Legal Docket: Changing military justice, Part 1

NICK EICHER, HOST: It’s Monday morning August 28th and a brand new work week for The World and Everything in It. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Last month, President Biden signed an Executive Order that implements changes in the way the military prosecutes sexual assault cases and other serious offenses. Big changes. The Executive Order implemented the National Defense Authorization Act for Fiscal Year 2022. The bill had wide bipartisan approval.

National Security Council spokesman John Kirby described the changes to PBS News Hour:

JOHN KIRBY: This is the most significant change since the Uniformed Code of Military Justice was put in place in 1950 and to take a whole set of covered crimes and remove them from the commanding officer from the chain of command that has just never been done before. So it is a monumental step. And we certainly believe that it will help us deal better with these sorts of crimes to more properly investigate them, more properly prosecute them.

EICHER: Here to explain the changes and what they mean for the military is WORLD associate correspondent Jeff Palomino.

Jeff has special expertise in military matters. He’s a retired Air Force Judge Advocate. He’s tried more than 75 courts-martial.

He’s worked in legal offices for the Chairman of the Joint Chiefs of Staff, the Defense Department, and the National Security Council under both Presidents Trump and Biden. He retired as a Colonel and is a 2022 WJI graduate.

REICHARD: Jeff, welcome!

JEFF PALOMINO: Thanks, Mary and Nick.

If there’s been one single military controversy that’s gotten the attention of the civilian world, it’s probably the issue of sexual assault in the military. Ground Zero in the debate has been the role of commanders to decide which sexual assault cases get prosecuted and which don’t.

REICHARD: I take it then that’s changed. So who decides that under the new rules?

PALOMINO: It has changed, and so now who decides is the Lead Special Trial Counsel. That’s what the military calls prosecutors: trial counsel.

Congress recently passed the National Defense Authorization Act, and that removed decision-making authority from commanders and created this new position.

So I interviewed the lawyer assuming this new job, Brigadier General Warren Wells. General Wells is the one who will now decide for the Army which sexual assault cases go to court. His team will also prosecute these cases.

I began by asking General Wells a basic question: what is the military justice system?

WARREN WELLS: The military justice system is a criminal code that applies to soldiers. And so it's a way for commanders and for the military community to ensure that there's discipline, just as you have criminal codes in the civilian world that keep order and discipline. You have the same thing for those who are serving in uniform.

That code applies to all members of the military, not only soldiers. The U.S. military has always had a military justice system. But before World War Two, the different services applied it inconsistently.

So, in 1950 Congress passed the Uniform Code of Military Justice. It gives one set of military justice laws and procedures to all military branches.

So that gives rise to a basic question: why does the Army need military justice?

WELLS: The need for order and discipline, I think, is universal. And in the military, we're often asking young men and women who come from our society, all regions, different backgrounds to do difficult things under stress. And traditionally, a military justice system was needed, to enforce commander's discipline so that when you ask a group of people to go and face danger, there's some force of law behind that, as well.

The uniform code gives commanders a range of discipline options. One of those may be court-martial. The most serious offenses are usually felony-level, and those go to general courts-martial. In those, the maximum punishment is whatever the President sets.

It could include life in prison, but also the death penalty.

There are also special courts-martial where the maximum jail time is only one year.

General and special courts-martial look similar to what you’d see in other places.

WELLS: The military rules of evidence are almost identical word for word. The process: opening statement, presenting evidence, making closing arguments, those would all be the same as if you were in federal court.

You have a judge, possibly a jury, which in the military is called a panel. The lawyers sit at the counsel table, and then there’s the accused. The prosecution also bears the same burden of proof, too: it has to be beyond a reasonable doubt. So that’s the setting.

Now for the specifics of military sexual assault allegations. Complaints come in various ways, but they all funnel into a law enforcement organization who investigates. Once completed, the old process had a senior military commander decide if the case would go to court-martial. Usually that’d be a general or admiral. That commander would get advice from military lawyers. But in the end, it was his (or her) decision.

That’s not how it'll work any more.

WELLS: Instead it would be experienced litigators, designated special trial counsel, in other words, prosecutors, but But prosecutors who have a background in litigating special victim cases would make the decision on whether or not a particular case should go to court martial.

By statute, the Lead Special Trial Counsel, again the top prosecutor, must be a minimum of a one-Star general.

General Wells as the first Lead Special Trial Counsel for the Army will report directly to the secretary of his military department. That reporting chain is the same for his counterparts in the Air Force, Navy, and Marine Corps.

So I asked: What problems are these changes aimed at solving?

WELLS: Many of these changes were were precipitated by a lack of trust and how the military was dealing with sexual assault. And so it was really to help with this erosion of confidence, that having someone who was independent, who was trained who had been in the courtroom before who had seen cases, would be able to make the right call on whether these cases should go to trial.

It’s not just sexual assault cases, though the Lead Special Trial Counsel decides whether to move forward with all so-called “covered offenses.” Things like domestic violence, kidnapping, murder, special victim crimes. Right now, the law lists fourteen. Offenses outside this list remain with commanders to decide. But, for covered offenses commanders can only make non-binding recommendations.

In the end, the decision of the Lead Special Trial Counsel is final. General Wells knows this change is hard for some to get used to.

WELLS: From a procedural standpoint, it is in fact a sea change. The fact that since George Washington in 1775, appointed the first Judge Advocate, General William Tudor, to try cases. It's always been commanders who've made that decision on which cases go to trial. In fact, I talked with a commander, not too long ago, three star general. And the three star said, hey, if I don't agree with one of your decisions, what's my recourse? And my answer was, you can certainly raise the issue. But ultimately, my decision trumps your decision or the one star trumps a three star decision for the purpose of whether or not a case goes to trial.

The law goes into effect on December twenty-eighth of this year. General Wells also knows he needs to get the word out. Soldiers and their Commanders need to know changes are coming and he wants them to understand one, simple message.

WELLS: Congress has given us an important responsibility, a weighty responsibility. And we know that the American people and the members of the military are looking to us to make wise, judicious decisions. And so they are ready to do that. We've got well trained people. We've got experienced litigators, who want to do the right thing and regain the trust of the military community and of the American people.

But can they? General Wells thinks so.

WELLS: We're going to look at the evidence and whether or not we believe the evidence is likely to be sufficient to sustain a conviction. And so, you know, a lot of these cases are difficult to try. Sometimes if the facts don't support it, it may not be a case that we're going to send a trial. And we won't make everybody happy.

But If it goes really well, I think there is a restoration of trust by soldiers that their allegations will be taken seriously, that it will be competently investigated. And that they will be prosecuted professionally.

But what if it doesn’t go well?

We’ll talk about that next week, and we’ll hear from the Army’s top defense counsel. And that’s this week’s Legal Docket!

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