Congressional Influence on Military Justice.

• Author: Goldberg, Max Jesse

NOTE CONTENTS INTRODUCTION 2112 I. UNLAWFUL 2114 COMMAND INFLUENCE FROM "THE TOP" II. MILITARY JUSTICE 2118 AND CONGRESS A. The Founding to WWI: 2118 Delegation and Neglect B. WWI to the UCMJ: A 2121 Clamor for Reform C. From the UCMJ Onwards: 2127 Accelerating Engagement III. CONTEMPORARY CONGRESSIONAL 2133 MANAGEMENT OF MILITARY JUSTICE A. Productive Oversight: Sexual 2134 Assault and the Military Justice Act of 2016 B. Destructive Interference: The 2140 Case of Bowe Bergdahl IV. CIVILIANIZATION 2147 AND CONGRESS'S PROPER ROLE V. PROPOSED REFORMS 2150 A. Use Existing or New Rules 2151 to Discourage Destructive Interference B. Set Procedural Defaults 2152 for Military Justice Oversight C. Cut Back or Eliminate 2153 the Command-Centric System CONCLUSION 2154 APPENDIX 2156 INTRODUCTION

The Taliban captured Sergeant Robert "Bowe" Bergdahl in 2009 after he walked off of his post in Afghanistan. (1) For five years, he was held hostage, tortured, and brutalized when he repeatedly attempted to escape. (2) Once he returned home, he was investigated and court-martialed for desertion, among other offenses. (3) Under the Uniform Code of Military Justice (UCMJ or "the Code"), the governing law for courts-martial, Bergdahl's trial should have been free from outside influence. (4) But, long before the case had come to a close, John McCain, the chair of the Senate Armed Services Committee (SASC), pronounced his own verdict. "If it comes out that he has no punishment," he announced, "we're going to have to have a hearing.... And I am not prejudging, OK, but... [he] is clearly a deserter." (5)

The choice facing the military officers who would determine Bergdahl's sentence was clear: either impose a punitive sentence or face an investigation from the SASC, which had authority over their pay, benefits, retirement, and promotions. (6) The fate of their careers and institution hung in the balance. Under such pressure, could anyone remain impartial?

Congress's relationship with the military justice system is at a critical juncture. A crisis of sexual assault in the military has attracted intense congressional scrutiny, and the resulting legislation has radically transformed the system. (7) The days of drumhead military justice are largely behind us, as military justice increasingly resembles the civilian system thanks to productive congressional oversight. (8) But heightened congressional attention has come at a cost. Congressmembers have often meddled with the administration of military justice in ways they would never do with respect to proceedings in civilian federal courts. This congressional interference undermines the system's integrity and, while individual instances have garnered some media attention, the underlying systemic problems have been ignored. (9)

As military justice grows more civilianized, Congress has less reason to intercede in its administration. Intercession may have been appropriate when military justice was primarily about discipline and resembled a typical executivebranch function. Today, interference jeopardizes the integrity of a system that is essentially judicial. For the military justice system to command the same respect as its civilian counterpart, it must be insulated from officials who can use their authority to improperly influence proceedings, regardless of whether they are formally part of the chain of command.

To make this argument, this Note analyzes military justice history and contemporary case studies, and proposes policy reforms to mitigate congressional interference with the "retail administration of military justice." (10) Part I explains unlawful command influence and its relationship to Congress. Part II traces the historical development of the command-centric military justice system to delineate several paradigms of congressional oversight and to demonstrate the novelty of Congress's recent attention to the day-to-day operation of military justice. Part III uses two recent case studies, the Military Justice Act of 2016 (MJA) and the ongoing litigation in United States v. Bergdahl, (11) to examine how congressional oversight has interacted with the modern military justice system. Part IV argues that congressional intercession in pending cases is incompatible with the contemporary system of military justice. Finally, Part V proposes three policy options that prevent congressmembers from interfering with pending cases while preserving Congress's ability to reform and improve military justice.

