Sunday, May 04, 2008

More on Professor Hansen's article

The article is indeed must read -- or at least portions of it are. Probably just about anyone with sufficient interest in military justice to be reading CAAFlog is already familiar enough with the commander's role in the military justice system that the article's first 13 pages will be old hat. And my guess is that most CAAFlog readers will be sufficiently familiar with Généreux (I'm told by a Canadian lawyer that it is pronounced in a way that rhymes with kangeroo), Findlay, and the U.K.'s Armed Forces Act 1996 that the next 10 pages will also be quite familiar. The discussion of O'Callahan, Solorio, Middendorf, and Weiss that follows also replows familiar ground.

If you don't need a refresher in any of these areas, you can safely begin reading at Section V on page 448, which discusses the Cox Commission's recommendations. But the heart of the article begins with Section VI on page 452. This section discusses the consequences of the post-Généreux changes to the Canadian military justice system and the post-Findlay changes to the British system. On page 457, Professor Hansen introduces a particularly valuable insight. Under the law of war, military commanders are responsible, under pain of criminal penalties, to ensure that their subordinates refrain from committing war crimes. See, e.g., Yamashita v. Styer, 327 U.S. 1 (1946). Where commanders' military justice authority is removed, will they retain sufficient control over their subordinates to meet this legal responsibility?

Professor Hansen offers factors Congress should consider when contemplating military justice reforms that affect the commander's role in the system. These include the military justice system's actual operation in combat environments, including (1) whether in-theater commanders actually exercise military justice authority themselves or instead transfer cases out-of-theater; (2) whether greater differences are necessary between the services to account for, for example, ship captains' unique needs; (3) the Yamashita command control issue noted above; and (4) the effect of changes on coalition partners who may sometimes play a role in the U.S. military justice system.

Professor Hansen's concerns seem prudent. Consider how two proposed changes might be viewed. First, many have agreed with Judge Cox's famous observation that the convening authority's selection of court-martial members "is the most vulnerable aspect of the court-martial system; the easiest for critics to attack." United States v. Smith, 27 M.J. 242, 252 (C.M.A. 1988) (Cox, J., concurring). As long as commanding officers had the ability to exempt essential personnel from court-martial service, transferring the power to select court-martial members from a commanding officer to a neutral court administrative officer would not seem to offend any of Professor Hansen's suggested factors. Taking this prudent step would protect the military justice system's integrity and reputation, but it would in no way reduce a commander's control -- except to the extent that it eliminates those rare improper attempts to control a case's outcome by stacking the panel. It would also presumably raise our system's reputation with our Canadian and British allies whose own systems have evolved in this manner.

But the evaluation of a proposal to removed prosecutorial discretion from the commanding officer and rest it instead in some neutral authority or a lawyer prosecutorial authority would fare poorly under Professor Hansen's criteria. Removing the commander's prosecutorial discretion implicates the Yamashita concern that he so brilliantly raises.

So take your pet military justice reform, run it through Professor Hansen's template, and see how it comes out. The results may be informative.


Anonymous said...

Professor Hansen's insight about commanders being criminally responsible to ensure that their subordinates refrain from committing war crimes (under Yamashita) is profound.

I am guessing that a commander in such a situation would plead ignorance or lack of knowledge. So such a legal regime would employ a constructive knowledge test (what the commander should have known).

But then I am reminded of the ethical and logical problem of "collateral damage" that Noam Chomsky often describes. We KNOW that approximately 20% of the bombs that kill will kill innocents. This error rate is empirically derived from years and years of warfare, the "fog of war," including the inevitable bombing of wedding parties. Is this a war crime? Almost everyone will say no.

So what is the threshold that separates criminally negligent homicide (or willful indifference) from the action's of a trigger-happy soldier?

I guess this seems like a digression from the topic about American military justice. I am just trying to say that a commander's constructive knowledge will be limited.

Anonymous said...

You may also want to take a look at Arne Willy Dahl's January 2008 presentation to the SJA/LOS Conference at Garmisch (I think you can find a copy at the website for the International Society for Military Law and the Law of War).

The presentation outlines an international movement towards the "civilianization" of all military courts, not just those founded on the Anglo-American model.

In the U.S., I find it interesting that the Iraqi abuse cases have attracted criticism from diverse quarters (ranging from those who believe the military justice system is designed to protect the guilty to those who believe it railroads the innocent), but that calls for reform focus on the same solution: removing military commanders from the process or, at least, restricting the roles they play.

Particular domestic politics aside, this seems to be in keeping with (if lagging slightly behind) the situation world-wide.

As to the commanders' responsibility to prevent war crimes, I must be missing something. Although some of the proposed reforms would limit their involvement in the prosecution of the crimes after they have occurred, I have seen none that would impair their ability promptly to investigate and forward the results of the investigation to an appropriate authority for disposition.