“Why aren’t there any Black
people?,” Pedro Bess asked his defense attorney. Bess, who is Black, was on trial for
allegations of sexual misconduct against white women. The ten-member jury was all white.
The trial judge denied Bess’s challenge,
as did two appellate courts. Although
constitutional standards have evolved to provide for racial diversity of juries
in criminal trials, Bess was shut out from those developments.
That is because Bess was in the
Navy and was tried by court-martial. Bess’s
military commander enjoyed broad discretion to handpick the individual panel
members (jurors).
As troubling as Bess’s case is, a
quick fix seems unlikely since the Pentagon has spent the better part of the
past decade resisting proposals spearheaded
by Senator Kirsten Gillibrand to reform the military justice powers of
commanders. Still, this year’s efforts enjoy broader bipartisan support and appear likely to pass in some form.
Bess’s case is just the latest news
item in a growing recognition that U.S. military justice is plagued by racial
disparities, and that, for good or ill, commanders bear the consequences of
calling the shots.
A 2019 study from the
Government Accountability Office (GAO) analyzed military justice actions from
2013 to 2017 and found that Black servicemembers were about twice as likely to
face general or special court-martial as white servicemembers.
The problem extends more broadly
to racial retaliation. As the U.S.
reckoned with the problem of systemic racial injustice last year, a Reuters
special report found that the military’s process for reporting
discrimination to command-appointed representatives was perceived to be a dead
end. Few complaints were substantiated,
and minority servicemembers who complained of racial discrimination were often viewed
as being in defiance of their units.
Surveys of Black, Hispanic, and
Asian servicemembers show that significant numbers have experienced racial
discrimination. Many thought that reporting
an incident would not change anything, and a higher percentage thought that
reporting would negatively impact them.
Military leaders acknowledge that
they are just beginning to understand the scope of the crisis of racial
disparities in military justice. “Overall,
results reveal much work is needed to improve the reporting process for those
who experience racial/ethnic harassment and discrimination,” the Pentagon
acknowledged in a press release last year.
Lt. Gen. Charles Pede, the Judge
Advocate General for the Army, testified
that the GAO report “raises difficult questions – questions that demand
answers. Sitting here today, we do not
have those answers.”
Pede directed a comprehensive
assessment “to get to the left of the allegation, left of the disposition
decision, to examine why the justice system is more likely to investigate
certain soldiers…”
“Getting to the left” is a military expression for acting early in the timeline of an incident to address problems before they
worsen. It is how other injustices in
military justice have been counteracted in recent years.
For example, at the height of the
Afghanistan and Iraq conflicts over a decade ago, thousands of military members
returned from combat and faced courts-martial or involuntary separations with
stigmatizing discharges. By just
focusing on the misconduct, military commanders were often not aware that some
of the misconduct was symptomatic of post-traumatic stress disorder (PTSD) or
traumatic brain injury (TBI). When this
connection became more widely known, a change in the law required screening for
combat-induced PTSD or TBI for many adverse actions.
In those cases, when commanders were
required to find out about crucial factors that occurred before the misconduct,
they were able to make more fully informed choices about wielding their
military justice powers. “Getting to the
left” resulted in better decisions. In
this way, commanders could be required to investigate the presence of racial
harassment or discrimination, especially before pursuing punishment of minority
servicemembers for minor transgressions.
Even if commanders’ traditional military justice powers are soon
curtailed, their recommendations will still carry weight and should be fully
informed.
Meanwhile, Pedro Bess is trying
to “get to the left” of his own court-martial conviction: he recently filed a petition
for a writ of certiorari at the U.S. Supreme Court.
The CATO Institute filed a FOIA
lawsuit on Wednesday seeking information from the Department of Defense on domestic
intelligence gathering. The lawsuit alleges that the Department of Defense,
along with the U.S. Air Force, Marines, and Navy, have not reasonably searched records
related to such surveillance. The suit comes on the heels of recent revelations
that some states improperly
used the National Guard to watch protestors following George
Floyd’s murder by a Minneapolis policeman. 
