ALTERNATIVE AUTHORITY FOR DETERMINING WHETHER
TO PREFER OR REFER CHARGES FOR FELONY OFFENSES
UNDER THE UNIFORM CODE OF MILITARY JUSTICE
A Shadow Advisory Report to the
Senate Committee on Armed Services
and the House Committee on Armed Services
Shadow Advisory Report Group of Experts (SARGE)
April 20, 2020
Introduction ..................................................................................................................................... 1
Section 540F ................................................................................................................................... 1
Procedural, Legal, and Policy Implications and Considerations .................................................... 3
Implementation and Maintenance of the Proposed Alternative Military Justice System ............... 5
A. Legal personnel requirements .............................................................................................. 5
B. Changes in force structure .................................................................................................... 5
C. Amendments to law .............................................................................................................. 5
D. Impacts on the timeliness and efficiency of legal processes and court-martial
adjudications ......................................................................................................................... 6
E. Potential legal challenges to the alternative system ............................................................. 7
F. Potential changes in prosecution and conviction rates ......................................................... 7
G. Potential impacts on the preservation of good order and discipline, including the ability
of a commander to carry out nonjudicial punishment and other administrative actions ...... 8
H. Other considerations ............................................................................................................ 9
Comparative Analysis of Military Justice Systems of Relevant Foreign Allies ........................... 10
Feasibility and Advisability .......................................................................................................... 12
A. Pilot program .................................................................................................................... 12
B. Alternative military justice system ................................................................................... 13
Conclusion .................................................................................................................................... 15
Appendix ....................................................................................................................................... 16
Relevant Foreign Allies’ Systems ............................................................................................ 16
Shadow Advisory Report Group of Experts ............................................................................ 18

 Introduction
Section 540F of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. No.
116-92, 133 Stat. 1198 (Dec. 19, 2019) (FY20 NDAA), calls for a report by the Secretary of
Defense on a proposal affecting the authority to prefer1 and refer2 felony-level charges in military
criminal cases. To assist the Secretary in the preparation of that report and to assist the Committees
on Armed Services in their eventual review of the Secretary’s report, the authors, each of whom
is an expert in military justice, have prepared this “shadow” advisory report. We anticipate
preparing a supplemental shadow report once the Secretary’s report has been submitted and made
public.
BLUF: A pilot program may be unnecessary because there is already ample reason to enact
the § 540F alternative system or something like it on a permanent basis, but we recognize that such
a program could yield real data and useful insights that would enrich congressional consideration
of proposals for permanent change. The Committees should conduct a substantive hearing before
establishing a pilot program, require progress reports, make those reports available for public
comment, and conduct a further hearing after the program is completed and the Secretary has
submitted an after-action report.
Section 540F
Section 540F is one of several military-justice-related provisions in the FY20 NDAA. It
provides:
SEC. 540F. REPORT ON MILITARY JUSTICE SYSTEM INVOLVING
ALTERNATIVE AUTHORITY FOR DETERMINING WHETHER TO PREFER
OR REFER CHA[R]GES FOR FELONY OFFENSES UNDER THE UNIFORM
CODE OF MILITARY JUSTICE.
(a) REPORT REQUIRED.—
(1) IN GENERAL.—Not later than 300 days after the date of the enactment of
this Act, the Secretary of Defense shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a report setting forth the
results of a study, conducted for purposes of the report, on the feasibility and
advisability of an alternative military justice system in which determinations as to
whether to prefer or refer charges for trial by court-martial for any offense specified
in paragraph (2) is made by a judge advocate in grade O-6 or higher who has
significant experience in criminal litigation and is outside of the chain of command
of the member subject to the charges rather than by a commanding officer of the
member who is in the chain of command of the member.
(2) SPECIFIED OFFENSE.—An offense specified in this paragraph is any
offense under chapter 47 of title 10, United States Code (the Uniform Code of

1

See Rule for Courts-Martial (R.C.M.) 307.

2

See R.C.M. 601.

 Military Justice), for which the maximum punishment authorized includes
confinement for more than one year.
(b) ELEMENTS.—The study required for purposes of the report under subsection
(a) shall address the following:
(1) Relevant procedural, legal, and policy implications and considerations of
the alternative military justice system described in subsection (a).
(2) An analysis of the following in connection with the implementation and
maintenance of the alternative military justice system:
(A) Legal personnel requirements.
(B) Changes in force structure.
(C) Amendments to law.
(D) Impacts on the timeliness and efficiency of legal processes and
court-martial adjudications.
(E) Potential legal challenges to the system.
(F) Potential changes in prosecution and conviction rates.
(G) Potential impacts on the preservation of good order and
discipline, including the ability of a commander to carry out
nonjudicial punishment and other administrative actions.
(H) Such other considerations as the Secretary considers appropriate.
(3) A comparative analysis of the military justice systems of relevant foreign
allies with the current military justice system of the United States and the
alternative military justice system, including whether or not approaches of the
military justice systems of such allies to determinations described in subsection
(a) are appropriate for the military justice system of the United States.
(4) An assessment of the feasibility and advisability of conducting a pilot
program to assess the feasibility and advisability of the alternative military
justice system, and, if the pilot program is determined to be feasible and
advisable—
(A) an analysis of potential legal issues in connection with the pilot
program, including potential issues for appeals; and
(B) recommendations on the following:
(i) The populations to be subject to the pilot program.
(ii) The duration of the pilot program.
(iii) Metrics to measure the effectiveness of the pilot program.
(iv) The resources to be used to conduct the pilot program.
There is no detailed legislative history on § 540F. The descriptions found in the Senate
Report3 and the Conference Report4 do not add to the enacted language. The President’s December

3

S. Rep. No. 116-48 (2019).

4

H. Conf. Rep. No. 116-333 (2019).

2

 20, 2019 signing statement5 makes no reference to the provision. Protect Our Defenders, an NGO,
has cited the measure as one of its 2019 legislative achievements.6
The following sections of this report track the required elements set forth in § 540F(b).
Procedural, Legal, and Policy Implications and Considerations
The alternative system7 has procedural, legal, and policy implications. These are
manageable, and the benefits exceed the costs.
Procedurally, the alternative system would leave in place the overall concept of the
convening authority, rather than abolishing them or shifting to a standing courts paradigm. It
would, however, sever for a class of “specified offenses”—those that can lead to more than a year’s
confinement8—the relationship between operational command and the disposition power.9 This is
a bridge that has already been crossed repeatedly. Thus, the UCMJ permits commanders to refer
for trial charges against personnel who are not of their command, or even in the same armed
5
Donald J. Trump, Statement by the President, Dec. 20, 2019, available at https://www.whitehouse.gov/briefingsstatements/statement-by-the-president-34/.
6

Protect Our Defenders, 2019 Annual Report 7 (2020).

