Scholarship Saturday: Justice – a new focus for a military criminal law system plagued by unlawful influence?
Scholarship Editor
www.caaflog.org
Yesterday, the blog Lawfare published a timely piece written by Army judge advocate, Lieutenant Colonel Dan Maurer, entitled Trump’s Intervention in the Golsteyn Case: Judicial Independence, Military Justice or Both? In the article, Major Maurer tries to make sense of a variety of recent developments impacting the military justice system.
The article first explores the Supreme Court’s decision this past summer in Ortiz v. United States, 585 U.S. ___, 138 S. Ct. 2165 (Jun. 22, 2018) (slip op.) (CAAFlog case page). Ortiz is this blog’s #1 Military Justice Story of 2018.
The big take away from Ortiz, in Major Maurer’s eyes, was the new way in which the Supreme Court characterized the military justice system. Specifically, rather than describing the purpose of the court-martial system as being to aide commanders in maintaining good order and discipline, Ortiz cast that as being a mere “attendant, or supplementary” benefit. Instead of being a tool of executive power, the Court described the military justice system as having a “fundamentally judicial nature.” Indeed, rather than paying homage to the good order and discipline mantra, Major Maurer points out:
If Ortiz is understood as being a redefining moment for the court-martial system – defining it as being primarily a system for achieving justice rather than a tool to help commanders maintain discipline – then the decision is a game-changer when it comes to the question of unlawful command influence.
Recent cases like this blog’s #2 Military Justice Story of 2018, United States v. Barry, 78 M.J. 70 (CAAFlog case page), aptly demonstrate that the military courts have lost any sense of humor for unlawful command influence. There, the “bad actor” illegally influencing the court-martial system wasn’t even a commander, but instead was a service Judge Advocate General – essentially a staff officer, albeit a high-ranking one. Whatever lingering patience courts may have had for commanders “walking the line” in the past may have dried up with the Ortiz opinion. In the past, commanders were the helmsmen of a system designed to aid them in maintaining order and discipline. That system may now be understood as serving a different primary purpose: justice.
Major Maurer contends that if the focus of the military justice system has indeed shifted towards justice rather than discipline, then the President’s recent tweet indicating his intent to “review” the murder charges against “U.S. Military Hero, Major Matt Golsteyn” (who is reportedly facing charges of murdering a suspected Taliban bomb-baker while deployed in 2010) might constitute unlawful command influence. In Major Maurer’s view:
- Originally published on January 19, 2019 on www.caaflog.com. Partially preserved by archive.org, here.
www.caaflog.org
Yesterday, the blog Lawfare published a timely piece written by Army judge advocate, Lieutenant Colonel Dan Maurer, entitled Trump’s Intervention in the Golsteyn Case: Judicial Independence, Military Justice or Both? In the article, Major Maurer tries to make sense of a variety of recent developments impacting the military justice system.
The article first explores the Supreme Court’s decision this past summer in Ortiz v. United States, 585 U.S. ___, 138 S. Ct. 2165 (Jun. 22, 2018) (slip op.) (CAAFlog case page). Ortiz is this blog’s #1 Military Justice Story of 2018.
The big take away from Ortiz, in Major Maurer’s eyes, was the new way in which the Supreme Court characterized the military justice system. Specifically, rather than describing the purpose of the court-martial system as being to aide commanders in maintaining good order and discipline, Ortiz cast that as being a mere “attendant, or supplementary” benefit. Instead of being a tool of executive power, the Court described the military justice system as having a “fundamentally judicial nature.” Indeed, rather than paying homage to the good order and discipline mantra, Major Maurer points out:
[T]he Supreme Court described the military’s system without [even] mentioning the role of the commander.
Indeed, if the Supreme Court’s explanation of military justice in Ortiz is taken to its logical conclusion, the role of the commander may be at risk of disappearing entirely. After Ortiz, military justice exists primarily to promote justice for a certain class of people, rather than, as the Preamble to the Manual for Courts-Martial currently says, “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.”
If Ortiz is understood as being a redefining moment for the court-martial system – defining it as being primarily a system for achieving justice rather than a tool to help commanders maintain discipline – then the decision is a game-changer when it comes to the question of unlawful command influence.
Recent cases like this blog’s #2 Military Justice Story of 2018, United States v. Barry, 78 M.J. 70 (CAAFlog case page), aptly demonstrate that the military courts have lost any sense of humor for unlawful command influence. There, the “bad actor” illegally influencing the court-martial system wasn’t even a commander, but instead was a service Judge Advocate General – essentially a staff officer, albeit a high-ranking one. Whatever lingering patience courts may have had for commanders “walking the line” in the past may have dried up with the Ortiz opinion. In the past, commanders were the helmsmen of a system designed to aid them in maintaining order and discipline. That system may now be understood as serving a different primary purpose: justice.
Major Maurer contends that if the focus of the military justice system has indeed shifted towards justice rather than discipline, then the President’s recent tweet indicating his intent to “review” the murder charges against “U.S. Military Hero, Major Matt Golsteyn” (who is reportedly facing charges of murdering a suspected Taliban bomb-baker while deployed in 2010) might constitute unlawful command influence. In Major Maurer’s view:
Since military criminal law is arguably (at least to the Supreme Court) a matter of fundamental justice with only subsidiary consequences for a particular command or commander, presidents – like his subordinate commanders – must keep their distance. That is to say, the issue is always a judicial independence issue and out to be discussed in those terms alone.
- Originally published on January 19, 2019 on www.caaflog.com. Partially preserved by archive.org, here.