The military’s failure to end rampant sexual assault and hold offenders accountable put its flawed military justice system in the spotlight for the last decade. During this time, the military vigorously resisted calls to modernize its archaic process, claiming that commanders were better suited than military lawyers to make traditional criminal prosecution decisions. Yet these claims rang hollow as sexual assault rates spiked to all-time highs while conviction rates plummeted.
Thanks to the tireless efforts of Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Jackie Speier (D-Calif.), Congress finally passed fundamental reform in December 2021. However, the watered-down legislation, instead of transferring prosecution authority to independent military lawyers for all serious crimes as Gillibrand proposed, did so for only some so-called “covered offenses,” importantly including sexual assault and murder. The resultant two-track system leaves the disposition of most UCMJ crimes with the chain of the command; this is why we have repeatedly highlighted that this historic reform, while vital progress, remains an incomplete step forward.
President Biden recently approved a raft of new military justice regulations; they implement not only the 2021 reform, but several years’ worth of congressionally-mandated changes. The White House hopes, as do we, that these new procedures will “significantly strengthen how the military handles sexual assault cases” and “better protect victims and ensure prosecutorial decisions are fully independent from the chain of the command.” Given that a lack of trust in command is frequently cited for not reporting sexual assaults, this promise that covered offenses will be free from command influence is indeed paramount to the reform’s success.
As two former Air Force officers who together have dedicated over two decades fighting for this reform, we know how critical it is for the new system to be truly independent, both in perception and reality. While waiting for the new regulations, we were afraid that the military, tasked with writing the new implementing regulations, would try to retain command authority wherever possible. We therefore carefully studied the over 100 pages of rules freshly issued by the White House. Our conclusion: while the new regulations significantly improve the old system, they also miss opportunities to both limit command influence, and to provide greater protections for service members accused of crimes.
“PBS Newshour” asked us if the new rules create truly independent prosecutors, free from command influence, who exercise exclusive authority over covered offenses as the law mandates, and as the White House claims. We identified three critical areas where the answer is no. First, the new rules leave vast authority with commanders regarding pretrial confinement, including the release of confinees over objections from the prosecutors; second, the new rules allow commanders to slow down or seemingly even stop the prosecution of sexual assault and other covered offenses; third, the new rules maintain commanders’ ability to influence a court by selecting the court-members (jurors), in direct contravention of congressional direction.
When “PBS Newshour” asked the White House about these regulatory defects, their spokesman, Navy Rear Admiral (ret.) John Kirby, insisted otherwise. The administration’s misrepresentations matter not only because we should be able to trust the White House. They matter because while these reforms to military criminal law and procedure profoundly represent movement in the right direction, they are defective in important ways. The sooner such deficiencies are acknowledged, the sooner they can be fixed.
First, Admiral Kirby claimed that independent military lawyers can “override” a commander’s decision to release someone from pretrial confinement. The regulations say nothing of the sort, and in fact say the exact opposite. And rightly so — no prosecutor should be able to unilaterally jail anyone before conviction; that is a judge’s job in America, and should be in America’s military as well. Leaving this power with commanders is a missed opportunity to transfer it to military judges or magistrates where it belongs; while the president has the authority to make this needed change, the Pentagon chose otherwise.
Second, the new regulations blow a hole in the new independent military lawyers’ unilateral power to prosecute covered offenses like sexual assault, a power the law expressly mandates is exclusive. The new regulations state that: “[i]f a commander believes trial would be detrimental to the prosecution of a war or harmful to national security, the matter shall be forwarded to the Secretary concerned for action.” If a commander can task the secretary to intervene to stop a trial, a prosecutor’s authority is not exclusive. So much for prosecutorial decisions being free from the chain of command. Elsewhere in the regulations, as required by law, commanders of accused service-members are already given the opportunity to express their non-binding opinion directly to the supposedly independent military lawyers; this override provision collides with legislative intent and undermines said independence.
Finally, commanders retain the power to select jurors (called members) for all trials, even for sexual assault and other so-called “covered offenses” whose disposition are now handled by military lawyers. Admiral Kirby blamed this on “the law,” while claiming that a new randomization requirement provides “great flexibility.” However, the Pentagon was directed by the FY2023 NDAA to randomize the selection of court-members “to the maximum extent possible.” The new regulations don’t: they simply direct the commander (in the accused’s chain of command who establishes the court-martial, as there are no standing military courts) to send a list of court-members, whom that commander chooses, to the judge. The judge is to assign numbers by which to “randomly” seat these members. So a commander can send a list of ten hand-selected members to sit on a general court-martial which by law only needs eight members to decide a case. Such a small pool renders the military judge’s “randomization” meaningless. Instead of pretending this serious flaw doesn’t exist, the White House should simply fix it by, for easy example, establishing a minimum number of members to be on the commander’s original list (with Congress taking commanders out of the court-room all together in future reform).
While the administration’s new regulations represent forward progress, they require fixing, along with greater legislative reform — to ensure accountability for sexual assault while also giving all our service members, accused and victims, a military justice system worthy of their sacrifice.
Rachel VanLandingham, Lt Col, USAF (ret.) is Irwin R. Buchalter Professor of Law, Southwestern Law School Los Angeles and president of the National Institute of Military Justice. Don Christensen, Col, USAF (ret.) is Of Counsel, Solomon Law Firm, former chief prosecutor for the Air Force and Air Force judge.