{"id":43040,"date":"2021-12-14T02:25:57","date_gmt":"2021-12-14T02:25:57","guid":{"rendered":"https:\/\/one.sightlinemg.com\/airforcetimes\/uncategorized\/2021\/12\/14\/military-justice-reform-compromise-strikes-fair-balance-between-competing-interests\/"},"modified":"2026-08-08T03:02:52","modified_gmt":"2026-08-08T03:02:52","slug":"military-justice-reform-compromise-strikes-fair-balance-between-competing-interests","status":"publish","type":"post","link":"https:\/\/one.sightlinemg.com\/airforcetimes\/opinion\/commentary\/2021\/12\/14\/military-justice-reform-compromise-strikes-fair-balance-between-competing-interests\/","title":{"rendered":"Military justice reform compromise strikes fair balance between competing interests"},"content":{"rendered":"\n

With congressional leadership urging quick passage<\/a> of the current House version<\/a> of the National Defense Authorization Act with no further amendments, changes to the military justice system contained in the bill will likely become law. Although Senator Kirsten Gillibrand and other reform advocates have expressed<\/a> severe dissatisfaction<\/a> with the final outcome, the measures projected to be adopted by Congress represent a fair and practical compromise on a number of issues.<\/p>\n\n\n\n

The most significant of these, of course, is authority to initiate (\u201cprefer\u201d) criminal charges for covered offenses and refer those offenses to court-martial. While Sen. Gillibrand continues to advocate<\/a> for transferring this authority from commanders to military lawyers for most felony offenses, the change required in the NDAA is limited to \u201ccovered offenses<\/a>\u201d such as sexual assault, stalking, murder, and manslaughter.<\/p>\n\n\n\n

Sen. Gillibrand has warned against this more limited scope of offenses, asserting that it would create \u201cpink courts\u201d that would \u201cmarginalize<\/a>\u201d female service members and make<\/a> a \u201cmockery of the entire criminal justice system.\u201d Aside from the offensiveness of deliberately selecting gendered language to condemn a reform measure with which she disagrees, this inflammatory description by Sen. Gillibrand represents a fundamental mischaracterization of the military justice system.<\/p>\n\n\n\n

The decision whether to prefer and then to refer criminal charges to trial happens before the court-martial is convened. Actual court proceedings for \u201ccovered offenses\u201d will be indistinguishable from those for non-covered offenses, regardless of whether commanders or lawyers make preferral and referral decisions. Raising the specter of \u201cpink\u201d courts, then, is as misinformed as it is offensive.<\/p>\n\n\n\n

Although several civilian attorneys general<\/a> and a small group<\/a> of well-connected military justice experts have called for most felonies to be included in the change, many former senior military lawyers<\/a> and current senior leaders<\/a> share the opinion that commanders should retain authority for decisions affecting good order and discipline. For years, Sen. Gillibrand has claimed<\/a> that court-martial decisions must be made by lawyers instead of commanders because removing the supposed inherent bias of commanders would result in \u201cmore convictions and more perpetrators going to jail\u201d and that \u201cyou need that rate to be much higher to change the culture\u201d of the military.<\/p>\n\n\n\n

Even though the claim that a higher conviction rate is a necessary component of cultural change is an absolute anathema<\/a> to American notions of due process and judicial fairness, at least conferring military lawyers with court-martial disposition authority only for \u201ccovered offenses\u201d is supported by the predominant reform rhetoric. The \u201ccovered offenses\u201d approach closely mirrors the recommendations<\/a> presented earlier this year in the Department of Defense Independent Review Commission report, although the legislative version does expand on the IRC recommendations by capturing the crimes of murder and manslaughter.<\/p>\n\n\n\n

It is only this \u201ccovered offenses\u201d approach that has been evaluated<\/a> by the DoD for implementation in practice, and the White House has explicitly endorsed only<\/a> this more limited revision. Restricting the change to only covered offenses, then, constitutes a fair compromise between those calling for<\/a> a broader scope of reform and those who maintain<\/a> that the change is \u201cmore symbolic than necessary.\u201d<\/p>\n\n\n\n

Other commander-focused changes reformists seek to implement<\/a> but that are not included in the NDAA, such as removing convening authority and panel (jury) member selection authority from commanders, would be merely cosmetic in practice.<\/p>\n\n\n\n

The military does not have trial-level standing courts, but the actual trial proceeding progresses<\/a> independently and autonomously once a commander does convene a court-martial. Likewise, in practice senior commanders select from a pool of potential panel members who are deemed \u201cbest qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament\u201d as required<\/a> by law. Implementing purely cosmetic \u201creforms\u201d such as these would mollify<\/a> some critics of the current military justice system, but such changes would have little or no measurable actual practical effect<\/a> on the fairness of judicial processes.<\/p>\n\n\n\n

Aside from commander-centric \u201creforms\u201d such as those described above, the NDAA draft that is projected to become law likewise represents a commendable compromise of competing interests.<\/p>\n\n\n\n

While the legislation mandates that a \u201cspecial trial counsel<\/a>\u201d must exercise authority to prefer and refer charges<\/a> for covered offenses, for example, the bill grants service secretaries a remarkable degree of discretion<\/a> regarding how to implement the change in practice.<\/p>\n\n\n\t