The Office of the Special Trial Counsel is Dead, Long Live OSTC

Introduction

The news is recently filled with amazing proclamations about changes to our military justice system. It is an Act that has “constitute[d] the most significant reforms to the Uniform Code of Military Justice since it was enacted,” and “[i]t is the most important reform to our military justice system since the creation of the Uniform Code of Military Justice in 1950.” What are these quotes talking about? They are talking about two things, the first is Senator John McCain talking about the Military Justice Act of 2016 (MJA16) in November 2016, and the second is Secretary of Defense Lloyd Austin talking about the Offices of the Special Trial Counsel (OSTC) just last month in December 2023. That’s a lot of unprecedented and monumental reform in a short period of time for a system that had seen relative stability for the preceding 60 years.
 
The Military Justice Act of 2016 and the inception of OSTC are back-to-back reforms closer in time than the dates of the quotes suggest. MJA16 implemented extensive changes, including the expansion of victims’ rights, new court-martial authorities, and the creation of a special court-martial bench trial​​. However, despite its name, MJA16 became effective at the end of 2019—that is just four years ago—and now comes OSTC. In this latest rapid reform, prosecutorial authority transfers from military commanders to specialized military lawyers, with the dubious aim of enhancing fairness and impartiality in serious criminal cases within the armed forces.
 
This pattern of significant yet rapid changes introduce an element of uncertainty regarding OSTC's longevity and stability. While supporters identify OSTC as a crucial step in the evolution of military justice, it also stands at the crossroads of an ongoing process of reform that has recently accelerated and has uncertain ends. The military justice system, which remained largely untouched for six decades, now seems to be in a state of constant flux.
 
Though the title of this article is an ominous prediction of the death of OSTC, there are hints the demise and future of OSTC are already planned. I argue the development of OSTC was just a steppingstone to a contemplated but unstated reform, and that there is already a blueprint for how it will be accomplished.
 
Unveiling the Blueprint: The Hidden Trajectory of Military Justice Reform

To understand the future death of OSTC, let's first go on a short tangent. We must detour into the recent civilian transformation of the Army's Criminal Investigation Division (CID).
 
Army CID, traditionally a military-staffed law enforcement entity within the U.S. Army, embarked on a significant shift towards civilian integration after the organization was heavily criticized following the murder of Vanessa Guillén. This move wasn't just about personnel changes designed to enhance the experience level of agents; it was also a strategic alignment to better resemble civilian law enforcement practices. From the leadership to working agents, military positions in CID are transitioning to better-trained civilian counterparts, in a structure that resembles civilian law enforcement. Army CID is aiming for a workforce composition of 60% civilians by 2027.
 
Many of the complaints that led to CID’s transformation come from what is colloquially referred to as “The Fort Hood Report.” The report pointed out that the Army was using Fort Hood as a training ground for CID agents, who were often rotated out quickly, leading to a lack of continuity and experience in the detachment. This frequent turnover impeded the establishment of working relationships and continuity in investigations. The inexperience of the agents was particularly evident in the investigation of SPC Vanessa Guillén's disappearance, where rookie mistakes were made, including inadequate interviewing techniques and a failure to follow up on critical leads.
 
There was also the issue of CID agents being called away for military duties outside of their specialties, which significantly impacted their ability to conduct thorough and effective investigations. The report highlighted that the vast majority of agents at Fort Hood CID were subject to various military duties and responsibilities, such as deployments, temporary duty (TDY) assignments, off-site training programs, protection details, ancillary duties, and attendance at field training events. These duties often took agents away from their primary role as criminal investigators, leading to disruptions in their work and a lack of continuity in investigations.
 
These issues led to a recommendation for a restructuring of CID, with an emphasis on increasing the ratio of civilian criminal investigators to military special agents to enhance investigative experience. This restructuring is seen as a response to the systemic issues identified in the Fort Hood Report and is aimed at aligning CID more closely with civilian law enforcement practices.
 
If you think about how to integrate experienced civilian police officers into a military criminal investigation organization, restructuring is necessary. By adopting a similar structure to civilian counterparts, and narrowing the scope of what CID investigates to crimes most civilian detectives are familiar with, you create an organization primed to recruit and retain skilled law enforcement professionals.
 
The Eerie Resemblance Between OSTC and Army CID

The new Office of the Special Trial Counsel looks a lot like an organization primed for civilian integration. It is separated from the greater military justice hierarchy and answerable to a civilian service secretary, it is focused on serious crimes, it employs a select group of highly trained personnel from the JAG Corps, it offers specialized and specific training for those specialists, and it is free from many of the military duty distractions that could cause disruptions and a lack of continuity in prosecutions. Would a civilian district attorney or prosecutor feel out-of-place transitioning to an OSTC office? The answer is probably no, and it is likely the system was designed that way.
 
Simply apply the logic used to justify the reorganization of CID to OSTC, and OSTC begins to look like an initial step in a long-term project. Reducing military CID agents to bring in more highly specialized civilian CID agents is being done to improve the investigation of serious crimes. How does that logic not apply to highly specialized civilian prosecutors? A civilian prosecutor with better experience, closer ties to the community, and who isn’t subject to frequent moves and military requirements should do the job of prosecuting better than a military prosecutor.
 
