The Army Lawyer | Issue 4 2021View PDF
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This article is intended to do one thing: encourage the military justice community of practice to grapple with the arguments typically made when justifying the value and utility of commanders as court-martial convening authorities. To do that, this article uses the same simple method I have employed in a class I teach1 to West Point cadets. To those cadets, most of whom are majoring in Law and Legal Studies, I propose a hypothetical set of realistic facts and ask them to determine how a convening authority could justify taking action against those facts in light of the factors listed in the President’s non-binding disposition guidance to commanders and judge advocates (JAs).2 However, unlike the real-world practice on “CG appointment” days with which staff judge advocates and their chiefs of justice are familiar,3 this exercise deliberately imposes some constraints on what permissible arguments can be made. If a particular kind of argument is made, this exercise further demands specific follow-on answers implied by those choices. When done thoughtfully and honestly, an uncomfortable truth is laid bare: some defensive positions not only have gaps, but they also create obstacles in front of the claim that the military justice system properly balances the needs of “justice” against good order and discipline.4

Why Ask Why?

Judge advocates may be technical experts in an idiosyncratic criminal law system, but as a recent symposium on “legal ethics and modern military justice” made clear, JAs must also be prepared to explain to commanders at all echelons military justice’s moral, pragmatic, and prudential elements—and why they theoretically must be different than civilian models.5 One such key element is why commanders are, should be, or (someday) might not be intimately involved in making key decisions about military justice. This is not an academic exercise any longer: as this article goes to press, it is the primary reform to the UCMJ just enacted in the National Defense Authorization Act for Fiscal Year 2022,6 and it—among other things—divests traditional convening authorities of their traditional prosecutorial authority. But, as discussed below, only for some cases some of the time, and not for another two years. Congress remains interested in alternative ways to address military sexual assault—for example, finding that contemporary efforts either lack the full support of the commands (or the institutional military), or that commands are just not capable and equipped to prevent, prosecute, and punish these offenders.7 Such changes would dramatically alter day-to-day military justice operations and upend centuries of practice. Ironically, however, such changes would be consistent with the decades of “civilianization”8 of process and procedure that have occurred since the enactment of the Uniform Code of Military Justice in 1950.

This skepticism from Congress is nothing new.9 Most recently, the Senate Armed Services Committee held a hearing to discuss the influence and role of the commander relative to victims of sexual assault, hearing exclusively from victims and victim advocates, all of whom were skeptical and critical of the commander’s traditional role that is both central to and atop of the military justice system.10 In the fiscal year 2020 National Defense Authorization Act, Congress tasked the Department of Defense (DoD) to conduct a feasibility study of a proposed “alternative” justice system, including the feasibility of a pilot program to test beta versions of such a system.11 This alternative would remove court-martial convening authority for all “felonies” from commanders and shift it to senior, experienced JAs. As Michel Paradis wrote, this would be a significant paradigm shift with dramatic practical consequences.12

But this proposal was still actually quite limited in scope. For example, Congress did not ask the DoD to differentiate UCMJ crimes based on anything more than the felony/misdemeanor distinction. This ignores potentially relevant differences between “martial” and “non-martial” offenses. In this article, “martial offenses” are those military-nexus offenses with no civilian analogue—like absent without leave, malingering, trainee abuse, disobedience, conduct unbecoming an officer, and various others that may be “prejudicial to good order and discipline.”13 Nor did Congress task the DoD to critically analyze or justify the myriad other investigative, prosecutorial, and quasi-judicial authorities currently vested in commanders other than court-martial convening authority. These include the power to authorize searches and seizures,14 arrest, detain, order pre-trial confinement,15 decide what to charge,16 dismiss charges,17 approve plea deals,18 and select panel members.19 Similarly, Congress did not require the DoD to conduct any empirical survey or study to collect and quantify relevant data (e.g., do commanders—at all echelons—actually understand their legal authorities, or do they default to reliance on their JAs anyway; moreover, do they want those legal authorities?). In response to this tasking, the DoD’s Joint Service Committee’s ad hoc Subcommittee for the “Prosecutorial Authority Study” (PAS) completed and submitted its report, concluding that no such change should be made and that even a pilot study would be infeasible.20

The PAS report appears to have largely repeated the same core arguments that the Service Chiefs of Staff and their Judge Advocates General have given in Congressional testimony over the last decade. To paraphrase, the arguments are as follows:

