I.  Introduction

During the American Revolution, the Continental Congress delegated executive responsibility to convene courts-martial to military commanders,[1] an arrangement that survives to this day in the U.S. military justice system. Under the Uniform Code of Military Justice (UCMJ),[2] commanders have the authority to refer a case to a special or general court-martial,[3] provided requisite consultation has been provided by a “judge advocate,”[4] that is, a uniformed military lawyer.[5] Legislation recently proposed in the Senate, the Military Justice Improvement Act of 2020 (MJIA),[6] would strip the commander of this authority,[7] including the authority to initiate court-martial proceedings,[8] and vest these authorities in a judge advocate outside the chain of command.[9] This delegation of authority to judge advocates would, however, be limited to “covered offenses,” which are those primarily contained in Articles 118 through 132, UCMJ,[10] and any conspiracy, solicitation, or attempt to commit a “covered offense.”[11]

While these “covered offenses” would encompass a broad swath of crimes, predominantly those familiar to the common law,[12] the impetus for the reform narrowly relates to the prevalence of sexual violence crimes in the military. As MJIA’s primary legislative sponsor explained in 2019:

[T]he chairman of the Joint Chiefs of Staff, Martin Dempsey, said the military was “on the clock” to fix [sexual assaults in the military]—and indicated we would be right to bring a bill back to the floor in a year if they hadn’t solved the problem. It’s now been five years. . . . Not only is sexual assault still pervasive across all branches of our military, but it has dramatically increased over the last two years . . . .[13]

The 2019 Department of Defense Sexual Assault Prevention and Response (SAPR) Report estimated the number of penetrative and non-penetrative sex offenses in the military, which remained virtually unchanged from 20,300 in 2014 to 20,500 in 2018.[14] However, this latter number was registered after sexual assaults were estimated to have dropped to 14,900 in 2016, only to spike an estimated 38% in 2018.[15]

Assessing whether removing command prosecutorial authority would improve these numbers requires understanding the purpose military law serves and the separate responsibilities of commanders and lawyers in furthering that purpose. The 2019 Manual for Courts-Martial articulates the purpose of military law as follows: “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”[16]

Note that “maintaining good order and discipline” is the commander’s duty in military law.[17] That is, commanders are duty-bound to exact their subordinates’ obedience to law and disciplinary standards, also referred to as the duty “to control,” an obligation that is criminally enforceable in both war and peace.[18] By contrast, lawyers have no such duty, but they do have an obligation that squarely aligns with military law’s purpose to “promote justice.” That is, prosecutors have a duty to “seek justice,”[19] a duty which empowers them to take action that commanders could be prosecuted for taking—decisions not to prosecute sexual assaults and other serious crimes.[20]

A commander’s responsibility is best understood as a byproduct of authority that all formal leaders possess to varying degrees. It has two components: “[t]he right to give orders” to subordinates and “[t]he power to exact obedience.”[21] “Responsibility,” by contrast “is a corollary of [that] authority, it is the natural consequence and essential counterpart, and whatsoever authority is exercised, responsibility arises.”[22] Removing a commander’s authority to “exact obedience” therefore necessarily eliminates his responsibility for its exercise, which, in turn, risks subordinates’ diminished obedience to command directives—a risk U.S. courts have long sought to counter in the military context.[23]

General Dwight Eisenhower recognized this very risk, long ago warning, “If you make a completely separate staff body to whom is charged no responsibility for winning the war and say, ‘You can do as you please about these people,’ you are going to have trouble.”[24] That “trouble” arises when commanders lack the formal authority to “employ . . . forces in pursuit of a common purpose,” that is, when they lack “unity of command.”[25] Necessary to achieve unity of command is “unity of effort,” also known as “unity of direction,”[26] a principal that can be expressed as “one head and one plan for a group of activities having the same objective.”[27]

The UCMJ recognizes commanders’ formal authority to direct the employment of force towards that single mission objective, towards “winning the war,”[28] and ensures the prosecutor’s objective to “seek justice” remains subordinate thereto. In particular, the UCMJ vests in commanders, rather than lawyers, authority over offenses that directly bear upon the ability to exact obedience in military operations, what can be referred to as “operational offenses.”[29] These offenses, for the most part, are uniquely military in nature and primarily classified by MJIA as “excluded offenses” that are precluded from the reform, including Articles 83 through 117, 133, and 134, UCMJ,[30] and any alleged conspiracy, solicitation, or attempt to violate these articles.[31]

There is a category of operational offenses, however, which MJIA does not exclude from the reform and which governs the application of lethal force on the battlefield: law of war targeting offenses.[32] These offenses are not contained in the UCMJ because, under long-standing U.S. policy, “[o]rdinarily persons subject to the UCMJ should be charged with a specific violation of the UCMJ rather than a violation of the law of war.”[33] Nonetheless, targeting offenses are primarily punished under the “covered offenses” that MJIA would remove command authority to prosecute.[34]

Regarding the removal of these “covered offenses” from command authority, MJIA would compromise the ability of commanders “to control” military operations with consequences its drafters surely did not intend—impunity for serious crime, including sexual assaults, and a military less capable of overcoming its adversaries. Part II of this article explains how the law punishes commanders for failure “to control” their subordinates, how they are presumed to have caused subordinate crimes occurring after they “knew” or “should have known” of them, but only to the extent of their authority to exercise that control. Part III demonstrates that by eliminating prosecutorial authority as a means to exercise that control, MJIA fosters impunity for serious crimes, including sexual assaults, while the status quo reduces criminality, provided the duty “to control” is enforced. Part IV shifts focus to law of war targeting offenses, explaining why commanders are most qualified to assess compliance with these norms, and how MJIA vests lawyers with prosecutorial discretion over them. In so doing, Part V explains how commanders and lawyers would share prosecutorial authority over norms governing the same lethal targeting operation, that their divergent objectives would compromise “unity of effort” in those operations, and that “trouble” would therefore result.

