Effort to Remove Prosecution Power from Military Commanders Gains Congressional Momentum

Vanessa Guillen
Spc. Vanessa Guillen, U.S. Army, was murdered in 2020 after allegedly suffering sexual harassment from a military superior. / Image courtesy Wikimedia

Congress is moving closer to enacting legislation that would remove the prosecution of felony crimes by members of the U.S. armed forces from the chain of command. The chairman of the Senate Armed Services Committee and a leading proponent of the change reached agreement on the concept in July.

If enacted, New York Sen. Kirsten Gillibrand’s proposal – the Military Justice Improvement and Increasing Prevention Act of 2021 – would allow unit leaders to retain prosecutorial discretion over military offenses, but transfer the authority to charge and pursue cases against servicemen and servicewomen who are alleged to have committed traditional crimes to a corps of independent armed forces lawyers.

Joshua Kastenberg, a former U.S. Air Force Judge Advocate General officer and military judge and now an associate professor at the University of New Mexico School of Law, said Gillibrand’s bill is a vital step in fixing a flaw in the military’s mechanism for addressing crimes. “The whole military justice system is constructed on the idea that commanders run it,” said Kastenberg, who has advised Gillibrand and her staff on the proposal. “With all this legal authority commanders aren’t trained in the law.”

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Because commanders decide whether those who serve under them are charged with sexual assault or sexual harassment when an allegation is presented, Kastenberg explained, victims’ trust in the armed services’ disciplinary system is harmed. “What you’re looking to do is give service members who are victims of crimes the confidence to go forward and report.”

A July 20 vote by the Subcommittee on Personnel added the measure to the FY 2022 National Defense Authorization Act, which was then approved on July 22 by the parent Armed Services Committee. The NDAA is likely to be voted on by the full Senate after it returns from recess in early September.

Gillibrand said she is “proud and deeply grateful” that her proposal will likely be included in the NDAA. “We owe it to our service members to provide a military justice system worthy of their sacrifice,” she said in a statement.

Similar momentum may exist in the House. California Rep. Jackie Speier introduced an analogous measure known as the Vanessa Guillén Military Justice Improvement and Increasing Prevention Act on June 23. The bill is before the House Armed Services Committee and will likely be considered when the committee considers that chamber’s version of the NDAA. Markup on the defense authorization bill is scheduled for Sept. 1.

The proposal’s momentum follows years of growing evidence that armed forces members are reluctant to report sexual assaults and sexual harassment for fear of retaliation. Data released by the Department of Defense earlier this year shows that one out of every 16 women in the armed forces has been raped, sexually assaulted or groped during 2018 and that there were more than 20,000 incidents of sexual assault in the ranks that year. That total marked an increase from the nearly 15,000 reported in 2016.

Since 2013, Gillibrand has been the leading Congressional advocate for reform of the military’s criminal justice system to create a more effective mechanism to deter sex crimes in the ranks. During the eight years since first introducing a military justice reform bill to strip prosecution authority in sex crime cases, her bills have never come up for a vote by the full Senate. “I asked for a vote in 2016, 2017, 2018, 2019, 2020, and I was denied every single time,” Gillibrand said during a recent floor appearance, according to NPR.

Among the determined opponents to the change Gillibrand advocates is Rhode Island Sen. Jack Reed, who has not previously allowed her proposal to proceed out of the Armed Services Committee. As ranking member of that panel between 2015-2021 and, as its current chairman, Reed insisted the time is not right to modify the military’s process for handling crimes. “It’s the experience of many over many years,” Reed, a former U.S. Army Ranger and paratrooper, said, according to Rhode Island’s WPRI-TV, “that these other felonies could be treated more effectively and more efficiently by the chain of command, which they have for many, many years.”

Gillibrand voiced her impatience with Reed’s resistance. “If you remove only one crime from the commander, you will essentially create an entirely different system just for survivors of sexual assault, who are more often to be women,” she said on the Senate floor in June, also according to WPRI-TV. “And experts have said that it will further marginalize them, it will further diminish them, it will further alienate them. It will be a special court for women, or a ‘pink court.’”

Kastenberg said that Reed’s reluctance to entertain the idea of removing criminal prosecutions from the chain of command may stem from the culture of the armed forces. “The military can be very innovative but it’s always very filled with the idea that we’ve been doing it that way since George Washington crossed the Delaware,” he said. “Senator Reed is clinging to a system that the framers of the Constitution had significant doubt [about] but tolerated as a matter of necessity.”

Gillibrand’s persistent efforts were boosted by two events that triggered a sea change in entrenched opposition both at the Pentagon and on the Armed Services Committee.

