At a recent news conference, Republican Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Chuck Grassley of Iowa teamed up with Sen. Barbara Boxer, California Democrat, to support Sen. Kirsten Gillibrand’s bill to radically revise the military’s legal procedures for prosecuting sexual assaults. The Republicans claimed there was no reason for conservatives to oppose the New York Democrat’s controversial bill, but they were mistaken.
On June 4, the Senate Armed Services Committee conducted a hearing, during which members of the Joint Chiefs of Staff looked defensive and unpersuasive. Their high-ranking judge advocates general explained why Congress should not remove from military commanders decisions about courts-martial or career-ending nonjudicial punishments for sexual assault and other serious offenses.
Under the Uniform Code of Military Justice, commanders are accountable for everything that happens in their area of responsibility. Shifting these decisions to independent prosecutors would result in more delay and injustice, not less.
On June 12, Senate Armed Services Committee Chairman Carl Levin, Michigan Democrat, easily defeated Mrs. Gillibrand’s subcommittee-approved legislation with substitute language for the National Defense Authorization Act for 2014. Mr. Levin’s measure, requiring automatic review if a commander disregards legal advice to prosecute sex-assault cases, was approved 17-9.
On the losing side were Mr. Cruz and fellow Republican Sen. David Vitter of Louisiana, who inexplicably placed themselves to the left of Mr. Levin and even Sen. Claire McCaskill, Missouri Democrat. This encouraged Mrs. Gillibrand to seek support for a floor vote on her Military Justice Improvement Act, using a misleading appeal based on a peculiar form of chivalry.
Mrs. Gillibrand emphasizes women’s fear of filing complaints when abusers are in their own chain of command. However, assigning cases to prosecutors elsewhere would not guarantee confidentiality or result in automatic prosecutions or convictions in cases lacking convincing evidence. Instead, cases of sexual assault could be politicized by activists who want to assign “victim” status based on accusations alone, replacing the presumption of innocence with a presumption of guilt.
For insight into politicized prosecutions, consider how interference from federal and Florida state authorities in the recent George Zimmerman trial turned an emotionally charged case into a show trial that was supposed to have only one outcome: conviction.
Excluding commanders from disciplinary decisions in serious cases would not reduce incidents of sexual misconduct or add anything to the many options that persons suffering abuse already have. Military prosecutors frequently pursue cases that civilian authorities would ignore. What the legislation could do is shift power to Pentagon feminists and pressure groups who demand their version of “justice” no matter what the evidence shows.
Political pressure has already inspired command interference that has resulted in dismissals of scores of cases, owing to violations of due process for the accused. In a recent example, reported by Rowan Scarborough in The Washington Times, Marine Commandant Gen. James F. Amos purportedly asked a military convening authority to “crush” junior Marines accused of desecrating Taliban corpses. Pressure such as this violates rights of due process — the only way to achieve true justice for all.
Legislation to prevent retaliation against persons filing complaints also should protect the rights of persons who are falsely accused by persons motivated by personal resentments or self-interest. The problem is evident in the Pentagon’s most recent annual report: unsubstantiated accusations have increased by 34 percent since 2009.
Mrs. Gillibrand often mentions other countries that prosecute cases outside of the chain of command, but the legal counsel to the chairman of the Joint Chiefs of Staff provided to Mr. Levin information to the contrary. Countries such as the United Kingdom, Canada and Australia did not change their military legal systems in response to sexual assault cases, and there is no evidence that victims’ reports or successful prosecutions increased. Legal proceedings are slower in five of six militaries surveyed, and none of the allied forces are comparable to America’s expeditionary forces, which conduct courts-martial in deployed environments.
Informed military women and legal experts have expressed concern that sensationalized estimates of sexual assault, extrapolated from anonymous surveys, could encourage measures that would make matters worse. In truth, the military is doing a better job on sexual misconduct than civilian colleges and universities.
That could change, however, if escalating trends continue. Since the first report of the annual Sexual Assault Prevention and Response Office in 2004, confirmed assaults involving military personnel have risen from 1,275 to 2,949, an increase of 129 percent.
There are many good ideas for improving the military justice system in this sensitive area of law, including better training for sexual-assault officers and legal advocates for both accusers and the accused. Instead of pursuing this and other common-sense solutions, some lawmakers demand drastic measures, implying that the military is full of predatory males, indifferent commanders and fearful women who are incapable of taking action when threatened.
Contrary to recent stereotypes, military culture depends on core values such as honor, courage, personal integrity and accountability. When fallible individuals depart from these high standards, punishment is justified. But instead of slandering military culture as an environment that encourages sexual abuse, while dismantling the military’s legal system, policymakers should strengthen core values, guard due process and lead by example.
Elaine Donnelly is president of the Center for Military Readiness.