7

The term “alternative system” may be a misnomer because § 540F leaves the architecture of the military justice
system largely intact. The only thing that will necessarily change is that for serious offenses the last word on whether
to charge and prosecute a member will lie with a legally-trained senior officer outside the member’s chain of
command. At present, such cases require advice from a judge advocate, and that advice can effectively kill a general
court-martial prosecution if certain findings are not made. Art. 34(a)(1), UCMJ, 10 U.S.C. § 834(a)(1) (2018). Under
§ 540F, instead of a judge advocate having that veto, a judge advocate will have to make an affirmative decision to
prefer charges and proceed with a trial for specified offenses. Since, however, § 540F describes this as an alternative
system, we use that term.
8

Depending on their gravity, offenses under the law of war might also be subject to the alternative system. Thus,
general courts-martial have jurisdiction not only over violations of the punitive articles by persons subject to the
UCMJ, but also “jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may
adjudge any punishment permitted by the law of war.” Art. 18(a), UCMJ, 10 U.S.C. § 818(a) (2018); R.C.M.
201(f)(1)(B), 203; see also Art. 21, UCMJ, 10 U.S.C. § 821 (2018). “In cases tried under the law of war, a general
court-martial may adjudge any punishment not prohibited by the law of war.” R.C.M. 1003(b)(1). In practice, the
United States does not use general courts-martial to try offenses against the law of war, whether committed by our
own personnel or by enemy personnel. The former are prosecuted under the applicable punitive article of the UCMJ,
See Dep't of Army, Pamphlet 27-1, Treaties Governing Land Warfare ¶ 507(b) (Dec. 7, 1956) (“Violations of the law
of war committed by persons subject to the military law of the United States will usually constitute violations of the
Uniform Code of Military Justice and, if so, will be prosecuted under that Code.”); e.g., United States v. Calley, 22
U.S.C.M.A. 534, 48 C.M.R. 19 (1973); for the latter, the United States could use a military commission.
9

What fraction of the military justice caseload would come within the ambit of § 540F is impossible to determine
from publicly-available data. The Army’s Article 146a, UCMJ, 10 U.S.C. § 946a (2018), report for FY18 states (at 9)
that “[o]f the 502 cases in which findings were entered in FY18, 246 of them, or 51 percent, included sexual
misconduct related offenses (Articles 120, 120b, and 120c).” The maximum punishment for offenses under each of
those punitive articles qualifies them as specified offenses under § 540F(a)(2). Since some non-sex-offense cases in
which findings were entered during the same period would also have entailed serious potential maximum punishments
under the Manual for Courts-Martial, the alternative system will apply to more than a bare majority of courts-martial.
(The Army’s report also does not quantify the larger number of cases that were preferred or referred.) The Committees
should obtain complete and, importantly, comparable data from all of the services in order to gauge how much of the
overall military justice caseload would be subject to the alternative system.

3

 force.10 At least since Tailhook, the armed forces have relied on the Consolidated Disposition
Authority model when personnel from more than one command or armed force face charges that
grow out of a single or related set of circumstances. What is more, the Navy has relied on regional
commanders to exercise the powers of a general court-martial convening authority over personnel
who are assigned to operational naval commands of every description. There is therefore nothing
new in the idea that for some offenses the disposition decision need not be made by an officer in
the accused’s operational chain of command. That being the case, there can be no objection in
principle to that decision being made by an officer who has no operational role at all.11
Brig. Gen. John S. Cooke, one of the most gifted judge advocates of recent times, explained
the 1983 UCMJ reforms as part of progress toward “a true judicial system” for military justice:
In essence, enacting the UCMJ was the beginning of an effort to erect a true judicial
system within the body of the military organization. This marked a radical shift.
Instead of asserting, as General Sherman and many others did, that civilian forms
and principles of justice are incompatible with military effectiveness, this effort
rested on the largely untested precept that military effectiveness depends on justice,
and that, by and large, civilian forms and principles are necessary to ensure
justice.12
Despite this, there are those who resist any shift away from the commander’s historic
central role in military justice, a role that dates to the American Articles of War the Continental
Congress copied from George III’s 1774 Articles of War. Over the last century and more, that role
has been cabined in a host of ways with no adverse effect on the good order and discipline or
effectiveness of America’s armed forces. Examples include requiring a pretrial investigation (now
called a preliminary hearing),13 prescribing qualifications for members14 and (non-binding)
guidance for disposition decision-making,15 requiring review by higher authority (notably, for the
last 100 years, in capital cases)16 and pretrial advice from a judge advocate,17 abandoning the
traditionally unfettered post-trial clemency “for any reason or for no reason,”18 prohibiting

10

R.C.M. 201(e).

11
The convening authority for military commissions, see Military Commissions Act of 2009, 10 U.S.C. § 948h (2018);
R.M.C. 401, has no operational mission. See Dep’t of Defense, Regulation for Trial by Military Commission ¶ 2-3
(2011 ed.). That official need not even be a military officer.
12

Brigadier General John S. Cooke, The Twenty-Sixth Annual Kenneth J. Hodson Lecture: Manual for Courts-Martial
20X, 156 MIL. L. REV. 1, 8-9 (1998) (internal citation omitted).
13

Art. 32, UCMJ, 10 U.S.C. § 832 (2018).

14

Art. 25(e)(2), UCMJ, 10 U.S.C. § 825(e)(2) (2018).

15

Art. 33, UCMJ, 10 U.S.C. § 833 (2018); Manual for Courts-Martial, United States (2019 ed.), App. 2.1.

16

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1744, 127 Stat. 980 (2013), as
amended by Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015,
Pub. L. No. 113–291, § 541, 128 Stat. 3371 (2014).
17

Art. 34, UCMJ, 10 U.S.C. § 834 (2018).

18

See R.C.M. 1107(d)(1) (former version); see Arts. 60a, 60b, UCMJ, 10 U.S.C. §§ 860a, 860b (2018).

