 Okay, we're back. I'm Jay Fidel. This is Gene Fidel. My brother, Gene Fidel, and this is Life in the Law. And P.S. Gene is a lawyer who has been involved in military justice for most of his professional career. May I say welcome to our show, Gene. Thanks, Jay. It's great to be back. Yeah. And you have been on here before. We talked about Guantanamo. I hope you remember. It was a few years ago when you were here last. So let's talk about military justice. Before we get to military justice, let me say about Guantanamo. It's interesting. We're still at it. We still have people who are being detained at Guantanamo. We still have military commissions that drag on and on and on. It's like watching taffy dropping. And in a way, it's extreme. It's a different subject, I understand. But in a way, it's extremely unfair because nobody is getting closure at Guantanamo. Imagine if you lost a loved one on 9-11. And here, it's 2019 already. It's 18 years ago. Yeah. That's a different show. But I think it's important to flag that. It's kind of a first cousin to what we're really here to talk about. It really is, yeah. It's not good commentary. Anyway, okay, military justice, can you give me a... You are the leading expert in the country, in my humble opinion, in military justice. And you've been that for a long time, since roughly 1980 or so, if not sooner. And so that makes almost, what, 30 years, actually. 40. It's not a show in mathematics. Almost 40 years. So can you talk about why you got into that and what you've done in that in general? Well, I got into the field of military justice, basically, because like many people of my generation, I had to go into the service one way or another. It was my opportunity to go into the U.S. Coast Guard after law school. And any time you became a military lawyer, whichever branch you happened to be in, you had to learn how to prosecute and defend a court marshal. And so that was sort of the building blocks. And I found that after I left active duty, after three years, seven months and eight days, that it was an area that I thought I could... I had an intuition that I could make a contribution. And oddly enough, and greatly to my surprise, I've maintained that involvement in it ever since. So it's... I'm as surprised as the next person that after all these years, I'm still engaged by it. And I find it interesting, as important as ever, and engaging in many ways. Well, now you've done a lot of cases. You've been counsel in military justice litigation many, many, many times over. You've handled, I would say, thousands of cases, some very high profile cases, cases in which you succeeded, incredibly so sometimes. But you've also been active in developing the area of military justice, both nationally and globally. Can you talk about that? Yeah. The funny thing about military justice is most lawyers don't know anything about it. They have no occasion to know anything about it. The organized bar takes very little interest in it, even less so than in the last several decades. It's a specialized field and one that is largely overlooked except when something goes south. And then people will start to pay attention and occasionally Congress gets into the act, occasionally the federal courts get into the act. But by and large, it remains a rather secluded part of the forest. You've been up to the appellate courts on military justice issues. You've been at conferences all over the world in the global discussion around military justice. You've had an effect. And you've been able to observe how things have been going, how the area has been evolving, not only here but elsewhere. And it strikes me that back in the time when you were in the service, that was not a volunteer service. That was a service under the shadow of the draft. Correct. And that's a different world and it is to me anyway. But later, in the course of development of your career, it became, it was, it had become a voluntary service. How does that change the consciousness, the awareness that you spoke about, the concern, the involvement about military justice? I think it changes in two ways. Number one, you didn't have, you don't have in the volunteer force era that we're currently in and have been in since the mid-70s, you don't have the constant influx of lawyers who everyone knows are going to be coming in and leaving. Instead, people tend to come in, maybe it's only a matter of degree, but they tend to come in with more of a, at least potential expectation of remaining for a career. And there may be consequences to that. If a person knew that he or she was coming into the JAG Corps and would be leaving almost inevitably, is that person maybe a little more willing to break China in the courtroom, a little less concerned about promotion? That's at least a question. The other thing, of course, is that I think since the 70s, the federal courts, two things have happened involving the federal courts, and maybe they're related. The first is the federal bench has drifted to the right in general, including the Supreme Court, but also the intermediate courts. It's been going on for a long time now. It's been going on for a long time. And maybe as a result of that, there is much less willingness on the part of federal judges, Life Tenured, you know, Article III federal judges, to get concerned, get involved in the nitty gritty of the administration of military justice. So are those two or three things connected? Probably they are on some subliminal level, but I think that they're all noteworthy. Let me ask you about a third possibility that comes to my mind. You mentioned before about the global dimension. One of the other