The Public Policy

Move Cautiously on Revamping Military Justice

Sen. Gillibrand’s proposal makes more sense than Rep. Speir’s call for creation of a special sex crimes court.

By 6.4.13

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The federal law establishing our military justice system, the Uniform Code of Military Justice (UCMJ), was enacted in 1950. With relatively minor changes made by Congress in 1968 and 1983, it has served as the charter for justice and “good order and discipline” in the military for over six decades. It provides the statutory guidance for the conduct of courts martial and the roadmap for appeals. 

Some say the military justice system is more about discipline than justice. But, in several ways, the military justice system has been more progressive than the civilian judicial system. For example, Article 31 of the UCMJ required a rights-warning statement similar to the now-familiar Miranda warnings a full decade and a half before the Supreme Court ruled in Miranda v. Arizona, extending that right to civilians. 

Additionally, the UCMJ in 1950 continued the 1948 Articles of War's guarantee that qualified defense counsel would be provided to all accused (and at earlier stages than required in civilian jurisdictions), whereas the Supreme Court only guaranteed the provision of counsel to indigents in its 1963 decision in Gideon v. Wainwright.

The UCMJ has been upheld by the U.S. Supreme Court against a variety of claims that it denies military personnel important constitutional rights. All in all, the UCMJ has worked and worked well, providing a sensible system for providing justice to all military personnel.

Now, largely due to the growing scandal over the military’s gross mishandling of sexual assault and harassment cases, the military justice system is under withering attack. Some will argue, “If it ain’t broke don’t fix it.” But, at least with regard to sex assault and harassment cases the Uniform Code of Military Justice has failed to deliver justice to the victims of sexual assaults. Parts of the code seem to be broken and in need of some modest fixes.

In April, Rep. Jackie Speier (D-CA) introduced “The Sexual Assault Training Oversight and Prevention Act” (clearly worded to form the cute acronym STOP Act), which would take sexual assault cases out of the hands of commanders in the chain of command and place them under the jurisdiction of an autonomous Sexual Assault Oversight and Response Office, which would be comprised of civilian and military personnel.

Speir’s proposal would unnecessarily bifurcate the military justice system into one system for victims of sexual abuse and another for all other offenses. Although the immediate crisis is attributable to the Pentagon’s continuing blind eye toward sexual abuse/harassment of women in the military, the changes in the military justice system should not be limited to serious sex offenses. Diverting those cases into a parallel justice system in an effort to achieve a “separate but equal” standard of justice would create more problems than it would solve.

Meanwhile, Democratic Sen. Kirsten Gillibrand of New York has also introduced legislation (“The Military Justice Improvement Act of 2013”) that would sweep more broadly, changing how the military handles all serious military crimes.

Gillibrand’s proposal would let military prosecutors — rather than commanders — decide whether to bring serious military crimes to trial. She argues, "What we need is a military with a fair and impartial criminal justice system, one that is run by professional and legal experts, not unit commanders.”

Currently, the commanding officer of a military unit has broad and largely unfettered authority over the military justice system. He or she is the so-called “convening authority” who has the power to press charges, to decide whether the charges will be heard before a special or general court martial, to appoint the members of the court-martial jury that will hear the case, and the appellate power to review and reverse convictions or reduce sentences. It is a power that has no parallel in the civilian courts. 

The proposed Military Justice Improvement Act would change all that by reining in the unrestrained authority of the commanding officers. The proposed law would take any offense punishable by one or more years in confinement out of the chain of command except for charges directly related to the military (e.g., absence without leave and disobeying orders). 

Instead, experienced military lawyers known as judge advocate generals (JAG officers) would determine if the case required a special or general court-martial. The bill would also prohibit the convening authority from overturning a guilty conviction or changing a conviction to a lesser offense and would require written justification for any changes, presumably another task that would be undertaken by a staff judge advocate. 

Military lawyers would perform a critical role under the military justice system envisioned in Senator Gillibrand’s bill. It is a role they are well prepared and trained to undertake. The Judge Advocate General Corps of the armed services, numbering over 5,000, is an extraordinary corps of talented and well-trained attorneys. The Army JAG’s motto of “Soldier first, lawyer always” captures the essence of the unique blend of legal skills and military training within the military command hierarchy.

Gillibrand’s proposal makes more sense than Speir’s call for creation of a special sex crimes court. Although the immediate crisis is attributable to the Pentagon’s continuing blind eye toward sexual abuse/harassment of women in the military, any changes to the military justice system should not treat sex offenses separately.

Under Gillibrand’s proposal, charges directly related to good order and discipline in the military (such as AWOL, disobeying an order, desertion, missing movement, conduct unbecoming an officer, and so on) would properly remain in the chain of command and subject to the commanding officer’s direct jurisdiction. The commanding officer would continue to exercise Article 15 non-judicial punishment and authority to send cases to summary courts martial. This would preserve a fundamentally important element of the commanding officer’s operational authority.

Our military justice system has served our country and the men and women in the armed services well over the decades. But, the recent scandal in the area of sex assault and harassment in the military has created enormous political pressure on Congress to reexamine and perhaps revise the system. 

Senator Gillibrand’s bill offers a relatively moderate starting point for this process of reexamining military justice. But, this is no time for a rush to judgment. Congress should move cautiously as it reconsiders a statute that has worked so well for over half a century.

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About the Author

Gerald D. Skoning is a Chicago lawyer who specializes in labor and employment law.