As Congress debates an overhaul of the military justice system to stem an epidemic of sexual assault, the armed forces are struggling to conceal their own internal divisions over the scope of reform. According to a senior officer who spoke with The Nation, the military is actively encouraging service members to lobby against legislation that would curb commanders’ authority over the prosecution of sexual assault cases, while suppressing pro-reform voices within the ranks.
Asked what would happen if he advocated publicly for limiting the power of commanders, the officer, a high-level Air Force lawyer (known as a Judge Advocate General, or JAG) with decades of experience with sexual assault and other criminal cases said, “It would kill my chances of ever having a good job again… I would be ostracized.” He concluded, “It would be the end of my career.”
At issue is a proposed change to the military justice system to give military lawyers, rather than commanding officers, the power to determine whether accusations of a serious crime warrant a trial. The Senate is divided over the proposal (introduced by Senator Kirsten Gillibrand and known as the Military Justice Improvement Act, or MJIA), one of several reforms being considered. Survivors’ advocates say MJIA is critical to shield victims from retaliation, but it has elicited total opposition from the top brass, who argue that commanders’ authority to convene a court-martial is essential to their ability to maintain good order and discipline.
The JAG’s account raises the question of whether Congress has heard a representative range of military opinions as it considers historic reforms. According to the JAG, perspectives on taking prosecutions out of the chain of command are decidedly more mixed within the ranks than the brass’ testimony would suggest. As a result, he believes, the debate in Congress has been skewed.
“The people who are opposed to the Gillibrand amendment don’t understand that there is a different view within the DOD,” he told The Nation. “There is not this monolithic view that they want Congress to believe that all commanders support [preserving convening authority], at all.” But because of the strict hierarchy within the military, officers who support MJIA have not been able to make the case for reform to Congress. (At press time, the Department of Defense had not responded to inquiries from The Nation.)
Other active-duty service members are beginning to speak privately to lawmakers about the importance of MJIA, said Anu Bhagwati, executive director of the Service Women’s Action Network and a former Marine Corps captain. “The First Amendment is an interesting gray area when it comes to wearing a uniform,” she told The Nation. Another prominent survivors’ advocate told The Nation that “behind the scenes, many commanders support this reform.”
Already, a number of retired generals, veterans groups and the DOD’s own advisory committee on women in the services have recommended removing the decision to prosecute serious crimes from the chain of command. That has left the top brass scrambling to maintain the impression of unified opposition.
“The reason we have so many generals is not to fight a war but to keep Congress off balance,” said Brig. Gen. David L. McGinnis (retired), who sent a letter of support to Senator Gillibrand, the New York Democrat working to add MJIA to the Defense Authorization Act, which will receive a vote in the Senate sometime before Thanksgiving. McGinnis, who is in contact with active-duty commanders, told The Nation that he agrees with the JAG that opposition to MJIA is not uniform throughout the ranks. “I believe there is a lot of angst at mid-level leadership, at least in the Army,” he said. He accounts the pushback from the top to “a hidden law among the military cultures: Don’t let Congress change anything. If they find out they can change one thing, they’ll be willing to change a lot more.”