Some lawmakers seek to remove senior commanders from decisions to refer cases for prosecution. They would place that power with a senior military attorney in another organization, separate from the victim or the accused. Before making such a change, proponents should consider not only recent changes, but also how the proposed changes would affect the combat readiness of our armed forces.
Valid criticisms from sex assault victims led to recent changes by the Department of Defense and Congress. Significantly, victims criticized the fact that junior officers dismissed allegations because they knew the offenders personally. So the Defense Department mandated a senior-level review of all sex assault allegations. Legislation addressed other criticisms, imposing minimum sentencing requirements commanders cannot overturn. Lawyers play many roles and provide input throughout, but few critics know this. Legislative changes increased further the role of military attorneys. Requiring another senior military lawyer to make a “commander decision” will invite dysfunction and inefficiency. Service secretaries now review cases when a commander decides not to refer a sexual assault case to trial in which the senior military attorney recommended trial.
Proponents of removing the commander from decision-making should consider the commander role itself — ensuring centralized leadership and control, combat readiness, obedience, good order, discipline and, ultimately, security of the nation itself. Military justice must support the armed forces’ primary function — as noted by the Supreme Court: “to fight or be ready to fight wars.” Military Justice must be dynamic, flexible and efficient. The military justice system must be effective in the unique military environment, be workable at home and overseas, and while training or conducting combat operations.
Congress modifies the military justice system every few years — especially since 1968 and more dramatically since 2006 — to ensure it protects crime victims while providing due process protections for those accused. Military lawyers guide and advise commanders at all levels of the military justice process. They fulfill other independent roles, such as victim assistance lawyers, preliminary hearing officers, magistrates, trial advocates and judges. Military lawyers review each criminal case before a senior commander refers the case to trial. A senior military attorney must review and analyze each case even after subordinate prosecutors have done so. The senior attorney must then make three legal findings — in writing — to the senior commander before the commander may refer the case to trial. The Uniform Code of Military Justice provides that commanders who interfere with or improperly influence the process, including decision-making, may themselves be prosecuted.
Proponents of change want yet another senior military lawyer in yet another organization to decide to refer cases; this would require transfer of cases and further review before decision. Commanders with a direct leader interest in cases would not have a direct role in ensuring cases are efficiently and fairly prosecuted. Instead, a senior military attorney and staff in yet another office would process the case, creating delay and dysfunction. An officer not connected to the offender’s unit mission and combat readiness, as measured by its morale, training, leadership and discipline, would decide which cases to prosecute.
Congressionally mandated independent civilian oversight reviews during the past three years concluded that the military justice system is working. The Judicial Proceedings Panel found that the military system has been more effective than the 75 largest U.S. civilian counties. The Response Systems to Adult Sexual Assault Crimes Panel, with one of its three subcommittees chartered specifically to study the military justice role of the commander, made findings that the commander decision-making is a key component in the military justice system and recommended retaining the senior commander role.
The armed forces should be proud of what has been accomplished so far and continue to take care of service members with the best and most responsive system of justice possible. Commanders must remain integral to it because commanders are not the problem — but they are key to the solution.
• John D. Altenburg Jr., a retired U.S. Army major general, is a lecturer at George Washington University Law School, where Lisa M. Schenck, a retired U.S. Army colonel, is associate dean for academic affairs.