The Bar Association of the District of Columbia
Written Comments submitted
March 13, 2001
to the:
COMMISSION ON THE 50TH ANNIVERSARY
OF THE UNIFORM CODE OF MILITARY JUSTICE
(The "Cox Commission)
General Comments and Recommendations
("Specific Questions, Perspectives, and Matters for Consideration"
relating to the "Final List of Topics" are submitted separately)
To: The Honorable Walter T. Cox, III, Senior Judge, United States Court of Appeals for the Armed Forces, Chair, and the Honorable Members, of the Commission on the Fiftieth Anniversary of the Uniform Code of Military Justice
The Bar Association of the District of Columbia (BADC), established in 1871, is the second oldest voluntary bar association in the United States. Throughout its history, the BADC has taken an active interest in developments of the law, and has conducted training programs and published numerous handbooks addressing various areas of the law. The BADC has frequently testified before Congress and various committees and commissions considering developments in the law.
BADC has taken an active interest in military law, and twice within the past few years has sponsored Recommendations adopted by the American Bar Association addressing military law issues. BADC considers it a privilege and a duty to participate and provide a civilian bar association perspective to the Commission on the Fiftieth Anniversary of the Uniform Code of Military Justice, popularly known as the "Cox Commission." It has been almost two decades since the Congress has held hearings on the operation of the military justice system, and more than three decades since the Congress has held hearings that went beyond very limited aspects of this system. We do not believe that in the last three decades there has been any outside effort to comprehensively examine the system as a whole, and to make recommendations to improve it to ensure it is operating as effectively and as fairly as is practicable. We view it as most appropriate that an effort to do that has now been undertaken under the sponsorship of the National Institute of Military Justice, and we hope that this will be the start of a process which will thoroughly examine and then make appropriate changes needed to modernize the Code and the military justice system.
This document provides BADC's recommendations for change in the military justice system. In a separate document we are providing "Questions, Perspectives, and Matters for Consideration" on many of the topics the Commission has promulgated for comment. Those are designed not so much to make recommendations or to suggest "answers" as to indicate lines of inquiry which ought to be pursued by this and subsequent studies. In the current document, however, we attempt to address the subject of military justice and the current state of the administration of the UCMJ, in broader and more pointed terms. To some degree, this discussion will give credence and substance to our answer to the first of the Commission's questions, whether there is a need for congressional review of the military justice system. The answer to that question is a categorical and definitive "YES!
- - - - - - - - - -
Summary
BADC has several general principles and perspectives which it urges the Commission to have in mind as it conducts its review. These general comments, further developed within, are summarized in the following specific points.
BADC believes the fair and effective operation of the military justice system is a pivotal national security issue due to its impact on good order and discipline.
There has not been a comprehensive public review of the operation of the military justice system in at least three decades, and such a review is much needed. BADC commends the National Institute of Military Justice for initiating this review by sponsoring the 50th Anniversary of the UCMJ Commission.
BADC is presenting extensive comments on the individual topics which the Commission proposed for comment. However, BADC views it to be of crucial importance that the Commission keep in mind its place in history, and seriously consider prior studies and critical articles about this system, and establish at the outset its principles and ground-rules for any recommended change.
The first question to be addressed should be the issue of "justice" or "discipline." BADC urges to Commission to align itself with the best thinkers of the past century, and conclude with such as General William Westmoreland and Major General Kenneth Hodson that a military trial should not have a dual function as an instrument of discipline and as an instrument of justice, but rather should be an instrument of justice and in fulfilling this function, it will promote discipline.
The Commission should carefully study developments in military justice and in concepts of due process not only in our country generally, but in other allied military justice systems as well, which in recent years have experienced startling changes which challenge the continued primacy of the United States system as the "best" and "fairest" of the military justice systems in the world today.
The Commission should bear in mind the subtle pressures imposed by the uniformed, hierarchical structure of this system, and recommend changes that will minimize not only "command influence" but the potential for (or the appearance of) other improper influences (especially on defense counsel) from seniors, whether within or outside the chain of command.
