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Military Justice Under Fire: Commanders’ “Convening Authority” Power

Whether commanders’ court-martial convening power is necessary to address combat exigencies or is an 18th century relic incompatible with contemporary understandings of justice is hotly debated, and a decision to remove or modify that authority will have  broad implications for practitioners of military justice. 

In November 2012, a military panel convicted Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy, of aggravated sexual assault, abusive sexual contact, and three counts of conduct unbecoming an officer and a gentleman for allegedly digitally penetrating a female house guest, a civilian contractor who had attended a party that evening at the Wilkersons’ home.  After a week-long trial, the all-male panel consisting of five colonels and a lieutenant colonel sentenced Lt. Col. Wilkerson to a year in detention and dismissal from the military.

Following his conviction, Lt. Col. Wilkerson exercised his right to request clemency or a commutation of his sentence,1 and he submitted to the General Court Martial Convening Authority (GCMCA), Lt. Gen. Craig Franklin, more than 90 letters in support of his case, including several that asserted his wife Beth Wilkerson would divorce her husband if he engaged in marital infidelity.2  In Lt. Gen. Franklin’s words, “Letters from Lieutenant Colonel and Mrs. Wilkersons’ [sic] family, friends, and fellow military members painted a consistent picture of a person who adored his wife and nine-year-old son, as well as a picture of a long-serving professional Air Force officer.”3  Lt. Gen. Franklin reviewed Lt. Col. Wilkerson’s post-trial submission and the record of trial and determined that “the entire body of evidence was insufficient to meet the burden of proof.”4
Against the advice of the staff judge advocate for the Third Air Force (the rough military equivalent of a corporate general counsel and district attorney),5 Lt. Gen. Franklin overturned the conviction and reinstated Lt. Col. Wilkerson into service.

Lt Gen. Franklin’s decision is final and cannot be changed by the Secretary of the Air Force, the Secretary of Defense, or any other individual.  At all points, Lt. Gen. Franklin had access to legal advice from the Third Air Force staff judge advocate, and his actions were consistent with the authority the Uniform Code of Military Justice (UCMJ) grants to commanders.  Unfortunately, a subsequent investigation that uncovered evidence of an out-of-wedlock child Lt. Col. Wilkerson fathered during his marriage has proven Lt. Gen. Franklin’s assessment of the case—specifically that infidelity and sexual assault would be “highly incongruent” with Lt. Col. Wilkerson’s track record as a successful Air Force officer and a “doting father and husband,”—flatly incorrect.  Predictably, the upshot has been widespread questioning of the system that accorded such broad discretion to the commander as convening authority.

Controversial Control

Commanders exercise control over the administration of military justice by various means, sometimes in ways that seem anachronistic or worse today, with the result that commanders’ “convening authority” power has come under increasing scrutiny.  For months, members of Congress have debated whether stripping military commanders of court-martial authority would effectively curb perceived problems with the military’s handling of sexual assault cases.  The Wilkerson case is one of five Air Force sexual assault convictions vacated by clemency in the past five years.6

Last May, Senator Kirsten Gillibrand (D-NY) and 15 cosponsors introduced legislation in an effort to overhaul Articles 60 to 64 (the post-trial procedures) of the UCMJ and take away from commanders the authority to convene sexual assault cases and all other crimes punishable by more than one year in jail.7  Sen. Gillibrand said at a press conference that it “is time to change this system that has been held over since George Washington that is simply not working today for the men and women who are serving.”8

Many legislators seek to improve the military’s handling of sexual assault cases but oppose taking prosecution authority away from the chain of command, and at this time this approach seems to be the one most likely to succeed.  Sen. Claire McCaskill (D-Mo.), among others has opposed this measure based upon the rationale that it would not stop retaliation against victims or put more criminals behind bars.9 Sen. McCaskill is nevertheless a critic of recent events occurring within the military justice system and opined that Lt. Gen. Franklin’s decision to grant clemency and overturn a sexual assault conviction following the United States v. Wilkerson court-martial “shows ignorance, at best, and malfeasance at worst.”10

Whether one agrees with Sen. Gillibrand’s assessment that commanders should be stripped of the authority to convene courts-martial for serious crimes, or Sen. McCaskill’s opinion that Lt. Gen. Franklin lacked the requisite understanding and training to overturn a sexual assault conviction, military commanders’ authority to shape military justice is undeniable, expansive, and in many instances without a parallel in the civilian justice system.

