It’s time to overhaul the antiquated and unbalanced military justice system

Lawmakers are pointing fingers about delays in passing the 2022 National Defense Authorization Act (NDAA) — it has yet to be approved by both sides.

Chief among their concerns is to what extent the NDAA will include military justice system reform. Some politicians, like Sen. Kirsten Gillibrand (D-N.Y.) have long sought to remove unit commanders entirely from the justice system, barring them from overseeing any serious criminal prosecution. Others, like Rep. Jackie Speier (D-Calif.), have pushed back, saying only sex crime oversight should be taken out of commanders’ hands. 

Gillibrand recently noted that ultimately, what’s decided will be up to the House and Senate Armed Services Committees’ leadership — House Armed Services Committee leaders Reps. Adam Smith (D-Wash.) and Mike Rogers (R-Ala.), and Senate Armed Services Committee leaders Sens. Jack Reed (D-R.I.) and James Inhofe (R-Okla.)

This year, those lawmakers can give a much-needed Veteran’s Day present to the thousands of veterans who were failed by the justice system — including victims who left active duty due to sexual assault and harassment, or those defendants who were unfairly prosecuted because of their race — by passing the NDAA so that it includes a total overhaul to the entire military justice system. All serious crimes, not just sex crimes, should be removed from the purview of unit commanders. Anything less hinders our men and women in uniform from receiving justice.  

It’s impossible for victims and defendants in the military justice system to receive fair trials. That’s because the current military justice system mandates that commanding generals also serve as “convening authorities” for military justice cases — overseeing legal cases of their own subordinates. Despite service members noting rampant unfairness and mistrust in the current system because of unit commanders who lack legal expertise, reform to the entire system still isn’t guaranteed for 2022.

I spent months last year investigating an ongoing military justice case at my old command. Out of the 60 people I spoke with, the vast majority lacked confidence that the now-retired convening authority could be impartial, or that he wasn’t just trying to “send a message” to the rest of the force with harsh prosecutions. 

This lack of trust is echoed by other service members, as evidenced in the Pentagon’s July 2021 Independent Review Commission report on sexual assault. The report was commissioned as a way to assess how the military justice system has handled sexual assault and harassment. The authors noted that neither military victims nor defendants trust commanders to make competent decisions related to justice — “they also do not understand how a commander with limited legal training can be trusted to make quintessential legal decisions such as charging someone with a crime”. “Lack of trust” in commanders as legal authorities was a common theme throughout interviews. 

Congress can’t ignore the lack of faith service members have in our current “commander-centric” system. If they aren’t equipped to oversee cases of sexual assault, what makes us think they’d be any better equipped to handle all felony crimes?

The military justice system is a relic from colonial Britain — it’s still overseen by commanding generals acting as “convening authorities”, originally direct representatives of the king. Right now, a general with no legal background sits at the top of the chain of command of subordinate jurors and decides if a military trial will convene or not, as well as who is charged with what offenses. The system is rife with opportunities for conflicts of interest — commanders focused on command climate survey results or personal career progression may handle cases differently, depending on what’s best for them. This process contributes to cases of “unlawful command influence” hampering consistent accountability in military trials. 

Opponents to systematic overhaul (including some military leaders) have cried that removing commanders from acting as convening authorities would affect unit “good order and discipline.”

That defense shows just how out of touch some senior leaders are with junior troops who are often on the receiving end of “enlisted justice.” Four-star generals and politicians who served decades ago who see reforming the justice system as a threat to “unit cohesion, trust, and loyalty between commanders and those they lead” fundamentally don’t understand the mistrust their forces feel.

I served on active duty as a Marine Corps officer for six years. Knowing that someone with more legal skill was in charge of a trial wouldn’t have made me any less “disciplined”— if anything, knowing a legal case wouldn’t be handled by my commander might have given me more faith in the system. It’s hard to say reforming military justice would impact “good order and discipline” when troops are dealing with day-to-day issues like subpar housing, excessive wait times and slow referrals for mental health appointments and some incompetent leadership failing to decrease suicide rates. 

Allies like Israel, Australia, the United Kingdom and Canada have all reformed their military justice systems so that they’re no longer “commander-centric.” Instead, they have external military or civilian legal units in charge of overseeing serious criminal offenses similar to district attorneys. That’s similar to what Gillibrand has advocated for.

To be sure, the vast majority of military commanders care deeply for their troops and their welfare — but most are infantry officers, logisticians, pilots and engineering officers, not legal experts. The focus of commanding generals should stay on equipment readiness, force training, and long-term strategic planning rather than the complexities and legal nuances of the justice system.

Everyone deserves a fair trial, military personnel included. If the military justice system isn’t entirely overhauled, then military “accountability” is just a pipe dream.

Kelsey Baker is a freelance journalist and former Marine officer.