II.  The Duty to Control Subordinates—Responsibility of the Commander

A.  The Four Command Responsibility Obligations

“Trouble” abounds in military operations, and the law therefore attempts to protect against it by obligating commanders to exact obedience from their subordinates.[35] In particular, on the battlefield the law of war obligates commanders to take “reasonable measures . . . [to] control their subordinates,”[36] a duty derived from treaty law regulating the conduct of hostilities[37] and enforceable by means of the UCMJ.[38] Federal courts, however, in recognizing the obligation, have determined it also applies outside of hostilities.[39] Federal statutes similarly reflect a customary obligation of commanders in all situations to prevent, discipline, and discover unlawful subordinate behavior,[40] a dereliction of which is also punishable under the UCMJ.[41] Other U.S. and international sources have extrapolated the duty “to control” as imposing obligations nearly identical to those in Federal statute that require commanders to take “necessary and reasonable” measures in relation to their subordinates as follows:

(1)  Prevent unlawful harm to persons and property;[42]

(2)  Discipline subordinates who unlawfully harm persons and property;[43]

(3)  Diligently monitor subordinate conduct;[44] and

(4)  Inquire into allegations that subordinates unlawfully harmed persons or property.[45]

B.  The Elements of Command Responsibility

1.  Reasonable Measures Required

Understanding how MJIA impacts the enforcement of these obligations under the UCMJ first requires understanding how they are enforced outside the UCMJ context. In any context, the first step to assess a dereliction of a command responsibility obligation requires assessing whether the action was reasonable in the circumstances as they appeared at the time.[46] An alleged unlawful act or omission is subjectively reasonable if undertaken in good faith, that is, if the commander “could honestly conclude” his or her behavior was lawful.[47] Such act or omission is unreasonable if done in bad faith,[48] if the accused acted with “actual knowledge” the act or omission contravened his or her duties.[49] If there is insufficient evidence of subjective unreasonableness, an alleged act or omission may still be objectively unreasonable if it violated the “plain, known Rules” superiors are expected to uphold.[50] “This may be demonstrated by regulations, training or operating manuals, customs of the Service, academic literature or testimony, testimony of persons who have held similar or superior positions, or similar evidence.”[51]

2.  Assessing a Dereliction

If the alleged act or omission was either subjectively or objectively unreasonable, liability may ensue if that act or omission was the product of a deliberate dereliction of duty or of culpable neglect.[52] In the case of culpable neglect, the dereliction must be willful[53] or, at a minimum, culpably negligent if done in violation of the laws of war.[54] In the case of deliberate omissions, the dereliction must, at a minimum, be willful and with intent to cause the resulting harm.[55] The elements of each will be discussed in turn.

a.  Culpable Neglects

Regarding culpable neglects, liability is established when the commander’s alleged dereliction satisfies the “elements of proof” generally applicable in military law in establishing a neglect of duties.[56] Those elements are as follows:

(1)  That the accused had a certain duty;[57]

(2)  That the accused by willfulness or [culpable] negligence was derelict in the performance of that duty; and

(3)  That such dereliction of duty resulted in unlawful harm to persons or property.[58]

b.  Deliberate Omissions

Regarding deliberate violations, liability is established by showing the accused’s act or omission establishes principal liability,[59] a type of liability that can be established when there is a deliberate omission accompanied by an intent to cause any resulting harm.[60] The required elements to establish principal liability for a command responsibility dereliction are as follows:

(1)  That the accused had certain duties to interfere in the commission of an unlawful act;[61]

(2)  That the accused did not perform those duties;[62]

(3)  That unlawful harm occurred;[63]

(4)  That such dereliction was intended to operate as an aid or encouragement to the actual perpetrator;[64] and

(5)  That such dereliction did operate as an aide or encouragement to the actual perpetrator.[65]

3.  The Causation Element

a.  Physical Harm Not Required; Causation Not Always Relevant

Note that under either of the aforementioned theories, there is a causation of “harm” element. Causation is generally established in criminal law by showing an alleged criminal act was the “but for” cause of the resulting harm.[66] Causation, however, has particular application in the command responsibility context that requires further clarification. First, when the alleged dereliction is that the commander failed to discipline the subordinate, causation of harm is not required to establish guilt. This is because the obligation to discipline arises after the subordinate has committed the unlawful harm; therefore, it is not possible for a commander’s dereliction to have caused that harm.[67] On the other hand, if the commander fails to discipline the subordinate, and that failure causes further unlawful harm, the commander can be held liable for this latter harm.[68]

b.  Rebuttable Presumption of Causation

Demonstrating how that commander is held liable for this latter harm requires further explanation. While causation is required in the context of command responsibility,[69] any causation analysis involving omissions requires a “highly speculative” inquiry as to “how a human being would have reacted if the precaution [in question] had been taken.”[70] Consequently, “[a] court’s resolution of these post-hoc-speculative proof problems actually is a question of policy” that is sometimes resolved by establishing “a rebuttable presumption that the omitted precaution would have prevented the harm.”[71] This is precisely the approach that the U.S. Congress has taken in the Military Commissions Act[72] and that both U.S. Federal courts and international tribunals have endorsed in the context of command responsibility.[73]

