The first two female Judge Advocates General (JAGs) of the Navy and Army, joined by the other top uniformed JAGs from the Air Force, Marine Corps, and Coast Guard, wrote a strongly worded letter warning about the dangers of the legislative scheme by Senator Kirsten Gillibrand (D–NY) to address the issue of sexual assault in the military.
Their letter echoes some of the fundamental flaws Heritage highlighted last week in our Special Report. The JAGs have “grave concerns” that the Gillibrand scheme would put the “effective administration of military justice” in the military “in jeopardy.” Their letter, which is to be distributed to all U.S. Senators today, adds further proof that the Gillibrand scheme is risky for victims of sexual assault, undermines military readiness and combat effectiveness, and is totally unworkable.
The JAGs highlight seven major fundamental flaws in the Gillibrand scheme:
- It would establish “two parallel systems of justice”—the current system for misdemeanor and military-specific crimes and a new one to handle all felonies. The JAGs rightly point out that this scheme would create a “mismatch between the offense and the judicial structure” for handling offenses.
- Since the structure of the military justice system encourages all known offenses to be brought in a single prosecution, the Gillibrand scheme “fails to establish the process for disposition” of cases where there are misdemeanor and felony charges committed by the same individual. That in turn would either create “parallel prosecutions” or “jurisdictional problems” that would “further erode a commander’s authority over good order and discipline.”
- Stripping commanders of the ability to refer criminals to a court-martial would hobble the commander’s ability to “employ non-judicial disciplinary measures in instances of minor misconduct” of sexual assault. (The Gillibrand scheme gives the sole authority to refer cases to court-martial to military prosecutors, which, as we discuss in our Special Report, will actually result in fewer sexual assault prosecutions.) Since service members have the right to demand trial by court-martial in lieu of non-judicial punishment, those cases rejected by the military prosecutor and sent back to the accused’s commander hamstrings the commander, who has no legal options to deal with the misconduct.
- The Gillibrand scheme “limits our ability to efficiently and effectively plea bargain” cases, which are routinely used in all criminal justice systems. The JAGs note that victims often desire plea bargains, as this option allows them to avoid testifying, but the Gillibrand scheme would “almost certainly” result in “fewer plea bargains and more contested trials.”
- The Gillibrand scheme “fails to address an essential jurisdictional requirement for all general courts-martial” by failing to make clear “whether a pretrial investigation” is required and who has the authority to “appoint an investigating officer.” Those deficiencies alone “create the possibility that an appellate court would overturn court-martial convictions.”
- The scheme also raises “constitutional due process concerns regarding the selection of court-martial personnel,” including prosecutors, defense counsel, judges, and jurors. The Gillibrand scheme would consolidate into a single office that authority to make those decisions, which naturally results in appellate litigation that might “invalidate such a consolidation of power in one office.”
- As we pointed out in our Special Report, Senator Gillibrand marketed her scheme to other Senators as “cost neutral” when in fact is very expensive and would result in a massive dislocation of senior JAG talent from the services that would take decades to recover from. The services JAGs point out that the scheme would cost the government “an additional $113 million per year,” would “significantly impact other capabilities,” would remove as many as six judge advocates from “critical billets,” and would take years to develop “adequate replacement judge advocates.”
The only policy solution that protects the rights of victims, defendants, and commanders is to allow commanders to refer cases to court-martial while establishing career tracks for military prosecutors and defense counsel to mirror best practices in the civilian sector.
That, along with training and other modest improvements to the military justice system, is the best way to address the issue of sexual assault—and all crime—in the military.