COL(R) Larry Morris, Chief of Staff and Counselor to the President of The Catholic University of America, delivered the Fiftieth Kenneth J. Hodson Lecture on Criminal Law. (Credit: Billie J. Suttles, TJAGLCS)
No. 2
Excerpts from the Fiftieth Kenneth J. Hodson Lecture on Criminal Law
By Colonel (Retired) Lawrence J. Morris
On 10 April 2023, Colonel (Retired) Larry Morris delivered the Fiftieth Kenneth J. Hodson Lecture on Criminal Law. His remarks touched on challenges facing practitioners, some suggested approaches, and some recommendations and observations on the military justice system. What follows are excerpts from those remarks.1 The full lecture will be available in the Military Law Review, volume 231, issue 2.
Military justice has always evolved. That evolution has not necessarily moved at a steady pace, and never with the volatility of the last fifteen years or so. So, when I was asked to talk about military justice in transition, it prompted me to think about the nature of change in our system, how practitioners adapted, and what it might tell us about our practice as judge advocates as we move from an almost exclusively supporting role to a decision-making role in many aspects of good order and discipline.
Now, over the years, most of the changes to the Uniform Code of Military Justice and the Manual for Courts-Martial2 ratcheted toward greater due process. Many changes came from the civilian justice system, which yielded what some have used as a sort of pejorative: “civilianization.” But, it might more accurately be called “judicialization.” The changes that are now coming about were brought on largely by us: military leaders and lawyers. There were just enough anomalous cases to create a string of anecdotes that suggested to a critical observer or a badly treated victim that the system was too capricious, too uncertain, and too unsteady to be trusted to continue operating with the same rules and assumptions that have characterized military justice for decades. I do not agree with those assumptions in many respects, but I want to talk today mainly about what is in front of the justice system for leaders, lawyers, and, most importantly, for those facing discipline. We should also think about the impact for complainants, victims, and participants in the process.
Now, the change from a command-driven or command-dominant justice system is a big change, and, in some respects, is more demanding for practitioners because it is less about changes in the rules. As lawyers, we can learn the law and at least as much about the assumptions on which the system is built. The greater challenge for judge advocates is accomplishing what is expected of them to make the system work. When defining military courses of action, we find operators using the phrase that a plan might “create conditions for” whatever the mission is: taking the hill, bombing an outpost, or providing security transit for refugees. While commanders adjust to a radically different concept of authority and leadership in light of losing or dulling some of the tools of discipline, it is the lawyers’ turn to create conditions for successful implementation of a foundational change. Before we finish, I will offer some of the challenges facing practitioners, suggest some approaches, and conclude with some recommendations and observations on the military justice system, as we are a couple of years away from the seventy-fifth birthday of the Uniform Code of Military Justice.
So, how should we think about what’s next? If you wanted a further “judicialized” system, what is the next set of changes you would seek? Critics of the justice system would like us to have our own Findlay case3: the UK case that came before the European Court of Human Rights about twenty-five years ago, which pretty much ended traditional military justice in the United Kingdom. Critics would argue that non-deployment felonies should be sent to Federal courts. This would represent, in a way, a return to the disputatious and fragmented justice system of the Supreme Court’s O’Callahan v. Parker4 era, which reigned from 1969 until the Court’s corrective opinion in 1987, Solorio v. United States.5
The Solorio Court declared simply that the military has jurisdiction in any case in which the accused is a member of the military. Solorio is thirty-six years old, and I expect that commanders find the unity of effort that comes from universal jurisdiction as giving them the maximum ability to affect order and discipline. Ceding that authority to the civilian system introduces variables, including the incarceration, trial, and corrections process, which undermine the leaders’ ability to affect as many aspects of justice and, therefore, a unit’s discipline. It is worth preparing to engage the argument that we might at some point see regulation or new legislation intended to bring back the service-connection analysis in fancier threads to demarcate the line between the military and civilian systems.
While I believe it wise to resist the urge to implement additional reform to a justice system that is undergoing its most fundamental change since 1950, so long as we are on the operating table, let me suggest what else may be coming.
We drill commanders to “nest” their judgment on operational matters with that of senior leaders all the time, but in the area where they are least competent and least experienced—military justice—we expect them to ignore their senior leaders, whose counsel is more important in this area than in the operational space where they normally live.
