Why Military Commanders Shouldn’t Be Prosecuting Sexual Assault

The law, lawyers, and the court.
Dec. 6 2013 11:46 AM

Goodbye to George III

The fight over prosecuting sexual assault in the military is really over an antiquated model of commander control.

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Johan Zoffany's 1771 portrait of Britain's King George III hangs at the Royal Academy of Arts in central London on March 6, 2012.

Photo by Carl Court/AFP/Getty Images

For much of the year, the country has been witnessing a debate about how the military has been—and should be—handling the problem of sexual assault. Two competing approaches will be on the table when the Senate reconvenes next week: one developed by Sen. Kirsten Gillibrand, D-N.Y., and another by Sen. Claire McCaskill, D-Mo. At first glance, the proposals may look like alternate routes to the same goal, but there is a profound difference between them. Gillibrand’s bill would transfer the commander’s power to decide who will be court-martialed for serious offenses to lawyers outside the chain of command (except for core military offenses, like desertion and disobedience). McCaskill’s bill would largely keep commanders in the driver’s seat, but with an added layer of review for sex offenses.

Gillibrand’s proposal, which has the support of a majority of the Senate and six out of 10 members of the public, makes all the sense in the world. By taking the charging power away from commanders and giving it to lawyers outside the chain of command, as our allies have done, Congress would address the problem of a commander’s conflicting interests potentially influencing a decision about whether or not to prosecute. There’s even more at stake, though. Ultimately, this fight is about nothing less than the principle of civilian control of the military. That explains the ferocity of the military’s opposition to Gillibrand’s reform, and makes it all the more critical that supporters of her proposal stand their ground and that those who have remained uncommitted lend their active support.

The current debate began with concern over the frequency of sexual assault in the armed forces. The question was how best to ensure that personnel who are sexually assaulted are not deterred from lodging complaints and that their assailants are punished. A 2012 documentary. The Invisible War, put the issue front and center, with on-camera interviews from a number of veterans who came forward to describe their own cases, including retaliation they’d faced for making a complaint—and impunity for perpetrators. The controversy gained momentum when the Defense Department released data indicating as many as 26,000 sexual assault incidents in a year, the overwhelming majority of which did not lead to disciplinary action. Those numbers may be high, but they certainly suggest that there are far more sexual assaults than is tolerable. The last straw came when a three-star Air Force general set aside a jury verdict in a sexual assault case from Aviano Air Base, in Italy, drawing attention to the fact—unknown to most civilians and legislators—that commanders also have this power.

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In the initial stage of the debate, it seemed that if the problem were sexual assault, then the solution had to be a sexual assault solution. At this point, however, legislators from both parties and across the political spectrum have increasingly recognized that allowing military commanders, who receive only a few hours of  legal training, to make the quintessentially legal decision as to who should be prosecuted for serious offenses (if they are not specifically military) presents a structural problem that transcends sexual assault. That’s why Gillibrand’s proposal isn’t limited to sexual assault cases. What’s more, creating what would in effect be special courts for women in uniform would erode hard-won gains in the struggle to fully integrate women into our armed forces. (Yes, men too are assaulted, but it is the problem of sexual assault against women that has most driven the debate.)

The military and its partisans have responded with the argument, couched in a host of ways, that it would destroy “good order and discipline” to take from commanders the power to decide who should be prosecuted for what, as well as pick the jury and negotiate plea bargains. They have flooded the field with white papers, legal memos, op-eds, testimony, visits from congressional liaison officers, and letters festooned with the signatures of retired generals and admirals. There have been preposterous claims that Gillibrand’s proposal would cost $113 million per year. A retired JAG major general went so far as to point out that Gillibrand’s resume does not include military service—even though the same is true of McCaskill, Senate Armed Services Committee chairman Carl Levin, D-Mich., Sen. Kelly Ayotte, R-N.H., and, for that matter, the vast majority of both houses of Congress. These desperate efforts to preserve the status quo might be more persuasive if the armed forces had a better record of deterring sexual assault under the current system.

In the end, the case against reform boils down to an insistence that “we”—the military—“know best.” This reflects an assumption that Congress should defer to the military, rather than the other way around. The noisier and more gossamer the military’s objections, however, the more obvious it is that the current battle is over more than simply whether commanders ought to keep their 18th-century power to decide who should be prosecuted by court-martial for what everyone agrees are serious criminal offenses.

Civilian control of the military is part of our constitutional culture. Indeed, it is hard-wired into the text of the Constitution. Article I confers on the civilian Congress the power to “make Rules for the Government and Regulation of the land and naval Forces.” Article II makes the civilian president the “Commander in Chief” of the Army and Navy. To be true to the founders’ vision, Congress must not uncritically accept the military’s unjustified insistence on retaining outdated command-centric features of the system the country inherited from George III.

Retired officers have every right to speak their mind. So did the incumbent service chiefs and JAGs when they testified in unison against reform before the Senate Armed Services Committee last June. By all means, let their voices be heard. But on the basic structural question of who decides which cases go to court-martial, Congress must take its own counsel and that of the public, most of which wisely favors broad systemic change of the kind Gillibrand’s measure would bring. The path to a 21st-century military justice system and improved public confidence in the administration of military justice runs through the Capitol, not the Pentagon.

Eugene R. Fidell teaches military justice at Yale Law School. He served in the U.S. Coast Guard.

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