Military Justice

The Biden Administration Joins the Military Justice Reform Debate as It Heats Up in the Senate

By Michel Paradis
Tuesday, July 27, 2021, 8:01 AM

What can be done about the persistently high rate of sexual assault in the military, and is reforming the military justice system the way to stamp it out? It is a problem that has bedeviled the defense establishment for years. Soon after taking office, Secretary of Defense Lloyd Austin sponsored the most recent initiative and appointed the so-called Independent Review Committee (IRC) to assess what reforms should be made. The IRC’s mandate was to develop recommendations along what it described as four “Lines of Effort”: accountability, prevention, climate and culture, and victim care and support. 

Last month, the IRC completed its work and issued a 300-page report of findings and recommendations. Austin publicly embraced the IRC’s recommendations in full; and soon after, the IRC report got the unqualified backing of President Biden

The IRC’s findings and recommendations along the latter three Lines of Effort are likely to be uncontroversial, and many appear to have been included already in the draft 2022 National Defense Authorization Act (NDAA) that was voted out of the Senate Armed Services Committee on July 21. This is likely due to the fact that the recommendations were all reasonably well thought-out and entail steps the Defense Department is generally comfortable implementing, such as expanding training requirements; increasing awareness of available resources; and allocating dedicated personnel to conduct oversight, data collection, planning, outreach, and victim support. 

More likely to be contentious are the IRC’s recommendations for accountability. Focused on ways to improve the military justice system, the IRC report drops into the middle of a debate that has been roiling for more than two years over whether the military justice system should continue to operate within the chain of command. 

As I have written in greater depth before, military justice in the United States has never depended on a regular system of standing courts with fixed rules dedicated to the pursuit of even-handed justice. Quite the opposite. Military justice has traditionally been nothing more and nothing less than an extension of a commanding officer’s authority to discipline subordinates. The once broad discretion commanders historically have had to impose that discipline has yielded over time to the stringency of greater procedural regularity and judicial standards of fairness. But the core of the system remains the same to this day, insofar as the decision to prosecute a service member before a court-martial at all remains committed to the discretion of that service member’s operational superiors in the chain of command. Indeed, a court-martial is literally called into existence (or “convened”) by a commanding officer for the sole purpose of conducting a particular service member’s trial ad hoc.

Whether operations commanders should continue to have this role in the prosecution of their subordinates has been the central point of friction in the increasingly contentious debate over military justice reform. In May, Sen. Kirsten Gillibrand introduced the Military Justice Improvement and Increasing Prevention Act (S.1520), which would remove commanders entirely from the prosecution of serious crimes. That bill, which now has 65 Senate co-sponsors, would create stand-alone prosecutor offices within each service, akin to a U.S. Attorney’s Office, to direct the investigation and prosecution of all serious crimes.

Supporters of S.1520 argue that professionalizing the military justice system is a necessary step to combat the persistently high prevalence of sexual assault in the armed forces. The IRC report does not disagree, though its proposals for reform aim to more narrowly target the way the military goes about prosecuting sex crimes. 

In an interesting twist, in the draft 2022 NDAA sent to the floor last week, the Senate Armed Services Committee included both S.1520 and two parallel proposals for military justice reform that appear based, at least in part, on the IRC’s recommendations. A heated conflict over the path forward is therefore brewing as military justice reform reaches the full Senate. I therefore hope to briefly outline the IRC’s vision of military justice reform and offer a few comments on the role it might play in the debate ahead.

The IRC’s Proposed Reforms to Military Justice 

Most of the IRC’s proposed reforms to the military justice system are unlikely to be controversial, and many were included in the Senate Armed Services Committe’s markup of the 2022 NDAA. Some, such as including unmarried intimate partners within the scope of domestic violence crimes and criminalizing not just sexual assault but also sexual harassment, are practical reforms that are likely to have a meaningful impact on the prevalence of sexual assault and harassment. By expanding the categories of conduct subject to the military’s enforcement authority, there will be far more opportunities to suppress the kind of misconduct that is generally not treated as criminal outside the military context but often leads to far more serious criminality. Criminalizing sexual harassment, for example, raises the bar considerably on what kinds of behavior will be deemed acceptable. And—one can hope—that should discourage command climates like the Army found to have pervaded Fort Hood and that led to the now-infamous case of Army Specialist Vanessa Guillén, who was allegedly killed by another soldier. 

