Chain of Command


Commanders are able to exercise too much control over the military's justice system, especially during sexual assault cases, former military personnel said last night at a New York City panel.

Former Air Force Chief Prosecutor Col. Don Christensen told a crowd gathered at the New York City Bar Association that judges and prosecutors are too easily undermined in the military system, where those with high rank can often influence trial decisions.

“We have a system where the commander can still put his thumb on the scale when it comes to thwarting the rights of the victim,” Christensen said at the event organized by the Avon Global Center for Women and Justice at Cornell Law School.

Prosecutors in the system are not granted many of the privileges afforded their civilian counterparts he noted. Commanding officers decide whether or not a suspect is charged, what charges are pressed, and even whether decisions can be appealed.

“There's a whole litany of powers that we would think would be held by a prosecutor or judge, but is held by a commander. A layperson,” Christensen said. “The ability to fly an airplane, the ability to direct artillery does not equate the ability to determine charges.”

The role of commanders in the military system attracted heated debate at hearings for a special nine-member Senate subcommittee that met in 2013 and 2014. Eight of the nine members voted in June 2014 against removing authority from senior commanders, effectively killing a proposal by New York Democratic Senator Kirsten Gillibrand to do just that.

The lone member who voiced support for revoking “convening authority” from commanders was Elizabeth Hillman, a former Air Force officer and current provost and academic dean at University of California Hastings College of Law.

“The United Kingdom, Canada, Australia, and most other countries with well-regarded justice systems have already ended command control of courts-martial to protect the rights of service members,” Hillman wrote in her dissenting opinion to subcommittee.

She said at the New York City Bar panel the argument that other countries have fairer military justice systems was particularly unsuccessful in the Senate.

“I think this didn't play well because other military experiences don't play well with the American experience of exceptionalism,” Hillman said.

Greg Jacob, a former Marine and policy director for the advocacy group Service Women's Action Network, said that has to do with “a built-in deference to the military among the members of Congress.”

Jacob said he witnessed the discrimination and harassment that female marines were subjected to by both superiors and fellow marines. He said the military is unlikely to fix itself without prodding from civilian advocates and elected officials.

“There's so much institutional inertia in the military. So much value put on tradition and status quo,” Jacob said. “It's 'If it ain't broke don't fix it.'”

But some progress has been made, said retired Army Maj. Gen. John Altenburg, Jr., a former Army prosecutor and Deputy Judge Advocate General.

“There is a problem in the military and it's been working hard to catch up with it,” Altenburg said.

He pointed to special victims units instituted in 2009, and noted that military sexual assault victims now get lawyers to represent their interests at trials.

“There was a time when a captain in the Navy could know about a sexual assault and just keep that from being found out, but that's not longer true,” Altenburg said.

Graham Kates is Deputy Managing Editor of The Crime Report. He can be found on Twitter, @GrahamKates. He welcomes comments from readers.

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