Defense bill sets up next fight over military justice

The passage of the fiscal 2022 National Defense Authorization Act (NDAA) last week ushered in a massive military justice overhaul, but also set up the next political fight over the role of commanders in prosecutions.

A provision of the mammoth defense bill would remove commanders from the chain of command when prosecuting certain crimes like sexual assault, while still giving them some authorities like picking juries and calling witnesses.

Advocates and their allies in Congress are gearing up for the next push, demanding that among other things commanders be completely removed from the process.

"Let's go the rest of the way and really do it," said retired Air Force Col. Don Christensen, president of Protect our Defenders. "You know, we've ripped the bandage off. Now, let's finish this off."

The $768 billion defense bill, which President Biden is expected to sign this month, was the result of a compromise negotiated between both chambers' Armed Services panels after previous efforts to pass the bill hit several snags over floor amendments.

The most controversial reform included in the final version is how the military prosecutes certain crimes under the Uniform Code of Military Justice.

Under the legislation, the decision to prosecute eleven crimes - like rape, murder, manslaughter and child pornography - would be given to "special trial prosecutors" who are outside of the chain of command.

While the reform is monumental, it is dramatically watered down from a bipartisan proposal led by Sen. Kirsten Gillibrand (D-N.Y.) which removes military commanders from the chain of command entirely.

Gillibrand has criticized the fact that her proposal, which was included in a version of the NDAA passed by the Senate Armed Services Committee this summer, was stripped out behind closed doors. She is now seeking a stand-alone vote on her original bill, the Military Justice Improvement Act, which had 66 bipartisan co-sponsors.

"The change we must make - the change that survivors and veterans have asked for - is to remove all serious, non-military crimes from the chain of the command," she said in a floor speech before the upper chamber passed the bill.

"Our service members have told us that they do not trust our service members to be unbiased or to deliver real justice in cases where they know the survivor or the accused."

Advocates say the next step is moving the remaining offenses into the same system as the initial eleven offenses.

"It will reduce the ... unnecessary cost and confusion," said Eugene Fidell, who teaches military justice at NYU Law School.

"The way Congress has left it, many charging decisions are going to be made by lawyers and other charging decisions are going to be made by non-lawyers," he added. "And there's no need really for that kind of redundancy."

Ret. Capt. Lory Manning, director of governmental affairs for the Service Women's Action Network, says there's no reason for commanders to maintain the authority outlined in the NDAA.

"As somebody who's been a commander, I have convened court-martials," Manning said. "And I don't think it's necessary to my success as a commanding officer or my interest in a particular case."

"Those are some of the excuses that have been given by the military [for] why that has to be with the commander," she continued. "I think they're wrong."

Sen. Jack Reed (D-R.I.), chair of the Senate Armed Services Committee, blocked several attempts for a stand-alone vote on Gillibrand's proposal earlier this year as he favored a more narrow approach recommended by a Pentagon independent panel, taking only sex crimes out of the chain of command. However, he included the broader proposal in the NDAA that the committee passed earlier this year.

Gillibrand has also lashed out at the Pentagon, which she accused earlier this month of thwarting larger reform. The New York Times reported that Defense Secretary Lloyd Austin called members of Congress to lobby against her bill.

But despite the controversy surrounding some aspects of the bill, advocates hailed other reforms in the NDAA that largely went unnoticed.

For example, the legislation makes sexual harassment a punishable offense under the Uniform Code of Military Justice and allows judges to hand down sentences in noncapital courts-martial.

Rachel VanLandingham, a professor of law at Southwestern Law School, characterized the changes as a "chink in the armor" of military justice reform.

However, she says the bill missed the mark on how it addresses disparities in how minorities are treated in the military justice system.

"Minority service members, Black service members in particular, are court-martialed at roughly twice the rate of their white counterparts," VanLandingham said. "So that to me is a huge, missed opportunity that there wasn't more done regarding the racial aspects."

The Department of Defense will soon begin to implement the changes included in the NDAA, and it remains to be seen how these changes will impact military justice.

"We've already made major changes in the military justice system, and this is the next step, this current set of changes and victories," Manning said of the changes in the NDAA. "And it's a big one and we need time now to see how that affects this whole problem."