Defense Authorization Act tees up new political battle over the future of military justice

The 2022 National Defense Authorization Act contains major overhauls regarding military justice, but the massive defense spending bill also set up a big political battle over the issue.

The Hill reported Thursday that the NDAA removes commanders from the chain of command responsible for prosecuting some criminal acts including sexual assault but still grants them some powers like selecting juries and calling witnesses. But advocates and their congressional allies want to go a step further and remove military commanders from the justice process entirely.

“Let’s go the rest of the way and really do it,” retired Air Force Col. Don Christensen, president of the organization Protect our Defenders, told the outlet. “You know, we’ve ripped the bandage off. Now, let’s finish this off.”

The $768 billion defense bill that President Biden is expected to sign stems from a compromise reached between the two Democrat-controlled armed services committees in the House and Senate after several previous attempts to pass the bill hit roadblocks in the form of floor amendments.

But the toughest hurdle of all was the military justice reform effort that is now included in the final version of the bill by altering the Uniform Code of Military Justice.

“Under the legislation, the decision to prosecute eleven crimes — like rape, murder, manslaughter and child pornography — would be given to ‘special trial prosecutors’ who are outside of the chain of command,” The Hill reports. “While the reform is monumental, it is dramatically watered down from a bipartisan proposal led by Sen. Kirsten Gillibrand (D-N.Y.) which removes military commanders from the chain of command entirely.”

For her part, the New York Democrat was angry about how her proposal, which initially survived a version passed over the summer by the Senate Armed Services Committee, was eventually taken out during backroom negotiations. Now, she wants a stand-alone vote on her provision called the Military Justice ImprovementAct, which was bipartisan and garnered 66 co-sponsors.

“The change we must make — the change that survivors and veterans have asked for — is to remove all serious, non-military crimes from the chain of the command,” Gillibrand said in a floor speech before the bill made it out of committee. “Our service members have told us that they do not trust our service members to be unbiased or to deliver real justice in cases where they know the survivor or the accused.”

Next, say advocates, is removing all remaining offenses into the same system contained in the 2022 NDAA.

Doing so “will reduce the … unnecessary cost and confusion,” Eugene Fidell, who teaches military justice at NYU Law School, told The Hill.

“The way Congress has left it, many charging decisions are going to be made by lawyers and other charging decisions are going to be made by non-lawyers,” he noted further. “And there’s no need really for that kind of redundancy.”

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Jon Dougherty

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