SYMPOSIUM

Introduction to Discipline, Justice, and

Command in the U.S. Military: Maximizing
Strengths and Minimizing Weaknesses in a
Special Society

VICTOR M. HANSEN*

n her article: Discipline, Justice, and Command in the U.S. Military:

Maximizing Strengths and Minimizing Weaknesses in a Special Society,
Professor VanLandingham provides a fresh and unique perspective on
the role of the military commander and the exercise of prosecutorial
discretion.1 This article is a particularly timely and important contribution
to the discussion and debate on military justice reforms that has been
taking place over the past few years and the attention being given to sexual
assault crimes in the military.
The recent spate of high profile sexual assault cases has focused
military justice reform directly on the military commander. 2 As Professor
VanLandingham notes, the position of the military commander in the
context of military justice is unique.3 There is simply no civilian
counterpart. The commander, a non-lawyer, is responsible for maintaining
good order and discipline in the military unit. 4 It is the commander, not a
prosecutor who ultimately determines, among other things, which cases

Professor of Law, New England Law | Boston.

See Rachel E. VanLandingham, Discipline, Justice, and Command in the U.S. Military:
Maximizing Strengths and Minimizing Weakness in a Special Society, 50 NEW ENG. L. REV. 21,
1

2627 (2015).
2 See Mitsie Smith, Comment, Adding Force Behind Military Sexual Assault Reform: The Role of
Prosecutorial Discretion in Ending Intra-Military Sexual Assault, 19 BUFF. J. GENDER L. & SOC.
POLY 147, 148 (2011) (discussing command influence and its effects on the prosecutorial
process).
3
4

See VanLandingham, supra note 1, at 48.

See id.

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will be prosecuted, what charges will be brought, and whether any

clemency will be exercised.
Many critics of the current system see this unique position of the
commander as one of the primary reasons why the military struggles with
appropriately and effectively prosecuting sexual assault cases.5 These
critics contend that because of the commanders authority over military
justice, it is difficult for an alleged victim to report an assault. 6 They argue
if the commander has a high regard for the alleged perpetrator, the
commander will be inclined to disbelieve the victim and protect the alleged
perpetrator. Additionally, because decisions to prosecute are being made
by a non-lawyer, these decisions will not be made with a proper
understanding of the complex legal and factual issues that frequently arise
in these cases. In short, when a non-lawyer commander is responsible for
making the charging decisions and exercising prosecutorial discretion, the
victim is less likely to receive justice.7
The solution for these critics is to remove or at least limit the role of the
military commander in these particular types of cases, if not in all types of
cases. These critics look to the model of the United Kingdom, Canada, and
other countries with a common law tradition that have recently reformed
their military justice systems to significantly reduce the role of the
commander and replace the commander with an overseeing prosecutor
charged with exercising much of the authority that had previously been
within the commanders purview.8 It should be noted that the reforms in
these other countries were not made in response to spates of sexual assault
cases.9 Nevertheless, many critics of the U.S. system see these reforms as an
important part of the solution to address the problem of sexual assault in
the military.
Professor VanLandinghams article is an important contribution to this
debate because she takes on one of the most important unaddressed
questions. While many assume that commanders cannot perform the
prosecutorial function adequately and that these are matters better left to
5 See, e.g., Michael Buchhandler-Raphael, Breaking the Chain of Command Culture: A Call for
An Independent and Impartial Investigative Body to Curb Sexual Assaults in the Military, 29 WIS. J.
GENDER & SOCY 341, 344 (2014).
6 Id. at 34546 (noting the authority of the military commander to kill assault complaints
by preventing them from evolving into official reports).
7

See Shelbi Nicole Keehn, Note, Striking a Balance Between Victim and Commanding Officer:
Why Current Military Sexual Assault Reform Goes Too Far, 48 COLUM. J.L. & SOC. PROBS. 461,
47778 (2014).
8 Victor Hansen, The Impact of Military Justice Reforms on the Law of Armed Conflict: How to
Avoid Unintended Consequences, 21 MICH. ST. INTL L. REV. 229, 248 (2013).
9

See id. at 23343.

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professional prosecutors, her article is the first to raise the important

question about what it is that prosecutors actually do when exercising
discretion.10 Are prosecutors really better equipped to decide how best to
provide justice? If so, why? What guidelines and systems inform and aid
prosecutors in exercising their discretion?
The article recognizes that in the civilian system, particularly in
exercising the charging decision, prosecutors have virtually unlimited
discretion.11 The primary reason Professor VanLandingham suggests is this
allows prosecutors to dispense individualized justice, to assess each case
and situation on its individual merits. She also notes, however, that giving
unlimited discretion to prosecutors, sacrifices any system of checks and
balances.12 Courts and legislatures are loath to review charging decisions or
otherwise cabin the prosecutors authority. And even though the ABA and
the Department of Justice have developed guidelines to aid prosecutors,
the checks and balances which are the hallmarks of good government,
simply do not exist.13
That is not a system I believe the military should model. It is not a
system that will ensure better and more effective prosecutions of sexual
assault crimes, or any other crimes for that matter. Professor
VanLandinghams article lays bare a key weakness of those advocates of a
prosecutor-centric military justice system.14 The experience in the civilian
system provides no evidence to suggest that transforming the military
system will yield better results.
What is unique to military justice is the role of the commander. There
is no civilian counterpart. Professor VanLandinghams article discusses in
some detail both the unique role that the commander plays in military
justice and why that system has developed.15 Until now, the military has
defended the role of the military commander by often simply claiming the
need to maintain unity of command and the importance of maintaining the
chain of command as a justification for the status quo.16 That is no longer