Professional Purple Judiciary
Henry Kissinger is said to have said “whatever must happen ultimately should happen immediately.”6 With the move to judge-alone sentencing and the sentencing committee, it seems near inevitable that the military judiciaries will merge into a single purple (joint) judiciary, even as we forfeit the community’s involvement in administering sentences. The arguments against it get thinner as time goes by, primarily the need to educate judges on service, customs, and traditions when they hear cases from other Services. But this probably underestimates judges’ brains and adaptability and counsels’ ability to articulate these kinds of differences. Judges will be even more consequential under the new revisions, giving rise to a discussion about whether it is time for a board-selected cadre of judicial professionals. And these differences are probably small enough anyway. Does the Marine Corps view unauthorized absences that differently from the Air Force that a judge from one or the other Service could not hear a case? We also have to remember to trust counsel to educate the judges, and the judges to judge with some humility. This likely would have the collateral impact of fewer, busier, and more selectively appointed judges.
Panel Selection
As for member selection, with all the changes that have happened, does it almost seem odd that convening authority selection of panel members has survived this long? Are the arguments as strong as they ever were for our kind of blue-ribbon panels with judicial temperament? And with diminished command control, is it important to preserve this as a leader’s function? It seems to be the change that drew a lot of scholarly attention over the years, and Major General Kenneth J. Hodson7 and Brigadier General (Retired) John Cooke8 both embraced it. It might be worth thinking about revisions short of random selection that would serve the interests that have kept Article 259 in play for all these years.
Command Influence
I would like to say a couple of words on command influence. First, on old-school command influence, my argument would be to redefine it, legalize it, tax it. Why do we not do with undue command influence (UCI) what so many jurisdictions have done with cannabis: legalize it and regulate it? Any form of command influence remains uniquely corrupting. We never can declare victory over UCI because each new wave of practitioners has the opportunity to corrupt the system anew and become too personally involved or biased. The arc of the legal universe does not automatically bend toward justice. So, we need measures in place to guard the integrity of the system. Commanders really will have less authority and, therefore, less direct opportunity to exert influence. We drill commanders to “nest” their judgment on operational matters with that of senior leaders all the time, but in the area where they are least competent and least experienced—military justice—we expect them to ignore their senior leaders, whose counsel is more important in this area than in the operational space where they normally live.
As a result, some of the old-school constraints on UCI were marginal and unrealistic. Reduced command authority calls for a refreshed rubric for evaluating command influence. Then, there is new-school UCI: UCI in a flannel suit. While one set of command influence fades, there is a need to address the new set of potential command influence in the new structure. The lead special trial counsel will report directly to the Secretary of the Army, an official nominated by the President and confirmed by the Senate. The Court of Appeals for the Armed Forces has said for years that there is no such thing as “command influence in the air,”10 but this is an inaccurate statement. What they meant to say was that most of the command influence in the air was not sufficiently detectable or traceable to warrant judicial relief. It was always in the air, but we had carbon monoxide detectors in place to reduce its reach and its lethality. We need a new term to describe unlawful influence under the new scheme.
These changes to the system have come from Congress, and properly so. Congress is responsible for the rules governing the land and naval forces; however, placing a political appointee at the apex of the system risks seeping into the judgment of those who have to make referral decisions. A recent article in the Yale Law Journal talked about the pressures Congress can place directly or otherwise on military practitioners, and it was published even before the move to special trial counsel.11 The author considers the Bergdahl case12 and others in which Congress delved deeply into particular military justice matters—there really was a bill introduced in Congress called the No Back Pay for Bergdahl Act.13 So, as we are preparing to implement the new rules, we should think about how to respect Congress’s legitimate oversight while guarding against dispositive decisions that tilt one way or another because of a perceived congressional preference.
The Death Penalty
Next, I would suggest that serious thought be given to rescinding the death penalty. It is hard to justify retaining a desuetudinal practice on the books for symbolic reasons. It is hard to imagine a scenario that would plausibly result in an actual execution. The last military execution was approved by President Kennedy, and the accused was hanged at Fort Leavenworth in April 1961. Sixty-two years and twelve commanders-in-chief later, there have been no further executions, despite cases being tried with great sophistication, exactitude, and integrity, and despite multiple court decisions upholding the military death penalty. Regardless of anybody’s personal philosophy, there are secondary impacts as well. At the height of the military commission effort, we negotiated with various foreign judicial officials about access to important terrorism evidence around the world. Several countries refused to provide us timely and high-quality evidence because we refused to rule out the possibility of a death verdict in those cases. Just the fact that it was on the books—not even that it had been used—had an impact.
