The following should be obvious, but given the fact that even someone as thoughtful as Jeh Johnson, former Department of Defense General Counsel and Secretary of the Department of Homeland Security, has been captured by the siren song of military command, it deserves discussion. The topic is Senators Kirsten Gillibrand’s and Joni Ernst’s proposal to transfer prosecutorial authority for serious criminal offenses from military commanders to independent military prosecutors, legislation currently being considered as part of this year’s military spending bill.

Johnson’s argument relies on a view of military commanders that is, to be direct, objectively flawed.

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.

That may sound like a subjective assessment, but there are empirical reasons why it’s a matter of fact.

Commanders do not need the authority to convene a court-martial for one of their subordinates accused of serious offenses such as rape, murder (including the war crime of killing an enemy detainee), burglary, arson, and other common law type crimes in order to successfully lead. The function of command does not require military commanders to make the quintessentially legal determination of whether evidence of serious misconduct warrants criminal prosecution, and accordingly initiate such a proceeding.

What military leaders, and all those serving in uniform, do actually need is a just system to fairly dispose of such allegations according to today’s constitutional norms of criminal law and procedure. For the small number of service-members in our highly educated and professional military tempted to commit serious crimes, the specter of a general court-martial provides deterrence, not personal fear of a particular decision-maker. In America, it is the court of law that deters and retributes, not the court of man or commander.

How do we irrefutably know this, the fact that military command is not commensurate with prosecutorial authority over serious crimes? Because if successful command actually required such power, then every commander in the U.S. Armed Forces would wield the authority to convene general courts-martial. The opposite is true.

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.

In other words, the hundreds of U.S. Army company commanders who rotated in and out of Afghanistan and Iraq over recent years did not possess prosecutorial authority over serious crimes; neither did their Air Force squadron commander counterparts. They ordered women and men into harm’s way, orders that at times led to their subordinates’ combat deaths. Yet these commanding officers, despite not being able to court-martial anyone in their units, were nonetheless responsible for the good order and discipline of their respective companies and squadrons. They also remained legally responsible under international and U.S. law for ensuring war crimes by their subordinates were prevented, repressed, and punished – the last by conducting appropriate investigations and fulfilling reporting requirements.

(As an aside: the fact that most commanders already lack prosecutorial discretion eviscerates the convoluted argument that the current proposal will somehow “dilute” commanders’ sense of war crimes responsibility; that is nonsense, as international law has never required commanders to have charging authority to meet their law of war obligations, as comprehensively analyzed here, and most U.S. commanders don’t have it nor do many U.S. military allies.)

The vast majority of U.S. military commanders led their units in the last two decades of war in Afghanistan, Iraq, and Syria with honor, achieved unit mission objectives, and maintained the good order and discipline necessary for such accomplishments, most without prosecutorial discretion to charge their subordinates with serious crimes. Hence the siren song of “necessity for command and good order and discipline” that Mr. Johnson repeats in his defense of the status quo is simply a myth.

This old fallacy is designed, whether or not by intention, to preserve the monopoly held by primarily white male (given the skewed demographics at the top) senior military commanders over their largely unchecked, often opaque criminal charging power. Mr. Johnson erroneously claims the following:

A military commander must have legal authority over those in a unit. In the military, a commander can order a subordinate to take an action that may result in his or her own death. With the responsibility to prepare and send troops into battle must come the authority. The two must be inseparable. To strip a commander of the authority to make a disciplinary decision undermines the very ability to command. This should not be done lightly.

This statement, as explained above, is demonstrably false given the thousands of U.S. military commanders who currently lead (and have led) our service members yet do not have the authority to prosecute serious crimes (most with no criminal prosecutorial powers at all). They give orders that must be followed, yet lack the authority to court-martial any disobedience. Simply put, Johnson’s conclusions are analytically predicated on an empirically false supposition.

Mr. Johnson’s line of argument, if not carefully tailored, risks degrading the proud, talented and diverse men and women serving today by insinuating that their obedience and sacrifices are driven primarily by fear of criminal consequences. Indeed, studies and personal accounts from those who served demonstrate that unit bonds, loyalty and inspiring leadership are far more potent and actual motivators for obeying orders in today’s professional, all-volunteer Armed Forces.