  • commanders need obedient, disciplined Soldiers, Sailors, Airmen, and Marines to accomplish the raison d’être of a military—to prepare to fight, to fight if necessary, and to win;
  • commanders need the UCMJ to ensure they have an adequate pool of obedient, disciplined soldiers;
  • commanders need to be the sole authorities making decisions within the UCMJ system because commanders understand the effect of crime on their unit and their unit’s mission;
  • if commanders are not the sole UCMJ decision-making authorities, troops will lose confidence in their commanders and in each other, morale will decrease, unit cohesion will be stretched to the breaking point, and, ultimately, readiness will suffer;
  • commanders are aided and advised by attorneys, and are bound by the same rules, regulations, and criminal laws as their troops; and
  • ultimately, if Americans can entrust the lives of their sons and daughters to commanders’ care, then surely we can entrust them with the duty to carefully and fairly investigate, prosecute, and punish crime allegedly committed by their sons and daughters.21

This multi-prong argument, or at least the bulk of it, certainly seems to have support in a long line of Supreme Court cases,22 even after the adoption of the UCMJ and the beginning of military justice’s bumpy road of “civilianization.”23 Not surprisingly, the PAS characterized the proposed “alternative” as profoundly unsettling because it would disturb long-held beliefs about both the role and ability of commanders, and because it would disturb a significant number of existing processes and policies. To the PAS members, such a plan would be “the most sweeping change to military justice in the United States since the inception of the UCMJ in 1950.”24

Unfortunately, the PAS rebuttal failed to account for the possibility that the purpose of the feasibility study was precisely to challenge the status quo’s rationale where convening authorities are vested with disposition and referral power for any offense under the Code, regardless of its actual or possible connection to martial matters. Given that the Supreme Court already discarded the unworkable “service-connection” test and upheld a simple status-based jurisdiction, the Services consider the validity of the status test to be unimpeachable. That historical example, however, was not concerned with the question the DoD faces today: the extent to which a commander ought to be involved in making quasi-investigative, quasi-prosecutorial, and quasi-judicial decisions about any cases, not just sexual assault cases.

The two questions at issue—which crimes should be addressed by courts-martial, and to what extent should commanders have prosecutorial-like discretion—are actually related. A demonstrated, plausible connection between the alleged offense’s victim and the commander’s designated professional interests and objectives strengthens the argument in favor of commander involvement. That is, a commander is best positioned to judge the blameworthiness of an act or omission when that act or omission prejudiced their ability to plan, train for, or execute military missions. That argument in favor of commander involvement is likewise weakened the farther away the act or omission is from prejudicing what the commander is professionally obligated to do. This was recognized even by one of military justice’s most ardent skeptics, Senator Kirsten Gillibrand, whose oft-proposed Military Justice Improvement Act would relieve commanders of their court-martial convening authority only for those offenses that are not traditional military offenses, like absent without leave or disrespect.25

Senator Gillibrand has since introduced a more comprehensive reform bill26 that would do what the fiscal year 2020 National Defense Authorization Act considered and what the PAS rejected: place disposition authority, referral authority, and panel selection authority in the hands of JAs for all “felony-type” crimes—except for those that are purely “military in nature.”27 It would have, in effect, created the inverse of the current JA-commander relationship. In other words, based on its view of the crime’s impact on the victim, good order and discipline, morale, cohesion, and mission readiness, the chain of command would make recommendations to the specialized, centralized senior JA prosecutors.28 In contrast, Representative Jackie Speier introduced a more modest reform proposal29 that makes this shift in referral authority only for sexual offenses, but also creates an “Office of the Chief Prosecutor” and an enumerated “sexual harassment” offense under the UCMJ.30 Notably, the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, and the President Biden all publicly supported reforming the UCMJ, but with consequences for traditional General Court-Martial Convening Authorities limited to cases of sexual offenses.31 Though a dramatic shift nonetheless, this incremental reform is what the Secretary of Defense ordered the Department and the Services to start planning for in the Summer of 2021.32 In the end, Congress passed a bill with large bipartisan support that did not achieve all that Senator Gillibrand and others hoped.33 The actual fiscal year 2022 NDAA34 did take away prosecutorial discretion from convening authorities, but only for the most serious sex crimes (plus murder, manslaughter, kidnapping, stalking, retaliation, and child pornography), and transferred it to a newly-created “Office of Special Trial Counsel” (one for each Service). These independent Counsel—all judge advocates—will report directly to the Secretary of each Service rather than a staff judge advocate, commander, or even the Judge Advocate General of their respective Services.35 It is important to acknowledge that, while this departure from centuries of practice is indeed significant, it is far less than what could have been changed consistent with decades of gradual “civilianization” of military law. For example, there are still nearly one hundred offenses under the UCMJ that remain within the jurisdictional reach of traditional lay officer convening authorities. These offenses range from the martial (e.g., disobeying an order, desertion, AWOL, fraternization, misconduct before the enemy) to the serious “civilian”-type misconduct that needs no nexus to military affairs: arson, burglary, perjury, forgery, larceny, animal abuse, drug possession/use/distribution, negligent homicide, rioting, and “indecent conduct”). Clearly, there remains significant debate about just how many, and what type of, offenses ought to be within the purview of the traditional chain-of-command’s disposition and referral discretion.

