abstract. This Note explores the successes and failures of Congress’s relationship with military justice, from the Founding to the present. The Note reveals how Congress has become more willing over time to alter the structure and function of military justice, shaping a system that increasingly resembles the civilian courts. But congressmembers also have interfered with the everyday administration of military justice in ways that they would never dare to do in the civilian system. This Note proposes legislative reforms to preserve Congress’s legitimate oversight of the enduring problems in military justice and to prevent congressmembers from meddling with pending cases in ways that undermine the system’s integrity.

author. Yale Law School, J.D. expected 2022; M.M.Sc., Tsinghua University; B.A., Yale University. I profoundly thank Eugene Fidell for his inspiration and guidance on the entire project and Abigail Davidson Fisch for her endless enthusiasm and incisive feedback on early drafts. I am grateful to Abbe Gluck, Don Christensen, and Nicholas Mignanelli for their astute suggestions on later drafts. I also thank Caroline Wallace, Joshua Feinzig, and Alexander Nabavi-Noori for their fine editorial work; Simone Monet Seiver and Alex Zhang for shepherding the piece through a complex review process; and the first-year editors of the Yale Law Journal who selflessly gave their time to sourceciting and proofreading. Finally, I thank my parents, Aaron Roland and Annelise Goldberg, for their edits and support. Any remaining errors or omissions are my own.

The views presented in this Note are those of the author and do not necessarily represent the views of the Department of Defense or its components.

Introduction

The Taliban captured Sergeant Robert “Bowe” Bergdahl in 2009 after he walked off of his post in Afghanistan.1 For five years, he was held hostage, tortured, and brutalized when he repeatedly attempted to escape.2 Once he returned home, he was investigated and court-martialed for desertion, among other offenses.3 Under the Uniform Code of Military Justice (UCMJ or “the Code”), the governing law for courts-martial, Bergdahl’s trial should have been free from outside influence.4 But, long before the case had come to a close, John McCain, the chair of the Senate Armed Services Committee (SASC), pronounced his own verdict. “If it comes out that he has no punishment,” he announced, “we’re going to have to have a hearing . . . . And I am not prejudging, OK, but . . . [he] is clearly a deserter.”5

The choice facing the military officers who would determine Bergdahl’s sentence was clear: either impose a punitive sentence or face an investigation from the SASC, which had authority over their pay, benefits, retirement, and promotions.6The fate of their careers and institution hung in the balance. Under such pressure, could anyone remain impartial?

Congress’s relationship with the military justice system is at a critical juncture. A crisis of sexual assault in the military has attracted intense congressional scrutiny, and the resulting legislation has radically transformed the system.7 The days of drumhead military justice are largely behind us, as military justice increasingly resembles the civilian system thanks to productive congressional oversight.8 But heightened congressional attention has come at a cost. Congressmembers have often meddled with the administration of military justice in ways they would never do with respect to proceedings in civilian federal courts. This congressional interference undermines the system’s integrity and, while individual instances have garnered some media attention, the underlying systemic problems have been ignored.9

As military justice grows more civilianized, Congress has less reason to intercede in its administration. Intercession may have been appropriate when military justice was primarily about discipline and resembled a typical executive-branch function. Today, interference jeopardizes the integrity of a system that is essentially judicial. For the military justice system to command the same respect as its civilian counterpart, it must be insulated from officials who can use their authority to improperly influence proceedings, regardless of whether they are formally part of the chain of command.

To make this argument, this Note analyzes military justice history and contemporary case studies, and proposes policy reforms to mitigate congressional interference with the “retail administration of military justice.”10 Part I explains unlawful command influence and its relationship to Congress. Part II traces the historical development of the command-centric military justice system to delineate several paradigms of congressional oversight and to demonstrate the novelty of Congress’s recent attention to the day-to-day operation of military justice. Part III uses two recent case studies, the Military Justice Act of 2016 (MJA) and the ongoing litigation in United States v. Bergdahl,11 to examine how congressional oversight has interacted with the modern military justice system. Part IV argues that congressional intercession in pending cases is incompatible with the contemporary system of military justice. Finally, Part V proposes three policy options that prevent congressmembers from interfering with pending cases while preserving Congress’s ability to reform and improve military justice.