"Julianus" on The New System

Transforming Military Justice

Introduction
​
            The Fiscal Year 2022 National Defense Authorization Act (FY22 NDAA) works enormous change to the Military Justice System.  Spurred by concerns over the Department of Defense’s (DoD) poor handling of sex related and other serious offenses, Congress took the heretofore unprecedented step of removing Commanders from the decisions to prosecute enumerated “covered offenses.”  Rather, each Service now has a 1-Star led Office of the Special Trial Counsel (OSTC) responsible for the preferral, referral, and prosecution of all such offenses.  In this post, I argue that this is a mere half measure of doubtful efficacy; and that if Congress can – and must – go farther.  Congress should strip military commanders and uniformed personnel of all criminal prosecution functions, and leave commanders with a revised Article 15 (Non-Judicial Punishment) authority to preserve good order and discipline.

Background
​
            A number of reviews both from within the DoD, and from outside organizations  have taken the DoD to task for its poor handling of primarily sex related offenses.  Concerns include the lack of impartiality, poor care of victims,  and a lack of adequate expertise and “professionalism” on the part of the attorneys tasked with handling these offenses.  These problems are further exacerbated by the fact that – rather than falling in the wake of numerous DoD public pronouncements and initiatives – reports and the assessed incidence of sexual assault and sexual harassment continue to rise.  
      In an attempt to staunch the perceived epidemic of sexual assault, the Government has undertaken numerous efforts.  The Secretary of Defense directed the implementation of a plan of action developed by the Independent Review Commission (IRC).   Congress - feeling that policy changes alone were not sufficient – legislated the creation of the OSTC as a parallel organization to the normal military justice system to prosecute serious offenses under the authority, direction, and control of the respective Service Secretary – not a uniformed commander.  The OSTC will be empowered to handle all aspects of prosecutorial discretion, and prosecution of those offenses – though Commanders will still technically remain responsible for convening, funding, and providing panel members to courts-martial.  These efforts – though somewhat disconnected – have complementary aspects.  The IRC recommends four Lines of Effort (LOE): Prevention, Accountability, Climate and Culture, and Victim Care. 
      The  OSTC only addresses the Accountability LOE – though, Congress has also legislated a significantly increased DoD workforce focused on Prevention.  The true rub is that these efforts are often poorly coordinated, and as a result have unanticipated consequences.  The handling of these cases occurs in an extremely volatile setting – with the pace of change brought on by cultural shifts, Congressional legislation, (2008 MCM, 2012 MCM, 2016 MCM, 2019 MCM, FY22 NDAA, and further changes coming in both the House and Senate versions of the FY23 NDAA), DoD policy initiatives, and other factors greatly complicating the effective prosecution of these offenses.  With this never ending parade of new statutes and amendments – often requiring trial counsel to apply multiple versions of a statute in a single court-martial – is it any wonder that the prosecution of sexual assault has been hampered by a perceived lack of expertise?
      Uncertainty reigns, as actions are often apt to have unforeseen results.  A Commander exercising his authority pursuant to the UCMJ may find himself in the crosshairs for declining to send a case to trial, or overturning the findings of guilty pursuant to authority granted him by Congress.  Similarly, a Navy VADM – and the senior uniformed attorney within the DoN – may advise a commander as nearly every Staff Judge Advocate has previously advised her commander, only for an appeals court to later rule that this advice constitutes Unlawful Command Influence.
      The environment is incredibly complex, with a mix of uniformed, civilian government, and non-governmental organizations involved in the conversation.  Filmmakers and civilian attorneys may champion the cause of victims in the face of a “broken” military justice system.  A case which a command views as low level sexual harassment may escalate to murder, and set off a firestorm of criticism.  This complexity is further exacerbated by the fact that uniformed service members are not simple automatons, but are individuals drawn from society – often with their own histories of questionable behavior.  This is reflected in similarly rampant sexual misconduct on college campuses.  Finally, the system is ambiguous – sending signals that may not be easily interpreted.  Well intentioned SAPR briefs cast an overbroad definition of sexual assault - which may result in an increase in reports of “sexual assault” for acts which simply do not meet the legal definition.  Efforts to curb and address sexual assault may also result in increased victim confidence in reporting.  Thus, an increased number of reports may not be indicative of an actual increase in the incidence of sexual assault.
      There is also likely at least one unforeseen consequence of placing prosecutorial discretion in the hands of attorneys.  An internal Department of the Navy analysis found in 2020 that due to non-case related factors – not unlike those in the case of VADM James Crawford discussed above – commanders are likely to over refer cases to trial even where evidence does not support such a decision.  (citation unavailable – but a not uncommon occurrence in the author’s experience)  This is due in no small part to the standard for referral under Article 32 – probable cause – being the lowest standard available under the law.  Probable cause exists where there is sufficient evidence to indicate that an offense has been committed, and that the accused committed it.  This is a far lower standard than that required for conviction – beyond a reasonable doubt.  In contrast, most civilian jurisdictions rely on a standard similar to the American Bar Association model rule 3-4.3, in which a prosecutor should seek to file criminal charges only if the prosecutor reasonably believes that:

• The charges are supported by probable cause,
• Admissible evidence will be sufficient to support a conviction beyond a reasonable doubt, and
• That the decision to charge is in the interests of justice.

This explicit reference to sustaining a conviction under the standard of evidence applicable at trial inextricably raises the standard to decide to bring a case to trial. With increasing reports of sexual offenses, a simple thought experiment illustrates how placing prosecutorial discretion in the hands of uniformed attorneys could backfire.  Assume 10 reports of sexual assault, of which a Commander refers 5 to trial – resulting in 2 convictions.  Using a more stringent standard, a uniformed attorney instead refers 3 cases to trial, achieving a conviction in all 3.  The conviction rate has gone up (from 40% to 100%); however, the referral rate has gone down (from 50% to 30%).  This problem is only exacerbated as reported offenses rise –perhaps 12 reports result in the same 3 referrals with uniformed attorneys exercising prosecutorial discretion (a referral rate of 25%).  Despite more efficient and effective prosecution, this opens the DoD and OSTC to allegations that victim’s complaints aren’t taken seriously, or that they aren’t “getting their day in court.”[1]
          This presents far more than a mere cultural battleground.  Rather, the constant focus by Commanders and uniformed attorneys on military justice matters stemming from sexual assault occupy inordinate amounts of time, degrade readiness, and undercut resourcing for other DoD efforts.  From the author’s own experience, military justice occupies significant time, energy, and intellectual bandwidth on the part of the commander - the maxim that the commander spends 80% of her time on the bottom 10% is borne out.  The DoD also dedicates significant resourcing in personnel, funding, and infrastructure to the handling of these cases, and the trend is for that resourcing to grow.  Furthermore, the incidence of sexual assault degrades readiness as the victim is often, and the accused nearly always, unable to perform other required duties.  Similarly, uniformed attorneys who would be better served supporting military operations or the supporting establishment – the former of which only uniformed attorneys may perform  – are often dedicated to handling military justice matters.  This resource drain is all the more frustrating in light of the fact that it apparently has no effect.
          The question then becomes – what is necessary to recoup this intellectual and human capital, while at the same time effecting real change?  This article proposes a solution to the Accountability LOE that is apt to address Congressional, NGO, and Departmental concerns about flaws in the Military Justice system while at the same time recapitalizing resources to better address other LOEs and DoD priorities. Rather than continue to tinker with a military justice system that doesn’t achieve the outcomes that policy makers desire, more than one frustrated command legal advisor would prefer to simply be rid of the area of practice altogether.

Analysis

        The DoD leadership must recognize that in the larger context little is likely to change from the creation of a Service OSTC that is simply staffed with the same attorneys currently prosecuting these cases.  The DoD should recapitalize resources to deal with sexual assault and other serious offenses.  While the Uniform Code of Military Justice (UCMJ) provides for trial of service members in courts-martial – this is not the only available avenue of prosecution.  Pursuant to the Military Extraterritorial Jurisdiction Act (MEJA) a civilian federal court could try a service member for offenses committed abroad.  The UCMJ also does not preclude state or domestic federal prosecution of service members.  This provides an avenue by which civilian prosecutors – either state or federal – could prosecute service members for these serious offenses.  By shifting the burden of the Accountability LOE to civilians, the DoD could recapitalize uniformed attorneys and use them for jobs which only uniformed attorneys can perform – legal advice to combat and other operations.  It would also permit recapitalization of human, financial, and infrastructure capital to the three other IRC LOEs.  Individuals accused of such offenses should be pulled from the unit, placed into a specialized administrative unit responsible for handling those accused of a crime, and provide commanders a rapid replacement to avoid degrading unit capacity.
          In order to execute this concept, DoD and Department of Justice (DoJ) leadership must exercise boundary spanning leadership.  Decades of DoD / DoJ partnership in other arenas means this partnership can start with a “reflecting” practice to build mutual understanding in a new practice area.  However, to truly realize the potential of Federal prosecutors in this new role, DoD and DoJ will have to discover new frontiers by weaving boundaries related to the sharing of evidence, witness access, and the like to maximize the organization’s potential.  In particular for Federal prosecutors, this will also likely include a learning curve and requirement for institutional growth on the part of the various U.S. Attorneys Offices.  While similar, military justice offenses are often different in character than Federal civilian counterparts, and Federal prosecutors will need to educate themselves on the peculiarities of military justice.  The U.S. Attorneys offices will also require growth to handle the increased case load associated with military justice offenses – a capability which could be provided by transitioning uniformed attorneys with significant litigation experience.  Other possibilities to support this transition would include litigation fellowships or interagency duty assignments for military attorneys with the requisite operational and litigation experience to support both transition and effective DoJ prosecution.  A similar approach would be the creation of a standalone U.S. Attorney’s Office for the Department of Defense, staffed with litigators and supervisory personnel with military litigation experience.  In the future, one of the Service Lead Special Trial Counsel would be an ideal candidate for the U.S. Attorney for the Department of Defense.
          This would require a number of policy and legal changes – the most drastic of which is taking the Commander, indeed the entire Department, out of the role of prosecuting serious.  This would eliminate any actual or apparent conflict of interest arising from DoD efforts to “police its own.”  Commanders also remain responsible for good order and discipline within their units, and for compliance with – and holding those accountable who violate – the law of armed conflict.  The latter is satisfied – as demonstrated in nearly every other liberal democracy – so long as commanders remain vigilant, and refer those cases to the appropriate civilian authorities for investigation and prosecution.  The commander need not personally perform those functions.  However, to address minor military specific offenses (e.g., restriction breaking, disrespect of a commissioned officer, violation of a general order, etc.) the commander must retain some means of punishing those service members to maintain good order and discipline.
      In its current form, Article 15 of the UCMJ permits a service member to refuse punishment.[2]  Congress – in order to permit commanders a unilateral tool to enforce discipline – should amend Article 15 in four ways.  First – eliminate the right of a service member to refuse administration of punishment or non-judicial proceedings.  Second – provide for a statutory right to have a defense counsel not only consult with the accused, but assist the accused in the preparation of his case.  Third – raise the standard to one of clear and convincing evidence, rather than the current standard of more likely than not.[3]  Fourth – Article 15 appeals are currently limited to those instances where the punishment is disproportionate to the offense.  The right of appeal should include legal and factual sufficiency grounds, as well as legal review by the appeal authority’s staff judge advocate, prior to a decision.
Recommendation
            In sum, Congress should remove the prosecution of sexual assault and other serious offenses from the purview of the Department of Defense – taking a page from the U.K.’s military justice playbook.  Regardless of the efficacy of the OSTC in holding offenders accountable, it is unlikely to result in a significant reduction in the reported incidence of sexual offenses because it only addresses the Accountability LOE.  It doesn’t get “left of bang.”  These offenses should be handled by experienced – often former uniformed – litigators assigned to the DoJ in a U.S. Attorney’s Office (USAO).  The USAO should retain prosecutorial discretion, and handle all phases of prosecution from arraignment through sentencing.  Any minor or serious offenses should not be the subject of criminal litigation.
            In order to ensure good order and discipline and a sustained capacity / capability within the commander’s unit, two other measures should be instituted.  Article 15 should be amended to eliminate the right of an accused to refuse, while simultaneously strengthening due process rights for the accused.  This will enable commanders to ensure good order and discipline within their formations, while also protecting the rights of the accused.  For those service members referred to the USAO for criminal prosecution, the DoD should establish both an administrative holding unit for those accused of serious offenses as well as a system to rapidly replace those individuals to avoid degradation of capabilities.  The DoD should also establish a system to rapidly recoup those accused service members who are found not guilty in a criminal proceeding.
            While the author is circumspect as to whether this will make any real difference in the incidence of sexual assault, it simply makes sense as a means to ensure that uniformed attorneys perform functions to which they’re better suited.  These changes will permit a refocus of effort.  First, removing the personnel and resource “tax” to deal with accountability will permit DoD to reallocate resources to other IRC LOEs.  Second, it will permit the DoD to recapitalize uniformed judge advocates – creating programs to help those with litigation expertise to transition to the new DoJ mission set, as well as allowing uniformed judge advocates to focus on those tasks which only uniformed attorneys may legally conduct (direct support to combat operations).  Congress’ approach of half-measures, and DoD’s ingrained resistance should no longer prevail.  The time to optimize both the litigation of these offenses, and refocus the Department on actions which are likely to achieve an actual effect is here.


[1] Of course, the 6th Amendment right to a jury trial is one held by the accused, not a victim.  Furthermore, the victim’s “day in court,” can often be more like months or even years, and come with significant secondary trauma for what may often be a dubious chance of conviction.

[2] Though often phrased as permitting a service member to “demand” court-martial, this is not the case.  The Accused may refuse non-judicial punishment, thus presenting a commander with a decision point: do nothing, proceed to administrative separation, or proceed to court-martial.

[3] The Army – as a policy matter – currently sets the standard for imposition of punishment at Article 15 proceedings the same as for a court-martial, beyond a reasonable doubt.  AR 27-10, Military Justice (2020), para. 3-18.  In the author’s opinion, without the benefit of professional law enforcement investigators, this standard is too high.  However, raising the standard for conviction at NJP to clear and convincing evidence will provide substantially more protection for the accused.

Julianus

*Lucius Salvius Aemilianus (commonly referred to as Salvius Julianus, or Julianus) was a Roman lawyer and jurist.  His works included a collection and revision of the annual Praetors’ Edicts – a statement of principles made each year by the magistrate charged with administering justice within the City of Rome – upon the order of the Emperor Hadrian, who thereafter made Julianus’ revisions enforceable in perpetuity. The views expressed in this paper are the solely those of the author, and do not represent the views of the Department of Defense, nor any entity of the U.S. Government.