The Test Case

Can traditional arguments about why commanders are necessary for good order and discipline, justice, and efficiency and effectiveness36 account for a Service member’s off-post, off-duty, economic crime? When answering this question, assume the following facts:

  • An Army private first class, age 23, male, married, assigned as a combat engineer in the 1st Cavalry Division at Fort Hood, Texas. He lives off-post in Killeen, in an apartment he shares with his wife, who is unemployed and pregnant.
  • He is arrested by civilian law enforcement (the county sheriff’s department), on suspicion that he set his car aflame in a public field, called in a false police report alleging his car had been stolen, and later fraudulently filed an insurance claim.
  • The Soldier is arrested after he posts an incriminating photograph and less-than-cryptic note on his public Twitter page, both of which are viewed by his apartment manager (who happened to be owed two months’ worth of rent by said private first class) who subsequently calls the sheriff’s office.
  • Assume that the suspect’s Division Commander has General Court-Martial Convening Authority over this particular Service member per the current UCMJ and 2019 Manual for Courts-Martial (MCM).
  • Assume that Fort Hood has concurrent jurisdiction with Killeen and Bell County, Texas, and exclusive jurisdiction only for misconduct occurring on military property.

Consider whether this hypothetical fact-pattern illustrates a clear basis for questioning, or even repudiating, the arguments made consistently by the Armed Services and whether the logic of that repudiation applies more generically than in just sexual assault cases.

The Challenge and Its Conditions

With these facts, defenders of the commander’s prosecutorial status quo must explain why a hypothetical division commander, rather than the local civilian jurisdiction, is an appropriate authority to determine whether this Soldier should be exposed to possible stigma and consequences of a federal conviction and punishment through a court-martial. Put another way, why is a generic military general officer in command better positioned and a more appropriate law enforcement official to act with respect to this kind of offense and this kind offender than civilian criminal authorities? To answer this question, the status quo defender must answer it without relying on any of the following:

  • Historical convention or custom
  • Anecdotal experience
  • Norms of practice at Fort Hood
  • Preferences of the Bell County, City of Killeen, or State of Texas law enforcement or public officials
  • Preferences of the Commanding General, or any other leader in the Soldier’s chain-of-command
  • Preferences of the office of the staff judge advocate
  • Resources (time, personnel, funding, etc.) of Fort Hood’s Criminal Investigation Division and office of the staff judge advocate or those of Bell County, City of Killeen, or State of Texas
  • Conviction rates for similar offenses in civilian jurisdictions compared to military jurisdictions

These conditions might seem unfair, as if this hypothetical’s restrictive parameters are so narrow that only one possible conclusion is likely. To that, consider that none of the circumstances above are listed among the fourteen factors that the President and Secretary of Defense think are reasonable in making a disposition decision.37 A reasonable argument in favor of this Commanding General’s discretion for this off-post, off-duty offense might start with looking at the “purposes of military law,” described briefly in the Preamble to the MCM: “to promote justice, to assist in maintaining good order and discipline in the armed forces, [and] to promote efficiency and effectiveness in the military establishment.”38 But nobody, including the Supreme Court, really has any idea what these terms mean definitively, nor whether they are in any sort of priority order.39 But if the answer includes the phrase “good order and discipline” anywhere in it, you must—for the sake of this exercise—do three other things implied by that answer. First, you must define this phrase (and you will not find a definition in the UCMJ or MCM or case law).40 For reference and comparison, though, the PAS had this to say about the relationship between commander and “discipline”:

