an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It's rare for two important things to happen in the same place. But so it is with Aviano Air Base, in Italy. Among military lawyers, Aviano was previously associated with a terrible accident in 1998 when a U.S. Marine Corps jet severed the cable of a ski gondola, sending 20 civilians to their deaths and leading to high-profile courts-martial. Aviano is now in the news because of another military justice case.
Last November, an Air Force general court-martial at Aviano convicted a fighter pilot (and acting inspector general) named James Wilkerson of sexually assaulting a civilian contractor and sentenced him to a year's confinement and to be dismissed from the service. By statute, the court-martial was subject to review by a three-star general stationed in Germany before the case would enter the military appellate court system. Under article 60 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 860, that officer -- known as the convening authority because he is also responsible for establishing (or convening) the court-martial and deciding that the case should be referred to it for trial -- has "sole discretion" "to dismiss any charge or specification by setting aside a finding of guilty." Authority to modify the findings and sentence "is a matter of command prerogative involving the sole discretion of the convening authority." Rule for Courts-Martial 1107, which is part of the Manual for Courts-Martial (an Executive Order) adds that, before taking post-trial action, the convening authority may consider not only the record of trial, the accused's service record, and any matters submitted by the accused, but also "[s]uch other matters as the convening authority deems appropriate." According to the official "Discussion" under R.C.M. 1107, the convening authority may "for any reason or no reason" disapprove a finding of guilty. The Manual does not require an explanation.
Late in February, Lt Gen Craig A. Franklin, the convening authority, exercised this power and disapproved the findings of guilt. Lt Col Wilkerson was released from confinement.
Given the current controversy over sexual assault in the military, it is not surprising that Lt Gen Franklin's action has sparked heated debate. This week the Senate Armed Services Committee will conduct a hearing on sexual assault in the military and it is likely the Wilkerson case will be Topic A.
Legislators from both sides of the aisle and across the political spectrum are expected to weigh in. It is important that they do so with a full understanding of the issue.
First, it would be wrong to harass or penalize Lt Gen Franklin. His action, whatever the reason(s) for it, was plainly authorized. Congress granted him sole discretion and he used it. To probe his reasons is to repudiate the statute. It is also a form of legislative "command influence" calculated to affect others' exercise of discretion, and as such no more appropriate than "unlawful command influence" exerted by senior officers.
But that is not to say Congress should do nothing. It may want to use this incident as an occasion for revisiting the statutory grant of unbridled post-trial review powers to commanders. Democratic countries are moving away from this role for commanders. Congress ought to fully inform itself of that trend and make an informed judgment as to whether the United States should abandon this command-centric aspect of the military justice system. Such a shift would rationalize our system, which includes not only a rough replica of the jury system, but also a military trial bench, two tiers of specialized appellate courts, and a clemency and parole system. The convening authority's post-trial power of review is a throwback to an earlier age and fundamentally discordant with other, more modern aspects of the military justice system. What are the members of courts-martial -- our uniformed jurors -- to think if they know that a commander can set aside the verdict they have painstakingly rendered after hearing the evidence, perhaps asking questions of their own (as military law permits), applying the military judge's binding legal instructions, and deliberating in secret?
If it conducts this examination of the back end of the military justice system, Congress should also look at the front end, where non-lawyer convening authorities enjoy equally broad discretion to decide which cases will be referred for trial by court-martial. To bring the one up to date and into sync with other aspects of the UCMJ while leaving its mate hard aground in the 18th century would make no sense. Congress could do as other democratic countries have done in the last several decades, and move the prosecution decision to a legal official such as a director of military or service prosecutions and away from commanders. Under a reformed system, commanders could of course express their views as to how any particular case should be handled, but they would have to do so in writing and the actual decision would lie with a trained, independent prosecutor.
We can expect heat about the Wilkerson case in the coming weeks, but perhaps we can hope for some light as well.