4

 convening authorities from requiring reconsideration19 (much less directing a particular outcome
on reconsideration),20 creating and empowering military judges21 (who are now vested with pretrial
powers),22 providing tier upon tier of appellate review,23 and attempting (albeit with limited
success) to root out command influence.24 All of these actions and a host of others large and small
have, in one way or another, reduced commanders’ original sweeping authority over the
administration of military justice. The alternative system is a justified incremental step in the same
overall direction. It leaves in commanders’ hands the things that belong there, and it provides a
mechanism for ensuring that the invaluable insights they will have on how any particular case may
impact on such critical matters as mission readiness, command climate, and unit cohesion are taken
into account in the disposition decision. We believe the result is a win-win.
Implementation and Maintenance of the
Proposed Alternative Military Justice System
A. Legal personnel requirements
The alternative system should impose few if any additional requirements for legal
personnel. Unless a different approach were adopted, each service will need to dedicate one or
more O-6-or-above judge advocates to make disposition decisions. These can be assigned from
among current personnel rather than having to add bodies or “rob Peter to pay Paul.” Our
impression is that it would be no problem for each armed force to shift an existing O-6 billet from,
for example, its Court of Criminal Appeals, or some other qualified member(s) of its roster of
senior staff judge advocates.
B. Changes in force structure
We have no information on whether the alternative system would entail changes in force
structure. A § 540F judge advocate will need a small staff.
C. Amendments to law
The alternative system should not be implemented without a careful review of both the
Uniform Code of Military Justice and the Manual for Courts-Martial for any necessary
corresponding changes. For example, the non-UCMJ measures Congress has enacted for further

19

See Art. 62, UCMJ (former version).

20

United States v. Ware, 1 M.J. 282 (C.M.A. 1976) (invalidating Manual for Courts-Martial, United States (1969 ed.)
¶ 67f).
21

Arts. 26, 39(a), UCMJ, 10 U.S.C. §§ 826, 839(a) (2018).

22

Art. 30a, UCMJ, 10 U.S.C. § 830a (2018).

23

Arts. 66, 67, 67a, UCMJ, 10 U.S.C. §§ 866, 867, 867a (2018); 28 U.S.C. § 1259 (2018).

24

Art. 37, UCMJ, 10 U.S.C. § 837 (2018); but see FY20 NDAA § 532 (clarifying for future effect that the rule of
harmless error applies to command influence).

5

 review of disposition decisions in cases involving sex offenses25 would presumably be suspended
pro tanto during a § 540F pilot program and repealed as no longer needed if the alternative system
were enacted on a permanent basis.
It would be anomalous for a commander to retain the power to detail members for the trial
of specified offenses over which they lack disposition power. The convening authority’s power to
detail members has proven to be an invitation to seemingly endless corner-cutting, mischief, and,
inevitably, litigation.26 Deck stacking27 and the exclusion of statutorily-eligible personnel in higher
or lower pay grades28 aside, few general court-martial convening authorities under the current
system are in a position to determine whether potential members are “best qualified” for purposes
of the critical statutory trait of “judicial temperament.”29 Congress might wish to create a courtmartial administrator (as other countries have done) and end the dangerous fiction that pervades
today’s largely unenforceable30 member selection standards.
It would also be anomalous for anyone other than the § 540F judge advocate to wield the
power to enter into pretrial agreements or act on requests for administrative separation in lieu of
trial in cases in which the disposition power was vested in a § 540F judge advocate.
D. Impacts on the timeliness and efficiency of
legal processes and court-martial adjudications
The military justice system moves too slowly. The alternative system should somewhat
reduce case processing times since the decision maker will be an attorney fully and intimately
aware of the system and the standards that govern charging decisions, instead of having to come
up to speed. At present, few if any convening authorities can claim that kind of familiarity.
Additionally, the § 540F judge advocate will not have to balance the complex demands of making
disposition and related decisions with the host of duties—many of them both urgent and timeconsuming—that necessarily compete for commanders’ limited time. Whatever knowledge base a
convening authority may accumulate under the current system, routine personnel turbulence means
that much of that experience must be regained with every new commander. In contrast, the
alternative system is predicated (we hope) on the notion that the charging official will enjoy a
stable, if not a fixed, tour of duty. Pilot program § 540F judge advocates should remain in their
billets throughout the life of the program in order to achieve consistent decision-making and
provide as rigorous test of the alternative system as possible.
25

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1744, 127 Stat. 980 (2013), as
amended by Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015,
Pub. L. No. 113–291, § 541, 128 Stat. 3371 (2014).
26
See generally EUGENE R. FIDELL, ELIZABETH L. HILLMAN, JOSHUA E. KASTENBERG, FRANKLIN D. ROSENBLATT,
DWIGHT H. SULLIVAN & RACHEL E. VANLANDINGHAM, MILITARY JUSTICE: CASES AND MATERIALS § 11.2 (3d ed.
2020).
27

E.g., United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018).

28

E.g., United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000).

29

Art. 25(e)(2), UCMJ, 10 U.S.C. § 825(e)(2) (2018).

30

See, e.g., United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (violation of Art. 25(d)(2), UCMJ, 10 U.S.C. §
825(d)(2), found harmless).

6

 Important as they are, timeliness and efficiency are not the only perspectives from which
the impacts of the alternative system should be evaluated. More fundamental is the positive impact
the alternative system would have on trust and confidence in the military justice system among
those who are subject to it (and their families).
E. Potential legal challenges to the alternative system
Congress has authority under Article I, § 8, cl. 14, of the Constitution to “make rules for
the government and regulation” of the armed forces. Its legislative choices will not be disturbed
by the courts unless there are factors “so extraordinarily weighty as to overcome the balance struck
by Congress.”31 If it enacts the alternative system either permanently or merely as a pilot program,
we know of no basis on which it could be found unconstitutional. This is not to say that the
alternative system will not spawn legal issues of one kind or another—experience teaches that it
will—but challenges, if any, to the validity of the system itself will be fruitless. In particular, a
Fifth Amendment equal protection32 challenge based on the notion that during the pilot program
some major offenses would be subject to the alternative system while others would not be subject
to it would fail. “[R]eform may take one step at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind. The legislature may select one phase of one field
and apply a remedy there, neglecting the others.”33
F. Potential changes in prosecution and conviction rates
Without a pilot program, there is no way of knowing whether the alternative system would
affect the number of prosecutions. As a matter of logic, one can posit that some convening
authorities under the current command-centric system elect not to pursue some cases because they
know and either like or value the accused or because they do not wish superiors to believe that
their command is rife with criminality. On the other hand, some convening authorities under the
current system may pursue cases, especially sex cases, that might not genuinely merit prosecution
because they fear congressional ire.34 Or they may send a marginal or undeserving case to trial
simply in order to afford the victim his or her “day in court.” Above all, because there are multiple
convening authorities, referral decisions may vary dramatically from command to command. The
alternative system would reduce the variation, and presumably the § 540F judge advocate would
feel less vulnerable to congressional pressure. That official would also be immune to other factors
such as concern over an operational command’s reputation for criminality, personal familiarity
with the accused, or the accused’s value to the operational command. In our opinion, however, the
31

Weiss v. United States, 510 U.S. 163, 177-78 (1994) (quoting Middendorf v. Henry, 425 U.S. 25, 44 (1976)).