Military discipline, simply put, is the respect for authority and absolute obedience to lawful orders. The purpose of discipline stems from the necessity of combat. Against their natural instincts and personal risk, service members must adhere to the orders of their superiors to kill other human beings and risk being killed in harsh and chaotic battlefield conditions . . . . [M]ilitary justice is meant to inculcate service members in the necessity of good order and discipline. The UCMJ must be an effective tool for commanders to quickly reinforce the absolute necessity for their unit personnel to follow orders.41

Second, you must explain how this alleged misconduct actually undermines the good order and discipline in the Division. Try to be specific; after all, the prosecution would have to be, as would the accused if he chose to plead guilty.42 Third, explain how the use of military justice authorities, rules, and resources to investigate, prosecute, and potentially punish actually will positively affect “good order and discipline.” If you can only speculate as to the probability of such a positive effect, what is the empirical basis of support for that claim?

If your answer includes a reference to the commander’s accomplishment of a military mission, readiness to execute that mission, or obedience to lawful orders, it comes with two more obligatory tasks. First, you must explain how this alleged misconduct damages the commander’s ability to accomplish a military mission. Again, try to be specific. Second, explain how the use of military justice authorities, rules, and resources to investigate, prosecute, and potentially punish with a punitive discharge and incarceration, actually will positively mitigate that damage or reduce its risk.

If your answer is, instead, not premised on assuring a commander’s accomplishment of a military mission, readiness to execute that mission, or obedience to lawful orders, then you must justify why you are ignoring the rationale underlying the very constitutionality of the separate military justice system, described in Parker v. Levy.43

If your answer includes a reference to cardinal military values and virtues of honesty, trust, or integrity, you must explain why any breach of such professional values warrants criminalization by that profession, and why it is warranted in this case.

For the sake of this exercise, you are not relegated to answering only in terms of the “good order and discipline” purpose of military law. If, instead, your answer includes “justice,” and you want to develop a valid, coherent, and persuasive case, you must define this word first (again, you will not find it in the UCMJ, MCM, or case law). Be careful to explain from whose perspective or point of view this “justice” is gauged. Is it the victim’s interest we care about? The accused’s? The command’s? The community’s (and which one)? You must then explain how the use of military authorities, rules, and resources to investigate, prosecute, and potentially punish actually protects, serves, or improves this “justice” from that point of view. Finally, you must explain how this would be distinguished by the “justice” achieved through civilian prosecution.

If you answered that last question by saying that the “justice served” is essentially indistinguishable between the two systems, you have walked yourself right into a corner. This claim would mean you are accepting the rationale of the Court in its relatively recent Ortiz v. United States,44 which explicitly equated the “integrated court-martial system” to state criminal law systems in their functions and purpose (they are both “for justice”). However, the Court clearly also stated that “discipline” and “obedience to orders” are positive outcomes from the use of the court-martial system, but only in the sense that these are agreeable and helpful by-products incidental to the workings of “justice.”45 In so doing, the Court de-emphasized the interest of the commander, and ignored all the procedurally distinct characteristics of military justice—including the investigative, prosecutorial, and quasi-judicial roles that commanders and convening authorities play. You must therefore explain how to square your answer with the reasoning in Ortiz.

If you find it difficult to articulate a coherent, reasoned, and persuasive defense for giving the Commanding General the opportunity to exercise court-martial convening authority over this private first class and his arson-based insurance fraud, in light of these constraints and the follow-on prompted explanations, take heart: one can infer that the PAS had difficulty, too. They did not attempt to rationalize their disagreement with Congress’s proposed alternative in either a hypothetical or real context. Of course, one counterargument is that these hypothetical facts are simply unrealistic or, perhaps, that it is unrealistic to assume that the Division Commander would even want “to take the case” at all.

