Over the years there has been concern about members of Congress making public statements and judgments on specific pending courts-martial. Folks may remember the various statements surrounding the Hamdania cases and similar ones of that time. Even before then there were occasional forays with comments about a particular case. Of course, we may remember the Franklin/Wright issues also. Now someone has written on the subject in an item worth the read.
The Taliban captured Sergeant Robert “Bowe” Bergdahl in 2009 after he walked off of his post in Afghanistan. For five years, he was held hostage, tortured, and brutalized when he repeatedly attempted to escape. Once he returned home, he was investigated and court-martialed for desertion, among other offenses. Under the Uniform Code of Military Justice (UCMJ or “the Code”), the governing law for courts-martial, Bergdahl’s trial should have been free from outside influence. But, long before the case had come to a close, John McCain, the chair of the Senate Armed Services Committee (SASC), pronounced his own verdict. “If it comes out that he has no punishment,” he announced, “we’re going to have to have a hearing . . . . And I am not prejudging, OK, but . . . [he] is clearly a deserter.”
The writer goes on,
Congress’s relationship with the military justice system is at a critical juncture. A crisis of sexual assault in the military has attracted intense congressional scrutiny, and the resulting legislation has radically transformed the system.The days of drumhead military justice are largely behind us, as military justice increasingly resembles the civilian system thanks to productive congressional oversight. But heightened congressional attention has come at a cost. Congress-members have often meddled with the administration of military justice in ways they would never do with respect to proceedings in civilian federal courts. This congressional interference undermines the system’s integrity and, while individual instances have garnered some media attention, the underlying systemic problems have been ignored.
Max Jesse Goldberg, Congressional Influence in Military Justice. 130 YALE L. J. 2110 (June 2021).
The Make Rules Clause, Article I, Sec. 8(14), certainly give Congress the authority to create a military justice system and dictate ways in which it will operate. As part of their authority, they certainly can "investigate," observe, and monitor how the system is working. But where is the line of what is appropriately within their "lane" and what might be considered an abuse of power and authority to the detriment of individual accuseds? That is the question--to do or not to do. From the abstract,
The Note reveals how Congress has become more willing over time to alter the structure and function of military justice, shaping a system that increasingly resembles the civilian courts. But congress-members also have interfered with the everyday administration of military justice in ways that they would never dare to do in the civilian system. This Note proposes legislative reforms to preserve Congress’s legitimate oversight of the enduring problems in military justice and to prevent congress-members from meddling with pending cases in ways that undermine the system’s integrity.
Cheers, Phil Cave.
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