Cautious Skepticism about the Benefit of Adding more Formalities to the Manual for Courts-Martial Rule-Making Process: A Response to Captain Kevin J. Barry

• Author: Captain Gregory E. Maggs
• Pages: 01

MILITARY LAW REVIEW

Volume 166 December 2000

Editor's Note: This article is a direct response to Captain Barry's article: Modernizing the Manual for Courts-Martial Rule-Making Process: A Work in Progress, which appeared in Volume 165, Military Law Review. Captain Barry's reply, which follows this article, directly addresses Captain Maggs's criticisms of his proposal, as well as the peripheral issues Captain Maggs discusses. The Editorial Board of the Military Law Review invites further comment on the Manual for Courts-Martial rule-making process.

CAUTIOUS SKEPTICISM ABOUT THE BENEFIT OF ADDING MORE FORMALITIES TO THE MANUAL FOR COURTS-MARTIAL RULE-MAKING

PROCESS:

A RESPONSE TO CAPTAIN KEVIN J. BARRY

CAPTAIN GREGORY E. MAGGS1

1. Introduction

   In Modernizing the Manual for Courts-Martial Rule-Making Process: A Work in Progress,2 Captain Kevin J. Barry, U.S. Coast Guard (Retired), describes the great and steady progress that has occurred in the

   methods for adopting changes to the Manual for Courts-Martial (MCM).3 As his article demonstrates,4 the amendment process has become much more open and responsive to outside views than in decades past. Significant improvements noted by Captain Barry include the following:

   * Since 1982, the Department of Defense (DOD) has had a policy of publishing notice of amendments to the MCM in the Federal Register and waiting seventy-five days for public comment before submitting them to the President for promulgation by executive order.5

   * Also since 1982, the notice printed in the Federal Register has included not only a summary of proposed amendments, but also information about where and how to obtain their full text.6

   * Since 1993, the Federal Register has included the full text of non-binding commentary to be published with new MCM pro-visions in the familiar "Discussion" and "Analysis" sections.7

   * Also since 1993, the Joint Service Committee on Military Justice (JSC), which has responsibility for preparing MCM rule changes for the President's issuance, has held public meetings for the purpose of receiving comments during the seventy-five day waiting period.8

   * Since 1994, the JSC has published full-text notice of proposed changes to the MCM and new commentary prior to the public meeting and prior to their approval as amendments to be submitted to the President.9

   * Since 1996, a DOD Directive has obliged the JSC to "consider all views presented at the public meeting and written co

   ments submitted during the seventy-five day period in determining the final form of any proposed amendments."10

   * Starting in 2000, the JSC will send annual calls for proposals to the judiciary, trial, and defense organizations, the Judge Advocate General schools, and elsewhere. It also will publish an invitation in the Federal Register for the public to submit proposals.11

   Although Captain Barry acknowledges the significance of the changes in the JSC process over the years, he believes that much room for progress still remains. He suggests that the recent high profile sexual misconduct cases relating to Lieutenant Kelly Flinn,12 the drill sergeants at Aberdeen Proving Ground,13 Sergeant Major of the Army Gene C. McKinney,14 and Major General David Hale15 have "raised questions about whether the military trial process is fair."16 Captain Barry believes that one "crucially important issue"17 that "bears decidedly on . . . perceptions of fairness" of the military justice system,18 but which has "received considerably less attention" than other issues,19 is "the method by which amend-

   ments to the Manual for Court-Martial . . . are proposed, considered, and adopted."20 Accordingly, in Part IV of his article,21 Captain Barry advances various "Recommendations for the Future"22 for improving the

   method of creating and amending the procedural and evidentiary rules for courts-martial.

