Congress empowered the commander to perform certain judicial functions which has resulted in commander control of the court-martial system. This Article examines the disciplinary policies established by command directives, the prohibition against the accuser as convening authority, and the command control over court personnel, counsel, military judges, and case review. Proposed legislation, such as the Hatfield Bills, and the Bayh and Bennett Proposals, would change the existing system. Currently, the command directives establish the commander's prosecutorial discretion and prohibitions on improper imposition of nonjudicial punishment. Also, when the convening authority becomes an accuser, in cases involving willful disobedience, such cases must be convened by a superior competent authority. Additionally, the commander controls the court through efficiency reports. Thus, the author concludes that to avoid the appearance of commander domination, policy directives should only be recommendations, the convening authority should be divested of power when it is an accuser, and random selection of court personnel should be adopted.
Anthony P. De Giulio,
Command Control: Lawful Versus Unlawful Application,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol10/iss1/6