Published by The Lawfare Institute
in Cooperation With
The prevalence of sexual assault that women suffer in the military has remained startlingly and stubbornly high. A decade ago, female service members faced a more than 5 percent chance of being sexually assaulted in any given year, a prevalence rate that remains unchanged today.
Lawmakers have spent much of the past decade seeking out and attempting to remove the obstacles victims of sexual assault in the military face when seeking justice for the wrongs done to them. Led by Sen. Kirsten Gillibrand, Congress has sought to bolster scores of reporting, support and accountability mechanisms. And it has taken increasing aim at the perceived shortcomings of the military justice system in holding perpetrators accountable.
At the end of April, Gillibrand introduced S.1520—provisionally titled the “Military Justice Improvement and Increasing Prevention Act”—the most ambitious reform effort to date. Gillibrand touted the bill’s package of reforms as “important, commonsense steps to deliver justice for survivors of serious crimes and prevent sexual assault in our armed forces.” Given that S.1520 has already garnered 63 co-sponsors, with bipartisan support from everyone from Sens. Ted Cruz to Ed Markey, the bill is virtually guaranteed to pass by the end of the year.
The law’s most significant reform will be to “professionalize how the military prosecutes serious crimes,” not just sexual assault, “by moving the decision to prosecute from the chain of command to independent, trained, professional military prosecutors.” Removing the chain of command from the court-martial process will be the most fundamental reform of the military justice system since the passage of the Uniform Code of Military Justice (UCMJ) in 1950, and some critics remain stalwart. While I am not one of those critics, there are a few issues that lawmakers should address as they finalize S.1520’s package of reforms to ensure that the legislation is able to achieve its complementary goals of providing victims with meaningful accountability and deterring the perpetuation of command cultures where sexual assault is permitted to remain stubbornly prevalent.
The Need for Reform
The impetus for S.1520 is lawmakers’ frustration with the military’s handling of sexual assault and harassment claims despite decades of effort. The military has faced routine oversight, criticism and scrutiny for its handling of sexual misconduct perpetrated by service members at least since the Tailhook scandal broke in 1992, and it has made extraordinary investments in eradicating the problem. The Government Accountability Office estimates that there are now at least 191 distinct statutory requirements that the Defense Department is responsible for implementing to combat sexual assault and harassment in the ranks, to include reporting requirements, personnel training, victim outreach and support, as well as the implementation of a unique special victims counsel system, under which victims are entitled to their own lawyer in any court-martial brought on sexual assault charges.
Yet a recent Defense Department study estimated that the percentage of women in active service who are the victims of a sexual assault each year has remained constant, at around 4 to 6 percent for the past decade. In other words, one in 20 women, who have volunteered to dedicate their lives to the service of their country, continue to be victimized by their supposed comrades-in-arms each and every year, despite millions of well-intentioned dollars and hours spent.
The human faces on those statistics are tragic. In December 2020, the Army concluded that the murder of 20-year-old Army Specialist Vanessa Guillén, whose dismembered body was not found for two months, was the foreseeable consequence of a “toxic culture” at Fort Hood, where she was stationed. Fort Hood, the report concluded, had become an “environment where sexual assault and sexual harassment” were insidious. Guillén’s murder has had a galvanizing effect on a long-festering issue and became a principal driver for the bipartisan groundswell of support that is now behind S.1520. Sen. Jeanne Shaheen, when announcing her support for the bill, named Guillén specifically as “underscor[ing] the need for a robust response.”
In fact, a more modest version of S.1520 was introduced in the House last fall under the name the I am Vanessa Guillén Act of 2020. The Pentagon has thus far reserved comment on S.1520. Earlier this year, however, a commission created by Defense Secretary Lloyd Austin endorsed a narrower reform of the military justice system that, like the I am Vanessa Guillén Act of 2020, would remove the chain of command from sexual assault prosecutions specifically.
