Scholarship Saturday: Prosecutorial discretion, command authority, and the martial context of the phrase “good order and discipline”
There are renewed calls to take prosecutorial discretion away from military commanders. Last month, Senator Kristen Gillibrand (D-N.Y.) released a report arguing that sexual assault in the military is “pervasive” and that, to combat the problem, prosecutorial discretion should be vested in “independent military prosecutors.” Snapshot Review of Sexual Assault Report Files (September 2017). The Senator asserts that this change in prosecutorial authority is necessary to “maintain good order and discipline[.].” Id. That same rationale – maintaining good order and discipline – is regularly cited by those who argue the opposite – that commanders must retain prosecutorial discretion. Reconciling those views requires consideration of the possibility that the two camps are using different definitions of “good order and discipline.”
Senator Gillibrand’s report casts the concept of “good order and discipline” in terms of whether military personnel comply with standards of conduct that apply equally to civilian populations – such as whether military personnel refrain from committing sexual offenses, and whether they refrain from retaliating against those who report sexual misconduct. The Senator’s report does not mention discipline in terms of whether military forces effectively employ combat power.
In contrast, those in favor of keeping the military justice system firmly in the grip of commanders have a distinctly martial view of the concept of “good order and discipline.” In opposing efforts to remove commanders from the helm of the military justice system, “[t]he bottom of the slippery slope U.S. commanders fear is not the over-criminalization of sexual assault, but of warfare itself.” James Kitfield, Why Do Senior Officers Call Sexual-Assault Reform a ‘Slippery Slope’?, The Atlantic (August 16, 2013). American command authorities are concerned that if prosecutorial discretion is taken out of command channels, then combat forces may become less “disciplined” in the sense of becoming “risk-averse, and constantly look[ing] over their shoulders wondering whether they would be charged with a war crime[.]” Id.
If “good order and discipline” is understood to be a measure of martial spirit, then the American military has traditionally satisfied that requirement. If, on the other hand, that phrase is understood to be a measure of rule compliance and subordination, then history tells a more complex story. While it is true that General George Washington once stated that “discipline is the soul of an Army,” he was not thinking of American forces when he made that observation. He was “basing his observations on his experience with British regulars during the French and Indian war.” Washington takes command of Continental Army in 1775, U.S. Army (2014). Instead, he described the American Army as “a mixed multitude of people under very little discipline, order or government.” Id. Similarly, Chief Justice John Marshall, describing American troops, noted that “[a] spirit of insubordination seemed to pervade the whole mass.” The Life of George Washington, Vol. 2, at 327. Nonetheless, American forces were combat effective.
Even by the time of the First World War, it was noted that “the American army seems to me to be as fine a collection of individual physical specimens as I have ever seen. But from the standpoint of military discipline it is a mob, pure and simple.” Dr. Otto Schranzkmuller, Candid Comment on The American Soldier of 1917-1918 and Kindred Topics by The Germans, Intelligence Section, General Staff, American Expeditionary Forces (1919) at 13. Even in the midst of the Second World War, it was accepted that though the American force was lethal, its “training has not yet produced disciplined officers and disciplined men.” General Mark Clark, Fifth Army, Italy (1944), quoted by Max Hastings in Their Wehrmacht Was Better Than Our Army, Washington Post, May 5, 1985.
The conception of “discipline” as being primarily a measure of martial competence as opposed to being a measure of general rule compliance proceeded into the Vietnam era. There, when speaking of his unit’s discipline, “[a]battalion commander at a firebase southwest of Danang lamented the loss of ‘intense aggressiveness’ among his men.” Lt Col Gregory Daddis, No Sure Victory: Measuring U.S. Army Effectiveness and Progress in the Vietnam War at 295. Likewise, a company commander found a lack of discipline in the “declining motivation among his troops,” and commented, “[t]he colonel wants to make contact with the enemy and so do I, but the men flat don’t.” Id. Those examples clearly cast “good order and discipline” in the context of martial fervor.
It matters that different parties to the command discretion argument may have different conceptions of what “good order and discipline” means. That difference helps to explain how the two camps reference the same principle to reach opposite conclusions.