Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School. He retired in 2018 after serving 22 years in the military, the last seven as an Army judge advocate.
The opinions expressed in this op-ed are those of the author and do not necessarily reflect the views of Military.com. If you would like to submit your own commentary, please send your article to opinions@military.com for consideration.
As Congress braces for a bumpy finale to National Defense Authorization Act deliberations, Sen. Kirsten Gillibrand and several dozen of her colleagues published a letter at the end of last month urging congressional leadership to keep her signature military justice reform package in the final bill.
The current House and Senate versions of the annual policy bill both contain provisions that would essentially implement many key recommendations included in the Defense Department Independent Review Commission report published earlier this year. This scheme would transfer court-martial disposition authority, meaning the responsibility to dictate the terms of courts-martial, from commanders to military lawyers only for "special victim offenses" such as sexual assault, domestic violence and stalking. Under this plan, military commanders would retain disposition authority for cases that do not involve special victim offenses.
Gillibrand's preferred measure would go further by giving lawyers court-martial disposition authority for nearly all felony offenses.
If lawmakers hope to find evidence-based advocacy in the letter from Gillibrand and her colleagues, they will be profoundly disappointed. Let's take a closer look at the case they make for changing the law in order to confer military lawyers with disposition decisions for most felonies.
First up is the claim that "consensus among experts is that this reform will improve the system." While the "reform" is based on a recommendation presented by a group of 14 respected military justice experts, their opinion in no way constitutes a "consensus."
For example, three respected military justice scholars published an open letter last year written by more than 100 former senior military lawyers and commanders opposing fundamentals of Gillibrand's proposal. This summer, one current and one former judge advocate called the reform "more symbolic than necessary."
While some experts do support the "reform," there has never been a consensus among the military justice community in favor of this measure.
Next, the letter notes that "major allies have made a similar, or more drastic, change to their military justice systems." However, my comparative study of four jurisdictions that made "more drastic" changes years ago found that "there is no quantifiable connection between removing charging authority from commanders and improved systemic performance" of the military justice system.
Next, the letter points out that a group of 29 "state attorneys general have called on Congress to make this change." However, it is not clear what qualifies this group of civilian lawyers to offer an expert opinion on the effective administration of military justice.
Like many misinformed observers, these attorneys claim the results of a periodic survey of service members involving workplace and gender relations justify the need for urgent military justice reform. However, in a detailed assessment of this data, I found that, for various reasons, these metrics are not a useful measure of the effectiveness of the military justice system.
Gillibrand's letter also claims, "Despite a congressional mandate for the use of Special Victim Prosecutors ('SVP'), DoD relegates their involvement in many cases." However, the recent inspector general report cited in the letter used defective methodology because the study reviewed only investigation case files from military criminal investigative organizations to determine whether SVPs were "assigned" to a case.
In actual practice, these specialized prosecutors are routinely fully involved in consultations and prosecutions even if their participation is not directly reflected in law enforcement agency reports. The reports are compiled by police investigators, and formal interactions with military lawyers -- such as coordinating for additional evidence collection or soliciting an evidentiary sufficiency determination -- are certainly captured in the law enforcement reports. But other less formal interactions are not always included.
SVPs assist trial counsels on all special victim investigations and prosecutions within an assigned region, and reviewing investigation files compiled by law enforcement agents is not an adequate method by which to assess this involvement.
Finally, Gillibrand's letter points out that a recent study determined that her signature military justice reform measure represents the "only legislation in which the court-martial convening authority is 'outside the chain of command.'"
This observation appears directed at Gillibrand's enduring contention that "bias and inherent conflicts of interest" are "posed by the military chain of command's sole decision-making power over whether cases move forward to a trial." However, this persistent apprehension about systemic bias has never been supported by actual data.
An extensive independent study published last year by a congressionally mandated advisory committee determined that "there is not a systemic problem with the [commander] initial disposition authority's decision either to prefer an adult penetrative sexual offense charge or to take no action against the subject for that offense."
In short, the case the letter makes to congressional leadership is built on misperceptions and defective data.
The same can be said for many of the arguments Gillibrand has made in her years-long crusade to divest commanders of court-martial disposition authority.
If Congress cares to avoid what I have described as an imminent risk of systemic military justice failure attributable to the absence of a confirmed resourcing and implementation assessment, lawmakers must refuse to adopt Gillibrand's "most felonies" approach.
