What We Are Riffing About!

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San Antonio Express-News – April 26, 2021

By: Sig Christenson

Commanders in the U.S. military decide whether to order trials for their troops, as they have since George Washington led the Continental Army — but maybe not for much longer.

Their role as the court-martial “convening authority” for serious felony crimes would be handed to prosecutors under legislation now being prepared in Congress.

Defenders of the tradition say commanders’ ability to order trials (which until recently came with the power to set aside verdicts) is crucial to maintaining good order and discipline.

But commanders weigh other considerations besides impartial justice, critics say, and the resulting rarity of prosecutions and trials in a long parade of sexual assault and harassment cases likely contributed to the high-profile disappearance and death of Pfc. Vanessa Guillén at Fort Hood last year.

Two veteran lawmakers say they’re confident of forcing a long overdue change this year after losing similar fights over the past decade.

If a Senate vote were held today on her bill, it would be close, said U.S. Sen. Kirsten Gillibrand, D-N.Y. But it would have support from prominent Republicans, including Ted Cruz of Texas, Charles Grassley of Iowa and Kentuckians Rand Paul and Mitch McConnell, she said.

Gillibrand’s previous military justice reform effort drew 55 yea votes on the Senate floor in 2013, falling short of the 60 needed to end a filibuster — as did another bill in 2015 by a wider margin.

“I’ve talked to five senators who have indicated they will likely change their votes on this very issue,” she said in a recent interview. “I have planned meetings for at least 20 more senators … to begin to develop even stronger bipartisan support for the bill.”

“I think a couple of things have affected them. No. 1, that they’ve given all the reforms that DoD was willing to put into place time to work — and they’ve not worked — and second, the fact that these recent cases are so outrageous,” Gillibrand said.

Advocates, lawmakers and lawyers on both sides of the debate agree there’s a good chance commanders will lose their convening authority, thanks partly to an annual Defense Department report required by law that has documented how few accused offenders are convicted by the military justice system.

The Pentagon said 6,236 sexual assault and harassment reports were filed by service members in fiscal year 2019, a 3 percent increase over the previous year.

The report said 1,630 sexual assault cases resulted in discipline, including 795 court-martial charges. Of those, 363 went to trial and 264 ended in convictions.

Pentagon data also shows an estimated 13,382 servicewomen, 6.2 percent of the force, were sexually assaulted in 2018, up from 9,834 in 2014.

The assault numbers and conviction rates are not an anomaly. They’ve long looked like that.

Another reason Gillibrand and like-minded lawmakers such as U.S. Rep. Jackie Speier, D-Calif., are more likely to succeed this year is the case of Guillén.

Guillén, 20, of Houston, had told her family about being sexually harassed, but investigators said she never reported it to authorities at Ford Hood. When she disappeared from her workplace on the post, social media erupted with testimonials from former service members who described sexual harassment and assaults.

The case brought weeks of intense scrutiny of the Army’s inability to combat sex offenses even before Guillén’s remains were found June 30 and Spc. Aaron David Robinson, her accused killer, shot himself as police closed in on him.

Speier sponsored the I Am Vanessa Guillén Act last year but was unable to bring it to a floor vote. She plans to resubmit legislation this year.

“We’ve spent close to $1 billion on one (sexual assault prevention) program after another, with no results that would suggest it’s been an improvement,” Speier said.

“You cannot have 20,000 sexual assault cases a year, have 7,000 people report and then end up having a handful — 250 — that get convicted,” she said. “You can’t tell me that those 7,000 that report, that 99 percent of them are lying. And the reason why the other 13,000 don’t report is for fear of retaliation, so you’ve got a really sick culture.”

Pentagon reports have included findings from focus groups that concluded that “military culture is heading in the right direction, albeit slowly” and that “male-dominated cultural norms are slowly changing, giving way to more inclusive attitudes.”

Outside observers have called that progress too slow.

Nancy Parrish, founder of Protect Our Defenders, an advocacy group for military sexual assault victims, asked then-candidate Joe Biden last year if he would support allowing experienced military prosecutors to handle nonmilitary crimes — serious felonies such as rape, murder and child abuse.

“The answer is yes, yes, yes,” Biden told Parrish.

An outside investigation that followed Guillén’s death led to a shake-up at Fort Hood that included the sacking of the acting post commander and two top division leaders. The Army removed or suspended 14 people in all, down to squad level, after the probe found a “deficient climate” that raised risks for female soldiers at the post.

Multiple proposals

The push to strip commanders of their right to order trials in sexual assault cases has finally reached an inflection point because of Guillén’s death, the worsening case numbers and Biden’s intervention, said retired Air Force Col. Don Christensen, president of Protect Our Defenders.

