The Convening Authority: Powers and Limits
Key takeaways
- Convening power comes from command: assignment to a position named in Articles 22–24 confers it by operation of law, and Secretaries can designate others.
- Member selection is personal to the CA and non-delegable — staff can nominate, but the CA must select. United States v. Ryan, 5 M.J. 97 (C.M.A. 1978).
- The only lawful selection criteria are Article 25’s six: age, education, training, experience, length of service, and judicial temperament — rank is not one of them.
- An accuser — statutory or personal — may not refer the case to a SPCM or GCM; a subordinate of the accuser may not either.
- Since late 2023, independent special trial counsel — not the CA — decide whether covered offenses such as sexual assault are referred to trial.
Where the power to convene comes from
Convening a court-martial is an attribute of command. The President holds the power as commander in chief; Congress extended it by statute to commanders occupying positions named in Article 22 (general courts-martial), Article 23 (special), and Article 24 (summary); and the President or a service Secretary may designate additional convening authorities, including commanders of units designated as “separate.” The classic formulation:
“Courts-martial are the creatures of orders; the power to convene them being an attribute of command.”Runkle v. United States, 19 Ct. Cl. 396, 409 (1884)
Because the power attaches to the position, an officer who assumes command generally acquires it automatically — even, the Air Force court has held, where the assumption of command violated a service regulation, since courts will not attach jurisdictional significance to regulations Congress did not label jurisdictional. And when command changes hands mid-case, the successor may act on the case; adoption of a predecessor’s panel is generally presumed from the successor’s referral to it. United States v. Gilchrist, 61 M.J. 785 (A. Ct. Crim. App. 2005). Convening (creating the court and naming members) is distinct from referral (sending preferred charges to that court) — the same commander usually does both, but they are separate acts with separate rules.
A power personal to the commander
Two decisions belong to the convening authority alone. The referral decision is personal — though the courts have held it is not jurisdictional error for someone else to physically sign the paperwork at the CA’s direction, so long as the decision itself was personally made. And member selection is personal and non-delegable: Article 25 requires the CA to detail those members who, “in his opinion,” are best qualified. A staff that hands the commander a pre-cooked list to rubber-stamp violates the statute. United States v. Ryan, 5 M.J. 97 (C.M.A. 1978); United States v. McCall, 26 M.J. 804 (A.C.M.R. 1988). The line is thin, though — a CA who personally signs a convening order adopting a final list submitted by the chief of staff has been held to have personally selected the members. United States v. Benedict, 55 M.J. 451 (C.A.A.F. 2001).
The staff’s role has teeth of its own: functionaries who build nominee lists on improper notions — like a preference for “hard discipline” — commit error that spills over onto the CA. United States v. Hilow, 32 M.J. 439 (C.M.A. 1991). And a member who appears on the convening order without ever being selected by the CA is an “interloper” whose presence is jurisdictional error the CA cannot ratify after the fact. United States v. Peden, 52 M.J. 622 (A. Ct. Crim. App. 1999).
Article 25: the six selection criteria
Virtually any member of the armed forces is eligible for panel duty, but the CA may select only those considered best qualified by reason of age, education, training, experience, length of service, and judicial temperament. Article 25(d)(2); United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008). There is no constitutional right to a panel reflecting a cross-section of the military community — but there are rules about what the CA may and may not consider:
- Rank is not a criterion. Members may not be junior to the accused when it can be avoided, but beyond that, rank cannot be used to systematically include or exclude. Selections limited to E-7s and above, or documents that make rank look like a filter, have cost the government findings and sentences. United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000); United States v. Benson, 48 M.J. 734 (A.F. Ct. Crim. App. 1998).
- Race and gender: inclusion for good-faith representativeness only. A CA may take race or gender into account in a good-faith effort at a representative panel — but a policy of seating “hardcore” female members in sexual assault cases to drive outcomes is unlawful. United States v. Smith, 27 M.J. 242 (C.M.A. 1988). Nothing requires members of the accused’s own race to be included. United States v. Bess, 80 M.J. 1 (C.A.A.F. 2020).
- Duty position may proxy for the criteria. Preferring commanders and first sergeants has survived challenge absent improper motive. United States v. White, 48 M.J. 251 (C.A.A.F. 1998).
- Volunteers and shortcuts are dangerous. Nominating self-selected volunteers was error — cured only because the CA personally selected from the list and voir dire removed any bias. United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004).
How panel selection goes wrong
Selection challenges travel two paths. Traditionally, the defense bore the burden of showing improper exclusion of qualified personnel, after which the government had to show no impropriety by a preponderance. The modern trend treats court stacking as unlawful command influence: once the defense produces some evidence of improper selection with a logical connection to the trial, the burden shifts to the government to prove beyond a reasonable doubt that the motive was benign. In United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018), the deliberate concentration of female members in a sexual assault case, unrebutted by any benign explanation, was resolved against the government under that framework — the burdens and remedies are unpacked in our guide to unlawful command influence and its litigation mechanics.
Proof comes from two directions: attacks on the array itself (a panel of only E-8s and E-9s “creates an appearance of evil,” United States v. Nixon, 33 M.J. 433 (C.M.A. 1991)), and attacks on the nomination and selection memoranda, where the filtering usually leaves fingerprints. Whatever survives selection is then tested member-by-member through voir dire and challenges.