32

See Bolling v. Sharpe, 347 U.S. 497 (1954).

33

Williamson v. Lee Optical, 348 U.S. 483, 489 (1955).

34

Congress should take steps to deter improper congressional influence on the administration of justice in individual
cases. The Committees may wish to develop an internal code of conduct or some other memorialization of a norm that
would discourage members, committees, and staff from seeking to influence decision-making in pending cases. For a
potential
model
see
N.Z.
Parl.
Standing
Orders
115-16
(2017),
available
at
https://www.parliament.nz/en/pb/parliamentary-rules/standing-orders-2017-by-chapter/chapter-3-generalprocedures/#_Toc490062854 .

7

 effect of the alternative system on the prosecution rate is immaterial because the goal must not be
merely to drive up that rate but to foster more consistent disposition decision-making and improved
public confidence in the administration of justice.
The alternative system may increase conviction rates because disposition decisions by an
attorney are more likely to weed out cases that are marginal in terms of successful outcomes at
trial or on appellate review. The current spike in acquittals in sex cases is concerning because it
reduces general deterrence (i.e., some potential malefactors may be tempted to take their chances)
and in general degrades public confidence in official decision-making. That said, the alternative
system should be evaluated not in terms of its actual or potential impact on the conviction rate for
serious cases (assuming that impact could ever be assessed more than impressionistically over a
reasonable period) but in terms of its impact on fairness, consistency of decision-making in the
disposition of offenses, and above all, public confidence in the administration of justice.
Congress should not expect that at the end of the pilot program it will be presented with
hard numbers that will suggest, much less prove, that the alternative system will increase or
decrease or have no effect on prosecution and conviction rates (or, for that matter, sentences).
There are simply too many variables and any effort to distill the experience into anything
resembling a hard delta between the current system and the alternative system is certain to be
picked to death. Congress should instead view the alternative system as reflecting a policy
judgment reflecting contemporary American values and experience as to who should make
charging decisions in criminal cases, not as an arid exercise in number crunching.
G. Potential impacts on the preservation of good order and discipline,
including the ability of a commander to carry out nonjudicial
punishment and other administrative actions
The alternative system would, if anything, improve good order and discipline by providing
a criminal justice process that is faster, smarter, and less vulnerable to unlawful influence and
command- or commander-specific variation. As discussed below, the alternative system should
provide for commanders to inform the § 540F judge advocate of any accused-, victim-, or
command-specific considerations that could affect good order and discipline or unit morale or
cohesion. Congress should make clear that the alternative system leaves fully intact the
commander’s important existing nonjudicial punishment authority over (as Congress has long
provided)35 minor cases as well as the administrative separation process as well as the full range
of customary corrective measures that do not constitute disciplinary action within the meaning of
the UCMJ.36

35

Art. 15(b), UCMJ, 10 U.S.C. § 815(b) (2018); Manual for Courts-Martial, United States (2019 ed.), Pt. V, ¶ 1e.

36

See Manual for Courts-Martial, United States (2019 ed.), Pt. V, ¶ 1d.(1). “Article 15 and Part V of this Manual do
not apply to, include, or limit use of administrative corrective measures that promote efficiency and good order and
discipline such as counseling, admonitions, reprimands, exhortations, disapprovals, criticisms, censures, reproofs,
rebukes, extra military instruction, and administrative withholding of privileges. See also R.C.M. 306. Administrative
corrective measures are not punishment and they may be used for acts or omissions which are not offenses under the
code and for acts or omissions which are offenses under the code.” Id. ¶ 1g.

8

 H. Other considerations
Section 540F(a)(1) requires that the judge advocate exercising disposition authority over
covered offenses have “significant experience in criminal litigation.” Congress should either
define that term or require the Secretary to do so. The same standard should apply to each service.
The following criteria could usefully be considered:
•
•
•
•
•
•
•

Admission to the bar of a state or federal court for at least 10 years
Practice of criminal law in a civilian or military capacity for at least five years
(i.e., excluding out-of-specialty assignments)
Service as trial, defense, or victims’ counsel for at least five years, including
being lead counsel in ten or more contested cases
Service as a staff judge advocate to a general court-martial convening authority
for at least two years
Service as a military judge or appellate military judge for at least three years
Possession of an LL.M. in criminal law
A clean record of civilian and military bar discipline

Section 540F(a)(1) also provides that the judge advocate exercising disposition authority
over covered offenses be “outside of the chain of command of the member subject to the charges
rather than by a commanding officer of the member who is in the chain of command of the
member.” We wonder if there is a simpler way to say this, such as, simply, “outside the chain of
command of the charged individual.” “Individual” is preferable to “member” since “member”
refers to those who form the court-martial panel and in rare circumstances the accused may not be
a member of the armed forces.37
The Committees should focus carefully on the effective date of the pilot program. In
particular, must or should it apply only to offenses committed after enactment of the authorizing
legislation or can and should it extend to offenses committed before then? In our view, the
alternative system can and should be applied without regard to the date of offense. Otherwise, the
pilot program would be starved of cases and the data on which Congress would have to evaluate
it from the standpoint of whether to make the alternative system permanent would be diminished.
To avoid this, Congress would need to make the pilot program longer, and the longer the program
the less it looks like a test run and the more it looks like a permanent change. Because the
alternative system would not adversely affect any right currently enjoyed by offenders, Congress
need not be concerned about a legal challenge to the inclusion of pre-enactment cases in the pilot
program.
The alternative system may have implications for the funding of courts-martial. Will the
serious-offenses decision maker be able, in effect, to spend the accused’s command’s money? Or
will § 540F judge advocates have their own funding? What role does cost currently play in the
disposition of what would be specified offenses under § 540F? What role should cost play in
disposition decision-making and triage for major cases? Is it sufficient to afford the accused’s
command an opportunity to note budgetary implications when commenting to the alternative
37

E.g., United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012).

