Military Due Process: Less Military & More Process
Posted: 23 Jul 2019 Last revised: 27 Nov 2019
Date Written: July 1, 2019
Long recognized as forestalling arbitrary and capricious government action, Fifth Amendment due process requires different procedures in different contexts, given the shape- shifting nature of caprice. It stands to reason that the process due in the U.S. military’s criminal justice system is different than that in analogous civilian jurisdictions—it must protect against the military’s essentially coercive nature. Military due process demands safeguards against the armed forces’ command-driven hierarchy, one that gives specific individuals vast power over others’ lives. Such command power, coupled with inculcated obedience, helps win wars. It also exposes the military justice system to unique obstruction of justice dynamics when such power is tied to attempts to achieve particular results in military prosecutions.
The military criminal law doctrine of “unlawful command influence” is the leading protection against this military version of structural, justice-perverting corruption, and is a fascinating example of modern due process in U.S. criminal law. The highest military appellate court, congressionally charged with shielding the military justice system from its external coercive environment, has expanded the statutory prohibition against command influence to protect against pressure that has a clearly discernable impact on a particular military criminal proceeding. The unlawful command influence doctrine also protects against command pressure that lends an appearance of unfairness to a court-martial proceeding, despite no showing of classic prejudice. This robust doctrine therefore helps ensure courts- martial results are based, and appear to be based, on facts and law instead of on arbitrary desires imbued with command coerciveness, which helps to preserve systemic legitimacy.
While the military unlawful command influence doctrine has fascinated scholars and frustrated commanders for decades, it remains under-theorized. This Article steps into that void, grounding the doctrine firmly on constitutional due process. Regardless of whether or not commanders maintain their current (and controversial) prosecutorial discretion, as long as the military operates its own criminal justice system to dispose of service member misconduct, the unlawful influence doctrine must be better understood, explained, and implemented. It is the legal guardian of a fair military justice system that is key to overall U.S. military effectiveness. The stakes could not be higher.
Keywords: criminal law, constitutional law, military law, national security law
JEL Classification: K14, K40
Suggested Citation: Suggested Citation