S.1520’s Reforms to the Military Justice System
As I explained in a previous Lawfare post, the modern military justice system, codified in the UCMJ, continues to preserve the same basic structure that the court-martial system has had since before the Founding. The most distinctive element of that structure is who decides whether a service member is to be court-martialed for violating military law (a concept called “convening authority”). Under the UCMJ, the decision on whether to prosecute a service member before a court-martial is made in all but the most unusual cases by that service member’s operational superiors in the chain of command.
There are various rationales for preserving this “command-centric” system, the most salient of which is commanding officers’ singular duty to maintain “good order and discipline” among subordinates. As traditionally explained, the decision to prosecute subordinates in a court-martial, the decision to approve the verdict the court-martial has rendered and the decision to impose punishment all require commanders’ discretionary judgment about what is needed to maintain good order and discipline as part of their overarching responsibility to carry out their assigned missions.
This arrangement creates an unavoidable conflict of interest. Operational commanders, understandably focused on carrying out their assigned missions, have an obvious temptation to overlook or show leniency toward crimes committed by their most valuable subordinates. And that has fostered doubts about whether a court-martial system that is beholden to the chain of command is capable of providing real accountability in sexual assault cases and, by extension, deterring the kind of command cultures that have often made sexual assault so persistently prevalent.
Over the past decade, lawmakers have progressively curtailed commanding officers’ traditionally broad discretion over court-martial prosecutions. In 2013, for example, Congress forbade commanders from considering “the character and military service of the accused” when deciding whether a particular subordinate should be prosecuted. In 2016, Congress stripped commanding officers of nearly all of their traditional authority to override the verdicts and sentences courts-martial have rendered, not just in sexual assault cases but also in any case involving a serious crime. And then in 2019, Congress directed the Defense Department to conduct a cost-benefit analysis of whether commanding officers should be effectively removed from the court-martial process entirely and whether the decision to prosecute service members should be transferred to a stand-alone military prosecutor’s office.
The proposal to remove the chain of command from the court-martial system garnered many supporters, including a “shadow report” issued by a group of prominent military justice scholars, who argued that taking the final step in this direction would be a positive incremental reform. On Lawfare, I wrote that the significance of such a change should not be underestimated and Dan Mauer offered reasons to be skeptical of the proposal, particularly if reforms to the prosecutorial decision-making process were not coupled with broader structural reforms to the court-martial system as a whole.
In a report last September, the Defense Department came out vehemently opposed to the idea. The department not only claimed that the proposal would “undermine the foundation and justification for the broad powers courts-martial exercise as Article I tribunals,” but it also defended the track record of commanders in handling sexual assault cases overall. And it doubted that restructuring the military justice system into a fully prosecutorial model would even be effective in reducing the prevalence of sexual assault. The department’s claims, however, seem to have had little effect, given the breadth of support S.1520 now has.
Precisely how S.1520 will implement this reform remains to be seen. The text of the bill has not yet been entered into the congressional record. The military justice blog CAAFLog has been closely covering the debate over its relative merits, however, and obtained a draft of the bill that is accessible for public review.
According to the draft, S.1520 will remove a service member’s chain of command from the decision of whether or not to prosecute whenever that service member is accused of committing any one of a series of military law offenses that are also major crimes under civilian law. The prosecution of purely military offenses, such as disobeying an order, would remain subject to a commander’s discretion, for example, while the decision to prosecute crimes, such as homicide, theft, sexual assault and criminal pornography, would now be made by stand-alone military prosecutors who would work not within the chain of command but for the military equivalent of a U.S. attorney’s office or district attorney’s office in civilian life.
The precise means by which these stand-alone military prosecutor’s offices will be established, staffed, structured and operated is largely delegated to the discretion of each service. The only essential feature is that commanding officers are strictly forbidden from playing a deciding role in any case involving their subordinates.
