Judnal Functions far the Commander?

• Author: BY Major Donald W. Hansen
• Pages: 01

This arlicle exomines in depth the historic relationship between the commander and the mililaryjustice system. The author considers the relation that the commander's exercise ofjudicial functions bears to his responsibility for maintaining goad order and discipline in the command, and whether lhis cuwent relotionship is so tenuous os lo justify removing him entirely from the arena of mililary juslice. He concludes lhot the commander must ploy an indispensable role in any system ofmilitar~justice.

1. INTRODUCTION

   ISltanding aimie~in t m e of peace, are ineonastent with the princiilea of rewblican Governments, dangerous to the liberties of a free P ~ O D ~ E , and

   generally converted into destructive endnes for establishing dewdim a

   Despite the fears of the Rebublic's foundingfathers,' the growth of the American Nation has been attended by a similar growth in the size of its standing International tensions. which have characterized the post World War I1 era, indicate that a large military establishment will characterize American society for the foreseeable future with far reaching consequences to the citizenry in general and to members of the legal profession in particular.'

   'This article was adapted from a theais presented to The Judge Advocate General's Sehooi, U.S. Army, Chariotiawilie, Virginia, w h h the author was a member of the Fourteenth Career Course. The opinions and eonelusions presene ed herein are thore of the author and do not necessarliy represent the dews of The Judge Advocate General's School OT any other governmental agency.

   "JAGC, US. Army; Instructor, Mliitary Justlee Divimn, The JudgeAdvocate General's School. U.S. Army: B.A., 1966, LL.B., 1858, Colorado Uni-versity: member of the Bars of the State of Colorado, the United States Court o i Military Appeals, and the L'nited States Supreme Court.

   '27 JOURNIUIB OF CO~T~XEFTU

   CDNOREBS

   518 (1784) (G.P.O. ed. 1928). 'THE FDEWIST No. 8, ai 45 (Bntannica ed. 1852) (Hamilton),In 1784, the American Army eonsiiting of 700 men was ordered dis. charged by the Continental Congress: "Resoiued, That the commanding officer be, and he is hereby dmeted to discharge the troops now in the ~ervice oi the United Stater, except 26 privates, to guard the starer at Fort Pitt and 55 to guard the itores at West Pmnt and other magazmea. with a proporti .ate number of officers; no officer to remain in service above the rank ai B &dp-tam" 27 J ~ R N A L S

   OF COZTINEZTAL CONORE~ 624 (1784) (G.P.O.

   ed. 1828).

   As of December 31, 1864, the strenpth of the U.S. Army on active duty conristed af 871.384 ameerr and men. W o r n ALMANAC

   724 (1965).

   "[bllliitary justice is tho largeit Single system of eriminal Justm in the nation, not only ~n time of war, but also in time of peace; now, and as far ahead 8.8 we can see." Xarlan 8; PeBpe~, The Soopa of Yilitory Juatioi, 48 J. CRIM. LC. & P.S. 285, 298 (1952)

   As the size of the armed forces increased during our historical development. the traditional view of the court-martial as B "court of honor"' came under close scrutiny by the citizen-soldiers who had not voluntarily assumed its burdens. As a result. the courts-martial system ceased to be the exclusive province of the professional soldier and became of vital interest to the public-at-large. This "democratization of war'" was to have a profound effect on the military justice system when the citizen armies which had been called forth to defend the nation during pericdds of crisis were demobilized in times of peace. The isolated instances of summary discipline they had experienced caused a demand for reform of the entire system.

   The central issue in the proposed reforms involved the interrelationship of the commander and the courts-martial system in the fabric of military discipline: To what extent should the court-martial be an instrument of command discipline? To what extent should the court-martial be an independent judicial tribunal?. During the hearings before the House Armed Services Subeommittee on the Uniform Code of Military Justice,& Professor Fdmund M. Morgan, the president of the drafting committee, indicated that a compromise had been reached between these conflicting interests:

   We were connnced that B Code of Military Justice cannot ignore the military circumstances under whch it muat operate but we weie equally determined that it mwt be deaignated [aiel to adminirrer wetice.

   We. therefore. amed at mowding functions far ..&nand and appro~nateyroeedures far the administration of justice. We have done our beat to strike a falr balance, and believe that we have given wmomiate 7-cognition of each factor '

   ' W. WIATHROP, MILITARY LAW AND PnEcmErm 64 iZd ed. rev. & enl.18201 [hereafter cited 8 9 W~XTHROP].