Other proposed reforms are long overdue, commonsense tweaks to the day-to-day operation of the military justice system that have only incidental bearing on the specific problem of sexual assault cases. These include, for example, revamping the sentencing scheme to increase its efficiency and uniformity, a reform that appears to have been included in the 2022 NDAA. Others include creating a system for the randomized selection of potential jurors (known as “members” in courts-martial) and providing military defense counsel with greater autonomy on questions of funding. While seemingly mundane, all of these reforms share the common aim of regularizing what has historically been—and in many respects continues to be—the fundamentally ad hoc character of military justice. All three diminish the influence that commanding officers have traditionally been able to exert over the court-martial process in subtle but ultimately significant ways. 

Rather than embrace a stand-alone prosecutor’s office for all serious crimes, as S.1520 does, the IRC recommends creating a “special victim prosecutor, responsible for any case qualifying as a “special victim crime.” In some obvious ways, this is a narrower category of crimes than what S.1520 would remove from the chain of command. In other ways, however, it is broader. 

Special victim prosecutors will not have their prosecutorial authority defined by a specified class of enumerated military offenses. Instead, the IRC proposes defining the scope of this independent prosecutorial authority in terms of the “special” nature of the victim. This means that a special victim prosecutor could take any non-victimless crime outside the chain of command, whenever the characteristics of the victim convert it into what the IRC calls a special victim crime.

“Special victim crime” is a novel and somewhat nebulous concept. But the IRC takes pains to clarify that it includes not just sex crimes but also those that are “interpersonal in nature, in which the victim and the alleged offender may have a pre-existing relationship or acquaintance” (such as domestic violence), any crime against the inherently vulnerable (such as children), as well as what would generally be categorized as hate crimes—crimes in which the victim was targeted based on “sex, gender, gender identity, sexual orientation, race, color, ethnicity, religion or national origin.” 

The IRC’s stated reason for focusing on the victim, as opposed to particular code provisions, was its finding that “special victims can experience multiple crimes that overlap with sexual assault” and that these “intersections make the special victims framework particularly compelling, as specialization is needed to handle these sensitive cases.” Where S.1520 operates from the premise that military justice would benefit from prosecutors who can develop expertise in the prosecution of serious crimes generally, the IRC focuses on the need to develop expertise in cases involving the most vulnerable. 

On a practical level, the IRC report highlights potential jurisdictional gaps left in S.1520 and other offense-specific proposals, such as the I Am Vanessa Guillén Act, which was introduced in the House last year and would give prosecutorial authority of a narrow list of enumerated sex offenses to what that bill terms the “chief prosecutor.” Other than international war crimes tribunals, there are no ready examples of prosecutors whose authority extends only to serious crimes. And this might be a problem. 

Serious crimes are often committed in tandem with less serious crimes. Someone who commits a sexual assault also might lie to investigators when questioned about what they did. Prosecutors regularly charge both crimes in order to give jurors options when the likelihood of conviction on the more serious crime might be doubtful. And if nothing else, the ability to charge the full range of crimes is a power prosecutors often wield to leverage plea agreements that will spare reluctant victims from testifying. Lawmakers should, therefore, be mindful about embracing any military justice reform that would inadvertently cabin prosecutorial discretion in ways that might make it harder for these special prosecutors to prosecute the very crimes that Congress has created them to handle in the first place. 

The Obstacles to Implementing a Victim-Specific Prosecutorial Authority

Precisely how the military would operationalize a victim-specific prosecutorial authority is not wholly clear from the IRC’s report. The report presupposes certain offenses that will fall into per se categories of special victim crimes, such as sexual assault and harassment. For other crimes, the IRC report contemplates close cooperation between the special victim prosecutor and the military’s criminal investigation organizations, permitting a case-by-case assessment of whether a special victim crime has been committed. If so, and if there is probable cause to proceed, the IRC would give the special victim prosecutor the power to bring the case to a court-martial for prosecution. 

The powers of the special victim prosecutor are somewhat limited, however, making it dependent on the chain of command in subtle but significant ways. The most obvious is that the power to issue search authorizations (the military equivalent of a search warrant) would remain with the commanding officer. It is not difficult to imagine the ways that such an arrangement could create investigative obstacles and turf wars.

More subtly, but of greater potential significance, the IRC report says that special victim prosecutors should not have the power to convene a court-martial (a concept known as “convening authority”). Instead, their authority would be limited to initiating a prosecution in a court-martial that has already been convened (a concept known as “referral”). The IRC report does not say by whom such a court-martial would be convened. But the evident presumption is that the power will remain where it is now: with the accused’s operational superiors within the chain of command.

To people unversed in the nuances of military justice, this may seem like an absurdly technical point, but by separating convening authority from referral authority, the IRC appears to contemplate a rather peculiar arrangement. Remember that courts-martial are called into existence ad hoc to try a particular defendant for a particular crime, because there are no standing courts-martial. While technically distinct, the power to convene and the power to refer are typically exercised concurrently because, like a gun without bullets or a computer without software, one without the other is a practical nullity.