Moving only sexual assault crimes out of the hands of commanders while leaving all other crimes with them would cripple the effectiveness of the independent lawyers handling the former … creating a system less able to effectively hold accountable sexual assault offenders than exists today.

Along those lines, Mr. Johnson’s statement also confuses criminal charging decisions with disciplinary decisions. Commanders at almost all levels possess authority to mete out administrative disciplinary measures, including career-impacting non-judicial punishment. Some commanders can also criminally prosecute minor offenses in what are known as special courts-martial – venues that carry limited sentencing options designed for less serious crimes.

Sens. Gillibrand and Ernst’s proposal – to vest the criminal charging decision surrounding serious common law offenses in experienced, accountable military lawyers, ones independent from the accused and victim’s chain of command (and immune from the political promotion pressures structurally inherent in all senior flag officer billets) – leaves all such disciplinary decisions undisturbed. All commanders would remain free to do what they are supposed to be doing today – leading and employing existing disciplinary tools at their disposal when necessary, including special courts-martial. (The current proposal also, unfortunately, retains in non-lawyer senior commanders the authority to convene general courts-martial for military-unique serious offenses like desertion, despite the fact that the same structural flaws exist across the military justice system, regardless of the offense. This author strongly believes that all felony-level offenses should be handled by independent, accountable, professional military prosecutors).

There is a fundamental difference between deciding whether a soldier should receive disciplinary consequences for being repeatedly late to work or telling off a superior, versus deciding whether sufficient admissible evidence exists to court-martial a soldier for murder, or whether the charge should be voluntary manslaughter versus negligent homicide – or whether a soldier should receive exposure to the death penalty due to alleged misbehavior before the enemy. One type of decision is for commanders and junior leaders as they maintain discipline, the other should be for experienced, accountable, and independent professional criminal prosecutors – that is, if the “justice” in military “justice” will ever truly mean what it claims.

Mr. Johnson uses an odd anecdote of an Air Force commander who chose not to criminally prosecute an airman who caused the death of an innocent fellow service-member by grossly negligent driving. This example actually demonstrates why such inexperienced (in criminal law) commanders should not be making such prosecutorial decisions. Johnson lauds the commander’s decision to place the mangled car at the installation’s front gate with the sign, “This is what happens when we fail to take care of another airman.” But what has that to do with the question at hand? The commander could have still placed the mangled car, with the same message, at the same location in a world in which the Gillibrand-Ernst legislation exists or not. In civilian life, those who kill others by driving drunk and other negligent driving are appropriately prosecuted, not given the special treatment that Mr. Johnson cites as a positive example of the current system. This example is a glaring one of why experienced, independent and accountable legal professionals should be military prosecutors. It bears emphasis here that the current system of special treatment and discretion, which is glorified by the use of this example, is a system rife with racial disparities in treatment of cases (more on that below).

This leads into another refrain from the siren song of command that comes from three former Army lawyers Mr. Johnson quotes. They claim:

The strongest argument in favor of command prosecutorial discretion is that commanders are better informed and in touch with the needs of military society. This is particularly relevant when the unique needs of specific command are taken into consideration. … The prosecutorial decision is best crafted to the needs of military society and the particular community of that society. Commanders, more than lawyers, are necessarily more aware of these various needs and competing interests.

These former Army officers use the military crime of fraternization as an example of why commanders are better prosecutorial decision-makers and are “in touch” with military needs; however, they fail to mention that this offense is not covered by Sens. Gillibrand and Ernst’s proposal. Johnson includes their discussion of fraternization in his analysis too. Its misleading use is therefore quite telling – for disciplinary decisions involving minor offenses, preferably those that carry a year or less maximum confinement, commanders and their junior leaders should keep making the call (though the troubling specter of the racism and rank disparities that pervades those decisions warrants a deeper look at how all these decisions are made). The proposed legislation does just that: it leaves military disciplinary misconduct such as fraternization with commanders for disposition.

But how and why some undefined “special need of a military unit” should affect a professional prosecutorial decision to charge someone with murder or rape is beyond puzzling, and left unexplained by these authors. Generalized scare tactics instead of specific reasons are employed because (1) a military unit’s specific needs should have no bearing, in almost all but extraordinary situations, on whether there is sufficient admissible evidence to charge someone with the serious crimes of murder, manslaughter, burglary, rape, other sexual assaults, arson, etc; and (2) if there is some “special sauce” that only the unit commander is aware of that she believes is critical to making a criminal charging decision, that commander – as is the case today, given that most commanders already lack such prosecutorial discretion – should reduce their concerns to writing and share with all concerned parties.

