A Missed Opportunity to Improve Military Justice

Emily Parkin

The draft National Defense Authorization Act (NDAA) that just emerged for Fiscal Year 2022 (FY22) represents a huge missed opportunity regarding military justice reform. It is a missed opportunity to serve justice for victims, for service members accused of crimes, and for the health – the good order and discipline – of the entire armed forces. In fact, it will likely make things worse before they are better through unnecessary complexity and unfairness due to different processes for different crimes. And it may stave off, for years, the true structural reform that our service members richly deserve. Yet one must acknowledge that there is some good here, some movement in the right direction, buried in this Frankenstein, multi-headed hydra mess of a military justice system Congress has further built with this latest set of piecemeal changes.

Bottom line: the FY22 NDAA military justice reform provisions transfer only a narrow class of crimes out of the chain of command and into the hands of military lawyers under their respective service secretaries. The “covered offenses” are primarily sex and domestic violence offenses – and, surprisingly, murder, manslaughter and kidnapping, which were not part of the original Department of Defense (DOD) proposals focused on sex and related domestic violence offenses. Military lawyers outside the chain of command (termed “special trial counsel”) will be able to make binding decisions to prosecute for this narrow class of crimes and for those they deem related, and to enter into plea bargains. But the FY22 NDAA does not give the special trial counsel authority to actually convene the courts-martial (there are no standing courts in the military). Senior commanders of the accused will maintain their current authority and responsibility to convene courts-martial – and to hand-select the panel members (jurors), plus grant witness immunity and defense expert requests. Commanders seemingly also remain free under the FY22 NDAA to stymie prosecutions by granting resignations or separations in lieu of court-martial, even if the special trial counsel desires prosecution.

In short, under the draft FY22 NDAA, military lawyers will essentially be ordering senior commanders to convene courts-martial in the narrow class of largely “pink” crimes “covered” by the FY22 NDAA. And senior commanders will maintain current authority to dispose of all criminal allegations against members of their unit, outside of the narrow range of FY22 NDAA “covered” offenses.

Critically, the FY22 NDAA moves the ball forward the most in sentencing reform. It mandates judge-alone sentencing for all non-capital crimes, bringing military justice in line with civilian standards and marking a vast improvement over current court-martial sentencing, which provides for panel (jury) sentencing if the panel decided guilt. The FY22 NDAA also provides for offense-based sentencing, another advancement, and directs the establishment of seemingly non-binding sentencing guidelines.

Also on the down side, however, the FY22 NDAA does not require any determination that sufficient admissible evidence exists to prosecute, a gold standard in the federal system and most states, and leaves in place the arguably unconstitutional allowance of non-unanimous guilty verdicts in non-capital cases. While this NDAA represents movement in the right direction, its limited aperture regarding class of affected crimes, and its maintenance of a large role for commanders in criminal prosecution, together represent a significant failure of vision by legislators and a lack of appreciation of basic precepts of procedural fairness.

Background

First, some background. The half-measures in the FY22 NDAA result from the years-long, bitter war waged by DOD against substantial military justice reform. Such dogged resistance has prevailed despite the decades-old crises of sexual assault and harassment within the ranks – crises that plainly reveal a fundamentally-flawed military criminal justice system.

The core issue at stake for DOD is the amount of control that senior commanders (the designated officers in charge of units composed of individual service members) possess over criminal prosecution of service members in their own units. The current near-total command control of American military justice stands in stark contrast to the criminal justice gold standard in the civilian world, and of the militaries of the United States’ major allies such as Great Britain, Israel, Australia, and Canada: impartial, independent prosecutorial decisions made by trained lawyers separate from the improper influences of the chain of command.

U.S. commanders currently select members in their unit to be prosecuted — or not prosecuted, as commanders can dispose of misconduct however they seem fit, including by disregarding it or responding with non-criminal disciplinary measures. Commanders also select the charges, hand-select the panel (jury) members, and, until a 2014 change, could completely disapprove or approve of the findings and sentences. For years, DOD has fought tooth and nail against divesting senior commanders of this vast power, which commanders have largely wielded since the American Revolutionary War, when the newly-united colonies adopted it from the same despised King George III they were trying to overthrow. Ironically, his tyranny remains alive in the American military justice system and survives in part in the FY22 NDAA reforms about to be passed into law.

In 2013, Senator Kirsten Gillibrand first proposed legislation (as she has every year since) to remove commanders’ plenary power over serious, “common law” non-military crimes carrying more than one year maximum (such as rape, arson, burglary, robbery and murder). Her proposal would have transferred that authority from senior commanders to independent, experienced lawyers separate from the chains of command of both alleged offenders and victims.

