Monday, September 28, 2020

Joint Service Committee on Military Justice § 540F Report

The Joint Service Committee on Military Justice has submitted its subcommittee's Prosecutorial Authority Study report in response to § 540F of the National Defense Authorization Act for Fiscal Year 2020. The report, which cost the taxpayers $109,000 (that's $1185 per page, if you don't count the appendices), can be found here. There's also a one-page summary here. The report's conclusion states:

The JSS-PAS finds that implementation of the alternative military justice system defined by Section 540F is neither feasible nor advisable. Likewise, the JSS-PAS finds that conducting a pilot program for such a system would be infeasible and inadvisable. Commanders are central to the military justice system and the current commander-centric system works. Commanders are trained to make decisions and rely on their experience and the legal advice of their judge advocates to inform those decisions.

Careful study has shown that commanders are well-equipped and capable of decision-making in the field of discipline. Commanders have been proven to make reasonable disposition decisions in penetrative sexual assault cases, and the military justice system compares favorably in terms of reporting, investigation, and prosecution in sexual assault cases with civilian jurisdictions.

Comparing the U.S military justice systems to the systems of allied military justice systems is a false equivalency. Allied militaries, particularly the “Five Eyes” allies, are but a small fraction of the size of the active U.S. military, and the few cases tried in each of those allied militaries is proportionally even smaller (with convictions even proportionately smaller still). Despite having far fewer cases and smaller militaries, changing to prosecutor-centric military justice systems has shown no improvement in reporting, investigating, or prosecuting criminal offenses in the military justice systems of U.S. allies. And in the case of one of those allies, the reform led to an invalidation of the military justice system – something that would be enormously detrimental to the U.S. military, which remains engaged in ongoing combat operations. The U.S. should be wary of change for the sake of change; the data from allied military justice systems does not support any assertion that such a radical change will make our own system better.

Commanders need full authority under the UCMJ to enforce good order and discipline. Commanders must have the full range of tools available to rehabilitate service members capable of continued service, punish those whose conduct risks military readiness, and set the expectation amongst all service members that indiscipline will be handled swiftly by a commander with authority. Parceling out these tools amongst differing authorities with differing perspectives and purposes will only serve to weaken the effectiveness of all of the tools. Divesting commanders of the mechanism to enforce good order and discipline will result in a less effective military and will weaken the national security of the United States.

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