Opinion | Judiciary

Our new praetorian guard?

The views expressed by contributors are their own and not the view of The Hill

Last week, Sen. Kirsten Gillibrand (D-N.Y.) sought a floor vote for her bill to reform military criminal procedure. Her bill, SB 1520, co-sponsored by 65 other senators, would take away the power of commanding officers to decide whether to prosecute felony-level offenses at court-martial. But, using his power as chairman of the Armed Services Committee, a single senator - Sen. Jack Reed (D-R.I.) - was able to prevent the vote. Students of Congress are unsurprised by this. The power of committee chairs and minority blocs in the Senate is well known. But today's minoritarian flex is more insidious: here it is a minority representing the interests of the Pentagon, the uniformed leaders of the military and powerful former military leaders. It was an inversion of the bedrock premise of democratic (meaning majoritarian) civilian control over the military.

That a democratic, majoritarian institution should control the military is reflected in the Constitution's Make Rules Clause - Congress, not generals and admirals, decide the standards of conduct applicable to military members (including criminal law).

This is what separates the United States from Myanmar.

But if 66 Senators - nearly enough to remove a sitting President - can be prevented from implementing their will concerning the military criminal procedure, we have inched closer to turning Washington into Yangon.

Sen. Jim Inhofe (R-Okla.) was Sen. Reed's ally in the endeavors. The ranking member of the committee apparently feels no shame in thwarting the clear will of his colleagues on this matter. He points to the military's views on the issue, as well as his own military experience. "Those of us in the military have very strong feelings about the role of the commander," he said. The use of the word "feelings" (not thoughts) and the reference to experience are telling. The claim is similar to that of a witness at a recent hearing that the commander's role was "sacred." These are appeals to nonrational justifications, and they seek to insulate themselves from criticism by adding that only those with military experience can understand the justifications. They are tailor-made rebuttals to a civilian legislature attempting to "make rules" with which the military - or powerful military alumni - disagrees; they are also the complete inversion of the constitutional order.

An institution with the power to kill people and topple governments should not resist our elected senators' clear will, cheering as a procedural loophole allows a small minority to prevent popular reforms from being implemented.

Moreover, members - current or former - of such an institution should not claim that it alone possesses the capacity to understand the mysteries of "good order and discipline," rebuffing rational arguments to the contrary made by those with the democratic legitimacy that that same institution lacks.

An institution that took this path would be an institution seeking to become a new Praetorian Guard, an American Tatmadaw.

Brenner M. Fissell is an associate professor of law at Hofstra University.

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