Thirty-four legal scholars are advising Congress that structural changes are needed in the military justice system to restore a sense of fairness — but they warn that major reform should not be rushed.
Disagreeing with congressional testimony from the Joint Chiefs, the law professors said having an independent command handle criminal prosecution of serious crimes would restore the confidence of both troops and the public in the military legal system.
While the push for change comes as problems arise with the perceived fairness of investigation and prosecution of rape, sexual assault and other sex-related crimes, the legal scholars said a separate legal command would work only if it applied to all serious cases.
“We do not believe structural changes will cure all of the problems that have come so forcefully to public attention, but unless structural changes are made, we are concerned that our military personnel will not be receiving the kind of justice they deserve,” says the June 7 letter, organized by Eugene Fidell of Yale Law School.
The letter comes as the Senate Armed Services Committee is expected to decide as early as Tuesday whether to support a dramatic overhaul of the military justice system that would take not just rape and sexual assault cases, but also most criminal offenses carrying potential jail sentences of one year or more, out of the hands of the chain of command in favor of an outside legal authority.
On Tuesday, the Senate Armed Services Committee’s military personnel panel will decide whether to endorse the Military Justice Improvement Act, sponsored by the panel’s chairwoman, Sen. Kirsten Gillibrand, D-N.Y.
Her bill, S 967, would create a special prosecutor command to handle serious crimes unless they involved military-specific charges, such as failure to obey an order or being absent without authority.
This is close to what the legal scholars suggest, but their letter does not endorse approving the measure Tuesday; they believe more study is needed on the implications. They call for additional congressional hearings in which crime victims, psychologists, defense counsel and other experts could discuss details.
“Congress should take the time needed to make a careful study of these issues,” the letter says. “But it should not use study as a substitute for action.”
The House Armed Services Committee passed some reforms of the military legal system on June 6 that reduce but do not entirely eliminate the role of commanders in sexual assault prosecutions.
The committee did approve an amendment to its 2014 defense policy bill that would create an independent panel to assess the implications of removing the chain of command from having authority over sexual assault cases.
Because of how long it would take for the bill to become law and for the panel to be appointed and do its work, waiting on its review would delay action for about two years.
The Joint Chiefs oppose Gillibrand’s idea, arguing military commanders need to be directly involved in criminal offense decisions to maintain good order and discipline in the ranks.
But Gillibrand said sexual assault and rape victims have no confidence in military commanders to fully investigate allegations, protect victims from reprisal and not interfere with the legal process.
“We have heard over and over again from the military brass about the need for commanders to have this type of authority to maintain good order and discipline in the ranks,” she said in a statement. “When commanders without legal training overturn jury decisions, or never send the complaints to trial at all, and those responsible for preventing sexual assault are alleged to have committed these acts themselves, then how can you possibly say there is good order and discipline now?”
In their letter, legal scholars said commanders have a role to play in reducing sexual assault and in maintaining good order and discipline but this “need not extend to the relatively narrow and thoroughly legal arena of criminal prosecution.”
“Contemporary norms of procedural justice require that attorneys, not commanding officers, make decisions to prosecute,” the letter says, recommending that the decision to prosecute a service member for criminal conduct be made by a prosecutor outside of the chain of command. Commanders, like the victim and the accused, could make a recommendation to the prosecutor.
Under such a system, an independent court-martial administrator, rather than a commander, would detail military personnel to serve as jurors on a court-martial. This change would “avoid concerns about jury-stacking and unlawful command influence,” the legal scholars say in the letter.
Cosigners include several of Fidell’s Yale colleagues, plus law professors from the American University, George Washington University, Hofstra University, New York Law School, Page Law School, Saint Louis University, Seton Hall University, Suffolk University, Tulane University, University of Florida, University of Iowa, University of Houston, University of Johannesburg, University of Maine, University of Ottawa, University of Pennsylvania, University of Pittsburgh, University of Richmond, University of Texas, University of Texas at Austin, University of Utah, Vermont Law School and Yeshiva University. Sixteen of the cosigners are former military judge advocates.