Improve military justice

By Paul McHale

Majority Leader Harry Reid recently announced that within the next few weeks, the Senate will vote on the Military Justice Improvement Act (MJIA). This legislation, sponsored by Sen. Kirsten Gillibrand (D., N.Y.), already has the public support of more than half the Senate, and it is closing in on the 60 votes needed to avoid a filibuster. If enacted, it will be the most significant military justice reform in many decades. Basic principles of sound troop leadership and due process argue strongly for passage.

To begin, a little history. The Uniform Code of Military Justice (UCMJ) currently entrusts to commanding officers the decision whether to prosecute cases of alleged sexual assault. Gillibrand's legislation was motivated by an obvious and recurring failure of that status quo. Over the past several decades, it has become increasingly clear that some commanders are unable - in more than a few cases, unwilling - to make these decisions ethically and responsibly.

A recent Associated Press analysis described the current prosecutorial system as "chaotic." If anything, that description is charitable.

In hundreds of cases - some reported, many not - sexual assault victims have been left abused and abandoned by both the people and the process of the UCMJ. Far too many commanders have shown themselves to be ineffective leaders. Worse still, some have been named as the alleged sexual assailants.

Gillibrand rightly asks, "How many more rapes must we endure to wait and see what reforms are needed?"

Although the focus of congressional debate surrounding the MJIA has been the crime of sexual assault, the Gillibrand legislation would in fact transfer the decision to prosecute cases from local commanders to trained judge advocates in a wide range of serious criminal matters.

Having served in the Marine Corps for more than 33 years - and having served as assistant secretary of defense for six more - I support Gillibrand's initiative. Here are my reasons.

First and foremost, an effective commander needs to focus his or her attention on the war-fighting responsibilities of the command. Our commanders are superbly trained and carefully chosen to fulfill this duty. By contrast, commanders are rarely trained or prepared to exercise informed judgment regarding the weight of evidence. They are trained to prepare their troops for battle. The Gillibrand legislation will allow commanders to be combat leaders, while permitting military lawyers to weigh questions of evidence and potential criminality.

The second issue involves due process. A good commander develops close personal and professional relationships with members of the command. For this reason, when two members of the command are placed in an adversarial relationship (accused and accuser), it is very difficult for the commander to be truly impartial. Yes, a strong and worthy commander can (and should) exercise objective judgment, but commanders are human beings, and there will always be lingering doubts as to the commander's impartiality regarding well-known subordinates.

And finally, entrusting a commander with the decision to prosecute raises an inherent conflict of interest. Commanders are rightly held accountable for their "command climate." Each court-martial referral may be seen as proof of a poor command climate, potentially affecting a commander's own career, and thereby deterring justified criminal referrals.

In sharp contrast, some commanders may be tempted to pursue unwarranted prosecutions (fry the accused) to quickly distance themselves and the command from notorious criminal allegations. (To ensure prompt punishment of accused Marines, an angry commander during the Gulf War ordered me to complete a complex criminal investigation within 24 hours.)

In either case - too tough or too lenient - the commander's decision is potentially tainted by a lack of impartiality, and perhaps self-interest.

According to Department of Defense statistics, occurrences of unwanted sexual contact in the military rose to 26,000 in 2012, from 19,000 in 2010. Both the accused and the accuser are entitled to a fair and informed assessment in these matters. To that end, Gillibrand's legislation will ensure the application of professional legal judgment on questions of evidence, while allowing military commanders to focus on their war-fighting responsibilities.

To paraphrase President James Madison, if men were angels there would be no need for law. In my judgment, the Uniform Code of Military Justice now requires a structural change, not merely another plea for command intervention.

Men (and women) are not angels - and for that reason, the time has come for law.