Sixty-two years and twelve commanders-in-chief later, there have been no further executions, despite cases being tried with great sophistication, exactitude, and integrity, and despite multiple court decisions upholding the military death penalty.
Military Corrections
I would also suggest reexamining military corrections to revise the mission or close the facilities. Our lassitude regarding the death penalty naturally prompts the question of why we continue to operate a corrections system when we do not revive legitimate return to duty. There is less reason than ever to keep a boutique corrections system functioning where nearly zero accused are returned to duty. Keeping corrections facilities operating so that we have a warm pipeline of corrections professionals in the event of a major deployment is insufficient reason alone to keep open a set of facilities that are distinguished only by the prior profession of its confinees. Abu Ghraib prison did not exactly validate that model.
Trial Defense Service
We must continue to strengthen our Trial Defense Service (TDS). It is one of the hallmarks of our system, along with the competence and independence that are indispensable to its value for our Service members. Here is something from the old days that I hope you cannot relate to anymore. Many of you know of or read the book Fatal Vision.14 If not, you should put it on your list. It is about a 1970 case at Fort Bragg15 where a lieutenant was on trial for murdering his wife and children. He was in a room with his TDS attorney and on the phone with his civilian defense counsel, who was going through a very strict law-based inquiry.16 The civilian attorney then asked the lieutenant to check and see if his military defense counsel’s shoes were shined. The lieutenant looked down, confused and incredulous, and responded that no, they were not shined and were “kind of scruffy.”17 The civilian defense counsel said, “Okay, in that case, trust him. Cooperate with him until I can get down there myself.”18
The civilian defense counsel’s point was that if an Army lawyer keeps his shoes shined, he is trying to impress the system. And if he was trying to impress the system—one which had a vested interest in seeing the accused convicted—then he was not going to do any good. The scruffy shoes meant that maybe he cared more about being a lawyer. Well, to us that is probably partly amusing, partly insulting, and definitely way out of date. But there cannot be any compromise on the institutional commitment to competence and independence. It will be truer than ever as we implement this new system.
It does not hurt to remind ourselves that it is not at all a defense counsel’s job to serve as a sort of test pilot in improving or validating the new system. Every defense counsel has only one job: defend the person they are assigned to defend ethically, for sure, but with a wide band of tolerance for techniques. This high-quality advocacy might well lead to improvements in the system, but that is not their goal. Their goal is to defend the Soldier next to them. And Justice Byron White, who tilted jurisprudentially toward the prosecution, gave the following endorsement to the defense function, which defense counsel should consider if they are contemplating a sleeve tattoo. He said:
Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the state to its proof, to put the state’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.19
And, therefore, it is okay to shine your shoes.
Military counsel from all the Services had an acute concern for the legitimacy and integrity of the military justice system and the impact on the reputation of the justice system and its practitioners.
Military Commissions
I would like to briefly discuss military commissions as one last example of transition. At the end of the Reagan administration, in December 1988, a Libyan bomb detonated on a plane over Lockerbie, Scotland, murdering all 259 passengers, who were mainly Americans returning from their studies in Europe for Christmas, and 11 individuals on the ground. A then-young Department of Justice official, William Barr, suggested that the murderers should be tried by military commissions—which had last been used in World War II—because it was not just a crime in his view. It was not just 270 discrete murders, but an attack on America by noncitizen unlawful combatants. His memo advocating this move was incisive and creative, but probably just too novel for an event that was occurring on the seam between two Presidential administrations.
President George W. Bush did revive military commissions, but at some cost and with mixed results. The Army led a team of talented lawyers from all Services in the preparation of the military order putting commissions into place for certain cases of terrorism. For several weeks, we briefed the Secretary of the Army every morning. We researched commissions and assisted with drafting the President’s order, which was published in November 2001. The administration showed imagination and audacity in dusting off a mechanism last used before the court-driven criminal law revolution of the middle of the century. The Army leadership endorsed the concept of military commissions and joined in the effort to bring a historically rooted mechanism back to life. Our sense was to look at the changes in military justice and criminal law since 1942, the date of the Quirin decision,20 and decide which to adopt, which to modify, and which to not incorporate at all.