things that's changed is because of the internet, it's now possible to get a fairly good current sense of military justice issues in other countries, which was very difficult to do before the digital era. Today, you can go online, you can look at blogs, I run a blog called Global Military Justice Reform. Write that down, write that down, Global Military Justice Reform, just spot.com, Google that, and you'll get there. But the point is the final exam, the point is that you could go there or other websites and come away with just a few keystrokes with a sense of what kind of issues are emerging in other countries' military justice systems. And it's fascinating to me it's been enriching professionally to realize that the kinds of issues we have had to address often resonate, they may rhyme with issues that come up in other countries, particularly the countries that share the Anglo American legal tradition that we have. Like Starry Decisors. Like Starry Decisors, but just the basic arrangements between command and the administration of justice. So our decisions that are made elsewhere are, you know, rules, statutes, what have you, directives published elsewhere in the world, are they relevant? Could they be cited? Do you cite them in litigating military justice issues here in the United States? Well, I have in the past, but unfortunately, experience teaches that judges really don't care very much about what happens in other countries. I personally think that our judges should at least be aware of what's going on in other countries and judges in other countries ought to be aware of what's going on here. I think that the dialogue between legal systems and among legal systems is fruitful, it maybe makes us more perceptive about issues, maybe not the outcome, and they're not entitled to value as precedent, but their food for thought at the very least. What about the gift of knowing how it works here, and then traveling to far off places, including developing countries, and showing them how it works here, and maybe exposing them to arrangements that might help them develop their own system? We certainly do that. We have programs, there's a program run out of Newport, Rhode Island, that carries, shows the flag basically, and assists third and fourth world countries in bringing their military justice systems up to contemporary standards, or at least beginning to approach contemporary world standards. And we're talking about human rights standards, by the way, in this part of the forest. But I think there can also be a kind of arrogance in that effort to export US values. I mean, I don't think the world of military justice begins and ends with the Uniform Code of Military Justice, our basic statute. I don't think the world begins and ends with the Manual for Courts Marshall. Other countries are entitled on a certain level to a considerable extent to go their own way. The challenge is to try to figure out if there are neutral principles, sounding in human rights, that really, countries should struggle to honor. And I think that is probably the theme, if you were talking about from 2019, what happens next? I think that's the theme that people should have in mind as they monitor developments in other countries. And it's going to be, it's going to be very tricky, and it's going to be complicated. And, you know, what China does in the area of military justice is going to be quite different from what, let's say, India does. And so on across the country, the world as you look at different legal systems, different legal traditions. Well, human rights and also, you know, the rights that are afforded in the civilian courts. I know you've been on that issue from the beginning of your time in this, in this study. Namely, you know, the Uniform Code, the Manual for Courts Marshall, it's pretty tough sometimes. It's built, it was built for battlefield use. And then you have the civilian courts which have greater procedural rights, maybe substantive rights afforded to the accused. And I know you have made that comparison and you have tried to bring the rights that are available in the civil courts into the military. How successful have you been? What kind of evolution have we seen in the course of your 40-year career to bring those rights into the military? Well, it's not my effort. You know, this is the flaw of it. The flaw of legal history that I've been privileged to participate in, observe, and so forth, and chronicle on a certain level. Clearly, there's been a move towards civilianization, which a word that at times has seemed to be a dirty word in the world of military justice. That's not a good thing. But I think there's a growing recognition that basically the closer we can get to the classical model of American criminal justice in the uniform setting, the uniform services setting, the better. As a matter of principle, that's not to say there aren't going to be departures. The Constitution itself recognizes some differences. The question is, should those differences be expanded? Should they be strictly construed? How do you reconcile the competing trends? And of course, as your question points out, you're dealing with a moving target because it's not exactly as if American criminal justice in general has remained at a standstill. It's moved. It's moved at times in what let's say a progressive way, but at times there can be retrograde developments as the Supreme Court and other federal courts have drifted to the right, at times lurched to the right. Do we see that happening in the area of military justice? I certainly can think of one illustration where during the war in court era, we had a decision that restricted