Congress, not the courts, say who has authority to court-martial servicemembers

Who decides to prosecute a service member at court-martial: their commander or an independent military prosecuting authority? That is the question.

In their piece, Dave Schlueter and Lisa Schenck make clear that they support military commanders making prosecution decisions. The writers correctly note that commanders have made prosecution decisions in American military justice since adopting the British Articles of War for the Continental army in 1775.

They comment on the Department of Defense’s Independent Review Commission (IRC) on Sexual Assaults and, inferentially, the new Senate bill, Military Justice Improvement and Increasing Prevention Act. Reports suggest the commission favors change. The bill proposes removing commanders from the decision to prosecute and placing the authority in the hands of trained military lawyers who are independent of the chain of command. Recently, Gen. Mark Milley, chairman of the Joint Chiefs of Staff, appeared to support change.

To justify the current arrangement, the writers argue that several significant federal court cases place a judicial imprimatur on the existing structure as necessary for good order and discipline. However, the writers misconstrue the meaning of these cases as they affect prosecution authority — Curry v. Secretary of the Army and Solorio v. United States.

Curry v. Secretary of the Army did not say that commanders must retain the authority to prosecute servicemembers. Instead, Curry says that Congress has the power under the rules clause of the Constitution to decide who prosecutes courts martial, not the courts. Thus, the Curry court leaves it to Congress in a well-recognized act of judicial deference. If, as proposed, the Senate bill removes the commander from making prosecution decisions, the federal courts will defer to Congress with challenges to that structural change.

More troubling is the misapplication of the Supreme Court’s Solorio v. United States decision by suggesting that the court somehow requires commanders to decide to prosecute at court-martial. And, they allude to unspecified difficulties in prosecuting cases — something irrelevant to who decides to prosecute. In 1987, the services successfully prosecuted 8,600 general and special courts martial. Did some challenge the service-connection for their prosecution? Yes, some did but not enough that courts martial became “unworkable.” The statistics are publicly available.

Solorio reversed O’Callahan v. Parker and Relford v. Commandant by saying that the Constitution precluded court-martial prosecution of a service member for crimes in the civilian community; if they were not “service-connected.” However, neither O’Callahan nor Solorio said anything about who should make the prosecution decision.

Since Solorio, court-martial jurisdiction over the person is based only on their status as a member of the armed forces — nothing more. Neither O’Callahan nor Solorio gave or took authority from the commander to prosecute. The issue was about who was charged, not who did the charging. Congress chose to make personal status a jurisdictional requirement, and nothing in the Military Justice Improvement and Increasing Prevention Act will change that. The bill puts the discussion and decision of “who” on the floor for debate and potential adoption. Regardless of the outcome, the courts will defer to Congress.

Separately, one of two significant concerns with the proposed legislation is the failure to address who appoints the “jury” members. The military calls the jury a “panel of members,” yet a panel discusses and decides a case similar to a jury in federal or state court. The commander appoints the initial pool of members who sit to determine guilt and a sentence — the commander influences who sits on the jury. You might say this is the home team manager selecting the umpire for the baseball game. If the authority to prosecute is removed, the power to appoint the jury also should be removed.

The prosecution of offenders supports good order and discipline. However, a fair trial for the accused and victims is a sine qua non for a servicemember’s belief in the system. Placing the disposition authority outside the chain of command and with an independent prosecution authority will serve the purpose. Servicemembers’ faith in the military justice system will enhance good order and discipline.

Philip Cave is a retired Navy judge advocate with 41 years of military law and justice experience.