The logic underpinning this approach is that commanders are presumptively in “effective control” of their subordinates, and “but for” their dereliction in properly executing that control, the harm would not have occurred.[74] Therefore, once the commander-subordinate relationship is established, the presumption of causation triggers, though it can be rebutted one of two ways. First, the presumption is rebutted if the commander proves there is no casual “nexus” between the dereliction and the harm caused,[75] which is established for U.S. commanders by showing the omission did not “operate as an aide or encouragement to the actual perpetrator.”[76] Second, it is rebutted if the accused lacked the “material ability” to take the necessary measures alleged.[77]

4.  The Duty Element—Material Ability Required

The phrase “material ability” here refers to the “authority” of the commander to have taken a “necessary” omitted action, and is requisite to establish the commander had a duty to act to prevent, discipline, monitor, or inquire.[78] Moreover, even if the commander had the “material ability” to take the omitted measure alleged, to be punishable, that measure must have been “necessary,” that is, a measure in the circumstances which the commander had no discretion but to affirmatively exercise.[79]

The first step in assessing “material ability,” therefore, is to ask whether the accused possessed the requisite command authority over the perpetrator.[80] This is shown by establishing the accused had “effective control” over the perpetrator.[81] However, de jure command authority is prima facie evidence of effective control,[82] is shown through written orders demonstrating the superior-subordinate relationship,[83] and extends to subordinates of units for which that commander formally assumes administrative control.[84]

C.  Responsibility After the Military Justice Improvement Act

1.  “Actual Knowledge” Obligations—Disciplining and Preventing

When “effective control” is established, the actions commanders must take depend upon their knowledge of unlawful subordinate behavior. For example, when circumstantial evidence demonstrates they had “actual knowledge” their subordinates violated the law,[85] they must have taken “necessary” measures within their “material ability” to “discipline” them and “prevent” further harm.[86]

As both the duties to “discipline” and “prevent” bear upon commanders’ exercise of disciplinary authority,[87] ascertaining MJIA’s impact on how they are applied requires understanding the “material ability” and discretion at each U.S. command echelon to exercise that authority. The UCMJ empowers only senior commanders—those with special court-martial convening authority (SPCMCA) and general court-martial convening authority (GCMCA)—to prosecute cases at a criminal forum,[88] that is, at a special or general court-martial.[89] Non-criminal disposition is also available to these and lower echelons, including punitive options such as summary courts-martial or non-judicial punishment[90] and non-punitive options ranging from no action whatsoever, to adverse counseling, reprimand, and corrective training.[91]

While commanders have various options available to address subordinate crime, their discretion to act within their “material ability” is informed by policy, regulation, statute, and, if enacted, MJIA.[92] Regarding sex offenses, for example, Army regulation and Federal statute withhold from GCMCA commanders discretion to dispose of these offenses via any means other than referral to court-martial.[93] These same commanders also lack discretion to dispose of grave breaches of the 1949 Geneva Conventions through any means other than courts-martial, as the conventions require those breaches be prosecuted at trial.[94] A disposition contrary to these withholdings could serve as prima facie evidence of a crime, one which MJIA would abolish. That is, the commander failed to take a necessary measure to “discipline” or “prevent” by not referring allegations of sexual assault or grave breaches to court-martial proceedings.[95]

Below the GCMCA level, MJIA similarly would curtail commander responsibility for serious offenses. First, note that commanders below the SPCMCA echelon already lack authority to dispose of sexually violent crimes.[96] Further note that GCMCAs “nearly universally” by internal command policy withhold from subordinate commanders the “material ability” to dispose of serious offenses, such as those that involve “death or serious injury.”[97] As a result, below the SPCMCA echelon, commanders “nearly universally” lack independent authority to take any action other than the initiation of court-martial proceedings for sexual assaults and those cases involving death or serious injury.[98] Consequently, at the company command echelon, where initial disposition decisions are generally made,[99] an action other than the preferral of court-martial charges could serve as prima facie evidence of a crime, one that MJIA would abolish. That is, that the commander failed to take necessary measures to “prevent” or “discipline” in failing to initiate court-martial proceedings for sexual violence offenses and others involving death or serious injury.[100]

2.  Impact on the Constructive Knowledge Obligations—Monitoring and Inquiring

Also abolished by MJIA therefore would be the crime of failing to ensure the initiation of court-martial proceedings for these same offenses when the commander “should have known” of the allegations. Specifically, while “actual knowledge” is required to trigger the obligations to “discipline” and “prevent,” that knowledge may be imputed when there is a failure to “monitor” or “inquire.”[101] The duties to “monitor” and “inquire” therefore are best understood as implied because they require discovery of information necessary to carry out the duties to “prevent” and “discipline.”[102] In other words, accused commanders “should have known” of sexual violence allegations and others involving death or serious injury when they fail to take a “necessary” measure to “monitor” or “inquire,”[103] foreclosing a defense of ignorance arising from their own dereliction.[104]

Consider then the following scenario as to how a commander might be held liable on a “should have known” theory for failing to monitor. A regulation, for example, might limit discretion as to how to monitor subordinates by requiring a confinement facility commander to conduct periodic inspections of his or her facilities.[105] If a commander willfully or negligently did not comply with that regulation and, as a result, was unaware subordinates were committing sexual assaults against prisoners, that commander would have failed to take a “necessary” measure within his or her “material ability” to monitor.[106] Consequently, the accused commander here may be liable for his or her subordinates’ crimes on the grounds he or she “should have known” of the allegations, foreclosing a defense of ignorance arising from his or her own dereliction.[107]

