Don’t hobble the military justice authority and responsibility of America’s commanders
Today’s post is by Lawfire® regular, Cornell Law’s Brian L. Cox, but before we get to his superb essay, let’s discuss the broader context of the underlying issue. As mentioned last week in introducing Don Rehkopf’s post, there is a proposal in Congress to radically change the Uniform Code of Military Justice to deprive commanders of authority and responsibility in serious disciplinary matters, including sexual assault cases.
It would be replaced by a kluge of civilian and military lawyers who would dictate to commanders all over the globe who in their unit does or does not go to court-martial, eviscerating the authority and responsibility American military leaders have held since the Revolution.
In the military, everything truly important is the commander’s responsibility
As I said then, many lawyers, commanders, and others experienced in the military’s criminal justice system, including myself, believe this approach is terribly misguided. The morale and discipline of a military unit is just too important to ‘subcontract’ to some Pentagon bureaucracy.
In the military, everything truly important is the commander’s responsibility. So it just doesn’t make sense to outsource something so critical to morale and discipline as the responsibility for handling serious misconduct–including sexual assault cases–to some distant organization composed of staff officers and civilian bureaucrats. It needs to remain a ‘front-and-center’ command responsibility.
There is a ready solution in the current system to address any bona fide dissatisfaction with a commander’s handling of cases. Retired Maj Gen Walt Huffman, the former Army Judge Advocate General and Dean emeritus of Texas Tech School of Law, put it this way in an email to me last week (he advises it is really a summary/paraphrase from his military justice text–“Military Law: Criminal Justice & Administrative Process“ –-written with Col (Ret.) Rick Rosen):
As General Washington said in 1775, discipline is the soul of an Army. If commanders are to be held responsible for every mission their unit does or does not accomplish – often under dangerous and arduous conditions- but their authority to maintain discipline in their unit is removed, the formula for mission accomplishment is broken in a significant way.
The solution to command failures in the sexual crimes area should be the same as the solution for any command failure – relieve the commander.
New scholarship questioning the wisdom of the proposal is piling up
In June of 2020, law professors Tim MacDonnell, Chris Jenks and Geoff Corn wrote a compelling essay (“Who Should Decide: Prosecutorial Discretion and Military Justice”) on Just Security detailing why disciplinary authority should remain with commanders. They also organized a submission to that effect for the Senate and House Armed Services committees. It earned the concurrence of dozens of former commanders and judge advocates (including mine).
In early May of this year, law professor and military veteran Victor M. Hansen penned an essay (“Removing military commanders from sexual assault cases won’t yield meaningful solutions”) in USA Today in which he insisted that the “problem of sexual assault in the military needs to be a top focus of military and civilian leaders,” but also said:
Unfortunately, the most recent proposed legislation co-sponsored by Sens. Kirsten Gillibrand, D-N.Y., Joni Ernst, R-Iowa, and which would remove military commanders from the court-martial charging process for these cases, is unlikely to provide meaningful solutions to this serious and important problem.
Also in May retired Army lieutenant general (and Iraq veteran) Thomas Spoehr weighed in with a report whose title said it all: “Congress Should Avoid Changes That Would Erode the Military Justice System.”
We next have have several new works by veterans turned law professors Dave Schlueter and Lisa Schenck. Their May 10th article in The Hill explains how their research came to a data-driven conclusion that formed the piece’s title “Statistics don’t support removing commanders from military justice.” Here’s part of what they say:
A woman in college has a 51 percent greater likelihood of being sexually assaulted than a woman between 18 and 24 years of age serving in the military. The military rate per thousand for felony-level sexual assault convictions based on population is five times higher than the rate per thousand of Texas and eight times the rate per thousand of New York.
Professors Schlueter and Schenck back their conclusions in two lengthy (and very new!) law review articles, “National, Military, and College Reports on Prosecution of Sexual Assaults and Victims’ Rights: Is the Military Actually Safer than Civilian Society?” and “Taking Charge of Court-Martial Charges: The Important Role of the Commander in the American Military Justice System.”
Just today over on Lawfare, Michel Paradis, a senior Department of Defense attorney and lecturer at Columbia Law School, wrote a very interesting article (in his personal capacity) about the proposal. He acknowledges a need for military justice reform, but does not take an explicit position on the proposed legislation.
Rather, Michel highlights several issues with serious practical and Constitutional implications that are raised by it (as least in the draft which appears on the military justice blog CAAFlog. For reasons that are not clear, the official draft has not yet been formally released).
I won’t attempt to summarize Michel’s thoughtful analysis, but suffice to say, his essay is a testament to the aphorism “the devil is in the details” or, as we like to say on Lawfire, “things are often (always?) more complicated than they seem.”
Frankly, even advocates of the legislation who read his essay, as well as Don Rhekopf’s, should–however reluctantly–come to the same conclusion as did Don: “the debate here needs to refocus and begin anew.”
A vote of ‘no confidence’ in America’s military commanders?
