CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, March 16, 2021

Maurer on Demilitarizing Military Justice

Daniel D. Maurer (Dept of Law, United States Military Academy at West Point) has posted Is Demilitarizing Military Justice an Ethical Imperative for Congress, the Courts, and the Commander-in-Chief? (Hofstra Law Review, Vol. 49, No. 1, 2021) on SSRN. Here is the abstract:
 
This symposium introduction to ethics in military justice highlights that professional responsibility norms, expectations, and problems impact and imperial this discipline just as they do in any other criminal justice system. But in such a dizzyingly specialized criminal justice schema, the problems and perils of legal ethics and professional responsibility are both heightened and clouded by their seemingly difficult remoteness. Because the context of military justice implicates—to various degrees—national security, and not just individual cases and individual parties, special attention is owed in several critical areas. Political interference in military prosecutions has a long history, and it inevitably corrupts and taints individual cases, impairing public confidence in the judicial integrity of the court-martial. Moreover, this is a justice system that self-consciously celebrates the influential and central role of the commanding officer, creating an “operating environment [which] remains an orders-driven, hierarchical, and profoundly coercive special society.”
It must, therefore, still contend with and actively combat the ever-present risk of “unlawful command influence” no matter how many other civilianizing characteristics military justice now enjoys, and regardless of whether that influence was direct or merely indirect, actual or only apparent, intentional or just inadvertent. Moreover, in a field as obscure as military law, public transparency of judicial and prosecutorial decision-making—especially in terms of sentencing—may outweigh the countervailing goal of shielding the “deliberative process” when both statutes and case law either already require it in civilian practice or encourage it. Some national security professionals, military justice practitioners among them, are “under pressure” to depart from professional norms and their professional obligations, and to dilute or change their advice to their (political) principals, or to advocate on the principal’s behalf thereby losing their highly valuable professional independence—they are “wedged between their principles and principals.”

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