1. UNLAWFUL COMMAND INFLUENCE FROM "THE TOP"

   Military justice in the United States has always operated separately from the civilian system. (12) While the "military justice system's essential character" is "judicial," (13) recognized by the Supreme Court, its judges, prosecutors, juries, and defendants, with limited exceptions, are executive-branch personnel. (14) The U.S. system retains a traditional military character in contrast with many of its counterparts in developed countries, some of which have "civilianized" their military justice systems to the point of abolition. (15) In the American "command-centric" system, high-ranking officers, rather than professional prosecutors or other judicial officials, administer justice directly for minor violations and also make decisions about whether and when to bring charges for more serious crimes. (16) While in general only commanders can decide whether and what type of proceedings to initiate, anyone may report and several classes of people may investigate or bring charges for violations of military law. (17) Although the command-centric model has some advantages, as well as vocal defenders, (18) it is more susceptible than a system of independent judicial decisionmakers to influence from powerful members of military command, who can use their positions of authority to affect the processes and outcomes of military justice.

   When Congress enacted the UCMJ, it took steps to limit this influence. (10) The Code's drafters reached a compromise to remedy the most problematic aspects of command influence by defining and prohibiting unlawful command influence (UCI) over military justice proceedings. (20) Article 37 of the Code defines the restrictions on UCI, which prohibit convening authorities and other military personnel from unduly influencing the court-martial procedure at any stage. (21) Referred to by the nation's highest military court as "the mortal enemy of military justice," (22) UCI sometimes requires dismissal of charges, a new trial, or other remedies. (23)

   Yet Article 37 is mostly silent on a critical matter--the extent to which the many civilian members of the federal government who can exercise "commandlike" authority over proceedings may permissibly interfere. The Supreme Court's longstanding principle of non-interference into military justice also exacerbates the problems caused by this gap in UCI restrictions, because it discourages the Court from stepping in to correct for improper influence by government personnel outside the chain of command. (24) The law on influence by civilian leaders of the military is thin, and the lines between permissible and impermissible conduct are difficult to discern. As the U.S. Army Court of Criminal Appeals (ACCA) recently emphasized in Bergdahl's case, the "risk [of UCI] is exacerbated when [it] comes from the top." (25) While "the top" (including the President, the Secretary of Defense, and other Department of Defense (DoD) personnel) is not explicitly subject to the Code, courts have occasionally applied Article 37 to their conduct. (26) The Court of Appeals for the Armed Forces (CAAF), reviewing Bergdahl, held that "any sitting president... has the ability to commit unlawful command influence." (27) President Trump, with his unusual and often tweetbased interventions into the military justice system, brought renewed scholarly attention to the UCI doctrine. (28)

   The flurry of attention to the President's actions has obscured the similar but distinct issues with congressmembers' influence on military justice. For most of American history, the issue posed only a limited problem, as Congress generally gave commanders significant latitude to impose punishment as they saw fit. (29) Since the Founding, legislators have exercised varying degrees of oversight over the scope, structure, and operation of military justice. Congress has a constitutional duty to fund and oversee the military, and maintains a full committee dedicated to the task in each chamber. (10) While congressmembers do not have the same type of direct, official involvement in proceedings as members of the military chain of command, the House Armed Services Committee (HASC) and SASC (collectively, ASCs) retain significant control over the military through appropriations, investigations, and, in the case of SASC, promotion review. (31) Unlike military personnel who are subject to the UCMJ, congressmembers are not ordinarily subject to Article 37's prohibitions and can therefore seek to influence proceedings without fearing meaningful consequences. (32) Members of the military also may seek to convince members of Congress to influence particular proceedings, rather than doing so themselves, thereby reducing the risk that the dispositions of those proceedings will be invalidated on the basis of UCI. (33)

   While congressional influence is not unique to the present moment, its contemporary form is unprecedented in American history. Appreciating how and why today's Congress engages in both productive oversight and destructive interference with regard to military justice requires an historical account of Congress's relationship to the system.

2. MILITARY JUSTICE AND CONGRESS

   Since the birth of the U.S. military justice system in 1775, (34) Congress has exercised its oversight authority with varying degrees of involvement. This Part surveys the history of the American military justice system (35) from the Founding to the present...