Col. Don Christensen on command-centric justice

Col. Don Christensen,
USAF (Ret)

Col. (ret) Don Christensen, new president of Protect Our Defenders, has written a powerful piece for Huffington Post. Among his arguments for reform of the UCMJ:

Currently we have system of justice, unlike any other in the United States, in which a person, who is not a lawyer, and without specialized training or significant experience in military justice or criminal investigations makes these weighty decisions. For in the military, a commander serving as convening authority makes the call on whether a case will be prosecuted, what the charges will be and who sits on the jury.

Instead the convening authority is an officer trained with an entirely different skill set, usually in waging armed conflict as a pilot, ship captain or infantry officer. For that skill set they bring decades of training and experience to bear. And in that they excel. The same cannot be said for military justice.

They do not possess the skills required to determine the complexity of the right course of action in allegations of criminal misconduct, especially sexual assault and rape.

It takes years of experience to become proficient in the prosecution of complex cases. By the time I became the chief prosecutor I had tried over 150 courts-martial and presided over another 100 as a military judge. I had 19 years experience, and I was still learning new things about litigation.

It is simply unfair to victims, and to the accused military members that a convening authority makes these weighty calls based on a few hours of training. It is unfair to the commanders to put them in this position as well. It is a system set up for failure.

Those opposed to fundamental reform often claim that the convening authority only makes these choices based on the advice of a trained prosecutor. Let me make this very clear. Convening authorities are not advised by prosecutors. Instead, by law they are advised by a staff judge advocate (SJAs). SJAs are not prosecutors and most have limited prosecutorial experience. That experience is many years if not decades in the past and rarely were they ever lead counsel in serious cases. Rather, most SJAs are generalists, who serve in a managerial role more akin to a corporate counsel. In other words, commanders, legal neophytes often advised by someone with more expertise in contract or environmental law than criminal law decides whether to take an allegation to trial. Importantly, the SJA is not independent. He works directly for the convening authority. The SJA is significantly junior to the convening authority, who literally controls his SJA's future. In my experience, the independent prosecutors almost never have direct access to the convening authority and have limited influence on whether cases go to trial.

Others who oppose reform have argued that Commanders are tougher than Prosecutors in bringing these cases forward. In my 23 years, I have not ever seen that to be the case.

To compound the inherent problem of having someone who is not a prosecutor making prosecutorial decisions is the commanders' inherent bias. By law, the accused, with rare exception, works for the convening authority, either directly or indirectly. If the convening authority doesn't know the accused, he likely knows the accused's direct commander. Often times there are mutual friends of commander and the accused who weigh in on the case, usually in support of the accused.

For an opposing view see this article quoting Elaine Donnelly, head of the Center for Military Readiness.

GOP Senators Charles Grassley (Iowa), Ted Cruz (Texas), Rand Paul (Kentucky), Dean Heller (Nevada), and Susan Collins (Maine) joined with [Sen. Kerstin] Gillibrand at a press conference Tuesday to renew the push for passage of her legislation. Their participation concerns the CMR leader.

"[Gillibrand's] bill is deeply flawed – and I am very disappointed in the Republicans who are supporting her in this effort," states Donnelly.