Is our military justice system broken? A recent opinion article in the New York Times suggests that the military services are suffering from a serious conflict of interests when it comes to trying cases in military court; especially those cases concerning rape.
A little background in military justice:
A small infraction of regulations can land one with something as simple as getting yelled at by a superior or up to actually putting a reprimand on paper; which for most work place violations is enough. Moving up the chain in terms of severity you can land yourself in what's called a Non-Judicial Punishment (Better known as NJP or to us Navy folks, Captains Mast). An NJP or Captains Mast is when the Commanding Officer and his junior officers have found sufficient evidence of a more serious rule infraction and the Commanding Officer can award that member things like reduction in pay, reduction in rank, or even time in the Brig.
But for the most serious of offenses, what civilian courts would consider felonies, we have Court-Martial. A Court Martial is the military's version of a trail, but it is conducted by a military chain-of-command and the lawyers are military officers. All offenders are charged using the military's book of law, the Uniform Code of Military Justice (or UCMJ for short). Every single member of the armed forces is subject to the UCMJ at all times.
Not all Commanding Officers have the authority to convene a Court Martial, but the ones that do face a conflict of interest when trying a subordinate, according to the articles author(s). The authors claim that a victim who's trail is tried directly by their own chain-of-command has no chance of getting a fair trail because the Commanding Officer has direct control over the outcome. Therefore, if the case or a certain outcome would look bad upon himself or the command, the Commanding Officer could issue a certain decision whether or not it would actually be in the best interests of the victim. The authors point to a new bill that is being presented by Sen. Kirsten Gillibrand (D-NY) that would change how military proceedings happen, especially in cases of rape or sexual assault. The biggest change this bill would bring would be removing Commanders with "built in conflicts of interest" and give the decision making authority to "independent and professionally trained military prosecutors"
The authors, the "Editorial Board", make a good point. Commanding Officers who have to make those decisions face an inherent conflict of interest when presented with these situations. On the other hand, not a single one of the authors have ever served a day in uniform (according to their provided bios). By not having any actual military experience, they approach the situation from a purely civilian mindset. To me, this creates a serious issue. While I agree that Commanders have a conflict of interests in these situations, the processes we have in place were designed how they are for a reason. Say for instance a Court Martial was convened in a combat zone during wartime: should that Commander be forced to delay proceedings until one of these new independent officers arrive? I for one, think that's impractical. The authority to hold Court Martial's should not be removed from Commanders entirely. However, with the inherent conflict of interests that can arise in certain situations, some cases should be made mandatory to be presided over by an independent Officer who is removed from the outcome of the case. Things like rape and sexual assault would fall into that category. Sweeping regulation that would affect every Court Martial however, I feel goes to far and could interfere with a Commanders ability to maintain good order and discipline.