BADC strongly recommends that the Commission commence it's consideration with a thorough review of the changes which General Hodson recommended almost 30 years ago as the preferred alternative to "abolishing" the military justice system. Of General Hodson's seven recommendations, only three have been implemented, and these only in part. Paraphrasing General Hodson, BADC suggests that the most important areas to be addressed by the Cox Commission are:
that military judges be independent and appointed by the President to permanent courts with full judicial powers;
that military juries be randomly selected;
that commanders, at all levels, be 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);
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).
Finally, BADC recommends 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.
- - - - - - - - - -
The Military Justice System is not static. The new system adopted in 1950 was is a far cry from that in place in General Sherman's time, about which he issued his warning to prevent lawyers from emasculating military discipline.(1) In Sherman's day, the court-martial and the discipline system was the agent of the commander; it was the commander who controlled its establishment, its procedure, and often its outcome.(2) Similarly, the system in place today is considerably different from that in place at various times over the past fifty years.
"Justice" and "Discipline" should not be confused. The evolutionary and revolutionary changes in the system, and in the underlying philosophies regarding the system, are crucially important. Following on the prior viewpoint of General Sherman, it is critical that the Commission have a clear view of the basic justification(s) for the military justice system, and have a solid philosophical understanding regarding the often referenced dual functions of the military justice system, namely: justice and good order and discipline. According to a commonly stated view, the "primary purpose of the military justice system is to maintain good order and discipline by holding miliary offenders accountable for their misconduct," and that "promoting justice in individual cases is a second, equally important purpose."(3) Such a view, however, must be carefully reviewed and nuanced, and can not be accepted uncritically, without running a risk of producing a detrimental effect on the work of the Commission. BADC would urge the Commissioners to carefully assess the sentiment expressed by General William Westmoreland, and quoted with approval by Major General Kenneth Hodson, perhaps this nation's most respected military justice expert in the last half century: "A military trial should not have a dual function as an instrument of discipline and as an instrument of justice. It should be an instrument of justice and in fulfilling this function, it will promote discipline."(4)
Other commentators have addressed this topic. "For the first 175 years, under the Articles of War, the military justice system was a command dominated system . . . designed to secure obedience to the commander, and to serve the commander's will. Courts-martial were not viewed as independent, but as tools to serve the commander."(5) Today the situation is vastly changed, and there are what ought to be viewed as two systems, a disciplinary system, and a criminal (justice) system.(6) Those service-members charged with minor offenses and who have potential for further service normally end up in the disciplinary justice system, administered under Article 15, UCMJ. Alternatively, those charged with serious offenses, often-times common law crimes, are put into the criminal justice system, and it is normal for this to act effectively as a "discharge" from the unit. At that point the commander's interest in good order and discipline is enhanced only to the degree that the justice system is widely viewed as being fair, and not as a "tool of command." This view was well expressed in the report to the Secretary of the Army of a 1960 committee chaired by LTG Herbert B. Powell, often called "The Powell Report":
Once a case is before a court-martial it should be realized by all concerned that the sole concern is to accomplish justice under the law. This does not mean justice as determined by the commander referring a case or by anyone not duly constituted to fulfill a judicial role. It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote discipline.(7)
This same philosophy was echoed a dozen years later by a committee appointed by the Secretary of Defense,(8) Applying this approach to the goal of "discipline," it is BADC's view that the commander's principal role in cases of serious crimes is to effectively excise the accused from the unit and to refer the matter for prosecution within the military's criminal justice system. That system should be modified to reflect these realities, and to remove those perceptions of "command control" of the justice system which remain in the current system.