   Although Captain Barry does not enumerate them, he puts forth a total of seven specific proposals. Three recommendations are based on a resolution of the American Bar Association (ABA) House of Delegates.23

   In 1997, at the recommendation of the ABA's Standing Committee on Armed Forces Law (SCAFL), the ABA House of Delegates approved the following resolution:

   RESOLVED, That the American Bar Association recommends that federal law be amended to model court-martial rule-making procedures on those procedures used in proposing and amending other Federal court rules of practice, procedure, and evidence by establishing:

   (1) a broadly constituted advisory committee, including public membership and including representatives of the bar, the judiciary, and legal scholars, to consider and recommend rules of procedure and evidence at courts-martial;

   (2) a method of adopting rules of procedure and evidence at courts-martial which is generally consistent with court rule-making procedure in Federal civilian courts;

   (3) requirements for reporting to Congress [and] a waiting period for rules of procedure and evidence at courts-martial.24

   The fourth proposal is derived from a 1973 law review article by Major General Kenneth Hodson.25 In the article, General Hodson urged that "a Military Judicial Conference, headed by the Chief Judge of the Court of Military Appeals, be established and given power to prescribe rules of procedure and evidence."26 As described more fully below,27 this proposal relates closely to the ABA's second recommendation because the

   Judicial Conference headed by the Supreme Court leads the court rule-making procedure in civilian courts.

   The final three recommendations for the future come from Captain Barry himself. First, Captain Barry urges creating an enforceable "mechanism to make available to the public the contents and justifications for . . . proposals . . . generated within the DOD."28 Second, Captain Barry recommends making available to the public "the minutes of the meetings of JSC (and of its working group) and the decisions on proposals generated within the JSC and the DOD."29 Third, Captain Barry advocates expanding the membership of the JSC beyond "the five officers chiefly responsible for the administration of military justice in the five services."30

   When Captain Barry addresses the subject of military justice, his thoughts warrant attention and reflection because of his long and distinguished experience in the field. During his twenty-five years on active duty in the Coast Guard, Captain Barry served in a variety of important positions, including Chief Trial Judge, appellate military judge, and chief of the Coast Guard's Legislative Division.31 Since retiring from active service, Captain Barry has developed an extensive private practice in military and veterans law. He also has played key roles in leading military law professional organizations, including the National Institute of Military Justice, the Judge Advocates Association, and the ABA's SCAFL.32 The SCAFL's views are similarly influential because of the vast military and legal experience of its membership, including dozens of retired judge advocates, some of whom are retired general officers. The specific endorsement of most of the proposals by the ABA and by the legendary Major General Hodson, needless to say, makes Captain Barry's ideas even more worthy of study.

   This article addresses Captain Barry's proposals. Part II, begins by discussing three preliminary considerations concerning the MCM rule-making procedure.33 First, recent history suggests that the MCM probably will undergo only incremental changes for the foreseeable future. Second, the process of amending the MCM is largely irrelevant to most of the major military justice reforms now being urged. Third, changes to the MCM

   rule-making process would affect the present balance of powers between Congress and the President, possibly producing unintended adverse consequences.

   Part III then responds to each of Captain Barry's seven recommendations.34 On the whole, none of the proposals is radical or dangerous. Indeed, each is closely analogous to the federal civilian criminal justice system. In addition, no insurmountable legal obstacles would prevent their adoption. Yet, closer inspection suggests that, in light of all the progress that already has occurred in the methods for amending the MCM, none of the proposals would yield significant new benefits. At the same time, all but one or two of the proposals would impose at least some significant burdens or costs. For these reasons, at least at present, the JSC, the DOD, the President, and Congress should view Captain Barry's recommendations with cautious skepticism.35

2. Preliminary Considerations

   Before assessing the desirability of adding new procedures and formalities to the MCM rule-making process, three preliminary considerations require attention: (1) the nature of future amendments to the MCM or, put another way, what the MCM rule-making process likely will be used for; (2) the kinds of reforms now being sought for the military justice system; and (3) the effect changes to the MCM rule-making process might have on the balance of powers between the President and Congress. The following discussion addresses these three considerations.

   1. Changes to the MCM that Will Occur in the Future

      What kind of changes to the MCM will occur in the future? The nature of the changes certainly matters a great deal to the process. If only adjustments to individual rules of evidence and procedure are likely to happen, rather than sweeping systemic changes, then the need for an extensive revision of the MCM rule-making process seems less important. The

      final results probably will not vary much no matter how amendments are processed before the President approves them.

      The MCM, to be sure, has seen dramatic changes in the past fifty years. In 1951, the President promulgated a new version of the MCM,36

      designed to conform to the newly enacted UCMJ.37 The President approved a significantly revised version of the MCM in 1969,38 taking into account the...