Past articles in this column have covered developments that explore the question of judicial independence in the military justice system. In February of this year, we discussed arguments made before the International Court of Justice wherein India called it a “manifest failing” that military judges in Pakistan’s court-martial system are not “independent of the executive.” India asserted having a judge outside of the executive branch, even in courts-martial, is one of the “indispensable elements of due process . . . in present times with the evolution of human rights jurisprudence.” (Scholarship Saturday: Whether courts-martial are suitable forums for the trial of serious offenses)

Then in April of this year, we covered the D.C. Circuit’s decision in Al-Nashiri, wherein that Court held that it was an “intolerable” conflict of interest for a judge sitting on a military commission to be seeking employment from the agency prosecuting that proceeding. (Scholarship Saturday: Questions regarding military judicial independence in the wake of Al-Nashiri)

Furthering the line of inquiry regarding what it means to be “independent” in the military justice system, New York University’s national security law blog, Just Security, recently published an article penned by the retired Judge Advocate General for the Canadian Forces, Ken Watkin, Brigadier General (Ret), entitled “‘Fiat Justitia’: Implications of a Canadian Military Justice Decision for International Justice.” General Watkin’s article covers the Canadian Supreme Court’s recent decision in R. v. Stillman, a case which bears importance given the fact that “military justice system compliance with human rights norms has increasingly been the subject of international debate and scrutiny.”


In Stillman, the Canadian Supreme Court cited favorably the Canadian military justice system’s move “[away] from a command-centric model of discipline to a full partner in administering justice alongside the civilian justice system.” Stillman at ¶ 20. In particular, in upholding the legality of courts-martial, the Court cited Parliament’s enactment of legislation that moved the “[power to appoint military judges” outside of the Defense department and “provided a statutory basis for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process.” Stillman at ¶ 48. The Stillman Court further cited with approval the Parliament’s decision to “shift[] responsibility for convening courts martial and appointing military panel members to an independent Court Martial Administrator (CMA) (a civilian who works under the supervision of the Chief Military Judge (CMJ)) out of the hands of senior military authorities.” Id.

General Watkin elaborates further, noting that the Canadian Supreme Court’s decision should not be read as dictating the only way in which a state may guarantee the independence of their military justice apparatus. “States can take steps consistent with their constitutional structure and laws to ensure adequate independence and impartiality. One example is the Canadian adoption of the Director of Military Prosecutions role[.] . . . The Director of Military Prosecutions is statutorily responsible for the conduct of prosecutions, although the Judge Advocate General . . . has the power to intervene in a specific case on an exceptional basis.”

Given all the above, General Watkin is right to assert that Stillman has “significant implications in the international sphere,” and particularly for the American military justice system. As his article notes, American military jurisprudence shares a common-law ancestry with Canada, the United Kingdom, Australia, and Israel. Those common law allies have robust military justice systems as compared to our allies from the civil law tradition – such as France, Belgium, Germany, The Netherlands, Lithuania, Morocco, Taiwan, Mexico, Chile, Austria, and the Czech Republic. But, Stillman shows that even our common law allies have adopted a standard of independence for military judges, prosecutors, and court-martial panel members that is more robust than the protections Congress has, of yet, provided for American war fighters. Rather than putting in place structural guarantees of independence, the American approach has been to, largely, depend on the good honor of commanders to abide by the prohibition on unlawful command influence.

15 Responses to “Scholarship Saturday: The Canadian Supreme Court has favorably rated the independence of that Nation’s court-martial system”

  1. Publius says:

    United States Court Of Appeals For the Armed Forces. Article III judges down to the trial level. Get on it Congress.

  2. Vulture says:

    It’s a little hard to read what is going on in the dissent.  It looks like they are exploring the same question as O’Callahan and Solorio.
    Either way, the Canadian Court seems to have no concern about the military and civilian court differences.  But they have additional parameters.  A five year sentencing requirement to get a jury trial?  That seems like a long time, but then I think it’s nuts not to have a guaranteed appeal for a criminal conviction.

  3. stewie says:

    So instead of uniformed members, we’d get partisan appointees…and if recent history is any judge, highly partisan appointees and I say this whether it’s right or left.  And we think simply because they are Article III judges they are going to be what more independent? Or will they just be beholden to ideology instead of the military? Strikes me as a lateral move from one issue to another issue.

  4. Isaac Kennen says:

    stewie posited:
     

    Or will they just be beholden to ideology instead of the military? Strikes me as a lateral move from one issue to another issue.
     