Issues to Consider
After its introduction, S.1520 was referred to the Senate Armed Services Committee. Based on the draft of the bill posted on CAAFLog, there are at least three issues lawmakers should closely consider as they finalize the bill’s text. First, they should consider the special issues associated with commanders’ duty to punish war crimes. Second, they should specify the structure and supervisory structure of the stand-alone military prosecutor’s offices with greater detail in order to avoid Appointments Clause challenges and also to enhance these offices’ accountability. Finally, lawmakers should look for ways to support S.1520’s reforms to the court-martial system with parallel reforms to the accountability mechanisms available to the victims of sexual assault that operate outside the criminal justice system.
Issue #1: The Special Case of War Crimes
As I have written in greater detail in the U.S. Military Academy’s law of armed conflict blog, Articles of War, S.1520 needs to provide a more nuanced answer to the question of how war crimes will be prosecuted. U.S. policy has long been to prosecute war crimes committed by service members under the generally applicable provisions of the UCMJ. Hence, when Lt. William Calley was prosecuted for massacring innocent civilians in My Lai, he was not prosecuted with the war crimes he would hypothetically face in the International Criminal Court, such as willfully killing protected persons or intentionally directing attacks against the civilian population as such. He was instead prosecuted for simple murder, which, under S.1520, can be charged only by a military prosecutor’s office.
Removing the power to punish war crimes from a commander in the field complicates the accountability scheme that has been central to the U.S. military’s approach to law of war compliance since at least the 1940s. Given that one of the main reasons to have a separate military justice system at all is the need to have a deployable justice system, Congress should consider preserving operational commanders’ prosecutorial authority in parallel to the military prosecutor’s offices or provide for some other reliable mechanism that preserves commanders’ power and legal duty to punish war crimes.
Issue #2: The Structure of the Military Prosecutor’s Office
In reallocating an authority as constitutionally significant as the power to bring a citizen up on criminal charges, Congress should be extremely careful about creating unnecessary Appointments Clause issues. Since the 1980s, the Supreme Court has given extraordinary deference to the political branches’ collective judgment about how to run the military justice system and the rights to be afforded to service members. The major exception, however, has been with respect to the military justice system’s compliance with the Appointments Clause.
Under the Appointments Clause, “the performance of a significant governmental duty … pursuant to a public law” must be done by an “Officer of the United States,” who holds an office “established by Law” after being appointed to that office in the manner the Appointments Clause directs. That sounds simple enough, but §3(d) of the current draft of S.1520, which deals with the stand-alone military prosecutor’s offices that are the heart of the reform, simply directs the Chiefs of Staff to “establish an office … to convene general and special courts-martial,” staffed by military and civilian personnel. In other words, it entirely avoids the nitty-gritty of how these military prosecutor’s offices are to be structured, operated and supervised. Such a broad delegation of discretion on something this fundamental invites at least three discrete Appointments Clause challenges.
First, delegating the authority to create these military prosecutor’s offices may not be constitutionally permissible at all. While the case law interpreting what it means to be “established by Law” is sparse, the consensus view is that under the Constitution such offices must be expressly created by Congress. While there is some circuit-level case law interpreting the congressional intent to establish an office liberally, the most germane authority from the Court of Appeals for the Armed Forces has treated the requirement strictly, as have some influential legal scholars, such as Michael McConnell. Particularly given that the current draft purports to delegate the power to “establish an office” in those precise terms, Congress is well advised to simply establish the military prosecutor’s offices itself.
Second, Congress should revise the rather ad hoc way in which the draft instructs the service chiefs to assign individuals—both civilian and military—to make prosecutorial decisions on behalf of these military prosecutor’s offices. The Appointments Clause contemplates two categories of government officers: principal and inferior. Principal officers must be appointed to the office they hold by the president and confirmed by the Senate. Inferior officers must be appointed the same way unless Congress expressly dispensed with Senate confirmation under the so-called Excepting Clause and vested the power to make these inferior officer appointments in the department heads or the president.
What distinguishes a principal from an inferior officer has been a nebulous and often contested question. But the Supreme Court has been increasingly interested in the issue, and the trend has been toward insisting that government officials given discretion over matters of great significance be appointed as principal officers—and it is difficult to think of a matter more significant than a prosecutor’s power over life and death.
