Beyond command authority?

Defense Secretary Lloyd Austin is recommending to President Joe Biden broad changes in how the military prosecutes sexual assault allegations. But several top military officials and two outspoken politicians are attacking what they call hasty and ineffective adjustments.

In response to a growing number of sex-related court martials, Austin commissioned a Pentagon independent review committee in March to study military sexual assaults and create a proposal to address them. Austin backs the committee’s recommendation to amend the Uniform Code of Military Justice (UCMJ) to remove prosecution of sexual assault and related crimes from the military chain of command. Independent lawyers would instead assume responsibility for pressing or dismissing charges.

Their recommendations mirror already proposed legislation from Sen. Kirsten Gillibrand, D-N.Y. Gillibrand has been fighting for reform in military sexual assault cases for over a decade. After failing to bring her 2013 proposal to a vote over a dozen times, she has now collected 66 bipartisan co-sponsors for the Military Justice Improvement and Increasing Prevention Act (MJIIPA), but Sen. Jim Inhofe, R-Okla., and Senate Armed Services Committee Chairman Jack Reed, D-R.I., are blocking the bill in committee.

On the House side, Rep. Jackie Speier, D-Calif., brought forward the Vanessa Guillén Act in April. Speier’s bill would expand Gillibrand’s model to remove legal decisions from military commanders for all serious crimes. A fellow soldier killed Army specialist Guillén and hid her body at Fort Hood, Texas, in 2019. She had reported sexual harassment twice, and her death sparked investigations that uncovered patterns of violence and failures of Army officials to report sex crimes.

As the UCMJ stands now, a sexual assault allegation traverses many channels on its way to military court. A company commander decides whether to prefer charges and consults JAG officers. The commander fills out a two-page charge sheet and sends it to a battalion commander who reviews the evidence and makes a recommendation to the brigade commander. After hearing officers determine probable cause and an investigation uncovers evidence, the charge goes to a convening authority (CA). If the CA agrees with probable cause, they send it to trial. The CA’s involvement doesn’t stop there. If a judge and jury reach a conviction, the CA can review the result again and either mitigate or dismiss the ruling.

While many senators from both parties support the legislation, military officials and former JAG officers aren’t so sure. Inhofe compiled statements from seven senior military officials. Most of them express concern that the bill will undermine commanders’ authority, will unfairly extend the justice process, and is not detailed enough to ensure a smooth legal system. I interviewed four retired senior officers who fall on both sides of reform debates.

David Schlueter served as an Army JAG officer from 1972-81. He resigned his commission in 1981 to accept an appointment as legal counsel for Chief Justice Warren Berger at the Supreme Court. He teaches law and criminal justice at St. Mary’s University in San Antonio, Texas, and he views current reform efforts as dangerous to the military justice system: “When you read between the lines, what Senator Gillibrand and Secretary Austin are really saying is that they want to see more service members convicted of sexual offenses.”

Capt. David Iglesias, who served as a Navy JAG officer for 30 years in active and reserve service, also said the proposed changes might unfairly favor plaintiffs and remove the presumption of innocence from the accused. Iglesias, who served in the Pentagon and in the Naval Legal Service Office, said the current military system is fair overall, protecting both defendants and plaintiffs with multiple layers of review.

The UCMJ underwent massive changes in 2016 as a result of the Military Justice Act. The act responded to sex scandals at Lackland Air Force Base in San Antonio, Texas, and investigations uncovered a pattern of abuse and cover-ups. The military didn’t fully institute the changes until 2019, and Schlueter said Congress should wait for “things to settle” before ushering in more alterations. Iglesias and Schlueter support a trial period for MJIIPA as long as it only addresses sex crimes and provides time for the Pentagon to implement the system. Schlueter doubts that this trial basis will uncover issues in the justice system. He cited a 2020 Defense Advisory Committee report that showed 95 percent of decisions to prosecute or dismiss military sexual assault cases were reasonable.

Former U.S. Deputy Secretary of Veterans Affairs and retired Marine Corps infantry officer Jim Byrne said the military cannot wait any longer. He remembers his days in the Marines and at the U.S. Naval Academy with some of the first classes with females. While he knew that some male colleagues had mixed reactions to women serving with them, he was not aware of widespread sexual assaults until decades later. Byrne sees the MJIIPA as providing more effective retribution for victims and a measure of deterrence for potential offenders: “It has been too long and is too important to continue waiting for gradual improved cultural change in the military through training and awareness.”

Army Chief of Staff James McConville wrote that such changes would be detrimental to preserving good order and discipline, a sentiment repeated by other opponents of the bill. If the amendments only apply to sex crimes, Iglesias does not see an impending culture shift among the ranks. However, he said Congress should be more deferential to commanders’ experiences: “When you’re deployed in the middle of the ocean or some remote location, you trust and support your chain of command. When one of your shipmates or company members gets assaulted, it’s a terrible shock to the organization. It’s a very disruptive act. Commanders know that, but Congress should listen to how different the working conditions are.”

Retired Lt. Col. Alanna Dominguez served as a battalion commander for over 1,900 service members based out of Fort Carson, Co. She remembers driving to the hospital with a team of assistants, counselors, an army chaplain, and a unit commander to speak to a sexual assault victim. She spoke to both parties, arranged logistics for transfers, and consulted with lawyers on how to move forward with cases. She said a commander’s priority in these situations should be to ensure soldiers’ safety and rights and establish a climate of no-tolerance for the troops. Under the proposed changes, she said it would be difficult for commanders to crack down on unit discipline if they cannot be involved: “I want someone to explain to me what problem this is trying to solve. If service members are afraid of disclosing sex crimes to commanders because those people are involved in the process, then maybe the real issue is choosing the right commanders.”

“This is a leadership issue. And we will lead,” Austin said. “Our people depend upon it. They deserve nothing less.” Speaker of the House Nancy Pelosi announced she would bring MJIIPA to a vote on the floor soon.