The IRC states that it has divided these powers to avoid the prospect of “one of the parties to a case establishing the court that will hear the case.” Perhaps this is a legitimate concern, but the (seemingly) unintended effect of this bifurcation is that it gives commanding officers the power to pocket veto any prosecution the special victim prosecutor might want to bring. In fact, this effect is guaranteed by the IRC’s additional recommendation that special victim prosecutors have no power to compel commanding officers to convene courts-martial because doing so would put the special victim prosecutor in the position of issuing orders to an officer of superior rank. 

It is difficult to know how or whether commanding officers would use this veto power, and the IRC report does not seem to contemplate it. One would suppose that it will rarely, if ever, be used overtly, if only out of concern for the unwelcome scrutiny that an open clash between a commanding officer and the special victim prosecutor might bring. But it is not difficult to imagine commanding officers using this chokepoint in subtler ways, slow-rolling prosecutions to frustrate a special victim prosecutor who a commander feels is being overly zealous.

It is also difficult to see why such a division of authority is desirable. For one thing, it adds more complexity to the military justice system, which is already overcomplicated by the accumulation of decades of incremental, special-purpose reforms that have created myriad other “Who shaves the barber?” problems. And if the whole point of current reform efforts is to limit the opportunities the chain of command has to influence the prosecution of certain categories of cases, it seems counterproductive to keep the same basic veto power in place, particularly in a way that makes its use more opaque. 

It is certainly desirable to have checks against prosecutorial abuses, akin to the grand jury system in federal prosecutions. But if the objective of reform is to shift prosecutorial discretion to specialists outside the chain of command, checks on that discretion should, at the very least, be transparent and aligned with that overarching goal.

How the IRC Report Fits Within the Broader Military Justice Reform Debate

In his public remarks endorsing the IRC report, Biden made a point of crediting Gillibrand’s efforts to keep the issue of sexual assault in the armed forces on the legislative agenda. And despite media reports last month suggesting that S.1520 had fatally stalled in committee, the Senate Armed Services Committee’s executive summary of the 2022 NDAA states that “all provisions of S. 1520” were included in the bill sent to the Senate floor. The executive summary states separately, however, that the bill contained “numerous provisions that would vest in special victim prosecutors the authority to refer certain cases to trial by court-martial.” And it also appears to say that a third proposal to “vest in military prosecutors the authority to refer certain cases to trial by court-martial” made it into the bill.

The inclusion of three parallel (and somewhat conflicting) schemes for military justice reform in the 2022 NDAA suggests that the debate over military justice reform, to include whether reform should be pursued at all, may not be over. Despite S.1520’s super-majority of co-sponsors, opponents of any military justice reform that would strip the chain of command of its prosecutorial authority remain vocal. Sen. James Inhofe, the ranking member of the Senate Armed Services Committee, remains opposed on principle and, just as the IRC was issuing its report, released letters from each of the Joint Chiefs, including Chairman Mark Milley, voicing their opposition to S.1520. All opposed removing prosecutorial discretion from the chain of command out of a fear, in Milley’s words, of its “adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead.”

While one might fault Milley for relying a little heavily on the incantation of buzzwords, there are nontrivial practical objections to the restructuring of the military justice system that all of the reform proposals contemplate. In a recent opinion piece last week in the Hill, Lt. Gen. (Ret.) Thomas Spoehr summarized a few that one often encounters in discussions with operational commanders who have been convening authorities.

Spoehr’s principal concern was that stripping commanders of their prosecutorial powers would do nothing to reduce the incidence of sexual assault. Spoerh recounted his personal experience as a commander in which he implemented a zero-tolerance policy where all credible allegations of sexual assault were automatically prosecuted by court-martial. If that decision is now left to prosecutors, Spoehr feared, a combination of the lawyers’ ethical obligations and basic desire to keep conviction rates high could have the effect of reducing the number of sexual assault prosecutions. 

While these worries are real (indeed, I raised a similar concern about the risk of perverse incentives in Lawfare when S.1520 was first introduced), Spoerh’s touting of commanders’ current ability to impose zero-tolerance policies may be part of the problem. While the zero-tolerance policies are unquestionably well-intentioned, the IRC report examined them and found that rather than deterring sexual assault, the high acquittal rates they yielded perversely delegitimized the military justice system further and diluted the perceived seriousness of sexual assault charges. If nothing else, one would expect that high acquittal rates would perniciously corroborate the myth that false accusations of sexual assault are common.

