Military justice has been much in the news over the past year, with such widely noted events as the pardons President Donald Trump granted to several men convicted or facing trial for serious military offenses, and his interference in the proceedings involving now-retired Navy SEAL Chief Petty Officer Edward R. Gallagher. These developments have taken up a great deal of oxygen. But the only lesson many observers have drawn is that future presidents—the current occupant of the White House being incorrigible—should keep their hands off the retail administration of military justice and be more judicious in exercising the unreviewable pardon power.
Nonetheless, military justice remains a matter of concern, and has surfaced in the increasingly fraught 2020 presidential race. The impulse to look for legislative solutions is understandable and legislation may prove necessary. But on one key issue, action by the next administration (and not Congress) may be the way forward, at least as a first step.
A nongovernmental organization called Protect Our Defenders, whose website describes it as “the only national organization solely dedicated to ending the epidemic of rape and sexual assault in the military,” recently asked presidential candidates to sign this pledge:
The women and men who bravely serve our country deserve a workplace free from sexual harassment, abuse and violence. As President and commander-in-chief, I pledge to create in our armed forces a safe and healthy environment where perpetrators are held accountable for their criminal actions. As a core part of this commitment, I will make fundamental reform of the military justice system a priority, empowering independent military prosecutors rather than commanders with the authority to make prosecutorial decisions for serious criminal conduct including rape, murder, sexual assault, and domestic abuse while leaving unique military crimes in the hands of commanders. In doing so, we will free commanders of conflicting responsibilities, improve their ability to maintain good order and discipline, prevent sexual harassment, strengthen national security, and better enable the military to recruit, retain, and promote the nation’s best and brightest.
I understand this to be the collective responsibility of our lawmakers and military leadership and a commitment we owe to our servicewomen and men, our armed forces, and the entire nation. [Emphasis in original.]
A Years-Long Battle, and Precedents
The background, of course, is the years-long battle Senator Kirsten Gillibrand of New York and Representative Jackie Speier of California have fought to make overdue structural changes in the military justice system. The goal is to withdraw from (non-lawyer) military commanders the power to decide who gets prosecuted for what and at what level of severity (i.e., general v. special v. summary court-martial v. nonjudicial punishment), and transfer it to uniformed lawyers independent of the chain of command. That change has already been made in numerous countries with which we share legal traditions, including the U.K. (whose George III-era system the Continental Congress copied in 1775), Canada, Australia, New Zealand, Ireland, South Africa, and Israel.
The Gillibrand bill, titled the Military Justice Improvement Act, has gained many supporters, but not enough to secure a vote in the Senate, much less enactment into law. Speier has sponsored other measures related to sex offenses in the armed forces.
But the heart of the matter—commander control over the disposition of serious offenses, sexual and otherwise, has not been addressed. Regardless of where the jurisdictional line is best drawn (my own view is that commanders should retain charging power only over minor offenses), Protect Our Defenders is right to see the 2020 presidential election as an opportunity to get this reform done.
The Democratic presidential contenders still in the race have signed the Protect Our Defenders pledge, with the exception of former Vice President Joe Biden and former New York City Mayor Mike Bloomberg. According to CNN, the Bloomberg campaign is studying the matter, while the Biden campaign says their candidate “will immediately appoint a commission comprised of current and former military leaders, military sexual assault survivors and their advocates, and prominent sexual assault experts, to make concrete recommendations to him within 90 days.” This is disappointing, given the time and effort that has already been paid to this common-sense, long-overdue reform. The only two veterans among the candidates for the Democratic nomination have taken the pledge.
But a pledge by presidential candidates is not enough. Every candidate for the House and Senate should be asked to sign the same pledge—or explain why he or she won’t. After all, it is for Congress, under Art. I, § 8, clause 14, of the Constitution, to “make Rules for the Government and Regulation of the land and naval Forces,” a power it exercised when enacting the Uniform Code of Military Justice (UCMJ) in 1950.
The next Congress should put the independent-prosecutor measure at the top of its agenda. It should include a provision that would shift the commander’s power to pick court-martial jurors to an independent court-martial administrator, and, importantly, it should give GIs convicted of crime the same right to seek discretionary review by the Supreme Court as every federal and state criminal defendant (as well as the 9/11 military commission defendants) currently enjoys.
What if Congress does not act swiftly, and instead commissions yet another study, once again kicking this can down the road? There is a step the next president can take without legislation.
An Idea: A Court-Martial Command
Nothing in the UCMJ prevents the creation of a military command whose sole function would be to make charging decisions. The next president could direct one of the service secretaries to create a Court-Martial Command and designate it as a general court-martial convening authority under Article 22(a)(8) of the UCMJ (10 U.S.C. § 828(a)(8)). That new command could be created with a sunset date so the effort could be a pilot project for what Gillibrand’s bill would do on a permanent basis.
The commander of this new command would be a senior judge advocate (i.e., a uniformed lawyer) outside the normal chain of command, and with a nonrenewable fixed term of office to ensure decisional independence. That officer would report directly to the service secretary.
The president also could prescribe categories of charges that can be referred for trial only by the Court-Martial Command. These could include the type of offense, the maximum permissible punishment, and the accused’s officer/enlisted status and pay grade. This can be done under current law. Rule 401(a) of the presidentially prescribed Rules for Courts-Martial provides that “[a] superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases, types of cases, or generally.”
Actual prosecutions would continue to be conducted by JAG officers in the field, so the commander of the new command would never become an “accuser.” In addition to putting charging decisions, which are quintessentially lawyers’ work, in the hands of a lawyer, this arrangement would reduce the risk of unlawful command influence, to which the current system has long been susceptible. A suspect’s regular command could weigh in with a recommendation reflecting any special disciplinary considerations that might affect the disposition decision. The accused and any complainant could also comment and respond to the regular command’s recommendation.
Nearly 50 years ago, a respected member of the Senate, Birch Bayh of Indiana, proposed legislation that would have created a Court-Martial Command. His Military Justice Act of 1971 (and 1973) sank without a trace, other than long-forgotten references in the Congressional Record and law reviews. A similar measure offered by Representative. Charles Bennett of Florida met a similar fate.
After a half-century, it’s time to bite this bullet. If Congress won’t do it, the next president should at least give it a try. Public confidence in the administration of military justice is not a given. It’s been tested sorely in recent times. Decisive change cannot happen without decisive leadership.
Eugene R. Fidell (@globalmjreform) is Florence Rogatz Visiting Lecturer and Senior Research Scholar at Yale Law School and of counsel at the Washington firm Feldesman Tucker Leifer Fidell LLP. He is the author of Military Justice: A Very Short Introduction (Oxford 2016), co-author of Military Justice: Cases and Materials (Carolina Academic Press 3rd ed. 2020), and edits the Global Military Justice Reform blog.