    I agree that being beholden to ideology can be just as destructive to justice (and liberty) as any other form of conflict of interest. But, I don’t concur that the federal civilian trial judiciary labors under a problem of lacking independence. I also wonder whether your description of the current condition in the military jurisdiction – that its trial judges are presently “beholden to . . . the military” – is truly an accurate description of the state of things? 
    It seems to me that Article 26(c), UCMJ, makes expressly clear who trial judges are “beholden” to: 
     

    [A] military judge of a general or special court-martial shall be designated for detail by the Judge Advocate General . . . [and] may perform such duties only when the officer is assigned and directly responsible to the Judge Advocate General[.]

     
    That statutory alignment seems completely different to me than being “beholden . . . to the military.” 
    Instead, it seems that, by statute, our trial judges are “beholden” to a single, non-elected military officer, who effectively serves as their service’s chief prosecutor (see TJAG’s powers under Arts 6, 27, 56(d), 60(a), and 67), and who, despite exercising those prosecutorial functions, unilaterally, and without review, controls judges’ selection, removal, follow-on assignments, their commission as a judge advocate, and, therefore, their (and their families’) hope for a pension.
    I am sure I am not alone in having personally witnessed multiple examples of judges striving mightily for justice and acting, in accordance with the finest traditions of military chivalry, as their duty requires. Certainly, in my career, been inspired by such demonstrations of “service before self,” whereby judges jealously guard their impartiality despite lacking structural independence. Some of the JAGs I admire most, and want to emulate, are, or have been, judges.
     
    I just wonder whether it is a failure of the system to have put them in that position to begin with. What does our system of justice gain by such an arrangement? Wouldn’t we be better off if the structural independence of our judges was incontestable?

  5. Vulture says:

    Maybe we can get some judges from Immigration.

  6. stewie says:

    You don’t agree that the federal civilian trial judiciary has at least some issues with ideology and partisanship? Really?
    Everyone here hates congressional control over how we do sex assaults but doesn’t think if we went to Article III judges that sex assault won’t be at issue, and the judges won’t be at least in part selected for their views/history on sex assault? One way or the other?
    Issac I don’t think all MJs are beholden to the TJAG. TJAG isn’t even their immediate or secondary supervisor. You have at least the chief judge in between and often an intermediary judge particularly for the new judges. We have plenty of pro-defense, and pro-government judges so doesn’t strike me that there is some uniform approach designed to appease TJAG…at least not in the Army. I obviously can’t speak for the other services.
    Ultimately, you are trading in one set of prejudices and issues for another. Depending on the judge that could be great for an accused but bad for the system or it can be bad for the accused (which makes it bad for the system too obviously just in a different way). Going to Article III judges may solve some theoretical textbook issue, but in reality, it won’t make things any better.

  7. Isaac Kennen says:

    stewie,

    I think you’re conflating impartiality and independence.

    It is entirely possible that, as you put it, “the federal civilian trial judiciary has at least some issues with ideology and partisanship.” That very well may impact an individual judge’s impartiality. But, by virtue of their lifetime appointments and their protection from removal except by impeachment, they are still independent.

    Both judicial impartiality and judicial independence should be necessary. Indeed, I am skeptical a system of justice can reliably foster the former without first providing the latter. Certainly there are military judges who, through a sense of personal duty, have secured their own impartiality by overcoming the inherent biases that all human beings carry with them. But, in failing to afford them independence, the military justice system hasn’t helped make that process any easier.

  8. Vulture says:

    No more Government hack has sat on the bench than Colonel Micheal J. Hargis.
    I saw this military judge hiss through his teeth at a CDC for incurring the question of Government ethics.  “Don’t ever use that word in my court room again.” were his exact words.
     
    Whatever ideological, professional, or attribute to human endeavor might exist couldn’t speak to this schism of discretion, supervision, and rank.
     
    Zach has expressed a continued investment in the adversarial aspect of the military courts.  Regardless of whether that meets some holistic aspirations, that is what the courts are.  But those adversarial attributes require the temper of fairness.
     
    Just today we got another “doesn’t matter” ruling from the service courts.  Charging instruments, evidence, argument; all subject to it doesn’t matter.  And it repeatedly gets laid at the feet of the Defense.  Thinking back to the Ahern discussion, something that Zach said, something about “a language that only they understand…”
     
    The only language I can come up to the idea of a chief judge being un-appeasing, the only language that I can seek to understand, is “Really?”  Stewie, if you are going to play the Devil’s advocate, at least come up with something better than idea that there is nothing better than the evil I already know.

  9. Nathan Freeburg says:

    stewie,
    you’re forgetting some rather recent Army history and what happened when a prior TJAG didn’t like a judge…
    with that said, you are right that we would be trading the warts of one system for that of another.
    and essentially it would be like trading the service courts for CAAF….

