Brian Cox on: “Congress Must Make Informed Decisions to Prevent Risk of Systemic Military Justice Failure”
Congressional action is underway to eviscerate commanders’ authority in military justice matters but prudent consideration of the long-term and broader military impact is needed. Brian Cox, a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School, is one of the nation’s foremost experts on this matter, and I urge you to read his latest scholarship in Lawfire’s guest post.
But, first, a few thoughts of my own…
Is it possible that many in Congress, military leadership, veterans and the public might not have fully comprehended the dangerous repercussions and domino effect of commanders losing their disciplinary authority to what will likely be a D.C.-based bureaucracy composed of staff officers and civilians? Because if commanders – even four-star generals – want to discipline someone in their unit, they will almost always be obliged to come as supplicants to this O-6 headed bureaucracy far from any battlefield and try to make their case.
In my mind, officers without disciplinary authority aren’t really commanders; rather, they are little more than glorified managers. That isn’t a formula for warfighting success.
Moreover, if Congress doesn’t trust commanders to make military justice decisions which are so intrinsic to maintaining unit morale, discipline and readiness, how can it trust them with the operational life-or-death decisions that take place so often in the chaos of combat? Or will those decisions also be outsourced to some DC-based staffers? What about the complex, law of armed conflict decisions a warfighting commander may have to make multiple times in a day?
Let’s face it, there has never been a successful military in a major war where its commanders lacked disciplinary power. As I’ve said before, everything in the military that’s really important is commander’s business, so why change military discipline from a commander-centric system to a bureaucratic-centric system?
Furthermore, with the armed forces facing so many challenges from China, Russia, Iran, North Korea and more, is now really the time to add to its burdens by stripping America’s military commanders of most of their disciplinary power? We should be empowering, not de-powering the ability of commanders’ to maintain discipline.
What is ironic is that the current military justice system produces a disciplinary environment others can only hope to have. Experts advise:
[A]cording to surveys, females attending college have the highest rate of victimization for sexual assault of any age or gender. 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. (Emphasis added.)
My own view is much the same as that expressed by General Mattis at the 2021 LENS Conference. You may recall this exchange which is reprinted from an earlier post:
Dunlap: How important is disciplinary authority to a military commander, especially a combat commander? And do you have any thoughts on those proposals?
GENERAL JIM MATTIS: Well, maintaining the military justice system as a commander-centric system is critical if you’re going to hold commanders responsible for the good order and discipline of the only organization…[that] really that has the authority to employ enormous violence in the name of the American people overseas. And if you start diluting that authority, then the responsibility dilutes too.
[The danger of weakening the military’s cohesion]
And I can pretty much assure you that at that point, you will weaken the military’s cohesion and the sense of ownership by the commander, from the platoon commander, lieutenant, and company commander, all the way on up, over discipline. Like right now, if something goes wrong in your city, you turn it over to the city, the policemen picks up the person. They turn it over to the city prosecutor, and they deal with it. And when it’s over, life goes on.
In the military, the guy comes back to the unit or he stayed in the unit. And somehow– we’re a closed labor system. It stays right there. So the whole point is to keep this violence-capable unit under strict good order and discipline.
You may want to keep General Mattis’ words in mind as you read Brian’s new essay below.
Congress Must Stand Up to Misguided Political Pressure in Order to Avoid Risk of Systemic Military Justice Failure
By Brian Lee Cox
As the Senate resumes work this afternoon following the Thanksgiving break, debate involving that chamber’s version of the National Defense Authorization Act (NDAA) is expected to finally take center stage. The Senate Armed Services Committee (SASC) voted to advance the draft legislation for consideration by the full Senate in July, though competing legislative priorities have notoriously prevented the bill from advancing to the full chamber before now.
Among the most significant issues to iron out now in the Senate and later when both chambers meet in conference to address differences between versions adopted by the respective chambers is what manner of sweeping military justice reform to adopt, if any. The NDAA passed by the House earlier this year and the version advanced to the full Senate by SASC in July both contain provisions that would essentially implement into law the central recommendations presented in the accountability line of effort of the DoD Independent Review Committee (IRC).
If the central IRC accountability recommendations are passed into law, each service Secretary would be required to establish a separate office of prosecutors to decide whether and how to proceed with all allegations involving “special victim offenses.” These would be limited to sexual assault offenses as well as crimes such as domestic violence and stalking.
In contrast to the “special victim offenses” approach reflected in both current drafts of the NDAA, the version advanced to the full Senate by the SASC includes a proposal that would transfer disposition authority for most felony offenses from commanders to military lawyers. The list of covered offenses is extensive, and the authority transferred to O-6 judge advocates includes both preferral and referral decisions.
If Congress cares to avoid the risk of an imminent systemic military justice failure, lawmakers must refuse to adopt this “most felonies” approach.
The Military Justice Bait and Switch Act of 2021
Senator Kirsten Gillibrand has long crusaded for sweeping military justice reform to address what she refers to as an “epidemic of sexual assault” in the military. However, anticipating that she would garner unprecedented support for her signature military justice reform campaign this congressional session, Sen. Gillibrand’s “Military Justice Improvement and Increasing Prevention Act of 2021” employs a bait-and-switch tactic to expand the target of “reform” from sexual assault offenses to most felonies.
The sudden shift in scope from sexual assault crimes to nearly all felonies is supported neither by existing evidence nor by the corrosive rhetoric that has become a defining feature of the military justice reform movement. Rather, the expansion to most felony-level offenses was a chief recommendation presented in a report published by the “Shadow Advisory Report Group of Experts” in April 2020.
According to the recommendation of the “SARGE” report, the “gist of the alternate” recommended military justice system is that no “offense for which the maximum authorized punishment exceeds one year’s confinement may be tried or even preferred without the approval of an O-6 or above judge advocate who is outside the accused’s chain of command.” Unfortunately, the SARGE report presents no data to support the perceived necessity of expanding the scope of military justice reform in this manner.
Renowned military justice expert Eugene Fidell, who was a co-author of the SARGE report, explained during congressional testimony earlier this year that he has “looked at” the issue “eight ways from Sunday to try to figure out if there is a truly nourishing, satisfying way to draw the line” between commander and lawyer disposition authority. According to Gene, “the simplest way of doing it, really, is the familiar felony/misdemeanor dichotomy.”
For readers familiar with Gene Fidell’s scholarship, the propensity to limit commanders’ court-martial disposition authority to the greatest extent possible will come as no surprise. Indeed, a portrait of King George III graces each page of his well-known Global Military Justice Reform blog. As he noted in 2014, the 1774 Articles of War upon which the earliest American Articles were modeled “continue to cast a long (and in important respects retrograde) shadow across the military justice systems of the United States and some other countries whose systems may be traced to the classic command-centric British model.”
The 21st Century Military Justice System the Military Deserves?
As Gene remarked separately while lamenting the ostensibly unsatisfactory pace of congressional military justice reform, “neither the die-hard defenders of what remains of our George III-era legacy of military justice that gave charging powers to commanders, nor its numerous critics — should be content with the dog’s breakfast Congress has served up.” According to Gene Fidell, then, Congress must correct this inherent fundamental flaw in the American military justice system in order to “give our fighting forces the 21st century military justice system they deserve.”
The way to accomplish this goal, from this perspective, is for Congress to ensure that commanders are only “permitted to handle minor disciplinary matters through their existing nonjudicial punishment powers.” Permitting commanders to “decide who is charged with what offenses, and how those offenses will be disposed of” is, according to Gene, a “procedural problem [that] is hard-wired into the Uniform Code of Military Justice.”
This prognosis led Gene to conclude that “the issue of whether commanders have a built-in conflict of interest might have” influenced the decision not to pursue court-martial proceedings for personnel involved in the 2015 attack on the Médecins Sans Frontières trauma center in Kunduz, Afghanistan. However, as I have observed separately here on Lawfire, “my discussions with friends and former colleagues who were directly involved with advising at various echelons of command after the Kunduz airstrike indicate, without exception, that these military lawyers would not have initiated court-martial proceedings if the decision had been theirs.”
As Gene has observed much more recently, the “impetus for congressional attention” on the disposition authority of commanders “was concern over the continued pattern of sexual assaults on military personnel by other military personnel.” However, according to Gene, “the central issue with the system for charging decisions under the Uniform Code of Military Justice both predates and transcends them.”
This progression of developments helps explain the current bait and switch tactic of Sen. Gillibrand’s most recent military justice reform proposal. The “bait” has long been a sustained misrepresentation of sexual assault prevalence data. With a comparatively limited scope of “reform” on the hook as the bait, and with a sympathetic administration in the White House, the timing supported a “switch” to what reformists actually hope to achieve: to limit the scope of commanders’ court-martial disposition authority due to perceptions of systemic unfairness and bias.
Gene Fidell has emphasized in his written work that “these issues have been studied long enough,” and Sen. Gillibrand has suggested the same. They are both correct on this note, of course, though existing data indicates that they’re not making the points they seem to intend with these observations. While it is true that the potential for systemic unfairness of decisions made by commanders has been studied in depth, the findings demonstrate commanders do, in fact, act reasonably under the current system.
Case Review Subcommittee Report On Investigative Case File Reviews
In October 2020, the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) published the results of a study of investigative case file reviews for military adult penetrative sexual offense cases. The study was performed by the Case Review Subcommittee (CRSC) of the full DAC-IPAD committee.
Congress directed the Secretary of Defense to establish the DAC-IPAD in the FY 15 NDAA to advise the Secretary on the “investigation, prosecution, and defense of allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct involving members of the Armed Forces.” The report published in 2020 “is the culmination of a nearly three-year project in which CRSC members and professional staff performed in-depth reviews of 1,904 cases documenting investigations of adult penetrative sexual offenses.”
As the CRSC report notes, this study represents “the first time” a group of reviewers had been tasked to assess “whether military commanders’ initial disposition decisions were reasonable” in the context of “military sexual assault investigations.” To my knowledge, no study of this depth and magnitude has been conducted by any other government – though I recommend that the methodology of this study should be utilized as a template for any government interested in an evidence-based approach to assessing the reasonableness of systemic military justice decisions.
For any member of Congress concerned about the prospect of actual systemic bias or unfairness in the current commander-centric military justice system, the findings of the CRSC report should allay this anxiety. Specifically, the report determines that the “initial disposition authority’s decision to take no administrative, nonjudicial, or judicial action against a Service member for an alleged penetrative sexual offense was reasonable in 1,316 (98.5%) of 1,336 of the adult-victim cases” studied.
When commanders did decide to initiate (or “prefer” in U.S. military justice terminology) an offense, the CRSC study determined that this decision “was reasonable in 486 (94.0%) of the 517 adult victim cases” studied.
The Systemic Problem with Referral of Sexual Assault Cases
In fact, the only central finding of the CRSC study that is cause for alarm is that there “is a systemic problem with the referral of penetrative sexual offense charges to trial by general court-martial when there is not sufficient admissible evidence to obtain and sustain a conviction on the charged offense.”
Although the CRSC study does not offer an opinion regarding what might be the cause of the systemic problem with commanders’ referral to court-martial of sexual assault offenses when there is not sufficient admissible evidence to obtain and sustain a conviction, my experience in military justice suggests that practitioners attribute this systemic problem to the current political climate involving sexual assault in the military. The chief instigator of the current toxic political climate is the same political figure leading the charge for “reform” – Senator Kirsten Gillibrand.
For example, during the 2019 confirmation hearing of General James McConville, the current Chief of Staff of the Army, Sen. Gillibrand berated GEN McConville for “failing us” on the issue of sexual assault because “the trajectories of every measurable are now going in the wrong direction.”
As Sen. Gillibrand “analyzes” a copy of the FY 18 Workplace Gender Relations Survey of Active Duty Members (WGRA) report, she laments, “To have an estimated 20,000 cases – the statistics I’m looking at are as bad as they were when I started advocating for reforms.” Later she waives the WGRA report in the air and advises GEN McConville that he needs “to study this as well.”
Earlier this year, Sen. Gillibrand, explained that “all serious crimes” need to “be taken out of the chain of command” because “we have two data points that prove” commanders are unfairly biased.
One of those data points is “the poor results we have seen for survivors of sexual assaults over the last 10 years that data has been collected.” (Incidentally, the other data point involves the supposed “existence of racial bias” in the military justice system – but the GAO study upon which this “data point” is based repeatedly cautions that the findings of that report, “taken alone, do not establish whether unlawful discrimination has occurred, as that is a legal determination that would involve other corroborating information along with supporting statistics.”)
“More Convictions” Needed to “Change the Culture” of the Military
For years, Sen. Gillibrand has maintained that court-martial decisions must be made by lawyers instead of commanders because removing the supposed inherent bias of commanders would result in “more convictions and more perpetrators going to jail” and that “you need that rate to be much higher to change the culture” of the military.
These remarks from Sen. Gillibrand collectively indicate that her long-running crusade to transfer court-martial authority from commanders to military lawyers is both ill-informed and dangerous. It is ill-informed because she appears to believe that results of a periodic survey present actual evidence of “poor results…for survivors of sexual assaults” in the military. As I have described here on Lawfire and elsewhere, these metrics “are of extremely limited probative value as a measure of the effectiveness of the military justice system.”
Even worse, the insistence that “more convictions” of sexual assault offenses at court-martial is a necessary predicate to “change the culture” of the military exemplifies the very antithesis of justice. The findings of the CRSC report demonstrate that commanders are not biased when making decisions regarding whether or not to initiate (“prefer”) prosecution for a sexual assault offense.
However, after a preliminary hearing has been conducted and the case file is ready to be sent to trial, there “is a systemic problem with the referral of penetrative sexual offense charges to trial…when there is not sufficient admissible evidence to obtain and sustain a conviction.” The “bias” that exists, at least according to actual data, is in favor of attempting to, in Sen. Gillibrand’s words, “send more perpetrators to jail.”
In any event, it is unfathomable that Sen. Gillibrand insists on ignoring the results of the CRSC study, especially since it is Congress that directed the establishment of the DAC-IPAD. The CRSC study “drew on its members’ extensive collective expertise in sexual offense case investigation and adjudication to assess whether, from an investigatory and legal standpoint, commanders are systemically exercising their authority” in a reasonable manner.
While the study methodology is genuinely impressive and the results should fundamentally shape discussions involving the role of military commanders in deciding whether to initiate courts-martial proceedings for sexual assault offenses, Sen. Gillibrand has yet to even acknowledge the existence of the report more than a year after it was published. Indeed, one will not find a link or reference to the report on the “Comprehensive Resource Center for the Military Justice Improvement Act” of Sen. Gillibrand’s current website.
Even if Sen. Gillibrand refuses to acknowledge the results of the CRSC study, her colleagues in Congress must extend due consideration to the report. Whether Sen. Gillibrand has been misinformed or disingenuous, or both, throughout her campaign to divest court-martial authority from commanders, this is no reason for other members of Congress to make legislative decisions in the same manner.
This is especially the case because the product of the current bait and switch reform measure that will now be considered by the full Senate poses a risk of near and mid-term systemic failure of the military justice system.
Sen. Gillibrand’s Proposal Would Change “Very Little” in Practice?
Although Sen. Gillibrand claims the “most felonies” approach proposed in her preferred military justice reform measure would have very little practical effect, this assertion is, quite simply, misguided. Sen. Gillibrand summarized this claim during a Military Times interview posted this past August.
During the interview, Sen. Gillibrand observes that if potential critics would just “read the bill for what it is, and actually understand the change, it’s very simple.”
She goes on to explain: “Which lawyer’s desk does the case file go to first? That’s all it is. And this independent military prosecutor will make a judgment. And if he chooses not to take this case to trial, it goes right back to the commander. So it changes very little.”
In reality, the difference between transferring authority only for “special victim offenses” and for nearly all felony offenses is immense. After studying the final recommendations reflected in the DoD Independent Review Commission for nearly three months, the Secretary of Defense published a four-tiered implementation plan that establishes an estimated date of 2027 for even the earliest recommendations to be completed.
Even implementing the comparatively modest “special victim cases” approach, then, would require fundamental structural reform and several years to complete. If the scope of the “reform” is expanded to include most felony offenses but extensive structural and resourcing requirements are not revised accordingly, the outcome could be catastrophic.
Under the current commander-centric system, disposition authority is diffused because all O-6 level commanders can initiate a special court-martial for all offenses, including felonies, if the command is satisfied with a maximum punishment for an offense of one year (the max punishment available at a special court-martial). Only the most serious offenses need to be considered by a general officer, who is advised by an O-6 judge advocate, for possible referral to a general court-martial.
If Sen. Gillibrand’s “most felonies” proposal is adopted, even those offenses that are addressed at lower echelons of command by special (and summary) courts-martial will now need to be considered by an O-6 judge advocate. Even relatively minor misconduct that is adjudicated by non-judicial punishment or administrative measures can be addressed by lower-level commanders right now; just because an offense carries a maximum potential punishment of a year or more in prison doesn’t mean that all such offenses warrant a process that allows for such a punishment.
Expressing the Imminent Risk of Systemic Military Justice Failure
By adopting the “most felonies” approach, nearly all of these offenses would now need to be considered by an O-6 judge advocate since only s/he would have the authority to decide whether a court-martial is warranted. Currently commanders possess the full range of disposition options, from no action to administrative measures to non-judicial punishment to courts-martial.
Under Sen. Gillibrand’s “most felonies” proposal, an O-6 judge advocate who is “outside the chain of command” would have sole authority to “prefer” (initiate) and “refer” (to court) nearly all felony offenses.
For an Army Division with four brigade combat teams, each of which consists of, say, seven battalions that are commanded by an officer with summary court-martial convening authority and a brigade commander with summary and special court-martial convenient authority, each of whom in a Division that is commanded by a general officer with summary, special, and general court-martial convening authority, an O-6 judge advocate who is “outside the chain of command” would be required to make disposition decisions for all the roughly 29 field grade or higher commanders.
Under the current force structure, there is only one O-6 judge advocate assigned to cover this entire echelon of command, and this staff judge advocate typically only gets deeply involved in case files that must be considered by one commander – the commanding general – for review and action.
In short, the difference between the “special victim offenses” and the “most felonies” approaches amounts to much more than “which lawyers desk the case goes to first.” After all, a decision to refrain from initiating (“preferring”) a court-martial proceeding is a disposition decision nonetheless.
A decision to implement an administrative or non-judicial punishment process short of court-martial must be made in light of the entire case file, and right now that full spectrum of disposition authority rests with commanders. As long as DoD has adequately planned for and resourced the “special victim offenses” approach – which is a process for which the initial phase is projected to be complete five years from now, the military justice system should still be able to accommodate the shift in disposition authority.
Executing any “reform” without an effective implementation and resourcing plan carries a risk that unforeseen complications will lead to systemic failure. Right now, only the “special victim offenses” proposal is accompanied by an implementation plan. Sen. Gillibrand’s “most felonies” proposal bears an immeasurable risk of systemic military justice failure – and it does so even though the justification for this proposal is not supported by existing data.
Resisting Misguided Political Pressure to Limit Risk of Systemic Failure
As NDAA deliberations approach the home stretch, Sen. Gillibrand has revealed her strategy to ensure that her “most felonies” approach to military justice reform remains in the final bill. Indeed, she has already begun painting a dire picture of “democracy” being “shunned…behind closed doors in the dead of night.”
In this Face the Nation interview, Sen. Gillibrand claims that the only way her version of military justice reform “does not become law is if four men, behind closed doors, take it out in conference.” The “four men” to whom she is referring are presumably Sen. Jack Reed, Sen. Jim Inhofe, Rep. Adam Smith, and Rep. Mike Rogers, respectively the chairs and ranking members of the Senate and House Armed Services Committees.
Fomenting political pressure directed at members of Congress who “impede” the “progress” of Sen. Gillibrand’s signature military justice reform bill is a tactic also adopted earlier this year by the New York Times editorial board. Whether from inside the Senate or from outside in the media, directing this brand of theatrical political pressure is, at best, counterproductive.
There is no shortage of noise in the form of perspectives from observers who are not qualified to present an informed opinion on the administration of military justice. Whether it originates from a group of veteran service organizations or a collection of attorneys general or the editorial boards of media giants such as the New York Times and the Washington Post, this clamor for “reform” is misguided if it is not informed by actual data and evaluated for feasibility in implementation.
Sen. Gillibrand is certainly correct to point out that her current military justice “reform” bill was originally supported by 66 co-sponsors in the Senate. However, it is not clear how many of those sponsors still support her brand of reform.
She sold her colleagues and the American public a vision: that military justice reform is necessary to correct an “epidemic of sexual assault” in the military. What she hopes to deliver now instead is a bill that far exceeds that vision and that has not been evaluated for implementation in practice.
Sen. Susan Collins has already publicly jumped ship upon realizing that Sen. Gillibrand’s “bill is far broader” than Sen. Collins had realized. How many more senators have done so already in private?
As a former military prosecutor and current law professor, the continued insistence by Sen. Gillibrand and her supporters on mischaracterizing data in a way that supports the military justice reform agenda while ignoring data demonstrating that the agenda is misguided has always been perplexing. As a soldier who experienced sexual assault very early in my military career, these reform tactics are particularly galling because they have diverted attention away from changes to the military that actually would make a positive difference.
Although the DoD Independent Review Commission accountability line of effort recommendations are plagued by the same lack of evidence that besets most of the prevailing military justice “reform” movement, at least implementation of these recommendations has been evaluated and determined to be feasible.
As lawmakers exercise their constitutional authority to make rules for the armed forces, they have a duty to ensure that any rules they adopt will actually work in practice and will not do more harm than good. Under current circumstances, adopting Sen. Gillibrand’s “most felonies” approach to military justice “reform” would constitute an abject dereliction of that duty.
Regardless of the noise that is produced both within and outside of the Capitol building, members of Congress must refuse to support a bill that presents a potential risk of systemic failure of the U.S. military justice system. Doing so requires adoption of, if anything, the military justice “reform” model that is based on the DoD IRC recommendations – and nothing broader than that.
About the author:
Brian L. Cox is is a doctoral candidate lecturer and J.S.D. candidate 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, Joint Firepower Certification, and Special Victim Unit Investigator 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.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!