21 April 2009

Independent military justice commission to hold hearings

The National Institute of Military Justice, or NIMJ, has announced that the Cox Commission II will hold a public hearing on 16 June 2009 at the George Washington School of Law in Washington, D.C. A notice of hearing can be found here. The commission, named after its chair former Court of Appeals for the Armed Forces chief judge Walter T. Cox III, is to examine the current operation of the American military justice system and to consider whether the Uniform Code of Military Justice is meeting the needs of the military services to provide an efficient and fair way to insure good order and discipline. It is sponsored and funded by NIMJ and the American Bar Association's Criminal Justice Section.

Cox who is also a senior judge on the CAAF and currently Of Counsel to Nelson, Mullins, Riley & Scarborough LLP will chair the independent commission on a pro bono basis. There are eight other members which include the Honorable Mary Cheh, a D.C. Coucil member and law professor at the George Washington School of Law, former Navy Judge Advocate General Rear Adm. Donald J. Guter, retired Army Maj. Gen. William Nash, retired Army Col. Joyce Peters, Prof. Stephen Saltzburg of the George Washington University School of Law, retired Air Force Col. Scott Silliman who currently serves as a professor at Duke University School of Law, and the Honorable William W. Wilkins who is a retired National Guard Colonel and a former chief judge of the U.S. Court of Appeals for the Fourth Circuit.

This will be the second review by the independent commission. A review was conducted on the 50th anniversary of the creation of the UCMJ. The first review was not received well by the Pentagon or lawmakers. For the most part it was ignored. In 2001, the first Cox Commission did make recommendations for, among other things, updating the sex crimes statute in the UCMJ. Several years after the commissions recommendation was made it reluctantly caught lawmakers attention. Initially the Pentagon opposed. However, its Joint Service Committee on Military Justice, or JSC, eventually made several proposals to Congress. Lawmakers adopted some of the Pentagon's proposals and enacted a new UCMJ article 120. Some military judges have ruled the new article 120 to be unconstitutional yet an intermediate service appellate court, Navy-Marine Corps Court of Criminal Appeals, recently ruled the new article 120 constitutional. I discuss that issue below.

Congress has not had a thorough review of the military justice system in over a quarter century. Over the years there have been a growing number of complaints about the fairness, impartiality and effectiveness of the American military justice system. While most of America's allies have updated their military justice systems including Australia, Canada, Israel and the United Kingdom lawmakers in America have had a hands-off approach to military justice. Many countries also have parliamentary review systems and officially sanctioned committees with proper funding that report back to parliaments on military justice matters. America's military justice lags far behind most of its allies and it's operating a 20th century military justice system in the 21st century.

The Cox Commission is not a congressionally sanctioned commission nor does it possess the authority to compel attendance through subpoenas. Nevertheless it is good that NIMJ and the ABA are supporting such an independent commission at a time when Congress has clearly failed the American public and the men and women of our Armed Forces. Among the topics the commission will consider is the appellate review of courts-martial, crimes and punishment, the roll of the convening auhtority, possible restructure of the appellate system by the abolishment of the individual Article I service Courts of Criminal Appeals and elevating CAAF to Article III status, military commissions, and human rights issues. A more complete list of the topics the Cox Commission II will review can be found here.

On paper America seems to have a good review system in place for its military justice system. It has a Code Committee on Military Justice which meets once a year at the CAAF courthouse and is comprised of all service judge advocate generals, the current judges of the CAAF and a few Secretary of Defense appointed members of the public. It also has the Pentagon run JSC. But in practicality the Code Committee really does not do much other than issue a report on statistics to Congressional committees of the armed services.

Most counsel and senior staffers on the armed services committees aren't even aware that such a code committee exists or that a report is issued annually. I've attended a few Code Committees over the years and was very disappointed at what I saw. The yearly meeting typically lasts between 20 to 30 minutes. At one meeting, a single judge of CAAF questioned why the fact the judges were even serving on the the Code Committee in the first place. The public audience was just about five or six people (including me) and no one from the audience is permitted to make a public comment to the committee.

On the other hand the JSC meetings are held in secret at undisclosed locations and typically not open to the public. In 2006 when I attended a meeting on Capitol Hill with the Republican counsel and chief of staff to then-Chairman Duncan Hunter (R-CA) of the House Armed Services Committee both did not know what a Code Committee report was nor had ever seen one. However, they did know what the JSC was because it had submitted a report with recommendations to amend UCMJ article 120 to lawmakers.

The independent Cox Commission II will fill a huge void in the lack of Congressional oversight on America's military justice system. After it conducts its review a report will be submitted to Congress, the Dept. of Defense and to the President with findings and recommendations. But whether or not Congress and the new President will implement any of the recommendations of the Cox Commission is another story. Historically the U.S. Department of Defense has vehemently opposed any changes to the UCMJ. But when the Dept. of Defense does recommend a change to lawmakers, the few scant and rare changes almost always inure to the benefit of the government leaving the servicemember in the cold.

For example, the Military Justice Act of 1983, which gave limited Supreme Court access of court-martial cases, was enacted at the behest of the Pentagon because it wanted to appeal its loses. 20 plus years of statistics show that there is an inequity in the law which overwhelmingly favors the government to seek review of its loses to the high court while leaving the servicemember who loses at CAAF in the lurch. In 2006, the ABA passed a resolution urging Congress to fix the inequity but to date bills in both Houses have been procedurally blocked by just a few GOP lawmakers cloaked in secrecy. (One of those Senators - - Lindsey Graham (R-SC) - - has been outed from his GOP cloakroom as using parliamentary procedure to thwart the democratic process on the House-passed Equal Justice for Our Military Act of 2007 in the 110th Congress. In a 2007 New York Times article, it was noted that the Senate cloakroom is one of the most secretive backroom weapons in Congress. Often the Pentagon lobbies a particular Senator to use the secretive cloakroom to place holds on legislation it dislikes.) Another example is the recent proposals the Pentagon's JSC presented to Congress on the new UCMJ article 120. After Congress enacted the new article 120 some legal scholars say a provision the Pentagon proposed, and that Congress adopted, unconstitutionally shifts the burden to the defendant rather than the government.

An associate deputy general counsel at the Pentagon was quoted last November in a New York Times article criticizing those who want reforms. "It's the same old people with the same propositions," said Robert E. Reed, who is the Pentagon's military justice guru. With that type of attitude coming from top Pentagon attorneys it is unlikely that the Cox Commission will be received with open arms at the Dept of Defense. It is also likely the Pentagon will lobby against any proposals the Cox Commission makes to lawmakers or the executive branch. But as we say down-under here in Australia: "Good on ya" NIMJ, ABA and Cox Commission II for doing the right thing and conducting a much needed review of the UCMJ where Congress has thus far miserably failed.

Here is a link to the Cox Commission's webpage on the NIMJ website.

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