There’s often a tension between purity and pragmatism. The original Cox Commission report, issued just before 9-11, was ambitious and eloquent. It advocated a fairly major realignment of the military justice system to shift power from convening authorities to military judges. While two of the Cox Commission I report’s specific recommendations were ultimately enacted, the realignment that it proposed wasn’t.
At the October roll-out of the Cox Commission II’s report, Judge Cox indicated that the commission chose not to revisit convening authority vs. judiciary issues. He noted that proposals to shift some powers from the convening authority to the judiciary have been repeatedly considered and rejected. And he also indicated that the military justice system overall functions quite well as is. So the Cox Commission II decided not to swing for the fences, but to play small ball instead.
The Cox Commission II report lacks the soaring prose of the first report. But this report may end up being more influential than the first. At the roll-out, Judge Cox discussed the greater cooperation between the second Cox Commission and DOD than had been the case with the first Cox Commission. Also Professor Stephen Saltzburg–who was a member of the second Cox Commission but not the first–discussed a plan to attempt to implement the Cox Commission II’s recommendations by attempting to win ABA approval for those recommendations and then harnessing the ABA’s lobbying muscle.
The Cox Commission II issued these seven recommendations:
1. Expand appeal to the Courts of Criminal Appeals and Court of Appeals for the Armed Forces (CAAF) to make appellate review a matter of right in every contested court-martial.
.certiorari, regardless of whether CAAF grants servicemembers2. Enact the Equal Justice for Our Military Act of 2009, now pending in the House of Representatives, to permit direct appeal to the Supreme Court by convicted
3. Consider permitting accused servicemembers to waive their right to appellate review in pre-trial agreements.
4. Improve access of defense counsel to expert assistance during case investigation and trial.
5. Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.
6. Require military law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at law enforcement offices, detention centers, or other places where suspects are held for questioning, or, where videotaping is not practicable, to audiotape the entirety of such custodial interrogations.
7. Repeal Uniform Code of Military Justice, 10 U.S.C. § 925, (Article 125, sodomy).
Adoption of these recommendations wouldn’t revolutionize the military justice system. Most of the changes would be fairly minor, would affect only a small number of cases, or would improve the system’s appearance of fairness but would probably have little actual effect. The two most significant recommendations are probably Numbers 4 and 6, though as to Number 6, NCIS and AFOSI have already moved to videotaping custodial interrogations, meaning that this recommendation’s impact would be largely limited to the Army and Coast Guard. But these modest recommendations would improve the military justice system.
Most of the changes to the military justice system that Congress and the President adopt are proposed by DOD. And DOD has historically been resistant to outside suggestions for reform. So it will be interesting to follow the reform process. The Obama Administration’s DOD OGC took no position on the Equal Justice for Our Military Act of 2009 at the House hearing on the measure, in contrast to the Bush Administration DOD OGS’s opposition. And as an Illinois state legislator, President Obama successfully sponsored a bill to provide for videotaped custodial interrogations in that state, suggesting that the White House may be open to recommendation Number 6 regardless of DOD’s position.
From a political science perspective, we’ll be fascinated by the process of attempting to influence the statutes and regulations that govern the military justice system. And from a military justice perspective, we’re interested in the end result. It will be months or years before we can know the Cox Commission II’s true significance. But the Cox Commission II’s study of the military justice system, recognition of the limitations on achievable reforms, and proposal of worthy, albeit modest, changes rank as one of the top-10 military justice stories of the year.