WASHINGTON -- Judge advocate generals from every branch of the U.S. military and the acting general counsel of the Department of Defense came under fire Wednesday from senators who sought answers about a controversial case in which a three-star general threw out a sexual assault conviction.
A military jury in November convicted Air Force Lt. Col. James Wilkerson of aggravated sexual assault and sentenced him to a year in detention and dismissal from the service. But on Feb. 26, Air Force Lt. Gen. Craig Franklin threw out the conviction, reinstating Wilkerson, an F16 pilot and former inspector general at Aviano Air Base in Italy. The military justice system allows a commander, or "convening authority," absolute power to overturn a court martial decision.
Senators' outcry over the case became literal, and loud, during Wednesday's hearing, as top leaders in the military justice system testified on the legal aspects of the epidemic of military sexual assault in the U.S. armed forces.
Sen. Kirsten Gillibrand (D-N.Y.), the subcommittee chair, told the military leaders that the argument that the convening authority maintains discipline is directly contradicted by the estimated 19,000 military members that became victims of sexual assault in fiscal year 2011, while fewer than one out of 10 reported attackers have been held accountable.
"It is the exact opposite of discipline and order," Gillibrand said, asking Lt. Gen. Richard Harding, the Air Force JAG, whether he believed justice has been done in the case.
Harding responded that Franklin, the convening authority, had reviewed the facts and acted with integrity. Gillibrand then asked if the jury had similarly done justice in trying the case and convicting Wilkerson.
"I think the jury and the convening authority both did their duty," Harding said. "I can't say ... I'm not going to conclude that justice was or was not done. ... What I will conclude is that all parties did their job from my review, all parties did what they were asked to do by the law."
Robert S. Taylor, acting general counsel of the Department of Defense, gave a different response.
"There is something that seems odd about the power to reject findings that came out of a jury in the absence of some major obvious problem," Taylor said. "I'm concerned by the message that is received. ... We have to redouble our efforts to make sure that victims are willing to come forward and are willing to entrust the military justice system."
The new defense secretary, Chuck Hagel, responded to increasing calls for a review of the case in a letter made public Monday.
"The decision of the convening authority cannot be changed," Hagel wrote in response to a letter from Sens. Barbara Boxer (D-Calif.) and Jeanne Shaheen (D-N.H), noting that the commander is also not required to state a reason for a decision, though the "factual basis" for Franklin's choice has been requested.
Hagel continued, "I believe this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial."
Hagel has ordered a review of the case and the convening authority provisions of the military justice system. The acting general counsel of the Department of Defense told the Senate subcommittee Wednesday that he must submit his review by March 27, and Harding said he must submit the Air Force report by March 20.
Under the Uniform Code of Military Justice, it is primarily the accused's commander who has the power to review the initial assault report and determine whether there is sufficient evidence to take action, though that commander may know the victim and the accused personally. Once a verdict is reached, the commander, as "convening authority," has the sole discretion to modify the findings and sentence of a court martial, according to Taylor. In effect, the commander has absolute authority to overrule "for any or no reason at all," as Sen. Claire McCaskill (D-Mo.), noted. This authority exists outside of the accused's right to what Hagel called a "robust" appeals process.
The Aviano case has raised questions of a conflict of interest under this provision, a query Sen. Lindsey Graham (R-S.C.) put to Harding, who knows Franklin personally.
"Is there any suggestion that [Franklin] set aside the findings because of the career field he was in?" Graham asked. Franklin and Wilkerson are both pilots.
"Absolutely not," Harding responded.
Graham urged members of Congress and the public not to "over-indict the system." A convening authority throwing out a military conviction is extremely rare, according to statistics from the services provided to senators by the JAGs.
Yet Sen. Carl Levin (D-Mich.), chair of the Senate Armed Services Committee, asked whether there is any reason to allow convening authorities to overturn a court martial conviction, a provision which has its origins in the 1775 Continental Congress.
"There have been many developments since 1775 to get us where we are today," Taylor said, indicating that he is pursuing the question of whether that authority is still required.
Sen. Richard Blumenthal (D-Conn.) asked that the review be submitted to Congress on March 28, the day after it is due from the Defense Department's acting general counsel, while acknowledging, "I know I don't have the authority to issue subpoenas as I did as a prosecutor, but I hope the secretary will share the same urgency."
Blumenthal emphasized the devastating impact military sexual assault has not only on its victims, but also on the readiness of U.S. armed forces.
"This problem is the equivalent of an IED [improvised explosive device] in every unit, in every service," he said.
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