A Reply to Captain Gregory E. Magg's 'Cautious Skepticism' Regarding Recommendations to Modernize the Manual for Courts-Martial Rule-Making Process

• Author: Kevin J. Barry
• Pages: 02

37 MILITARY LAW REVIEW [Vol. 166

A REPLY TO CAPTAIN GREGORY E. MAGGS'S "CAUTIOUS SKEPTICISM" REGARDING RECOMMENDATIONS TO MODERNIZE THE MANUAL

FOR COURTS-MARTIAL RULE-MAKING PROCESS

KEVIN J. BARRY1

1. Introduction

   Captain Gregory E. Maggs has prepared a thoughtful response2 expressing his "cautious skepticism" for my proposals3 to modernize the Manual for Courts-Martial (MCM or Manual)4 rule-making process. Having carefully reviewed his response, I am happy to say that I am optimistic (and not merely "cautiously" so) that the modernization of the MCM rule-making process will continue, and that even after fifty years of development, this "work-in-progress" is far from finished.

   My optimism is based on two principal factors.

   First, Captain Maggs not only finds none of my proposals "radical or dangerous,"5 but rather finds that "[i]ndeed, each is closely analogous to the federal civilian criminal justice system. In addition, no insurmountable legal obstacles would prevent their adoption."6 There is, of course, already a close connection between military and civilian court rules themselves.

   Article 36 of the Code7 provides that military rules "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." It seems a logical next step that the process by which those rules are adopted might appropriately also follow the district court model, and thus reap the same benefits that the civilian court rule-making process has provided for many years. The federal civilian court rule-making process has been carefully structured to ensure that the best possible rules are adopted after public consideration by a broadly constituted and diverse committee of experts, in an open and transparent process that enhances public confidence.8 Thus, I conclude not only that Captain Maggs raises no serious objection to adoption of my proposals, but also that his observations actually argue in favor of their adoption.

   Secondly, my optimism is based on the fact that there is much in Captain Maggs's approach with which I can agree. Certainly any proposed changes to an established rule-making system ought to be approached with an appropriate degree of caution, and they should be carefully studied and considered to ensure that the changes would indeed produce the anticipated benefits. Where we depart is on his ultimate conclusion that these changes should be approached with "cautious skepticism." I do not believe his option for "skepticism" is well founded.

   Captain Maggs states his conclusion as a "cost-benefit" result:

   [I]n light of 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 the present, the JSC [Joint Service Committee on Military Justice], the DOD [Department of Defense], the President, and Congress should view Captain Barry's recommendations with cautious skepticism.9

   There are three ostensible underlying bases for Captain Maggs's cost-benefit assessment, and his ultimate conclusion, which he labels "preliminary considerations:"

   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.10

   As will be discussed further below, each of these three assertions is fundamentally flawed-none can withstand critical analysis. Captain Maggs's conclusion based on them is thus similarly untenable. I will briefly address each of these three "preliminary considerations" in Section II below.

   In Section III, I will review Captain Maggs's sevenfold division of my proposals, and his various arguments questioning the value of each proposal. I must immediately note, however, that Captain Maggs apparently did not grasp my actual, core proposal for change. I think it critically important that I be clear on this point, so I will restate my proposal as I previously summarized it: "[This article] concludes by calling for continued study with a view to implementing General Hodson's 1973 recommendation,11 thus further advancing this 'work in progress'-the modernization of the military court rule-making process."12 In my analysis of General Hodson's proposal, I concluded that implementing his recommendation

   would necessarily involve implementing most of ABA (American Bar Association) Recommendation 100.13

   Captain Maggs's sevenfold division does make it clear that I also made recommendations that could immediately be implemented to substantially improve the current Joint Service Committee (JSC) process. I will address these, as well as my other recommendations, in Section III. Finally, in Section IV, I will reach conclusions on the costs and benefits of improving this rule-making system that are decidedly contrary to-and much more optimistic for this system than-those reached by Captain Maggs.

2. Each of the Three Bases for Captain Maggs's Analysis Is Flawed

   In many ways Captain Maggs seems to present a reasoned and reasonable critique of my proposal, and there is truth in much of what he says. His principal objections are not that mine are bad proposals, but that they would, in his view, have too little beneficial effect, while creating additional administrative costs and inconvenience to the government. However, his analysis, and his various conclusions, miss the mark largely because he overlooks or fails to address important facts and arguments, many of which are set forth in my article. In pursuing his analysis, Captain Maggs too often makes assertions without providing a basis for them, while at the same time ignoring contrary conclusions I have reached, that are well supported.

   For example, Captain Maggs states that to adopt a rule-making process patterned on that followed by the Judicial Conference of the United States would not provide a benefit, because "the civilian rule-making procedure tends to take a long time . . . [i]n many instances . . . several years

   . . . [while] [b]y contrast, the JSC annual review system results in a systemic review of the MCM within each year."14 The implication that MCM regulations can be (or are) adopted in only one year not only is misleading,

   but also is simply incorrect. The military rulemaking process has been a slow and cumbersome one, often taking several years, as is clearly stated (with supporting documentation and examples) in my article.15

   It is on such unsupported (and erroneous) assertions that Captain Maggs relies to raise doubts regarding the benefits of adopting improvements to this process. Because his premises are flawed, it is his conclusions (and not my proposals) that should now be viewed with an appropriate degree of skepticism.

   Perhaps most important of the factors overlooked by Captain Maggs in his assessment are the impact of enhanced credibility and public confidence in the system, the reduction of criticism of the system (and of the rule-making process), and the improved quality of the rules adopted, all of which would directly ensue from the adoption of improvements to this process. Having thus overlooked the principal benefits of adopting the proposals, it is not surprising that Captain Maggs urges a skeptical approach to adopting these proposals.

   1. Potential Changes to the MCM in the Foreseeable Future Are Not Unimportant

      Captain Maggs first asserts that all the important changes to the MCM were made prior to 1984, and that the "nature of the MCM amendments" has changed since then.16 He says that changes since 1984, and those for the future, are of limited significance, and serve only three purposes: to

      "correct errors or oversights in the existing rules, conform the rules of procedure and evidence to legislative changes to the UCMJ, or bring military law into alignment with civilian criminal law."17 Because of these perceived limitations, Captain Maggs sees changes to the rule-making process as "less important," and states that "[t]he final results probably will not vary much no matter how amendments are processed before the President approves them."18 This seems to be a somewhat myopic view of the importance of both the rule-making process and of the potential for important rule changes to be proposed in the future.

      As an example supporting his thesis, Captain Maggs cites-as one of these simple procedural rule changes-the adoption of Military Rule of Evidence (MRE) 513, the psychotherapist-patient privilege, in 1999.19

      However, MRE 513 was decidedly not a simple rule change; rather it was an issue of great importance. Its importance (and thus potentially the importance of many yet to be proposed rules) is clearly shown by the fact that the initial promulgation of the proposed rule on this privilege20 proved to be enormously controversial. The proposed rule was objected to by the American Psychiatric Association because it specifically declined to extend the privilege to active military personnel, and contained "too numerous, expansive and over broadly drawn" exceptions even for those persons who were purportedly protected by the proposed rule.21 Even those who agreed that the privilege should not extend to persons subject to the UCMJ objected because the proposed rule did not adequately protect even those to whom it did apply, because the exceptions were "overly broad," and would "as a practical matter, eviscerate the protection of the psychotherapist-patient privilege and with it, any hope of mutual trust and security in...