A common argument by those who favor of having commanders retain prosecutorial discretion in the military justice system is that:

The key to successfully getting both one soldier as well as hundreds of men and women to risk their lives for their country is an organizational structure. This frame work is cemented together by leadership skills and reinforced by the commanders’ ability to impose punishment.

Rachel E. VanLandingham, Discipline Justice and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 N. Eng. L. Rev. 21, 47 (2015).

A piece published in the New England Law Review by President of Mills College, Dr. Elizabeth Hillman, entitled On Unity: A Commentary on Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 N. Eng. L. Rev. 65 (2015) takes issue with that premise.

The article starts by positing:

Unity of command and coercive discipline is much less of a reality in the armed forces of the twentieth and twenty-first centuries than in past militaries. The lessening significance of coercion in military life has been driven not only by studies of combat effectiveness and human behavior, but also by changes in the way the U.S. meets its demand for military personnel.

Id. at 68. Dr. Hillman notes that, rather than coercion, “solidarity in modern armies is seen as dependent on the collective connections between the members of individual units, not on the power of commanding officers. . . . Individuals fight on behalf of the state primarily because of the bonds of their military community rather than command authorities.” Id. at 69. Rather than coercion, good order and discipline in modern militaries is achieved by “’microphysics of power’ rather than sovereign legal authority.” Id.

The article points to surveys of combat soldiers who “repeatedly make statements like ‘higher commanders could exert scarcely any control over those in the field once battle had commenced.” Id. at 70. Instead:

Combat, the distinctive context that most distinguishes military from civilian justice, [and which purportedly serves as the reason command discretion is needed in military justice,] destroys formal authority and creates a situation in which troops are directed and deployed through personal rapport and informal leadership. Inferiors have to be negotiated with, not ordered, in many cases of extreme danger and hardship.

Id. at 70.

Given this dynamic, Dr. Hillman concludes that military commanders may not need prosecutorial discretion in order to maintain discipline. Instead, “discipline is rooted in interactions more extensive than the legal actions of filing charges and trying crimes.” Id. at 73.

This may be true. But, perhaps Dr. Hillman is overlooking the extent to which allowing commanders to exercise prosecutorial discretion positions them to be able to exert a very potent sort of “soft power.” The very sort of “microphysics of power” that Dr. Hillman concedes fosters the sort of bonds between service members and their command chain that inspire combat effectiveness. Shakespeare’s Sonnet 94 explains it better than I can:

They that have power to hurt and will do none,
That do not do the thing they most do show,
Who, moving others, are themselves as stone,
Unmoved, cold, and to temptation slow:
They rightly do inherit heaven’s graces

There are many graces a commander might inherit from their subordinates through the restrained, judicious, and fair-minded use of prosecutorial discretion. Among those graces are: loyalty and combat discipline. Those are graces that we should be reluctant to make military commanders forego. Especially, if Dr. Hillman is correct, and military command is more about persuasion than dictatorial authority.

9 Responses to “Scholarship Saturday: An argument against using the need for discipline to justify allowing commanders to continue running the military justice system”

  1. Scott says:

    I originally read the title as “allowing commanders to continue ruining the military justice system”
    Freudian reading slip I guess.  

  2. Tami a/k/a Princess Leia says:

    Nothing instills confidence like a commander saying, “sorry I can’t do anything, my hands are tied.”  Sarcasm.

  3. SgtDad says:

    Funny how the phrase “unit cohesion” is not used, despite that being what’s talked about.  

  4. Vulture says:

    At a legal briefing for deploying soldiers athe Brigade Judge Advocate was doing her spiel about prosecuting a soldier on a prior deployment.  The question was over the use of a personnel weapon, I believe.  Then the discussion went to rules of engagement or self defense.  But a, somewhat precocious soldier spoke up and said, “Well, I’d rather be judged by twelve than carried by six.”  The BJA just stood there and grinned.
    Soldiers don’t understand the Military Justice system.  It’s too nebulous and far fetched and commander’s do nothing, nothing, to fill that void.  Police officers use the same tact as you describe above, to gain favor by withholding punishment, generally with the cute blond in the sportscar.  That looming specter of punitivity doesn’t evade the notice of the soldier though.  They aren’t stupid and casting of a shadow of some previous wrong doing will be seen as coercion, not grace. 
    I’ve seen the superior to subordinate discourse scoff at the same prose as your basis in our collective heritage.  They might try the “band of brothers” and “once more, through the breach” trope.  But generally end up with “do your bite your thumb at me?”  the moment a comedy starts to become a tragedy.  The gap between the superior to subordinate in the coercive realm IS as wide as a church door.  It IS as deep as a well.  It is grave for the coerced.   So with all the world a stage, it is Hecate that becomes the deus ex machina. 

  5. Zachary D Spilman says:

    Once a case is before a court-martial, it should be realized by all concerned that the sole concern is to accomplish justice under the law. This does not mean justice as determined by the commander referring a case or by anyone not duly constituted to fulfill a judicial role. It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote discipline.

    The Powell Report at 12

  6. stewie says:

    Is this a dagger I see before me?
    Sorry, I was just joining in on the Shakespeare quotations.

  7. SgtDad says:

    … antediluvian military organizational doctrine as a means to ensure that authoritarian military commanders in pre-industrial eras could tightly control their typically illiterate, poor, and conscripted male troops in the chaotic and deadly environment of the ancient, and not-so-ancient, battlefield. 

    The Zoomie colonel doth protest too much, methinks.  Whatever she did in the AF, it was not face-to-face combat.  Military organization may be “antediluvian,” but it persists for a reason — it works.  The central and primary problem of leadership is unit cohesion.  With good unit cohesion, almost all is possible; without it, little is possible.  The realities of war are not politically correct (read Thuycidides) and “justice” must be inferred from the realities of the battlefield, not a sweet, clean Officers Club at, e.g., Kadena.  There is a reason why a 6000 man Roman legion could defeat 50K skilled individual Celtic warriors in Gaul or 30 Marines hold a postion against 3000 determined NVA; that reason had nothing to do with lawyer-think or hindsight analysis of by non-combat types.

  8. Anon says:

    When commanders don’t run the military justice system, you don’t have UCI.  You also don’t a lot of complete frivolous charges going to trial because “their hands were tied” which is double talk for “I don’t want to be fired and/or lose future promotions.”  You don’t have JAG’s unduly influencing Convening Authorities solely on possible career implications for not adhering to the “status quo.”  If that’s the case, then why even submit clemency to the CA?  Turn over Art 120 charges to the Feds.  At least the accused will be afforded an actual chance instead of the current kangaroo court with court martials.

  9. Alfonso Decimo says:

    Tami hit the nail on the head early in this thread. Commanders have abdicated their authority with the “Ensign shrug” as we call it in the Navy. In the event they forget they have no discretion, the DJAG will remind them personally. I can’t visualize a return to the status quo ante, so I agree it’s time to transition the military justice system to one where prosecutorial authority actually resides somewhere. Those of us who are skilled at the UCMJ are like the horse-and-buggy artisans in the era of Henry Ford.