10

See VanLandingham, supra note 1, at 2836.

Id. at 31.
12 Id. at 34 (noting there are minimal checks and balances, resulting in little accountability,
when a prosecutor decides not to pursue charges).
13 See ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND DEFENSE
FUNCTION 3-3.9, at 7072 (3d ed. 1993); UNITED STATES ATTORNEYS MANUAL 9-27.22 (2014),
available at http://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution#9-27.
11

220.
14

See VanLandingham, supra note 1, at 3132.

See id. at 4247.
16 Id. at 47 n.151.
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an adequate response. Here also, Professor VanLandinghams article is an

important contribution.
Rather than simply repeating the trope that the commander must hold
the reins of military justice, because that is what commanders have always
done, Professor VanLandingham explores in some detail why this
authority, particularly the authority over the charging decision, vests with
commanders.17 She recognizes both the historical and practical reasons for
this system. And she also notes that commanders are not left to make these
decisions on their own. Another point lost on many critics is that
commanders make charging decisions only with the advice and
recommendations of their military lawyers. The article highlights that fact,
and in doing so, Professor VanLandingham suggests that perhaps the best
solution to improve military justice, whether it is more effective
prosecutions for sexual assault or other crimes, is to take the best of the
military justice system and improve on it.18
It is here that the article lays the foundation for further scholarship and
discussion. Professor VanLandingham looks at three possible areas for
reform and improvement over the current system. 19 First, she notes a few
transparency measures that Congress recently imposed on commanders
regarding the disposition of certain offenses involving sexual assault. 20 She
then, correctly I believe, argues that these same transparency and oversight
requirements should apply to all offenses.21 Finally, she argues that better
training and clearer guidelines for prosecutors within the military would
help ensure better decisions.22
The most intriguing aspect of this part of the article is the suggestion
that commanders and prosecutors should more fully share the charging
decision responsibilities.23 This suggestion needs further exploration.
Nowhere in either the United States civilian or military systems are
charging decision currently a shared responsibility between two entities.
This proposal raises a number of interesting questions: Would there have
to be unanimity in the decision? Would the commanders view trump the
view of the prosecutor if there was a disagreement? Would each entity be
responsible for a discrete part of the analysis? How would this shared
responsibility differ from the current practice?

17

Id. at 4246.
Id. at 5862.
19 Id. at 6263.
20 VanLandingham, supra note 1, at 5758.
21 See id. at 5860.
22 Id. at 62.
23 Id. at 6062.
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The article also recognizes the value of greater transparency in the

charging decision.24 Here again, transparency has not been a feature of
most prosecutorial decisions.25 Transparency, while important, is not an
end in itself. Would greater transparency give a criminal defendant more
opportunities to challenge the charges? Will transparency give victims
more say in the charging decision? Should the charging decision be
appealable to a higher authority? Professor VanLandinghams article has
set the stage for a fuller discussion of these and other questions.
An issue not addressed by this article is the accountability of
commanders, which I believe should also be an important part of the
discussion and ultimate solution. One of the most important and as of yet
unaddressed reasons is that military commanders lack sufficient cultural
and legal incentives to aggressively prevent and suppress this
misconduct.26 In order to ensure that the leadership addresses these issues,
more must be done to incentivize commanders to prevent and suppress
these crimes.
There is often a cultural tendency within the military to gloss over any
specific command failings and leadership shortcomings that could have
contributed to an atmosphere that allowed these crimes to continue
undetected for weeks or months. When the military finally does address
leadership failings, it often sends confusing and contradictory messages.27
There exists within the military a culture against fully investigating and
clearly identifying the command failings which may have contributed to
the under-detection of sexual assault crimes.28 The failure to fully
investigate and identify these command failings sends a mixed message
both to the service members and to other commanders. They are left to
wonder what further actions could or should be taken to detect, prevent,
and suppress these crimes. When the response to command failings by
senior officials is unclear, commanders are uncertain as to how to prioritize
the many demands on their time to ensure that they pay sufficient and
appropriate attention to these issues.
In addition to these cultural changes, I believe there must be specific

24

See id. at 5860.