However, the law currently affords that commander the authority to make a discretionary call; whether they do so often, or ever, is largely beside the point. And if this fact pattern has no obvious or easy explanation, then no fact pattern involving “non-martial” misconduct has an obvious or easy explanation. This means that Congress’s call for a study about excising commanders from felony cases was an inadequate tool of congressional oversight and discovery. The analysis it called for, and the analysis it got in return, was limited and resulted in a recapitulation of the same, now-well-rehearsed, arguments: 1) commanders are by law responsible for “suppressing indiscipline and disobedience”; 2) the actions of those under their command can be influenced by the use, or threat of use, of criminal law; 3) only commanders know how, when, why, and whom to influence in this way; 4) even if commanders are uncertain, they have competent legal advisors, and any abuse or misuse of commander power is checked by both higher command authorities and the courts; 5) commanders’ lawful use of their power is already constrained by rules and limits imposed by statute or regulation; 6) if commanders lose this authority, they will lose the trust and confidence of their subordinates, loosen cohesion, and lead to military defeat; and, finally, 7) “trust us.”

This, unfortunately, assumes far too much. It assumes that all Service member misconduct has similar characteristics and consequences from the perspective of the commander and mission. It assumes that criminal law is, in its use or threat of use, a reasonable and legitimate way to induce the adoption of professional values and norms that are distinctive and not prescriptive in civilian society. It assumes that criminal misconduct of any kind reflects on the professional values and martial ideals expected of Service members. It assumes, wrongly, that criminal misconduct of any kind is inherently prejudicial to good order and discipline simply because of who committed it.46 It assumes that advice regarding military justice from professional military experts must be heeded by their non-expert civilian principals as a matter of trust. Judge advocates do not expect commanders to heed all legal advice on a case-by-case basis, so why expect political leadership—ultimately responsible and accountable to the public—to unquestioningly adopt the military’s view? Finally, it assumes we can all agree on the “purpose” of military justice; and that, whatever it is, it is something that remains static and non-contextual—in other words, military justice exists in order to do X; neither where the offense happened, nor what kind of offense it was, nor who committed it, nor what or who was “victimized” has any bearing on this purpose. Not only is this an assumption, it is contrary to the long history of justifying military justice’s separateness based on precisely these factors.47

If that fundamental, usually underappreciated, question is still open to reasoned and nuanced debate, then everything that follows from that purpose is open to reasoned and nuanced debate. These seven assumption-based justifications for a commander-centric military justice system listed above may very well be objectively true and supported by empirical fact. But, beyond reflexively defending the system with calls to “trust us based on our experience,” nobody has yet demonstrated that they are all true or at least supported by something beyond speculation. Congress certainly could have asked this of DoD, and the PAS certainly could have provided it and made a convincing, nuanced case for retaining a commander’s convening authority when and where it matters. As JAs counseling our commanders on the mechanics and the purposes behind this system, we can do better. If we assert that such a unique system of law, so different from its civilian counterparts, deserves to be cared for, or at least not tampered with for the sake of change alone, we should do better.48 TAL


LTC Maurer is an Assistant Professor of Law at the U.S. Military Academy in West Point, New York.


This article expands on an earlier version, originally published as Dan Maurer, An Open, but Difficult, Challenge: Finding the Rationale for a Commander’s GCMCA for all Offenses, CAAFLog, Oct. 2, 2020, https://www.caaflog.org/home/maurer-an-open-but-difficult-challenge-finding-the-rationale-for-a-commanders-gcmca-for-all-offenses.

Notes

1. The class is an upper-level elective seminar called “Military Justice: Foundations and Legitimacy.” It supplements and expands significantly on the brief introduction cadets receive to military justice (primarily Article 15 non-judicial punishment and administrative discipline) in the cadets’ core course on “Constitutional and Military Law” that all West Point cadets must take to graduate. The author will gladly make available the course syllabus for this first-of-its-kind military justice course to anyone interested.

2. Manual for Courts-Martial, United States pt. IV, app. 2.1 [hereinafter MCM] (“Non-Binding Disposition Guidance” pursuant to 10 U.S.C. § 833).

3. At least in the Army practice with which the author is familiar, most Commanding Generals with General Court-Martial Convening Authority seem to prefer a weekly one-on-one discussion with their staff judge advocate to discuss on-going cases and to determine—among other things—whether to refer a particular matter to a court-martial in accordance with Article 34, Uniform Code of Military Justice (UCMJ).

