The rise and fall of post-trial - is it time for the legislature to give us all some clemency?

4. Military Justice Act of 1983

The Military Justice Act of 1983, presumably in response to a growing number of appellate issues, simplified the convening authority's role. (83) "Prior to [its] enactment ... the convening authority's post-trial responsibility was quite broad." (84) The 1956 version of Article 64, UCMJ, required the convening authority to approve only those findings of guilty that he finds correct in both law and fact. (85) This required the convening authority as well as his staff judge advocate to act in a quasi-judicial role. (86)

   During consideration of the 1983 amendments to the Code, however,
   Congress was mindful of the cumbersome aspects of the legal review
   that then-Article 64 required of the convening authority and was
   mindful, particularly, of the fertile field for appellate
   litigation in connection with the post-trial review of the SJA
   under then-Article 61, UCMJ.... The House of Representatives'
   report on the legislation "emphasized that ... [the convening
   authority's post-trial] role primarily involves a determination as
   to whether the sentence should be reduced as a matter of command
   prerogative (e.g., as a matter of clemency) rather than a formal
   appellate review." (87)

Consequently, the Military Justice Act of 1983 reduced the breadth of advice that the SJA must give to the convening authority because it removed the affirmative obligation to examine the record for legal errors. (88) "The [subsequent] 1984 changes [to the Manual for Courts-Martial] were designed to make the post-trial review a shorter document" for the purpose of reducing the number of errors in the post-trial process and shifting the focus to the review of substantive issues on appeal. (89) In turn, the convening authority's obligation under Article 60(c)(1) is to modify the findings and sentence as a matter of command prerogative. (90) Under Article 66(c), however, the Court of Military Review (CMR) is responsible for reviewing only those findings and the sentence that the convening authority approves. (91) The distinction between Article 60 and Article 66 further supports the notion that the UCMJ's drafters did not intend to have the convening authority act as a judicial stop in the appellate process, but rather to have the convening authority involved to exercise discretion in determining whether a particular accused was so important to the defense of our country that he was deserving of clemency. Legislative changes such as the Military Justice Act of 1983 represent the most drastic changes in the military justice system, but it is the responsibility of the President to promulgate the rules that the legislature enacts. (92) In doing so, the President has wide latitude in shaping the military justice system.

B. Executive Activism--Establishment of the Trial Defense Service

   The passage of the Uniform Code of Military Justice by Congress and
   its approval by the President on May 5, 1950, did not complete the
   work of creating a uniform military justice system for the armed
   forces. Article 36 of the code required the President to lay down
   procedural rules.... (93)