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
- 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
- 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
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
- 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
- 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
- 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
- Conviction rates for similar offenses in civilian jurisdictions compared to military
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
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
LTC Maurer is an Assistant Professor of Law at the U.S. Military Academy in West Point,
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.
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.
6. Savannah Behrmann, Congress OKs $770B Defense Spending Bill.
Here’s What’s In It, and What’s Not, USA Today,
(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),
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),
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.
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),
14. MCM, supra note 2, Mil. R. Evid. 311–316.
15. Id. R.C.M.
16. Id. R.C.M.
306. See also id. app. 2.1.
17. Id. R.C.M.
18. Id. R.C.M.
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),
[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),
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.
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),
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),
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.
28. See, e.g., Ellen Mitchell, Gillibrand Makes New
Push for Military Sexual Assault Reform, Hill (Apr. 29, 2021,
Shane III, Major Overhaul in How the Military Handles Sexual Misconduct Cases
May Finally Happen, Mil. Times (Apr. 29, 2021),
Michel Paradis, Congress Demands Accountability for Service Members,
Lawfare (June 1, 2021, 9:28 AM),
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),
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),
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),
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,
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.
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.
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).