Military justice is a fairly insular system. Consider, for example, how rare it is to see civilian law reviews run articles about military justice. If it weren’t for JO’C, there would hardly be any at all. Congress rarely pays much attention to the system. The last congressional hearings dealing with military justice of which I’m aware occurred in 1983. For years, the only real player for military justice development purposes was the Joint Services Committee. But that committee’s work is largely reactive — responding to appellate opinions that are adverse to the prosecution and adopting pro-prosecution fixes. Nothing better exemplifies this trend than the so-called Wiesen fix and its fallacious supporting drafters’ analysis, which we’ve discussed here.
Insularity is undesirable. The system can only benefit if its policymakers hear a variety of perspectives. And the organization that has engaged in the most sustained campaign to provide an outside perspective has been the National Institute of Military Justice. The most notable product of that effort was the 2001 NIMJ-sponsored Cox Commission report. I urge you to take the time to read or reread the report — which, regardless of whether you agree with its recommendations, is an impressive analytical achievement. And that report led to a rare non-DOD-requested UCMJ amendment: Article 25a, which general requires that capital courts-martial have at least 12 members. So it was exciting to read in the New York Times last month that Judge Cox “hopes to convene a second commission” to continue examining the military justice system “in the next few months.”
For the past few years, NIMJ’s work has been bolstered by a full-time staff to augment its volunteer officers’, directors’, and advisors’ work. That staff was initially limited to one full-time executive director. But over this past year, the full-time staff has expanded to three: an executive director, an assistant director, and a program coordinator. This expansion of its staff provides NIMJ with more resources to analyze and seek to improve the military justice system. Having such an outside think tank dedicated to studying the system will almost certainly promote salutary reforms that DOD wouldn’t achieve had it reamined the only real player in the military justice development process.
The growth of NIMJ’s staff ranks as one of the top-10 military justice developments of the year because it has such great potential to lead to changes in the system. But, as we recently noted, this story has a certain poignancy because NIMJ’s work may be threatened by the Bernie Madoff scam. One of NIMJ’s funders, the JEHT Foundation, will shut down at the end of January due to its funders’ losses to Madoff. This will apparently cost NIMJ $340,000 in grants over the next two years. Can NIMJ sustain its staffing level in light of these losses? If not, how will NIMJ’s programs be affected? We’ll continue to follow NIMJ’s work next year to answer these questions.
[DISCLAIMER: I am a former NIMJ advisor and director, though I haven’t served in that capacity for many years due to my full-time military and governmental employment for the past six years.]