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June 9, 2013

Keeping Military Justice Just

By

Norm Cota had to make a lot of tough calls. On D-Day, he brought his men across the beach that became known as "Bloody Omaha." Five months later, he led his exhausted division into the devastating battle of the Huertgen Forest.

But the most difficult call of his career concerned Pvt. Eddie Slovik. Court-martialed for desertion, Slovik was sentenced to death. It was up to Coda, his commander, to review that sentence.

"I thought it was my duty to this country to approve that sentence," Coda said later. "If I hadn't approved it ... I don't know how I could have gone up to the line and looked a good soldier in the face."

The Army executed Slovik. Of the 21,000 servicemen convicted of desertion during the war, Slovik was the only one who was executed. Given the disparity of treatment, some thought Slovik the victim of injustice.

Heart-wrenching, difficult and sometimes controversial decisions are an inescapable part of any justice system -- military or civilian. And if any structural flaws hamper a system, we are obligated to fix them.

Today, the military faces an epidemic of crimes related to sexual violence. This is so serious and destructive, it must be rigorously confronted and resolved.

Some in Congress propose to "fix" the problem by taking commanders out of the military justice decision-making loop. But that's no "fix" at all. In fact, it would make matters worse.

The military justice system must serve our soldiers every bit as well as the civil justice serves civilians. But the nature of military service requires a unique justice system.

Military justice exists to, among other things, preserve good order and discipline. It must work on and off the battlefield. It must provide swift, efficient justice in keeping with the demands of rapid deployment around the world. It is linked -- inextricably -- to command. For these reasons, military commanders must remain an integral part of the military justice system.

In the civilian world, prosecutors can simply stroll to a trial court to file a case. In the military, however, there are no standing courts. Instead, courts-martial are created by a convening authority -- a commander in the chain of command.

The convening authority plays a critical role in almost all aspects of courts-martial. He or she has an obligation to make the system work. Stripping commanders of that responsibility would cripple what makes a justice work effectively in a military environment.

Moreover, it completely misses the real problem. The structural flaw in today's military justice system lies within the Judge Advocate General's Corps, not among the commanders.

The JAG Corps employs the military's lawyers, including prosecutors and defense counsel. Unlike the civilian criminal justice system, which is structurally designed to develop career prosecutors, the military justice system does not allow for the development of professional career prosecutors or defense counsel.

Today, JAGs spend one to three years prosecuting or defending cases, then move on to other duties completely unrelated to courts-martial. As a result, rookie JAGs are perpetually forced to "cut their teeth" on very serious cases well before they have had adequate training and experience to handle them.

Victims of sexual assault deserve to have their cases handled by truly experienced prosecutors, not by lawyers who, through no fault of their own, have handled only a few cases of any sort during their short tenure as a military prosecutor.

Congress should demand creation of a career track for prosecutors and defense counsel within the services' combined JAG corps, just like we have in district attorneys' and public defenders' offices around the country.

That would be a real fix for the real structural problem that afflicts our military justice system.

Washington Examiner Columnist James Jay Carafano is vice president for defense and foreign policy studies at the Heritage Foundation.

First appeared in The Washington Examiner.

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