Guest Post: “CEREBRATING ABOUT MILITARY JUSTICE: Who Should Have the Authority to Convene Courts-Martial?”

As many Lawfire® readers know, there is a controversial proposal in Congress to radically change the Uniform Code of Military Justice by outsourcing to staff legal officers key aspects of what historically has been the commanders’ authority and responsibility in disciplinary matters.  Many lawyers, commanders, and others experienced in the military’s criminal justice system, including myself, believe this is a terrible idea.  However, powerful politicians (and some others to include persons with military justice experience) see it differently, and want to remove commanders from disciplinary responsibility in serious cases.

Today’s guest author is retired Air Force lieutenant colonel Don Rehkopf, and he provocatively argues that both sides are engaging in a debate that’s fundamentally flawed.  Although he finds serious faults with the current military justice system, he offers very intriguing ideas to improve it, including ones that could preserve commander authority, yet still address some of the criticisms of the current process.  Beyond specific recommendations, Don’s overarching conclusion is that the “debate here needs to refocus and begin anew.”

Importantly, Don is no neophyte to the military justice system as he’s been practicing in it for 45 years.  Combined with his civilian cases, he’s had over 250 jury trials–a virtually unheard of record these days, in or out of the armed forces.

I met Don when we were both stationed in Korea over 43 years ago.  We frequently found ourselves trying lots of cases together (albeit on opposites sides)–and often with juries (called “panels” in the military).  I cannot begin to fully relate to you what a tough and tenacious courtroom advocate he was (and is).  He’s a trial lawyer’s trial lawyer, but what makes him such a challenging litigator is that he’s also a superb motion-writer and appellate counsel.

Sure, I don’t agree with everything in Don’s essay (I hope to write my own post about this topic, and Lawfire® contributor Brian Lee Cox, who has a new essay, Measuring the Effectiveness of the Proposal to Divest Military Commanders of Disposition Authority for Sexual Assault Cases: A Comparative Quantitative Analysis , may also be posting on this issue).

But for today, let’s focus on what a four-decade veteran of the front lines of the military justice has to say.  When Don Rehkopf speaks, I listen…and I recommend you do too.  Here are his thoughts (I’ve taken the liberty to bold some parts of his essay):


Who Should Have the Authority to Convene Courts Martial?

Donald G. Rehkopf, Jr., Lt. Col. USAFR (Ret.)        

            As any moderately informed follower of current military justice issues recognizes, there is an on-going (and spirited) debate as to who should have the power (to include discretion) to make the decision as to whether or not a military criminal case should be referred to a court-martial. But, this debate–while intellectual–is seriously flawed because its parameters are “bi-polar.” It is analogous to collegiate debating, i.e., “Point–Counterpoint–Rebuttal.”

            The debate is flawed because it centers on the question, should the convening power and discretion be lodged with the commander designated as the Convening Authority (as the current UCMJ schema provides), or, as the Reformers argue, vested in a legal official similar to a U.S. Attorney or State District Attorney? One indicia of the debate’s defects is its protracted length without any obvious resolution.

            During the period from 1948 to 1950, numerous Congressional committees and subcommittees examined the role, scope, and power of Convening Authorities and what role–if any–judge advocates should have in the court-martial convening process. The resulting legislation, the UCMJ, predictably produced a compromise. Commanders retained the convening authority’s role and powers, but injected mandatory legal reviews by their Staff Judge Advocate for cases being considered for referral to general courts-martial. That tempered, but did not eliminate the issue.

            Another fundamental flaw in this debate seems to flow from the “debaters” apparent assumption that the core power-struggle here is between Congress’s “Make Rules” Clause power under Article I, § 8, cl. 14, of the Constitution, and the command and control powers of military commanders flowing from the “Commander-in-Chief” Clause in Article II, § 2, cl. 1. This is demonstrated by Convening Authorities granting post-conviction clemency in a couple of “high profile” sex cases. That inflamed the anti-commander elements in the debate who convinced Congress to significantly curtail Convening Authorities’ post-conviction clemency discretion and powers, especially in sex cases. See, Article 60a(b)(1), UCMJ.

            While the appropriateness (or wisdom) of that Congressional tinkering is far beyond the scope of this essay, it demonstrates yet another flaw in the framing of the current debate, viz., it ignores the U.S. Supreme Court’s forays into military justice matters. Neither side of the debate has apparently considered the Court’s warning in Weiss v. United States, 510 U.S. 163, 177 (1994):

“Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings.”

           Thinking about that exposes another deficiency in the debate–perhaps more nuanced, but significantly more important.

            The “Question Presented” in this debate is simply incapable of being resolved in an intelligent and well-reasoned manner. History has demonstrated this as the pro- and con-arguments herein aptly demonstrate. Why? First, the respective sides both have “tunnel vision,” that is, they both focus–in a binary fashion–on their perceived notions as to what the “best” solution is, i.e., command versus legal.