Next consider how “should have known” liability might be imposed when the commander failed to act within his or her “material ability” to inquire. First, note this duty is triggered whenever there is a “credible” allegation a crime was committed—in other words, when the commander “had reason to know” of subordinate crimes.[108] For serious crimes, such as sexual assault and death cases, Army regulation mandates only the U.S. Army Criminal Investigation Command (CID) investigate credible allegations of these crimes.[109] Commanders do not act within their “material ability” when they investigate the matter themselves or fail to report the matter to CID to investigate. If, as a result of such dereliction, the commander remains ignorant of actual knowledge the crime occurred, he or she cannot assert this ignorance in his or her own defense. [110] The accused commander “should have known” to initiate court-martial proceedings in such cases, foreclosing a defense of ignorance arising from his own dereliction.[111]

This is not to suggest that MJIA would eliminate a commander’s responsibility on a “should have known” theory by removing authority to initiate courts-martial. It certainly would not, but it would lessen the seriousness of the commander’s crime by lessening the authority the commander “should have known” to exercise. For example, while the pre-MJIA theory of liability might be that the accused “should have known” to initiate court-martial proceedings, the only post-MJIA theory for covered offenses would be that the commander “should have known” to report the allegation to the prosecutor.[112] The aggravating factor in the former case is that it was the commander’s duty to ensure court-martial proceedings were initiated, while extenuating in the latter case is a prosecutor had independent discretion not to do so.[113]

3.  Reasonableness and Mens Rea

In summary, commanders must always take “necessary” measures within their “material ability” to “monitor” or “inquire,” and if they fail to do so, they risk prosecution for failing to “prevent” or “discipline” on the theory they “should have known” of their subordinates’ crimes. Recall, however, liability does not ensue unless the omissions were unreasonable,[114] which must be assessed in reference to the limitations placed on their “material ability” by policy, regulation, and, if enacted, MJIA.[115]

Also note that liability on a “should have known” theory in U.S. military jurisprudence is normally established by showing simple negligence,[116] and there is support that “should have known” connotes the same meaning in command responsibility doctrine.[117] Nonetheless, for U.S. Service members, when that doctrine is enforced under the laws of war, the minimum mens rea must be culpable negligence,[118] though simple negligence can be applied outside this context.[119]

III.  Command Prosecutorial Authority—A Safeguard Against Injustice

A.  A Redoubt Against Impunity

1.  Protecting Victims

In any context, commanders, by virtue of their duty “to control,” currently risk extensive criminal responsibility in the exercise of their prosecutorial authority, which MJIA would eliminate if it were to become law. Specifically, commanders currently violate the law when they fail to ensure initiation of court-martial proceedings when they “knew” or “should have known” of serious offenses committed by their subordinates, such as sexual assault, murder, and other crimes involving death or serious injury.[120] Further, GCMCA commanders also risk prosecution for not referring grave breaches and sexual assaults to court-martial.[121] If MJIA were enacted, these offenses, which are punished principally under Articles 118 through 130, UCMJ,[122] would become “covered offenses” under MJIA,[123] offenses over which prosecutors would hold prosecutorial discretion.[124] Unlike commanders, these prosecutors would risk no criminal liability if they failed to prosecute when they “knew” or “should have known” of these crimes, as their obligation is to “seek justice,” that is, they have “discretion to not pursue criminal charges in appropriate circumstances.”[125]

As a result, in the context of sexual violence crimes, fewer resources would be dedicated to prosecuting these cases. Consider that in fiscal year 2018, the acquittal rate for sexual violence offenses adjudicated at court-martial was approximately 70%.[126] This compares to an approximate 98% conviction rate for those offenses prosecuted in Federal district court over the same period.[127] It follows that an independent military prosecutor, unhindered by safeguards that steer even the most difficult sexual violence cases towards trial,[128] would simply be more sparing with scarce prosecutorial resources. The likely result, therefore, of removing command prosecutorial authority is of little doubt: fewer resources dedicated to sexual violence prosecutions in the interest of “justice.”[129]

“Justice” is a subjective concept, underscoring the risk that impunity for grave breaches could proliferate under its guise if MJIA were to become law. Consider a recent poll by the Clarion Project that revealed that 77% of respondents believe war crimes should not be prosecuted,[130] as well as the President’s public criticism of such prosecutions[131] and the judge advocates who carried them out.[132] It would be unsurprising, therefore, if a military prosecutor determined that “justice” merited not prosecuting grave breaches, particularly when the victim was a captured combatant who fought for the Islamic State,[133] a terrorist organization that has committed among the most horrific crimes of our age.[134] It is precisely in these circumstances where a commander’s responsibility is needed most; unlike prosecutors, commanders have no discretion to  forego prosecuting such crime.[135] In other words, command authority over military justice serves as a redoubt against impunity, even when it is unpopular to do so.

2.  Accountability for Command Climate

Impunity would proliferate in at least one other way, were MJIA to become law: prosecutors, unlike commanders, would risk no criminal liability for fostering a climate where lawbreaking is acceptable. In particular, recall that commanders can be criminally responsible not only for failing to bring grave breaches and sexual violence allegations to trial, but their culpability is also presumed for any crimes that flow from that failure.[136] In other words, commanders are liable for their “failure to create or sustain . . . an environment of discipline and respect for the law,”[137] such liability lawyers do not have if they fail to prosecute.

