Let’s Not Sabotage the Military Justice System

COMMENTARY Crime and Justice

Let’s Not Sabotage the Military Justice System

May 27, 2021 4 min read

Former Director, Center for National Defense

Thomas W. Spoehr conducted and supervised research on national defense matters.
U.S. Secretary of Defense Lloyd J. Austin III speaks during the 2021 West Point Commencement Ceremony on May 22, 2021 in West Point, New York. Michael M. Santiago / Getty Images

Key Takeaways

Sexual assault is unquestionably a major challenge in the U.S. military.

There are three fundamental reasons why taking military commanders out of the loop in serious crime cases is a bad idea.

This change would prove detrimental to discipline in the Armed Forces and will not have the desired effect.

Congress and the Biden Administration are contemplating changes to the military justice system that would make it more likely that serious crimes, such as sexual assault and child abuse, will go unpunished.

Congress is considering legislation that would remove military commanders’ authority to refer charges to trial and instead vest military lawyers with that responsibility. Defense Secretary Lloyd Austin is considering similar recommendations from a panel he convened to look at the issue. 

These initiatives are intended to reduce the number of sexual assaults in the military, but the method being pursued will result in fewer cases brought to court martial and a deterioration in overall order and discipline in our military. Policymakers should abandon this approach before real damage is done to the fabric of the U.S. military justice system.

Sexual assault is unquestionably a major challenge in the U.S. military.  Despite multiple changes to law and policy, the number of reported assaults remains stubbornly high. Servicemembers reported 6,290 sexual assaults in fiscal year 2020, a one percent increase over 2019.  In a profession that depends on mutual trust, even one assault is too many.

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In response, Congress and the DoD have implemented numerous changes, including trained victim's counsels, confidential reporting methods, increased prevention training, retaliation protections, and transfer programs for victims. Yet despite these changes, little progress has been made. Now with understandable frustration—but no supporting evidence of its efficacy—advocates propose to remove military commanders from the decision process for justice.

The die might have been cast when then-presidential candidate Joe Biden pledged in April 2020 to remove military commanders from the system. Although Austin says he is still reviewing the issue, it is not clear whether the White House would overrule any input the Pentagon provides in order to make good on Biden’s promise.

Austin says he wants to hear from his military leaders by the end of the month. But some have already gone on record on this idea, and it is unclear why they would have a change of heart now, after decades of service. Gen. CQ Brown, Chief of Staff of the Air Force, says he believes stripping commanders of disciplinary authority over felony violations, including sexual assaults, puts unit cohesion, combat effectiveness and readiness at risk. Army Chief of Staff Gen. James McConville has made similar statements.

Joint Chiefs of Staff Chairman Gen. Mark Milley had been a vocal advocate for keeping justice in the hands of commanders. In 2019, he testified that “…commanders and commanders alone are personally responsible and should be held accountable for the good order and discipline of their force regardless of whether it is sexual assault or drugs or crimes of violence or whatever… the key here to success is commanders.”

But Milley’s position has since softened. He recently told reporters that because the military has made so little progress in lowering the numbers of assaults, his mind “is very open” to a change.

Advocates suggest victims may not trust their commanders to take these crimes seriously and would be more likely to come forward if they knew the decision to refer charges was made by an outside lawyer instead.  But, if that is the case, the military has a much bigger problem than military justice. Commanders routinely ask their people to put their lives at stake. Hence a lack of trust implies a unit is not ready for combat.  

While the rationale for taking commanders out of the justice system is questionable, the reasons for keeping them involved are not. There are three fundamental reasons why taking military commanders out of the loop in serious crime cases is a bad idea.

First, the military operates in a unique environment, where the system of justice directly contributes to the accomplishment of the mission.  Commanders are responsible for the mission, but if justice is removed from their control, they lose the direct ability to maintain good order and discipline in their units. Instead, they must rely on some amorphous external agency. This will impact military readiness.

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Second, commanders who refer court martial charges are the most experienced and carefully screened officers in the military. They usually have over 24 years of service under their belts, have served in multiple assignments, and have undergone hundreds of evaluations. They are personally invested in the success of their units. The experience of military lawyers is much narrower and much more focused on the law. Placing responsibility for justice in a lawyer located miles away from the unit in question introduces the likelihood that any justice delivered will be inappropriate and thus less effective.

Finally, if the decision to refer serious criminal cases is given to military lawyers, far fewer cases will be referred to courts-martial. That is because military lawyers, like their civilian counterparts, must comply with the bar ethics rules and the standards for prosecutors. Prosecutors may not prosecute a case unless there is a reasonable likelihood of success on the merits. Unlike commanders, they cannot simply refer a case to a court-martial simply because they want to enforce good order and discipline.

There is still time to head off this train wreck. Senior military officers know the consequences of this change. Secretary Austin, himself a former four star general, knows the impact of such a decision. This change would prove detrimental to discipline in the Armed Forces and will not have the desired effect.

This piece originally appeared in Real Clear Defense