For more than 200 years, American military commanders wielded godlike powers to mete out justice within their ranks for everything from murder and rape to espionage and desertion.
That could change soon if lawmakers vote to strip commanders of the authority to decide which felony-level cases should be prosecuted and to select judges and juries.
The proposal — in the form of an amendment to the National Defense Authorization Act introduced by Sen. Kirsten Gillibrand, a Democrat from New York — has become a political flashpoint as the U.S. Senate considers a far-reaching package to curb sexual assaults in the military.
It pits Gillibrand against two fellow Democrats, Sens. Claire McCaskill of Missouri and Carl Levin of Michigan. Levin is the chairman of the Senate Armed Services Committee. McCaskill and Levin champion an alternative plan that would keep the decision-making process within the military chain of command but add a layer of oversight by the civilian secretaries of each service branch.
The Pentagon last week unveiled new efforts to combat sexual assaults in the military, but it left the most controversial question over the role of commanders unanswered.
Gillibrand and 45 other senators want to strip commanders of the power to decide whether to prosecute sexual assault and other serious crimes. Instead, independent military prosecutors would decide whether a case should go to trial. The offices of the military chiefs of staff would be responsible for empaneling juries and choosing judges, seizing a power that commanders traditionally have wielded.
Military leaders oppose the change, calling it inimical to “good order and discipline.”
Commanders have long held sweeping powers to punish troops under their control — or to decide to let an incident pass. Think of an 18th-century ship’s captain, alone on a distant sea, needing to keep in place a strict hierarchy that leaves no doubt about who’s in charge.
McCaskill wants to keep the decision-making process within that chain of command while adding a layer of civilian review. Doing so, she argues, keeps commanders accountable.
“I just refuse to let these commanders off the hook,” McCaskill said.
In taking a stance the Pentagon favors, however, the former prosecutor finds herself playing defense against people who might otherwise be on her side.
Last month, an advocacy group called Protect Our Defenders targeted McCaskill with an ad in the St. Louis Post-Dispatch that featured an open letter by Terri Odom, who wrote that she was raped 26 years ago when she was in the Navy.
“How can you possibly be against the creation of a professional, independent, impartial military justice system?” the letter reads. “Your opposition to date has been incredibly difficult for me and other survivors to comprehend.”
McCaskill bristles at the suggestion that she has sided with the military brass against sexual assault victims. She said she had spent hours “holding (their) hands and crying” with such victims.
“I can see these women’s faces, and I would never shirk my responsibility to them to throw a bone to the military,” McCaskill said. “It’s just not in my DNA.”
Taryn Meeks, a former Navy lawyer who is the executive director of Protect Our Defenders, countered that “the ad was not meant as an attack.” Rather, she said, it was designed to convey a victim’s message. She said more such ads are possible. This month, Protect Our Defenders is organizing an Educate Your State initiative in which military sexual assault survivors urge their home state senators to support Gillibrand’s bill.
“I’m trying to create a system where there’s more transparency and more hope that justice can be done,” Gillibrand said in an interview. “Too many commanders either know the victim or know the perpetrator — or are the perpetrator — and have a reason to brush it under the rug.”
Whatever happens with the chain-of-command question, lawmakers appear determined to shake up military justice. They have been prompted by a succession of high-profile cases, notably a commanding officer in February overturning the sexual assault conviction of an Air Force F-16 pilot.
Far-reaching changes that McCaskill and Gillibrand support include removing commanders’ ability to reverse convictions, making retaliation against accusers a crime and imposing mandatory dishonorable discharges on those convicted of sexual assault. Few doubt that the final version of this year’s defense authorization bill will include significant changes to military law. Thursday’s announcement by Hagel suggests that the Pentagon is pre-emptively adopting many of the lawmakers’ proposals.
Still at issue, however, is what kinds of cases commanders may decide to pursue and who chooses the judges and juries.
“There’s an honest disagreement as to which version will do a better job of protecting victims and which one will result in more prosecutions,” McCaskill said.
Under Gillibrand’s proposal, commanders no longer would have the power to convene courts-martial for any serious crimes punishable by a year or more in prison.
“Commanders are not trained as lawyers,” Gillibrand said. “They’re not trained in prosecutorial discretion. They’re not trained to weigh evidence.”
Under her proposal, however, they would retain jurisdiction over 37 violations specific to the military, such as dereliction of duty and insubordination, and misdemeanor-level crimes, including minor drug and alcohol offenses.
Gillibrand said she wanted an objective system that would encourage more victims to come forward and would increase the number of successful prosecutions.
She is confident she can corral 51 votes, or even a filibuster-proof 60, to pass her plan in the Senate. Among its supporters are Barbara Boxer and Dianne Feinstein, Democrats from California, and Ted Cruz of Texas and Rand Paul of Kentucky, both Republicans.
The competing option advocated by McCaskill and Levin would preserve commanders’ authority to convene courts-martial, including for major offenses such as sexual assault and murder. If, against a lawyer’s advice, a commander declined to prosecute, the case would go to a civilian secretary of that service branch for review.
“This notion of just turning this over to military lawyers who are maybe half a continent away was not going to protect the victims adequately,” McCaskill said. “And it wasn’t going to result in more prosecutions.”
Her supporters include Sen. Lindsey Graham of South Carolina, a Republican and a reserve Air Force legal officer.
McCaskill’s solution may offer more oversight but it doesn’t go far enough, said Greg Jacob, policy director at the Service Women’s Action Network. That nonprofit group helped craft the language in Gillibrand’s amendment.
“We are not fighting with blunderbusses and we’re not sawing off people’s legs like we did in the Civil War, but we’ve essentially retained an 18th-century legal system, and that legal system has hobbled the military,” he said.
It made sense for the 18th-century ship’s captain to wield broad powers over the court-martial process because he and his crew were cut off from the rest of civilization, Jacob said. But a commander in Afghanistan is just a helicopter ride or satellite phone call away from an experienced military lawyer or judge.
“The technology has changed. The way we fight has changed,” he said. “The military sees this as a challenge to the authority of the command. They don’t want their authority diminished at all, and I think they’re afraid that’s going to happen.”
Hanging over all of this is the memory of past revisions that haven’t always turned out well.
As part of a 2006 defense authorization bill, for instance, Congress changed Article 120, the provision of the Uniform Code of Military Justice that deals with sexual assault. The intent was to shift the focus of trials to the defendants rather than the alleged victims, but military judges and lawyers quickly found themselves entangled.
Before 2006, Article 120 was a tidy 196 words. The rewrite expanded it to 2,830 sometimes confounding words.
One military judge, Marine Corps Lt. Col. Raymond Beal II, called the rewrite “horribly flawed.” Another, J.A. Maksym of the Navy-Marine Corps Court of Criminal Appeals, called the congressional revision “poorly written, confusing and arguably absurd.” A third, Air Force Col. Don Christensen, called what Congress did “almost incomprehensible.”
“If you had 100 monkeys with a typewriter, they’d probably come up with something like this,” Christensen declared during a 2009 aggravated sexual assault case.
In 2011, lawmakers quietly went back and further revised some of the changes without publicly acknowledging any flaws in the earlier attempt.