court martial jurisdiction to offenses that were service connected. The off base rape, for example, could not be prosecuted in a military court, a court martial. And after about 18 years or so, the Supreme Court had changes of membership and they revisited the question and they overturned their own precedent. And so now, for better or worse, worse in my judgment, but for better or worse, any offense committed by a member of the armed services is punishable by court martial, even though it has no other connection to the military service. Yeah, there's very interesting digression on that, is situations where civilians who are not necessarily subject to uniform code of military justice by its terms wind up being tried by courts martial, going back to the conspiracy against Lincoln. Well, that's exactly right. And there are two dimensions here. The first is that this is mostly a foreign human rights story. There are countries, thank goodness, ours is not one of them. Basically, there's some footnotes, but I don't want to get into the inside, inside baseball on us. But basically, we don't try civilians by military courts. There are other countries that do and they do it regularly. And it's really appalling. It's a blatant violation of contemporary human rights standards. I'm talking about countries like Egypt. I'm talking about Cameroon. I'm talking about Uganda. I'm talking about Pakistan. These countries are repeat offenders. They are completely indifferent to the evolved contemporary standards for human rights. Now, the other piece of that is, who is a civilian? So a current issue is, what about retired military personnel? Now, Congress has provided that certain categories of retired military personnel remain subject to trial by court martial. That is, I've been involved in some litigation. I'm involved in some litigation on that right now. I don't want to go into, you know, arguing it, but it is a fact that that is one of the battle lines that we're going to have to work through. That's an issue that the U.S. Supreme Court has never squarely addressed, even after all these decades of American independence. So that's really going to be a fascinating one. Another sidebar issue here is command influence. Command influence, we see this happening today, even though it should be settled law, that nobody should be trying to affect the judgments of a court martial or a court martial judge. But it's still an issue that's very, very much alive. What's the state of the law on this? What's the state of the practice? What's the state of the violation of the law and the practice? Right. So unlawful command influence is the concept. There's a lot of command influence that's perfectly lawful under U.S. law. But there is a matter of both statute and the judicial gloss on the Uniform Code of Military Justice. We have a doctrine of unlawful command influence. This is essentially a distortion of the judicial process in ways that either are specifically unfair to an accused or call into question public confidence in the administration of justice. There's two different concepts working. The first of these is called actual unlawful command influence. The second is apparent unlawful command influence. Together the common phrase is that unlawful command influence is the mortal enemy of military justice. It's an article of faith. It's probably the core principle that animates the administration of military justice today in our country. You cannot have a conversation about unlawful command influence without talking about two things. Number one, how does this relate to Congress? Because members of the Senate and House seem to be much freer with their advice and opinions about things concerning specific military cases than they would ever dare to be about cases pending in the federal district. And more than they were in the past. And more than they were in the past. This is something that Congress is going to have to fix as a matter of their internal ethic. And I think this is a challenge. I don't know really how that's going to unfold, but I would like to think that somebody will take a firm stand and tell members of the House and Senate, look, keep your hands off the administration of justice in specific cases. So that's one dimension. The other the other aspect is getting back to the military justice system. It is a fact that cases of unlawful command influence, both actual and apparent, arise with amazing regularity. And I don't want to talk about specific cases. You know, they're everywhere. They're not all equally valid. Not all claims of unlawful command influence are equally valid. Some of them. It's easy to make the claim. But it's not so easy sometimes to carry it over the goal line. Why do they come up so often? And that brings brings the conversation around to what I think is the core structural issue that Congress is attempting to get its hands around. And it's an issue that we have George III to thank. Oh, George III. Let me zoom back and see a picture of George III. There he is. That's George. He joins us. And let me say, George, if you want to say anything, this is your big opportunity. We're waiting. But here's the here's the problem. The problem is that the military justice system that the colonies inherited from the UK is still with us today. The core proposition is that the role of the commander remains central to the administration of justice. And we still have that today, even though Congress passed exceptionally broad comprehensive changes only recently in the Military Justice Act of 2016 that just went into effect, the heart of it, Congress left unaffected. And the heart is that the commander is