Scholarship Saturday: Focus on ethics to restore public confidence in commanders and judge advocates

By Isaac Kennen

Scholarship Editor
www.caaflog.org

A few months ago, in Scholarship Saturday: We hear drums, drums in the deep, this column explored the ways that the sexual assault conundrum has invited scrutiny towards the military justice enterprise in toto. As that article explained, the result of that scrutiny has been a profound weakening of the power of commanders and judge advocates to prevent and correct wrongful court-martial convictions. Specifically, military commanders have been stripped of their ability to test evidence prior to trial through Article 32 investigations, and their ability to correct errors post-trial has likewise been dismantled. Additionally, as this column discussed in a follow-up article, constraints have been imposed on the power of the ad interim judges (née military lawyers) of the military courts of criminal appeals to remedy erroneous convictions on appeal.

These changes were spurred forth by long-standing and persistent Congressional and Presidential chastisement, enthusiastic plaintiff’s lawyers, and blistering critiques from public interest groups seeking both systemic change and a means by which military sexual trauma victims might sue the government for damages. This effort has left court-martial panels as the primary guarantor of justice for accused servicemembers in all court-martial proceedings, not just sexual assault cases. Relying so heavily on court-martial panels to do justice is a practice fraught with peril. First, under Article 25(e), rather than a trial by peers, a court-martial panel is made up entirely of the accused’s superiors and, rather than being picked impartially, those superiors are hand-selected by the prosecuting authority. This naturally gives rise to a concern that the members might feel inappropriate pressure, real or imagined, to reach a conviction on the command’s allegations. This concern is deepened by the fact that, as this column recently discussed, the latest defense funding act included language designed to make it harder for the lawyers sitting on military appellate courts to reverse court-martial panels that appear to have been improperly influenced by commanders.

That inherent conflict of interest suffered by every court-martial panel when they walk into the court-room is only a prologue to the constitutional deficits they suffer when they enter deliberations according to the Supreme Court’s decisions in Ballew, Burch, and Ramos. In sum, perusing those cases leads naturally to the conclusion that, under the Fifth Amendment, court-martial panels are manifestly too small to engage in reliable deliberations, are (if Ramos is correct) perhaps especially likely to disregard the dissent of racial and sexual minorities on the panel, and those infirmities are made all the worse by the fact that their verdicts are not required to be unanimous. These deficits make court-martial panels a particularly poor underwriter of liberty. And, that deficit does not even account for the fact that the military accused is not afforded a trial before a true judicial officer – instead, they must settle for a military lawyer detailed ad interim as a military judge by the same Judge Advocate General who is responsible for the prosecutors.

The common thread that runs throughout the narrative above is trust. Right or wrong, and despite the inherent infirmities, the public has demonstrated, through its elected officials, that it trusts the everyday Soldiers, Sailors, Marines, Airmen, Guardians, and Coastguardsmen who make up military court-martial panels. And, just the same, the public has demonstrated a loss of confidence in commanders and the lawyers who advise them.

Commanders and judge advocates will continue to bleed authority until they repair the trust it relies upon. A recent article published in the Hofstra Law Review by Ohio State University Moritz College of Law Professor Dakota S. Rudesill entitled, “At the Elbow and Under Pressure: Legal, Military, and Intelligence Professionals,” posits that it will take both commanders and lawyers, acting in concert, to get that done.

The first step is to acknowledge that there is, in fact, an ethical conflict:

[Both lawyers and commanders] often serve demanding principals who may or may not share their professional outlook or heightened ethical standards—and sometimes seek to intimidate or manipulate them. Wedged between their principles and principals, the core, challenging, and continual task of lawyers [and] servicemembers . . . is to balance their obligations of professional independence and service to a principal.

It is only honest to admit that the demands by principals in the Legislative and Executive branches of government as regards the administration of military justice do not always comport with the duties that commanders and lawyers owe to the Constitution, their personnel, participants in the justice process, and each other. Admitting the truth of what everyone can already see to be true might make certain powerful people upset, but it also inspires public trust and confidence.

The second step, after candidly acknowledging that withstanding unethical pressure is part of the job, is for lawyers and commanders to do some spring cleaning in their own houses and among their own members.

[W]ithin their professions, lawyers [and commanders] should meet anti-professional pressure with recommitment to their values and their colleagues. They must maintain or raise high standards for recruiting, training, licensure, and ongoing professional education. They should reinvigorate both ethics training and enforcement of professional standards. [Both] professions must, in particular, train themselves in spotting and counteracting the cognitive bias that can flow from pressure from principals.

This only makes sense: If step one is to acknowledge that pressure exists, then step two is to put systems in place to counteract that pressure. The third step is for lawyers and commanders to “collaborate across professional lines in defending the independence and high ethical standards of all the professions.” This starts, Professor Rudesill insists, with both lawyers and commanders acknowledging “just how much they have in common.” Specifically:

Expertise, training, and licensing requirements screen and prepare candidates for the special and fundamentally ethical commitments of the legal [and command] professions. Each profession is bound by an ethical code, articulated in documents that carry that term and also in training materials, adjudicative opinions related to alleged violations, and the writings of leaders, practitioners, and scholars. Lawyers [and commanders] are defined by the role assumption and ego subordination inherent in these ethics regimes. Individuals in these professions all have special occupational identities and have fiduciary duties of loyalty, acting in the interest of others—most often principals, superiors, clients, and colleagues. For the government lawyer, the duties attach regarding their immediate organizational client and the ultimate clients: the interests of justice, the public, and the Constitution.  Similarly, [commanders] swear oaths to the Constitution and to the protection of the nation.

Integral to role assumption and fiduciary duty are the heightened ethical commitments to professional independence, integrity, and protection of confidences (attorney-client confidences for the lawyer and classified information). They are heightened duties in the sense that they ask more than general societal norms and are often more than the law.

After reaching a common understanding of the ethical obligations of each community, Professor Rudesill recommends “these . . . communities should seek to check parochial tendencies with fraternal and collaborative ones. They should foster regular dialogue as part of initial training through continuing professional education about their common commitments and challenges—and the common cause they can make against anti-professionalism.”

The final step, after each community has brought their own house into order and found common “fraternal and collaborative” cause with the other house, is to actively push back, together, against wayward principals and the broader corrupting influence of “anti-professionalism and bad information” in American culture. To the latter point, Professor Rudesill notes:

Professionals . . . need to be supported in confronting anti-professionalism and bad information. That includes confronting conspiracy theories and other low-quality ideas about the ‘deep State,’ and defending the kind of elitism that is valuable—specialized knowledge and training and heightened ethical commitments.

Professor Rudesill’s recommendations certainly cannot hurt. He rightly focuses on the need for commanders and lawyers to “speak truth to power” regardless of personal consequences and regardless of whether it discomforts a superior. Further, his recommendation that judge advocates and commanders should collectively hold each other’s communities accountable seems more likely to yield positive results than leaving those communities to their own devices.  These sorts of efforts, if employed, might restore some of the trust in commanders and judge advocates that has apparently been lost. Perhaps that will stop the bleeding, but it is unlikely to persuade Congress to return what has been lost. 

- Originally published on March 20, 2021 by CAAFlog.org, here. Preserved by Archive.org, here.