See id. at 36 & nn.8081.
26 See Hansen, supra note 8, at 253.
27 See HCTOR OLSOLO, THE CRIMINAL RESPONSIBILITY OF SENIOR POLITICAL AND MILITARY
LEADERS AS PRINCIPALS TO INTERNATIONAL CRIMES 202 (2009).
25

28

Cioca v. Rumsfeld, 720 F.3d 505, 506 (4th Cir. 2013) ([D]efendants acts and omissions in
their official capacities contributed to a military culture of tolerance for the sexual crimes
perpetrated against them . . . .); Anne Marie Woods, Note, A More Searching Judicial Inquiry:
The Justiciability of Intra-Military Sexual Assault Claims, 55 B.C. L. REV. 1329, 1356 & n.134 (2014).

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statutory changes to the Uniform Code of Military Justice to further

incentivize commanders to investigate, prevent, and suppress these
crimes.29 There is a doctrine that exists within the customary international
law known as command responsibility.30 This doctrine was developed after
World War II in large part due to the efforts of the United States to hold
enemy military commanders accountable for the law of war violations
committed by the forces under their command. 31 Since that time, the
doctrine has been codified in a number of international treaties and in
military codes throughout the world.32 As of yet, this doctrine has not been
fully incorporated into U.S. domestic law within the UCMJ.33 Article 92
addresses dereliction of duty and is the primary statutory mechanism
within the code to hold a commander criminally accountable for his
command failings.34
As currently formulated, Article 92 is inadequate. Under Article 92, all
that is required of a commander is to avoid willful failures and achieve a
level of competency that is somewhere above simple negligence or
culpable inefficiency.35 A commander cannot be held accountable under
this provision even if he did not do everything feasible or even reasonable
to investigate, prevent, or suppress these crimes. As long as the
commanders failures were not negligent, culpably inefficient, or willful, he
is not derelict in his duties.36 By contrast, under international law a
commander is required to do everything in his power that is reasonable to
29 See Victor Hansen, Changes in Modern Military Codes and the Role of the Military
Commander: What Should the United States Learn From This Revolution?, 16 TUL. J. INTL & COMP.
L. 419, 464 (2008). See generally Uniform Code of Military Justice, 10 U.S.C. 834 (2012)
(discussing consultation between convening authorities and staff judge advocates).
30 See Sherrie L. Russell-Brown, The Last Line of Defense: The Doctrine of Command
Responsibility and Gender Crimes in Armed Conflict, 22 WIS. INTL L.J. 125, 12530 (2004).
31 See, e.g., Allison Martson Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal
Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CALIF.
L. REV. 75, 12223 (2005).
32

See generally id. at 142 nn.4950 (describing various international treaties and military
codes that have codified the doctrine of command responsibility); Recent Developments,
Criminal Liability for the Actions of SubordinateThe Doctrine of Command Responsibility and Its
Analogues in United States Law, 38 HARV. INTL L.J. 272, 276, 291 (1997) (providing international
statutes and treaties that include the doctrine of command).
33

Cf. 10 U.S.C. 82324.

Id. at 892.
35 See id.; see also MANUAL FOR COURTS-MARTIAL UNITED STATES 16 (2012 ed.).
36 Victor Hansen, Whats Good for the Goose is Good for the Gander Lessons from Abu Ghraib:
Time for the United States to Adopt a Standard of Command Responsibility Towards its Own, 42
GONZ. L. REV. 335, 396 (200607) (noting Article 92 defines dereliction as either willful,
negligent, or culpably inefficient conduct).
34

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prevent, suppress, or punish law of war violations.37

Current U.S. law, which only requires a commander not to be negligent
or culpably inefficient, does not sufficiently incentivize the commander to
investigate, prevent, and punish sexual assault crimes. At a minimum, in
order to appropriately incentivize commanders, Article 92 should borrow
the legal standard developed under the doctrine of command
responsibility and specifically require the commander to do all that is
reasonable within his power and authority to investigate, prevent, and
suppress sexual assault crimes within the ranks.
This change and clarification in the law will have several benefits. First,
it will provide commanders with a needed incentive to make the detection
and prevention of sexual assault within the ranks a top priority.
Commanders are tasked with any number of important responsibilities
and duties. At the top of that list must be the responsibility to establish and
maintain a command climate where every service member is valued and
protected and where conduct that undermines the trust and confidence
that is essential to good order and discipline will not go undetected.
Second, it will send a powerful message to commanders that their
responsibility in this area requires more than taking action when they
become aware of possible allegations. They have an affirmative duty as
commanders to take all necessary and reasonable actions to prevent and
investigate sexual assault crimes. Failure to do so could subject the
commander to criminal sanctions. Finally, this change will help create a
cultural shift in the military towards fully investigating and clearly
identifying the command failings which may have contributed to the
under-detection of sexual assault crimes within the ranks.

37 See Victor M. Hansen, Developing Empirical Methodologies to Study Law of War Violations, 16
WILLAMETTE J. INTL L. & DISP. RESOL. 342, 38384 (2008).