Lawfare News

Experts Recommend Changes to Structure of Military Justice System

Elliot Setzer
Wednesday, April 22, 2020, 10:48 AM

Published by The Lawfare Institute
in Cooperation With

Experts in military justice on Monday submitted a report to the Senate and House Committees on Armed Services arguing that the Defense Department should alter the command-based structure of the military justice system by removing the authority of commanders to determine in individual cases whether felony-level charges are brought. Under their proposal, military prosecutorial discretion to decide whether to charge a defendant with a felony would be vested in a high-level Judge Advocate General officer outside of the chain of command. The experts wrote that the proposed alternative system would “improve good order and discipline by providing a criminal justice process that is faster, smarter, and less vulnerable to unlawful influence and command- or commander-specific variation.”

The National Defense Authorization Act for FY2020 calls for a report by the Secretary of Defense on a proposal affecting the authority of commanders to “prefer and refer” felony-level charges in military criminal cases. The experts advisory report is intended to assist the Secretary in preparing his report and assist Congress in reviewing the Defense Secretary's report.

You can read the report here and below:

Elliot Setzer is a Knight-Hennessy Scholar at Stanford Law School and a Ph.D student at Yale University. He previously worked at Lawfare and the Brookings Institution.

Subscribe to Lawfare