4. The principal drafter of the UCMJ made this claim the centerpiece of his argument when explaining the new code to Congress before they enacted it. Professor Edmund Morgan testified that “we [the drafting committee] have tried to prevent courts-martial from being an instrumentality and agency to express the will of the commander.” The Uniform Code of Military Justice: Hearing Before a Subcomm. of the H. Comm. on Armed Servs. on H.R. 2498, 81st Cong. 606 (1949) (statement of Professor Edmund F. Morgan, Jr., emphasizing being forced to reconcile with a genuine need to balance a commander’s need for discipline, as a means to the end of mission accomplishment, and Service member’s rights and expectations for “justice”).

5. See generally Symposium, Legal Ethics and Modern Military Justice, 49 Hofstra L. Rev. 1 (2020) (featuring articles by U.S. Air Force retired judge advocate Joshua Kastenberg, Lieutenant Colonel Christopher E. Martin, Colonel Timothy P. Hayes Jr., Major Robert Murdough, and U.S. Air Force judge advocate Lieutenant Colonel (Retired) Rachel E. VanLandingham).

6. Savannah Behrmann, Congress OKs $770B Defense Spending Bill. Here’s What’s In It, and What’s Not, USA Today, https://www.usatoday.com/story/news/politics/2021/12/15/ndaa-defense-spending-bill-clears-congress-heres-whats-it/6417412001/ (Dec. 15, 2021, 4:18 PM).

7. Missy Ryan, Pentagon Leaders Have Opposed Plans Overhauling the Military System for Trying Sexual Assault for Years. Has the Time Come for Change?, Wash. Post (Apr. 10, 2021, 4:30 PM), https://www.washingtonpost.com/national-security/sexual-assault-military-reform-pentagon-resistance/2021/04/10/e5a98a92-96f7-11eb-8e42-3906c09073f9_story.html. See also Lieutenant Colonel (Retired) Rachel VanLandingham, Professional Criminal Prosecution Versus the Siren Song of Command: The Road to Improve Military Justice, Just Sec. (June 21, 2021), https://www.justsecurity.org/77025/professional-criminal-prosecution-versus-the-siren-song-of-command-the-road-to-improve-military-justice/.

8. See generally Fredric I. Lederer, From Rome to the Military Justice Acts of 2016 and Beyond: Continuing Civilianization of the Criminal Legal System, 225 Mil. L. Rev. 512 (2017).

9. For summaries of the legislative efforts to investigate and drive change in military sexual assault prevention and prosecution, see Rodrigo M. Caruço, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71 (2016). See also Barbara Salazar Torreon & Carla Y. Davis-Castro, Cong. Rsch. Serv., R43168, Military Sexual Assault: Chronology of Activity in the 113th-114th Congresses and Related Resources (2019); Kristy N. Kamarck & Barbara Salazar Torreon, Cong. Rsch. Serv., R44944, Military Sexual Assault: A Framework for Congressional Oversight (2021).

10. To Receive Testimony About Sexual Assault in the Military: Hearing before the S. Comm. on Armed Serv., 117th Cong. (2021).

11. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 540F, 133 Stat. 1198, 1367–68 (2019) (“Report on Military Justice System Involving Alternative Authority for Determining Whether to Prefer or Refer Changes [sic] for Felony Offenses Under the Uniform Code of Military Justice”).

12. Michel Paradis, Is a Major Change to Military Justice in the Works?, Lawfare (May 4, 2020, 11:30 AM), https://www.lawfareblog.com/major-change-military-justice-works.

13. There are seven characteristics that might be used to help identify “martial offenses,” which in the process explains why a commander would be well-positioned to understand the offense’s seriousness and effect. See Dan Maurer, The “Shadow Report” on Commanders’ Prosecutorial Powers Raises More Questions Than Answers, Lawfare (May 11, 2020, 11:07 AM), https://www.lawfareblog.com/shadow-report-commanders-prosecutorial-powers-raises-more-questions-answers.

14. MCM, supra note 2, Mil. R. Evid. 311–316.

15. Id. R.C.M. 302–305.

16. Id. R.C.M. 306. See also id. app. 2.1.

17. Id. R.C.M. 401c.(1).

18. Id. R.C.M. 705.

19. 10 U.S.C. § 825(e)(2).

20. See generally Joint Serv. Comm. on Mil. Just., Report of the Joint Service Subcommittee Prosecutorial Authority Study (JSS-PAS) (2020), https://dacipad.whs.mil/images/Public/10-Reading_Room/00_PolicyMaterials/13_JSC_Report_Alternative_MJSystem.pdf [hereinafter PAS Report].

