.e., accessing a computer with authorization and using that access to obtain information in the computer). Accordingly, Van Buren did not exceed his authorized access, even if he had an improper purpose.
The majority then moves to a structural and historical analysis of the statute. Musacchio v. United States provides two ways 1030(a)(2) can be violated: “accessing a computer without authorization and accessing a computer with authorization and then obtaining information one is not entitled so to obtain”. Van Buren treats these two clauses as consistent with one another, protecting from so-called outside hackers as well as inside hackers. Again, agreeing with the petitioner’s approach, Justice Barrett writes it “makes sense” compared to the many flaws in the government’s reasoning.
Ending with policy arguments, several amici on behalf of Van Buren point to the practical consequences of taking a contrary and broad construction of the CFAA. Trivial breaches by ordinary citizens would lend themselves to expanded criminal liability and a broad prosecutorial reach under the CFAA.
We of course followed with interest the decision to prosecute at court-martial MG Grazioplene--a retired Army officer. He appeared in civilian clothes for the various hearings because he had not been recalled to active duty.  The CAAF decision in United States v. Mangahas caused some rethinking.
Grazioplene eventually pleaded guilty, to serious sex offenses which he committed over a significant period of time, in a Commonwealth of Virginia court. I do think that if he was convicted at court-martial his sentence could well have been much longer than what he was adjudged in the civilian case.
The defense secretary has reduced a retired Army major general to the rank of second lieutenant after he pleaded guilty last year in a Virginia court to sexually assaulting his daughter while in uniform.
So reports Army Times.
 Here there is a photo of him in a not-green suit leaving the TDS Office at Fort Belvoir. True, the courtroom is in the same building.
Brubaker-Escobar is a post-trial issues case.
Upon the advice of the staff judge advocate, the convening authority applied the provisions of the Military Justice Act of 20161 (MJA) and took no action on the findings or sentence adjudged in Appellant’s court-martial. The United States Army Court of Criminal Appeals (CCA) determined that, in light of that court’s precedent, which relied on the President’s executive order in implementing the MJA, the convening authority’s failure to take action on the sentence was error but the error was neither jurisdictional nor prejudicial to Appellant’s substantial rights. The court affirmed the adjudged findings and sentence.
From the CAAF Desk.
United States v. Proctor, __ M.J. ___ (C.A.A.F. 2021)
In Proctor, the CAAF once again attempted to define the gray line of the appearance of unlawful command influence. Specifically, the Court focused on a story told by Appellant’s squadron commander at a commander’s call, highlighting the negative career impacts a military member could suffer for providing a character letter to an accused military member. The call was a week before preferral of charges, but after the he had decided to prefer charges. One year later, Appellant was convicted, receiving no character letters from the members of his squadron during the sentencing phase.
In a three to two decision, the CAAF found Appellant had satisfied his initial burden to establish “some evidence” of unlawful command influence, but “an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding.”
‘Command influence is the mortal enemy of military justice.’ It strikes at the very heart of the system. Unlawful command influence undermines the integrity of the military justice system as well as of the commanders who are responsible for discipline within their units. Unlawful command influence has been a concern since World War I. Because of the number of post-World War II complaints concerning the issue, Congress responded with Articles 37 and 98, UCMJ, 10 USC § 837 and 898, respectively, which make command influence punishable under the Code.
United States v. Weasler, 43 M.J. 15, 16-17 (C.A.A.F. 1995) (internal citations omitted).
The Squadron Commander preferred charges against Appellant in June of 2017 that were withdrawn without prejudice on August 1, 2017. Six days later, at a prescheduled commander’s call, the Squadron Commander addressed various topics, including several NCOs’ misbehavior. He stressed the difference between supporting fellow military members and enabling them; and to demonstrate this difference, he told a story about a junior airman facing NJP who asked him to write a character statement on his behalf. The Squadron Commander refused to provide the letter because he believed his duty was to promote the good order and discipline of the unit, which the junior airman had undermined. Moreover, he suggested that his commander would have questioned his judgment had he provided the junior airman a letter, and the commander may not have sent him to military police investigator school. Though the Squadron Commander did not mention anyone by name or connect the story to any specific NCO misconduct, he testified that, among other incidents, he did have Appellant’s misbehavior in mind when telling the story.
