Fact: Military commanders do not require prosecutorial discretion over serious criminal offenses by their service members in order to ensure good order and discipline within their units.
Fact: The vast majority of U.S. military commanders – officers vested with formal responsibility for particular groupings of service members in the military’s hierarchy – do not possess prosecutorial authority over serious crimes. There are approximately 14,500 military commanders (according to the most recently available data). Only roughly 400 have the power to convene courts-martial for serious crimes, and of those, approximately only 140 actually use that power: so less than one percent of all military commanders criminally prosecute (court-martial) service members for serious offenses.
Fact: Court-martialing Black service members at a rate twice that of their white counterparts is a broken system in need of repair. Period.
dFact: Sens. Gillibrand and Ernst’s proposal contemplates a streamlined version of the current system that is more efficient and reduces the current need for staffing required for commanders with prosecutorial discretion. Why Mr. Johnson does not at least engage in that well-known fact is puzzling. As for Guantanamo, the Military Commissions have been a tragic failure, indeed, but by almost all accounts due to evidentiary and due process issues related to torture allegations used to extract confessions; the refusal by the government to share classified information; along with hampered access to defense counsel and a merry-go-round of judges. The claim that the current proposal will result in similar failure is simply another scare tactic by those wedded to the status quo. Indeed, it is such a poor analogy that it calls into question the soundness of the opposition more generally and the rhetorical tactics used to make their case.