21. See, e.g., Chris Jenks & Geoffrey S. Corn, The Military Justice Solution in Search of a Problem, Hill (July 8, 2020, 11:00 AM), https://thehill.com/opinion/national-security/506205-the-military-justice-solution-in-search-of-a-problem. The authors, both retired military judge advocates and now civilian law professors, wrote:

    Prosecutorial authority is arguably the most important tool commanders possess to ensure a disciplined, effective fighting force and is inextricably linked to the commander’s responsibility to ensure the military readiness essential for mission accomplishment. Divesting commanders of this authority would degrade not only U.S. military combat capabilities but also the military’s response to sexual misconduct in the ranks.

Id.

22. See, e.g., Burns v. Wilson, 346 U.S. 137 (1953); Orloff v. Willoughby, 345 U.S. 83 (1953); United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955); Parker v. Levy, 417 U.S. 733 (1974); Rostker v. Goldberg, 453 U.S. 57 (1981); Chappell v. Wallace, 462 U.S. 296 (1983).

23. Edward F. Sherman, The Civilianization of Military Law, 22 Me. L. Rev. 3 (1970); Stephen I. Vladeck, The Civilianization of Military Jurisdiction, in The Constitution and the Future of Criminal Justice in America 287 (John T. Parry & L. Song Richardson eds., 2013); Dan Maurer, Are Military Courts Really Just Like Civilian Courts?, Lawfare (July 13, 2018, 10:00 AM), https://www.lawfareblog.com/are-military-courts-really-just-civilian-criminal-courts.

24. PAS Report, supra note 20, at 64. Also, it should not go unnoticed that PAS consisted of fifteen members that included a mix of JAs and former commanders from all the armed services, and civilian attorneys. Though the primary effects of the alternative would be felt as a reduction in legal power and discretion by those commanders with General Court-Martial Convening Authority, no members of the PAS have ever held such authority.

25. Gillibrand, Grassley & Cruz Offer Military Justice Improvement Act as Amendment to 2021 NDAA, Protect Our Defenders: News Blog (July 1, 2020), https://www.protectourdefenders.com/gillibrand-grassley-cruz-offer-military-justice-improvement-act-as-amendment-to-2021-ndaa/.

26. Military Justice Improvement and Increasing Prevention Act of 2021, S.1520, 117th Cong. (read twice and referred to H. Comm. on Armed Servs. 2021). This bill proposes to reform the disposition of charges and convening of courts-martial for certain offenses under the Uniform Code of Military Justice and to increase the prevention of sexual assaults and other crimes in the military. The bill has gathered significant bipartisan support (with more than sixty co-sponsors as of this writing), and also has wide support from various interest groups: Protect our Defenders; Iraq and Afghanistan Veterans of America; Veterans of Foreign Wars; Vietnam Veterans of America; National Alliance to End Sexual Violence; National Coalition Against Domestic Violence; Common Defense; Veterans Recovery Project; Service Women’s Action Network; and the National Institute of Military Justice.

27. Id.

28. See, e.g., Ellen Mitchell, Gillibrand Makes New Push for Military Sexual Assault Reform, Hill (Apr. 29, 2021, 2:48 PM), https://thehill.com/policy/defense/550999-gillibrand-makes-new-push-for-military-sexual-assault-reform; Leo Shane III, Major Overhaul in How the Military Handles Sexual Misconduct Cases May Finally Happen, Mil. Times (Apr. 29, 2021), https://www.militarytimes.com/news/pentagon-congress/2021/04/29/major-overhaul-in-how-the-military-handles-sexual-misconduct-cases-may-finally-happen/; Michel Paradis, Congress Demands Accountability for Service Members, Lawfare (June 1, 2021, 9:28 AM), https://www.lawfareblog.com/congress-demands-accountability-service-members.

29. I am Vanessa Guillén Act of 2020, H.R. 8270, 116th Cong. (referred to H. Comm. on Armed Servs. 2020).

30. For a comprehensive comparative review of the various reform bills and the larger context of “civilianization” of military justice, see Daniel Maurer, A Comparative Analysis of UCMJ Reform Proposals, CAAFlog (June 4, 2021), https://www.caaflog.org/home/maurer-comparative-analysis-of-ucmj-reform-proposals.

