The military justice solution in search of a problem

This month Congress will decide whether to include the inaptly titled Military Justice Improvement Act of 2020 (MJIA) in the National Defense Authorization Act (NDAA). The main thrust of this amendment to the Uniform Code of Military Justice is to fundamentally change the way prosecutorial decisions are made in the military. Instead of the current system that entrusts these decisions to commanding officers acting on the advice of military attorney advisors, the amendment would require that the military attorney, acting alone, decide whether to charge a service member with a military crime and to direct the case to trial by court martial. 

This proposal is unnecessary and ill advised. Prosecutorial authority is arguably the most important tool commanders possess to ensure a disciplined, effective fighting force and is inextricably linked to the commander’s responsibility to ensure the military readiness essential for mission accomplishment. Divesting commanders of this authority would degrade not only U.S. military combat capabilities but also the military’s response to sexual misconduct in the ranks. This latter effect is indeed ironic, because enhancing this response is the ostensible motivation for the proposal.  

Nor is the effort to impose this change on the military new. The proposal resurrects similar ones from 2019, 2017, 2016, 2015, 2014 and 2013. The prior efforts were part of a broader initiative to enhance the credibility of the military response to sexual assault and harassment. That effort resulted in a number of important statutory and policy changes. But after comprehensive inquiries, almost every expert involved in studying the military justice system rejected the idea of altering the prosecutorial decision-making process.  

Enough is enough. Advocates for this change repeatedly fail to carry their burden to prove that the current military justice is fatally flawed and that the proposed change will be a substantial improvement. The near annual resurrection of this effort ignores the informed opinions of expert studies and experienced military justice practitioners and thus represents a waste of untold  congressional and Department of Defense (DOD) effort — time that should be spent focusing on implementing the many laudable changes to the system that have been adopted. 

This year’s MJIA effort is particularly frustrating. Last year’s NDAA required the DOD to study and report back to Congress on the feasibility and advisability of an “alternative military justice system” similar to this proposal. The report is not due to Congress until October. Apparently, however, DOD’s assessment is now irrelevant — what it was instructed by Congress to assess is now before Congress for a vote a full three months prior to the deadline.  

This haste cannot be justified by the desire to improve the military’s response to sexual assault and harassment. A significant challenge in appropriately responding to sexual misconduct is ensuring an environment in which victims are willing to report misconduct. Many of the recent changes made to military justice related to investigating and reporting allegations of sexual misconduct in the ranks were designed to better ensure that reports were presented to commanders. So removing the commander from the military justice process in sexual assault (and many other) cases would hinder and disrupt the recent improvements to the military’s response to sexual assault and harassment.  

Nor is there anything close to solid evidence to support the false assumption that commanders entrusted with prosecutorial authority routinely ignore allegations of sexual misconduct. To the contrary, it is not uncommon for senior military commanders to direct trial by court martial even when their military legal adviser expresses serious misgivings about the likelihood of conviction. This may seem surprising for those unfamiliar with the military justice system, but for most who have been involved in these decisions it merely reflects the reality that commanders, unlike some prosecutors, are rarely deterred by potential acquittal once they are satisfied the evidence warrants trial to resolve such allegations. 

Congress should reject this proposal once and for all. Replacing the commander with a military lawyer would dilute the relationship between court-martial prosecution and good order and discipline, undermining U.S. military effectiveness in the process.  

Chris Jenks is an associate professor at the SMU Dallas Dedman School of Law where he studies and teaches about the law of armed conflict. Geoffrey S. Corn is the Vinson & Elkins Research Professor of Law at South Texas College of Law in Houston. Both authors are retired U.S. Army Judge Advocate officers.