Commander liability, by contrast, is so vast that U.S. tribunals have held commanders responsible for the mere failure to act within their “material ability” to protest crimes carried out by those only nominally under their control. In the “Hostage Case,” for example, a commander was held accountable for the crimes carried out by security police in his area of responsibility even though he had no authority over them.[138] The tribunal justified the commander’s responsibility in part on the grounds that, “Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts.”[139] In the “High Command Case,” a commander was similarly held responsible for the crimes of a security force unit operating in his area of responsibility, partly on the grounds he “[had not] in any way protested against or criticized the action of the SD [security service] or requested their removal or punishment.”[140]

B.  An Incentive to Intervene

The policy assumption for holding leaders accountable in this manner is that incentivizing the proper exercise of leadership authority reduces criminality, and empirical data supports this conclusion. In the context of sexual assault, for example, a 2014 study demonstrated that leadership intervention, even among informal leaders of high school age, can dramatically reduce sexual assault rates.[141] That study assessed the effectiveness of those leaders taking steps pursuant to training to discourage and prevent sexual violence amongst their peers at school.[142] By the end of year four of the study, the number of sexual assaults decreased by 48% at those schools where the interventions occurred,[143] leading the Air Force to incorporate the study’s methodology into its training protocols.[144]

These findings comport with several other studies focusing on sexual assault in the military. A 2017 study found that “[n]egative leader behaviors” such as military leaders allowing “sexually demeaning comments to occur” were associated with “[an] increased assault risk, at least doubling servicewomen’s odds of [sexual assault in the military].”[145] These findings are consistent with a 2003 study which determined that military leaders “allowing or initiating sexually demeaning comments or gestures towards female soldiers was associated with a three- to four-fold increase in likelihood of rape.”[146] The 2019 SAPR report also determined that “[t]he odds of sexual assault were . . . higher for members indicating their command took less responsibility for preventing sexual assault, encouraging reporting, or creating a climate based on mutual respect.”[147]

C.  Enforcement Required

Taken together, the data makes clear that the key to reducing criminality is not less command authority, as MJIA seeks, but the exercise of more leadership authority as the command responsibility doctrine seeks to incentivize. Yet the UCMJ contains no specific command responsibility provision to inculcate that incentive across the military services. Rather, the doctrine’s obligations must be “boot strapped” under existing UCMJ offenses,[148] for example, as articulated in Part II of this article.[149] This has led to the non-enforcement of the doctrine in high-profile cases,[150] fostered confusion regarding the United States’ interpretation of the doctrine,[151] resulted in its misapplication at court-martial,[152] and feeds misconceptions within the military services that leaders are impugn from accountability.[153] Promulgating a command responsibility provision would eliminate misunderstanding and “provide commanders with the needed incentive to make detection and prevention of sexual assault within the ranks a top priority.”[154] That is, it would “send a powerful message to commanders that it is their responsibility” to “investigate, suppress and punish” all suspected crime, a message that would bring about a “cultural shift” within the military services.[155]

That cultural shift could not come a moment too soon. The 2019 SAPR report determined the overwhelming majority of military sexual assaults in 2018 occurred on military installations,[156] with 26% of women and 43% of men even reporting they occurred at work or during duty hours.[157] While the Department of Defense asserts it will “prepare and hold new leaders and first-line supervisors accountable for advancing a culture free from sexual assault,”[158] it has identified no mechanism to enforce that accountability. This article’s appendix proposes such a mechanism through an amendment to Article 134, UCMJ, that would punish “superior responsibility” derelictions.[159] More to the point, irrespective of de jure command status, it would require even the most junior “superiors” to control their subordinates, as required by the law of war[160] and Federal statute.[161]

Even if lacking de jure command status, “[junior] leaders . . . command large numbers of subordinates [in the military],”[162] and are most likely to directly supervise the perpetrators of sexual assault.[163] Therefore, holding these leaders criminally accountable for their leadership failure is key to reducing sexual assault rates, albeit more difficult to establish at trial than for de jure commanders. Specifically, it must be shown the leader in question actually had a duty “to control” the putative subordinates in the first place. This can be established by showing the leader had “actual knowledge” or “reasonably should have known”[164] of the following: (1) the authority to take the allegedly omitted measure “to control” and (2) that the putative subordinate was subject to that authority.[165] Once the duty “to control” attaches, as with de jure commanders, any leader who failed to take “necessary” and “reasonable” measures within his material ability to exercise that control would risk criminal prosecution.[166]

IV.  Operational Offense Prosecutions

A.  Commander Expertise Required

While the risk of criminal prosecution can incentivize the lawful performance of duties, it can also discourage compliance if Service members risk prosecution in the course of that lawful performance, and MJIA fosters this risk in the context of operational offenses. This risk stems in part from the fact that “[a]ttorneys, no matter how experienced in criminal prosecution or defense, generally don’t engage in actual combat or plan or execute kinetic operations. Therefore, in the unique context of operational offenses, commanders are critical in defining and recognizing a criminal dereliction.”[167]

Consider, for instance, operational offenses MJIA does not impact: Article 99, UCMJ, (misbehavior before the enemy) and Article 110, UCMJ, (improper hazarding of a vessel or aircraft). Both are malum prohibitum offenses that regulate technical aspects of conducting operations that commanders are bound to understand better than lawyers by virtue of their professional competence and experience as operational commanders. For example, Article 99, UCMJ, penalizes one who “shamefully abandons, surrenders, or delivers up any command, unit, place, or military property . . . .”[168] It also criminalizes, among other behavior, “cowardly conduct”[169] and one’s willful failure to do “his utmost to encounter, engage, capture, or destroy any enemy troops.”[170] Similarly, Article 110, UCMJ, penalizes one who “hazards or suffers to be hazarded any vessel or aircraft of the armed forces.”[171]