The greater issue that Spoehr’s op-ed reflects, though, is that he came up rather dry in terms of offering new solutions to combat sexual assault in the ranks. He rightly condemned sexual assault as “a cancer that eats at the heart of trust and military readiness,” the incidence of which “remains stubbornly high.” But to combat it, all he could suggest was more frequent and better training of personnel generally and military prosecutors specifically. 

As anyone who has spent any time working in the Defense Department knows, there is no shortage of compulsory trainings, typically in the form of click-through PowerPoint presentations, on everything from human trafficking to information security, to document retention, to sexual harassment, to operational security, to racial sensitivity, to nearly every other systemic problem the U.S. armed forces face. Spoehr is unquestionably earnest in his belief that sex discrimination in the armed forces is a profound problem. Privately and publicly, officers who have shouldered the burdens of command are some of the most passionate advocates on behalf of victims for whom they are and feel personally responsible. But lawmakers and the public are right to be frustrated when the only counterproposals opponents of military justice reform seem to offer are a doubling-down on measures that have not shown significant effectiveness in the past and that basically ask taxpayers to increase defense funding to admire the problem. This is why, perhaps, some skeptics of military justice reform have acceded to political reality and proposed compromises that would limit changes to the court-martial system to sexual assault crimes. 

While the text of S.1520 is known, it is unclear from the Senate Armed Services Committee executive summary what kind of compromise the other two competing proposals contained in the 2022 NDAA would entail. But both appear to take special and narrow aim at sex crimes exclusively, in the manner of the I Am Vanessa Guillén Act introduced last year in the House. While one of the proposals echos the IRC’s terminology of “special victim prosecutor,” the executive summary suggests that the authority such prosecutors would exercise would not be victim specific, as the IRC report proposes, but instead would be offense specific, such that “special victim crimes” would be enumerated by statute.

The terms of debate, then, appear to be turning on an increasingly tendentious dispute over how many offenses of what kind should be removed from the chain of command and whether, as former Obama Secretary of Homeland Security Secretary and Defense Department General Counsel Jeh Johnson wrote in Lawfare, proposals like S.1520 go “too far” because they are “not limited to sex related offenses.”

Which of these parallel approaches to military justice reform will make it into the final 2022 NDAA remains to be seen. Gillibrand has been dogged in fighting for her vision of reform. With a supermajority of co-sponsors at her back, she may have the votes to win the day on the floor of the Senate either by stripping out the competing proposals or by winning a motion to instruct the conferees to keep S.1520 in conference. 

But it is unclear how robust her coalition is.

Media reports suggest that lawmakers who support reform appear to be divided over whether military justice reform should be sex crime specific, including some of S.1520’s co-sponsors. Sen. Susan Collins has waffled in her support for Gillibrand’s bill, telling the New York Times, “Her bill is far broader than I had realized.” 

The heat generated by this debate suggests that, even for reformers, there is a recognition of (maybe an attachment to) the centrality of the chain of command to nearly every aspect of the military’s organization, its justice system being no exception. Yet, for all the focus on zero-sum solutions to how much authority should be stripped from the chain of command, it is surprising that little, if any, thought has been given to providing professional, stand-alone prosecutors with powers that are concurrent with (as opposed to the exclusion of) those of operational commanders. 

In a post for Articles of War, I suggested concurrent prosecutorial authority as a simple way of addressing the special problem of war crimes prosecutions, where operational commanders’ need to have the power to prevent and punish violations of the law of armed conflict in battle presents a unique concern. But there is nothing peculiar about the law of war context that would make concurrent authority unworkable for all military justice offenses. 

As with any concurrent prosecutorial authority, such a compromise would create the potential for turf battles. But that is hardly an insuperable or novel problem. Deconflicting criminal prosecutions is routine between state and federal prosecutors and between civilian and military prosecutors. A crime committed on a military base will typically be subject to all three jurisdictions. To the extent opponents of reform seek to preserve the integrity of the chain of command, and to the extent proponents of reform have divided only over the extent to which the chain of command must yield, concurrent authority would seem to promise the best of both worlds. If nothing else, allowing both commanders and independent prosecutors to refer charges to courts-martial would lessen, if not wholly obviate, the rather narrow dispute over how many offenses of what kind should be left with the chain of command.

Such an approach does not appear to be on the table and perhaps for good reason. The current debate over military justice reform has become complicated enough with passionate advocates on all sides. And unlike most political controversies, the sides crisscross partisan lines in ways that should be encouraging as well as refreshing. Lawmakers should care passionately about the military justice system and have opinions based on principle. While these issues are not something that most Americans will ever encounter, it is vital that lawmakers figure out how a system born out of the need to maintain good order and discipline on the battlefield can be improved to ensure justice for those who have volunteered to give their lives for their country when called upon. 

Topics: