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The Biggest Obstacle to the Pentagon’s War on Sexual Assault: the Military Justice System

A legal principle intended to protect service members after World War II has spawned a dangerous precedent.
U.S. Marines prepare to march in the Veterans Day Parade on November 11th, 2017, in New York City.

U.S. Marines prepare to march in the Veterans Day Parade on November 11th, 2017, in New York City.

It's been more than a year since an explosive investigation into digital revenge porn in the Marine Corps put sexual harassment in the United States armed forces back in the national spotlight. Now, the Pentagon seems poised for a true #MeToo moment.

Military personnel at all levels are taking actions to fight sexism and misogyny in the ranks. Reported military sexual assaults increased by 10 percent between 2016 and 2017, according to Department of Defense data, a jump that officials claim reflects more confidence in the military justice system. Further, a new measure attached to the defense appropriations bill currently working its way through Congress looks to better define (and punish) domestic violence within the ranks and afterwards. There have been some high-profile instances to reflect that cultural and bureaucratic shift: In April, a Marine Corps brigadier general was given the axe after dismissing the sexual harassment charges against him as "fake news; that same month, Secretary of Defense James Mattis ordered officers and commanders to "use their authority and force of personality to prevent" and eliminate the "cancer" of sexual assault within the ranks.

These are powerful actions. But there's another cancer brewing within the confines of the U.S. armed forces—and until it's dealt with, these efforts to combat military sexual assault won't amount to much.

The problem lies in the Uniform Code of Military Justice, a federal law that Congress passed and President Harry Truman signed in 1950, in the aftermath of World War II. Among the sweeping changes the UCMJ instituted in the military justice system: Article 37, which bars "unlawful command influence" (UCI). In essence, UCI restricts commanders and officers from influencing the course of a court martial in order to limit undue punishments, like the Army's well-documented penchant for intimidating the personnel involved in court martial proceedings. The goal was simple: to maintain the integrity of judicial proceedings and some semblance of the due process.

There's some sick irony in that Article 37 was intended to protect service members in the first place. Two million of the 16 million service members who fought in World War II had been subject to court martial, "and many did not like what they saw," according to a 2000 Military Law Review article: "The system appeared harsh and arbitrary," with too few protections for the individual and too much power for the commander. "To Americans who were drafted or who enlisted to defend their own freedoms and protect those of others around the world, this was unacceptable and complaints and criticisms became widespread." A commanding officer meddling in the justice system is, as every barracks lawyer knows, "the mortal enemy of military justice."

In principle, UCI gives an offender's direct commander some level of autonomy when assessing the crime. But fast forward nearly seven decades and it's not UCI that's posing a threat to military justice, but Article 37 itself: While Mattis and other senior military leaders like Marine Corps Commandant Robert Neller can sass U.S. service members all they want, they can't actually order any direct action in a specific case lest they be accused of unlawful command influence.

This has two immediate and deleterious consequences to the military justice system. The first is more pressing: By vesting authority in commanders to determine charges, you're putting authority in a figure who possesses a series of overlapping incentives—troop cohesion, their own paperwork load, sexual assault "training fatigue," and perhaps their own ingrown misogyny. Consider that, while reports of sexual assault were up in 2017, the numbers of actual courts martial actually declined. Commanders are increasingly relying on administrative punishment to avoid a long and drawn-out judicial process, and claiming lack of evidence to prosecute. (When asked about the discrepancy between assaults and courts marital, a Pentagon spokesman cited "victim choice.")

The second consequence is complicated by legal precedent. In the 2015 sexual assault case of Senior Airman Brandon T. Wright, Air Force Lieutenant General Craig Franklin, Wright's commanding officer and would-be convening authority, had decided against a court martial due to a lack of evidence. That's when the Pentagon opted to step in, deciding to transfer the case to another judge; the Pentagon also noted that previous sexual assault cases that Franklin adjudicated shed doubts on his credibility. While the move to shift the case to a more impartial judge ostensibly intended to serve justice, the replacement, Lieutenant Colonel Joshua Kastenberg, promptly declared the decision an instance of UCI, resulting in Wright's case getting tossed.

The outcome of Wright's sets an uneasy precedent, as apparently the mere appearance of UCI constitutes grounds for overturning a conviction or dismissing a case. In Wright's case, Kastenberg cited not just the Pentagon's explicit move to remove the case from Franklin's hands in his decision, but also the influence of Senator Kirsten Gillibrand (D-New York), a member of the Senate Armed Services Committee, based on public remarks she had previously made. "[T]he failure to have charges preferred against Wright would enable Senator Kirsten Gillibrand to gain needed votes on a pending bill to remove commanders from the court martial process," Kastenberg's ruling reads.

It gets worse. Flash forward to May of 2017, when an Air Force Court of Appeals also reversed a sexual assault conviction of airman Rodney Boyce after determining that public statements by Senators Gillibrand and Claire McCaskill (D-Missouri) regarding the Marines United scandal earlier that year created "the appearance of unlawful command influence"—citing, once again, an unrelated case and, once again, the perception of unlawful command influence surrounding Franklin that his superiors—then-Air Force Secretary Deborah Lee James and Chief of Staff Mark A. Welsh III—failed to address. "There is an insufficient basis to deduce that Appellant personally suffered any prejudice," military judge Christopher Levey wrote in his decision, "[but] the Government has not met its burden of proving beyond a reasonable doubt that the conduct of the Secretary of the Air Force and/or the Chief of Staff of the Air Force did not place an intolerable strain upon the public's perception of the military justice system." The appearance of UCI was enough to get off scot-free.

There have been several high-profile instances since the Boyce ruling that could have seen the UCI precedent deployed: Army Sergeant Bowe Bergdahl, who plead guilty in October to abandoning his post, had his lawyers float an appeal citing tweets from President Donald Trump that called Bergdahl a "a no-good traitor who should have been executed" as evidence of UCI. There are other less visible but more worrying consequences: A trio of Navy SEALs accused of committing war crimes while deployed in Afghanistan are hinging their hopes for freedom on claims of UCI based on allegations of "suspicious conduct to bring the SEALs to trial that was so dicey that it tainted the prosecution and put the entire military court system into question by the general public," as the San Diego Union-Tribune reported in April. In an equally troubling example, one former Marine Corps scout sniper overturned a conviction for urinating on a Taliban corpse in Afghanistan by citing UCI.

When it comes to sexual assault specifically, this expanding interpretation of UCI has major consequences: that those commanders who often dismiss (or are subject to) allegations of sexual assault and abuse can simply shrug off the responsibility of charging their colleagues the minute any high-ranking government official talks at all about any related case. And in a world drowning in media, that means any offender has a trove of evidence of apparent UCI.