The technical reason commanders are uniquely qualified to assess compliance with these UCMJ articles is that both require evaluating whether operators exercised appropriate professional judgment, the standards for which commanders are responsible for instilling. In particular, both articles distinguish between a criminal dereliction and an operational “error in judgment,”[172] an attribute they share with norms enforceable under the laws of war,[173] including targeting norms.[174] “Errors in judgment” can occur only in the context of “discretionary” duties,[175] mandatory legal obligations which leave discretion for “judgment and decision” on how to comply,[176] that is, “judgment as to which of a range of permissible courses is the wisest.”[177] These “permissible courses,” as such, are what “commanders are critical in defining,”[178] a feat they accomplish by instilling professionalism through training and other means as their duties require.[179]

B.  Objective and Subjective Reasonableness

1.  The Objective Test

Command-instilled professional standards inform the juridical analysis of whether a discretionary duty was violated, undergirding commanders’ ability to recognize derelictions of those duties. Specifically, an objective test assesses compliance with a discretionary duty by asking “if officers of reasonable competence could disagree on the issue” because, if they can, the act will be considered lawful.[180] Another way of articulating the objective test is to say that “[i]f the facts were such as would justify the action by the exercise of judgment . . . it cannot be said to be criminal.”[181] Conversely, an act will be considered unlawful if “every reasonable official would have understood that what he is doing violates” the law[182] or if “no reasonably competent officer would have concluded”[183] his or her acts were lawful. Perhaps the clearest articulation of the objective test, and clearest indication that professional standards inform the test, was by an eighteenth-century author, who wrote:

There are in every Art certain Maxims and in which all Artists agree: thus far there is Certainty, and no Artist doubts; But farther than this there may be Doubt and Difficulty; and there Artists may and will, as often as consulted, though impartial, differ. The single Point therefore is, Has the [accused] observed the plain, known Rules of his Profession?[184]

2.  The Subjective Test

“[P]lain, known” professional standards also inform the subjective test. That test requires an assessment of whether those accused willfully violated any aspect of their discretionary duties, as those who have cannot be said to have committed a “mere error in judgment.”[185] Put another way, the law imposes an obligation to act in “good faith,” a phrase which means “the absence of malice,” an “honesty of intention,” and “being faithful to one’s duty or obligation.”[186] Thus, if a Service member “could honestly conclude” his or her decision was justified in the context of the discretionary duty at issue, there is no criminal act.[187] On the other hand, if one acted with “actual knowledge” the act or omission contravened one’s military duties, that individual has not acted in good faith.[188] A Nuremberg tribunal, in making clear that military expertise informs the subjective test, articulated it as follows:

One trained in military science will ordinarily have no difficulty in arriving at a [legally] correct decision and, if he willfully refrains from so doing for any reason, he will be held criminally responsible . . . . Where room exists for an honest error in judgment, such army commander is entitled to the benefit thereof by virtue of the presumption of his innocence.[189]

C.  Targeting Norms and the Military Justice Improvement Act

It follows that safeguarding the presumption of innocence in the context of discretionary obligations requires the prosecutorial authority to have a thorough understanding of the standard of professional competence which Soldiers are expected to uphold in their field of expertise. The drafters of MJIA thus wisely excluded both Articles 99 and 110, UCMJ, from the reform, ensuring commanders will maintain prosecutorial authority over these operational offenses. However, MJIA’s drafters failed to exclude law of war targeting norms, which govern how the military applies lethal force on the battlefield. These norms are listed in the following table.

Table[190]

	Targeting duties	Information Assessment Duties
Target Identification	Attack lawful targets only.[191]	Take reasonable steps to identify a person or object as legal target.
Specialized Warnings	Do not attack objects subject to special protection (e.g., medical units, enemy hospitals, medical transports) unless the enemy has misused them.[192]	Exercise due regard in determining whether an object subject to special protection lost its protected status under the law of war.
	Provide “due warning” before attacking an object subject to special protection,[193] unless acting in self-defense.[194]	Take reasonable steps to determine what means of communicating the warning would be adequate.
Generalized Warnings	Provide advance warning before conducting an attack where protected persons may be injured, unless the circumstances do not permit.[195]	Take reasonable steps to determine whether the circumstances permit providing an advanced warning.
	When warning is required, provide “effective advance warning.”[196]	Take reasonable steps to determine what means of communicating the warning would be adequate.
Feasible Precautions	Take feasible measures to minimize incidental ham.[197]	Take reasonable steps to determine what precautionary measures are feasible.
Principle of Proportionality	Conduct proportionate attacks—the expected incidental injury must not be excessive in relation to the direct and concrete military advantage anticipated.[198]	Take reasonable steps to determine whether the incidental harm would be excessive in relation to the direct and concrete military advantage anticipated.

