Just a few weeks ago, this blog noted that CAAF had been so “unsettled” by the courtroom behavior of a military prosecutor in United States v. Sewell, No. 16-0360 (CAAFlog case page), that the Court named the prosecutor in the decision. However, ultimately, the Court found the conduct was harmless beyond a reasonable doubt and affirmed the conviction and sentence.
On February 21, the Sewell case was featured in an article published in The Daily Signal, which is the Heritage Foundation’s “digital-first, multimedia news platform.” The article, entitled “Latest Case of JAG Malpractice Shows Pressing Need For Reform,” was authored by the Manager of the Heritage Foundation’s National Security Law Program, Charles “Cully” Stimson, who is also, according to his Heritage Foundation biography, a senior naval reserve JAG. An article dispersed exclusively online by an entity derived from a political “think-tank” and aligned with a Political Action Committee will not normally constitute the sort of scholarship this column covers. However, this piece is an exception because it so precisely critiques a fundamental aspect of the military justice system, and because The Heritage Foundation reportedly “wields clout” within the new administration. For those reasons, it is worthy of note even if it is a bit polemic.
The article takes pains to publicly name the offending prosecutor from Sewell, and, in its opening volley, stridently declares:
The Court of Appeals for the Armed Forces (the top military court) has slammed another Army trial prosecutor for egregious misconduct in an Army court-martial.
The article then asserts:
[Sewell] is only the latest in a string of disturbing high-profile cases that deal with the issue of prosecutorial misconduct.
Id. As support for that contention, the article points to CAAF’s 2015 decision in United States v. Stellato, 74 M.J. 473 (CAAFLog case page), where the Court found that military prosecutor’s conduct to be “deeply troubling.” For that case, too, pains are taken to prominently name the offending prosecutor. The article then posits:
Both cases involved supposedly experienced Army prosecutors, one of whom was a special victims counsel and former military trial judge. Both cases involved serious felonies. And in both cases, the prosecutors engaged in gross misconduct that every single misdemeanor civilian career prosecutor in America knows is forbidden, unethical, and outrageous behavior.
Having framed the problem, the article also reveals The Heritage Foundation’s policy. Specifically, the Heritage Foundation, through The Daily Signal, has repeatedly called for legislation that would require the Army and the Air Force to establish a career litigation track for military justice practitioners. See C. Stimson, Army and Air Force JAG Corps Need Career Litigators Now, The Daily Signal (May 2, 2016); see also C. Stimson, Army and Air Force JAG Corps Need A History Lesson and Career Litigators, The Daily Signal (May 10, 2016). The article asserts that the Navy, in contrast, does not need coaxing since it “established a career litigation track years ago.” See C. Stimson, Latest Case of JAG Malpractice Shows Pressing Need For Reform. The article laments that the litigation track legislation ended up being “gutted . . . at the behest of the Army and Air Force, turning the track into an ineffectual ‘pilot program.’” Id. The “pilot program” being referenced was codified as section 542 of the FY2017 National Defense Authorization Act, which can be found on page 127 of the enrolled bill version of that law.
The Daily Signal’s piece ends as stridently as it began:
One would think that, given the widely publicized decisions in Sewell and Stellato that demonstrate such institutional inexperience and gross incompetence, the Army, Air Force, and their former JAGs on the Senate Armed Services Committee would admit that the civilian practice of developing career litigation specialization has merit, and be willing to consider bringing their JAG programs in line with the best practices embodied by their civilian counterparts in district attorney and public defender offices across the country.
After all, they should have a vested interest in creating a highly professional and fair system that is just for victims and defendants and generates confidence in the military justice system. However, their lack of action and the persistence of such poorly handled cases are further proof that the current system is not producing experienced career litigators, and won’t, unless Congress mandates it.
The counter-argument, that judge advocates should be generalists rather than litigation specialists, has also been the subject of media coverage, though not as recently. The most recent media coverage I could find for that point of view is a 2007 interview on National Public Radio’s Morning Edition show in a report called, “JAGs Take a More Central Battlefield Role.” That report featured the following exchanges between NPR reporter Ari Shapiro and (among others) Major General “Charlie” Dunlap, then-Brigadier General “Butch” Tate, and then-Lieutenant Colonel “Mike” Lacey:
Brigadier General BUTCH TATE (U.S. Army Judge Advocate General’s Legal Center and School): When I started, commanders didn’t quite know how to use us in a deployed environment.
SHAPIRO: JAGs handled military justice issues back on base – trials and legal paperwork. Tate says they still do that, but now…
Brig. Gen. TATE: Lawyers are embedded now closer to the ground commander than they’ve ever been before.
SHAPIRO: Lawyers may be advising their commanders on every decision in the field. Colonel Lacey says that means JAGs now have to be generalists on a massive scale.
L[ieutenant Colonel] LACEY: He’s giving the commander advice on military justice – you know, sir, you should court martial that guy. He is giving him environmental law advice. He is giving him advice on fiscal issues – you know, sir, you can use money to do that, but that is not what that money was appropriated for. He is giving him advice on the law of war. He is doing every area of the law that you could possibly imagine.
SHAPIRO: The JAG School in Charlottesville is specifically for Army lawyers. But in every branch of the military, JAGs are now in the thick of combat decision-making. Charlie Dunlap is the Air Force deputy JAG.
Major General CHARLIE DUNLAP (Air Force Deputy Judge Advocate General): The good news is the senior commanders very much value the advice of the judge advocates. The bad news is they very much value the advice of the judge advocates. And it puts a tremendous burden on us to make sure that we have people not only in conversant in the law, but expert in the military piece, the aircraft, and the weapons, and so forth, the strategies.
SHAPIRO: He says it’s not a bunch of guys in pinstripes haggling over the legality of a bombing target.
Maj. Gen. DUNLAP: What really happens is you’re sitting there in the command post, for example, and the commander will turn to you and ask you a question in what I call fighter pilot speak.
SHAPIRO: The commander expects an instantaneous response.
Maj. Gen. DUNLAP: And so you have to be that familiar not just with the law, but with the methodologies, the strategy, the weapons, and so forth, and munitions and what their effects are, so that you can get that instantaneous advice.
The Heritage Foundation’s most recent declamation calling for a military justice career track did not include any discussion of that counter-argument.