responsible for deciding who gets prosecuted for what offenses at what level of severity. The commander also has certain other responsibilities that Congress left unaffected, such as picking the members of the military jury. And and reviewing the result. No, well, that's been that's been dialed back over time. But the but negotiating pretrial agreements, for example, remains a command function. So where this is manifesting itself right now is in the ongoing conversation, mostly in the Senate about the bill introduced by Senator Kirsten Gillibrand of New York called the Military Justice Improvement Act that would basically take away from the commander, who is ordinarily a non lawyer, almost invariably a non lawyer, the power to make charging decisions and give it to legally trained attorney, a judge advocate, outside the chain of command, so that you would not have a merging of functions. You'd not have the risk of conflicts of interest, for example, where the charging decision was made by somebody who might have an interest in saying this accused is a terrifically lethal fighter pilot. I'm not going to send this case to a general court martial or allowing other considerations to come into play other than what are the demands of a criminal justice system. So that's the sort of looming issue right now. And maybe viewers have seen the recent hearing before the Senate on Services Committee, where Senator McSally, a former fighter pilot herself, talked about her own sexual assault. Senator Gillibrand was very vocal about this. I think one of the Hawaii senators was present at this hearing. This is an issue that senators have to grasp the nettle on and decide are we going to continue with basically an 18th century system, or are we, like other countries, ironically included Great Britain, including Great Britain, have abandoned in favor of having prosecution decisions made by trained lawyers outside the chain of command. So that's the biggest single institutional issue we're dealing with. Military lawyers. The special prosecuting person is a military lawyer. Yes. Under the code himself. Yes, right, right. Now, let me say if you were working on a clean slate and were really willing to think outside the shower here, you could well say that prosecution decisions should be made by, let's say, somebody in the criminal division of the Justice Department. You might have, for example, a chief military prosecutor in the criminal division at the deputy assistant attorney general level. That would be a very different system. There are countries that have civilianized the prosecution function. Other countries have not done that. So to be clear, then, this would not affect Article 15 masks, non-judicial punishment. It would only affect court marshals. Well, there is an issue where you would draw the line. Yeah. Minor disciplinary matters should, in my opinion, and I think most people, even people who support the reform would agree, should remain within the belly wick of commanders. The question is where you draw that line. And one year is the line that the manual for courts-martial actually draws. The punishment. In defining one year's punishment, confinement, is the line that courts-martial ordinarily draw between minor disciplinary matters and matters that are more like criminal offenses. Now, but your question, Jay, raises a very interesting issue, and it's the next big thing that has to be studied. There are some hundreds of courts-martial every year. There are tens of thousands of minor disciplinary proceedings called non-judicial punishment, Article 15, office hours in the Marine Corps, captains masked in the Navy and Coast Guard. This is sort of the low-level, low-visibility administration of justice that actually is much less well-known, but has much more impact where the rubber meets the road out in the fleet, out in the field, in the administration of justice as it affects most GIs. And what is, I think, beginning to take shape now, and I hope to be able to play a role in this, is a serious national and international conversation about how summary discipline should be administered. Are there some neutral principles that apply? Is it possible to reach common ground? Who should be prosecuted for what by these administrative non-judicial sanctions? It's very interesting. It's very understudied, under-theorized. These cases occasionally get into the federal courts, but it's unusual. So that's sort of the next big thing. But the baseline there is that the commander on the scene, on the ship in the battlefield, has to have the ability to meet out summary punishment in order to maintain good order and discipline. If he has to wait on a bureaucratic process that must wait on other personnel or the legal personnel, when he gets back to port or back to a larger command, he will not be able to meet it out summarily. And that would deteriorate the, what do you want to call it, the fighting force ability of that unit, no? Yes, that's the theory. And people don't really question that. Everybody, I think, who has paid any attention to military justice recognizes that. It's critical. An armed force is not simply a crowd with weapons. It has to be a disciplined armed force. Without that, you can't be effective as a military force. And good order and discipline and obedience and basically being squared away are key elements. The problem is, when there's an expansive view of what should be handled summarily by the commander, you can get distortions. For example, that means unfair results. Well, unfair results. They may be fairer, they may not be fair. But the point is that our expectation is that where there are severe