THE BLOG

If it Ain't Broke, Don't Fix it-But it is Broke!

05/17/2013 10:34 am ET | Updated Jul 17, 2013

The military is one of our nation's most highly respected institutions. Over the past decades this all-volunteer force has been called upon to conduct two major engagements in Iraq and Afghanistan. Service members have carried out these missions, enduring multiple overseas combat deployments, with professionalism and courage. Not only have these ventures cost us lives and treasure, but also have left us a force with failed leadership and damaged reputation.

What is difficult to understand is why a military force that is unparalleled in its adaptability to the changing landscape of war has failed to adapt to the changing landscape of sexual equality within its ranks, despite the "wakeup call" of Tailhook, twenty-two years ago.

A prime example of this failure is the number of sexual assaults that continue to rise unabated and the manner in which these criminal acts are handled by military leadership. The problem is both cultural and systematic. The former is much harder to fix but the latter can and should be addressed by the military leadership forthwith.

Sexual assault is a crime under the Uniform Code of Military Justice, as it is under state criminal codes. These acts are not about sex but about power and domination. In the military context, the perpetrator is often superior to the victim in rank, experience and authority. The military is a hierarchical institution where the obedience to orders is essential for the maintenance of good order and discipline. This places the military victim in an even more perilous position than a civilian counterpart. The military victim is often reluctant to report the offense because he or she knows that the decision on how it will be handled lies within the chain of command. The perpetrators are also often in the chain. The final decision on whether the matter will be handled by Court Martial, the military equivalent of a civilian criminal trial, lays with the "convening authority" usually a general officer in the direct chain of command.

Not only does this "convening authority" have the discretion to order a trial, but once the trial is completed, can modify the verdict and punishment or overturn the entire conviction. This is where the biggest problem lies and where it is clear the system is broken.

Nowhere in our civilian criminal justice system does one person, outside of the judiciary, have such authority. In the military system the trial judges, prosecutors and defense counsel are all attorneys. Defendants are afforded a jury of peers, also selected by the "convening authority". Like a civilian jury, this so-called panel is the fact finder in each criminal case. An extensive appellate court system reviews each case that is appealed. The military courts of appeal rarely, if ever, overturn a panel's verdict because it does not agree with its factual determination. But the "convening authority" can and does sometimes disagree with the panel's decision. A case in point was the recent reversal by the "convening authority", an Air Force F-16 pilot, of a conviction of rape by another F-16 pilot in his direct chain of command. Regardless of his reasoning, the appearance was one of injustice, not justice, and the message sent to victims of sexual assault was chilling.

This power is an affront to due process under the law. In the military justice system, one lay person, with no legal training, reading the bare trial transcript and record, and not able to weigh the credibility of witnesses, can place his judgment above the decision of the panel.

The fix to this broken system is clear and tested. The British and Canadian military now have an administrator, independent of the chain of command, to handle criminal charges. No more "convening authority."

Some commanders may object to this proposed change because it will limit their authority. The fact is the military has a system of non-judicial punishment that is effective and responsive to the commander's need to be able to provide discipline for non-criminal offenses.

By removing the power of the "convening authority" from commanding generals any appearance of impropriety on the part of a commander is eliminated. Claims of undue command influence in the legal system would stop. Generals could go about the important business of leading and leave criminal matters to trained legal professionals. This change could help stem the tide of sexual assaults by giving service members confidence that military justice is as blind as its civilian counterpart. It would also send a message, loud and clear, to the force that criminal conduct will not be tolerated and that perpetrators will be prosecuted to the full extent of the law.