Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review

• Author: Major Joshua M. Toman
• Pages: 04

MILITARY LAW REVIEW

Volume 195 Spring 2008

TIME TO KILL: EUTHANIZING THE REQUIREMENT FOR PRESIDENTIAL APPROVAL OF MILITARY DEATH SENTENCES TO RESTORE FINALITY OF LEGAL REVIEW

MAJOR JOSHUA M. TOMAN*

As the civil judiciary is free from the control of the executive, so the military [judiciary] must be untrammeled and uncontrolled in the exercise of its functions by the power of military commanders. The decision of questions of law and legal rights is not an attribute of military command.1

The [P]resident has the discretion on when and if he wants to sign the documents. There's no timeline that the [P]resident has to follow. It can be carried out in this administration or it can be transferred to the next.2

I. Introduction

The death penalty has effectively been abolished in the military justice system. This silent abolishment undermines the authority necessary to enforce good order and discipline in the armed forces, especially in times of war. More importantly, in a democracy, a practice established in law by the people's representatives and by common usage should not be ended without a vote, an executive decision, or a court order. The military death penalty was silently abolished by the layering of more judicial review atop the presidential review of capital sentences which creates a logjam and a bureaucratic excuse for inefficiency. Removing direct presidential approval and redefining it as traditional executive clemency revives the will of people in establishing a military death penalty.

Civilian oversight by political appointees after the completion of military judicial review of a death sentence creates deliberate or inadvertent delays in forwarding a capital sentence to the President for approval. These delays provide defense attorneys a window of opportunity to file numerous additional petitions to the same military courts that previously completed review of the case. When the military courts entertain these petitions, it creates needless delays3 that stop the political appointees from forwarding the death sentence cases to the President and results in an indefinite loop of delay. This delay forestalls Presidential review or approval and subsequently precludes federal district courts from conducting habeas review of the proceedings, ultimately precluding any executions. Nevertheless, the military justice system only needs a simple upgrade to reboot the system and prevent it from locking up when processing a capital sentence in order to achieve an essential public interest-verdict finality.4

The discretion of an individual's whim is a menace to any legal system, but discretion embedded into a legal system by legislative action is anathema. The first quote by Edmund Morgan, a Harvard Law professor and former Army Judge Advocate, captures the peril a commander's caprice poses to military justice. Eliminating this danger was the basis for significant changes to the military legal system over fifty years ago. Yet it is an unqualified danger, and as reflected in the second quote, such deleterious effects can even be caused by the highest military commander. Specifically, as Commander in Chief, the President must personally approve a Soldier's court-martial death sentence before it may be imposed under Article 71(a), Uniform Code of Military Justice (UCMJ).5 However, there are no deadlines for this approval, and the involvement of political appointees bogs down the approval process because their review is also not guided by timelines, functions, or criteria.

This executive approval requirement is a unique hybrid of affirmative approval of the sentence and a discretionary grant of clemency. This dangerous combination is further intensified because of both the procedural location and political implications of such approval. Procedurally, after a capital case completes legal review under the UCMJ, it is submitted for presidential approval before the case may be subject to federal habeas review. Prior to the addition of federal habeas review of courts-martial, presidential approval was the last affirmative step in capital courts-martial prior to carrying out the sentence. However, patchwork changes in the military legal system added federal judicial review after executive approval. Politically, capital punishment is a much more sensitive issue today when compared to the social environment in existence when Article 71(a) was enacted. Therefore, by requiring presidential approval in this manner, as a discretionary choice rather than as a perfunctory duty, it is virtually certain that approval of a death sentence will occur only amidst vociferous public support. Finally,

this open-ended arrangement irrefutably breeds inaction that consumes precious military justice resources.

