In 1983, Congress gave Staff Judge Advocates (“SJAs”) veto power over general court-martial prosecutions. Specifically, Article 34, UCMJ, 10 U.S.C. 834, was amended to stop convening authorities from sending any specification to trial by general court-martial without first being advised by their SJA, in writing, that “the specification is warranted by the evidence.”
That statutory change was intended to be a check on commanders’ discretion. In his Jan 2016 Article, The SJA’s Article 34 Veto: A Force Awakening?, 224 Mil. L. Rev. 289 (2016), Military Trial Judge CAPT Gary Felicetti explains:
The dominant issue in 1983 was more justice for the accused. . . . Both the Supreme Court and the general public distrusted the court-martial process. [Accordingly,] the SJA [was given] de facto veto power over referral of any specification to a general court-martial.
224 Mil. L. Rev. at 297-300.
This was an unprecedented power, and an opportunity to allow trained lawyers to steer the military justice system towards public approval. It was an opportunity squandered.
Dilution of the SJA’s statutory power began almost immediately. With the promulgation of the Manual for Courts-Martial (MCM) and its Rules for Courts-Martial, Congress’ crisp statutory mandate was obscured by “ambiguous  language and confusing cross-references that appear to reject the most explicit language of Article 34, UCMJ.” Id. at 301. Given that implementing guidance, SJAs persisted in behaving as if their duty when dealing with unwarranted allegations was to merely advise the convening authority, who would then decide the issue.
Even SJAs who saw through the regulatory muddying of the waters may have misinterpreted their obligation. They may have thought their task was to merely ensure that the charges sent to trial were supported by probable cause, as opposed to making an affirmative determination that a trial on the specification was “warranted by the evidence.” Merely applying a probable cause standard results in prosecutions that are “produced through a mechanistic process, where [prosecuting authorities] essentially outsource their intuition.” Erica Goldberg, Getting Beyond Intuition in the Probable Cause Inquiry, 17 Lewis & Clark Law Rev. 789, at *4 (2013). As Judge Sol Wachtler famously told the NY Daily News in 1985, under the probable cause standard, even a ham sandwich could be indicted.
Again, the MCM may be to blame for this conversion of SJAs from vipers to venomoids (a snake which has been rendered non-venomous by surgery). Specifically:
The discussion to the rule on the SJA’s pretrial advice states, ‘[t]he standard of proof to be applied . . . is probable cause.’ [and elsewhere it is stated that the standard is] that there are reasonable grounds to believe that an offense triable by a court-martial has been committed and that the accused committed it’ . . .
Neither the ‘probable cause’ nor ‘reasonable grounds to believe’ standard appears in the relevant statute or any previous MCM. According to the MCM analysis, they are based on the ‘warranted by the evidence’ language in Article 34, UCMJ.
The SJA’s Article 34 Veto at 303.
It is indefensible that the MCM should assert that the statute’s discretion-laden “warranted by the evidence” standard really just equated to a mechanistic “probable cause” standard. The error of that interpretation became clear last year with the enactment of the Military Justice Act of 2016 (which was this blog’s # 1 Military Justice Story of 2016). To illustrate how that statute changed things – the current language of Article 34 reads as follows (emphasis added):
The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that . . . the specification is warranted by the evidence.
The Military Justice Act of 2016 changes that language to instead read:
The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that . . . there is probable cause to believe that the accused committed the offense charged.
130 Stat. 2907 (emphasis added).
There would have been no need for that change if, all along, “warranted by the evidence” was synonymous with mere probable cause.
By abandoning their statutory power and obligation to veto unwarranted allegations, SJAs risk failing to protect accused persons from overzealous prosecutions. But, more fundamentally, they risk failing to protect the credibility of the military justice system Congress entrusted them to safeguard. As Judge Felicetti puts it:
The last several years have been stressful times for the military justice system. More is almost certainly on the way. There have been genuine reforms, exploitation of bad and misleading statistics, and plenty of political opportunism. More than a few experienced practitioners think ‘the force’ of military justice—that is, discipline, efficiency, and justice—is out of balance.”
The SJA’s Article 34 Veto at 313.
Unfortunately, Judge Felicetti’s concerns from early 2016 seem to have been borne out. Last spring, the DoD Judicial Proceedings Panel warned that there now exist “serious questions about the fundamental fairness of the military justice process when it comes to the treatment of the accused.” And, just last month, in United States v. Reisbeck (CAAFLog case page), after having to remedy a convening authority’s intentional stacking of a court with jurors tailor-made to favor the prosecution, the United States Court of Appeals for the Armed Forces (CAAF) chided:
The duty to protect servicemembers against unlawful command influence is not ours alone.