There is unlikely to be a viable Appointments Clause challenge to this kind of prosecutorial power being given to senior judge advocates. All senior military officers are Senate confirmed and appointed by the president to their rank. At least in principle, a senior judge advocate is no less capable of exercising the authority to prosecute than an operational commander would be.
But the constitutionality of giving civilian employees that same power is not so straightforward. The Supreme Court has explicitly held that civilians may not perform the same roles in the military justice system that military personnel do, unless and until they are duly appointed in conformity with the Appointments Clause. If Congress genuinely wants to give civilian officials the authority to initiate criminal prosecutions against service members, it is well advised to say so explicitly and to require them to undergo the same appointment process that U.S. attorneys and other supervising prosecutors in the Justice Department undergo.
Third, Congress should specify the supervisory chain of command governing the services’ respective military prosecutor’s offices with clarity. As presently written, it is not obvious what those lines of accountability are. There is also no provision for protecting these offices’ prosecutorial independence. Who-reports-to-whom and who-can-fire-whom-on-what-conditions are the core government accountability questions animating the Appointments Clause.
Even if S.1520’s failure to provide clear lines of accountability survives Appointments Clause challenge, providing for them is also just good government. Clarity about lines of accountability is not just significant to Appointments Clause analysis. In an organization as rigidly hierarchical as the military, scrupulous attention to the chain of command is a habit reflected all the way down into the clothes people wear.
In the civilian justice system, there exists the attorney general’s supervision of U.S. attorneys, the popular election of district attorneys and the constitutional check of the grand jury system to temper prosecutorial irresponsibility. Knowing whom to blame is key for congressional and public oversight, particularly if the prevalence of sexual assault does not materially change as a result of the current reform.
Issue #3: Noncriminal Avenues of Accountability
There is a risk that S.1520’s reforms to the court-martial process, if done in isolation, will be unlikely to significantly reduce the prevalence of sexual assault in the military. It is understandably tempting for lawmakers to target the military’s most conspicuous accountability mechanism as a way of addressing the problem. But it is not obvious that the chain of command’s conflict of interest when deciding whether to prosecute subordinates on sex crime charges, which is the only thing S.1520 currently corrects, will be sufficient to provide victims of sexual assault with a reliable means of ensuring accountability or to remedy the kind of toxic culture that the Army found so insidious at Fort Hood.
For one thing, the extent to which the chain of command’s prosecutorial conflict of interest matters in practice is an empirical question that remains unanswered. And there is at least some reason to doubt that simply eliminating that conflict of interest will be a silver bullet. A Defense Department study released in October surveyed the case files for every “penetrative sexual offense” in which an investigation was opened over the 2017 fiscal year. While there is plenty of room to debate their methodology, the study participants reported agreeing with commanders’ decisions to take no action against the accused service member in 98.5 percent of the cases they reviewed.
That high level of agreement in the decision not to prosecute is partly a function of the high burden of evidentiary proof needed to secure a criminal conviction. Civilian law enforcement officials are notoriously wary of bringing sexual assault cases in the absence of compelling evidence corroborating a victim’s accusations beyond a reasonable doubt (and as the cases of Bill Cosby, Harvey Weinstein and countless others have shown, even that has often not been enough). In fact, the same Defense Department study from October concluded that, rather than being overly reticent to prosecute subordinates, nearly a third of the cases commanders sent to courts-martial lacked “sufficient admissible evidence to obtain and sustain a conviction.”
It remains to be seen how stand-alone military prosecutors will evaluate similar case files. Perhaps their enhanced professional training, which is also provided for in S.1520, will enable them to develop the evidence to a higher standard. But proving any criminal case beyond a reasonable doubt is difficult, and lawmakers should pay special attention to ensure that incentives are properly aligned. Otherwise, the inevitable bureaucratic desire to make the numbers look good may create its own conflict of interest that leaves victims of sexual assault without the accountability they deserve.
