With congressional leadership urging quick passage of the current House version of the National Defense Authorization Act with no further amendments, changes to the military justice system contained in the bill will likely become law. Although Senator Kirsten Gillibrand and other reform advocates have expressed severe dissatisfaction with the final outcome, the measures projected to be adopted by Congress represent a fair and practical compromise on a number of issues.
The most significant of these, of course, is authority to initiate (“prefer”) criminal charges for covered offenses and refer those offenses to court-martial. While Sen. Gillibrand continues to advocate for transferring this authority from commanders to military lawyers for most felony offenses, the change required in the NDAA is limited to “covered offenses” such as sexual assault, stalking, murder, and manslaughter.
Sen. Gillibrand has warned against this more limited scope of offenses, asserting that it would create “pink courts” that would “marginalize” female service members and make a “mockery of the entire criminal justice system.” Aside from the offensiveness of deliberately selecting gendered language to condemn a reform measure with which she disagrees, this inflammatory description by Sen. Gillibrand represents a fundamental mischaracterization of the military justice system.
The decision whether to prefer and then to refer criminal charges to trial happens before the court-martial is convened. Actual court proceedings for “covered offenses” will be indistinguishable from those for non-covered offenses, regardless of whether commanders or lawyers make preferral and referral decisions. Raising the specter of “pink” courts, then, is as misinformed as it is offensive.
Although several civilian attorneys general and a small group of well-connected military justice experts have called for most felonies to be included in the change, many former senior military lawyers and current senior leaders share the opinion that commanders should retain authority for decisions affecting good order and discipline. For years, Sen. Gillibrand has claimed that court-martial decisions must be made by lawyers instead of commanders because removing the supposed inherent bias of commanders would result in “more convictions and more perpetrators going to jail” and that “you need that rate to be much higher to change the culture” of the military.
Even though the claim that a higher conviction rate is a necessary component of cultural change is an absolute anathema to American notions of due process and judicial fairness, at least conferring military lawyers with court-martial disposition authority only for “covered offenses” is supported by the predominant reform rhetoric. The “covered offenses” approach closely mirrors the recommendations presented earlier this year in the Department of Defense Independent Review Commission report, although the legislative version does expand on the IRC recommendations by capturing the crimes of murder and manslaughter.
It is only this “covered offenses” approach that has been evaluated by the DoD for implementation in practice, and the White House has explicitly endorsed only this more limited revision. Restricting the change to only covered offenses, then, constitutes a fair compromise between those calling for a broader scope of reform and those who maintain that the change is “more symbolic than necessary.”
Other commander-focused changes reformists seek to implement but that are not included in the NDAA, such as removing convening authority and panel (jury) member selection authority from commanders, would be merely cosmetic in practice.
The military does not have trial-level standing courts, but the actual trial proceeding progresses independently and autonomously once a commander does convene a court-martial. Likewise, in practice senior commanders select from a pool of potential panel members who are deemed “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament” as required by law. Implementing purely cosmetic “reforms” such as these would mollify some critics of the current military justice system, but such changes would have little or no measurable actual practical effect on the fairness of judicial processes.
Aside from commander-centric “reforms” such as those described above, the NDAA draft that is projected to become law likewise represents a commendable compromise of competing interests.
While the legislation mandates that a “special trial counsel” must exercise authority to prefer and refer charges for covered offenses, for example, the bill grants service secretaries a remarkable degree of discretion regarding how to implement the change in practice.
Likewise, the NDAA establishes sexual harassment as a criminal offense, making the military justice system the only jurisdiction in America to expressly do so. While some experts have expressed concern about such a measure, the actual punitive article established by the NDAA is admirably tailored to specifically address potentially coercive “quid pro quo” conduct that can be particularly concerning given the extent of structural interpersonal authority that is unique to military service.
Although Sen. Gillibrand lamented last week that “House and Senate Armed Services leadership have gutted our bipartisan military justice reforms behind closed doors,” not everyone on Capitol Hill struck such a pessimistic tone. Representative Jackie Speier, for example, described the “reforms” adopted by the House as “the most significant since the creation of the Uniform Code of Military Justice in 1950.” Rep. Adam Smith, Chair of the House Armed Services Committee, portrayed the legislative provisions as “bold reforms that deliver independence and justice for survivors of sexual assault in the military.”
In short, the military justice reform measures reflected in the draft legislation that is projected to become law represent a fair compromise between competing interests that, perhaps most importantly, have been studied for implementation in practice. The prudent course of action for everyone concerned now will be to faithfully execute the “reforms” and to adopt an evidence-based approach to assessing the effectiveness of these latest changes.
Brian L. Cox is a doctoral candidate lecturer and JSD candidate at Cornell Law School. He retired as a captain in 2018 after serving 22 years in the Army. During his military career, Brian served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and a judge advocate. As a military lawyer, he performed duties as a prosecutor, brigade judge advocate, Special Assistant U.S. Attorney, and military magistrate, among other assignments. His combat deployments include Iraq in 2003-04 as a combat camera operator and Afghanistan in 2013-14 as an operational law attorney then Chief of International and Operational Law for Regional Command-East.
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