A journalist asked me about reports that Army general Mark Milley, the Chairman of the Joint Chiefs of Staff, appears to be leaning towards supporting the legislation. I don’t know why (or, really, if) Gen. Milley would support it, but if he (or anyone) does, I would suggest very profound issues about America’s commanders would be raised. Here’s essentially what I said:
[If] anyone…thinks military leaders are too incompetent or too unfair to make decisions [about a critical] matter that so obviously impacts the ability of their units to succeed in war, how can [we] trust them with the lives of service members in combat? How can we rely upon them, for example, to make–in the chaos of combat–complex law of war decisions involving high-tech weapons, particularly where civilians are at risk?
What message would the legislation – which is undeniably a vote of ‘no confidence’ in America’s commanders – send to the troops, the public, our allies, and to our enemies?
To be clear, literally everyone wants the best possible military justice system and, especially, to crush the scourge of sexual assault. I’m sure the proponents of the legislation sincerely think their proposal would help, but hobbling the commander’s military justice authority and responsibility is just not the right way to do it…and, even worse, it could do real damage the ability of our commanders to maintain morale and discipline at a time when America is facing increasingly dangerous challenges and daunting threats.
The newest scholarship: Brian Cox’s analysis of the experiences of allies
Let’s get back to Brian Cox’s new article. His research examines a key premise some advocates raise in support of the legislation. Specifically, Brian upends the oft-heard notion that removing the commanders court-martial authority has been a successful antidote to military sexual assault in key allied countries.
Brian’s study of the military justice systems in four selected countries found no correlation between divesting commanders of court-martial convening authority and improved systemic performance in relation to preventing or responding to sexual assault in the military.
Here’s his post:
Measuring the Effectiveness of the Proposal to Divest Military Commanders of Disposition Authority for Sexual Assault Cases: A Summary
by Brian Lee Cox
As the topic of sexual assault in the military once again moves to center stage in America’s political landscape, the authority of commanders to convene courts-martial involving sexual assault allegations and other serious offenses is under threat now perhaps more than ever. With the Independent Review Commission nearing the end of its “90-day look into sexual assault in military,” this perennial debate will undoubtedly take on a new dimension in the coming weeks.
Based on the Commission’s mandate to recommend reforms that will “result in meaningful and lasting progress on this persistent and corrosive problem across the military,” all eyes will be on the final IRC report when it is released to the public. One central expectation of the final IRC report is that it will present an evidence-based connection between the “reform” that would divest military commanders of authority to convene courts-martial for certain offenses and the desired endstate of improved systemic performance in relation to sexual assault in the military.
Although divesting commanders of the authority to convene courts-martial has become an enduring target of devout military justice reformists, one aspect of the debate that has never really been settled is confirmation of the connection between the “reform” and the goal of improved systemic performance in relation to sexual assault in the military.
As Professor Lesley Wexler recently observed while making note of a discernible dearth of literature examining the performance of jurisdictions that have divested commanders of court-martial convening authority, “care must be taken to make sure that the reforms proposed both address the existing problems and don’t exacerbate them unintentionally or create new ones altogether.”
If there is a discernible connection between the suggested “reform” and improved systemic performance in relation to sexual assault in the military, certainly a study of jurisdictions that have already made the switch would reveal the improved performance reformists seek, right?
This question and Professor Wexler’s astute observations inspired me to engage in a comparative quantitative assessment of four jurisdictions – Australia, the UK, Israel, and Canada – that have long ago divested commanders of the authority to convene courts-martial to adjudicate sexual assault allegations. An article I published last week presents the evidence I found along with an analysis of the quantitative data, but the current essay provides an opportunity to summarize the full findings of the article.
Summarizing the Findings of the Comparative Quantitative Analysis
To provide analytical structure for the study, I drew on an expression from Senator Kirsten Gillibrand regarding what she hopes to achieve by persistently spearheading the reform movement in Congress and among the American electorate. Based on this expression, the metrics I developed include: prevalence of reports of sexual assault, data indicating that victims elect to participate in investigative and prosecutorial endeavors, number of sexual assault prosecutions, and conviction rates for sexual assault cases that do go to trial.
The findings of the comparative quantitative analysis do not bode well for reformists. In short, my study of the four selected jurisdictions found no correlation between divesting commanders of court-martial convening authority and improved systemic performance in relation to preventing or responding to sexual assault in the military.
As I note while concluding the study, the “absence of a correlative relationship between the ‘reform’ and the desired outcomes in relation to the problem of sexual assault in the military for partners and allies indicates that implementing the change in the United States will not achieve the intended effects” reformists seek. What central findings contributed to that conclusion?
One of the most important findings of the comparative quantitative analysis is that each jurisdiction has experienced an apparent steady increase in the prevalence of reports of sexual assaults in the military – just like in the United States. This finding alone casts doubt on the assertion that implementing the “reform” here will mitigate the apparent prevalence of sexual assault in the U.S. military.
While studying the performance of Australia in relation to sexual assault in the military, the study makes note of this trend while also finding no correlation between the suggested reform and metrics indicating that more victims elect to participate in prosecutorial endeavors or that more sexual assault allegations are adjudicated at trial.
For the UK, the findings of the comparative quantitative study indicate that the United States “is already performing in a similar or even preferable manner as compared to a military justice system that has conferred court-martial convening authority to an independent Service Prosecution Authority since 2006.”