31. See, e.g., Rebecca Kheel, Top General: Military Justice Overhaul Proposed by Gillibrand “Requires Some Detailed Study, Hill (June 10, 2021, 11:37 AM), https://thehill.com/policy/defense/557774-top-general-military-justice-overhaul-proposed-by-gillibrand-requires-some; W.J. Hennigan, Pentagon Directs Major Overhaul to Military’s Handling of Sexual Assault Cases, Time (July 2, 2021, 12:45 PM), https://time.com/6077840/pentagon-overhaul-sexual-assault-cases/; Lara Seligman, Biden Backs Major Reform to Military’s Handling of Sexual Assault, Politico (July 2, 2021, 11:35 AM), https://www.politico.com/news/2021/07/02/biden-military-sexual-assault-497816.

32. Memorandum from Sec’y of Def. to Senior Pentagon Leadership et al., subject: Department of Defense Actions and Implementation Guidance to Address Sexual Assault and Sexual Harassment in the Military (2 July 2021).

33. Gillibrand Statement on the Gutting of Bipartisan Military Justice Reforms by House and Senate Armed Services Leadership, Kirsten Gillibrand: U.S. Sen. for N.Y. (Dec. 7, 2021), https://www.gillibrand.senate.gov/news/press/release/gillibrand-statement-on-the-gutting-of-bipartisan-military-justice-reforms-by-house-and-senate-armed-services-leadership.

34. National Defense Authorization Act for Fiscal Year 2022, S. 1605, 117th Cong. (2021). See also Staff of H. Armed Servs. Comm., 117th Cong., Final Text Summary of the National Defense Authorization Act for Fiscal Year 2022 (2021).

35. The NDAA made other changes besides affecting the discretion of convening authorities: it also mandated that the President prescribe “sentencing parameters” and “sentencing factors,” and that all sentencing (regardless of offense) will be done by military judges alone. The NDAA also added a new “sexual harassment” offense under Article 134, and finally removed the “and a gentleman” from the name of the Article 133 offense.

36. MCM, supra note 2, pt. I, ¶ 3.

37. MCM, supra note 2, app. 2.1.

38. Id.

39. See, e.g., Colonel Jeremy S. Weber, Whatever Happened to Military Good Order and Discipline?, 66 Clev. St. L. Rev. 123 (2017) (discussing why no single and widely accepted definition of “good order and discipline” is problematic); David A. Schlueter, The Military Justice Conundrum: Justice or Discipline?, 215 Mil. L. Rev. 1, 74 (2013); Parker v. Levy 417 U.S. 733, 781–89 (1974) (Stewart, J., dissenting).

40. However, there are clues. We might consider the illustrations of what it means to be “prejudicial to good order and discipline” in the MCM’s section on “extramarital sexual conduct,” a violation of Article 134, UCMJ. See MCM, supra note 2, pt. IV, ¶ 99.c.

41. PAS Report, supra note 20, at 18–19.

42. United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).

43. 417 U.S. 733.

44. Ortiz v. United States, 138 S. Ct. 2165 (2018).

45. Id. at 2176 n.5.

46. See United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (holding that neither the “prejudicial to good order and discipline” nor the “of a nature to bring discredit upon the armed forces” elements of Article 134 “general article” are necessarily subsets or fairly implied by any and all of the enumerated UCMJ offenses; in other words, an Article 134 offense is not a per se lesser included offense of the enumerated offenses).

47. See, e.g., United States Manual for Courts-Martial 151 (1917 ed.) (“While courts-martial are the judicial machinery provided by law for the trial of military offenses, the law also recognizes that the legal power of command, when wisely and justly exercised to that end, is a powerful agency for the maintenance of discipline”); Parker v. Levy, 417 U.S. 733, 743–44 (“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history”); Orloff v. Willoughby, 345 U.S. 83, 94 (1953) (“The military constitutes a specialized community governed by a separate discipline from that of the civilian.”).

48. For the author’s more philosophical take on the underlying principles that may (or may not) justify the on-going civilianization of military law and the areas that remain idiosyncratic, see Daniel D. Maurer, The Veil (or Helmet) of Ignorance: A Rawlsian Thought Experiment About a Military’s Criminal Law, 55 U. Rich. L. Rev. 945 (2021).

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