Modernizing the Manual for Courts-Martial Rule-Making Process: A Work in Progress

• Author: Kevin J. Barry
• Pages: 08

2000] MODERNIZING THE MCM RULE-MAKING PROCESS 237

MODERNIZING THE MANUAL FOR COURTS-MARTIAL RULE-MAKING PROCESS:

A WORK IN PROGRESS

KEVIN J. BARRY1

1. Introduction

   In June 1991, Professor David A. Schlueter gave the Twentieth Annual Kenneth J. Hodson Lecture at the Judge Advocate General's School in Charlottesville, Virginia. He titled his remarks "Military Justice for the 1990's-A Legal System Looking For Respect."2 In his lecture, Professor Schlueter noted that, while the system had his "highest respect,"3 questions were continuously being asked, primarily by people outside the system, whether "the military justice system was fair."4 Schlueter spent the bulk of his lecture exploring aspects of the system that historically have received the most criticism, those that tended to detract from the respect due the system. In his view, listening to-and attempting to address-criticisms from both within and without the system was "the right thing to do."5

   The military justice system has changed much in the fifty years since the Uniform Code of Military Justice (UCMJ) was adopted, including in the decade since Professor Schlueter gave his remarks, and thus might itself appropriately be viewed as "a work in progress." Nevertheless, most of the issues he addressed remain issues today, and virtually all of his recommendations for change6 still await implementation.

   The military justice system's susceptibility to criticism, and its striving for a little respect, are, of course, not new. Professor Schlueter was speaking at the annual Hodson Lecture, and spoke in glowing terms of Major General Kenneth Hodson and his contributions not only to the military, but to the "legal profession in general."7 It is worthy of note that, eighteen years earlier, General Hodson himself had authored a law review article8 with an almost identical theme: that the administration of criminal justice in the armed forces has been subject to constant criticism, that the system was in need of constant review, and that military justice could be improved by implementing a series of systemic changes. As did Professor Schlueter, General Hodson listed a number of specific changes he proposed. Most, twenty-seven years later, remain unimplemented.9

   Today, the military justice system still seeks respect. Criticism and questions about the fairness of the system have taken on a new life in the last few years, fired in part by the Tailhook incident and its aftermath, and later by the sex-scandals and the various investigations surrounding the drill instructors at Aberdeen, the Kelly Flinn case, and more recently the court-martial of Sergeant Major of the Army Eugene McKinney and the handling of the case of Major General David R. Hale. In sum, these cases have raised questions about whether the military trial process itself is fair. More significantly, they have questioned the overall system and its administration, and whether the process is evenly applied. There can be no doubt: the questions raised concerning the fairness of this system go well beyond perception alone, and they are not frivolous.10

   One aspect of the system that bears decidedly on these perceptions of fairness has received considerably less attention than such issues as the

   independence of military judges, the various roles of the convening authority, or the manner in which military juries are selected. This is the crucially important issue of the method by which amendments to the Manual for Courts-Martial (MCM or Manual) are proposed, considered, and adopted. It is not a new issue, having been raised at least as long ago as 1973 by General Hodson (as the third of his seven proposed changes).11 As will be discussed more fully below, the concerns focus on the lack of representation from the bench, the bar, academia, and the public on the committee preparing the proposed rule changes, and from the fact that the procedures used by that committee are not the type of open and public rule-making procedures that are established for the federal rule-making process, which are designed to instill public confidence in the process, and to insure that the best possible rules are adopted. In short, the perception that the process has too often left is that of a small "government" committee, operating in secret, which changes the rules (often with the appearance of benefiting only the prosecution) without explaining why. In part because of this negative perception, the subject of the MCM rule-making process has been much more in the forefront in the last few years. The active consideration given the rule-making process has resulted in a series of improvements in the last decade, with very significant changes being recently implemented in February of 2000, which address and resolve some of the longstanding concerns.

   This article discusses the rule-making process in general, and traces developments over the last two decades. It reviews two recent recommendations for change arising from critical assessments of the current practice by the American Bar Association (ABA) in 1995 and 1997,12 the first of which has largely been implemented by the recent changes. It compares the latter recommendation, which has not been adopted, with the almost

   identical, but not so recent, recommendation for change made by General Hodson in 1973.13 It concludes by calling for continued study with a view to implementing General Hodson's 1973 recommendation, thus further advancing this "work in progress"-the modernization of the military court rule-making process.

2. The Historical View: MCM Rule-making 1950-1994

   Military court rule making has evolved from being a system that was almost entirely invisible from outside the government to a system that, in 2000, is much more in line with the type of notice and comment rule making common to other federal entities. To understand the current status, and the reason why further evolution is desirable, a brief review of the last half-century is warranted.

   1. Statutes and Regulations-the UCMJ and the MCM

      The military justice system in the United States is governed by two primary authorities. The UCMJ14 sets out the system's basic statutory structure, and the MCM is the UCMJ's principal implementing regulation. Under Article 36 of the UCMJ, the President may prescribe regulations governing "pre-trial, trial, and post-trial procedures, including modes of proof" for cases tried before courts-martial, and certain other military tribunals.15 The first MCM under the UCMJ was promulgated by Executive Order 10214 on 8 February 1951, "prescribing the Manual for Courts-13. See supra note 11.

      14. The UCMJ is codified at 10 U.S.C. §§ 801-946 (2000).

      15. UCMJ art. 36 (2000). The President may prescribe rules:

      (a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

      (b) All rules and regulations made under this article shall be uniform insofar as practicable.

      Martial, United States, 1951." Frequently amended and revised,16 the

      MCM remains the principal source book-the "sine qua non" for those involved in any way with the court-martial process. It is the indispensable authority for determining the rules of practice, procedure, and evidence applicable not only at trials by court-martial, but throughout pre- and post-trial processing as well, and its importance in the operation of the military justice system can hardly be overstated.17

      Because of their profound impact on the system, it seems axiomatic that the rules and regulations in the Manual should be the best possible

      rules that can be adopted, carefully arrived at through a process that inspires public confidence by its openness and by the assurance that all relevant viewpoints are effectively heard and considered. Individual rules, once adopted, may not always be viewed as the "best" rules possible: the same rule might be viewed as overly harsh or overly intrusive by some, while others may view it as not being sufficiently rigorous to preserve the commander's authority and good order and discipline. Accordingly, it is of crucial importance that the process used for adopting the rules have fundamental integrity and be uniformly viewed as appropriate and fair. Regrettably, despite small changes to improve the process over the years,18

      the MCM rule-making process has for many years been subjected to criticism for falling well short of this standard.19

   2. Rule-making under the UCMJ-the First MCM

      The first Manual issued under the UCMJ (MCM 1951) was drafted by "a committee representing all three [Army, Air Force, and Navy] services,"20 under the leadership of Major General Charles Decker, Judge Advoacte General's Corps (JAGC), U.S. Army, who had also been in charge of drafting the Army's 1949 MCM implementing the 1948 amendments to the Articles of War.21 The effective date of the UCMJ had been put off for a year to allow sufficient time to prepare the MCM. Colonel Frederick Wiener, a leading commentator of the time, believed that the one-year period would be "barely enough to formulate rules, iron out differences between the services, and print and distribute the new Book."22 In

      fact, the committee completed its work by early 1951, well within the year, and on 8 February 1951, President Truman signed Executive Order 10214 promulgating the Manual. The MCM 1951 was not, of course, drawn from whole cloth, as there had been numerous editions of the Manual promul-gated under the Articles of War, and the format of the new MCM followed that of the earlier Manuals. It thus "appears...