Thought for the day

My good friend Gene Fidell recently posted this thought:

New York County Surrogate Gideon J. Tucker wrote 150 years ago: “No man’s life, liberty or property are safe while the Legislature is in session.” Here’s a thought about Congress at work in 2016.

His note is in relation to major (and minor) suggestions for change in military justice practice.  In his blog post he observes:

Legislative consideration of the proposed UCMJ changes has been conducted in secret in both chambers. There has been one closed briefing, that we know of. Presumably, there has been a good deal of back-and-forth between House and Senate Armed Services Committee staffs, on the one hand, and the Defense Department, on the other. And we know of stray correspondence that the Hill has received (from the ABA, of all places) objecting to parts of the legislation. What’s missing is hearings that are open to the public, and in which competing viewpoints can be heard and tested.

Assuming this to be the current practice, it departs substantially from the robust set of open and lengthy hearings and inputs when the “UCMJ” was birthed in 1950.  You can read some of the public history here at the Library of Congress.  I have to agree with him:

Shame on Congress for conducting the public’s business in this fashion on an issue as important as military justice. “Public Law” is not a figure of speech. It is difficult to think of a more effective — or more profoundly scandalous — way to erode public confidence in the administration of military justice than to frame legislation, effectively, in secret.

This not to say there aren’t some good offers, but they ought to be open and openly discussed.  For example, there is a suggestion to change the voting percentage for guilty from two-thirds to three-quarters (and–I have read elsewhere–to increase the minimum required number of members on a panel–this doesn’t appear in either report).