While such congressional attention was prompted, and has since largely been sustained, by the military sexual assault and harassment epidemics, the fundamental defect of the commander-run military justice system was and is not confined to only sex crimes, a truth that Senator Gillibrand’s proposal recognized. Republicans such as Harvard-trained lawyer Senator Ted Cruz joined Senator Gillibrand, a Democrat, in bipartisan recognition of the fact that the independence and impartiality of prosecutors is essential for the handling of all serious crimes in the military. So why, in the FY22 NDAA, should sexual assault be treated differently than assault and robbery? Prosecutorial independence is a fundamental criminal law principle, and is crucial for fair disposition of all offenses, not just sex and domestic violence crimes.

2021 and the Precipice of Real Reform

For years, DOD successfully blocked the annual proposed legislation to transfer prosecutorial authority for all serious common law crimes to independent military lawyers. But this year, major military justice reform seemed destined for passage following the brutal murder and associated sexual harassment of Army Specialist Vanessa Guillen. Lawmakers were fed up, not only with the military’s failure to reduce sexual assaults and harassment, but with the lack of confidence service members expressed in the military justice system overall. As the Fort Hood Independent Review Committee’s report on Specialist Guillen’s murder revealed, service members’ trust in commanders to handle crimes was sorely lacking – and it is their trust that is most vital to a healthy military.

So, when Senator Gillibrand and her allies introduced the bipartisan, comprehensive Military Justice Improvement and Increasing Prevention (MJIIPA) proposal, and subsequently appended it to the Senate Armed Service Committee’s version of the FY22 NDAA, it seemed poised to finally pass. As with previous proposals for military justice reform, it would have vested prosecutorial discretion over all serious non-military offenses in military lawyers independent from the accused’s and victim’s chains of command. And it would have given those independent lawyers the requisite authority to convene courts-martial.

However, DOD outmaneuvered military justice reform proponents and sold its “Independent Review Commission of Sexual Assault in the Military” (IRC) proposal to Capitol Hill. Early this year, DOD Secretary Lloyd Austin myopically tasked this ad hoc body with studying only how the military handles sexual assaults and harassment. This narrow mandate was a missed opportunity to analyze the structural flaws of a commander-owned and commander-operated military justice system nested within an overarching, commander-run hierarchical military organization, one in which impartial justice bows in appearance — and, too often, reality — to command pressure.

With such a narrow charge, of course the commission produced proposals that (outside of sentencing procedures) focused narrowly on sex offenses plus related domestic violence and retaliation crimes, collectively termed “special victim offenses.” The IRC recommended the creation of “special victim prosecutors” — who, under the original IRC report would work for the Secretary of Defense, but under the FY22 NDAA changes will instead work for respective service secretaries as “special trial counsel” — authorized to decide whether allegations of special victim offenses against service members should go to court-martial or not, with their decisions binding on commanders who would then convene the actual courts. The IRC’s recommendations left much of the rest of the system unchanged, including commanders as both prosecutorial deciders and jury-member-selectors for most serious and lesser crimes. The IRC’s recognition that the lawyers it proposed be vested with prosecutorial dispositional authority for special victim offenses be independent from the chain of command of the accused and victim was and remains critically important (operationalized in the IRC report by having these new prosecutors work for the Secretary of Defense). However, neither the IRC report nor the resultant FY22 NDAA goes far enough in that regard, given that both retain senior commanders as convening authorities for all courts-martial, including special victim crimes.

Military justice experts immediately warned against setting up such “pink courts,” noting that the military justice system’s fundamental flaw was the proverbial presence of the commander in military courtrooms; that is, the control by commanders of the disposition of all criminal allegations against service members for all serious crimes. As important as proper and fair accountability for such special victim crimes is, truly fair and just accountability, as the majority of the Senate concluded, was and is warranted for all serious crimes.

Over the summer, the DOD-supported, narrow “pink courts” IRC recommendation became proposed legislation in direct competition with the far broader MJIIPA, with both attached as amendments to the Senate version of the FY22 NDAA. The House version only contained DOD’s favored, narrow “pink courts” proposal.

FY22 NDAA: A Frankenstein’s Monster

So where are we now? The results of the clash between competing proposals is clear with the release of the text of FY22 NDAA, which will likely soon pass both chambers and be on President Biden’s desk for signature. Its proposal for military justice reform is essentially what DOD supported in the IRC’s proposal, morphed by the sausage-making of legislation.

