Top Ten Military Justice Stories of 2018 – #10: SecDef says that “it is a commander’s duty to use [the military justice system]”
Equating “vigilant operational security, protection of electronic equipment, and responsible social media activity,” Secretary Mattis quoted George Washington’s observation that “discipline is the soul of an Army. It makes small numbers formidable; procures success to the weak, and esteem to all.” But Mattis’ concern seemed to be not so much a general lack of discipline as a general lack of punishment.
Decrying non-punitive administrative action (like involuntary separation from the armed forces) as an easy-but-wrong way to address substandard conduct, Secretary Mattis wrote that it is a commander’s duty to use the military justice system:
The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it. Military leaders must not interfere with individual cases, bur fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system.
(Emphasis in original). Not all illicit conduct is the same, of course, but Secretary Mattis’ memo did not draw such fine distinctions. “All Service members learn to fight well by doing the little things perfectly,” Mattis wrote, “otherwise they cannot possible get the big things right when all goes wrong.”
It’s easy to envision the effects of the memorandum. More courts-martial in general, certainly, but also perhaps more courts-martial of retired members (our #1 Military Justice Story of 2017) and more courts-martial after state prosecutions for the same acts (assuming such things remain Constitutional). Those consequences make the memorandum our #10 Military Justice Story of 2018.