Some possible changes to the Manual for Courts-Martial

Following are some suggestions for changes to the Manual for Courts-Martial. Please feel free to comment.

1. In R.C.M. 109 or 503(b) or some other appropriate place, prescribe a fixed term of office of at least five years' duration for military judges and appellate military judges. Terms of office are widely understood in this era to be an essential component of judicial independence. The current arrangements are unsatisfactory because the three-year terms afforded to Army and Coast Guard judges are too short and are subject to loopholes and  Air Force, Navy and Marine Corps judges continue to serve on an at-will basis. The interservice disparity is indefensible on its face, but in addition leads to absurd results. Thus, a Marine might be tried by a judge with or without the protection of a fixed term, depending on who was detailed to her court-martial. Where more than one member commits a single offense, they might be tried by judges with different protections. The issue is not whether the current arrangements are constitutional -- the courts have answered that. The question is whether they are good policy and comport with contemporary standards for the administration of justice as manifest, for example, in the jurisprudence developed by the Human Rights Committee under the International Covenant on Civil and Political Rights, to which the United States is a party. I respectfully invite the JSC's attention to Prof. Victor M. Hansen's recent comments on tenure for military judges. See http://globalmjreform.blogspot.com/2014/03/prof-hansen-on-tenure-for-military.html.

2. Amend R.C.M. 203 to reimpose a service-connection requirement for subject matter jurisdiction. The current status test is constitutional according to the Supreme Court, but that does not mean it is good policy or comports with contemporary international standards (it doesn't). See, e.g., http://globalmjreform.blogspot.com/2014/01/nexus-redux.html, discussing Moriarity v. The Queen; Hannah v. The Queen, 2014 CMAC 1.  It would be extremely easy to summarize the state of the law of service-connection as it stood before Solorio.

The Draft Principles Governing the Administration of Justice Through Military Tribunals, U.N. Doc. E/CN.4/2006/58 (2006) summarize contemporary human rights jurisprudence. Principle No. 8, Functional authority of military courts, states:

"The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel. Military courts may try persons treated as military personnel for infractions strictly related to their military status. 

"29. The jurisdiction of military tribunals to try military personnel or personnel treated as military personnel should not constitute a derogation in principle from ordinary law, corresponding to a jurisdictional privilege or a form of justice by one’s peers. Such jurisdiction should remain exceptional and apply only to the requirements of military service. This concept constitutes the “nexus” of military justice, particularly as regards field operations, when the territorial court cannot exercise its jurisdiction. Only such a functional necessity can justify the limited but irreducible existence of military justice. The national court is prevented from exercising its active or passive jurisdiction for practical reasons arising from the remoteness of the action, while the local court that would be territorially competent is confronted with jurisdictional immunities."

3. Amend R.C.M. 109 to prescribe uniform rules of professional and judicial conduct. The services' inability to speak with one voice on these subjects is a significant failure. The result is a legal Tower of Babel. See Military Court Rules of the United States x (LexisNexis 2012).

4. Amend Pt. IV para. 16 to increase the maximum punishment for dereliction of duty. Dereliction is a central element of the punitive articles and in a variety of circumstances calls for potential punishment in excess of the currently defined maximum.

5. Amend Pt. IV para. 60 to restrict the sweep of Article 134(2) to cases within the original intent of Congress as indicated in the old legislative history. Homer E. Moyer, Jr., Justice and the Military sec. 5-132, at 990 (1972). Clause 2 has crept far beyond what Congress intended, e.g., United States v. Phillips, 70 M.J. 161, 165 (2011), and should be cut back.

6. Amend R.C.M. 806 or 808 to provide for public and media access to court-martial pleadings and rulings in a timely fashion through adoption of the PACER system or its equivalent. The current arrangements for public and media access to key court documents frustrate the public's right to know in real time what transpires in courts-martial. This does not contribute to either public understanding or confidence in the administration of  military justice.

7. Amend Pt. V para. 4 to prescribe proof beyond a reasonable doubt as the burden of proof in nonjudicial punishment proceedings. Please refer to my separate statement appended to the 2013 report of the Defense Legal Policy Board.

8. Amend R.C.M. 103 or Pt. V para. 3 to prescribe a definition of "vessel" for purposes of the "vessel exception" to Article 15, UCMJ. The definition should address the question of operational capability. The current uncertainty serves neither the government's interests nor those of affected members.

9. Amend Pt. V para. 3 to make clear that the "vessel exception" cannot be enlarged by deeming personnel to continue within its scope even after they have as a practical matter been transferred off the vessel. Navy and Coast Guard reach-back rules in reprimand-only cases circumvent the statute and do not comport with the purposes of the "vessel exception."