While calls for military justice reform have been common over the last few years, they've often come from lawmakers, advocates, journalists, attorneys, and other outsiders. When it comes to actual military members and leaders, it's hard to gauge how recognized the need for reform really is by the people who are actually subject to our military justice system.
That question, however, received a rousing answer this week with the publication of "The time for military justice reform is now," a special op-ed piece published by Air Force Times. In it, current and former military servicemembers and lawyers call for support of Senator Kirsten Gillibrand's Military Justice Improvement Act—a measure that would install independent prosecutors in the military judicial system, especially when charges of sexual assault were concerned.
"COUNTER TO OUR NOTION OF BLIND JUSTICE"
In the op-ed, the writers recognize the same issue in the chain of command that others have when it comes to evaluating and trying criminal cases in the military justice system: commanders authorize which criminal charges are pursued and which are not. While recognizing the key role commanders play in military affairs, the op-ed notes that "these talents are not a substitute for the rigors of law school, years of litigation practice and the adherence to ethical standards to become a senior prosecutor."
The commanders' "gatekeeper" status when it comes to criminal cases has come under fire in recent years-- including from prominent lawmakers like Senator Gillibrand-- due to the potential for favoritism and cronyism it provides. According to data and testimony from various sources, this arrangement has led to the suppression of sexual assault cases and the further traumatization of victims, particularly when commanders know the accused. "The knowledge of the parties will necessarily color the commander’s perception of the case and the commander’s view of the suspect’s guilt or innocence. Such a system runs counter to our notion of blind justice."
To remedy the problem, the op-ed supports the measures included in Gillibrand's Military Justice Improvement Act-- including giving the "gatekeeper" status to qualified, independent prosecutors whose chief concern is dispensing justice. "This common-sense reform to modernize the military criminal justice system is not only vital, but is also consistent with American Bar Association standards, which state the 'prosecution function should be performed by a public prosecutor who is a lawyer.'"
The signers of the piece are diverse. One is military servicemember who was sexually assaulted. Another is a military judge. Notably, Attorney Eugene R. Fidell, who is currently leading Sgt. Bowe Bergdahl's defense effort, also signed the piece. They have one thing in common: "All of us share in the common goal that the prosecution decision [for sexual assault cases] be based on the facts and the law, not the bias of command relationship with an accused or a victim or the prejudice of stereotypes."
Joseph L. Jordan, Attorney at Law is a military lawyer with more than a decade of experience in the U.S. Army. He has an intimate understanding of the military justice system and culture and has successfully asserted the rights of accused servicemembers stationed all over the world, both in and outside the courtroom.
If you're a member of the armed forces that's been accused of a crime, we invite you to contact us now.