Two for One: The Ethical Pursuit of Justice in the Military, and Battlefield Success, Through Joint Prosecutorial Decisions

Abstract

This Article outlines a reasoned alternative to recent legislative proposals regarding the exercise of prosecutorial discretion in the military. It proposes requiring that commanders and their military lawyers jointly make all prosecutorial decisions. Elevating the staff judge advocate to an equal role in prosecutorial decision-making emphasizes and promotes justice and fairness, and formalizes what typically already occurs in courts-martial decision-making. Simultaneously, this approach preserves a wide swath of the commander’s authority to determine appropriate responses to service member misconduct, including criminal acts. Such preservation is necessary to ensure that commanders maintain their essential responsibility and accountability for good order and discipline in their units, given both good order and discipline’s vital link to battlefield success and the military’s comprehensive reliance upon a commander-centric organizational and managerial model. This Article insists that such joint prosecutorial decision-making be complemented by a robust set of ethical guidelines as well as transparency initiatives, heretofore both lacking in the military justice system, to govern the appropriate criminal prosecution and administrative discipline of service-members, in addition to rigorous training regarding the same.