More on Hagel’s Proposed UCMJ Change

Following is a short article from Air Force Magazine about Secretary Hagel’s proposed changes to the Uniform Code of Military Justice.

Defense Secretary Chuck Hagel announced on Monday that he’s directed the Pentagon to prepare legislation for Congress that would modify Article 60 of the Uniform Code of Military Justice. He wants the code amended so that convening authorities could no longer change the findings of a court-martial for major offenses like sexual assault. He also wants Article 60 modified so that the convening authority would have to explain in writing any changes made to court-martial sentences. “These changes, if enacted by Congress, would help ensure that our military justice system works fairly, ensures due process, and is accountable,” reads Hagel’s April 8 statement. His action came after the Pentagon’s general counsel completed a review of Article 60 that Hagel ordered last month after Lt. Gen. Craig Franklin, 3rd Air Force commander, overturned the sexual assault conviction of an Air Force colonel at Aviano AB, Italy. Some lawmakers have condemned Franklin’s action, but there has been no public pronouncement from Hagel or the Air Force leadership thus far that Franklin’s justification for dismissing the conviction was flawed.Hagel also said he is reviewing other options and actions to strengthen sexual-assault prevention and response efforts, and would announce his decisions soon.

Just a few questions/comments from us unwashed folks that come to mind in the 5 minutes after reading this blurb:

1. How does restricting the power to grant clemency and approve/disapprove findings and/or sentences somehow ensure due process? It seems to me that it merely eliminates the first line of appeal for an accused (if convicted of a serious crime).

2. The clemency power of the convening authority helps to facilitate plea bargaining because he/she is empowered to disapprove certain adjudications based on the terms of  a pretrial agreement. How is this going to be preserved? Having not seen the proposed changes, I fear that knee-jerk legislation may forget the useful and time-honored processes and legal fictions created within the UCMJ.

3. There is actually a joint committee that constantly reviews the UCMJ and recommends changes to Congress as part of the process of creating and passing annual defense appropriation acts (usually each fall). One of their primary functions is to thoroughly apply the law of unintended consequences to any and all proposed changes to the UCMJ. This takes time. Are they going to be rushed through this process in order to satisfy the desires of very vocal advocacy groups?

4. OK, so a lot of people think that Lt. Gen. Franklin abused his Article 60 powers. I understand. However, aside from his act, are there numerous others that indicate that Article 60 is broken?

5. Are there less intrusive means of checking the power of Article 60? What about allowing appellate review of Article 60 findings disapprovals and causing each convening authority to specify, in writing, reasons for disapproving findings in serious cases in order to create an appellate record. This way, Article 60 is preserved but subject to checks.

Thanks to JMo for pointing us at this article.