Scholarship Saturday: The proposal to strip commanders of prosecutorial discretion in all serious cases will be part of the Senate’s version of the 2022 NDAA, but that’s not all

​On Thursday (July 22, 2021) the Senate Armed Services Committee (SASC) announced that its members have voted 23-3 to advance the committe markup of the Fiscal Year 2022 National Defense Authorization Act (2022 NDAA) to the Senate Floor. The Committee’s executive summary of the legislation confirms that the bill will include all provisions of Senator Gillibrand’s Military Justice Improvement and Increasing Prevention Act (MJIA). The MJIA was added, whole cloth, to the Senate’s 2022 NDAA bill during a markup hearing held on Tuesday (July 20,201) in the SASC’s Subcommittee on Personnel.

SASC’s 23-3 decision to include the MJIA (which enjoys bi-partisan supermajority support) in the markup represents a rejection of the Department of Defense’s insistence that commanders should retain the power to determine whether military justice cases are prosecuted, at least as regards offenses that don’t involve sexual assault. That insistence was voiced most recently by the Deputy Secretary of Defense in testimony before the House Armed Services Committee (HASC).
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The fact that commanders are being drummed out of the military justice system is certainly dramatic, but, as this column noted back in early January (Scholarship Saturday: We hear drums, drums in the deep), it is hardly a surprise. This development is at least a decade in the making.

Indeed, the fact that commanders are being ousted from yet another part of the military justice process is, perhaps, not even the most interesting provision in the SASC markup of the 2022 NDAA. As the rest of this article discusses, the fact that SASC’s markup of the bill challenges nonunanimous verdicts could turn out to be far more interesting.

Early last month, this column (in Scholarship Saturday: A proposal to help Senator Gillibrand’s bill better improve military justice) recommended an amendment to Senator Gillibrand’s MJIA to add a provision abolishing nonunanimous verdicts in the military. This column has long argued that nonunanimous verdicts are anathema to the interests of justice. That’s true for two reasons: (1) Allowing a panel to be less than unanimous dilutes the voices of racial and ethnic minorities in the deliberation room. That dilution is especially concerning in a system, like the military justice system, where panel members are already primarily drawn from a pool (i.e., the commissioned officer corps) that lacks racial and ethnic diversity. (2) Nonunanimous verdicts increase the risk of wrongful convictions by allowing a finding of guilty even if a (presumptively reasonable) juror dissents. 

Senator Gillibrand’s MJIA is an apt vehicle to address the threats that nonunanimous verdicts pose to the interests of justice, and particularly to racial and ethnic justice. Indeed, Senator Gillibrand herself has, as recently as July 13, 2021, argued before the Senate (here, at timestamp 4:09:21) that the MJIA’s ultimate purpose is to promote racial justice:

It’s necessary because the military justice system is simply not delivering justice, especially not to service members of color. I’m proud that our legislation has recently won the endorsement of our colleagues in the Congressional Black Caucus, who have highlighted how this reform would address the systemic barriers to justice our servicemembers of color face.
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- U.S. Senate Session (July 13, 2021) (Statement of Senator Kirsten Gillibrand)
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Senator Gillibrand has pursued the argument that a purpose of the MJIA is to promote racial justice even though, as the New York Times reports, doing so “threatens to weaken her support” for the measure among some allies, “many of whom were brought along after years of courting.”

That being said, since a purpose of the MJIA is to promote racial justice, it is perhaps not surprising that on Tuesday, as the Chair of the SASC Personnel Subcommittee, Senator Gillibrand announced that the committee markup of the 2022 NDAA includes a provision that calls into question the continued viability of nonunanimous verdicts in the military. Specifically, Senator Gillibrand presented (watch here, at timestamp 22:37) the following provision as “a key highlight and matter of particular interest" in the bill:

[The markup] directs the Secretary of Defense to conduct a legal review of Article 52 of the UCMJ, to determine whether the Article is Constitutional in light of the Supreme Court decision in Ramos v. Louisiana, concerning the requirement for unanimous jury verdicts not currently required under the UCMJ in non-capital cases.

- Markup for Fiscal Year 2022, Hearing Before the Subcomm. on Personnel, 117th Cong. (July 20, 2021) (Statement of Senator Kirsten Gillibrand, Chair).

It is profound that, in a 23-3 vote, SASC has questioned the propriety of allowing non-unanimous verdicts in trials by court-martial. The implications of SASC raising that question extend well beyond the possibility that the DoD General Counsel may end up with another legal review on his “to do” list. A question that enjoyed 23-3 support in committee, and which will now be considered on the floor of the Senate, is a worthy question to be litigated before the military’s judicial officers.

And if no relief is forthcoming there, it is an issue worthy of litigation in the Article III courts.

Isaac Kennen

Military Justice Editor