punishments at stake that a person is entitled to greater due process, an independent decision maker, a lawyer attorney, a lawyer counsel to advise them the rules of evidence and all those things that come with a proper criminal trial. You could a murder, for example, or a rape. How can that ever be handled administratively? Setting fire to the barracks. That's not a minor disciplinary matter. That's a serious matter. Orson is one of the classic offenses known to the common law. It's a felony. So things like that, obviously in my view, should be removed from the commander's discretion. So one of the issues that you talk about it, is the notion of confidence in the administration of justice. Yes. And that certainly applies in the larger realm of civil law, civilian law. And I guess in criminal law, in the civilian side of things. But in the military, in a volunteer force, which is not necessarily connected so much as a conscripted force was connected with friends, family, you know, all that where they would talk to people outside, outside the military box more. How important is it that we have confidence in the administration of justice now that we have a volunteer force where the public doesn't really know what's going on anyway? Well, I think it's at least as important in an all volunteer force environment to have public confidence in the administration of justice. Why is that? You might think the exact opposite. The reason it's at least as important, and I would say more important, is because it relies on people to volunteer. It relies on families being willing to say, it's good that my son or daughter wants to go into the military. It relies on people who are already in the military and staying in the military. And if people and families and people of, you know, service age and that age bracket that we look to for new recruits don't have confidence in the administration of justice. They're going to vote with their feet. They're either not going to sign up or when the opportunity presents itself, they will leave rather than re-enlist. If they have a funny feeling that maybe the system of justice cannot be relied on with that conviction, no pun intended, but that conviction that we really need to have as participants in a democratic society. And I suppose that if we ever needed to return to a conscription, I'm not sure that will ever happen or could ever happen. It might happen. Then you want people in the civilian community not to be intimidated by notions of unfairness in the service. You want them to have that confidence that when they go in and be subject to the Uniform Code of Military Justice, they won't get beat up too bad. Well, I think that's right. And interestingly, the history is the UCMJ was passed after World War Two when 10 or 20 million Americans were in uniform. There were a lot of unfair trials. Members of Congress were elected after they came back from World War Two who were veterans and they came en masse to Congress feeling that this is a system that needed to be reformed. That explains why the UCMJ was passed in the first place in 1950. It was because of concern about the administration of justice in World War Two. A concern, by the way, that was felt by other democratic countries. One last question, Gene. I wish we had more time. There's really so much more that flows out of this conversation. But going forward, you've been in the conversation about the reform of military justice since the late 70s, early 80s. And you've done a lot, spoken a lot, written a lot about all of that. But where we stand now, have your expectations for reform been met? And if not, what do you think is, and you mentioned this in part before, what do you think are the most important initiatives that we need to be concerned about to reform ourselves so that we have a more, a more equitable system, a system that conforms with the best human standards? Wow, that's a toll order. I think the bill that Senator Gillibrand or something like it really does need to be passed. The military has got to get away from the notion that the military justice system is owned and operated by commanders. I didn't invent that phrase, by the way, that's from the Army's Handbook for Commanders. The notion that a system of justice that would prosecute things like murder, arson, rape, sexual assault, and so on and so forth, you know, familiar serious crimes would be owned and operated by anyone other than a judge and a judge with, you know, all the trappings of the office is intolerable in the 21st century. So that's a major point. I think having lost any real basis for optimism in terms of the federal courts unless the Supreme Court changes dramatically in the next few years, I think we really have to look to Congress for reform here. The good old days of the Warren Court and, you know, people who bring lawsuits and it would be the sweetness of light and you would get the result that you hoped for, those days are largely over, not always, but largely over. So the answer is that we need a Congress that is knowledgeable and smart about this, one that is not going to be gullible, one that is going to conduct meaningful hearings, one that is going to ask tough questions, and one that is going to be willing to take the system into the 21st century. So far the jury is out on that. I hope that there'll be grounds for optimism, particularly with the new House of Representatives. We'll see what happens at the next elections in 2020 when the Senate may, you know, see some changes and when perhaps there'll be a change in the White House. Looking forward to that. Gene Fidel, my brother, thank you so much, Gene. A pleasure. Aloha.