  10. Fisch says:

    I was not aware of any recent Army history and what happened when TJAG didn’t like a judge.  Is there an opinion you could cite to, or is this inside knowledge?

  11. Vulture says:

    A whole constitutional amendment gave 18 year-olds the right to vote because they were going to war.  
    What is so preventive of electing trial judges?  What about appellate judges?
    All it takes for a Convening Authority to dispel an allegation of UCI is to say, “Nope, wasn’t influenced.”  A judge says, “Well, he’s a general, that must be true.”  A panel is entirely composed of members of higher rank.  And CAAF has disregard any notion that selection on that basis is a deprivation of due process.
     
    So I’ll return to CAAF the favor.  I’ll disregard the notion that service members can’t adequately take on the responsibility of electing their judges.

  12. Vulture says:

    A two months ago, Zach posted here that the President could say that the sky was blue, and the pearl clutchers would accuse him of denying the existence of clouds.  And nighttime.  In a sense, here we are.  Now with SharpiesAdmirals, and NOAA the considered contradictions of an errant assertion are smudged out of view. 
     
    The point that Zach makes, I think, in Bergdahl isn’t that he is a shitbird.  It is that the Courts are an adversarial process.  That the rehashing of a decided matter in the appellate courts is an abuse of the system.  It’s an idea that receives a far amount of ire on this forum with Bales as well as others (Larabee?).  
     
    Concurrent with that is the ability to address matters in the present tense.  This is the position I take on Acevedo, the allegations of post-trial UCI in Bergdahl, and now to a lesser extent Bales.
     
    But with the current studies of the military justice system by the Navy underway, want of ethical review, and pending Supreme Court review, the assertion that it’s only a Hobson’s choice is premature.  As with O’Callahan and Solorio, a shift in disposition is possible.  But the Canadian courts took one path, we went back down the same one.
     
    Collectively sighing “Oh, well.” would be a poor choice.  Ultimately, we have proven that voting can produce some crappy results.  Similarly, Congress has gone verily into that long dark denial of the night.  In spite of my misgivings, it’s going to take the efforts of the uniformed members to shine a light on subject. 
     
    So Stewie, you can “Pfftt.” over whether things are an example over how horrible everything is.  I’m not denying clouds, nighttime, or the idiot denying climate change.  

  13. Zachary D Spilman says:

    Very cogent Vulture. Well said.

    But allow me this nitpick. You wrote:

    That the rehashing of a decided matter in the appellate courts is an abuse of the system.

    (emphasis added). It’s not just a decided matter in Bergdahl; it’s a conceded matter.

  14. stewie says:

    I can “pfft” because the issues in the civilian criminal justice system are AT LEAST as bad if not worse than any issues in the MJ system. You can hyperlink issues with the MJ system til the cows come home, and you, I and we all know that one can hyperlink just as many issues with the civilian justice system, yes, even at the federal level.
     
    Noting that there are as many problems with path B does not say we don’t have problems with path A by the way. I simply prefer fixing path A with the problems we do know vice just switching to path B where we don’t have any further control in solving any problems that crop up there, and where we we are just swapping out completely different, but equally damaging problems.
     
    We can require unanimous verdicts. We can adjust how panels are picked so that it doesn’t necessarily involve the convening authority. We can find a path toward giving judges more independence (perhaps for example requiring a longer term, and requiring that it be a terminal assignment–you take this job, you get it for say five or six years, but you aren’t getting another one so there’s no incentive to use the job as a career stepping stone).
     
    We aren’t Canada. I don’t know that they have the myriad problems in their civilian justice system that we do. I certainly do know that neither their military nor civilian justice system approaches the size or complexity of ours. We incarcerate more people than anyone else in the Western world, and we allow private orgs that need to turn a profit to do a lot of that incarceration. And charge inmates exorbitant fees for everything in the process. The civilian world has an almost 100 percent guilty plea rate for a reason.
     
    So yeah, I “pfft” the idea that switching over will make things one iota better for a military accused. It might solve some problems, but it will definitely cause others. So, as with most things, the solution is to fix the current paradigm, not simply switch to another, equally flawed paradigm and wash our hands.

  15. Anonymous says:

    Do you want to fix the current military justice system? Start holding CA’s and JAG’s accountable for their actions, like the ones in VargasBarry, and the one that was just tossed in the USAF by Judge Cohen. Send a message that dereliction of duty isn’t going to be disguised as a bad trial strategy. Until that day happens, which is highly unlikely, then you will always have a cancer in the military justice system.