The most obvious solution to this dilemma is to enhance service members’ access to victim-directed accountability mechanisms outside of the narrow confines of the court-martial system. One way to do this would be to make parallel reforms to the existing administrative process for sexual harassment investigations. Since 1997, Congress has required commanding officers to conduct comprehensive investigations into any complaint of sexual harassment. The same irreconcilable conflict of interest that commanders ostensibly have when deciding whether to prosecute sexual assault allegations occurring under their command is at least as present in these administrative investigations. Removing the chain of command from this administrative process would complement S.1520’s changes to the court-martial process and ideally provide a forum for meritorious sexual assault and harassment cases that, for whatever reason, fall short of what is needed for a successful criminal prosecution.
Such a change, though, would require a rethinking of how these administrative investigations are conducted overall, to include whether they need greater investigatory authorities and whether they should be given the power to impose noncriminal sanctions on those found to have engaged in wrongdoing. At present, all that such investigations yield—and, even then, only when “practicable”—is a written report. That’s cold comfort to a sexual assault victim seeking accountability.
The simplest reform along these lines would be to legislatively abrogate the intramilitary immunity doctrine that presently prevents service members from vindicating their rights civilly. Since 1950, when the Supreme Court first announced the intramilitary immunity doctrine (or Feres doctrine), service members have been categorically barred from bringing lawsuits for the kind of workplace harassment that any other citizen could bring under the civil rights laws. In fact, in 1983, the Supreme Court went even further and closed the courthouse doors completely, ruling that the principles of intramilitary immunity categorically bar service members from bringing Bivens suits for the clear violation of their constitutional rights. This doctrine—which is the courts’ wholly common law creation—not only closes off what is often the only viable avenue for accountability, but it also removes the strong incentive to reform toxic cultures that the exposure to civil litigation uniquely creates.
Indeed, despite three decades of intense scrutiny, oversight, reporting and training, parts of the military have been stubbornly immune to the cultural reforms that the #MeToo movement prompted in workplaces across the nation over the course of less than four years. To be sure, the culture of the military is fundamentally different from most other workplace cultures. Women remain less than 15 percent of the active-duty force. The military is what the Supreme Court has characterized as a separate society with “laws and traditions of its own.” But it is also a workplace. Yet, unlike any other workplace in the government or the private sector, military members are denied the one accountability mechanism with the greatest proven significance to the success of the #MeToo movement: the lawsuit.
The cases in which intramilitary immunity has deprived victims of accountability are often at least as horrifying as the instances in which courts-martial have proved inadequate. In one recent case, a female cadet at the U.S. Military Academy brought a lawsuit against the academy’s former superintendent for fostering a “pervasive culture of sexual violence and gender discrimination” that led to her being raped by a fellow cadet and being forced from the institution. Before she even had the opportunity to obtain discovery, her case was dismissed on intramilitary immunity grounds. When she lost her appeal in the U.S. Court of Appeals for the Second Circuit, Judge Denny Chin dissented on the common-sense ground that “[w]hen she was subjected to a pattern of discrimination, and when she was raped, she was not in military combat or acting as a soldier or performing military service.” And lest anyone think that reforming intramilitary immunity is a partisan position of the political left or the plaintiffs’ bar, the lone dissent earlier this month from the Supreme Court’s denial of certiorari in this former cadet’s case was written by Justice Clarence Thomas.
In 2019, Congress showed itself willing to narrow the traditionally broad sweep of intramilitary immunity to allow service members to bring previously barred claims for medical malpractice. Given the bipartisan spirit that has gotten S.1520 to where it is, and the bipartisan recognition of the costs that intramilitary immunity has wrought, lawmakers could consider adding an exception to intramilitary immunity to its package of reforms for service members left with no viable path for accountability because the court-martial and administrative investigation systems are unavailable or inadequate.
Doing so would offer a necessary backstop to make the rest of the law’s reforms effective. It would reduce the pressure on the court-martial system to achieve results that may not be feasible or compatible with the due process constraints that govern a criminal trial. And most of all, it would guarantee that those who are sexually victimized in the course of serving their country will never again be denied a meaningful opportunity to seek justice.