Military counsel from all the Services had an acute concern for the legitimacy and integrity of the military justice system and the impact on the reputation of the justice system and its practitioners. Several key members of the civilian Department of Defense leadership, however, exhibited a lack of confidence in judge advocates, which was helpful in revealing an unfamiliarity with military justice and dated assumptions about practitioners. Some critical differences emerged, and several in the civilian leadership operated on an assumption that we did not share: that the closer they stuck to Quirin, the more likely it was that commissions would be successful.
There were a couple of key differences. The civilians wanted to bring back the law member,21 since it was the law in 1942, out of a worry that—in their terms—rogue military judges would unduly “judicialize” the commission’s process. Our sense was that the military judge had become a fundamental, deeply rooted legislative change in effect since 1968: a rudiment of due process. Some key policy professionals did not understand the idea of totally independent military defense counsel.
By 2001, it was the norm for all Services, but some civilian officials, lawyers and not, assumed a pliability on the part of uniformed military defense counsel that would generate easy guilty pleas. They did not understand sufficiently that a military defense counsel who sought a plea agreement would have his work carefully scrutinized. They also did not want to permit civilian counsel to participate in the process, though that perspective changed over time. And, the administration wanted to use this process as part of its effort to reassert executive primacy. At that time, debates surrounded the “unitary executive,”22 which was a paramount motivation of this senior official who was the theoretical brains behind resuscitating commissions. This factor distorted the judgment of those analyzing this flexible, constitutional mechanism of justice.
Preparation
One of the tools of well-prepared ethical advocacy is Appendix 2.1 of the Manual for Courts-Martial,23 which is the successor to the discussion that used to be after Rule for Courts-Martial 306.24 As a young prosecutor, I blew that up, photocopied it, and put it under the glass on my desk so that when I was talking to a commander, I could remember to prompt them with questions that I should have known to be asking. Appendix 2.1 is an exemplary analytic rubric for commanders and, therefore, for those who advise them. It lists factors that boil down to an assessment of the military impact and the human impact of an offense. It helps you fill in your thinking process.
Concluding Thoughts
We are all talking about how significant the change in referral authority is, and it is. But in some respects, it is pretty close to what we have already done. Judge advocates have been the trusted gatekeepers for information and perspective about the case. Here are the strengths. Here are the weaknesses. Here are the variables. Here is a sense of how we have treated similar cases in the past. Now, judge advocates will have the opportunity to be the deciders at the very top of the pyramid. But, most judge advocates will still be preparing cases and making recommendations, although in certain circumstances to the special trial counsel.
So as I conclude, I cannot imagine a better time to be a judge advocate. I do not think that we who have worked in the system get nostalgic about what we did. But we can relate to this period in your careers where the system is in ferment. It needs smart, ethical counsel to give advice and, soon, to make decisions regarding matters of justice. I would suggest you wear your authority confidently, but lightly. In some ways, you can keep commanders closer than ever because they are allowed to influence you. What a tremendous opportunity and responsibility for those who teach the Senior Officer Legal Orientation course here at The Judge Advocate General’s Legal Center and School or who are out in the field talking to Soldiers and leaders. The commanders are not your bosses, but you are their emancipated servants, informed by those leaders’ perspectives while managing the disposition of significant offenses. Vacuum up that perspective, remain open to hearing—not obeying, but hearing—what is on their minds: why one offense is really serious, why some we think are serious might not be in their eyes, and all that goes into forming and maintaining a combat-ready force.
Georges Clémenceau is said to have originated the phrase “military justice is to justice as military music is to music”25—not intended as a compliment. But Clémenceau and John Philip Sousa26 were more or less contemporaries. The Frenchman likely did not know Sousa, because if he did he would know that the best military music can get your toes tapping and your left foot hitting the ground on the strike of the bass drum. You are the custodians who can continue to show that the French need better martial music or Clémenceau needs a new metaphor. And when you are listening as hard as you can and figuring out the advice to give to those who trust your judgment, sneak another peek at those factors under the glass on your desk. TAL
COL (R) Morris is the Chief of Staff and Counselor to the President of The Catholic University of America in Washington, D.C.
Notes
1. This transcript has been edited for brevity and clarity.
2. Manual for Courts-Martial, United States (2019) [hereinafter MCM].
3. Case of Findlay v. The United Kingdom, App. No. 22107/93 (Feb. 25, 1997), https://hudoc.echr.coe.int/eng?i=001-58016.
4. O’Callahan v. Parker, 395 U.S. 258 (1969) (portraying the military justice system in a harsh light, constricting the military’s authority to try certain cases, and injecting massive confusion into what constituted service connection).
