Resolution
WHEREAS the Uniform Code of Military Justice (UCMJ or Code) was enacted in 1950 and took effect in 1951; and
WHEREAS in § 556 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Congress commemorated the 50th anniversary of the Code, and noted that it had "enacted major revisions of the [Code] in 1968 and 1983 and, in addition, had amended the code from time to time over the years as practice under the code indicated a need for updating the substance or procedure of the law of military justice;" and
WHEREAS Congress, in Section 556, asked the President to issue a suitable proclamation, and called "upon the Department of Defense, the Armed Forces, and the United States Court of Appeals for the Armed Forces and interested organizations and members of the bar and the public to commemorate the occasion of [the] anniversary with ceremonies and activities befitting its importance;" and
WHEREAS the National Institute of Military Justice, believing that an integral part of those commemorative activities should be an appraisal of the current operation of the Code and an evaluation of the need for change, is, in coordination with The George Washington University Law School, sponsoring a Commission on the 50th Anniversary of the Uniform Code of Military Justice ("The Cox Commission"); and
WHEREAS the Cox Commission's goal is to solicit from all interested parties comments and suggestions regarding the operation of the military justice system and to submit to the House and Senate Committees on Armed Services, the Secretary of Defense, the Service Secretaries, and the Code Committee the record of its proceedings, including any recommendations for change or for further consideration by the Congress and the Executive Branch; and
WHEREAS The Bar Association of the District of Columbia, has in the past taken an active interest in military law issues, and has sponsored Recommendations addressing military law issues which have been adopted by the American Bar Association; and
WHEREAS The Bar Association of the District of Columbia believes that the fair administration of military justice is a matter of vital national security concern on which civilian bar association viewpoints will be of great value to the work of the Cox Commission, and to the development and improvement of the military justice system to make it as fair and effective a system of military justice as is feasible;
NOW, THEREFORE, BE IT RESOLVED that The Bar Association of the District of Columbia endorses the importance of the work of the Cox Commission, and authorizes the President of The Bar Association of the District of Columbia and his designees from its Military Law Committee to present oral and written recommendations directed toward improvement of the military justice system for further consideration by the Cox Commission at its scheduled hearing on March 13, 2001; and
BE IT FURTHER RESOLVED that The Bar Association of the District of Columbia urges that the Cox Commissioners conduct their review with the following principles in mind:
a. The Military Justice System is not a static system, and needs to be updated and modernized to meet current perceptions of due process both here and abroad;
b. As a hierarchical system, particular care must be taken to ensure that undue influences of seniors, particularly on junior defense counsel, are minimized;
c. That a military trial should not have a dual function as an instrument of discipline and as an instrument of justice, but must rather be an instrument of justice, and in fulfilling this function, it will promote discipline; and
d. That the Commission should be well informed regarding past studies and various scholarly works which have addressed the need for reform in this system, and regarding recent changes made in similar systems of military justice in other countries; and
BE IT FURTHER RESOLVED that The Bar Association of the District of Columbia endorses the following specific positions, and urges the Cox Commission to recommend suitable amendments to the UCMJ or to the Manual for Courts-Martial to ensure:
a. that military judges are independent and appointed by the President to permanent courts with full judicial powers;
b. that military juries are randomly selected;
c. that commanders, at all levels, are completely relieved of the responsibility of exercising any function related to courts-martial except, acting through their legal advisors, to file charges with a court for trial (and possibly, in the event of conviction, to exercise executive clemency by restoring the accused to duty);
d. that a Military Judicial Conference, headed by the Chief Judge of the Court of Appeals for the Armed Forces, be established and given power to prescribe rules of procedure and evidence (using a broadly constituted advisory committee and open and public procedures); and
e. that the American Bar Association Recommendation # 107 adopted in February 1997 be implemented, and that a moratorium on capital punishment be imposed until it has been demonstrated that all military policies and procedures are consistent with the four longstanding ABA policies intended to ensure that death penalties are administered fairly and impartially, in accordance with due process, minimizing the risk that innocent persons may be executed.
Adopted March 7, 2001.
Board of Directors
Bar Association of the District of Columbia