9

 system disposition authority on the traditional offense- and accused-specific factors? Budgetary
and accountability issues should be examined, and we assume they will be noted in the Secretary’s
report. Since the services have already faced these issues in connection with the Consolidated
Disposition Authority mechanism, they are not an insuperable obstacle.
Comparative Analysis of Military Justice
Systems of Relevant Foreign Allies
Section 540F(b)(3) calls for a comparative analysis of the military justice systems of
“relevant foreign allies” and the current United States system and the proposed alternative system.
The gist of the alternative system is easily described. No offense for which the maximum
authorized punishment exceeds one year’s confinement may be tried or even preferred without the
approval of an O-6 or above judge advocate who is outside the accused’s chain of command. The
current U.S. system is far more complicated.38 Generally speaking, the ultimate decision as to how
charges of any kind should be disposed of under the UCMJ rests with a commander, called a
convening authority. Convening authorities need not be lawyers, and vanishingly few are.39 Over
the years, Congress has imposed a variety of constraints on the convening authority’s disposition
power. These include requirements for a pretrial investigation (now called a preliminary hearing)40
and pretrial advice from a staff judge advocate before a case can be referred to a general courtmartial.41 Under current law, a convening authority may not refer a case to a general court-martial
unless the staff judge advocate finds that the specification alleges an offense under this chapter;
that there is probable cause to believe that the accused committed the offense charged; and that a
court-martial would have jurisdiction over the accused and the offense.42 An adverse finding on
any of these prevents a convening authority from referring the case to trial. Congress has also
enacted provisions that are limited to sex offenses and further dilute the convening authority’s
power to dispose of charges.43
How does this system compare with those of “relevant foreign allies”? Section 540F(b)(3)
does not define that phrase. There is no single official list of America’s allies,44 much less one that
identifies allies by their relevancy or not for military justice comparative purposes. As a result,
38

See generally Eugene R. Fidell, Rube Goldberg and Military Justice, Just Security, Apr. 6, 2020.

39

An alternative to the proposed alternative system would be to create for each armed force a “Court-Martial
Command” or a “Military Justice Command” commanded by a uniformed lawyer and to require that all charges of a
given nature or gravity be referred to that commander for disposition. See Eugene R. Fidell, Military Justice Reform,
the 2020 Pledge, and the President’s Power, Just Security, Feb. 14, 2020. This could be tested on a trial basis without
any change in the UCMJ.
40

Art. 32, UCMJ, 10 U.S.C. § 832 (2018).

41

Art. 34(a)(1), UCMJ, 10 U.S.C. § 834(a)(1) (2018).

42

Id.

43

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1744, 127 Stat. 980 (2013), as
amended by Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015,
Pub. L. No. 113–291, § 541, 128 Stat. 3371 (2014).
44

See generally Lindsey Ford & James Goldgeier, Who are America’s allies and are they paying their fair share of
defense?, Policy 2020, Brooking Inst., Dec. 17, 2019.

10

 some judgment must necessarily be exercised in defining the § 540F(b)(3) class. In 2017 The New
York Times reported on a survey that listed the top 15 countries Americans consider our allies.45
The Appendix to this report sets forth the arrangements in place in those countries for the
disposition of serious offenses by military personnel. As far as we have been able to determine,
not one of those countries permits non-lawyer commanders to order the trial of serious offenses
by court-martial.46 A number no longer use courts-martial at all, relying instead on civilian law
enforcement to prosecute cases. All of them recognize the doctrine of command responsibility;
none have found it necessary for commanders to retain disposition authority in order to
accommodate that doctrine.47
Although § 540F(b) does not require a comparison with domestic civilian arrangements for
decision-making on who shall be prosecuted for serious criminal offenses, such a comparison is
worth keeping in mind. It shows that the alternative system is consonant with contemporary
American legal institutions. In the federal courts, the Fifth Amendment requires indictment by
grand jury for felonies.48 The defendant may of course waive that right,49 in which case the decision
to prosecute rests with lawyers employed by the Department of Justice. Federal grand jurors need
not be (and typically are not) lawyers, but even if that lay body returns an indictment, it remains
within the authority of the federal prosecutors to try the case.50 Federal prosecutors may refuse to
prosecute on an indictment without the consent of the grand jury or the approval of a judge. In the
state courts, the due process clause of the Fourteenth Amendment51 does not require indictment by
45

See Josh Katz & Kevin Quealy, Which Country Is America’s Strongest Ally?, N.Y. Times, The Upshot, Feb. 3,
2017, permalink https://nyt.ms/2k8V0PF.
46

For earlier comparative studies see Law Library of Congress, Military Justice System,
https://www.loc.gov/law/help/militaryjustice/index.php; Gov’t of Israel, The Public Commission to Examine the
Maritime Incident of 31 May 2010 (Turkel Commission), 2d Report, Israel’s Mechanisms for Examining and
Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law,
Annex C (2013), available at https://www.gov.il/BlobFolder/generalpage/downloads_eng1/en/ENG_turkel_eng_b1474.pdf.
47

A commander who puts charges into the hands of a functioning, non-sham military prosecution system will have
done what international humanitarian law demands. “With respect to necessary and reasonable measures to ensure the
punishment of suspected war criminals, the [International Criminal Tribunal for the Former Yugoslavia] held in
the Kvočka case in 2001 that the superior does not necessarily have to dispense the punishment but ‘must take an
important step in the disciplinary process’ [§ 714]. In its judgment in the Blaškić case in 2000, the Tribunal held that
‘under some circumstances, a commander may discharge his obligation to prevent or punish an offence by reporting
the matter to the competent authorities’ [§§ 709, 757].” Int’l Comm. of the Red Cross, IHL Database, Customary IHL,
R. 153, Command Responsibility for Failure to Prevent, Repress or Report War Crimes, available at https://ihldatabases.icrc.org/customary-ihl/eng/docs/v1_rul_rule153#Fn_91BB58A0_00033 (footnotes omitted). See generally
Situation in the Central African Republic (Case of Jean-Pierre Bemba Gombo), ICC01/05-01 A (ICC App. Ch. June
8, 2018).
48

U.S. Const. amend. 5.

49

Fed. R. Crim. P. 7(b).

50
Leave of court is required to dismiss an indictment or information. Fed. R. Crim. P. 48(a); see also U.S. Dep’t of
Justice Manual §§ 9-2.040, 9-2.050. The court cannot compel a United States Attorney to sign an indictment. United
States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert. denied, 381 U.S. 935 (1965). “[T]he Executive Branch has
exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S.
683, 693 (1974) (dicta).
51

U.S. Const. amend. 14.

