Maurer: An Open, but Difficult, Challenge: Finding the Rationale for a Commander’s GCMCA for all Offenses
Readers of this site know well by now that in the 2020 NDAA, Section 540F, Congress tasked the DoD to conduct a feasibility study of a proposed “alternative” justice system, including the feasibility of a pilot program to test beta versions of such a system. This alternative would remove Court-Martial Convening Authority for all “felonies” from commanding officers and shift it to senior, experienced judge advocates. As Michael Paradis wrote, this would be a significant paradigm shift with dramatic practical consequences. As I wrote previously, the 540F proposal would be an escalation from the usual talk of taking such power away for sex crimes, but was actually quite limited in scope. It did not ask the DoD to differentiate UCMJ crimes based on anything more than the felony/misdemeanor distinction, thereby ignoring potentially relevant differences between “martial” and “non-martial” offenses (I define “martial offenses” as those military-nexus offenses with no civilian analogue like AWOL, malingering, trainee abuse, disobedience, conduct unbecoming an officer, and various others that may be “prejudicial to good order and discipline”). Nor did it task DoD to critically analyze or justify the myriad other investigative, prosecutorial, and quasi-judicial authorities currently invested in commanding officers other than court-martial convening authority, like the power to authorize searches and seizures, to arrest, to detain, to confine pre-trial, to decide what to charge, to dismiss charges, to approve plea deals, and to select panel members. Nor did it require the DoD to conduct any empirical survey or study to collect and quantify useful and relevant data (like, do commanders – at all echelons – actually understand their legal authorities, or do they default to reliance on their judge advocates anyway, and do they want those legal authorities?). The DoD’s Joint Service Committee’s ad hoc subcommittee for the “Prosecutorial Authority Study” (PAS) completed the 540F task and submitted its Report earlier this month, which Brenner Fissell recently summarized and critiqued here.
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Lieutenant Colonel Dan Maurer