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