Combat Function

From the earliest beginnings of the United States, military commanders have played a central role in the administration of military justice.  One Army publication describes the military justice system as “a Commander owned [sic] and operated system[,]”11 and it exists at least in part to enable commanders to ensure “good order and discipline.”12  A central feature of the military justice system that differentiates it from its civilian counterparts is its portability and geographic range—a service member committing a crime in a combat theater in the Middle East or stationed in Europe may be prosecuted for the same UCMJ offense in that combat theater or at the applicable European installation, as well as back in the United States.13

The American military justice system, derived from its British predecessor, predates the Articles of Confederation and our Constitution.  Although military justice in the United States has evolved considerably over the years, the convening authority has always maintained the responsibility to select a panel for courts-martial.

After years of trial and error, the UCMJ was passed by Congress and signed into law by President Harry Truman in 1950 and codified a set of rules, courts, and evidentiary standards, and a chain of command to address criminal conduct within all branches of the military.  The UCMJ includes common-law crimes such as murder and assault, as well as purely military crimes without a civilian counterpart, such as dereliction of duty, failure to follow a lawful order, and disrespect.

UCMJ Article 22 sets forth the list of those empowered to convene a general court-martial; this list includes the president, the secretary of defense, the secretary of the applicable military branch, and various levels of commanders.14 As a practical matter, the responsibility of convening courts-martial resides with commanders in the vast majority of cases.

Implicit throughout the UCMJ is the prerogative of a commander to exercise prosecutorial discretion.  If a commander receives information that a member of his or her command is accused or suspected of committing an offense or offenses triable by court-martial, the immediate commander is required to “make or cause to be made a preliminary inquiry into the charges or suspected offenses.”15 At the outset of a criminal matter, as convening authority, a commander in consultation with his unit’s staff judge advocate has the authority to decline the prosecution of certain offenses, or to offer nonjudicial punishment in lieu of a court-martial.  A commander may also utilize nonpunitive measures including an administrative reprimand—a letter admonishing the service member involved and, in many cases, serving as a roadblock to future promotions. Finally, a commander in some cases may decide to simply separate (terminate) the service member from military service.

Article 32 Hearings

An Article 32 hearing is the rough military equivalent of a civilian grand jury proceeding.  Article 32(a) provides:  “No charge or specification may be referred to a general court-martial16 for trial until a thorough and impartial investigation of all the matters set forth therein has been made.  This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of the charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.”17

In practice, an Article 32 hearing generally involves a military prosecutor (trial counsel) swearing and questioning witnesses before the accused (defendant), his defense counsel, and the investigating officer, who receives legal advice from another attorney assigned to ensure the hearing is properly conducted.  Like a grand juror in the civilian justice system, an Article 32 investigating officer’s only responsibility is to assess whether sufficient probable cause exists to warrant a trial.  Unlike the civilian grand jury, the Article 32 investigating officer produces a report for the convening authority summarizing the proceedings, and containing that officer’s recommendations with respect to the prosecution, instead of a simple vote.  The convening authority then determines whether to refer the case to trial at a court-martial.  A GCMCA is simply required to refer the matter to the staff judge advocate for “consideration and advice” that an alleged specification alleges a cognizable offense pursuant to the UCMJ, the alleged specification is warranted based on the Article 32 investigation, and that a court-martial would have jurisdiction over the accused and the offense.18

In the Wilkerson case, Lt. Gen. Franklin had the authority as GCMCA (although commanders seldom exercise it) to select the individual who served as investigating officer for the Article 32 hearing.  Upon receipt of this individual’s report and recommendations, Lt. Gen. Franklin had latitude simply to decline to refer the matter to a court-martial, which could have effectively ended Lt. Col. Wilkerson’s prosecution.  In a letter to Air Force Secretary Michael Donley, Lt. Gen. Franklin stated that he “struggled with referring the case to a court martial after reviewing the results of the Article 32 investigation,” but referred the case for trial after “many discussions” with the staff judge advocate led him to the conclusion that “sufficient probable cause existed to refer the case to trial.”19

