190 MILITARY LAW REVIEW [Vol. 176
DON'T TUG ON SUPERMAN'S CAPE:1 IN DEFENSE OF CONVENING AUTHORITY SELECTION AND APPOINTMENT OF COURT-MARTIAL PANEL MEMBERS
MAJOR CHRISTOPHER W. BEHAN2
An army is a collection of armed men obliged to obey one man. Every enactment, every change of rules which impairs the principle weakens the army, impairs its values, and defeats the very object of its existence.3
Yet, when it is proposed that that same general, with those incalculable powers of life and death over his fellow citizens, be permitted to appoint a court for the trial of a soldier who has stolen a watch, oh, no, we can't have that . . . . And I say, if you trust him to command, if you trust him with only the lives and destinies of these millions of citizens under his command, that actually with the future of the country, because if he fails, things are going
to be rough, you can certainly trust him with the appointment of a court.4
From the earliest beginnings of our republic, military commanders have played a central role in the administration of military justice. The American military justice system, derived from its British predecessor, predates the Articles of Confederation and the Constitution.5 Although the system has evolved considerably over the years to its current state of statutory codification in the Uniform Code of Military Justice (UCMJ),6 one thing has remained constant: courts-martial in the United States military are, and always have been, ad hoc tribunals7 created and appointed by the order of a commander, called a convening authority,8 for the express purpose of considering a set of charges that the commander has referred to the court.9
In turn, the members of the court, who in nearly every case are under the command of the convening authority,10 take an oath to "faithfully and impartially try, according to the evidence, [their] conscience, and the laws applicable to trial by court-martial, the case of the accused" before their court.11 By their oath, when they sit in judgment in a military courtroom, panel members leave behind the commander who appointed them.12
The modern American military justice system is a creature of statutes that draw their authority from Congress's constitutional responsibility to
make "Rules for the Government and Regulation of the land and naval Forces."13 Its ultimate purpose is to help ensure the security of the nation by means of a well-disciplined military.14 No other system of justice in our nation carries an equivalent burden.
The modern court-martial has been extensively civilianized and, in more ways than not, closely resembles trial in federal district court.15 A
military judge presides over the court-martial, rules on evidentiary matters, and instructs the panel.16 The court-martial is an adversarial proceeding in which a trial counsel prosecutes the government's case, and the accused is represented either by appointed military defense counsel, a civilian defense counsel, or a combination of the two.17 The accused in a court-martial, unlike a defendant in the federal system, has an absolute right to elect trial by judge alone or by a panel in non-capital cases.18 Although there are many functional differences between a court-martial panel and a
jury,19 both perform the similar fact-finding role of listening to the evidence and determining guilt or innocence beyond a reasonable doubt.
But there is a fundamental difference that many scholars, observers, and critics of the military justice system find troubling: Under Article 25(d)(2) of the UCMJ, the convening authority personally selects members of the court who, "in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament."20 There are no voter-registration or driver's license lists, no venire panels or jury wheels, and no random selection of a representative cross-section of the community required in a court-martial under the UCMJ. Members are selected at the will of their commander. The subjective nature of this statutory mandate to select court members according to the personal judgment of the convening authority is, in the words of a former Chief Judge of the United States Court of Appeals for the Armed Forces (CAAF), "the most vulnerable aspect of the court-martial system; the easiest for critics to attack."21
And attack they have, on several fronts, in a campaign that began early in the twentieth century,22 pressed on through the legislative debates surrounding the passage of the UCMJ in 1950,23 and continues today. The popular press,24 numerous scholars,25 and even an independent commission26 have all waged relentless warfare against convening authority appointment of court members. The battles have not been confined to our shores. Two of the United States' closest allies, Canada and Great Britain, whose systems were once very similar to America's, have bowed to the
judgment of higher courts and removed commanders altogether from the process of convening courts-martial and personally appointing members.27
An activist majority of the CAAF recently opened a new front in this war in the controversial case of United States v. Wiesen,28 in which it held that a military judge had abused his discretion in denying a defense challenge for cause of a panel president who had a supervisory relationship over enough of the panel members to form the two-thirds majority necessary to convict.29 Over the vigorous dissent of Chief Judge Crawford and Senior Judge Sullivan, the majority employed its own implied bias doctrine to limit significantly a commander's ability to select subordinate commanders to serve on panels who might otherwise meet the statutory criteria of age, education, training, experience, length of service, and judicial temperament.30
Yet Congress has not seen fit to remove from the commander the duty to appoint court-martial members according to subjective criteria. The issue of command appointment of court members existed and was thoroughly debated when Congress created the UCMJ in the late 1940s and early 1950s. From time to time, Congress has re-visited the issue, most recently in 1999 when it directed the Joint Services Committee (JSC) on Military Justice to study random selection of court-martial panel members.31 The JSC recommended retaining the current system of discretio
ary command appointment,32 and Congress has not revisited the issue since.
Moreover, the Article III courts have shown great deference to the collective judgment of Congress on matters of military justice. On collateral review, lower federal courts have found no constitutional or due process infirmities in the UCMJ's statutory requirement for the convening authority to apply personal judgment-that skill most valued in a commander-to appoint court members.33
Thus, even as critics assail the commander's role in selecting panel members, the statute remains intact, undisturbed by either Congress or the Article III courts. This article explores the historical, constitutional, and practical dimensions of the congressional decision to maintain command control over the court-member appointment process and concludes that the system meets the due process standards of an Article I court, while permitting Congress to achieve its goal of creating a fair, efficient, and practical system that works worldwide, in garrison or in a deployed environment, in time of peace or war. Command control of the court-member appointment process is vital to maintaining a system of military justice that balances the needs of the military institution with the rights of the individual.
Section II of this paper plumbs the historical underpinnings and constitutional framework of command control of the court-martial system. Section III addresses and defends against contemporary attacks on convening authority panel selection. Finally, section IV proposes a two-phase strategy to help ensure the preservation of convening authority panel selection.
II. Historical and Constitutional Foundations of Court-Martial Panel Selection
The statutory role of the convening authority in appointing court-martial panel members is built on a firm historical foundation that predates the Constitution. Military tradition alone, however, is not sufficient to justify the practice; the Constitution is the only source of power authorizing action by any branch of government.34 It is an inescapable historical reality35 that even as the Framers guaranteed the right of a jury trial both in the text of the Constitution36 and in the Bill of Rights,37 they denied it to those serving in the armed forces. And Congress, from the beginning, has retained the long-standing practice of a convening authority personally selecting the members of a court-martial panel.
This section first reviews the historical tradition of court-martial panel selection. It then examines the constitutional framework for the government of the military. Third, the section traces the history of congressional oversight of the panel member selection process. Finally, the section analyzes the statutory due process system of courts-martial in the context of congressionally created legislative court systems.
A. Historical Development of the American Court-Martial Panel
Origins and Nature of Military Tribunals
According to William Winthrop tribunals for the trial of military offenders have "coexisted with the early history of armies."38 The modern court-martial is deeply rooted in systems that predated written military
codes and were designed to bring order and discipline to armed and sometimes barbarous fighting forces.39
Both the Greeks and the Romans had military justice codes, although no written versions of them remain.40 Justice in the Roman armies was administered by magistri militum or by legionary tribunes, who served either as sole judges or operated with the assistance of...