1.  Enforcement Under the Laws of War

To understand how MJIA relates to the enforcement of the duties in the table, one must first understand how those duties are enforced outside the UCMJ context. In any context, attacks made in compliance with law of war targeting duties can justify even the premeditated killing of innocents, for example, when death is collateral and proportionate to an attack on a lawful target.[199] Assessing whether a death can be so justified requires the prosecutorial authorities to understand the “the plain, known Rules” that inform the targeting duties in the table, and to distinguish between a decision that was subjectively and objectively reasonable from unlawfully caused harm.[200]

When a targeting decision was unreasonable, the accused will have violated the laws of war if he or she either acted willfully or was culpably negligent, provided the accused’s dereliction actually caused the alleged harm, as required by the “elements of proof.”[201] Even if no harm was inflicted, liability still ensues under the laws of war if one has attempted or conspired to violate a targeting duty.[202] Moreover, those who aided and abetted an unlawful targeting decision are liable to the same extent as the actual perpetrator, both under the laws of war and the UCMJ.[203] In any case, an accused is not required to have engaged in detached reflection in assessing legal compliance,[204] and the lawfulness of targeting decisions must be assessed from “the conditions as they appeared to the defendant at the time.”[205]

2.  Enforcement Under the UCMJ

If in those conditions the accused willfully violated a targeting duty, MJIA will impact the prosecutorial authority to the extent the “elements of proof” applicable thereto also establish an offense under a MJIA-covered UCMJ article.[206] In the case of willful derelictions resulting in death, the applicable UCMJ offense encompassing those elements would be premeditated or unpremeditated murder under Article 118, UCMJ.[207] For willful targeting derelictions not resulting in death, Article 128, UCMJ, would punish the act based upon one of the following theories: assault consummated by a battery[208] or aggravated assault in which either “substantial bodily harm is inflicted”[209] or “grievous bodily harm is inflicted.”[210] For willful derelictions resulting in property damage, liability would ensue under Article 109, UCMJ, which prohibits intentional unlawful harm to both real and personal property.[211] Note that for all but the latter offense, MJIA would vest prosecutorial discretion in a lawyer when the maximum punishment for a violation of the UCMJ article in question is greater than one year[212] and in any conspiracy, solicitation, or attempt to commit such offenses.[213]

If, by culpable negligence, an accused failed to comply with a targeting duty, MJIA’s impact again would depend upon the extent to which the “elements of proof” applicable to that dereliction also establish a “covered offense” under MJIA. If death resulted from such dereliction, the accused could be prosecuted for involuntary manslaughter under Article 119, UCMJ.[214] In the case of culpably negligent harm not resulting in death, the accused could be prosecuted for violating Article 128 under one of the following theories: assault consummated by a battery[215] or aggravated assault in which either “substantial bodily harm is inflicted”[216] or “grievous bodily harm is inflicted.”[217] In the case of harm to real property, the accused would be liable under Article 109,[218] and in the case of harm to personal property, the accused would be liable under Article 134.[219] Again, note that for all but the latter two offenses, MJIA would vest prosecutorial discretion in a lawyer when the maximum punishment for a violation of the UCMJ article in question is greater than one year.[220]

V.  The Impact on the Battlefield

A.  Compromising Unity of Command

Vesting prosecutorial discretion in lawyers and removing primary prosecutorial authority from commanders would compromise the “unity of command.” It would do so by creating what is known as “dual command,” which is defined as “[e]xercising the same powers and having the same authority over the same men.”[221] Under MJIA, for example, if a Soldier allegedly disobeys directives to attack a target in violation of Article 92, UCMJ, or is allegedly derelict in doing so under that same article,[222] a commander would possess prosecutorial authority.[223] However, if a Soldier does as directed and attacks the target in compliance with Article 92, UCMJ, but allegedly violates a targeting norm implicating a MJIA “covered offense,” a prosecutor would possess that authority.[224] Thus, MJIA would vest commanders and prosecutors with prosecutorial authority over the same targeting operation, and there is no guarantee those individuals will possess the same views regarding lawfulness. This arrangement risks creating “hesitation on the part of the subordinate, irritation on the part of the superior set aside, and disorder in the work.”[225]

The tendency towards disorder might be tempered were commanders and prosecutors able to achieve a degree of “unity of direction,” what contemporary military doctrine refers to as “unity of effort.”[226] That feat would require both commanders and prosecutors to have the same objectives in exercising their prosecutorial authority.[227] That feat, however, would likely not be achieved, as commanders must “win the war,” [228] while prosecutors must “seek justice.”[229] This is not to suggest that the pursuit of “justice” cannot coincide with a commander’s mission objectives. “Legitimacy,” for example, guides command decision-making as an abiding principle of warfare,[230] the purpose of which can be summarized as follows: “lose moral legitimacy, lose the war.”[231] Nonetheless, divergent objectives—and divergent expertise between commanders and prosecutors—will inevitably foster doubts that they would share the same views regarding the lawfulness of a contemplated targeting operation.

B.  Legal Uncertainty and Targeting Norms

Uncertainty fostered by the divergent objectives of commanders and prosecutors would compound the legal uncertainty law of war targeting duties inherently engender. These duties are akin to what Louis Kaplow refers to as “standard”-like norms, a type of norm he distinguishes from “rule”-like norms. A “rule”-like norm “might prohibit ‘driving in excess of 55 miles per hour on expressways,’” while “[a] standard might prohibit ‘driving at an excessive speed on expressways.’”[232] Rules, as such, tend to provide “advance determination of what conduct is permissible, leaving only factual issues for the adjudicator,”[233] resultantly making pre-decision legal advice less costly than standards.[234] By contrast “individuals tend to be less well informed concerning [what is permissible with] standards,”[235] and, as a consequence, they tend to “place a greater value on legal advice because advice reduces their uncertainty.”[236]

Currently, to assuage that uncertainty in the targeting context, authoritative advice can be attained simply by consulting operational experts on the battlefield, including one’s peers and superiors, those who live by the “plain, known Rules” infused by operational expertise.[237] Were lawyers to attain prosecutorial authority over targeting norms, that operational expertise would naturally become less authoritative, less likely to reduce uncertainty, for two principal reasons. First, while operational expertise might be useful in gauging how a contemplated targeting decision would be received by an operational commander who seeks “to win the war,” its predictive utility would certainly be less with a prosecutor who “seeks justice.” Second, “[a]ttorneys, no matter how experienced in criminal prosecution or defense, generally don’t engage in actual combat or plan or execute kinetic operations.”[238] Operational expertise, therefore, can be expected to play a lesser role in informing a lawyer’s prosecutorial decisions than it would an operational commander’s.