To put the nature of the failure in Riesbeck into closer context, CAAF wrote, “the government’s case was weak[.] The government’s case was so weak, in fact, that the Article 32 Investigating Officer recommended the dismissal of the . . . charges against Appellant.” Slip op. at 17-18. That sounds like the sort of allegation “unwarranted by the evidence” which could have been vetoed by the SJA. If such a veto had been exercised, then perhaps what CAAF called “a stain on the military justice system” could have been avoided. Reisbeck, slip op. at 4 n. 6.
Reisbeck’s example of SJA (and the military trial judiciary’s) failure to reign in rogue commanders does not stand alone. The deleterious effect that unchecked command authority has had on the respectability of the military justice system has led CAAF to mention the problem in so many cases of late that unlawful command authority was this blog’s # 5 Military Justice Story of 2017.
In 1983, Congress hoped that by empowering SJAs with prosecutorial discretion, they might be able to bolster flagging public confidence in the military justice system. SJAs were supposed to check commanders’ ability to pursue prosecutions which were, in their estimation, unwarranted by the evidence. Perhaps on account of the obscuring language used in the MCM, SJAs failed to embrace that statutory grant of authority. So next year it will be revoked.
That which is used – develops. That which is not used wastes away. – Hippocrates
Once SJAs have been officially relieved of their veto authority, the only gatekeepers left to screen allegations will be – once again – convening authorities. But even they will operate under the probable cause standard which, as explained above, offers no meaningful room for the exercise of prosecutorial discretion. Accordingly, the military justice system’s handling of charging decisions is set to regress. And, it will regress a time when the DoD Judicial Proceedings Panel says there are “serious questions” about whether the system treats accused persons fairly.
This time, unlike in 1983, these “serious questions” about fairness in military justice are being posed amid the mobilization of a well-organized and mature legislative effort to strip commanders of their prosecutorial discretion altogether. That effort enjoys the support of a coalition of prominent lawmakers which, in an increasingly rare turn for this Congress, is actually bi-partisan. As of the date of this piece, 22 Democratic, 5 Republican, and 1 Independent Senator have co-sponsored Senate Bill 2141, The Military Justice Improvement Act of 2017 (currently read twice and referred to the Senate Armed Services Committee). The measure’s author, Senator Kirsten Gillibrand, explained the purpose of the bill:
We don’t want commanders making the decisions about which cases have to go forward to trial and which cases don’t because those commanders are neither lawyers nor prosecutors nor trained and they will have biases[.]
Additionally, unlike in 1983, the modern legislative movement to excise commanders from the military justice system has been publicly championed by well-funded interest groups like as Protect Our Defenders (POD). According to POD’s tax filings, the group took in a total of $7,487,410 in contributions and grants from 2012 through 2016 (figures for 2017 are not yet publicly available). In turn, from 2012 through 2016, POD spent $1,115,088 on public advertising and promotion. In 2016, for the first time, it spent $12,000 on lobbying.
[Update: POD contacted me to clarify that the “contributions and grants” the organization reported in Part I of their annual IRS Form 990 includes non-cash contributions such as pro bono legal services offered by lawyers to survivors of sexual assault. The more detailed statement of revenue found in Part VIII of those filings shows that POD’s revenue from 2012 through 2016 consisted of $4,134,833 in cash, and $3,352,577 in “noncash contributions.” (2/24/2018 at 7:20 a.m.)]
In 1983, public opinion against the military justice system’s perceived unfairness led Congress to force commanders to cede some of their authority to their SJAs. That effort at power sharing seems to have failed. And still, the old allegations that the military justice system is unfair remain. When the pendulum of public opinion (driven by a bi-partisan coalition that is backed by well-funded private advocacy groups) swings back, once again, towards vindicating the interests of the accused, it is likely to swing hard.
When that time comes, it seems unlikely that Congress will turn to SJAs for a solution a second time. Instead, if Senator Gillibrand’s bill and POD’s advocacy are harbingers of things to come, the next time Congress is looking to limit commanders’ discretion over the military’s system of justice, they may well make venomoids of commanders and SJAs, both. The nature of the public office of Staff Judge Advocate after such reforms would be fundamentally different, as might such an office’s staffing needs.