11

 grand jury,52 and few states require indictment by grand jury for felonies as a matter of state law.
In any event, the decision to prosecute a felony charge remains with lawyer prosecutors, subject
to dismissal if a judge finds a lack of probable cause. Federal and state prosecutors have power to
nolle prosequi a charge without court approval. The non-lawyer convening authority’s current
power to compel a court-martial on a felony-level offense is thus a substantial departure from
contemporary American civilian criminal procedure.
Feasibility and Advisability
A. Pilot program
The pilot program outlined in § 540F(a) is feasible. In our opinion, Congress could proceed
directly to enactment of the alternative charging system, rather than deferring action for a lengthy
period on the longstanding structural issue related to the charging process. Effecting this overdue
reform in two steps will unquestionably complicate military legal instruction for both commanders
and judge advocates. We recognize, however, that the interim measure of a pilot program, if
properly framed and executed with a make-it-work mindset, may be productive in the sense of,
first, affording members of both Houses as well as military leaders and other responsible Executive
Branch officials a basis for confidence in the desirability of the change and, second, improving the
prospects for its long-run success on the ground.
The pilot program should be sufficiently capacious and of sufficient duration to afford
reasonable assurance that, when it is complete and the results have been fully documented,
Congress will have a firm basis on which to decide whether the alternative system should replace
the current system for the disposition of charges. Advance buy-in to these criteria will thwart
predictable claims that the pilot program was not sufficiently probative.
To this end, the Group of Experts recommends:
1. The pilot program should be conducted in at least two armed forces. The service chiefs
should be asked to volunteer their branches for this purpose. If fewer than two service
chiefs volunteer their branches, the Secretary of Defense, in consultation with the
Chairman of the Joint Chiefs of Staff, should determine which branch or (if there are
no volunteers) branches shall participate in the pilot program. Because of its size, the
U.S. Coast Guard should not be included in the pilot program. Military departments
that include more than one armed service (the Department of the Navy and the
Department of the Air Force) may limit the pilot program to a single service.53
52

Hurtado v. California, 110 U.S. 516 (1884).

53
The pilot program should not include the National Guard. Congress has power “[t]o provide for organizing, arming,
and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress,” U.S. Const. art. I, § 8, cl. 16, but has left it to the states and
territories to decide what punishments should be authorized when the National Guard is in Title 32 status. 32 U.S.C.
§ 326 (2018). Fewer than 20 permit punishments that meet § 540F(a)(2)’s more-than-a-year threshold, but we doubt
they actually try such offenses. If, down the road, Congress substitutes the alternative system for the current one, states
and territories will likely follow suit voluntarily.

12

 2. The service chiefs for the branches that will conduct a pilot program for the alternative
system should be required to submit to the Secretary of Defense and the Committees a
common protocol for the program. The common protocol will include a designation of
the commands, regions or areas of responsibility that will employ the alternative system
and a framework for data gathering, analysis and report generation. Data gathering and
analysis must be consistent across branch lines.
3. Details of the pilot program should be the same for the participating branches. Any
material disparities in implementation of the common protocol should be kept to the
absolute minimum, fully disclosed in the pilot program initial and subsequent reports,
and justified by objectively verifiable service-specific exigencies.
4. The pilot program should last three years. The three-year period should not include
time spent in pre-program preparation or post-program analysis and should start and
end on the same dates for both participating branches. Results from any shorter period
will be subject to challenge on the ground that the trial was insufficient; a longer period
will unduly delay congressional action on what is already an overdue reform.
5. The common protocol should be provided to the Committee at least four weeks before
the pilot program’s alternative system goes into effect. Periodic reports should be
required every six months during the life of the pilot program, and a single, integrated
joint final report, including the views of the Secretary and the Chairman of the Joint
Chiefs of Staff, should be required no later than three months after expiration of the
pilot program. The findings, reports, and recommendations should be made available
to the public.
B. Alternative Military Justice System
The alternative system outlined in § 540F(a) is feasible and desirable, although a variety
of features will need to be fleshed out.54 The experience of other democratic countries that rely on
courts-martial for the trial of serious offenses by military personnel with the charging power vested
in a lawyer rather than a lay commander demonstrates that such a system can be put in place
without compromising the effectiveness of the nation’s defense capability. Judge advocates are
bound by service and civilian professional responsibility, unlike lay commanders. While there are
obviously various ways to define the class of offenses that would be subject to the alternative
system, such as confining it to general court-martial referrals, use of the maximum permissible
confinement for more than one year is a reasonable, logical, easy-to-administer yardstick that is
consonant with familiar categories of American criminal law. If the pilot program suggests that
some different yardstick would be better, we would be happy to consider it, but at this time we
believe the one-year cut-off is a fair and easy to administer standard for distinguishing between
cases that are essentially disciplinary and should therefore remain within the disposition power of
commanders and those that should not.

54

Further attention should in particular be paid to whether the alternative system should include the preferral phase,
as § 540F contemplates. We have taken the measure as a given for purposes of this shadow report.

13

 The alternative system should include the following protections:
1. The § 540F judge advocate should be afforded a fixed term of office and,
equally importantly, included in the list of officials who are protected against
command influence. At present, staff judge advocates are not included on that
list.55
2. The § 540F judge advocate should be an active member in good standing of the
bar of the highest court of a state.
3. The § 540F judge advocate should apply the Non-Binding Disposition
Guidance required by Article 33, UCMJ, and set forth in Appendix 2.1 to the
Manual for Courts-Martial, United States (2019 ed.).
4. The § 540F judge advocate should be responsible for fulfilling all statutory and
regulatory obligations toward victims with respect to referral and pretrial
agreements.
5. The decision to prosecute should be governed by the same evidentiary standards
as those that are applied by civilian federal prosecutors.
6. The § 540F judge advocate should be forbidden to engage in ex parte
communications with commanders concerning specific cases or categories of
cases.
7. The accused’s commander should be afforded a reasonable opportunity to
submit a statement in writing regarding whether the accused should be charged
and pointing to any relevant considerations related to the effect of the accused’s
misconduct on the command’s effectiveness and morale. Copies of any such
submission should be provided in a timely fashion to the accused and any victim
for comment. Because disposition authority will rest with an official other than
the commander and the commander’s submission will not be ex parte, the
danger of unlawful influence will be reduced.
8. Conversely, the accused and any victim should be afforded a reasonable
opportunity to submit a statement in writing regarding the disposition of the
charge, a copy of which should be provided in a timely fashion to the command
and either the victim or the accused, as the case may be.
9. All disposition decisions should be in writing (including a brief explanation),
and copies sent, with any related submissions by commanders, defense counsel,
and victim’s counsel, to a single central repository for each service, such as the
Clerk of Court of the Court of Criminal Appeals.
The Secretary’s report should address the following additional questions:
1. Should there be more than one § 540F judge advocate in any service branch?
Indeed, should there be a single “purple” § 540F judge advocate for all of the
armed forces, by analogy to the Assistant Attorney General in charge of the
Criminal Division? In this connection, the Committees may wish to consider
whether the expense associated with having multiple § 540F judge advocates is
55

Art. 37, UCMJ, 10 U.S.C.A. § 837; R.C.M. 104. Making § 540F JA duty a terminal assignment for a senior judge
advocate would be an added protection against command influence and would help ensure that the incumbent brought
the broad perspective and wealth of experience needed for the task.

