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THE VEIL (OR HELMET) OF IGNORANCE: A RAWLSIAN THOUGHT EXPERIMENT ABOUT A MILITARY’S CRIMINAL LAW
This Article loosely adapts political philosopher John Rawls’s famous social contract thought experiment to interrogate a corner of law that receives too little theoretical attention: the separate federal code at the intersection of criminal law and national security that regulates both martial and non-martial conduct of millions of citizens, invests judicial responsibility and prosecutorial authority in nonlawyer commanding officers, operates with no territorial limitations, and pulls even certain retirees within its jurisdiction: the Uniform Code of Military Justice. Employing the perspectives of four “idealized” actors—Congress, a president, a Chairman of the Joint Chiefs of Staff, and a potential recruit—this “experiment” reconsiders the fundamental and necessary qualities of a specialized system of criminal law. Such qualities must render the system acceptable to civilian political leadership in a representative democracy exercising ultimate command and control over a professional military, but also accepted by those over whom its penal jurisdiction will rest. When considering the reasonable inferences and deductions each of these four actors will likely make from a hypothetical “original position,” four common principles emerge. Principles of nonrepulsion, retention, mission risk reduction, and compliance operate as four prescriptive corners bounding and framing a sensible set of answers to the following questions: (1) what conduct is to be proscribed and subjected to punishment? (2) what punishments, forms of discipline, or administrative censure are available for violations? (3) what processes shall organize the steps from investigating to punishing violations? (4) who shall have discretionary agency within the ranks to administer these processes with investigative, prosecutorial, and judicial authority? and (5) what constraints, limits, or individual rights and liberties shall operate to ensure due process, justice, and protection from that authority’s abuses? Answering these questions in light of the four principles goes some way toward articulating a “normative theory of criminal law”—a prospect that military justice currently lacks.
*Assistant Professor of Law, United States Military Academy at West Point; Fellow, Modern War Institute; Lieutenant Colonel, Judge Advocate, United States Army. The author has served as a platoon leader in combat, as well as judge advocate prosecutor and appellate counsel, and as chief of military justice for a large Midwestern Army installation.
Other assignments include Strategy Fellow for the Army Chief of Staff and Chief of Operational Law serving in Italy. The opinions and analysis in this Article are the author’s personal, academic views, and are not representative of the official positions of the U.S. Government or, specifically, the Army Judge Advocate General’s Corps or the U.S. Military Academy.
Special thanks to Professors Brenner Fissell, Eugene Fidell, Geoffrey Corn, my colleagues in the Department of Law at West Point, and the astute editors of the University of Richmond Law Review for their assistance. All errors are mine alone.