Accuser disqualification
A convening authority must be reasonably impartial to refer a case, and an “accuser” is not. Under Article 1(9), an accuser is anyone who (1) signs and swears to charges, (2) directs that charges nominally be signed and sworn by another, or (3) has an interest other than an official interest in the prosecution. The first two produce statutory disqualification; the third, personal disqualification — tested by whether a reasonable person could impute to the CA a personal feeling or interest in the outcome. United States v. Jeter, 35 M.J. 442 (C.M.A. 1992). The consequences differ:
| Action before trial | Statutorily disqualified CA | Personally disqualified CA |
|---|---|---|
| Refer to SPCM or GCM | No | No |
| Appoint the Article 32 preliminary hearing officer | Yes | No |
| Forward charges with a disposition recommendation | Yes, noting the disqualification | May forward, but with no recommendation |
| Convene a summary court-martial or act administratively | Yes | Yes — SCM and administrative measures remain available |
The case law draws the personal-interest line functionally. Official acts — issuing the order the accused later violated, closely monitoring an accident investigation, even threatening to “burn” an accused who refused a pretrial agreement — generally do not make the CA an accuser. United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009); United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999). What crosses the line is a stake that touches the CA’s ego, family, or property, or animosity beyond misguided zeal — a hazing campaign the CA treated as a personal affront, or an undisclosed private relationship connecting the CA to the case. The rule reaches down as well: a commander subordinate to an accuser may not convene the court; charges must go up to superior competent authority. R.C.M. 504(c)(2). Disqualifying conduct after trial matters too — a CA whose public comments showed an “inelastic attitude” toward clemency was barred from taking post-trial action. United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003); see our guide to the post-trial process.
Waiver: use it or lose it
Accuser status is not jurisdictional. An accused who fails to raise it at trial will generally be held to have waived it. United States v. Shiner, 40 M.J. 155 (C.M.A. 1994). That makes the issue a pretrial-motions issue, full stop: the defense must investigate the CA’s connection to the case — the emails, the statements at commander’s calls, the relationships — before arraignment, not after conviction.
What this means if the commander who charged you is the commander trying you
The system tolerates a surprising amount of command involvement — official acts rarely disqualify. But it does not tolerate a personal stake, and it does not tolerate a panel built to convict. If the CA made your case personal, said so publicly, or if the members all share a suspicious profile, those facts support motions that can move the case to a different convening authority or dismantle the panel. They are also perishable: unraised, they are waived. Have counsel scrutinize the convening order and the CA’s conduct now.
The OSTC carve-out
The reforms that took effect in December 2023 moved the most consequential CA power — the decision to prosecute — for a defined list of covered offenses, including sexual assault, domestic violence, and murder. For those offenses, independent judge-advocate special trial counsel, outside the accused’s chain of command, decide disposition and referral. The convening authority still convenes the court-martial and still details the members under Article 25; what the commander lost is the charging decision. The division of labor, and what it means in an Article 120 case, is covered in The Office of Special Trial Counsel and our guide to military sexual assault cases.
Practitioner’s note
In accuser and stacking litigation, discovery is the case. We request the complete selection file — nomination memoranda, staff emails, the questionnaires, prior convening orders from the same CA — and we compare panels across cases: the same commander’s selections over a year tell you more than any single order. We also interview early. Convening authorities testify in these motions, and their explanations tend to harden by the time of an Article 39(a) session; the informal statements made before anyone saw the issue coming are often the most honest evidence of what the selection was actually about.
Frequently asked questions
What does a convening authority actually do?
The convening authority creates the court-martial by convening order, personally selects the panel members under Article 25, refers charges to trial for non-covered offenses, approves certain pretrial delays and excusals, and retains limited clemency powers after trial. For covered offenses like sexual assault, the referral decision now belongs to special trial counsel instead.
Can a convening authority delegate picking the panel?
No. Staff may gather nominations, but the selection decision is personal to the convening authority and cannot be delegated. A rubber-stamped staff list violates Article 25, and a member who sits without ever being selected by the CA is an interloper whose presence is jurisdictional error.
What makes a convening authority an accuser?
Three things: personally signing and swearing to the charges, directing someone else to sign them, or having a personal — rather than official — interest in the prosecution. The test for personal interest is whether a reasonable person would impute to the commander a personal feeling or stake in the outcome, such as animosity beyond misguided zeal.
What happens if the convening authority is disqualified?
A disqualified CA cannot refer the case to a special or general court-martial; the charges must be forwarded to a superior competent authority for disposition. A statutorily disqualified accuser may still appoint the Article 32 hearing officer and recommend a disposition if the disqualification is noted; a personally disqualified CA may do neither. The issue is waived if not raised at trial.
Is court stacking illegal?
Yes. Selecting members to achieve a result — a conviction or a harsh sentence — violates Articles 25 and 37 and is treated as a form of unlawful command influence. Once the defense produces some evidence of improper selection, the government must prove a benign motive beyond a reasonable doubt, and failures have led to sentences and findings being set aside.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington spent his Army years watching convening-authority decisions from the inside — as a prosecutor advising on referrals and as a defense counsel challenging them — before building a 25-plus-year civilian practice defending courts-martial worldwide. He has litigated accuser disqualification, panel-stacking, and selection-file discovery fights across the services, and teaches trial advocacy nationally, including how to turn a convening order’s paper trail into a pretrial motion.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has defended service members for more than 20 years in cases where the commander’s role was itself the battleground — from sexual assault prosecutions referred amid command pressure to panels whose composition demanded challenge. She has represented accused members in every branch, practices worldwide in English and Spanish, and legally reviewed this guide against Articles 22 through 25 and the current case law.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.