In connection with recent congressional hearings on the problem of sexual assault in the military, Senator Kirsten Gillibrand (D., N.Y.) proposed a radical restructuring of the armed forces’ judicial process. Currently, military commanders have “disposition authority” to convene courts ad hoc to dispose of criminal matters, on the theory that a commander’s duty is to maintain good order and discipline in his unit, and adjudicating criminal infractions committed by his men and women falls under this aegis. Military lawyers in the Judge Advocate General’s Corps (JAGs) serve as legal advisers to commanders; they investigate accusations of wrongdoing and write recommendations about whether particular cases should go to trial, but commanders make the ultimate decisions.
Gillibrand wanted to take that authority “outside the chain of command” in cases where a soldier, sailor, airman, or Marine is accused of a crime that isn’t strictly military-related. This includes sexual assault, and as many as two-thirds of all infractions currently covered by the Uniform Code of Military Justice. Under Gillibrand’s proposal, decisions about these cases would have been made directly by JAGs inside the Pentagon.
On Wednesday, the Senate Armed Services Committee defeated Gillibrand’s proposal, thanks in large part to the sobriety of that committee’s chairman, Carl Levin (D., Mich.), with whom we do not often agree. With bipartisan support, Levin passed a different measure that would establish higher-level review when JAG recommendations to prosecute sexual-assault cases are overruled by commanders, and that would protect victims from reprisal for reporting such assaults.
It is not perfect, but it is a vast improvement over Gillibrand’s proposal, and it reflects Levin’s understanding that this problem cannot be addressed by weakening the chain of command. If commanders are to be held responsible for the discipline of the men and women under their command, as they have been from time immemorial, they must have the tools and the authority to maintain that discipline. Stripping them of those tools and that authority would reduce their duties to the execution of a series of precisely defined and minutely regulated administrative functions, rendering the inviolability of the chain of command a nullity and further drawing the armed forces into the realm of politics.
Obviously, everyone would like to see effective steps taken to reduce the incidence of sexual assault in the military. And military brass have to some extent brought congressional scrutiny on themselves by letting the issue fester on their watch. Levin’s proposal is one way to address the problem. Another step would be to build up a specialized group of sex-abuse investigators and prosecutors inside JAG, rather than relying on the military’s usual rotation of lawyers in and out of the field. Neither is as overbroad as Gillibrand’s remedy, and neither would unduly weaken the command structure.
The issue is certain to be raised when the defense-authorization bill hits the floor of the Senate, and we hope Levin’s reasonable proposal again prevails over Gillibrand’s unreasonable one.