The Commission should be well informed regarding past studies and perspectives. BADC would first urge that the Commission review carefully the literature, and the major studies of the military justice system, which have been conducted since the end of World War II, particularly those since the inception of the UCMJ. We similarly urge that the Commission be mindful of both the realities and the perceptions of military justice which formed the backdrop for the "Ansel/Crowder dispute" during and following World War I. We are convinced that this Commission's work and its recommendations will be most effective and persuasive if based on a careful examination not only of the current status of the system, but also on a thorough appreciation for the long history of military justice. In short, where we are now can only be fully appreciated in light of where we were when, and by what events and philosophies have precipitated the various changes to the system. We have in various footnotes made reference to many of these more important studies and articles.(9)
Updating and modernization to meet current perceptions of due process here and abroad. BADC submits that changed circumstances, and evolving perceptions of fairness, in both civilian and military justice systems, both within and outside the United States, should be carefully considered as the Commission conducts its review. It is axiomatic that "the only constant is change," and any system of criminal justice which is unable or unwilling to adapt to changing perceptions of what constitutes fundamental due process will soon be perceived to no longer achieve a just result in individual cases or in its overall operation.
When he signed the Military Justice Act of 1968, President Johnson said that, "the man who dons the uniform of his country today does not discard the right to fair treatment under law."(10) Since the 1968 amendments to the Code were adopted, and particularly in the years following the adoption of the UCMJ Amendments in 1983, the progress toward a fairer court-martial process has stagnated, if not taken a retrograde turn.(11) Not only must the system of criminal prosecution be fair, but we are constantly and properly reminded of the appearance doctrine in military jurisprudence, first traced back to Supreme Court justice Oliver Wendell Holmes.(12) "Discipline is enhanced far more by a belief that a soldier can get fair treatment than it is by any system of iron-fisted military justice which appears to be unfair."(13) The BADC
perspective will focus primarily on the "justice" (court-martial)
process, as opposed to the "discipline" process, because that is the
area in which the need for change is the greatest.(14)
In its effort to ascertain the requirements of due process for this specialized system of military justice, the Commission would be well advised not to limit its focus to this system only. In the last decade there have been startling developments in military justice systems which share a common source with our system, in particular the changes implemented in the Canadian and the British systems, in part under the influence of the European Court of Human Rights. Ours is an era not only of soldiers and sailors operating side by side in "joint" U.S. commands, but of entire theaters in which United States military personnel operate shoulder to shoulder with allied forces. It would be myopic indeed to fail to carefully study military justice as it is currently implemented in those allied forces.(15)
In conducting its review, BADC urges the Commission to take note of the fact that the military justice system is unique among American criminal justice systems, both state and federal, in that it has been repeatedly subject to criticism for being (or being perceived to be) unfair, often due to the perceived improper influence of commanders in the operation of the system.(16) It is also unique in that only this system lacks certain protections mandated by the Constitution for every other system.(17) The perceptions underlying these observations and criticisms affect the system's ability to instill confidence. When such concerns are raised, it is insufficient, as is sometimes done, to argue that the system has withstood recent judicial challenge, or has been found not to be in violation of the Constitution. It is similarly unpersuasive to simply recall the former glory of the UCMJ, which at its inception was hailed was a marvel of fairness among military justice systems, and which then provided rights such as free defense counsel and a right's warning to accused persons years before similar rights were extended to civilians. It is irrelevant, in the 21's century, that at some time long in the past military members had rights which civilians then did not.(18)
Hierarchical system. The military justice system is a peculiarly hierarchical system where all wear their rank on their sleeve. There are thus subtle, and sometimes not so subtle, influences which pervade the system. The fact that defense counsel may operate in an independent command does not insulate them from, or remove all potential for, undue influence.
Ours is a system which generally places the most junior officers in the role of defense counsel, and which no longer requires real life trial experience and approval by a staff judge advocate and a military judge prior to certifying counsel as competent trial and defense counsel, since officers are now certified upon completion of the basic course. Ours is a system in which many officers, including many junior defense counsel, are career oriented, and are more likely to be concerned about the next evaluation report (unlike the defense counsel of a generation ago who frequently were in the JAG Corps for only one tour). All military lawyers are subject to transfer, and in their next position they may well be supervised by the more senior officer who today serves as the staff judge advocate, trial counsel, or military judge. The pressures are subtle but real, even when all those in the system are "playing by the rules." Regrettably, senior officers are not always perceived to be operating in this fashion.