14

 justified given the specified offense caseload in each service and across the
armed forces as a whole.56 Mindful that despite having enacted a single
disciplinary statute in 1950, Congress has permitted each of the armed forces to
remain largely autonomous for military justice purposes, the Group of Experts
believes that, as far as specified offenses are concerned, there is no basis for
tolerating the application of different disposition standards from one service
branch to another. If sexual assault in the 82d Airborne Division is as
impermissible as it is in the 10th Mountain Division, so too, rape by a Soldier
or sailor is as reprehensible as it is by a Marine or member of the Space Force.
Conclusion
Although the Group of Experts believes Congress could move to the alternative system or
some variant now, we defer to the judgment of Congress and the President that a pilot program
along the lines of § 540F and as elaborated here can be a worthwhile exercise. We hope this shadow
report will be helpful to the Committees and the Secretary of Defense and would welcome an
opportunity to testify on any hearings the Committees conduct on § 540F.

56

Having a single § 540F judge advocate for all of the armed services would justify making this a terminal assignment
for a flag or general officer. Such an officer, especially if afforded a nonrenewable fixed term of office at least as long
as that of appellate military judges, would be more likely to be bombproof against command influence. An otherwise
qualified retired flag or general officer judge advocate could be recalled to active duty for a fixed period for this
purpose.

15

 Appendix
Relevant Foreign Allies’ Systems
Country
Australia
Belgium
Canada

Denmark

France

Germany

Ireland

Israel

Comment
Charging decisions are made by the Director of Military Prosecutions, a
serving general officer outside the chain of command.
Belgium no longer has courts-martial. Criminal offenses by military
personnel are prosecuted by regular civilian authorities.
According to § 165.1(1) of the National Defence Act (NDA), the
Minister may appoint an officer with at least 10 years standing at the bar
to be Director of Military Prosecutions (DMP). According to § 165.11,
the DMP is responsible for preferring all charges to be tried by courtmartial. According to subsection 165 (1), a person may be tried by
court-martial only if a charge against the person is preferred by the
DMP.
Denmark abolished courts-martial in 1919. Serious criminal cases are
tried in the regular civilian courts. The decision to prosecute is made by
the Military Chief Prosecutor, subject to review by the Military
Prosecutor General.
Offenses committed within the country in peacetime are tried in the
regular civilian courts. Offenses committed outside the country are tried
in selected regular courts by a special chamber but presided over by
civilian judges. Charging decisions are made in either case by lawyers,
not commanders.
Germany no longer has peacetime courts-martial. Criminal cases are
tried in the civilian courts and charging decisions are made by regular
civilian authorities. Venue for the trial of offenses by deployed
personnel is centralized in the civilian court in Kempten, Bavaria. See
Act for Venue for Armed Forces Under Special Deployment Abroad,
Jan. 21, 2013.
Charging decisions in serious cases are made by the Director of Military
Prosecutions (DMP), a serving officer who is appointed by the
Government and is subject to the supervision of the Attorney General.
The DMP makes the final decision as to whether a case will be
prosecuted before a court-martial. This mirrors the position in the
civilian criminal justice system, where the Director of Public
Prosecutions makes the final decision as to whether a case will be
prosecuted before a civilian criminal court. The DMP is independent in
the performance of his functions.
Charging decisions are made by judge advocates whose sole
commander is the Military Advocate General (MAG), a general officer.
IDF JAGs are not under the command of Area Commanders (Central,
Southern, Northern, Home Front) or Force Commanders (Air Force,
Navy). Decisions by the MAG are subject to review by the Israel
Supreme Court sitting as the High Court of Justice.

16

 Italy

Netherlands

New Zealand
Norway
Sweden
Switzerland

United Kingdom

Charging decisions in the Italian military justice system are made by
judge advocates, who are professional military magistrates. They are
attached to the military court system and are fully independent of the
chain of command. The military justice system is organized along the
same principles as the civilian criminal justice system and consists of
nine Military Tribunals (of first instance) and a Court of Military
Appeals in Rome, with so-called Branch Courts of Appeal in Verona
and Naples. The civilian Court of Cassation acts as ‘Supreme Court’,
also for military criminal cases. A ‘chamber’ of a military tribunal
consists of two full-time military magistrates, one of whom presides,
and one officer/lay-member, of at least the same rank as the defendant.
Lay-members are chosen by lot and rotate every two months, to ensure
independence and impartiality.
The Netherlands no longer has courts-martial. Criminal cases are tried
in the military chamber of the Arnhem District Court, with charging
decisions made by Public Prosecutors with broad experience in military
cases, subject to oversight by the Chief Public Prosecutor attached to the
Arnhem Courts. Charging decisions are subject to judicial review,
including appellate review by the military chamber of the Arnhem Court
of Appeal and the Supreme Court. Both Arnhem military chambers
include a serving judge advocate in the rank of either Captain
(N)/Colonel or Rear Admiral (lower half)/Air Commodore/Brigadier
General, not subject to the military chain of command.
Charging decisions in serious cases are made by the Director of Military
Prosecutions, a serving senior officer, subject to oversight by the
Solicitor General.
Norway no longer has courts-martial. Criminal offenses by military
personnel are prosecuted by the Military Prosecuting Authority, a
specialized branch within the Norwegian Prosecuting Authority.
Sweden no longer has courts-martial. Criminal offenses by military
personnel are prosecuted by regular civilian authorities.
“Military criminal proceedings are initiated on the orders of the
battalion commander or course commander, and by the Armed Forces
Attorney General in the case of offences committed while not on duty or
of violations of international law. Should a commanding officer refuse
to initiate court proceedings where such proceedings are required in the
opinion of the military examining magistrate, then the Armed Forces
Attorney General may issue the order to conduct an investigation
instead of the commanding officer.” “Other than in cases where the
commanding officer is responsible, the Armed Forces Attorney General,
in his function as chief prosecutor in matters of military criminal law
under the military justice system, initiates criminal proceedings and
supervises their proper conduct and completion.”
Charging decisions in serious cases are made by the Director of Service
Prosecutions, who may be either a civilian or a serving senior officer
and is subject to supervision by the Attorney General.

