Don't Break America's Military Justice System
There are no perfect justice systems, and the one built around the court-martial is no exception. But the usual arguments for military justice reform are built on failed comparisons, weak analysis, willful historical blindness and factual imprecision. We can have better military justice—but first we need a better discussion about how to get there. The first problem to address is that our military justice reform debate is an ongoing argument about law and politics that conceals a powerful web of unexamined cultural presumptions. We are having another kind of culture war, but without ever explicitly saying so. To act on the unstated premises driving our current discussion would be to seek out the heart of warrior culture and eradicate it, and to do so in the service of make-believe.
In Congress, Sen. Kirsten Gillibrand continues an effort to strip military commanders of their authority to convene courts-martial in sexual-assault cases. Authority over those cases would instead be passed to independent prosecutors in the armed forces, who would supposedly deliberate over accusations in the more balanced manner of local district attorneys, wholly outside the influence of military considerations. In a prepared statement, Gillibrand revealed her underlying premise without quite making it explicit. Justice managed by military commanders isn’t working, she said, so "it’s time to instead put decision making power into the hands of non-biased, professionally trained, military prosecutors.”
In comparable language built around a different area of focus, the Yale Law School professor John Fabian Witt recently wrote that “law has been trying to civilize war for a long, long time.”
In the Manichean understanding of the world shared by Gillibrand and Witt, military systems are irrational and reckless, while legal systems are unbiased and judicious. An infantry commander is only trained to break things, and lives in the world of reckless passions; a lawyer is relentlessly disinterested, calmly weighing evidence and the law on a scale calibrated by the precision of legal thought. Lawyers are “non-biased” because they are “professionally trained” in the rational system of the law. Military commanders didn’t go to law school, so they’re trapped in the realm of the uncivilized.
It’s a lawyer’s brief for the argument that lawyers should have authority over an ever-larger portion of our institutions, being trained to operate with perfectly balanced minds. Outside Congress and the legal academy, the premise reads like a joke: We have to make the world more rational and fair—so we should have lawyers run it.
It’s a bad time to be making this case. In Baltimore, a set of charges rushed to court after Freddie Gray’s death in police custody have begun to evaporate, leading many observers to the conclusion that State’s Attorney Marilyn Mosby brought the charges in the interests of politics rather than the interests of justice; five of six city police officers indicted by Mosby’s office have brought a malicious prosecution lawsuit. Meanwhile, in a recent decision in Texas, U.S. District Judge Andrew Hanen released a remarkable opinion in which he concluded that lawyers from the Department of Justice had systematically lied to the federal courts in a civil case involving immigration regulations. It is, the judge wrote, “hard to imagine a more serious, more calculated plan of unethical conduct.”
But of course, these are only the latest scandals in the civilian justice system. In the 1980s, the infamous McMartin Preschool case was one of more than a dozen bizarre prosecutions that would later be compared to the Salem witchcraft trials. Twenty years after that wave of sexual hysteria, Durham County, North Carolina’s District Attorney Mike Nifong was disbarred for his grossly unethical handling of false sexual-assault allegations against members of the Duke University lacrosse team.
More recently, in Orange County, California, a county judge disqualified every one of the 250 prosecutors in the local district attorney’s office from further participation in a murder trial, a response to an ethics scandal involving the improper use of jailhouse informants.
Our “non-biased, professionally trained” prosecutors, those civilized and relentlessly judicious experts whose expanded power is supposed to make military justice rational and fair, are as human as the rest of us. The current military justice system sometimes produces procedural errors and bad outcomes—but so does the civilian justice system, and so would a military justice system that stripped commanders of authority and gave it to lawyers.