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.”
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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.”
As Congress debates MJIA, commanders have encouraged service members to weigh in against the measure. In October, Air Force Lt. General Richard C. Harding, the Air Force’s legal adviser, and Col. Jeffrey Rockwell sent a letter to fellow Air Force lawyers explaining the importance of the chain of command in the military justice system. “[M]any of us have engaged with members of Congress, their staffs and members of the media to teach, implore and explain the reasons, or the ‘why’ behind commanders’ authority and the current set-up of the military justice system,” Harding wrote. “Please read, absorb and share with your commanders and media types wherever you are located. This will truly make a difference.”
Susan Burke, a lawyer who has worked with several survivors of military sexual assault, asked the Air Force inspector general to investigate the letter’s authors. “General Harding and Colonel Rockwell improperly seek to use their influence as leaders in the Air Force to rally support against the political movement attempting to remove sexual assault claims from the military chain of command,” she wrote. Burke cited Air Force rules requiring members to “remain politically neutral and divorced from partisan politics” and prohibiting them from using “official authority or influence to…solicit votes for a particular candidate or issue.”
An Air Force spokesperson denied any impropriety, and said in a statement that the intent of the letter “is to ensure AF [Air Force] leaders and commanders are current on the issue and communicate it properly and clearly to interested publics, nothing more.”
The Air Force JAG who spoke to The Nation confirmed that he also had been encouraged by superiors to write editorials and otherwise argue publicly in favor of preserving commanders’ convening authority. “We’re constantly told in staff meetings and other meetings that we need to fight this, that if Gillibrand’s proposal is passed it will destroy the system,” he said. “There’s never an opportunity to give a contrary opinion.”
All of the active-duty military personnel who have testified before Congress and before the independent panel charged with recommending reforms have expressed opposition to MJIA. According to the Air Force JAG, this reflects deliberate decisions about who is sent to the Capitol. “When they send people to Congress to talk to staffers…they will only send people who support commanders in charge. They will not send anybody who disagrees with that position.”
That leaves only outside advocates and retired officers to challenge statements made by top brass, many of which have been misleading, the JAG believes. He pointed to the claim, made repeatedly by the Pentagon and Gillibrand’s opponents in the Senate, that convening authority is critical to a commander’s ability to enforce good order and discipline within the ranks. But convening authority is not always a function of command; although all commanders are responsible for good order and discipline, many already lack the power to take serious criminal cases to court martial.
“This idea that ‘oh, gosh, I can’t do my job unless I’m a convening authority,’ is laughable,” the JAG said. Brig. Gen. McGinnis agreed. “Don’t talk to me about readiness,” he said. “Once you violate the dignity of individuals in your command, your whole readiness equation starts to deteriorate. It’s like rotten apples.”
Commanders’ lack of legal experience also leaves victims and anyone falsely accused of a crime vulnerable. “We would never expect somebody who is getting medical treatment to ask your commander what kind of treatment they should get, or give commanders the authority to tell them what kind of medical treatment they get, because it’s just ludicrous. Yet when it comes to our area of expertise, the justice system, we defer to commanders in making these decisions. It makes no sense,” the JAG said.
He also pushed back against a claim made by Senator Claire McCaskill, a former civilian prosecutor, that military lawyers would shy away from tough cases out of concerns for their win-loss ratio. “In the world [McCaskill] dealt with, where these prosecutors were elected and their win-loss records are something they trumpet in the campaign, yeah, I suppose that happens,” he said. “Military prosecutors have no political motivation to avoid difficult cases [because] they don’t have to worry about elections.”
McCaskill is one of the most prominent opponents of MJIA, along with fellow Democrat and Armed Services Chairman Carl Levin, and Republicans Kelly Ayotte and Lindsey Graham. Gillibrand’s amendment is likely to draw a filibuster, meaning she’ll need fifty-nine supporters. So far forty-seven of her colleague have committed, including eight Republicans. Both sides are engaged in an intense campaign to win over some thirty undecided senators.
McCaskill and Ayotte have argued that “the victim community is not monolithic” in its support for MJIA. That may be true, but it appears neither is the military in its opposition.
“You know they always talk about how, you know, look how great we did with the end of segregation—yeah, because you were forced to do it,” the Air Force JAG said. “The same with this. They just resist change.”
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