            Furthermore, both sides start their analysis in the middle of the equation; not at the obvious beginning. To use a mathematical analogy, if one has the equation a X 2 X 4 = ?, no answer is possible without knowing the value of a, other than the unknown is a X 8. Here, the first component of the debate equation is known, it just has been ignored.

            The core and fundamental question that must be addressed by Congress under its Make Rules powers is this: does Congress want a disciplinary, command-controlled system (tempered by the Weiss caveat, supra), or do they want a bona fide system of military justice outside of the command-centric system as the Reformers apparently want? That is not to suggest that the two are per se mutually incompatible, only that the current, hybrid version is not working well.

            The disciplinary system historically has documented its many failures and injustices from the Founding through World War II. Two years of Congressional work resulted in the UCMJ. Commanders retained their convening authority, supposedly tempered by mandated legal “advice” in all general courts-martial. However, in the intervening time, Congress has emasculated those legal protections, as any experienced practitioner knows, to the point of their now being pro forma, pre and post-trial, non-events with virtually no protections for one accused or convicted.

            The legal system as currently advocated, is likewise doomed to fail–only for different reasons. First, it totally ignores the on-going problem of unlawful command influence [UCI; see, e.g., Article 37, UCMJ (a proverbial “paper tiger”)]. United States v. Barry, 78 M.J. 70 (CAAF 2018), found that the Deputy Judge Advocate General of the Navy had committed UCI.

           Unless judge advocates are removed from a Convening Authority’s subordinate staff-organization (similar to the separate chain-of-command for military defense counsel), the problem is not going to be cured. Judge advocates must be able to offer honest, complete, and undivided advice without the fear, conscious or subconscious, that their promotions or assignments might be adversely affect unless they appease the Commander.

            There is another rudimentary flaw in the legal approach from my perspective. In today’s military justice environment, the vast majority of Staff Judge Advocates and government prosecutors are simply too inexperienced in the complexities of military justice, constitutional law, trial and post-conviction procedures to handle such a tasking. Eons ago when Maj. Gen. Dunlap and I squared off in the courtroom, we would easily do four or five courts-martial per month.

            How did we get to this situation and what are the realistic alternative solutions?

            One major counterproductive change was eliminating the Article 32, UCMJ, Pretrial Investigation process to the current ineffective “preliminary hearing.” The current process does not allow the development of facts and issues for anyone–commanders or lawyers–to make an informed decision on how to deal with or dispose of cases. But, bringing back the “old” Article 32, process is not enough. To make the system more viable, transparent, and just, we must insist that experienced attorneys handle it so it is done the way Congress originally intended back in 1950.

            So, the “Investigating Officer” now finds that there is “reasonable cause to believe” that an offense has been committed. The question here is now this: who is most qualified to make a decision on an appropriate disposition? The commander, a judge advocate, or some other legal official?

            One approach might be that if there is any disagreement between the Convening Authority and his/her Staff Judge Advocate on a proper disposition, do the time-honored, military tradition of kicking the issue up a notch in the chain-of-command. Of course, you are tying up more resources, but if the object of all of this is that there be an individualized decision, blending concepts of discipline and (not the disjunctive) justice, then why isn’t it worth that? There probably are not too many cases (other than senior officers/NCO’s in sex cases) that this will have any real impact upon.

            Alternatively, why not create a cadre of civilian, but experienced military justice practitioners to be full-time Article 32, Investigating Officers [assuming they revert to the original Article 32, process]? There is precedent within the DoD to adopt such an approach. For example, there is the Defense Office of Hearings and Appeals [DOHA], which adjudicates inter alia security clearance issues [see,]. There is also the Armed Forces Board of Contract Appeals [] which addresses contractual disputes. Finally, the Investigating Officer’s decision needs to be binding, subject to newly discovered evidence, similar to the way most State Grand Jury systems work.

            The debate here needs to refocus and begin anew at the beginning.

About the author

Lt. Col. Rehkopf served 5 years on active duty as a judge advocate and 23 years as a Category B, Individual Mobilization Augmentee. He had assignments within the former Strategic Air Command, Pacific Air Forces, the U.S. Air Force Trial Judiciary, Air Mobility Command, and Air Combat Command, and had defense counsel assignments twice. For many years, he served as the co-chair of the National Association of Criminal Defense Lawyers, Military Law Committee and was its liaison to its Amicus Curiae Committee and authored or co-authored numerous amicus curiae briefs at both the U.S. Supreme Court, federal Circuit Courts of Appeal, and the U.S. Court of Appeals for the Armed Forces on military justice issues. He has tried in excess of 250 jury trials during his 45 year legal career.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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