I recently had reason to visit the legal office at Naval Air Station Whidbey Island. I spent two years as SJA at Whidbey Island, and it’s one of my favorite places in the world. The base and surrounding community feel like a time capsule from 40 years ago. EA-6B Prowlers—now being displaced by an F/A-18 variant—are still seen in the sky, along with the aging P-3, a maritime patrol version of a 1950’s turboprop airliner. The air station is strewn with modest, semi-permanent buildings erected during the Second World War, making it look like a Beetle Bailey panel. The base—and some local old-timer retirees—enthusiastically support one of the Navy’s few remaining officers’ clubs. The surrounding town of Oak Harbor is small, dense with Navy vets, and fervently loyal to Naval Aviation. I received only one or two aircraft noise complaints during my time there as SJA. I also received a call from an angry citizen asking if the First Amendment required that the base exchange carry Jane Fonda’s autobiography. Waves of change seem to just wash over Whidbey Island.
My purpose for going to Whidbey was to escort a Navy Captain to see the office and meet with the staff. I didn’t sit in on the meetings, so I had some time. While I was in a no-longer-used wing of the legal building, I noticed an old poster with the UCMJ printed in small print on it. I’d seen these before, but hadn’t seen one in a long while. I always liked these posters. Whenever I look at one it seems like I see something that I hadn’t seen before, or had known about and forgotten. Seeing the whole UCMJ on one sheet makes you think about it differently for some reason.
As I scanned the punitive articles, I paused at Article 120. Of course it was the pre-2007 version. I decided that if they ever update the poster to include the new one, it probably won’t fit on one sheet anymore. New Article 120 might have to go on its own poster. Past the punitive articles were the miscellaneous provisions. It had been a while since I had read Article 137, requiring that much of the UCMJ, including all the punitive articles, be explained to every enlisted member upon entry onto active duty, again six months later, and again at every reenlistment. I don’t remember this statute being given effect anywhere I have ever served. Perhaps there is an instructional block on the UCMJ in boot camp that checks this box. But who tracks folks for their six month anniversary? Has anyone seen a reenlistment accompanied by a UCMJ brief?
My mind went back to the new Article 120. You could hurt yourself trying to explain that. As to the burden shifting in that article, the most forthright explanation one could give to a new member is: no one—not even lawyers—really knows what it means, and it is the policy of military judges to ignore that part of the law.
I thought some more about the implications of a requirement to explain the law to those most affected. The rest of criminal law is largely indifferent to a potential defendant’s legal knowledge. It’s a requirement that says something about our expectations of our legal system and the people who live with it. If you are required to explain the law to service members, it follows that the law shouldn’t be incomprehensible to them.
I think this principle might partly explain why most of the code is so succinct and elegant. It was written to be understood, usually in one reading. Admittedly, practitioners have for a long time had to make use of sources from outside the code in interpreting the code. That might mean drawing on service usage (what is a safeguard and how do you force one?), or judicially created common law principles for example. But I think it’s okay that the code isn’t completely self-contained without reference to our legal and military heritage. Think back to Judge Baker’s dissent in Fosler. Judge Baker, drawing on almost two centuries of Supreme Court precedent, reminds us that
“[T]he military is, by necessity, a specialized society separate from civilian society.” [Parker v. Levy, 417 U.S. 733 (1974)] at 743. And it has, by necessity, “developed laws and traditions of its own during its long history.” Id. Because of the special distinctions separating it from the civilian society, “the military has developed what ‘may not unfitly be called the customary military law’ or ‘general usage of the military service.’” Id. at 744 (quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ “cannot be equated to a civilian criminal code,” id. at 749 . . .
If you accept that it’s okay to refer to service usage and general legal principles to supplement and provide context to our understanding of military law, then it suddenly becomes possible to write statutes that can be explained to service members.
Look at Article 121, for example. You might remember from law school that there isn’t anything trickier or more complex in criminal law than larceny. It’s hard to define, hard to plead, and hard to prove. But the 140 words that make up Article 121 do just fine. You can read the article, understand it, and explain it. Or look at the scant 104 words that comprise Article 128 assault. It’s easy to understand. If you’re a practitioner, it draws on things you already know. Those 104 words get a lot done. So if 104 words are good, the 2,835 words of Article 120 should be great, right? I think we’ve all arrived at the same answer. Maybe part of what’s wrong with Article 120 is that it is completely untethered from the principle promoted by Article 137, and thus also from the “general usage of the military service.” It attempts to be self-sufficient. But in its quest to become comprehensive, it became incomprehensible. Service members don’t get a meaningful Article 137-chance to understand the rules and conform their conduct. Even though the statute bursts with defined terms and should, in theory, give clearer notice of proscribed conduct, it gives much less notice. Even lawyers think it’s gobbledygook.
The thesis, then, of this stream of consciousness (if there is one) is that the Fosler problem—or at least Judge Baker’s problem with Fosler—is related in some fundamental way to the Article 120 problem. Both the majority in Fosler and the drafters of Article 120 could be accused of having a certain blind spot for the “customary military law.” Both uprooted a settled practice in reliance on a statute; one an old statute interpreted a new way, and the other a brand new statute that feels as out of place in our code as Jane Fonda in the Whidbey O Club.
I know Congress is having another crack at Article 120. I hope they have Article 137 in mind when they draft the new new Article 120. If an E-7 can’t read it and then explain it to an E-1, it shouldn’t be in the code. It’s a special kind of system that doesn’t just presume knowledge of the law on the part of a potential accused. It’s a separate system that operates in a separate society. I hope Congress remembers that this year.