In the wake of scrutiny regarding the Article 32 hearing process following
the Naval Academy sexual assault case, Sen. Barbara Boxer (D-California) introduced legislation November 5 that would revamp Article 32 hearings for sexual assault cases. Defense Secretary Chuck Hagel issued guidance August 14 that will now require judge advocates to serve as investigating officers for all Article 32 hearings involving sexual assault charges.20 Among other changes, Sen. Boxer’s proposal, which will likely be offered as an amendment to the 2014 defense authorization bill, would require the Article 32 hearing officer to outrank the defense counsel. Barring other changes to the law, convening authorities will remain free to disregard in whole or part the recommendations of investigating officers in forming decisions regarding the referral of charges.

Pretrial Agreements

The convening authority alone is empowered to bind the military service branch to pretrial agreements.  Rule for Courts-Martial 705, which authorizes and governs pretrial agreements, provides that, as part of an agreement with the convening authority, an accused may offer to plead guilty, to enter a confessional stipulation, and to fulfill other terms and conditions not otherwise prohibited.  Convening authorities, in return, may promise to refer the charges to a certain level of court-martial, to refer a capital offense as noncapital, to withdraw charges or specifications, to direct the trial counsel to present no evidence on one or more specifications, and to take specified action on the adjudged sentence.21

The convening authority also has the power to grant immunity to witnesses.  In practice, a convening authority can in some instances stop a court-martial dead in its tracks by declining to grant immunity to a key witness.

Composition of Panels

The court-martial panel is dramatically different from a civilian jury, in terms of both substance and structure:  At a general court martial, the UCMJ provides for a five-member panel,22 all of whom must be senior in rank to the accused.23  For noncapital cases, only a two-thirds majority is required in order to sustain a conviction.24  When convening a court-martial, the convening authority must detail prospective members that, in the authority’s opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.25  It is an absolute jurisdictional requirement that the convening authority personally select the court-martial members who are best qualified to serve, although one may rely on a subordinate staff judge advocate for administrative assistance.26

As the GCMCA, Lt. Gen. Franklin alone had the authority to determine the prospective United States v. Wilkerson panel members.  In Lt. Col. Wilkerson’s case, the military justice system most likely resulted in a more sophisticated jury than one might expect in state court.  Because jurors must be senior to the accused, each member of Lt. Col. Wilkerson’s panel was a career Air Force officer with at least an undergraduate degree.  Beyond these restrictions, Lt. Gen. Franklin had the authority to choose whomever he wished under his command to report for voir dire.

The Military Justice Improvement Act does not in any way address panel selection, and media coverage of the United States v. Wilkerson court-martial has included little discussion of the panel members.  This particular aspect of the military justice system, however, may be among the most heavily criticized.27 In 2001, the Commission on the 50th Anniversary of the Uniform Code of Military Justice noted “there is no aspect of military criminal procedure that diverges further from civilian practice, or creates a greater impression of improper influence than the antiquated process of panel selection.”28
Several commentators in recent years have called for a random selection process for potential panel members rather than the existing system of convening authority selection.29

Post-Trial

The convening authority’s post-trial powers are sweeping, as the Wilkerson case illustrated.  It is this particular power that has prompted some members of Congress to work to overhaul the entire military justice system and remove to an independent prosecutor many of the commanding authority’s powers for serious crimes.30

Article 60 of the UCMJ directs the convening authority to take action on a court-martial sentence, “only after consideration of any matters submitted by the accused[.]”31  The convening authority is empowered with the “sole discretion,” as a “matter of command prerogative” after receiving a written recommendation from the staff judge advocate officer, to “approve, disapprove, commute, or suspend the sentence in whole or in part.”32  This review precedes a defendant’s right to appeal to their service’s court of criminal appeals pursuant to UCMJ Article 66, and to petition for review by the Court of Appeals for the Armed Forces pursuant to UCMJ Article 67.  Decisions of the United States Court of Appeals for the Armed Forces are further subject to review in limited circumstances by the U.S. Supreme Court by writ of certiorari.33