Look also to the offenses. The reason CID can recruit civilian law enforcement with a level of comfort is because the crimes being investigated are serious crimes common across all law enforcement practice. The same logic applies to OSTC and civilian prosecutors. The Model Penal Code has listed offenses for murder and rape, but no listed offense for disrespect to a senior commissioned officer. The former are familiar to any civilian prosecutor and under the purview of OSTC, the latter is military-specific and primarily will stay with the service’s legal offices.
 
The similarities between CID's reform and OSTC's current structure suggest that OSTC is primed and ready to become a civilian organization. Just as civilian detectives can feel comfortable plying the same trade in the reorganized CID, civilian district attorneys and civilian prosecutors will feel comfortable prosecuting serious crimes in the reorganized OSTC.
 
The death of OSTC is on the horizon, and the next question is whether that’s a bad thing. There is a functioning comparative military justice example to help it along.
 
The UK's Civilian-Led Military Justice Model as a Pathway for OSTC's EvolutionTo understand the potential transformation of the Office of Special Trial Counsel (OSTC) towards a civilian-led model, it's useful to compare it with the military justice system in the United Kingdom, which already incorporates significant civilian involvement.
 
The UK military justice system, governed by the Armed Forces Act 2006, applies to all branches of the armed forces and has integrated civilian elements more extensively than the U.S. military justice system. The Judge Advocate General is the judicial head of the Service Courts and is a civilian appointed through the independent Judicial Appointments Commission. All judges in the system are civilians, appointed from experienced barristers or solicitors, similar to Circuit Judges. These judges also sit in the Crown Court, further emphasizing the civilian aspect of the military justice system.
 
The UK's Court Martial has global jurisdiction over service personnel and civilians subject to service discipline. It tries both civilian criminal law offenses and military disciplinary offenses, mirroring a civilian Crown Court trial. The jury, known as the board, can include commissioned officers and warrant officers or, in trials involving civilian defendants, up to six civilian members.
 
Minor disciplinary and criminal matters within the UK military are dealt with summarily by the commanding officer of the accused, but an accused person has the right to elect for trial in the Court Martial. Appeals from the Court Martial go to the Court Martial Appeal Court, which is essentially the civilian Court of Appeal when dealing with service cases.
 
This system showcases how a military justice system can function effectively with significant civilian involvement and independent judicial oversight. The UK model's blend of military and civilian elements, particularly in the administration of justice, offers a potential blueprint for what a civilian-led OSTC might resemble.
 
The transition of the Army CID to a primarily civilian organization within the U.S. military indicates a move towards models that resemble civilian law enforcement and legal practices. Given this precedent, it’s not far-fetched to speculate that OSTC could similarly evolve into a civilian-led organization, taking cues from the UK model. Such a transformation would continue the trend of aligning military justice practices more closely with their civilian counterparts.
 
The So What: Is There a ‘There’ There?

As we consider the future of OSTC, the real issue at stake is not just the structural transformation of the office, but the transparency and inclusivity of the reform process. It is unarguable that the recent pattern of military justice reforms has come as the result of pressure. The changes made in response to this pressure resemble appeasement more than they resemble a coherent plan. For example, can we now call the reorganization of military justice offices after MJA16 a success? It appears all that reform is superseded or erased after four short years.
 
The shift towards a civilian-led OSTC, while operationally plausible, highlights a concerning lack of open dialogue about potential transformation. Stakeholders, ranging from Servicemembers to legal experts, appear to have limited input into a decision that fundamentally affects the military justice system. Congress demands change, a select group of leaders reacts to the demands, and we are delivered a product. The absence of a strategic plan or a clear roadmap for potential transformations only adds to the uncertainty surrounding OSTC's future. What will Congress demand next?
 
If OSTC is indeed evolving toward civilian leadership, the details of this transition become paramount. What will the new structure entail? Who will be involved in shaping it? How will it ensure that the principles of military justice are upheld while integrating civilian expertise? These are not just logistical questions but ones that touch on the very ethos of military justice.
 
Moreover, the ongoing push to expand OSTC's purview over more crimes emphasizes the urgency of addressing these issues. The military justice system stands at a crossroads, and the decisions made in the near future will determine its direction for years to come. The "death" of OSTC, as it currently exists, might not signify the end of military justice, but rather the beginning of a new chapter — one that, if managed with foresight and inclusivity, could lead to a system that is both effective and just.
 
In this critical period of transformation, what is needed is not just structural change but a commitment to the foundational values of military justice. This involves engaging in open conversations, developing inclusive plans, and balancing military traditions with the insights of civilian legal practices. Rather than reacting to pressure, this seems like the perfect opportunity to discuss what all potential futures could look like. The evolution of OSTC represents more than just an organizational shift; it is a step towards shaping the future of military justice, respecting its past while embracing necessary reforms.

Trent Kubasiak