By Jeremy Herb
Defense Secretary Chuck Hagel on Monday recommended that Congress strip commanders of the power to overturn verdicts in military court cases.
Hagel’s proposal, made in response to a controversial sexual assault case, would reverse a longstanding precedent in the Uniform Code of Military Justice that allows a convening authority to reduce penalties or dismiss a verdict.
“These changes, if enacted by Congress, would help ensure that our military justice system works fairly, ensures due process, and is accountable,” Hagel said. “These changes would increase the confidence of service members and the public that the military justice system will do justice in every case.”
Hagel said the proposal would limit the ability of a convening authority to dismiss the verdicts of a court martial, except for certain minor offenses.
Hagel said the move had the “full support” of the Joint Chiefs and the service secretaries, and senior defense officials said they hoped the revisions would be included in this year’s Defense authorization bill.
The Pentagon’s proposal is aimed at quelling outrage over the dismissal of a sexual assault guilty verdict against an Air Force officer at Aviano Air Base in Italy.
In the case, Lt. Gen. Craig Franklin tossed out the guilty verdict of Lt. Col. James Wilkerson, who had been sentenced to a year in prison and dismissal from the Air Force.
Senior defense officials on Monday said a review of the Aviano case by the Air Force found Franklin complied with the military code in overturning the verdict.
Wilkerson has since been reinstated in the Air Force.
Lawmakers said the Aviano decision is evidence the military isn’t taking sexual assault seriously enough. Several members have drafted legislation that would prevent commanders from tossing out guilty verdicts.
Those lawmakers who are clamoring for changes to the military code praised Hagel for his proposal Monday, but indicated they want to go even further.
“I commend him for honoring that commitment and taking this important step,” said Sen. Kirsten Gillibrand (D-N.Y.), who led a Senate hearing on military sexual assault last month.
“Now Congress must act on legislation I am drafting with several of my colleagues that will remove authority over these cases outside the chain of command to increase reporting and strengthen accountability in the military justice system,” Gillibrand said.
Rep. Michael Turner (R-Ohio) said that he agreed with the Pentagon’s call for changes to the code.
“The dismissal of the court martial of Lt Col. Wilkerson was a blow to the progress made by the military in their fight against sexual assault within its ranks,” Turner said in a statement.
House Armed Services Committee Chairman Buck McKeon (R-Calif.) said the proposal could be a good initial step toward “resolving a dysfunctional element” of the military’s judicial system, and promised his committee would give it serious consideration.
“The Department, however, ignored the committee’s bipartisan request for Secretary Hagel’s views on this matter,” McKeon added, complaining that the press was given a chance to question senior Pentagon officials before lawmakers on the Armed Services panel were.
Not all Republicans agree with changing the military justice system, however.
Sen. Lindsey Graham (R-S.C.), who is an Air Force lawyer and still serves in the Reserves, expressed his concerns at last month’s Senate hearing.
“The military’s a unique place. It’s not a democracy,” Graham said. “When it comes to good order and discipline of a command, we have generally held the view that the one person that has the power to determine good order and discipline — and to make sure it’s present — is the military commander.”
Advocates for sexual assault victims, however, said Hagel’s proposal did not go far enough because it still gives commanders the ability to reduce sentences unilaterally.
“The military has always contended that incidences like Aviano are extremely rare and we have never disputed that. But, we have always contended that the more insidious problem is that convening authorities can unilaterally lessen sentences and today’s announcement does not change this,” said Protect Our Defenders President Nancy Parrish.
Defense officials acknowledged that a convening authority could still essentially dismiss the sentence in a post-trial review, reducing the sentences to time already served.
But they emphasized that the requirement of justifying reductions in writing would add transparency to the process.
The officials said the flexibility for sentencing was necessary for cases where there were pre-trial plea bargains, as well as cases where sentences varied for the same offense, because the military does not have standard sentencing guidelines like the federal judicial system.
One defense official said that no longer allowing guilty verdicts to be overturned was a “huge” distinction from a reduced sentence, as it would result in a federal conviction that remains on the offender’s record.
Under Hagel’s plan, the convening authority’s decision still could not be overruled by the service secretaries or Defense secretary — an issue that was raised by lawmakers in the Aviano case.
But one senior defense official argued that the requirement to justify decisions would help make the system work, comparing it to the federal system.
“We have that a lot in the judicial system, it’s the power of reasoning, and people care whether their decisions make sense or don’t make sense,” the official said. “It’s a very powerful motivating factor.”
At last month’s hearing on military sexual assault, Graham asked the services’ senior military lawyers whether they agreed with the convening authority system. All responded that it was a viable system.
Senior defense officials said in a background briefing Monday, however, that the decision to change the code has strong support at the Pentagon.
“There really was very broad agreement that the justification for the ability to change findings and to reject findings didn’t continue to exist, in the way that it perhaps once did,” the senior defense official said.