The FY22 NDAA contains (or lacks) the following key points related to military justice reform:

Creates “special trial counsel” with authority to make binding prosecutorial disposition decisions only for a very narrow range of “covered offenses,” which include the expected offenses of sexual assault, retaliation, and domestic violence (intimate partner assault crimes), as well as kidnapping, murder, and voluntary manslaughter. Special trial counsel will be military lawyers who work for the service secretary, not for the commander of the accused or for the chiefs of staff (though nothing precludes the head of that new office, specified by the NDAA as a lawyer flag officer, from being dual-hatted, which is likely to be the case as lawyer generals and admirals are in short supply). Special trial counsel will have binding authority to decide whether to prosecute covered offenses, and if they choose not to, commanders are not free to prosecute anyway. Special trial counsel can also prosecute any offense they deem related to the covered offense.Kidnapping, murder, and voluntary manslaughter — which were not in the IRC report nor original legislative proposals based on it — are presumably included because of their link to domestic violence, given that the other serious common law offenses, such as burglary, arson, and robbery, are not included. Perversely, also not included are violent, serious crimes such as death or injury to an unborn child and child endangerment, as well as all the non-violent yet serious non-military felonies outlined in the Uniform Code of Military Justice (UCMJ), such as larceny and fraud.

The inclusion of some but not all serious common law offenses in the definition of “covered offense” is unprincipled and reveals the illogic of DOD’s and supporters’ position that commanders must maintain prosecutorial discretion over all serious criminal offenses. For example, while Specialist Guillen’s brutal murder was linked to sexual harassment, many military murders are not. As I’ve dissected with Professor Geoff Corn here, war crimes are not charged as such by the military; only common law crimes are prosecuted. Intentional killing with the requisite intent of a detainee in U.S. custody is charged as plain old common law murder under Article 118 of the UCMJ, as seen by the convictions of Army 1st Lieutenants Clint Lorrance and Michael Behanna, both convicted by military courts-martial for murder on the battlefield and later pardoned by President Trump. Under the FY22 NDAA, these very serious criminal offenses are entrusted to lawyers outside the parties’ chain of command.

Murder is murder, and commanders are either sufficiently independent from command pressures to justly dispose of such a serious crime, or not. (By definition, given their relationship to the accused, they are not.) Because the NDAA gives all murder (and manslaughter and kidnapping) to special prosecutors – not just those related to sex offenses or domestic violence – these new special trial counsel will be dealing with the most serious of crimes by service members, including ones that have nothing at all to do with domestic violence or sex offenses and everything to do with just accountability for criminality. So, why not transfer the authority for prosecution for all serious crimes?

Fails to create independent convening authorities unbeholden to the accused’s chain of command. The FY22 NDAA maintains the current system of senior commanders as convening authorities and even maintains their powers to hand-select members of the court-martial panel (jury), to grant witness immunity and defense expert requests, and even seemingly to grant resignations in lieu of court-martial.

Revolutionizes military sentencing. The NDAA mandates that sentencing for all non-capital offenses be conducted by military judges instead of the current practice, which allows for panel (jury) sentencing. It provides for offense-based sentencing, as opposed to the current unitary model (imposing a single sentence for all offenses) and directs that non-binding sentencing guidelines be created. This sentencing reform is a much-needed step forward, though it leaves in place the only criminal justice system in the United States that tolerates non-unanimous votes to convict, a practice the U.S. Supreme Court found unconstitutional for states last year.

Mandates creation of a stand-alone punitive sexual harassment offense under Article 134 of the UCMJ. While sexual harassment can already be prosecuted in the military under the general Article 134 provision, as well as under Article 93 in some circumstances, creating a separate enumerated offense specifically for sexual harassment sends a stronger deterrence message than leaving it buried in penal code ambiguity. If being late to work has its own stand-alone criminal offense in the military (it does), sexual harassment darn well should too. Strangely, the FY22 NDAA fails to include this new crime under its list of “covered offenses” to be handled by independent special victim prosecutors, which is greatly inconsistent with the reform measures’ purported focus on sex offenses.

Parting Thoughts

While there was hope that Senator Gillibrand’s superior MJIIPA amendment would carry the day, DOD has managed to maintain substantial command power over military criminal justice. Commanding officers still hold prosecutorial power over the majority of criminal offenses chargeable under the military penal code, as well as the powers to convene and control the procedures of courts-martial. This vast command power over military justice should have been eliminated long ago. The potential for abuse was already evident when commanders court-martialed over two million men in World War II or executed thirteen African American soldiers hours after sham courts-martial in 1917, for which the Army continues to deny clemency for those persecuted (without effective counsel) in the single largest mass criminal trial in America. (A crucial point: there remain significant racial disparities in military justice, for which this new NDAA reform does next to nothing except impose some new reporting requirements.)

Congress should clean up the unprincipled mess they have created in the military justice system under the FY22 NDAA, and instead pass MJIIPA as a standalone bill. Better still would be to amend MJIIPA to remove commanders’ prosecutorial authority over all crimes, even military-unique ones (which include capital offenses such as desertion). All criminal allegations against service members deserve fair, independent, and unbiased treatment, which is not what occurs under the current system. Those in uniform deserve far better than what they have just been handed.

Image: WASHINGTON – The Speaker’s rostrum in the U.S. House of Representatives chamber . (Photo by Brendan Hoffman/Getty Images)

FY22 NDAA: A Missed Opportunity to Improve Military Justice

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