Who could argue with that?
(Ed. note: H.R. 4790)
(Ed. note. See Murl A. Larkin, Should the Military Less-than-Unanimous Verdict of Guilt be Retained? 22 Hastings L.J. 237 (1971).
The Two Men Blocking Military Sexual Assault Reform
"The military has long argued that removing prosecutorial decisions from the chain of command would undermine commanders’ authority and harm the services. But that claim doesn’t withstand much serious scrutiny."
Military justice reform, 'pink courts,' and unit cohesion
"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."
Editors note 6/19: The Two Men Blocking Military Sexual Assault Reform. Editorial Board, New York Times.
Editors note 6/18:
Sen. Gillibrand "said she hopes lawmakers will be convinced by data that shows racial bias in prosecution decisions made by the military. And she argued that limiting the change to sexual assault would be discriminatory — setting up what some call a "pink" court to deal with crimes usually involving female victims.
"I'm deeply concerned that if they limit it to just sexual assault, it will really harm female service members. It will further marginalize them, further undermine them, and they'll be seen as getting special treatment," she said.
Editor's note 6/16: Instead of focusing on the merits of the issue, the discussion below focuses on the propriety of using the word "pink." "Pink" was not chosen by the authors of the article, but by Senator Gillibrand:
See here at 11:18: https://www.wnyc.org/story/the-brian-lehrer-show-2021-06-15/
See here: https://www.youtube.com/watch?v=EY75Tlpy9Cw
Editor's note 6/12: this was likely written before the hearing this AM. That hearing (see below) indicates that Pink Courts are the preference of the DoD.
Scholarship Saturday: A proposal to help Senator Gillibrand’s bill better “improve military justice”
Readers of CAAFlog are, no doubt, well-aware, that Congress is primed to, in the near future, strip commanders of prosecutorial discretion. On Thursday, the Chairman of the Joint Chiefs of Staff, General Mark Milley, said he was open to “significant and fundamental change” in that regard. The most likely vehicle by which military commanders will be denuded of their authority as prosecutors is the Military Justice Improvement and Increasing Prevention Act (MJIA) of 2021. The official text of that bill was recently made available here on Congress.gov. The bill’s sponsor, Senator Kirsten Gillibrand, has marshaled a super-majority in support of the measure, overcoming significant resistance from within her own party.
The relative merits of the proposal have been recently discussed, extensively, by other authors on this blog. They have penned articles such as--
More from the Virtual Hill -- Fidell, Cave, Hillman, and VanLandingham on "Pink Courts" (June 10, 2021)
The Hill: Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study' (June 10, 2021)
Maurer: Comparative Analysis of UCMJ Reform Proposals (June 4, 2021)
NYT on Status of MJIA (June 3, 2021)
Paradis Tomorrow on Lawfare Live (June 3, 2021)
Prof. Dunlap Enters the Fray (June 2, 2021)
A Short Response to Fidell & Cave on Command Responsibility (June 2, 2021)
[Updated] Paradis Enters the Fray (June 1, 2021)
How far have we come (May 30, 2021)
A Reformist Response (May 28, 2021)
Christensen Responds to Schlueter and Schenck (May 16, 2021)
Cave Responds to Schlueter & Schenck (May 15, 2021)
From The Hill today: Schlueter & Schenck on commander disposition statistics (May 10, 2021)
The question of whether commanders should act as prosecutors may have reached culmination recently, but, as this column discussed six months ago, we have long heard the drums, drums in the deep. Indeed, the very first article I wrote on CAAFlog, published in this Scholarship Saturday column more than 4 years ago, was entitled, “The ongoing discussion regarding the placement of military prosecutorial discretion.”
As we move forward, it is important to note that this robust discussion, some of which is captured in the links above, has extended well beyond the narrow question of how commanders exercise prosecutorial discretion. The military justice community's conversations have grappled with fundamental questions about how the military justice system is structured, and whether it adequately provides either justice or good order and discipline.
The Hill: Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study'
"The United States’ top general on Thursday said he thinks a proposal to remove military prosecutions of all serious crimes from the chain-of-command 'requires some detailed study' while reiterating his openness to such a change only for sexual assault prosecutions."
Old-Guard Senators Defy Changes in How Military Treats Sex Assault Cases
"Senator Kirsten Gillibrand has won broad backing for legislation that would cut out the military chain of command in such cases. Now she faces another big hurdle."
Yesterday, we cross-posted a piece I wrote for Articles of War examining the ways that military justice reform might affect law of war compliance. To summarize my basic point, by removing a commander's convening authority over all serious crimes, the current version of S.1520 will also (inadvertently) narrow field commanders' existing authority to "prevent or punish" war crimes committed by subordinates. And that power to "prevent or punish" has been a key feature of the U.S. approach to the "responsible" prong of the "responsible command" under which armed forces must operate to comply with international law.