In April 2020 U.S. Army Specialist Vanessa Guillén, a 20-year old soldier, went missing after telling her family that she was sexually harassed by a non-commissioned officer at Fort Hood. Her remains were found along the Leon River, outside the base, in June 2020. The outcry in the aftermath of her murder led to a Pentagon review of the military culture at the Texas installation, a process that led to a scorching assessment released in Nov. 2020 and a crackdown on an array of officers and NCOs at the base for failures of leadership. At least 27 soldiers have faced discipline, according to Stars & Stripes.

Guillén’s suffering and fate, which was apparently inflicted by a fellow enlistee, was a reflection of poor leadership, especially at lower levels of the hierarchy, according to Allison Weber, a former Army JAG officer who is now a military and national security law specialist as a senior associate at Buffalo’s Tully Rinckey PLLC. “What we don’t do a good job of is training leaders to be leaders, effective leaders, to foster that positive environment” needed to encourage reporting and the appropriate responses, she said.

On July 2 the Independent Review Commission on Sexual Assault in the Military published its findings and recommendations. The IRC, established by Secretary of Defense Lloyd Austin on Feb. 26, and led by former White House advisor Lynn Rosenthal, found that “there is a wide chasm between what senior leaders believe is happening under their commands, and what junior enlisted Service members actually experience.” “This is true across the enterprise,” the report’s authors wrote. “As a result, trust has been broken between commanders and the Service members under their charge and care.” The IRC recommended that “[s]pecial victims—particularly survivors of sexual assault and domestic violence—deserve all critical decisions about their case to be made by a highly trained special victim prosecutor who is independent from the chain of command.”

Austin, in a memo to senior DoD leadership and combatant commanders issued upon release of the IRC report, said the Pentagon would cooperate with efforts in Congress to remove “the prosecution of sexual assaults and related crimes, domestic violence, child abuse, and retaliation from the military chain of command” and add “sexual harassment as an offense under the UCMJ.” He also directed commanders to “standardize non-judicial punishment” across all branches of the armed forces and to “establish a separation process” for members against whom sexual harassment claims have been substantiated.

President Joe Biden and Austin signaled support for the concept shortly thereafter. “Sexual assault is an abuse of power and an affront to our shared humanity,” Biden said. “And sexual assault in the military is doubly damaging because it also shreds the unity and cohesion that is essential to the functioning of the U.S. military and to our national defense. Yet, for as long as we have abhorred this scourge, the statistics and the stories have grown worse. We need concrete actions that fundamentally change the way we handle military sexual assault and that make it clear that these crimes will not be minimized or dismissed.”

After Austin expressed support for it, Reed acknowledged that Gillibrand’s long effort to reform prosecution practices in the armed forces is likely to succeed. “When you have the secretary of defense saying, ‘I want it,’ and you have, presumably, strong majorities in the House and Senate that want it, then it usually gets done,” he told WPRI-TV.

Help provided by allies from the other side of the aisle, including Iowa Sen. Joni Ernst, appears to be just as crucial. “Sexual assault has no place in our military—or anywhere else—and it’s far past time we take more steps toward preventing and reducing these heart-wrenching crimes,” Ernst, a retired Iowa Army National Guard lieutenant colonel, said in an April statement. Sen. Chuck Grassley, the Hawkeye State’s senior senator, also supported Gillibrand’s effort. “Securing justice for survivors of sexual assault and abuse is critical,” Grassley said in a statement. “It’s utterly unacceptable that so many of those who serve our country in uniform have dealt with a system that’s broken.”

In addition to Ernst and Grassley, the Vanessa Guillén Military Justice Improvement and Increasing Prevention Act is co-sponsored by more than 60 senators from both parties.

Gillibrand’s proposal is not the only measure aimed at reforming military justice that the House Armed Services Committee will consider. Speier introduced a second bill, the I Am Vanessa Guillén Act, that would limit the carve-out to sexual assault and sexual harassment cases, create a separate military offense to cover sexual harassment and permit armed forces members to pursue compensation from DoD in sexual assault and sexual harassment cases.

Congress adopted the UCMJ, and President Harry Truman signed it into law, in 1950. Changes adopted in 2013, 2014, 2015, and 2016 did not address whether to shift prosecutorial power away from commanders for felonies.

Kastenberg said the time is long overdue to make that change. “The system, as it stands right now, is in dire need of repair,” he said. “For [at least] 50 years, what the public has heard, what Congress has heard, is ‘the system is fine, the system works, the system is important to military discipline.’ But the system isn’t fine. The military needs a system that gives people confidence and continues instilling and maintaining discipline.”

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