Private (PVT) Dwight J. Loving's case substantiates that these dangers posed by command-or rather, civilian appointee-discretion presently exist. His death sentence, stemming from the 1988 murder of two taxi drivers, is still awaiting presidential approval.6 Private Loving is in a unique legal position compared to civilians on death row because his sentence was unanimously affirmed in 1996 by the Supreme Court.7

Yet, his case was remanded in 2006 by the U.S. Court of Appeals for the Armed Forces (CAAF) and the CAAF declared it has continuing jurisdiction.8 The court's action coupled with the President's inaction creates an unintended defect in the system. Other capital courts-martial9

will soon enter a similar wasteful cycle of continual appeals.

This problem spills over into two other areas. First, even if the $50 million congressional bounty for Osama bin Laden leads to his capture and eventual sentence to death by a military commission, his sentence may never be carried out because the Code for Military Commissions adopted the UCMJ's executive approval requirement.10 Consequently,

military commission judicial resources may be consumed by extensive post-appellate reviews in the same manner as seen in PVT Loving's case. Second, no matter how abhorrent the conduct of a civilian contractor in Iraq or Afghanistan, the same UCMJ delays would arise in the case of a civilian sentenced to death at a court-martial.11

This article advocates a reform to military capital litigation. Military offenders face a constitutionally12 sound, but rarely approved death

penalty.13 Not acting on a Soldier's court-martial death sentence for murder while denying clemency on a civilian federal death sentence for murder is de facto clemency.14 As President, George W. Bush denied clemency in less than thirty days in a federal capital case; however, nearly three years have passed with no action on two capital courts-martial.15 Even if the President approves PVT Loving's sentence, a change is needed to stop perpetual delay of capital courts-martial for Soldiers and civilians subject to the UCMJ.16

It is time for a mercy killing of Article 71(a) because it has fallen into desuetude as a result of its disjointed location in the judicial process.17 Congress should amend Article 71(a) by eliminating presidential approval of death sentences because it is an illogical requirement prior to federal habeas review. It is also unnecessary because it does not preclude clemency following habeas review. Furthermore, it is inefficient because it is discretionary and lacks a timeline for completion, thereby making approval extremely remote and excessively wasting government resources.18 Consequently, cases affirmed on appeal have fallen into a "legal vacuum"; other capital courts-martial and military commissions are sure to follow.19

Part II of this article compares military capital litigation with other legal systems that pass constitutional muster and are considered fair and just, but do not have this approval impediment. Part III details the historical basis for executive clemency leading to the approval requirement in Article 71(a), UCMJ, and its interrelation with finality of legal review under Article 76, UCMJ. Part IV explores the procedural history of PVT Loving's case to show the laborious impasse between final legal review and executive approval, and underscores the impending crisis. Part V recommends a reform because executive approval unwisely makes the military justice system separate without justification.

II. Capital Litigation Procedures

Examination of the trial and post-trial processes up to the point of execution demonstrates that capital courts-martial are comparable to civilian systems20 even though some criticisms of the military justice system exist.21 The procedural similarities between the military, federal, and state death penalty systems support purging direct executive approval in favor of traditional discretionary executive clemency. "The discipline and reputation of the Army are deeply involved in the manner in which military courts are conducted and justice administered."22 The UCMJ applies to all members of the armed forces; no matter where they commit an offense, they may be sentenced to death under the prescribed procedures at a general court-martial.23 Legally, these capital courts

martial are subject to the same constitutional procedural scrutiny as civilian capital trials.24

A. Federal Military Death Penalty25

Courts-martial are courts of law and justice, "bound, like any court, by the fundamental principles of law . . . [and required to adjudicate according] not only to the laws . . . but to [their] sense of substantial right and justice."26 Thus, the military endeavors to "preserve the personal rights and liberties of citizens living under the Constitution; and . . . [corresponding civilian provisions] should be observed, even though not binding, whenever not inconsistent with the preservation of discipline and the organization of the Army."27

The UCMJ establishes a separate system that fully meets legal requirements, especially in capital courts-martial.28 The existence of military capital offenses reflects Congress's intent "to ensure...