While summarizing findings related to Israel, the study finds that despite a “steady increase in the number of [sexual assault] complaints filed…the number of investigations initiated and cases prosecuted appears to be trending in the opposite direction.”
For Canada, the comparative quantitative study suggests “that the U.S. military is already performing better than the [Canadian Armed Forces] in relation to” the metric indicating the number of sexual assault prosecutions. That is, the average number of sexual assault notifications provided to the chain of command in the United States that were ultimately referred to trial by commanders over the three-year period studied was 4.5 times higher than for the CAF Directorate of Military Prosecutions over that period.
In summarizing the findings of the comparative quantitative analysis, I note that “if the experience of partners and allies is a useful gauge, there is no quantifiable connection between removing charging authority from commanders and improved systemic performance in relation to outcomes that have been identified by reformists as indications of improvement in relation to sexual assault in the military.” It should come as no surprise, then, that all four jurisdictions examined in the study – Australia, the UK, Israel, and Canada – are in search of effective solutions, just like in the United States.
The Comparative Quantitative Analysis in the Context of the IRC Final Report
If there truly is no quantifiable correlative relationship between the popular “reform” of divesting commanders of court-martial convening authority and improved systemic performance in relation to sexual assault in the military, why should we expect improved systemic performance from the U.S. military justice system if Senator Gillibrand is ultimately successful in compelling the change? This is a question the Independent Review Commission will be expected to satisfactorily address in its final report.
After all, the IRC accountability line of effort presented an “initial readout” to Secretary Austin reportedly recommending that “decisions to prosecute service members for sexual assault be made by independent authorities, not commanders.” Especially because this interim suggestion was presented merely four weeks in to three-month study, the evidence from which the IRC drew in developing this recommendation will call for intense scrutiny when the final report is made public.
Indeed, the current CJCS, Gen. Mark Milley, indicated after reviewing the interim recommendation that he is “confident” that the IRC will “develop evidence-based solutions, and that would be important as we go forward.” In order for senior military leadership – as well as the American electorate – to fully endorse any “reforms” suggested by the IRC, the Commission will be expected to present “evidence-based solutions” in its final report.
If the findings of my comparative quantitative analysis are any indication, the IRC faces an uphill climb in the endeavor to present evidence-based solutions if one of those “solutions” calls for divesting commanders of court-martial convening authority. No doubt members of Congress will carefully scrutinize the evidence that is presented in the report along with the recommendations.
The IRC Report and the “Epidemic of Rape” Messaging Campaign: The Way Ahead
As the debate unfolds, it would also be useful to closely scrutinize the messaging campaign that has been constructed and maintained to support the movement to divest military commanders of the authority to convene courts-martial for sexual assault offenses. If there truly is no demonstrable correlation between the suggested “reform” and improved systemic performance, what messaging tactics have instigated an apparent shift in the American political landscape such that, according to Senator Gillibrand, “a lot of people have begun to change their minds”?
This is a study in which I am currently engaged, and I hope to be able to publish these findings soon. Thus far, the apparent bipartisan support for the “reform” in Congress seems more a function of issue fatigue than enthusiastic backing. My ongoing study of the evolving political landscape suggests that the current issue fatigue is attributable primarily to a sentiment that the problem of sexual assault in the military remains essentially unchanged despite prior endeavors to “fix” it.
The popular characterization that there is a pernicious “epidemic of rape” in the U.S. military, which is at the center of the persistent reform movement, is certainly sensational – but is it legitimate? Is this most serious claim supported by evidence, or is it simply a narrative that has been repeated often enough that the perception has spawned a new reality?
More fundamentally, if there truly is a longstanding “epidemic of rape” in the U.S. military, what does this say about the reputation of American servicemembers? As one observer noted this past Memorial Day, America’s military “ranks aren’t filled with faceless, nameless troops.” As such, “declaring an epidemic of rape paints our defenders as the rapists.”
This is a most serious allegation indeed, and it forms the foundation of the long-running campaign to divest military commanders of the authority to convene courts-martial for sexual assault offenses. While the seemingly persuasive – and irrefutably sensational – narrative demands additional scrutiny, for now the connection between the problem and the “solution” appears tenuous at best.
The findings of my comparative quantitative assessment of four jurisdictions that have already adopted the “solution” that is now demanded by reformists in America provides additional support to the characterization that the “reform” merely represents a solution in search of a problem. As the Independent Review Commission prepares to publish its final report, certainly lawmakers and the constituents they represent will be keen to consider the evidence-based recommendations the IRC presents.
While considering the report, the evidence that is presented in support of the recommendations will likewise be carefully scrutinized by members of Congress and the American public. If the final report presents evidence that refutes my finding that “there is no quantifiable connection between removing charging authority from commanders and improved systemic performance,” we will all be keen to engage with it.
If not, as I conclude the comparative quantitative study, “lawmakers and their constituents will need to consider the IRC recommendations with a considerable degree of skepticism.”
About the author:
Brian L. Cox is an adjunct professor of law at Cornell Law School and a visiting scholar at Queen’s Law in Ontario. Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.
Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, and Joint Firepower Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.
The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
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