The instances where a senior officer military judge or staff judge advocate is perceived to exercise rank to influence or intimidate defense counsel generally do not make it into the reporters, but the anecdotal evidence should not be ignored. There are changes that can be made, such as ensuring that attorneys "cut their teeth" on the side of the prosecution, with only those who are most qualified being transferred to the defense.(19) Such policies were once in place in some services. Like fixed terms for military judges, such policies should be required to be part of every service's regulations.
Substantive changes are needed, particularly in a few areas - mostly of of longstanding concern. BADC recommends that the Commission particularly study and address those relatively few substantive areas which have consistently, and for many years, been addressed (and criticized) by commentators, such as the independence of military courts and judges, the method by which court members are selected, the multiple roles of the convening authority, and the mechanisms in place for effecting changes to the system.(20) More recently, the ability of military courts to issue extraordinary writs has been called into question,(21) and the need for a mechanism similar to that in place in federal district court to address post-trial collateral attack on convictions has been raised.
Major General Kenneth Hodson's 1972 Recommendations. BADC urges that the Commission begin its assessment with a careful review General Hodson's 1972 Kansas Law Review article,(22) in which he made a series of recommendations which he seemingly viewed as necessary to change the system, as a preferred alternative to abolishing it. No commentator known to BADC in the 50 years of the UCMJ's existence is more respected or highly regarded than General Hodson. He served as both Judge Advocate General of the Army, and was the first general officer to serve as Chief Judge of the Army Court of Military Review.(23) BADC notes with concern that most of General Hodson's recommendations remain, almost 30 years later, still not implemented, and those which have been partially implemented could use some further work if they are to meet General Hodson's concerns. They involve areas which have remained sources of constant criticism, since they call into question the ability of this system to operate free from doubts about its fundamental integrity and fairness.
General Hodson made seven recommendations, Three have been, at least to some degree, implemented:
(4) an accused . . . be permitted to petition the Supreme Court for a writ of certiorari;
(5) defense counsel be made as independent of command as possible . . .;
(6) adequate administrative and logistical support be provided to permit the military judiciary to function independently and efficiently.(24)
The remaining four recommendations made by General Hodson, have not been implemented at all:
(1) military juries be randomly selected;
(2) military judges of general courts-martial (as well as military appellate judges) be appointed by the President to permanent courts for a term of years [and be given all writs authority, full sentencing authority, and contempt powers]. . .;
(3) a Military Judicial Conference, headed by the Chief Judge of the Court of Military Appeals, be established and given power to prescribe rules of procedure and evidence; . . .
(7) commanders, at all levels, be 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, to prosecute, and, in the event of conviction, to exercise executive clemency by restoring the accused to duty.(25)
BADC believes that it is long overdue for these issues, clearly raised more than a quarter century ago by General Hodson, to be not only addressed, but resolved in a way that will ensure that this system of justice is worthy of the full confidence of the American people, and particularly of those who are subject to it.
Independent courts and judges. Perhaps no single item is more in need of attention than the question of establishing standing courts-martial, with judges whose indicia of independence equals those required in every state and federal court in this country.(26) Standing Courts and permanent judges who possess powers similar to federal district court judges to control pre-trial and post-trial issues, would immediately solve a variety of problems currently existing in this system.(27) It would also provide the structure in which post-trial collateral attacks on court-martial convictions could be resolved, since, in the final instance, the All Writs Act should ideally be exercised by "trial courts" with fact-finding power.
Court-martial member selection. The current process by which members are selected by the commander has been called "the most vulnerable aspect of the court-martial system; the easiest for the critics to attack. A fair and impartial court-martial is the most fundamental protection that an accused servicemember has from unfounded or unprovable charges."(28) The establishment of a neutral body to accomplish random selection of court-martial panel members is a second critical item that must be addressed. The analogy in the federal civilian criminal system would be for the U.S. Attorney to be required to hand select all the members of the jury from a venire limited to employees of the Department of Justice (and typically from persons on her own staff). Such a system would be not only unconstitutional, but unthinkable and obviously inherently unfair. But as long as the commander/convening authority is charged to both exercise prosecutorial discretion and to hand pick the jury, that is precisely the situation (and the appearance of evil) which adheres to this system. It is time for that system to be changed.
