Don’t create separate military justice system for sex offenses

Several weeks ago, the House Armed Services Committee rejected 34-28 an amendment to the Fiscal Year 2015 National Defense Authorization Act that would have transferred from commanders to independent prosecutors the power to decide on the disposition of sexual offense charges against military personnel. The amendment, offered by Rep. Jackie Speier (D-Calif.), is likely to come up again, and may prove tempting for legislators who want to do more to rid the armed forces of sexually assaultive behavior.

I’m for military justice reform and anxious that we do as much as we can to make military service attractive and safe for everyone. The national defense demands that in our non-conscription era. My hat is off to legislators in both houses who have focused their attention on the military justice system. Many of them are women, and some of those women -- Reps. Tulsi Gabbard (D-Hawaii) and Tammy Duckworth (D-Ill.) -- have served in uniform. They deserve to be heard.

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Nonetheless, Speier’s amendment is not the answer. It’s not that the power to decide who gets tried for what in the military and who should serve on the court-martial panel (which functions like a jury) shouldn’t be transferred to lawyers and court-martial administrators outside and not beholden to the chain of command. It should. But it’s high time we tossed over the side the antiquated commander-as-district-attorney-and-jury-picker features of the Uniform Code of Military Justice.

Getting the commander out of the prosecution business only for sex offenses, as Rep. Speier’s amendment would do, makes no sense. It would tremendously (and in my view needlessly) complicate a justice system that is supposed to be fast, simple, and above all uniform. It would carve out some offenses for special treatment in a way that will fuel the notion that women, who are typically (no, not invariably) the victim of sex offenses in the military, now have special protection . . . a “pink court” of their very own. It is difficult to imagine a structural change better calculated to foster hostility and ill will among male military personnel, thus undoing so much of the progress that has been made towards achieving a gender-integrated military work force. Many of our democratic allies have taken the charging and jury-selection power out of the commander’s hands, but not one has done so only for sex offenses.

The reasons to break this last link to George III’s 1774 military justice system are powerful, and they are in no way confined to sex crimes. They have to do with confidence in the administration of justice and with encouraging victims of all kinds of crime to come forward and report it. They have to do with the inherent conflict of interest in allowing commanders whose performance is evaluated based in part on unit discipline making decisions as to what cases will be prosecuted and what cases will not -- or will be handled as minor offenses through non-judicial punishment.

These concerns apply to all kinds of crime under the UCMJ, not just sex offenses. For example, in a pending Army case arising from the shooting death of two unarmed Iraqi teenagers, members of the accused’s unit were loath to come forward because they feared retaliation from the command. A recent study reported that only 40 percent of Marines and 55 percent of our soldiers in Iraq would report a known war crime, adding that “[i]ndividuals involved in reportable incidents themselves may fear personal consequences connected to reporting.” The problem of reporting, conflicting interests and public confidence in the administration of justice is thus not confined to sex cases. It runs the full gamut of offenses under the UCMJ.

Members who want to give our personnel in uniform the 21st century military justice system they deserve have to think big. Bigger than Rep. Speier’s amendment, well-intended though it obviously is. Opportunities for thorough reform in this field come along very rarely. Congress should not squander this one.

Fidell teaches military justice at Yale Law School and edits the Global Military Justice Reform blog, globalmjreform.blogspot.com.