5. Solorio v. United States, 483 U.S. 435 (1987).
6. Who Was Betrayed?, Time, Dec. 8, 1986 at 17, 26 (quoting Henry Kissinger).
7. Major General Hodson, for whom this lecture is named, served as: The Judge Advocate General, U.S. Army, from 1967 to 1971, the first Chief Judge of the Army Court of Military Review, and a principal architect of the Military Justice Act of 1968. Major General Michael J. Nardotti, Jr., The Twenty-Fifth Annual Kenneth J. Hodson Lecture: General Ken Hodson—A Thoroughly Remarkable Man, 151 Mil. L. Rev. 202, 202 (1996).
8. Brigadier General Cooke served in the U.S. Army Judge Advocate General’s Corps from 1972 to 1998. His last assignment was as Chief Judge, U.S. Army Court of Criminal Appeals. BG (Ret) John Cooke, JAGCNet, https://www.jagcnet.army.mil/Sites/acca.nsf/xsp/.ibmmodres/domino/OpenAttachment/sites/acca.nsf/55F5C0CE7E3F70A2852584500069EDF3/Attachments/Bio%20-%20BG(R)%20Cooke.docx (last visited Oct. 31, 2023).
9. UCMJ art. 25 (2021).
10. See, e.g., United States v. Shea, 76 M.J. 277, 282 (C.A.A.F. 2017).
11. Max Jesse Goldberg, Congressional Influence on Military Justice, 130 Yale L.J. 2110 (2021).
12. United States v. Bergdahl, 80 M.J. 230 (C.A.A.F. 2020).
13. Goldberg, supra note 11, at 2145-46; see also No Back Pay for Bergdahl Act, H.R. 4413, 115th Cong. (2017).
14. Joe McGinniss, Fatal Vision (Signet 2012) (1983).
15. Now Fort Liberty.
16. McGinniss, supra note 14, at 223.
17. Id. at 224.
18. Id.
19. United States v. Wade, 388 U.S. 218, 257-58 (White, B., concurring in part).
20. Ex parte Quirin, 317 U.S. 1 (1942) (upholding a U.S. military tribunal’s jurisdiction over the World War II trial of eight German saboteurs).
21. The law member was the predecessor to the military judge. See 1920 Articles of War, Pub. L. No. 66-242, sec. II.B, art. 8, 41 Stat. 749, 788; see also Judge Advoc. Gen.’s Corps, U.S. Army, The Army Lawyer: A History of the Judge Advocate General’s Corps, 1775—1975, at 136-37 (1975).
22. The unitary executive theory, which the Bush administration adopted with Vice President Richard (Dick) Cheney credited as its major proponent, describes the theory that “the [P]resident, given ‘the executive power’ under the Constitution, has virtually all of that power, unchecked by Congress or the courts, especially in critical realms of authority.” Mark J. Rozell & Mitchel A. Sollenberger, The Unitary Executive Theory and the Bush Legacy, in Taking the Measure: The Presidency of George W. Bush 36 (Donald R. Kelley & Todd G. Shields eds., 2013); id. at 37.
23. MCM, supra note 2, app. 2.1 (Non-Binding Disposition Guidance).
24. MCM, supra note 2, R.C.M. 306.
25. See, e.g., United Nations Educ., Sci., and Cultural Org., Les Droits culturels au Maghreb et en Egypte [Cultural Rights in Maghreb and Egypt] 237 (Souri Saad-Zoy & Johanne Bouchard eds., 2010) (Fr.) (“Il suffit d’ajouter ‘militaire’ à un mot pour lui faire perdre sa signification. Ainsi la justice militaire n’est pas la justice, la musique militaire n’est pas la musique.” [“Just adding ‘military’ to a word can make it lose its meaning. Thus military justice is not justice, military music is not music.”]) (quoting Georges Clémenceau).
26. John Phillip Sousa, who composed the national march, Stars and Stripes Forever, served as the 17th Director of “The President’s Own” U.S. Marine Band from 1880-1882. John Philip Sousa, U.S. Marine Corps, https://www.marineband.marines.mil/About/Our-History/John-Philip-Sousa (last visited Oct. 11, 2023).