Commanders’ authority pursuant to UCMJ Article 64 creates a right of appellate review for convicted military personnel.  Because the UCMJ does not contain a provision allowing for release on bail pending appeal, a service member convicted by court-martial and sentenced to confinement will immediately go to a military prison while awaiting appellate review.  Article 64 review therefore takes place much quicker than the first level of appellate review, and in the event a service member was wrongly convicted, a commander’s disapproval of a guilty finding at court-martial will result in a quicker release. 

Without question, Lt. Gen. Franklin’s actions in granting the military equivalent of clemency and overturning the conviction independent of the appeals process fell squarely within his “convening power” authority as commander of the Third Air Force.  Article 60 of the UCMJ allows a “convening authority”—a commander reviewing the case—“absolute power to disapprove the findings and sentence, or any part thereof, for any or no reason, legal or otherwise.”34 The Military Justice
Improvement Act would specifically take away from commanders the power to dismiss charges or reduce a guilty finding to that of a lesser included offense.35

There is also no question that a commander is afforded the authority to consider character evidence that was not a part of the trial, as Lt. Gen. Franklin did in this case by considering evidence that the court had excluded as inadmissible pursuant to the Military Rules of Evidence.36 Although Lt. Gen. Franklin did not attend the court-martial,37 he concluded based on his review of the record that the accuser’s testimony was not credible, a decision likewise entirely within his prerogative.  Ultimately, as he described in his explanatory letter to the Secretary of the Air Force, he “exercised the obligation of a GCMCA exactly as required by the UCMJ, when after [his] lengthy review and deliberation of the evidence, [he] had reasonable doubt as to Lieutenant Colonel Wilkerson’s guilt.”38

Conclusion

Our military justice system, like any other, is no stranger to criticism from numerous vantage points.  Those within the military have criticized it as having become too due process oriented.39 The system has recently received criticism within the international community as being outdated and biased against the accused.  Earlier this year, a Canadian judge overturned a deportation order involving an accused American military deserter because if he were returned to the United States, he would face a court-martial under a traditional convening authority structure.  The judge questioned whether he would receive a fair trial, and opined that the American military justice system “appears to be outdated and sadly at odds with Canadian and international norms.”40

Indeed, several other countries with common British roots have in the past generation made changes to their military justice systems, and in Canada and Britain, for example, courts-martial are now handled by administrators independent of the chain of command.  Although the United States has made other changes since World War II, such as allowing appeals to civilian judges,41 it has kept the convening authority structure.  Yale Law School professor Eugene R. Fidell, who was one of 34 legal scholars who submitted a letter to the Senate Armed Service Committee endorsing the removal of commanders’ court-martial convening authority,42 described the proposal to strip commanders of convening power authority as removing a “tether to the 18th century,” and expressed his opinion that “allowing convening authorities in this day and age to have their hands on the administration of military justice is an artifact, and it’s time to toss it over the side.”43

Whether a military commander’s convening authority power is an outdated relic or a necessary tool for a community tasked first and foremost with national defense and, when necessary, engaging in combat to serve that purpose, is a matter of wide-ranging opinion.  Given the expansiveness of a convening authority’s influence, Congressional removal or reshaping of this authority will most likely result in tremendous change for military justice practitioners across many facets of the justice landscape.

Captain David Classen  is a Minnesota attorney and U.S. Army judge advocate who wrote this article while deployed to Afghanistan as legal advisor to a joint special operations task force.  Before deploying to Afghanistan, he was most recently a battalion judge advocate (inhouse counsel and prosecutor) with the Third Special Forces Group (Airborne), stationed at Fort Bragg, North Carolina.  Any opinions contained in this article are those of the author and do not reflect U.S. Army policy.  He can be reached at david.classen@us.army.mil.

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