Scholarship Saturday: Justice – a new focus for a military criminal law system plagued by unlawful influence?
Yesterday, the blog Lawfare published a timely piece written by Army judge advocate, Major Dan Maurer, entitled Trump’s Intervention in the Golsteyn Case: Judicial Independence, Military Justice or Both? In the article, Major Maurer tries to make sense of a variety of recent developments impacting the military justice system.
The article first explores the Supreme Court’s decision this past summer in Ortiz v. United States, 585 U.S. ___, 138 S. Ct. 2165 (Jun. 22, 2018) (slip op.) (CAAFlog case page). Ortiz is this blog’s #1 Military Justice Story of 2018.
The big take away from Ortiz, at least in Major Maurer’s eyes, was the new way in which the Supreme Court characterized the military justice system. Specifically, rather than describing the purpose of the court-martial system as being to aide commanders in maintaining good order and discipline, Ortiz cast that as being a mere “attendant, or supplementary” benefit. Instead of being a tool of executive power, the Court seemed to describe the military justice system as having a “fundamentally judicial nature.” Indeed, rather than paying homage to the good order and discipline mantra, Major Maurer points out:
[T]he Supreme Court described the military’s system without [even] mentioning the role of the commander.
Indeed, if the Supreme Court’s explanation of military justice in Ortiz is taken to its logical conclusion, the role of the commander may be at risk of disappearing entirely. After Ortiz, military justice exists primarily to promote justice for a certain class of people, rather than, as the Preamble to the Manual for Courts-Martial currently says, “to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”
If Ortiz is understood as being a watershed moment for the court-martial system – redefining it as being primarily a system for achieving justice rather than as a commander’s tool for enforcing discipline – then the opinion is a game-changer for the issue of unlawful command influence.
Recent cases like this blog’s #2 Military Justice Story of 2018, United States v. Barry, 78 M.J. 70 (CAAFlog case page), aptly demonstrate that the military courts have already lost any sense of humor when it comes to actions that might constitute unlawful command influence.
In Barry, the “bad actor” who illegally influenced the court-martial system wasn’t even a commander. That actor was a service Judge Advocate General – essentially a staff officer, albeit a high-ranking one.
And the Barry decision doesn’t stand alone. Indeed, two years ago the #5 Military Justice Story of 2017 was Unlawful Influence on account of a string of cases illuminating the problem. Cases like United States v. Boyce, 76 M.J. 242 (CAAFlog case page), United States v. Chikaka, 76 M.J. 310 (CAAFlog case page), and United States v. Shea, 76 M.J. 277 (CAAFlog case page).
Whatever lingering patience courts may have had for commanders “walking the line” on the issue of unlawful influence may have dried up with the Ortiz opinion. In the past, commanders, aided by their legal staffs, were the helmsmen of a system designed to maintain good order and discipline. That system may now be better understood as serving a different primary purpose: the administration of justice. Enhanced discipline is merely a happy side effect. Commanders or staff officers who get it twisted do so at their peril. After all, the new Article 131f(2) of the UCMJ punishes unlawful command influence as a crime if committed knowingly and intentionally.
In that light, the President’s recent tweet indicating his intent to “review” the murder charges against “U.S. Military Hero, Major Matt Golsteyn” is thought-provoking. As has been reported , Major Golsteyn is facing charges that he unlawfully killed a suspected Taliban bomb-maker while deployed to Afghanistan in 2010. The President’s public comments on the case, and his promise to “review” the matter is interesting because:
Since military criminal law is arguably (at least to the Supreme Court) a matter of fundamental justice with only subsidiary consequences for a particular command or commander, presidents – like [their] subordinate commanders – must keep their distance. That is to say, the issue is always a judicial independence issue and ought to be discussed in those terms alone.”