Rarely does a bureaucratic institution, in this case the Pentagon, ask Congress to take away its own power. But that is exactly what happened when Defense Secretary Chuck Hagel asked Congress this week, after an internal review of sexual assault cases, to change the laws governing military justice. His request: Congress should limit the legal latitude given to commanders who have often abused their stature to protect sexual assailants.
In other words, Congress should tie the military’s own hands.
The changes are welcome, but hardly inspiring. Essentially, the military can’t trust its own senior leaders to do right and thus doesn’t want them to have the power to do any more wrong. Seen in this light, there should be only cautious optimism in response to the Pentagon’s move to protect victims of sexual crimes. The time to celebrate will be when the Pentagon can actually reduce sexual violence. That is about 19,000 sexual assaults a year away.
The case that triggered the review involved F-16 pilot Lieutenant Colonel James Wilkerson. Found guilty of sexual assault by a military jury, Wilkerson was instead set free. His commander, Air Force Lieutenant General Craig Franklin, invoked his convening authority and summarily dismissed Wilkerson’s verdict. The “convening authority” is a unique aspect of military law and gives commanders the freedom to overturn a verdict.
Outrage followed Wilkerson’s release, and Hagel promised to reassess the entire military justice system, including the convening authority, which has been a facet of military justice for centuries. It allows for “absolute power” to set aside findings of a military court “for any or no reason, legal or otherwise.” Not even Hagel could have altered Franklin’s decision.
The review is now complete and the Pentagon is seeking to eliminate the discretion to alter verdicts in major cases and, for any minor offenses, to require a written explanation. It is up to Congress to turn Hagel’s fixes into law, an effort being led by women legislators across the aisle.
These proposals follow a much less public change made by Director of National Intelligence James Clapper last week. Effective immediately, women need not answer “yes” to a question on the standard security-clearance form asking if they have ever had mental health counseling, as long as their therapy was in response to a sexual assault. Women can now protect their privacy and still receive classified information.
It is difficult to underestimate the significance of Hagel’s decision for the military. The changes he is proposing cut to the core of its approach to justice. They are clearly intended to make a statement about the Pentagon’s tolerance for a boy’s network that protects its own.
But in announcing these legislative reforms, Hagel still conveyed a sense of the task still to come: Despite the intense focus on sexual assault and efforts to protect women, “it is clear the department still has much more work to do to fully address the problem.”
Indeed, Hagel’s proposed changes don’t include the clearest way to reduce sexual assault in the military: Put the fear of justice in the hearts and minds of potential perpetrators. In cases of sexual assault, the entire convening authority, which also determines whether a case can go forward, should be taken from a commander’s hands and given to an independent or civilian authority.
The announced changes only tie commanders’ hands after a conviction has come down. They will not touch any abuses of power prior to the case. For there to be a guilty verdict, there must first be a trial, and right now, the commanders are the sole determinants of whether trials come to pass.
The Defense Department’s own numbers tell the story. According to the latest Pentagon statistics, a small fraction of the estimated 19,000 sexual assaults are formally disclosed to authorities. Only about 1,100 troops filed for an investigation in 2012; from those, just 575 cases were processed.
Of the cases processed, 96 went to court-martial, which is about 17 percent of the processed assaults — and barely 0.5 percent of the number of attacks the Pentagon believes actually occurred.Juliette Kayyem can be reached at firstname.lastname@example.org and Twitter @juliettekayyem.