The conference room in which the Cox Commission II report was released today provided a breathtaking view of the Capitol.  That seemed an appropriate setting, since Congress is one of the report’s key targets.

Judge Cox and two other members of the commission were present — George Washington Law Professors Steve Saltzburg and Mary Cheh.  Gene Fidell, the President of commission co-sponsor NIMJ, also participated in the roll-out.

Judge Cox indicated that the commission concluded that the military justice system is structurally sound.  The commission decided against proposing any changes to the convening authority’s role in the system.  He specifically indicated that consideration was given to recommending that the charging function be reassigned to lawyers, but the idea was rejected in recognition of the military justice system’s dual role as not merely a criminal justice system but also a tool that commanders use to ensure good order and discipline and mission accomplishment.  The commission also chose not to reengage on issues that have been thoroughly debated, such as the oft-raised proposal to remove commanders from the member selection process.

What the commission delivered instead were suggested improvements within the system’s existing framework.  The commission’s report allocates its seven recommendations into three groups:  (1) proposals to make the appellate review process fairer; (2) improvements in the pre-trial, trial, and investigative processes; and (3) the elimination of “an archaic and redundant military crime.”

Two of the three proposals for a better appellate review system are designed to enhance servicemembers’ access to appellate review.  The first would give those who are convicted at contested SPCMs and GCMs a right to appellate review regardless of the sentence imposed.  In support of this proposal, the report notes the serious collateral consequences that usually arise from a criminal conviction regardless of the sentence adjudged.  To someone like LT House, who was convicted in part based on fraudulent DNA evidence, being denied access to the military’s appellate review system risks a lifetime of stigmatization based on inaccurate evidence.  The second proposal urges adoption of the Equal Justice for Our Military Act of 2009, which would allow a cert petition to be filed at the Supremes in any military justice case reviewed by a CCA, rather than only those cases in which CAAF grants review.  The third proposal recommends study of the desirability of allowing waivers of appellate review as a negotiated PTA term.  Judge Cox indicated that while the commission was favorably disposed toward the idea, it did not believe it had sufficient information concerning the potential downsides of the proposal to definitively conclude that the change should be made.

In the second group of proposals, the commission first recommended better defense access to expert assistance both before and during trial.  The report notes several possible means to achieve this goal and ultimately notes the commission’s belief that “the best way to resolve the inequity in expert assistance is to expand the authority of the military judge before the case is referred to trial.”  The military judge, after hearing an ex parte request from the defense, could provide a neutral recommendation to the convening authority concerning a defense request for expert assistance.  The commission also recommended that trial counsel be prohibited from attacking the credentials of substitute experts that the government provides to the defense as adequate substitutes for defense-requested experts.  Currently pending before CAAF is the case of United States v. Anderson, No. 08-0344/AR, which presents a challenge to just such an attack.  Audio of that oral argument is available here.  The final proposal in the second group was a recommendation that all military law enforcement agencies be required to take stationhouse interrogations.

The third group consists of a single proposal:  the elimination of Article 125.  The report notes that the new Article 120 “incorporates and punishes acts of forcible sodomy, nonconsensual sodomy, and sodomy with an underage person.”  Accordingly, “there is no need for a separate provision making sodomy a military crime.”  (One commentator has argued that the maximum punishment for forcible sodomy is higher under Article 125 than under the new Article 120.  But that isn’t a function of either statute; rather, that’s the result of the President’s exercise of his Article 56 authority to set maximum punishments.  The President is free to increase the maximum punishment for forcible anal or oral sex under Article 120 whether Article 125 is repealed or not.) 

The report’s executive summary also noted additional “areas of concern.”  One was the recent amendment to Article 2(a)(10) extending court-martial jurisdiction over civilians accompanying the military in the field in contingency operations.  The report notes “the following issues which should be carefully considered”:

the constitutionality of exercising UCMJ jurisdiction over civilians; the need to have civilians serve on court-martial panels when a civilian is being tried; the kinds of crimes with which a civilian may be charged under the UCMJ; a civilian’s right to appellate review; and the potential criminal liability of a military commander for the misconduct of civilians.

Another area of concern is animal abuse and abandonment overseas.  The report noted “a large number of letters from people overseas on the issue of animal abuse and abandonment by service members of their domestic animals while stationed overseas.”  The commission observed that “[b]ecause this abuse and abandonment often takes place overseas and is beyond the reach of local civilian authorities, service members can go unpunished for the conduct.”  The commission has already sent a letter to DOD “asking that appropriate action be taken to address this problem.”

What next?  The commissioners indicated that they plan to present the recommendations to the American Bar Association to consider whether to adopt them as ABA policy.  Those recommendations that are endorsed by the ABA could then become the subject of an ABA lobbying effort.  (The ABA is already lobbying in support of the second recommendation:  enactment of the Equal Justice for Our Military Act of 2009.)

Shortly after the first Cox Commission report, Congress enacted one of its proposals.  Congress later enacted a second when it adopted the revised Article 120, though Judge Cox made clear today that it isn’t quite what the commission had in mind.  It will be interesting to see how many of this report’s proposals are adopted as either UCMJ or MCM amendments.