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

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