A reply to the report of the commission on the 50th anniversary of the Uniform Code of Military Justice : "the Cox Commission" - May 2001 - 50th anniversary of the Uniform Code of Justice

Air Force Law Review, Wntr, 2002 by Theodore Essex, Leslea Tate Pickle

Second, a justice system that responds to this sort of political pressure will not be seen to do justice. Rather, it will be seen as a political arena where pressure can be applied to achieve a desired result. Sadly, we have seen this as some cases have been tried in the public relations realm, with results that many believe did not bring justice. (52) Justice is better served, in the long run, when incorrect perceptions are challenged and correct information is disseminated. The unfortunate alternative is a justice system modified to fit the perceptions of a few interested parties.

It is encouraging that, after all the evidence was examined, the Commission, with its 150 years of collective experience, could find no actual problems with the UCMJ and MCM. It is disturbing that a commission with such a depth of experience would suggest changes based solely on perceptions. The better course of action would be to determine whether the perceptions were accurate, and if not, suggest ways to correct them.

VI. CONVENING AUTHORITIES AND UNLAWFUL COMMAND INFLUENCE

The first portion of the CCR executive summary reads as one long indictment of the convening authority and his role in the military justice system. This indictment should be dismissed as baseless as the Commission cites no evidence against convening authorities. The Commission is almost schizophrenic on this issue as it fluctuates from positive to negative to positive comments. Even as the committee condemns convening authorities in theory, it acknowledges that in practice, even in the area they find most troubling, there is no actual problem. The CCR stated "The Commission trusts the judgment of convening authorities as well as the officers and enlisted members who are appointed to serve on courts-martial." (53)

In direct contradiction of this statement, in line after line, the report suggests there could be trouble:

There is no aspect of military criminal procedures that diverges further from civilian practice, or creates a greater impression of improper influence, than the antiquated process of panel selection. The current practice is an invitation to mischief. It permits--indeed, requires--a convening authority to choose the persons responsible for determining the guilt or innocence of a servicemember who has been investigated and prosecuted at the order of that same authority. (54)

At the end of this dire warning, the Commission finds no abuse whatever. It condemns the appearance of evil without addressing some essential, relevant questions: 1) are there safeguards in place to prevent abuse; 2) are they being used; (3) and if so, do they in fact prevent the abuse the Commission is concerned about? When the facts are examined, each of these questions is answered in the affirmative. However, the Commission concluded its inquiry on this issue, based not on the facts, but on the "potential appearance" of improper influence.

"In an attempt to prevent unlawful command influence, Congress enacted Article 37, UCMJ, and provided for the punishment of violations of this article under Article 98, UCMJ. Congress also relied heavily on the UCMJ's appellate court system for protection from unlawful command influence, as indicated by this exchange between Senator Leverett Saltonstall and Mr. E. M. Morgan, Professor of Law, Harvard University: