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The Core of the Argument for Commander Discretion/Clemency – Critiquing JSS PAS

9/30/2020

5 Comments

 
The Joint Service Subcommittee’s Prosecutorial Authorities Study recently completed its report. This is the conclusion: “The JSS-PAS finds that implementation of the alternative military justice system defined by Section 540F is neither feasible nor advisable.”

The Report is 92 pages long, but the theoretical foundation of this defense of commander discretion is discernable in a short section on the “Purpose of Military Justice.” The military justice system’s non-justice additional purpose is (of course) invoked: “good order and discipline.” Commendably, the PAS notes that this should not be considered a “mere platitude,” and the authors go on to more precisely describe their understanding of the concept. In doing so, though, they lay the groundwork for their own refutation.

Here it is: “Military discipline, simply put, is the respect for authority and absolute obedience to lawful orders. The purpose of discipline stems from the necessity of combat. Against their natural instincts and personal risk, service members must adhere to the orders of their superiors to kill other human beings and risk being killed in harsh and chaotic battlefield conditions…. [M]ilitary justice is meant to inculcate service members in the necessity of good order and discipline. The UCMJ must be an effective tool for commanders to quickly reinforce the absolute necessity for their unit personnel to follow orders.”

The distillation of the concept of good order and discipline into a form of obedience to authority is a somewhat sweeping proposition, and the report is tellingly sparse on citations that would support it (either as a historical or normative matter). The one citation given, to an article by Prof. Lederer, gives the example of the system’s demand for “compliance with positive instruction, e.g., ‘take that hill.’” Fredric I. Lederer, From Rome to the Military Justice Acts of 2016 and Beyond: Continuing Civilianization of the Military Criminal Legal System, 225 Mil. L. Rev. 512, 515 (2017). But let’s take the authors at their word: the point of this separate criminal system is to ensure obedience during wartime.

If that is true, then one wonders why the current system looks and functions like it does.

We are in a post-Solorio world: conduct that forms the core of state criminal codes, and is totally unrelated to military service – and especially unrelated to obedience – is routinely punished. Take the example of Chief Petty Officer Jerry White in the case argued yesterday; White purchased online child pornography. Does this undermine our expectation that he will follow orders when asked to act against his “natural instinct[]” for self-preservation during a wartime combat situation? Of course not, and moreover, it seems far-fetched to apply this rationale to all military members, most of whom are not in combat roles. It is especially farfetched to apply it in peacetime. The possibility that the cook at Fort Benning might one day be asked to “take that hill” seems too remote to stand as the theoretical justification for why his commander should decide whether he is prosecuted for using a stolen debit card. 10 U.S.C. § 921a. If the point of the system is mere obedience, then PAS should recommend repealing all offenses other than Arts. 88-92.

The PAS authors want it both ways: they want a post-Solorio system (they reject treating different offenses differently) in which civilian-type offenses can be punished with lengthy terms of incarceration, but they want civilian-like procedures dispensed with in place of the commander’s discretion at both the front and back end of the trial. They want a “justice” system with respect to conduct punished and form of punishment, but a “discipline” system with respect to its procedures.

N.B. Page 58 contains this astonishing admission: "In the case of the U.K., Australia, and New Zealand, the change was a direct result of an increased willingness on the part of their courts to view commander driven courts-martial as inconsistent with their obligations under international human rights treaties. While the motivation for Section 540F is not necessarily clear, ensuring the military justice system complies with human rights obligations is undoubtedly not a U.S. concern." 

Brenner Fissell

EIC

5 Comments
Philip D. Cave link
10/1/2020 10:04:44 am

Regardless of who wins the argument, steps should be taken to apply the Principles of Prosecution found in Sec. 9-27.000.

https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.200

Reply
Cloudesley Shovell
10/1/2020 05:17:41 pm

The difficult subject of "good order and discipline" is beyond a blog comment, and perhaps better understood by those who have served in an actual combat or front line unit.

