More on the effort to eviscerate the disciplinary authority America’s military commanders need

Much of today’s post will be familiar to Lawfire^® readers as it involves the bill currently before Congress to eviscerate commanders’ authority and responsibility for disciplinary matters.  Specifically, this post addresses an attack on the Just Security blog by Professor Rachel VanLandingham of Southwestern Law School on an essay on the Lawfare blog by former Secretary of Homeland Security and General Counsel of the Department of Defense, Mr. Jeh Johnson.  As you will read below, Mr. Johnson suggests a very reasonable modification of the proposal, and Professor VanLandingham claims his ideas are “flawed.”  Here are my views of this exchange:

I am a fan of Professor VanLandingham, but her over-the-top attack on Just Security (“Professional Criminal Prosecution Versus The Siren Song of Command: The Road to Improve Military Justice”) on Mr. Johnson’s thoughtful essay (“The Military Justice Improvement and Increasing Prevention Act: Are the Solutions Commensurate with the Problem?”) is seriously misplaced.  

Secretary Johnson’s concerns

Secretary Johnson expressed concern about the scope of the proposed legislation to strip commanders of most of their disciplinary authority.  In essence, he recommends that disciplinary authority remain within the military chain of command except in sexual assault cases.  He makes his point in a series of rhetorical questions:

“Why are offenses ranging from murder, arson to perjury included in the bill’s reach? What is the justification for so large an overhaul? Where is the congressional finding that, when it comes to the broader range of offenses, the chain of command in the U.S. military has failed in its duty to carry out military justice?

Johnson also warns that the proposed legislation would necessitate the creation of a significant legal bureaucracy and rightly points out that “[r]ecent examples of similar undertakings by DoD do not inspire confidence.”  He also indicates that commanders are better determiners of what amounts to “justice and fairness given the need to maintain good order and discipline in a unit.”  He further says what is obvious to most people who understand the military:

Hon. Jeh Johnson

“A military commander must have legal authority over those in a unit. In the military, a commander can order a subordinate to take an action that may result in his or her own death. With the responsibility to prepare and send troops into battle must come the authority. The two must be inseparable. To strip a commander of the authority to make a disciplinary decision undermines the very ability to command.”

My own view, as I’ve expressed elsewhere, actually goes a step further than Mr. Johnson:  In the military, everything truly important is the commander’s responsibility.  So it just doesn’t make sense to outsource something so critical to morale and discipline as the responsibility for handling serious misconduct–including sexual assault cases–to some distant organization composed of staff officers and civilian bureaucrats.  It needs to remain a ‘front-and-center’ command responsibility.

In line with Secretary Johnson’s concerns is former Secretary of Defense and retired Marine Corps general Jim Mattis.  He gave this stark assessment  just a few months ago:

Gen Mattis at LENS 2021

“[M]aintaining the military justice system as a commander-centric system is critical if you’re going to hold commanders responsible for the good order and discipline of the only organization…if you start diluting that authority, then the responsibility dilutes too.  And I can pretty much assure you that at that point, you will weaken the military’s cohesion and the sense of ownership by the commander, from the platoon commander, lieutenant, and company commander, all the way on up, over discipline.”

The military justice system arises in “a specialized society separate from civilian society”

Professor VanLandingham, however, rejects General Mattis’ view of the criticality of a commander-centric military justice system and embraces a civilian-style model.  (Notably, in a just-released poll, Gallup found that only 24% of Americans have a “great deal” or “quite a lot” of confidence in the civilian criminal justice system as opposed to a robust 72% for the military as an institution.)

In doing so she seems to underappreciate the very unique role of the military justice system, and seems to conflate it too much with the civilian process.  The military justice system is necessarily different because it arises in a “separate society” from that of the civilian.  As the Supreme Court puts it:

This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” 

The unique purpose of military law

In light of having responsibility unlike any other in our society, that is, to “fight or be ready to fight wars should the occasion arise” it is not surprising that the Manual for Courts-Martial (which is an Executive Order prescribed by law) says:

The purpose of military law is to promote justice, 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. (Emphasis added.)

The civilian criminal justice system Professor VanLandingham wants to imitate simply does not have such an expanded purpose.  It is true, as Justice Kagan has observed, that in the military justice system the “procedural protections afforded to a service member are ‘virtually the same’ as those given in a civilian criminal proceeding, whether state or federal,” and it does so in a way that supports what Supreme Court told us in Haig v Agee is of paramount importance, that is, that it is “obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”

The complex process of leading servicemembers to wage war in the name of state is a task that requires equipping the chain of command with disciplinary power.  Thousands of years of military history demonstrate that the coercive effect of that authority is one element of what is necessary to get people to do what is ordinarily unthinkable: to kill other human beings (or be part of the process that does so). 

Keeping disciplinary authority in the chain of command

Professor VanLandingham makes much of the fact that not every commander can convene a general court-martial, and seems to celebrate the idea that morale and discipline were maintained through the wars in Iraq and Afghanistan even though some commanders in the chain could not personally convene courts-martial.  This is curious since it raises the obvious question: if having military justice authority in the chain of command is working so well, why change it?

In any event, the argument misses the point: it is the accountable military chain of command – in a hierarchical society based on rank – that needs to have the authority, and not have it subcontracted to lawyers in some cosseted Pentagon bureaucracy.  All military members know – and need to continue to know – that the chain of command is responsible for criminal dispositions.

Why try to mimic a failed civilian system?

Moreover, why should the military want to try to mimic a civilian system where, we are told, “out of 1000 sexual assaults, 995 perpetrators will walk free”?  Experts also tell us that in the civilian system, 80% of the sexual assault cases go unreported.  Is that really a process to emulate?

Additionally, research by veterans-turned-law professors Dave Schlueter and Lisa Schenck shows that even in sexual assault cases, the “[s]tatistics don’t support removing commanders from military justice.”  Indeed, they found that in the civilian world where lawyers make the prosecutorial decisions, a “woman in college has a 51 percent greater likelihood of being sexually assaulted than a woman between 18 and 24 years of age serving in the military.”

Furthermore, Brian Cox’s study of the military justice systems in four selected countries found no correlation between divesting commanders of court-martial convening authority and improved systemic performance in relation to preventing or responding to sexual assault in the military.

Concluding thoughts

In nearly 35 years as a military lawyer, I’ve been a prosecutor, defense counsel, military judge, and a military justice instructor at the Air Force JAG School.  I’m convinced that commanders are in the best position to determine the morale and discipline needs of their units, and how a particular criminal offense might impact it.  A distant bureaucracy of lawyers simply cannot match the insights of those actually bearing the burden of command and the direct responsibility for mission accomplishment.

Of course, we always want to look for ways to improve the military justice system, but cutting commanders out the process is not the way to do it.  As Secretary Johnson suggests, disciplinary authority is simply too important and too central to the very concept of command to outsource to a clutch of staff officers and civilian bureaucrats.

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