Government and Politics
December 7, 2022
NDAA Strips Commanders Of All Remaining Judicial Functions And Prosecutorial Duties; Gillibrand Has Fought For Nearly A Decade To Remove These Powers And Put Them In The Hands Of Trained Military Prosecutors And Unbiased Officials
Today, U.S. Senator Kirsten Gillibrand, chair of the Senate Armed Services Personnel Subcommittee, hailed historic changes to the military justice system in the FY2023 National Defense Authorization Act (NDAA). Released today following negotiations between the House and Senate, the NDAA strips commanders of all remaining judicial functions and prosecutorial duties for covered offenses, including sexual assault. It also adds two new covered offenses to the list of those created last year. Gillibrand has been fighting alongside survivors, veterans and legal experts for nearly a decade to make this fundamental change and give these powers to trained, professional military prosecutors. This bipartisan reform was supported by leading veterans service organizations and advocacy groups, including VFW, IAVA, the American Legion, Vietnam Veterans of America, Protect Our Defenders, National Alliance to End Sexual Violence, SWAN, National Coalition Against Domestic Violence (NCADV), Common Defense, and Veterans Recovery Project.
The Senate is expected to pass the bill next week.
While changes in last year’s NDAA did give some powers to Special Trial Counsels (STCs), commanders retained many significant prosecutorial and judicial powers, which makes the system susceptible to bias and undermines trust. Therefore, Gillibrand developed a revised version of her Military Justice Improvement and Increasing Prevention Act (MJIIPA) to establish a position of Court-Martial Convening Authority to take on the powers that remained with commanders. This included adding 17 additional felony-level offenses to the list of covered offenses and removing all of commanders’ residual powers as the convening authority.
Gillibrand introduced a modified version of this legislation as an amendment during the Senate Armed Services Committee (SASC) markup of the FY2023 NDAA. This modified amendment removed the residual powers and reallocated them to other officers rather than creating a new office. It passed 19-7, with 7 Republicans voting in support. Senator Gillibrand was then able to quickly work with Congresswoman Jackie Speier to ensure that similar provisions were included in the House version.
“This is a historic milestone in the effort to reform and professionalize the military justice system,” said Gillibrand. “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. This year’s defense bill makes this critical reform and will instill confidence and trust in the system.”
Gillibrand continued, “I want to thank the survivors, advocates and veterans for their efforts, as well as my colleagues on both sides of the aisle who helped get this done. We know it will take time to see the results of these changes, and our work to professionalize the military justice system will not stop here. But for now, our goal must be to work together to pass this bill and get it onto President Biden’s desk.”
Removing convening authority powers from commanders is critical to providing a system that is fair and perceived to be fair by survivors and the accused. Fewer than one-quarter of survivors of sexual assault in the military are willing to come out of the shadows to report their crime, showing a clear lack of trust in the system. 51% of survivors indicated they would have been more likely to come forward if a prosecutor were in charge of the decision over whether to move forward with their case. Taking commanders out of the role of overseeing and influencing these cases will build credibility for the Office of Special Trial Counsel among survivors and opens the door to the program making an impact on perceptions of justice once it fully stands up at the end of 2023.
Key military justice provisions in the FY2023 NDAA
Commanders are relieved of their remaining convening authority duties in covered cases.
The NDAA requires that the president prescribe regulations to remove all residual prosecutorial duties and other judicial functions of the convening authority from military commanders for covered offenses.
This includes granting immunity to witnesses, approving experts, granting clemency, approving delays, convening preliminary hearings, etc.
A briefing on DoD’s plan to implement these changes is required within 180 days of enactment.
Inclusion of additional punitive articles to Special Trial Counsel jurisdiction
Builds off of the FY2022 NDAA by adding additional offenses to the STC’s jurisdiction.
These offenses include: death or injury of an unborn child and mail: deposit of obscene matter
Provides for randomized jury selection.
Would eliminate the announcement of the commander’s name as convening authority at the beginning of a trial.
Requires reporting on the implementation of the Office of Special Trial Counsel starting in 2025.