The Defense filed a pretrial motion to dismiss all charges, alleging the appearance of unlawful command influence. Appellant called several members of the squadron to testify about the effect of the squadron leader’s story. Each witness understood the story in a different light. One suggested that the message was “support your fellow airmen, even if they are in trouble.” Another felt free to write a character letter for whomever he wished, though he might have felt differently if he intended to make the military a long-term career. And another left the meeting confused but believed he could cooperate with Appellant’s counsel and write a character letter on Appellant’s behalf without facing any repercussions.
Appellant’s court-martial occurred a year later. By this time, the Squadron Commander had changed duty stations. And no squadron member came to Appellant’s aid during the sentencing phase.
United States v. Bess. Those following the cert. petition with the U.S. Supreme Court previously reported here filed by Pedro Bess, a Black U.S. sailor challenging the secretive process of how panel members were selected where he was convicted by an all-white jury of sexual misconduct against white women. Many of us already argue that the convening authority has an unlimited number of peremptory challenges through the selection process so why should trial counsel have any at trial and the defense so few.
The informal survey of litigation experience is still open to contributions.
The link is here.
The higher the number of responses the better.
TODAY at 2:30 p.m. ET, Michel Paradis, senior attorney in the U.S. Department of Defense and lecturer at Columbia Law School, will join Scott Anderson, Lawfare senior editor, to take questions from the Lawfare community on his recent article, “Congress Demands Accountability for Service Members.” Sen. Kirsten Gillibrand recently introduced the “Military Justice Improvement and Increasing Prevention Act,” which aims to change the way the military handles sexual assault cases by removing the chain of command from the court martial process and is expected to be signed into law. How would the bill reform the military justice system? What issues should lawmakers consider as they finalize the legislation? You can register here "Save my Spot."
Missouri Court of Appeals--Western District
In Missouri v. Gilbert, the court says a jury verdict cannot be impeached when there is evidence the jurors held the accused's silence against him.
The court emphazised the limited exceptions in their state law making it only possible to have testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations.
Gilbert was trying to create a new court made exception for "improper consideration of a defendant's failure to testify in reaching its verdict." The Missouri court said it would not create this new exception.
In doing so, they referenced Pena-Rodriguez where the U.S. Supreme Court "warned that creating further exceptions to the general rule of jury impeachment could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear ... that the jury system would survive such efforts to perfect it.” Pena-Rodriguez at 868.
Mil. R. Evid. 606 is our guide barring impeachment, with three exceptions.
(A) extraneous prejudicial information was improperly brought to the members’ attention;
See, e.g., United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision. Another case to consider is United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member's alleged influence. In United States v. Schloff, , statements by the two senior (O-6) members lead to a new trial: "politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or "based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault."
Note that in Iowa v. Spates, the court said that "appellate review had to apply an objective not subjective standard[,]" when reviewing jury impeachment issues.
[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.
Michael Flynn's 'coup' comment shouldn't trigger a court-martial
"[C]ourts-martial don’t just prosecute conduct that would be constitutionally protected outside of the military; they also follow numerous procedures that the Supreme Court has invalidated in civilian courts. Among many other examples, a conviction in a court-martial requires the concurrence of only three-fourths of the “members” (who serve as jurors) even though the Supreme Court held just last year that the constitutional right to a unanimous verdict in civilian courts is “fundamental.”
These differences are a bug of the military justice system, not a feature. And arguments that we should subject retirees like Flynn to court-martial because of their lesser substantive and procedural protections have things entirely backward. As Justice Felix Frankfurter wrote in 1950, “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” So too, here."
Old-Guard Senators Defy Changes in How Military Treats Sex Assault Cases
"Senator Kirsten Gillibrand has won broad backing for legislation that would cut out the military chain of command in such cases. Now she faces another big hurdle."
