Eugene Fidell talks to lawmakers in 2009 about a proposal to change the Feres Doctrine and allow military members to sue if they become victims of medical malpractice. Congress did not approve the measure. (Staff)
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Fidell served as a judge advocate in the Coast Guard from 1969 to 1972. He later co-founded and served as president of the National Institute of Military Justice from 1991 to 2011.
The Uniform Code of Military Justice is on the brink of a much-needed overhaul, says military law expert Eugene Fidell. Now it’s up to military and civilian leaders to ensure the needed changes are crafted with care and forethought.
A former military defense attorney, co-founder of the National Institute of Military Justice and professor of military justice at Yale Law School, Fidell said it’s time for the U.S. to ditch the antiquated rules its military justice system inherited from 18th century England.
Commanders should no longer decide who faces punishment and who doesn’t, Fidell said, citing in particular the case of Lt. Col. James Wilkerson, whose conviction on sexual assault charges was overturned by Air Force Lt. Gen. Craig Franklin. That case helped galvanize a sense in Congress and in the public that the military’s justice system is failing to protect women from sexual assaults.
“It’s rare that we have the stars aligned in quite this way and people’s attention focused on this otherwise obscure field,” he said.
Q. What is your main concern regarding the state of the
military justice system?
A. I really have concluded, after many years of study and involvement with this system, that it’s time to get rid of the command-centric features that we inherited from King George III. I have a serious concern about this key structural aspect of the system. It’s an aspect that has been abandoned by a number of other countries that owe their legal roots to the United Kingdom — including the U.K. We’re more Catholic than the pope on this.
Q. You’ve said the military justice system could be facing a tipping point. Can you explain what you mean by that?
A. For the first time in decades, this key issue of command-centric structure has come to the fore, thanks to the Wilkerson case and in the context of the sexual assault issue. But, in fact, it’s a structural issue that applies across the board to any offense under the UCMJ. At times the command-centric aspect is of great concern and other times of lesser concern, but it’s there all the time. And it’s time for us to give it a decent burial.
Q. There seems to be a great deal of interest from civilians in military justice cases in the past few years. What is it about military court cases that capture the public’s attention?
A. Military justice has always been like catnip for civilians. It’s fascinating, it’s dramatic, it’s the individual against the state. It’s something a little unfamiliar. It’s people wearing costumes, they’re speaking a different language, it has elements of ceremony to it. It’s very cinematic. And, indeed, it’s impossible — in my opinion — to make a bad movie about military justice. So we have kind of a love affair, even though most Americans will never wear the uniform.
Q. Why is it so important for civilians to trust the military justice system?
A. I think, in a democratic society, we have to have confidence in the military justice system. I don’t want the public to lose confidence in the military justice system. That’s why I think this should be a very high priority. Members of the Senate Armed Services Committee and the House Armed Services Committee have to be alert and critical in their interaction with the military and not be passive. Distance is good — that’s what’s called civilian control of the military.
Q. Military leaders have argued that removing the command-centric structure would harm good order and discipline. What are your thoughts on that
defense of the current system?
A. I don’t buy it.Their argument is essentially, “We need it because we need it.” Troops will somehow think less of them, and they’ll have less clout within their command. The problem is that if you listen carefully to what the military brass has been saying, they talk about discipline when, in fact, a lot of what’s at issue here is the administration of justice. And those two are not necessarily the same thing. Commanders cannot even now truly control the administration of justice.