http://warontherocks.com/2015/10/civilianizing-military-justice-sorry-it-cant-and-shouldnt-work/
CHARLES DUNLAP, OCTOBER 8, 2015
Professor James Joyner and retired Marine Lt. Col. James W. Weirick have written a sharp critique of the military justice system (“Time to End Unlawful Command Influence Catch-22”) that deserves close examination. In it they highlight the challenges of what is called unlawful command influence. They believe that the prohibitions against such impropriety allowed sex offenders to escape justice in what they term a “spate” of cases, and because of that, a systemic change in the military justice system is needed. While concern about unlawful command influence is a worthy endeavor, the solution they propose — handing over all serious cases to civilian prosecutors — is simply the wrong one, and will end up hurting victims, those accused, and the armed forces themselves.
A little context: Military law’s prohibition against “unlawful command influence” is sourced in Article 37 of the Uniform Code of Military Justice (10 U.S.C. §837), which says in part that:
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.
Over time, judicial decisions have rightly called unlawful command influence the “mortal enemy of the military justice system” and have, arguably, broadened the prohibition’s reach, especially with respect to situations that merely raise the appearance of command influence, even when it is not shown to really exist.
Joyner and Weirick’s concern seems to be triggered by a recent mid-level military appeals court decision that concluded that “portions” of a prosecutor’s argument improperly cited “Army policy objectives, at least in part, as the basis for convicting appellant.” Importantly, however, the court decried the appearance of command influence but didnot conclude that it actually occurred. In reality, it is an illustration of just how far the military justice system will go to root out even untoward appearances of unfairness. This self-correcting feature is in stark contrast to the civilian systems Joyner and Weirick favor, which have no equivalent of a protective Article 37.