   "[Ut should slw be borne in mind that they are in a special ~ e n w courts of honor. whose object IS the maintenance of a high standard of discipline and honor in the Army, snd which, in the exercise of this jurisdiction, try many aaeuaatmns bared upon acts entirely unknown to the civil courtr as criminal offenma. Oniy courts composed of military officers can have that knowledge of the standard of discipline and honoi in the Army which would enable them to weigh correctly Bets impsiring It, and eourii-martid, in maintaining this standard, may properly be raid to be court8 Of hgnor" G. DAYIS, I TREATISE

   1913) [hereafter cited as DAVIS].

   'See generally W. MIUIS, ARVS AND MEN 13.72 (1866)..Sic generally S. REP. So 488, 81st Cang., lit Sens. (1849).s 10 U.S C $5 801-840 1864 [hereafter called the Code and cited a3 UCMJ]. Hearing. 0% H.R. 2198 Before a Subommitter 01 the Hams Cornmiltee onArmed Pomes, 81nt Con. .. 1st Sesa. 606 (1848) [hereafter cited 81 2810 Xa7- inga1. ."United States 7. Bayren. 11 C.S.C.M.A 331. 341. 29 C.M.R. 147, 167

   (18601 idlasentins amnion). 2

   TRE MILITARY

   LAW or TEE U~lrm

   STAT^ 16 i3d ed. rev

   JUDICIAL FUNCTIONS

   This background led Judge Latimer of the United States Court of Military Appeals to observe:

   It is generally well known and understood that the P'OWBTB of B Federal judge m the e ~ l i a n community are d w d d in the military They are allocated by military isx to the court-martial. the convening authority, and the isw ofticei.lO

   Indeed. the Court has recently indicated that all military justice activity by the commander will be teated by standards applicable to judicial offieers.llThe conclusion that the commander exercises judicial functions in dealing with breaches of discipline involves a significant departure from the traditional view expressed by Winthrop that courts-martial are nothing more than 'Tnstru-mentalities of the exeeutiuepower. ''12

   Since this article will examine the development of the commander as a judicial officer, and an evaluation of the continued necessity for him to perform judicial acts in connection with military justice, a working definition of the term "judicial function" is neceseary

   11. THE NATURE OF THE JUDICIAL FUNCTIONIn an effort to develop the court-martial a8 an independent court of law, the Court of Military Appeals has been confronted with the extensive authority granted the commander under the Code. Rather than accept as basic the command nature of the court-martial, the Court has utilized the term "judicial function" a8 the conceptual vehicle to explain the commander's authority to lawfully participate in the field of military justice represented by the court-martial.13 Although the commander's "judicial func-

   -

   --In United States Y. Eiiaey, 16 V,S.C.M.A. 455, 37 C M.R.

   75 (1966). the

   Court held a ruling by the convening authority refusing to permit the trial ~ounsel to mend D specification was judicial in nature and binding on that officer The Court noted. "The convening authority's fnnetian in military justice is judicial in nature. His actions w e magistermi, and this 18 JO whether he grants pretrrai relief to a p.rty ta the proceeding8 or, as in this ease, denies It:' Id. s t 457, 37 C.M.R. at 77.

   . W I F T H ~ P

   49 (emphasis ~n original).'-The tendency of the Court ta separate the funebonr of the commander was decried by Jvdpe Latimer: "In short, in that held which may invd~e exec.

   utive, judicial, and legislative funetiona, we have B systematic, unbroken execu-tive pnctjce, puraued for O V ~ F

   the entire life of this eountry with the knowledge and blessing of Congrese, and ne~erup to this date legally questioned by that body. Why, then, shovld we be 80 hypertechnicsi about departmentslizing his functions to deny him pavers which have been continuously recognized?" United States V. Simpson, 10 U.S.C.M.A. 229, 238, 21 C.M.R. 303, 512 (1969) (dissent-me in Part).

   .

   tions" were not defined as such by Congress, the term has a genesis in the Code:ha perron aubiect to tha [Codel may attempt to coerce or. by any unautharirad meanr. mfluence the action deny convening ~11prov-1"s 01 reriewmg authority withrespect to hls,vdierol act* 4

   By defining the commander's power as "judicial," the Court gives meaning and substance to a standard against which his actions under the Code will be judged.

   Judicial functions may be defined generally as "[tlhe capacity to act in the specific way which appertains to the judicial power, as one of the powers of Viewed in this light, the proceeding must itself be judicial in the sense that it involves a personal16 adjudication between contesting parties. The essence of the judicial power is the exercise of independent discretion" unfettered by directives of higher authorities.18 In this regard. judicial functions must be distinguished from administrative functions19 which require set tasks prescribed by law defining the time, method, and occasion of its performance and in no way involving the application of the judgment factor.

   Occasionally. the Court of Military Appeals has found a judicial function where the convening authority exercises powers correa-ponding to those normally held by some judicial agency in the civilian community. For example. the Court has noted...