More military justice reforms included in defense policy bill

For the second consecutive year, the annual defense authorization bill advanced by Congress includes a slate of military justice reforms that advocates say will better protect sexual assault victims in the ranks and restore troops’ faith in the institution.

“This is a historic milestone in the effort to professionalize the military justice system and give service members a system worthy of their sacrifice,” Sen. Kirsten Gillibrand, D-N.Y., said in a statement Friday.

“For nearly a decade, I have fought alongside survivors, veterans, advocates and legal experts to implement a simple but fundamental change: removing judicial functions and prosecutorial decisions from the chain of command and putting them in the hands of independent, trained professionals.”

Last year, as part of the fiscal 2022 authorization bill, lawmakers approved language creating an independent trial counsel to handle prosecution of sex crimes and other serious offenses, taking that power away from local commanders.

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The move — long opposed by the Defense Department — was hailed by outside advocates as a way to ensure that commanders’ personal feelings towards individuals in their units and their preoccupation with readiness goals didn’t supersede full prosecution of serious crimes.

But Gillibrand and others who have been working on the issue for years said those changes didn’t go far enough, and pushed for additional reforms in this year’s defense bill.

Those steps include adding more crimes in the list of cases handled by the independent office, and adding sexual harassment to the list in 2025.

The bill also fully removes commanders’ remaining convening authorities in serious cases, which includes things such as approving experts, granting witness immunity in trials, and allowing delays in the criminal cases.

Commanders will retain authority over “good order and discipline offenses” such as failure to follow orders and low-level drug and larceny offenses.

“What we’re really getting out of this is a professionalized justice system,” said retired Col. Don Christensen, president of Protect Our Defenders, which has worked closely with Gillibrand to advance the changes.

“As it currently operates, the [military system] is a part-time justice system, with both the prosecutor and the commander serving in a bizarre role in which neither one can fully utilize their strengths. This is something that is going to result in a fair process for both the accused and the victim.”

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The mandated reforms in this year’s bill and last year’s are scheduled to roll out through 2028. Gillibrand warned that implementing the changes will take time, and noted that she still wants to see even more serious crimes taken away from commanders and given to the independent experts.

“But right now, we’re happy with where this reform is and [we’ll] see if it works,” she said.

In 2021, only about 42% of court-martial proceedings involving sexual assault cases ended in discipline for an offender. That was down about 7% from 2018 and down almost 30% from 2013.

The Senate passed the authorization bill with the military justice reforms on Thursday night. The House passed the same legislation last week. The White House has not yet said if the president will sign the measure into law or veto the proposal.

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