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.”

17 Responses to “Scholarship Saturday: Justice – a new focus for a military criminal law system plagued by unlawful influence?”

  1. J.M. says:

    Interesting article. I especially like how the first paragraph was a list of non justice related criticisms of the President. It really hooks the reader to be prejudiced against the president before they reach the true subject matter of the article. Orange man bad, broke OPSEC by taking pictures with Seals (half that team probably has Instagram accounts and are negotiating book deals) and signed Maga hats!
    Here’s a wild idea to deal with UCI: Hold the ‘Bad Actors’ accountable and let their Evals and promotions reflect this. Or actually charge someone under article 131F. It’s time “to assist in maintaining good order and discipline” by making an example of UCI bad actors. After all, that’s what happens with a large number of BS 120 cases, right? 

  2. David A. says:

    United States v. Chamblin, Navy-Marine Corps CCA, 8 November 2017, No. 201500388 (the accused were to be “crushed” and discharged from the Marine Corps). The decision should have been published, but, unfortunately, was not. 
    Boyce recognized the chilling effect of statements by a Senator and several members of Congress.
    Perhaps the Golsteyn tweet relates to the Rules of Engagement in effect in 2010 when  the alleged offense(s) are thought to have occurred, and I seem to recall those Rules being negatively mentioned during the 2016 election cycle.
    And, I wonder if the same arguments about interfering with justice would have been made by the Saturday Scholar if the President had issued a pardon, which the President has unfettered discretion to do.

  3. Isaac Kennen says:

    David A.

    You need not wonder. 

    This column examined the Pardon power back in March: 

    Scholarship Saturday: Presidential pardons for convicted wartime murderers 

  4. David A. says:

    Isaac, your article was fine then and is fine now, but as a comment to your article illustrates, the President may step in and pardon offenders prior to conviction, and thus the supposed rules of pardon are illustrative not exhaustive.

  5. Isaac Kennen says:

    David A.
    We’re not in disagreement.
    If the President decides to offer Golsteyn a pardon, it is within his power to do so, and it would be within Golsteyn’s power to accept such an offer and, by doing so, confess his guilt.
    None of that is in play at the moment, though.

  6. Cloudesley Shovell says:

    Isaac Kennen:
    Acceptance of a pardon does not equal a confession of guilt, despite what the Supreme Court may have said in Burdick back in 1915. 
    Eugene Volokh covers this ground quite well in a post on his blog from a year or two ago.

    Kind regards,

  7. SJA says:

    Food for thought: is it time to remove the Commander from the UCMJ process?  Do we establish an independent Military judiciary?  In 2019 does the Commander still have a necessary role?  My experience is that most decisions we ask non-lawyer commanders to make is borderline unauthorized practice of law.  Asking a GO/FO to make a decision on an expert witnes is like asking a pro cyclist to play 2nd base for the Red Sox.  

  8. slyjackalope says:

    Hard to believe I would ever read an article written by an active Army judge advocate with so much disrespect for the President.  I guess the author has become disillusioned with President Trump since his 18 May 2017 article.  In addition to all of the other disrespect throughout the most recent article, the author refers to the President merely as “Trump” in every instance except one rather than referring to the President with the proper respect as “President Trump,” as he did in the 2017 article.  However, he never failed to give former presidents proper respect by referring to them by their former title rather than just their last name (I guess he didn’t like former President Clinton in 2017 though since he just referred to him as “Bill Clinton” and “Clinton”).  Also, every time he referred to President Trump using just the title he did it improperly in the lower case.

  9. Vulture says:

    It’s an article about justice not  military discipline.   At least from the conceptual point of view.  It doesn’t matter what the Major calls him.  But if it does, I’ll be here for the Major’s article that calls him Inmate Number ####.
    I’ll be guessin some people aren’t going to like that comment.

  10. stewie says:

    8 years of Odumbo and whatnot, but now folks are worried about presidential respect. I find that…interesting.
    On topic, I think the author of that article reads way too much into the Supreme Court decision and that part of it. It was simply addressing whether or not they had jurisdiction, and correctly noting the judicial nature of the court-martial system, particularly the appellate portions to determine that yes, this looks like a court, it smells like a court, and thus we will treat it like a court and exercise jurisdiction over it. Nothing more, nothing less.
    I also assume the other argument here is if we remove commanders from the system that somehow that will instantly dissolve courts-martial because if there are no commanders, then why have it? Well, first of all, good order and discipline still exists as a reason, and deployed troops still exists as a reason, and the special nature of military service still exists as a reason.  Second, what does it mean to remove commanders? Does it mean removing the power to pick the panel? Or does it mean removing clemency? Or does it mean removing the decision to refer? I think some judge advocates are so deeply invested in the paradigm of commanders in charge and not judge advocates that they manufacture reasons as to how the whole system must collapse if any other paradigm is considered.

  11. Dan Maurer says:

    Slyjackalope: you missed the point of the article, if you think I’m being disrespectful.  First, I have no control over the site editor’s decision to remove the title “president” before each instance of the name “Trump.”  Second, this article is not ABOUT *this* President – it is about what happens when ANY president interjects into military justice, and asks the larger questions of whether this intervention should be looked at as one for civil-military relations analysis or rather a question of judicial independence.  I mention this several times throughout the article.  In order to properly frame why this might be a CMR issue, it was prudent to put this particular tweet in context – hence, the opening list of other actions that have publically and unequivocally raised CMR questions.  Note, I do NOT take a side or form an opinion as to whether POTUS was correct in any or all of these instances. 
    Stewie: I agree that I COULD be reading too much into Ortiz, and that it’s limited holding says nothing lasting about MJ’s purpose.  However, I address this very issue and its implications in my original article on Ortiz published at Lawfare in July.  I recommend you read it before you suggest I’ve misread the case itself.  THIS article, just published, simply puts the CMR v. judicial independence question in context of the last SCOTUS opinion on MJ.  Hope that clarifies.

  12. slyjackalope says:

    You signed your name and listed your position on an article that the editor was allowed to re-write, and which you are apparently saying you have no control over to keep from disrespecting the President?  Yeah, right.

  13. J.M. says:

    Well I’m sure that the lack of respect to the current POTUS by a serving officer in a professional blog would be considered a harmless error now that you’ve made a curative remark. 

  14. Philip D. Cave says:

    My wife the journalist and editor tells me that editors will frequently give full name on first reference and then use the surname only after that–it’s an editors convention.  I actually learned that when I see myself quoted and learned not to take offense once explained.

  15. Allan says:

    Philip Cave’s anecdotal evidence  supports my experience.  I was once asked to review article in the Fort Bragg post paper (back when there was no internet) for accuracy.  The article referred to the post commander as LTG Xxxx initially, and as Xxxx in the remainder of the article.  When I asked about this, the reporter told me that it was the paper’s convention.

  16. Vulture says:

    It’s not anecdotal evidence Allan.  My ex was a magazine editor who made the same kind of critique of my writing.  Since when has an ex ever been wrong?

  17. stewie says:

    Clarifies dicta that effectively had as its only purpose: Yes, we have jurisdiction?