"This Friday, June 4, at 2:30 p.m. ET, Michel Paradis, senior attorney in the U.S. Department of Defense and lecturer at Columbia Law School, will join Scott Anderson, Lawfare senior editor, to take questions from the Lawfare community on his recent article, “Congress Demands Accountability for Service Members.” Sen. Kirsten Gillibrand recently introduced the “Military Justice Improvement and Increasing Prevention Act,” which aims to change the way the military handles sexual assault case by removing the chain of command from the court martial process and is expected to be signed into law. How would the bill reform the military justice system? What issues should lawmakers consider as they finalize the legislation?"
Over at Lawfire.
Editor's note: Prof. Dunlap marshals a list of commentators who oppose the reforms, perhaps giving a casual reader the impression of a united front. As anyone following this blog should know, there is no such consensus. The issue has sharply divided this community. At this point, though, there are 65 US Senators co-sponsoring the reform. The time for blogs and articles is over: our elected officials have made up their minds.
Yesterday, we cross-posted a piece I wrote for Articles of War examining the ways that military justice reform might affect law of war compliance. To summarize my basic point, by removing a commander's convening authority over all serious crimes, the current version of S.1520 will also (inadvertently) narrow field commanders' existing authority to "prevent or punish" war crimes committed by subordinates. And that power to "prevent or punish" has been a key feature of the U.S. approach to the "responsible" prong of the "responsible command" under which armed forces must operate to comply with international law.
Does removing convening authority violate international law? No. As I said in the piece, "Countries have different systems of military justice and some countries have no military justice system at all." But it would, by design, dilute commanders' ownership over their subordinates conduct. And as written, S.1520's revision to Article 22, combined with the UCMJ's broader prohibition on unlawful command influence, could perversely prohibit commanders from pressing for any particular subordinate's prosecution for war crimes.
Gene Fidell offered a well-sourced rejoinder to say that my concerns are largely unfounded. Though, starting with our point of agreement, he does agree that S.1520 should be amended to ensure that commanders can support prosecutions without running afoul of UCI prohibitions.
The point of our evident disagreement is whether removing the direct power to punish will undermine the commander's sense of accountability. Gene principally cites the training afforded to senior commanders on their LOAC obligations and the practices of other nations to say it will not. Some sources even suggest LOAC compliance could be enhanced.
I don't gainsay any of those. If anything, as I wrote, letting independent military prosecutors take the lead in war crimes cases may be preferable for all the reasons lawmakers have deemed it preferable for other serious crimes. But is equally true that when lines of accountability are shared, they can get blurry, and when they are blurry, accountability can become muddled.
As Phil Cave noted in a comment, the alleged victims of German military operations in Afghanistan have spent much of the past decade suing Germany because civilian prosecutors opted not to pursue charges. Germany has no military justice system, meaning that it fell to civilians to investigate and make prosecutorial decisions about the conduct of the German armed forces.
The European Court of Human Rights recently upheld the decision not to prosecute, but not because investigators had decisively concluded that the German military complied with the laws of armed conflict. Rather, the ECHR ruled that the investigation was adequate - even if flawed and inconclusive - because of the "special features" doctrine, which recognizes that a country's ability (and therefore obligation) to investigate is diminished by the circumstances of armed conflict. As Marko Milanovic wrote in EJIL:Talk! "the applicability of the [European Charter of Human Rights] Article 2 procedural obligation [to investigate] ... can be applied with significant flexibility on the merits."
Color me skeptical that this kind of "flexibility" when it comes to the rigor of war crimes investigations is a good thing. Again, that is not a challenge to S.1520's broader reform effort. But it is a reason for lawmakers to think about the unique problem of war crimes accountability with specificity. I offered a few ways to do that in my piece for Articles of War. I'm sure there are others. But whatever they are, lawmakers should ensure that commanders retain a credible power - and concomitant duty - to "prevent and punish" war crimes because the U.S. military's ability and willingness to enforce the law of armed conflict against its own (while not perfect) is a key feature of its legitimacy and effectiveness.
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Joint R. App. Pro.
Global MJ Reform
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