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

This very issue was considered when the UCMJ was enacted into law. Both the drafters and the members of Congress who considered it were satisfied:

Senator Saltonstall: Mr. Chairman, may I say this?... We have provided this very high court on the law; we have provided a board of review of the facts --

Professor Morgan: That is right.

Senator Saltonstall: And if we have done those things, is not the accused amply protected from any influence?

Professor Morgan: That is exactly the way our committee felt about it... (55)

Their reliance on UCMJ checks and the appellate process is reflected in the following statement by Professor Morgan:

On the question of restriction of command control, we felt that when the board of review [predecessor of the Court of Military Review] in the Office of the Judge Advocate General, which is so far removed from any control of the convening authority, had power to handle law, fact and sentence, that that eliminated a great part of the evils of command control. (56)

The UCMJ makes any willful attempt to engage in unlawful command influence a crime:

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instru ctions given in open court by the military judge, president of a special court-martial, or counsel.

(b) In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, representing any accused before a court-martial. (57)

History has borne out the confidence expressed by the congressman and the professor. The convening authority is bound, not only by honor, but also by the UCMJ, to pick those officers (and if requested, enlisted members) who are best qualified to serve as court members: