Dear Congress, Get Your Hands Off the Military Justice System

by David French

In this week’s dead-tree version of National Review, I take a look at the president and Congress’s amateurish attempt to make sure that more soldiers are convicted of sexual assault. While sexual assault is undoubtedly a heinous crime, no act of Congress, no statement of congressional outrage, can make the facts of individual cases less ambiguous. In civilian or military contexts, sexual-assault cases are often the most difficult to prosecute — and not because prosecutors or judges hate women but because there’s this pesky little document called the “Constitution,” and there are these annoying doctrines called “burdens of proof,” that stand in the way of any state-led effort to deprive a defendant of his liberty.

The military’s most severe critics have focused on commanders’ alleged inability to prosecute sexual-assault cases. The alternative, according to these critics, is to remove commanders’ ability to prosecute cases and grant new authority to “impartial” military lawyers. The New York Times is an enthusiastic cheerleader for this effort.

As part of its latest argument for circumventing the chain of command and command authority, the Times trots out the recent failure of two high-profile sexual-assault prosecutions — one against an Army general, the other against a former Naval Academy football player. Here’s the Times, locked into its narrative that commanders shouldn’t adjudicate sexual-assault cases:

Two highly publicized military sexual assault cases this week appear to strengthen the argument of those who want to take such cases out of the hands of military commanders — but not only for the reason that has been widely debated in Congress, which is that the hierarchy is unfair to women.

Instead, critics say, the slap on the wrist delivered to Brig. Gen. Jeffrey A. Sinclair, who was accused of sexually mistreating a subordinate, and the not guilty verdict delivered to the former Naval Academy football player who was accused of sexual assault reflect a military command that bowed to political pressure and brought bad cases to trial.

This is utter nonsense. The motivation for circumventing the chain of command was not to protect the accused. The motivation for circumventing the chain of command was to obtain more successful prosecutions. The political pressure was clear: Prosecute more, and prosecute more successfully. That’s why marginal cases are being brought to trial, not because commanders are uniquely bad at justice.

When that’s the priority, does any rational human being think that military lawyers are less ambitious, less attuned to the political prevailing winds than military commanders? Are lawyers any less human than commanders? Elevate a group of lawyers to some kind of sex-crime SEAL Team Six, and you’ll get the same result — more prosecutions, but not necessarily better or more just prosecutions.

The bottom line is that the political class is putting enormous pressure on the military to prosecute more cases, and this pressure will result in the kinds of botched cases we saw last week. Senator Gillibrand – the military’s chief congressional critic – gives the game away with this utterly confused quote:

The result of the two cases means that even fewer assault victims will come forward, critics say. “No one has any confidence in the system after a case like this,” Ms. Gillibrand said in an interview, referring to the Sinclair case. “Prosecution has to be unbiased and can’t be based on politics. It should be based on, ‘Was a crime committed?’”

She called it “infuriating that justice wasn’t served.”

How does she have the slightest clue whether justice was served in these cases? Does she know more about the evidence and credibility of the accusers than the actual participants in the proceedings? Is the important factor in a criminal case whether it encourages or discourages victims from coming forward or whether the trial was fair and the outcome in line with the evidence?

If Congress wants better outcomes in military justice, it needs to get its thumb off the scales. Stop demanding prosecutions. Stop demanding outcomes. No amount of political outrage will better enable a commander (or a lawyer) to determine the truth when evidence is ambiguous, credibility is difficult to determine, and he said/she said is often clouded not only by alcohol but often by complex and conflicting accounts of pre-existing and post-encounter relationships.

The United States military is not a social-justice enterprise with an ancillary war-fighting mission. It’s a war-fighting enterprise and, as such, its justice system is designed to achieve justice in the context of enhancing the overall war-fighting mission of the military. Thus, civilian leaders should tread very lightly before adjusting the commander’s role in administering justice. Undermining command authority has costs, and those costs are often not apparent until the system is under maximum strain — fighting the conflicts it’s designed to fight.