U.S. military leaders are held to an unforgiving standard: They are responsible for “everything their unit does—or fails to do.” When a unit fails—a ship runs aground, troops die due to improper training, a weapon is lost, or merely because a superior officer “loses confidence in their abilities”—commanders are relieved of their duties.
Until now, this immense responsibility was accompanied by the commensurate authority to investigate and act on alleged crimes and incidents within their units. But not anymore. The Navy Secretary recently announced that commanders are no longer authorized to investigate allegations of sexual harassment in their units. Instead, they must send those allegations to the next level up the chain of command and wait for an outside investigator to be appointed.
The change is unnecessary and bodes ill for the U.S. military, especially if the other departments follow suit.
It’s part of a larger erosion of authority that has taken place in the U.S. military. Last year, largely against the advice of the nation’s senior military leaders, Congress and President Biden transferred the authority to refer serious crimes to court-martial from commanders to military lawyers outside the chain of command. The change was based on the misguided belief that commanders could not be trusted to fairly investigate and punish sexual crimes.
Unfortunately, the change will lead to fewer court-martial cases being brought, since military lawyers (like all attorneys) cannot prosecute a case unless there is a reasonable likelihood of success on the merits. Commanders (non-lawyers), on the other hand, could and did send cases to a court-martial if they thought there was probable cause that the accused had committed the offense.
Navy Secretary Carlos Del Toro’s latest change sends yet another message to Navy ship captains and Marine Corps unit commanders that they cannot be relied upon, in this case, to investigate reports of sexual harassment. These are the same commanders entrusted with incalculable amounts of lethal American firepower in the form of missiles, jet fighters, helicopters and torpedoes.
Yet apparently Mr. Del Toro feels they cannot be depended on to look impartially into allegations of sexual harassment and must instead fire off a message to a potentially far-off superior and wait for the arrival of an outside investigator.
To be sure, there have been a handful of instances where commanders failed to properly respond to allegations of sexual harassment and assault in their commands. Those officers must be held to account. Even one sexual assault is too many.
But two law professors provided some much-needed perspective on this situation in a 2021 Gonzaga Law Review article. They noted that: “the rate of sexual assaults in the military is lower than civilian jurisdictions,” that “[m]ilitary victims report offenses at a higher rate than the jurisdictions examined,” and that “[t]he military prosecutes a higher percentage of sexual assault crimes as compared to the total number of crimes than civilian jurisdictions.”
So, was it necessary or even appropriate to strip commanders of their authorities? No. It’s not even a close call.
One of the long-standing competitive advantages that the U.S. military has enjoyed over its adversaries is the ability to act quickly. The key to that ability is understanding your bosses’ intent and acting within those intentions.
We see in the Russian army’s performance in Ukraine an inexplicable slowness and failure to exploit opportunities. Much of the difference between how the Russian and American militaries operate can, in large measure, be attributed to differing levels of trust. Fearful of making the wrong choice, Russian unit commanders typically wait for orders from their superiors. By contrast, American military leaders act, knowing they have the trust of their superiors who will underwrite mistakes made in good faith.
That’s due, in large part, because our officers are exceptionally well trained and have developed outstanding judgment. By the time they are promoted in rank and given the privilege of command, they have made hundreds of thousands of decisions, small and large, that have affected the training, equipping, morale, and careers of thousands of men and women.
By curtailing the authority of commanders—first, to refer charges to trial, and now, in the case of the Navy to merely investigate allegations of sexual harassment—Pentagon leadership is purposefully undermining the authority of commanders to do their job and eroding the trust that must be present for U.S. forces to fight and win.
Trust between commanders and superiors and subordinates is an ephemeral thing; it can’t be measured or counted, but when it is gone, it’s gone, and when war comes, it’s too late to try to rebuild it.
Let’s hope the civilian leaders of the military come to recognize the consequences of their actions before the harm becomes irreparable and U.S. forces suffer the consequences on a future battlefield.
This piece originally appeared in The Washington Times