Commander/Convening Authority role. The third critical reform needed is the removal of the convening authority from any function inconsistent with the appearance of a fair system which can not in any way be perceived to be within the control of the commander (or of those who work directly for the commander).(29) Other nations have successfully limited the role of the convening authority, either on their own initiative or in response to the pressure of court decisions condemning the practice of having the officer who exercises prosecutorial discretion also exercise other inconsistent "control" functions which interfere with the appearance of a fair trial. This system needs to do the same.
Rulemaking. The American Bar Association has called for reform in the manner in which amendments to the Manual for Courts-martial are prepared and implemented. Currently, the DOD's Joint Service Committee prepares proposed changes, in a process which remains largely secret, despite recent modifications. The ABA has called for a broad based advisory committee to prepare the proposed changes in an open, on-the-record public process. General Hodson went further and called for the establishment of a Military Judicial Conference to make the rules. The two positions are entirely compatible.(30) Reform in this area is long overdue.
It is now almost 30 years since General Hodson called for substantial reform as a preferred alternative to abolishing the military justice system. This Commission should ask the same question: "abolish or change?" BADC strongly believes that "change" is the preferred alternative.
Moratorium. BADC's final recommendation arises from Recommendation 107 adopted by the American Bar Association House of Delegates in February, 1997. That Recommendation reads as follows:
RESOLVED, That the American Bar Association calls upon each jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that are consistent with the following longstanding American Bar Association policies intended to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed:
(i) Implementing ABA "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" (adopted Feb. 1989) and Association policies intended to encourage competency of counsel in capital cases (adopted Feb.1979, Feb. 1988, Feb, 1990, Aug. 1996);
(ii) Preserving, enhancing, and streamlining state and federal courts' authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings (adopted Aug. 1982, Feb.1990);
(iii) Striving to eliminate discrimination in capital sentencing on the basis of the race of either the victim or the defendant (adopted Aug.1988, Aug.1991); and
(iv) Preventing execution of mentally retarded persons (adopted Feb.1989) and persons who were under the age of 18 at the time of their offenses (adopted Aug. 1983).
FURTHER RESOLVED, That in adopting this recommendation, apart from existing Association policies relating to offenders who are mentally retarded or under the age of 18 at the time of the commission of the offenses, the Association takes no position on the death penalty.
The BADC has adopted this policy statement as its own, and urges that the military policy be set to implement this salutary recommendation.
BADC believes the military justice system has some aspects which make it more suspect than some other American justice systems with regard to meeting these ABA standards and guidelines, and which make it necessary for this system to implement a moratorium notwithstanding what action might be taken on the federal civilian criminal justice system.
BADC notes that the military justice system is one in which capital cases are tried with defense counsel who are not required to meet the guidelines adopted by the ABA establishing minimum qualifications for counsel. When this fact is coupled with the questions raised in virtually every military capital case regarding the inexperience and lack of qualifications of the trial defense counsel, and the questions which have been repeatedly raised regarding the "revolving door" of appellate defense counsel during the course of lengthy appellate proceedings, a question of fundamental fairness is unavoidable. Notwithstanding that this system has been upheld in various cases where these challenges have been raised, the question must be asked whether, as a matter of conscience and policy, such a system ought to be continued. The death penalty has come under increasing challenge in a variety of states for a number of concerns, including race. Whether the military justice system has sufficient integrity and reliability to avoid similar issues is in doubt. These are issues which warrant implementing a moratorium until such time as it is clearly demonstrated that these ABA standards are being met.
BADC very much appreciates the opportunity to submit these Comments and Recommendations, and to participate in the Commission's most important work of accomplishing the first systematic review of the operation of this nation's military justice system in at least a quarter century.