In the wake of a seemingly endless parade of scandals, the Pentagon’s leaders assembled last week in full force before the Senate Armed Services Committee.
They alternately lamented the scourge of military sexual violence, while defending the justice system under which it continues to thrive.
In rallying behind the status quo in the name of discipline, however, Congress and the service chiefs both ignore the past and impede future progress.
When confronted with the prospect of transferring authority over criminal cases from commanders to prosecutors, representatives of every military branch supported Army General Martin Dempsey, chairman of the Joint Chiefs of Staff, in his determination that the chain of command must be “at the center of any solution” to sexual violence.
To remove commanders from the legal process, they argued, would be to erode their ability to preserve order within the ranks. Senate Armed Services Committee chairman Carl Levin, D-Mich., said Tuesday he would support the military and remove from the pending defense-authorization bill a measure mandating such a change.
While such rhetoric paints a bleak portrait of the consequences of decoupling criminal justice from mission pursuit, recent history reveals that the convergence of the two is hardly inevitable. To start, a number of our closest allies have in recent years transferred authority over criminal cases from the commanding officer to an independent prosecutor, on the premise that courts-martial were not sufficiently separated from the military chain of command to be considered impartial tribunals by Constitutional and international treaty standards.
The 1990s saw a revolution in the military justice systems of other democracies that share a common law tradition with the U.S.:
— These changes began in Canada, where the Supreme Court held in 1992 that the country’s military justice system violated the right to an independent and fair tribunal under the Canadian Charter of Rights and Freedoms. In response, Canada rewrote much of its military code, establishing a tenure system for military judges, and transferring authority to convene courts-martial and appoint prosecutors in a newly created Director of Military Prosecutions.
— Five years later, the United Kingdom embarked on similar reforms in response to judicial opinions. The functions formerly undertaken by the convening officer are now divided into three separate bodies: an independent referral authority responsible for deciding whether or not to refer cases for prosecution, a prosecutor, and a court administrator charged with selecting court-martial members, ensuring the availability of witnesses, and selecting the time and venue for a case.
— In 2003, Australia followed suit, creating a separate Director of Military Prosecutions to replace ad-hoc appointees in overseeing the disposition of criminal cases.
While the applicability of international human rights standards has long been a subject of controversy in the U.S., there’s also ample domestic precedent of curtailing command discretion over criminal cases without perceptible harm to military order and discipline. In 1969, in fact, the U.S. Supreme Court held that unless the military could establish a “service connection” showing that an offense had direct bearing on military order and discipline, a court-martial lacked jurisdiction to try the case.
Pointing to “the suggestion of the possibility of influence on the actions of the court-martial” by the convening authority, the Court determined in O’Callahan v. Parker that “courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.”
Unlike civilian trials, which are “held in an atmosphere conducive to the protection of individual rights,” military trials are “marked by the age-old manifest destiny of retributive justice,” rendering them “primarily an instrument of discipline, not justice.”
When a differently-constituted court overturned this doctrine 18 years later in Solorio v. United States, a passionate dissent blasted the incursion on the Fifth Amendment right to a grand jury proceeding and the Sixth Amendment right to trial by jury, pointing out that the exception for “cases arising in the land and naval forces” makes no reference to the status of the individual committing the crime, despite the ease with which the Framers could have added such language.
Instead, they attributed the departure from precedent to a misplaced conviction “that members of the Armed Forces may be subjected virtually without limit to the vagaries of military control,” a position that, incidentally, has resulted in a parallel curtailment of the rights of service members to bring civil claims against the military.
Still, while Solorio restored court-martial jurisdiction over non-service-connected offenses, it did not in any way diminish the ability of civilian prosecutors to pursue such cases. Only last month, in fact, the Arlington County District Attorney brought charges against Lieut. Colonel Jeffrey Krusinski for alleged sexual battery, declining to cede jurisdiction in the case to the Air Force for prosecution under military law. Can we really say that this and countless other instances of civilian prosecution have compromised our military strength?
If anything, recent history suggests that constitutional norms are entirely compatible with mission readiness despite fears to the contrary. After years of bowing to the military on the justice and efficacy of the “Don’t Ask Don’t Tell” policy, Congress and the courts ultimately acknowledged that while deference may be due to the Pentagon in exercising authority over military affairs, “deference does not mean abdication,” particularly where fundamental rights are at stake.
If this principle applies to the right to engage in private intimate conduct, then surely it should also apply to the right to a fair and impartial trial.
Rachel Natelson is an attorney specializing in the rights of military women. She formerly served as the Legal Director of the Service Women’s Action Network (SWAN), and developed and presided over the Veterans and Servicemembers Project at the Urban Justice Center in New York City.