Thursday, December 25, 2008

Top 10 military justice stories of 2008 -- #9: NIMJ's staffing growth

Military justice is a fairly insular system. Consider, for example, how rare it is to see civilian law reviews run articles about military justice. If it weren't for JO'C, there would hardly be any at all. Congress rarely pays much attention to the system. The last congressional hearings dealing with military justice of which I'm aware occurred in 1983. For years, the only real player for military justice development purposes was the Joint Services Committee. But that committee's work is largely reactive -- responding to appellate opinions that are adverse to the prosecution and adopting pro-prosecution fixes. Nothing better exemplifies this trend than the so-called Wiesen fix and its fallacious supporting drafters' analysis, which we've discussed here.

Insularity is undesirable. The system can only benefit if its policymakers hear a variety of perspectives. And the organization that has engaged in the most sustained campaign to provide an outside perspective has been the National Institute of Military Justice. The most notable product of that effort was the 2001 NIMJ-sponsored Cox Commission report. I urge you to take the time to read or reread the report -- which, regardless of whether you agree with its recommendations, is an impressive analytical achievement. And that report led to a rare non-DOD-requested UCMJ amendment: Article 25a, which general requires that capital courts-martial have at least 12 members. So it was exciting to read in the New York Times last month that Judge Cox "hopes to convene a second commission" to continue examining the military justice system "in the next few months."

For the past few years, NIMJ's work has been bolstered by a full-time staff to augment its volunteer officers', directors', and advisors' work. That staff was initially limited to one full-time executive director. But over this past year, the full-time staff has expanded to three: an executive director, an assistant director, and a program coordinator. This expansion of its staff provides NIMJ with more resources to analyze and seek to improve the military justice system. Having such an outside think tank dedicated to studying the system will almost certainly promote salutary reforms that DOD wouldn't achieve had it reamined the only real player in the military justice development process.

The growth of NIMJ's staff ranks as one of the top-10 military justice developments of the year because it has such great potential to lead to changes in the system. But, as we recently noted, this story has a certain poignancy because NIMJ's work may be threatened by the Bernie Madoff scam. One of NIMJ's funders, the JEHT Foundation, will shut down at the end of January due to its funders' losses to Madoff. This will apparently cost NIMJ $340,000 in grants over the next two years. Can NIMJ sustain its staffing level in light of these losses? If not, how will NIMJ's programs be affected? We'll continue to follow NIMJ's work next year to answer these questions.

[DISCLAIMER: I am a former NIMJ advisor and director, though I haven't served in that capacity for many years due to my full-time military and governmental employment for the past six years.]

16 comments:

Anonymous said...

Let me get this straight: the last time NIMJ was relevant was 2001. And Madoff means there's no threat that it will become relevant any time soon. NIMJ's search for validation continues to find a home on CAAFlog. What's going on here? Insularity is undesirable indeed.

Dwight Sullivan said...

No, 1054, you don't have that straight. I didn't write that the last time NIMJ was relevant was in 2001. I wrote that its most significant product was the 2001 Cox Commission Report. Let's say we all agreed that Citizen Kane was American cinema's finest product. That wouldn't mean that American cinema has been irrelevant since 1941. Or let's say we all agreed that Abraham Lincoln was the greatest American president. That wouldn't mean that the American presidency has been irrelevant since 1865.

And if you're going to take a shot at NIMJ and at me, it would be nice if you had the moral courage to attach your name to it.

Dew_Process said...

1054 - If you haven't read some of the Amicus Curiae Briefs NIMJ has filed over the years, take some time to do so. Their contributions to military jurisprudence are many and varied.

John O'Connor said...

UCMJ amendments coming from sources other than DoD are actually becoming more common, I think. Last year, the change to Article 2 was initiated by Senator Graham, not DoD.

My recollection is that the amendments creating automatic forfeitures came straight from Congress after a series of newspaper exposes about servicemembers getting full pay to be confined (I could be wrong on the souce of that legislation, but that's my recollction).

And EAJA and other versions of legislation doing the same thing have been floating around Congress and probably will be passed this year (over DoD's objection) if I were a betting man.

Dwight Sullivan said...

I believe another example supporting JO'C's proposition is the Article 120 amendment. Did that also originate from a non-DOD source?

Anonymous said...

120 amendment was pushed by Congresswoman Sanchez pursuant to the Denvero Post Articles on Sexual Assault in the Military. Of course that lead to the DoD Task Force and Congressional Hearings, but Sanchez was the driving force behind the entire change.

Anonymous said...

Top Ten? Dwight, that is shameless.

Anonymous said...

I would bet that fewer than 10% of trial and defense counsel across the services have ever heard of NIMJ. Hardly top 10 material...

Dwight Sullivan said...

Anon 0842 -- what percentage of trial counsel and defense counsel do you think know of the Supremes' grant of cert in Denedo? I don't think that popular knowledge criterion is a good indicator of significance.

John O'Connor said...

I was going to make the exact same point as Dwight -- knowledge of an issue in the fleet is not really a good indicator of its overall importance. My experience (now more than ten years old and admittedly narrow in scope) was that most TCs and DCs didn't read appellate decisions or even do much with the law at all, instead focusing on the day to day processing and facts of their cases. The real;ity was that the MJs would catch most of the legal issues that arose out of a desire to protect the record, so counsel tended to focus on the facts more.

Anonymous said...

Does NIMJ actually represent people in courts-martial? Or Do Mr. Maclean, et al represent servicemembers only on appeal?

Gene Fidell said...

Anon 0118, NIMJ does not represent individuals, as our website explains. Mr. MacLean, who I do not believe is a member of the bar, has no affiliation with NIMJ.

Anonymous said...

Anon 13:18: NIMJ is not a law firm, or an organization (like the ACLU) that represents litigants, rather it is an association of court-martial defense attorneys. NIMJ's members represent clients, but not on behalf of NIMJ.

Gene Fidell said...

NIMJ does not have members. Our directors and advisors include roughly equal numbers of practitioners and law professors. For more about NIMJ, please visit our website, www.nimj.org.

Anonymous said...

We don't have "members" we have "directors" and "advisors" is silliness.

That's like "we don't have 'partners' we have 'shareholders.'"

Do you represent people at courts-martial, or not? If the answer is: "I do, but in my individual capacity, not my NIMJ capacity" then please don't reply.

Jason Grover said...

I wonder why some seem hostile to NIMJ. Regardless of whether you agree with any particular position NIMJ has advocated, the fact remains that as an organization, it is actually filing briefs on important issues on military justice matters. Other organizations do as well from time to time, but NIMJ does seem to be the one non-DOD group that most consistently follows military justice litigation and jumps in when it feels appropriate. Why would that offend somebody? For example, if any appellate counsel have not used Gene’s Guide to the Rules Practice and Procedure before CAAF (found on NIMJ’s website), it was to their loss. NIMJ may take positions people disagree with, but I don’t see how an outside group looking at military justice and taking positions could possibly be a bad thing.