Military justice reform, ‘pink courts,’ and unit cohesion

The Biden administration and Congress are on the verge of a decision on whether to support pending legislative proposals that would shift the power to decide who gets prosecuted in a court-martial from non-lawyer commanders to uniformed lawyers who are independent of the chain of command. The change is an important one, and, if made, would remove one of the few remaining vestiges of the military justice system we inherited from George III.

Die-hard advocates for retaining the command-centric charging power have proffered a host of insubstantial but ominous-sounding reasons for not making this obvious and overdue change. For example, they insist, doing so won’t end sexual assault in the armed forces, that it will somehow erode the mystical aura surrounding admirals and generals, that it will “muddle” their “sense of accountability,” or that this is all so complex that, despite endless studies and reports, yet more time is needed to consider the question.

These claims have been beaten to death, and there seems to be a general recognition that the time has finally come to fish or cut bait on the central issue of who should decide who is criminally prosecuted for what and at what level of severity. The major sticking point with which Defense Secretary Lloyd Austin and the Senate and House Armed Services Committees need to grapple is whether command-centric charging should be abandoned for all serious crimes under the Uniform Code of Military Justice, only those that involve sexual misconduct, or all serious crimes other than those that are classic military offenses such as desertion, AWOL, disobedience, and disrespect.

President Biden, Secretary Austin and members of the House and Senate may be tempted to settle on a compromise under which only sex offenses would be subject to prosecution decision making by lawyers rather than non-lawyer commanders. After all, they may believe, it’s those offenses that have given rise to this entire controversy, so let’s just fix that.

That may be the way the process unfolds from here, but it would be a mistake — and a tragic one, given the difficulty of getting Congress to focus on military justice in a sustained way. It would take years for the military justice system to recover if Congress takes the wrong path at the current fork in the legislative road.

Why not fix the structure for prosecuting just sex offenses? Here are two compelling reasons to resist that temptation:

First, the problem of lay decision making on military criminal prosecutions is structural and is not unique to sex offenses. Applying 21st century, rather than 18th century, standards and expectations, the decision to prosecute is lawyers’ work, and often requires complex legal and evidentiary analysis. Line commanders lack the skills to do this — and have more than enough other things to occupy their attention and time. Additionally, they may not be impartial, since they may know the suspect, the victim, or both. It is of course true that sex offenses have brought into focus the systemic flaw of non-lawyers with possibly conflicting interests making charging decisions, but no one should forget that the flaw is indeed structural, and extends way beyond sex offenses. The UCMJ covers a host of serious crimes, most of which are familiar to civilian law, such as murder, assault, and larceny. Some of them carry the death penalty.

Second, even though men as well as women in uniform are victims of sexual assault, public concern has chiefly focused on the women. It is concern over them and their willingness to come forward without fear of retaliation that has given the reform issue such potency. As a practical matter, if a parallel system is created for the disposition of sex offenses, that system will be understood as having been created chiefly for the benefit of women in uniform. Congress will, in effect, have created “pink courts” — courts for women.

Creating “pink courts” will destroy unit cohesion. It is difficult to imagine a surer way of turning back the clock on all the progress our country has made in integrating women in uniform, including opening occupational specialties, admission to the service academies, qualification as pilots of warplanes and commanders of naval ships and Coast Guard cutters, and promotion to flag and general officer ranks.

Congress should transfer the charging power for all felony-level offenses by military personnel to uniformed prosecutors independent of the chain of command. Limiting the transfer to sex offenses makes no sense.

Each author has been president of the National Institute of Military Justice.

Eugene R. Fidell is an adjunct professor of law at New York University and a senior research scholar at Yale Law School. He is of counsel at the Washington, D.C., law firm Feldesman Tucker Leifer Fidell LLP. He served in the U.S. Coast Guard and edits the blog Global Military Justice Reform.

Philip D. Cave is a retired Navy judge advocate with 41 years of military justice practice and is a partner with Cave & Freeburg, LLP. 

Elizabeth L. Hillman is president of Mills College and served in the U.S. Air Force.

Rachel E. VanLandingham is professor of law at Southwestern Law School, Los Angeles, a retired U.S. Air Force Lt. Col. and current president of the National Institute of Military Justice.