I will say this: it is utterly absurd to state that a Navy ship CO or an Air Force fighter squadron commander or an Army battalion or regimental commander should cede disciplinary authority in his unit over to a lawyer or group of lawyers.

There is much to criticize in the UCMJ and its myriad judicial interpretations. It was built for a draftee military, and the subsequent legislative and judicial changes to it have not helped much to adapt it to the present day all-volunteer force. To compound the problem, enormous swaths of the UCMJ have fallen into disuse, specifically the CA's post-conviction powers to suspend and remit findings and punishments, tools specifically designed to permit a command to rehabilitate a wrongdoer.

Actual numbers of courts-martial today are a tiny fraction of what they once were, even in the 80s. This reflects a great shift to administrative measures, which are much more powerful in an all-volunteer force, and also much quicker than the process-laden modern UCMJ. Article 15 in the hands of an intelligent commander is all one needs to maintain good order and discipline: I have seen it work well in the hands of several different commanders.

Given that nowadays courts-martial are reserved for more serious cases, perhaps the best thing is to create an administrative remedy that boots a person out of the military, subject to restoration in the event of an acquittal, if serious charges are brought against a military person, whether the charges be state or federal.

Nonetheless, a commander must have at his disposal, especially aboard ships at sea or forward-deployed units, a system for the punishment of both petty and serious offenses.

As for your example of the White case---first off, he is NOT a chief petty officer. He is a first class petty officer, an E-6, and in Navy parlance, he is AE1 White. What's really appalling is that the supplement filed with CAAF by his defense counsel (a Marine Captain) refers to him as "Jerry R. White, Chief Petty Officer (E-5), US Navy." Were I a CAAF clerk or judge, I would reject the pleading on the two mistakes in that quote alone. Were I the director of OJAG Code 45, a certain Marine Captain would be doing EMI for the whole command on the US Navy enlisted rank structure.

Let me continue. The question is not, manifestly not, absolutely not, whether he will follow orders in combat. The real question is whether his command would have any discipline or good order, or whether AE1 White would survive without a beating or being tossed overboard, once it became known that AE1 White paid money to watch some sick bastard rape a child. That's the real issue. Had this information come to light when AE1 White was deployed aboard a Navy vessel, he'd be put in the brig and then flown off the ship at the very first opportunity, purely for his own protection. No matter how skilled an aviation electronics technician he is, he will never ever be an effective member of any military unit because his mere presence would be utterly toxic. No command will want him, even if his conviction is tossed because of a bad search authorization. Formal adjudications of guilt are meaningless in this kind of situation--he'll never be an effective member of a military unit.

Kind regards,
CS

Reply
Poster
10/1/2020 10:41:12 pm

If AE1 White is the only electronics technician that can fix the GPS on the aircraft that is supposed to fly him off the ship you have something of a problem don't you?
The enemy rarely cooperates, so Commanders need to be practical. It's a balance between rights of the Accused and good order and discipline. Enable the Commander, protect the service member.
If AE1 White is that good, yeah, I'd keep my combat capability up. And so would all my staff.

Reply
Frank Rosenblatt link
10/2/2020 10:43:13 am

CS writes "it is utterly absurd to state that a Navy ship CO or an Air Force fighter squadron commander or an Army battalion or regimental commander should cede disciplinary authority in his unit over to a lawyer or group of lawyers."

In the Army such authority has already been voluntarily ceded. Nearly every Army installation has a local supplemental regulation to AR 27-10. Nearly every one of these local regulations withholds initial disposition authority for certain serious offenses, and all allegations against E7s and above, to the commanding general. The commanding general has pressing duties other than closely studying the dozens of such cases that arise every week, so this work is managed by a pool of staff attorneys and paralegals working for the SJA.

Reply
Nathan Freeburg
10/2/2020 11:19:47 am

As to what Frank said, I concur. And would add the same is true for the Air Force. Command authority over MJ (other than referral decisions) is mostly fictional in the Army and Air Force.

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