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Senator’s Ideas on Overhauling Military Justice Are Impractical

Over the last seven years, Sen. Kirsten Gillibrand (D-N.Y.) has been a leading voice advocating for military justice reform.

Her efforts, along with those of her Senate and House colleagues, led to important statutory and policy changes that have enhanced the military’s response to sexual misconduct in the ranks.

While there is more work to be done to foster an environment within the hierarchical structure of the military so abuse victims of all ranks feel comfortable reporting fellow service members, we should commend Gillibrand for focusing attention on sexual abuse in the military.

But her recent remarks on the Senate floor call into question her knowledge of military justice and her own legislative proposal. On July 1, she spoke in support of the Military Justice Improvement Act of 2020, which would transfer authority from the commander to a military lawyer to respond to certain military crimes, including sexual assault offenses.

Gillibrand’s prepared remarks were so fundamentally erroneous that a junior military lawyer making such misstatements would fail the criminal law section of the Judge Advocate Officer Basic Course designed for brand-new JAGs.

During a 15-minute presentation, Gillibrand claimed “when the commander wants to do non-judicial punishment he gets to do it every time a (military) prosecutor says there’s no case here.”

No. This statement reflects a complete misunderstanding of the military justice system Gillibrand seeks to reform.

If there is no case against a service member, then there is no case. There is no case for court-martial and there is no case for non-judicial punishment. For as much criticism as Gillibrand levels against commanders for not delivering justice, she would have commanders subject service-members to non-judicial punishment where there is no case against them.

Besides being a bad idea, this would violate military law and the U.S. Constitution.

Similarly, every part of her claim that “the same chain of command who will decide the case picking judge, jury, prosecutor, defense counsel — all decided by a commander in the chain of command” is wrong.

Not only do commanders not pick military judges, “jurors,” prosecutors or defense counsel — they can’t. “Jurors” isn’t even the correct term. Considering military justice is a signature cause for Gillibrand, one might expect use of the accurate designation.

In terms of misunderstanding her own legislative proposal, Gillibrand claimed that the Military Justice Improvement Act “would only move one decision literally one decision …”

Yet the very first section of the act lists the three decisions that would change, (1) who makes the decision to charge a service member; (2) who makes the decision as to disposing of that charge; and (3) who makes the decision as to whether to direct the charge to a court-martial.

This is not mere semantics. Those are distinctly different decisions and they are not — indeed by law cannot be — all made by the same individual.

Last, Gillibrand characterized act as “a very small but important change.”

Reasonable minds may disagree as to what is meant by “a (singular) very small” change, but the act represents sweeping changes, plural.

The Military Justice Improvement Act 2020 and its second- and third-order effects may represent the most significant changes to military justice since the Uniform Code of Military Justice’s adoption in 1951.

Gillibrand doesn’t need me to correct her on this point as three minutes after claiming the act was but one very small change, she referred to her proposal as “fundamental reforms.” On that we can agree.

Gillibrand’s comments evidence a lack of understanding of military justice basics and her own legislative proposal — and in prepared remarks no less.

In addition to being troubling, her misstatements call into question how much, if any, weight should be afforded to either Gillibrand’s view that military justice should be fundamentally reformed or her rosy claims of the act’s improvements.

You cannot credibly claim to have found the solution to a problem when you demonstrate you don’t understand either.

Chris Jenks is an associate professor of law at Southern Methodist University’s Dedman School of Law. He previously served in the U.S. Army, first as an infantry officer and then as a judge advocate. He wrote this for InsideSources.com.

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