Post MJIA, three consequences will logically follow to undermine “[t]he decisive application of full combat power” by U.S. forces.[239] First, the time necessary to reach a target engagement decision will necessarily increase due to the increased legal uncertainty engendered by a prosecutor who not only lacks operational experience but also “seek[s] justice,” thereby creating opportunities for enemy forces on the battlefield.[240] Second, in more “legally complicated and doubtful cases,” U.S. forces simply will not “struggle through to decision,” as they will lack the time and resources to assuage their uncertainty.[241] Third, U.S. adversaries will be further incentivized to employ tactics that create legal uncertainty, such as human shielding,[242] to exploit the “asymmetry” that MJIA fosters.[243]

C.  The Nangar Khel Incident

That MJIA would foster such asymmetry is illustrated by the so-called Nangar Khel incident, which involved Polish forces.[244] The Polish have a military justice system that, as MJIA endeavors to establish, vests prosecutorial discretion in uniformed attorneys who are assigned to a “prosecutor’s office.”[245] That system’s detrimental impact on “[t]he decisive application of full combat power”[246] became glaringly apparent after a Polish patrol in Afghanistan came under attack from a nearby village in August 2007.[247] The patrol returned fire with mortar rounds, one of which killed several civilians, including a pregnant woman and some children.[248] A Polish prosecutor in Warsaw filed murder charges against seven of the soldiers; afterwards, the “Nangar Khel Syndrome” set in as the Polish soldiers became reluctant to engage the enemy, as they came to believe they could no longer trust their leaders.[249]

That lack of trust was grounded in the fact that prosecutors, rather than commanders, possessed ultimate authority “to control” Polish operations. The commanding general for Polish forces in Afghanistan later tacitly acknowledged:

The worst thing before was that we never knew if we were right or not, according to the law, in using force. . . . [I]t was easier to be hurt or dead than to act and be potentially jailed because you reacted to something. It wasn’t fair to send people here without the proper rules of engagement.[250]

Most revealing is the general’s assertion is that Polish forces “never knew if [they] were right or not, according to the law, in using force,” as it highlights legal uncertainty engendered by operational norms. It also highlights that Polish soldiers could not assuage that uncertainty by relying on their peers, superiors, and commanders on the battlefield, those who live by the “plain, known Rules” undergirding those norms. A U.S. Soldier who accompanied Polish units on patrol after the Nangar Khel incident explained how that uncertainty impacted the Polish soldiers’ tactical decision-making:

If there was even a chance of killing a civilian, they wouldn’t shoot. . . . I would try to explain to them, “You’re with me—if I shoot, you need to shoot too.” . . . They were afraid of going to jail. They were always thinking about [Nangar Khel]. They would say, “You don’t understand—I go to jail if I kill people.”[251]

VI.  Conclusion

While MJIA’s sponsors do not intend to undermine military readiness in ways illustrated by the Nangar Khel incident, the reform would do so by weakening the formal leadership authority commanders require to maintain “unity of command.” Maintaining that unity has made the difference in many a war,[252] and in weakening it, MJIA would increase the likelihood of Nangar Khel Syndrome, “beset[ing] U.S. forces, the implications [of which] would be global in scale.”[253] Indeed, the danger is that U.S. forces would go “into action with an invisible disadvantage which no amount of personal courage or numerical strength could entirely make up for.”[254]

This is not to deny that immediate action is necessary to address the continued prevalence of sexual assault in the military. The prevalence of indiscipline in any organization has long been understood as a hallmark of leadership failure,[255] one which justice requires be remedied,[256] as MJIA’s sponsors are attempting to do.[257] Nonetheless, for two principal reasons MJIA would ultimately fail to promote the justice its sponsors seek. First, it is premised upon the incorrect notion that reducing the occurrence of sexual assaults requires removing leadership authority. The empirical data shows just the opposite is true: that the proper exercise of leadership authority reduces the occurrence of sexual assaults.[258] Second, rather than promote justice, MJIA removes prosecutorial authority from commanders who are criminally accountable for prosecuting sexual assaults, and transfers it to prosecutors who are immune from that accountability.[259] In other words, MJIA guarantees impunity for the very leadership failure it seeks to remedy.

This article has proposed amending the Manual for Courts-Martial to include a superior responsibility provision that would promote the justice MJIA seeks without compromising military readiness. The military services, however, need not wait to begin implementing reform, as superior responsibility derelictions are already punishable under Article 134, UCMJ, in the manner reflected in the Appendix. As a first step toward punishing those derelictions, the military services should implement a leader-focused intervention training methodology to instill the “plain, known Rules” undergirding superior responsibility obligations. That training methodology would preferably be one proven to reduce sexual assault rates, such as the Air Force has implemented,[260] and targeted at those junior leaders most likely to supervise perpetrators of sexual assault.[261] Then, when leaders fail “to control” their subordinates in violation of the “plain, known Rules” instilled by the training, they would need to be disciplined to incentivize the prevention of sexual violence. In this way, the military services would promote justice without undermining military readiness.