The decision to prosecute any and all crimes, should be reducible to articulable, reasonable and repeatable factors, with decisions made by experienced, accountable, and independent decision-makers who are not subject to political pressures or personal biases due to unit affiliations with the accused (as well as the victim in many cases). That form of predictability is what breeds deterrence in criminal law, not the arbitrary exercise of power. And at the end of the day, there simply is no secret recipe for understanding when an offense causes great unit harm: commanders and other witnesses relay such information, and they can continue relaying it.

Bringing the backroom dealings of the current military justice system into the open, where transparency is the norm and rigorous, objective, fact-based legal decision-making is the standard, will help better achieve just results – thus promoting good order and discipline in general. This shift can also help shed light on, and hopefully help ameliorate, the disturbing racial disparities that currently plague the military justice system. Yet Mr. Johnson, echoing the former military lawyers he cites, warns that Congress shouldn’t fix what isn’t broken, and should leave everything but sexual assault crimes alone.

Fact: Court-martialing Black service members at a rate twice that of their white counterparts is a broken system in need of repair. Period.

The system, truly understood by those of us who have studied it closely, needs fixing because it’s long been flawed, from racial disparities, to different spanks for different ranks, to no accountability for commanders in their military justice roles, to significant vulnerability to improper command influences. The mishandling of sexual assault crimes that prompted today’s proposal is a symptom of systemic disease. No criminal justice system is perfect, and the military justice system has its strengths. But it possesses many areas in need of improvement, starting with the prosecutorial decision at issue today.

Senators Gillibrand and Ernst’s proposal goes beyond sexual assault crimes because it has to. While the prosecutorial decision is only one dimension of the significant racial disparities in the military discipline and justice systems, by professionalizing it and bringing it out into the open, it’s a good start toward providing those in uniform with the military justice system worthy of their sacrifices. What’s more, moving only sexual assault crimes out of the hands of commanders while leaving all other crimes with them, as suggested by Mr. Johnson, would cripple the effectiveness of the independent lawyers handling the former. It would disable them from employing the full prosecutorial toolkit of plea bargains and other effective prosecutorial techniques in sexual assault cases. Creating “pink courts” would actually create a system less able to effectively hold accountable sexual assault offenders than exists today, while ignoring the structural flaws in the military justice system that affect the handling of all offenses.

Mr. Johnson’s opinion piece also contains a proverbial 13th stroke of the clock — a claim that transferring prosecutorial authority for serious crimes to experienced, independent military lawyers will require a new bureaucracy of military lawyers, a move he warns will result in the same debacle as the significantly flawed Military Commissions at Guantanamo Bay, Cuba.

Fact:  Senators 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.

Unfortunately, at the end of the day Mr. Johnson mistakenly equates criminal prosecutorial power over serious crimes with real leadership. He points to the U.S. Air Force Academy Superintendent’s 2020 viral video condemning racism at that institution as a type of instance in which “commanders, not an independent body of lawyers, must have the full authority to meet the moment.” Commanders of course should have the authority to meet such a moment – and that particular moment had nothing to with a decision to criminally prosecute a cadet or anyone else with a serious crime. The Superintendent forcefully condemned racism in the Air Force and told folks to “get out” if they couldn’t treat others with respect – a message he and others could (and should) deliver without the personal authority to court-martial anyone. Indeed, the actual cadet culprit who prompted the Superintendent’s forceful message was apparently later administratively removed from the Air Force, not court-martialed – a discharge power left wholly unchanged by the current proposed legislation.

So why Mr. Johnson used this example in his defense of maintaining the authority to prosecute serious crimes in senior military commanders is head-scratching. Even if prosecutorial power over all felony-level offenses is transferred to independent, experienced and accountable military lawyers, as it should be in a 21st Century military, the Air Force Academy Superintendent and all military commanders would remain free to do exactly what that general did – lead with honor.

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The time is now to give those in uniform who willingly sacrifice so much for our country a contemporary criminal justice system that fairly provides accountability while protecting the rights of all involved – thus enhancing the effectiveness of the military and bolstering our national security in the process. The current proposal is a necessary and overdue start to achieve such a system.