Does removing convening authority violate international law? No. As I said in the piece, "Countries have different systems of military justice and some countries have no military justice system at all." But it would, by design, dilute commanders' ownership over their subordinates conduct. And as written, S.1520's revision to Article 22, combined with the UCMJ's broader prohibition on unlawful command influence, could perversely prohibit commanders from pressing for any particular subordinate's prosecution for war crimes.
Gene Fidell offered a well-sourced rejoinder to say that my concerns are largely unfounded. Though, starting with our point of agreement, he does agree that S.1520 should be amended to ensure that commanders can support prosecutions without running afoul of UCI prohibitions.
The point of our evident disagreement is whether removing the direct power to punish will undermine the commander's sense of accountability. Gene principally cites the training afforded to senior commanders on their LOAC obligations and the practices of other nations to say it will not. Some sources even suggest LOAC compliance could be enhanced.
I don't gainsay any of those. If anything, as I wrote, letting independent military prosecutors take the lead in war crimes cases may be preferable for all the reasons lawmakers have deemed it preferable for other serious crimes. But is equally true that when lines of accountability are shared, they can get blurry, and when they are blurry, accountability can become muddled.
As Phil Cave noted in a comment, the alleged victims of German military operations in Afghanistan have spent much of the past decade suing Germany because civilian prosecutors opted not to pursue charges. Germany has no military justice system, meaning that it fell to civilians to investigate and make prosecutorial decisions about the conduct of the German armed forces.
The European Court of Human Rights recently upheld the decision not to prosecute, but not because investigators had decisively concluded that the German military complied with the laws of armed conflict. Rather, the ECHR ruled that the investigation was adequate - even if flawed and inconclusive - because of the "special features" doctrine, which recognizes that a country's ability (and therefore obligation) to investigate is diminished by the circumstances of armed conflict. As Marko Milanovic wrote in EJIL:Talk! "the applicability of the [European Charter of Human Rights] Article 2 procedural obligation [to investigate] ... can be applied with significant flexibility on the merits."
Color me skeptical that this kind of "flexibility" when it comes to the rigor of war crimes investigations is a good thing. Again, that is not a challenge to S.1520's broader reform effort. But it is a reason for lawmakers to think about the unique problem of war crimes accountability with specificity. I offered a few ways to do that in my piece for Articles of War. I'm sure there are others. But whatever they are, lawmakers should ensure that commanders retain a credible power - and concomitant duty - to "prevent and punish" war crimes because the U.S. military's ability and willingness to enforce the law of armed conflict against its own (while not perfect) is a key feature of its legitimacy and effectiveness.
Recently there has been an eruption of blog posts from opponents of the military justice reforms championed by Sen. Kirsten Gillibrand, Rep. Jackie Speier, and other federal legislators. Many of these are simply rehashes of things the same or other authors have argued in the past. As the Administration and Congress move from the still-unpublished recommendation of the Independent Review Commission appointed by Defense Secretary Lloyd Austin to taking a definitive stand on the pending proposals, a few basic points need to be kept in focus:
First, the numbers of sexual assault in the armed forces have essentially not budged despite past legislative initiatives and assurances from the service chiefs.
Second, the acquittal rate in sex-offense courts-martial is sky-high. Sending unwinnable cases to trial is unfair to everyone and detracts from public confidence in the administration of justice.
Third, one ally after another has removed from commanders the power to decide who shall be prosecuted for serious crimes. They have not done so to drive down the number of sex offenses; rather, they did it out of regard for the need for independent and impartial decision making in the administration of justice in the armed forces. And, a number of these changes arose before the prevalence of sexual assaults became a public issue. Commanders are neither independent nor impartial.
Fourth, 21st century Americans in and out of uniform recognize that prosecution decisions for serious and oftentimes complex criminal matters (as opposed to minor disciplinary offenses) are best made by persons with legal training.
As we observe Memorial Day, all Americans should be grateful to our military personnel. It is not enough to mouth the words "Thank you for your service." We should show our appreciation by ensuring that they will have the benefit of a state-of-the-art legal system that reflects contemporary values and in which they and we all can have confidence.
Fair seas and following winds to all. Brenner Fissell and Phil Cave.
First, from Brian Cox: Measuring the Effectiveness of the Proposal to Divest Military Commanders of Disposition Authority for Sexual Assault Cases: A Comparative Quantitative Analysis
"This essay conducts a comparative quantitative analysis of four jurisdictions – Australia, the United Kingdom, Israel, and Canada – to determine whether vesting court-martial convening authority in lawyers rather than commanders has resulted in improved performance in selected criteria in relation to the issue of sexual assault in the military. The comparative quantitative analysis conducted in this essay indicates that there is no correlative relationship between the “reform” and the improved performance reformists hope to achieve, at least in the context of the jurisdictions examined. This lack of a demonstrated correlative relationship in other jurisdictions creates reason to doubt whether divesting commanders of the authority to convene courts-martial to adjudicate allegations of sexual assault would lead to improved performance related to sexual assault in the U.S. military."
Next, from Don Rehkopf over at Lawfire: CEREBRATING ABOUT MILITARY JUSTICE: Who Should Have the Authority to Convene Courts-Martial?
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