Commanders will retain authority over good order and discipline offenses, such as disrespect, AWOL/FTR, failure to follow orders, and drug and larceny offenses.
FY2022 NDAA: The FY2022 NDAA made important steps to improve the military justice system but failed to address most of the convening authority powers held by military commanders.
Complete convening authority was not given to Special Trial Counsels under the FY2022 NDAA.
Although the Special Trial Counsel is a trained judge advocate, their authority was limited to the following tasks for “covered offenses”:
Withdraw or dismiss the charges and specifications
Refer the charges and specifications for trial by a special or general court-martial;
Enter into a plea agreement; and
Determine if an ordered rehearing is impracticable
The FY2022 NDAA did not grant the STC all duties of the “convening authority” which are extensive under the UCMJ. These duties include, but are not limited to:
Choosing panel (jury) members, ordering defense expert witness and consultants, granting immunity, approving an administrative separation in lieu of court-martial, approving excludable delays, determining the incapacity of the accused, granting sentencing witnesses, grant of clemency (Art 60, UCMJ), and post-trial actions on the case, including reviewing victim impact statements and the victim’s preferred outcome.
The FY2022 NDAA scheme is inadequate because it does not solve issues related to a lack of accountability and problems with perception among victims and the public identified by the Fort Hood Report and the DoD Independent Review Commission.
2013: In May 2013, Gillibrand introduces the Military Justice Improvement Act (MJIA) for the first time.
2014: In March 2014, the MJIA is brought to a vote and earns majority support (55-45) but is filibustered.
2015: In June 2015, Gillibrand introduces the MJIA as an amendment to the FY2016 NDAA. Later in June, it receives a vote, but despite earning majority support again (50-49), it is filibustered.
2016-2020: Gillibrand introduces the MJIA every year, but it does not receive a vote.
March 24, 2021 - Gillibrand holds a hearing on sexual assault in the military. Among the witnesses is the attorney for the family of Vanessa Guillen, a U.S. Army soldier whose murder spurred the 2020 Fort Hood report that found massive failures in how the military handles sexual assault and sexual harassment.
April 29, 2021 - Gillibrand holds a bipartisan press conference to introduce, for the first time, the Military Justice Improvement and Increasing Prevention Act (MJIIPA). Importantly, the bill has Senator Joni Ernst (R-IA) as a lead cosponsor. Ernst, a female combat veteran, mother of a West Point cadet, and sexual assault survivor, pushed for additional prevention measures in the bill. The press conference is attended by Senators Gillibrand, Grassley (R-IA), Ernst (R-IA), Cruz (R-TX), Blumenthal (D-CT) and Kelly (D-AZ), as well as advocates and survivors. By the end of the day, Gillibrand announces that the bill has been introduced with 46 original cosponsors, including several previous opponents, such as Angus King (I-ME), Tim Kaine (D-VA), Jon Tester (D-MT), and Mark Warner (D-VA), among others.
June 1, 2021 - Gillibrand announces that Senator Ben Sasse (R-NE) has signed on as a cosponsor, bringing the total to a filibuster-proof sixty-six senators.
July 20, 2021 - During the Personnel Subcommittee markup of the FY2022 NDAA, Gillibrand offers MJIIPA as an amendment. The amendment passes 5-1, with Senators Warren, Hirono, Tuberville and Hawley joining Gillibrand in voting aye.
July 21, 2021 - The full Senate Armed Services Committee votes on the NDAA. MJIIPA remains part of the larger NDAA, which passes the Senate Armed Services Committee by a vote of 23–3.
December 8, 2021 - Gillibrand and a bipartisan group of senators hold a press conference to criticize the military justice reforms in the final FY2022 NDAA, which ultimately do not include MJIIPA, despite its passage through SASC and its overwhelming bipartisan, bicameral support.
June 16, 2022 – Gillibrand introduces a modified version of MJIIPA as an amendment during the SASC markup of the FY2023 NDAA. This modified amendment removes commanders’ residual convening authority powers and reallocates them to other officers. It passes 19-7, with 7 Republicans voting in support.