“ A military commander must have legal authority over those in a unit. In the military, a commander can order a subordinate to take an action that may result in his or her own death. With the responsibility to prepare and send troops into battle must come the authority. The two must be inseparable. To strip a commander of the authority to make a disciplinary decision undermines the very ability to command. This should not be done lightly.”
This is a conclusion, not an argument. Why are they inseparable? Why does obedience to orders disappear when prosecutorial discretion disappears? And if order-obedience is the only point, then why not just permit commanders to have discretion over the disposition of that single offense?
Fair point, Brenner. From my experience, I suggest that the connection is more nuanced than order obedience *disappearing* with prosecutorial discretion. Troops would still follow orders, and they would still have an obligation to do so. The concern (at least, mine anyway...and it seems that Jeh would agree based on his analysis) is that the loss of prosecutorial discretion inhibits the commander's ability to *shape* the command climate. Army Chairman Gen. McConville recently described this as the "secret sauce" of command - and I think that's a fairly apt description (then-MG McConville was my division commander in Afghanistan, I should probably note in full disclosure).
If the commander retains responsibility for what her unit does or fails to do, she should (at least in my view) have the authority to make important decisions within the command - including charging decisions while maintaining GOaD. Whether it's a good idea or not to have the commander, who has no formal training in the law, making these decisions is of course a matter of perspective. If the authority is removed, though, I think it's an overstatement to suggest that all of a sudden our troops are just going to refuse to follow orders. If they tried, the lawyer would likely be just as inclined as the commander to prefer court-martial charges.
Brian: how do you answer the following charge?
At this point, you and your allies are thwarting democratic will. 66 US Senators representing the vast majority of our population. Gillibrand just tried to call for a floor vote and was blocked again by Reed (who cites your arguments). Can you ignore the democratic will of the vast majority of this country with arguments about "secret sauce," the "sacred" duty of the commander, or some other mystical claim that, of course, non-veterans cannot possibly understand? Does the military get to make its own rules for itself? Your path leads us to the Praetorian guard.
(responding to Brenner, but had to reply to my own comment because we've reached the end of the comment tree)
Your reflections bring up two separate points - first involving the "secret sauce" of command authority and the second involving civilian control over the military. For clarity in discussion, I'll address each in turn.
First to command authority, this is something I think civilians both in and out of Congress interpret in a way that is fundamentally different than uniformed members do. For those in the civilian sector, the degree of authority a commander exercises over those in her command is unimaginable and, for many, unspeakable. That's completely understandable - general mistrust of unchecked and centralized authority over the People is a fundamental characteristic of our Western heritage that dates back at least to the founding of the Roman republic. We wouldn't tolerate that level of authority and control by our bosses in civilian life, so it makes sense that those in the civilian sector distrust the notion of command authority. The thing is, our commanders must direct (not ask) members of their command to carry out tasks that would likewise be unimaginable in the civilian sector. The climate of command that allows that to happen at the "pointy end" has to be cultivated looooooong before battle. If you're trying to build unit cohesion after the bullets start flying, it's too late - those who make it home will be in coffins. While it's true that only a small portion of the armed forced operates at the proverbial pointy end, every unit that *doesn't* supports one that does - directly or indirectly. GOaD is vital at all echelons of command - and commanders at all levels are responsible for the performance of their units. That responsibility requires the authority to maintain GOaD in that unit. Civilians won't get that intuitively, but the best way to understand is to talk to commanders. In the current context, that's not happening because Sen. Gillibrand has managed to get Congress to tune out commanders since the commanders aren't singing her tune. This creates a dangerous condition since those exercising Art. 1 Sec. 8 authority to make rules for the armed forces are completely disregarding input from the field and in fact mistrust what they're hearing from the field. It may be a dangerous condition, but that's where we are...for the moment. What members of Congress *should* be doing is more listening and less talking as they exercise their constitutional authority in an area that is so different from the world they're used to, but instead it's the other way around.
As for civilian authority over the military - look, if Congress passes this thing, I don't think there's any question in anyone's mind that the DoD will say "roger that" and execute. I'm typing on my phone right now and can't see your comment, Brenner, but I think we're a far cry from a Pretoria guard situation (if I'm characterizing your observation correctly). We don't have a constitutionally valid expression of the People's will for now. At the moment, we have a bill sitting in SASC with 66 cosponsors. I know this goes without being said, but that ain't the law. In the Senate, we have one central proponent, a core group of supporters, and a whack load of senators who have become convinced that nothing else has worked and maybe it's time to give this a go. Not exactly the vote of confidence one might expect for a measure the military has said repeatedly should not be implemented. But if we *do* get there - if this makes it in to the final NDAA (let's not kid ourselves, it's not making it to the floor before then) and POTUS signs off, the military will execute and carry on - just like they always do.
I look forward to the opportunity to discuss more at some point, and I'm working on several pieces of scholarship that touch on these issues at the moment, but for now I need to sign off and attend to the kids' bedtime. Cheers, Brenner (and CAAFlog community)!
I genuinely appreciate the robust discussion on this topic, but I'd suggest that this all rests far too heavily on the legal fiction that the only link between good order and discipline is a court martial.
I can't honestly imagine any servicemember looking at their commander's loss of court martial convening authority and thinking - 'you know what, I'm no longer *absolutely terrified* of that senior officer's ability to destroy my career, my reputation, my future prospects, and my potential retirement.'
The delay between misconduct and a court martial is routinely measured in years. The unit moves on to more immediate operational issues long before charges are even referred.
As long as a commander can:
(1) act as an accuser to start the legal process; and
(2) take administrative and non-judicial action to separate the accused from the unit -
then the operational imperative for good order and discipline will continue to be satisfied.
Further, no one is contemplating any action that would diminish a commander's administrative, non-judicial, or even summary court martial authority. A commander would still be able to start processes that throws someone in the brig for 30 days (more if they abuse the PTC system...), imposes thousands of dollars worth of fines (and the other financial consequences associated with reduction), and ends a career with an OTH discharge. If we're recruiting people who are not deterred by those consequences we're not recruiting the right volunteers.
And, from what we hear from our international colleagues, there does not seem to have been any breakdown in GoD from the changes.
You correctly note how long it is taking to courts-martial completed through trial--and not just because of COVID.