He noted that when the Senate Armed Services Committee in 2013 held the first hearing on Gillibrand’s legislation, top Pentagon officials pledged to make the problem their No. 1 priority and treat it with “zero tolerance.” But military leaders resisted any change in the legal system, and still do, Christensen said.

Biden and Defense Secretary Lloyd Austin “will come out forcefully and make it clear to the generals and admirals that change is coming and that it will happen,” Christensen predicted. “I think it’s going to be close without their vocal support; with their vocal support I think it will be easier.”

But Gillibrand and Speier might still lose, he said. Austin, a former four-star general, has expressed no position on the legislation but has said he’d support conclusions reached by the Independent Review Commission on Sexual Assault in the Military, a panel he created Feb. 26.

The panel last week recommended taking decisions on certain “special victim” crimes, including sexual harassment and sexual assault, out of the hands of commanders and giving them to designated military lawyers called judge advocates under a civilian-led office of the Chief Special Victim Prosecutor.

Under Gillibrand’s bill, serious felonies would be sent to judge advocates with a rank of colonel or higher who are outside the accused’s chain of command. Commanders still would be able to dispense justice for “military-specific” crimes, such as desertion, or crimes with a maximum sentence of a year in prison.

Speier’s bill would create a chief prosecutor within each military service branch to focus on sex-related offenses and establish a monetary claims process in cases of negligence in failing to prevent such crimes or respond to them.

Not all observers familiar with the military legal system want to uncouple it from discipline.

The relationship between commanders and soldiers is integral to military justice, said retired Army Lt. Col. Dru Brenner-Beck, who was one of the first women to run an infantry brigade before she become a military lawyer.

“I think it would be sad to have it go,” she said of commanders’ convening authority. “I think we rue the day. I also think it’s the beginning of the end for a separate military justice system.”

South Texas College of Law professor Geoffrey Corn, a retired Army lawyer, said command authority anchors the modern military justice system. But he thinks this might be the year Congress changes that.

Eugene Fidell, a senior research scholar at Yale Law School, said it makes sense to leave charging decisions in the hands of people who have law degrees and can evaluate evidence professionally — and who are outside chains of command and their influence.

“You don’t have the mayor deciding who gets prosecuted for things,” Fidell said. “Commanders may have interests that may get in the way of a solid legal evaluation. ‘What is this trial going to cost?’ they may say. Or ‘Gee, you know this guy’s a fabulous aviator. I can’t afford to lose him even if there’s some question about whether he committed a sexual assault.’ Or, ‘I can’t run all these trials because it’ll look like my command has a crime wave going on. That’s not good for me.’”

Getting their attention

Congress has tinkered with the military justice system before, including major reforms in 1951.

It took away the right of commanders to overturn convictions in 2014. That came after Christensen successfully prosecuted Lt. Col. James Wilkerson for sexual assault at Aviano Air Base, Italy, only to see the conviction by a jury of five officers reversed by Lt. Gen. Craig Franklin, commander of the Third Air Force.

The Air Force chief at the time, Gen. Mark Welsh, quickly relieved Franklin, a decision that has made commanders much more reluctant to do anything that might look like an abuse of their convening authority in the years since, said Wilkerson’s defense lawyer, Frank Spinner.

“In this environment, because of the nature of sexual offenses in the military and the publicity they’ve received in recent years … I think commanders have reached the conclusion it would be easier to play Pontius Pilate and wash your hands of this thing,” said Spinner, who is based in Colorado.

He and Christensen agree that some commanders would welcome the changes sought by Speier and Gillibrand.

“They recognize they’re not qualified to be making decisions on complex cases with complex legal issues,” Christensen said. “Prosecuting sexual assaults is extremely difficult, and asking commanders to be making those decisions is unfair to them as well.”

Brenner-Beck pointed to the Wilkerson case as one example of Congress responding to high-profile cases that make news. The Guillén case might have exactly the same effect this year.

In Congress, the opposition to the attempts to change convening authority will be led by Sens. Jack Reed, D-R.I., and Republicans Jim Inhofe of Oklahoma and Lindsey Graham of South Carolina, who is a former Air Force Reserve lawyer.

One key consideration: A filibuster is less likely if it’s part of the National Defense Authorization Act, which funds the Pentagon.

Gillibrand thinks she can get the votes even with a filibuster, saying Guillén has put the stakes in stark relief for senators who weren’t paying attention.

“I think because it was a news story that broke through and was something that people had to pay attention to, I think it perhaps created awareness where there wasn’t real awareness previously,” she said. “For Vanessa Guillén’s family to tell their story and to be heard and to be so persistent absolutely will change the outcome of the next vote.”