17

 Shadow Advisory Report Group of Experts (SARGE)
His Honour Judge Jeff Blackett is Judge Advocate General of the UK Armed Forces. He has served
as JAG, a judicial position, for 16 years, following his retirement from the Royal Navy in the rank
of Commodore. His last naval assignment was Director of Naval Legal Services. He is also a parttime Judge of the High Court. He is the author of The Court Martial and Service Law (Oxford 3d
ed. 2010).
Walter T. Cox III served on the U.S. Court of Military Appeals and the U.S. Court of Appeals for
the Armed Forces from 1984 to 1999. He was Chief Judge in 1994-99 and Senior Judge in 19992000. Judge Cox graduated from Clemson University and the University of South Carolina School
of Law. A Distinguished Military Graduate of Army ROTC, he served on active duty in 1964-73.
Before his appointment to the Court of Military Appeals, he was in private law practice and was
South Carolina state trial judge and acting Associate Justice of the State Supreme Court. He has
taught at Duke University School of Law and the Charleston School of Law and chaired the
National Institute of Military Justice’s Commission on the 50th Anniversary of the Uniform Code
of Military Justice and the follow-on Commission on Military Justice in 2009.
John C. Dehn is Associate Professor of Law, Loyola University Chicago. A West Point graduate,
he retired after 23 years on active duty, including airborne artillery and legal assignments. After
law school, he served as a trial counsel, prosecuting detainee abuse and other cases, before
returning to West Point as a faculty member. He holds two LL.M. degrees and was a James Kent
Scholar at Columbia Law School. His research has been published in top national and international
legal journals and examines how domestic and international law regulate U.S. war powers and the
U.S. military.
Colonel-Maître® Michel W. Drapeau is an attorney in private practice in Ottawa. He retired from
the Canadian Army after 34 years as a combat logistician. He is an Adjunct Professor at the
University of Ottawa Faculty of Law and co-author of Military Justice in Action (Thompson
Carswell 2d ed. 2015). He has testified before Canadian parliamentary committees on military
justice reform.
Eugene R. Fidell is Florence Rogatz Visiting Lecturer, Yale Law School, and of counsel at
Feldesman Tucker Leifer Fidell LLP. A former U.S. Coast Guard judge advocate, he has headed
the National Institute of Military Justice and the Committee on Military Justice of the International
Society for Military Law and the Law of War, and served on the Defense Legal Policy Board, the
Advisory Board on the Investigative Capability of the Department of Defense, and the Executive
Review Panel for the 2019 Comprehensive Review of the Department of the Navy’s Uniformed
Legal Communities. He wrote Military Justice: A Very Short Introduction (Oxford 2016).
Brenner M. Fissell is Associate Professor of Law, Maurice A. Deane Hofstra Law School. He has
been appellate defense counsel in the Guantánamo Bay military commissions system and clerked
for Judge Jerome Farris of the U.S. Court of Appeals for the Ninth Circuit and Chief Judge Scott
W. Stucky of the U.S. Court of Appeals for the Armed Forces.

18

 Christopher Griggs is a barrister at the New Zealand bar and a serving legal officer in the Royal
New Zealand Naval Reserve, holding the rank of Commander. He was the architect of substantial
reforms to New Zealand's military justice system in 2009 which inter alia removed court-martial
convening authorities and established the Director of Military Prosecutions. He is currently leading
New Zealand's project to assist the Republic of Fiji Military Forces’ military justice reform
program.
Amos N. Guiora is Professor of Law, S.J. Quinney College of Law, University of Utah. He served
in the Israel Defence Force Military Advocate General’s Corps for 20 years, including as Judge
Advocate for the Israel Navy and Home Front Command. His books include The Crime of
Complicity: The Bystander in the Holocaust (Ankerwycke 2019) and Armies of Enablers: Survivor
Stories of Complicity and Betrayal in Sexual Assaults (American Bar Association forthcoming in
2020).
Dr. Elizabeth Lutes Hillman is President of Mills College, having previously taught at UC Hastings
College of the Law, Rutgers-Camden Law School, and the U.S. Air Force Academy. She served
in the U.S. Air Force and was a member of the Response Systems to Adult Sexual Assault Crimes
Panel. She wrote Defending America: Military Culture and the Cold War Court-Martial (Princeton
2005).
Joshua E. Kastenberg is Professor of Law, University of New Mexico Law School. He retired
from the U.S. Air Force as a Lieutenant Colonel in the Judge Advocate General’s Corps and served
as a military judge. He wrote The Blackstone of Military Law: Colonel William Winthrop
(Scarecrow 2009).
Franklin D. Rosenblatt is an attorney in the litigation practice group at Butler Snow LLP in
Ridgeland, Mississippi. He retired from the U.S. Army as a Lieutenant Colonel in the Judge
Advocate General’s Corps, where his last assignment was as Deputy Chief, U.S. Army Trial
Defense Service. After the Army, he clerked for the Honorable Barbara J. Rothstein, U.S. District
Court for the District of Columbia. He serves as Vice President for Criminal Law for the U.S.
chapter of the International Society for Military Law and the Law of War.
Jan Peter Spijk is a retired Brigadier General in the Netherlands Army. He commanded the Dutch
contingent in Kabul in 2006. In 2010, he was appointed Head of Military Legal Services (TJAG)
of the Netherlands Armed Forces and senior Military Judge in the Military Chamber of the Arnhem
Court of Appeal. He was President of the International Society for Military Law and the Law of
War from 2012 to 2018 and is a member of the Council of the International Institute for
Humanitarian Law.
Rachel E. VanLandingham is Professor of Law at Southwestern Law School. She retired from the
U.S. Air Force as a Lieutenant Colonel in the Judge Advocate General’s Corps. She is VicePresident of the National Institute of Military Justice and co-author of U.S. Military Operations:
Law, Policy and Practice (Oxford 2016).

19

 Stephen I. Vladeck is A. Dalton Cross Professor in Law at the University of Texas School of Law,
where he teaches Federal Courts, Military Justice, and other subjects. He is a co-author of National
Security Law (Aspen 6th ed. 2016) and has been counsel in leading military justice cases such as
Ortiz v. United States, 138 S. Ct. 2165 (2018), which he argued before the Supreme Court.
Professors VanLandingham, Kastenberg, and Fidell, Dr. Hillman, and Lieut. Col. Rosenblatt are
co-authors of Military Justice: Cases and Materials (Carolina Academic Press 3d ed. 2020).
Affiliations are shown for identification purposes only. The views expressed in this report are
solely the authors’ and should not be imputed to any other person, government agency, or
institution.

20