WASHINGTON — Military service leaders are privately expressing reservations about removing sexual assault cases from the chain of command, the Associated Press has learned, striking a note of caution in a move toward changing the military justice system. which has come under increasing criticism.
In a memo to Defense Secretary Lloyd Austin, service leaders voiced their concerns about increasing pressure to transfer prosecution decisions on sexual assault and possibly other major crimes to independent judge advocates. He said the change could reduce litigation, delay cases and potentially provide less help to victims.
While they indicated they were open to change and reform of the justice system, most were concerned about how this would be done, while ensuring that there was no unintended loss to unit leadership or readiness. According to officials familiar with the memo, many said it would create additional cumbersome bureaucracy.
Several officials on condition of anonymity described the memos to the AP because they have not been made public. The memos submitted to Austin were from the civilian secretaries of the Army, Navy and Air Force and the National Guard.
Reservations expressed by service leaders may provide a measure of ammunition for those in Congress who oppose the removal of the chain of command from sexual harassment lawsuits. However, proponents of the change argue that the current system fails to address a problem that has plagued the military for a long time.
Officials said all service leaders agree that change is almost certain, and they agree that more needs to be done to improve and professionalize the Judge Advocate Corps. But they are concerned about how quickly the changes are being made and whether there is room for dialogue about how they are implemented.
Earlier this year, an independent review commission created by Austin recommended that sexual assault prosecutions be transferred to judge advocates reporting to the civilian-led office of the chief special victim prosecutor. Independent judge advocates will decide two key legal questions: whether someone should be charged and whether the charge should go to court martial.
Members of Congress are pushing for similar – and in some cases more widespread – changes. Because any such change would amend military law, it would require an act of Congress and cannot be done unilaterally by Austin.
Kirsten Gillibrand, a New York Democrat, now has bipartisan, filibuster-proof support for a bill that would make prosecution decisions by chain of orders for major crimes including sexual assault, rape . and murder. The legislation has been stalled in a procedural conflict in the Senate that supporters see as an attempt to delay and water down the bill.
In testimony on Capitol Hill last week, Austin said the military shouldn’t be afraid to change the way it deals with the problem of sexual assault. He said: ‘Clearly what we are doing is not working.
General Mark Milley, the chairman of the Joint Chiefs of Staff, had previously opposed the removal of commanders from the process, but he recently told AP and CNN he had changed his mind. Although he has not publicly supported any particular change, he said it was time to do something different because ‘we’ve been at this for years, and we haven’t moved the needle effectively.’
Austin sought input from service leaders on the review board’s recommendations, and he is now assessing his memo before arriving at his own conclusion, the final recommended change. He met service secretaries and chiefs on Tuesday to discuss the issue. Pentagon spokesman John Kirby said Austin held a “hearing session” to personally voice their concerns.
Officials said the military has expressed doubts about the accuracy of any data suggesting that removing the commanders from the process would lead to more sexual assault lawsuits. Officials said the acting Army Secretary, John E. Whitley said in the memo that the change could reduce commander effectiveness and accountability and reduce criminal punishment, officials said.
As a result, Whitley said, more cases could be resolved with administrative discipline, and that could reduce victims’ confidence in the system.
The Navy offered some support for the turnaround. Acting Navy Secretary Thomas Harker said in his memo that the Navy agreed with the concept of having an independent judge advocate. But he said there are many questions and concerns about how to implement this change. A major concern of the Navy and Marine Corps is that this change could lead to delays in litigation, especially since many sailors and Marines are stationed overseas or on ships for months on tour.
Acting Secretary of the Air Force John Roth also said the force is open to new approaches, including removing cases from the chain of command, officials said. But he cautioned that the change could inadvertently negatively impact the leadership or accountability of commanders. The Air Force said that commanders play an important role in prevention, victim support and creating a respectful command environment, and any change should not spoil it.
Many opposed the recommendation that the new Special Victims Prosecutor’s Office be under the jurisdiction of the Department of Defense, rather than offices overseen by each military service.
The military service memo was signed by three men serving as acting secretaries of the Army, Navy and Air Force — all holdovers from the Trump administration. Since then, Christine Wermuth has been confirmed as the new Secretary of the Army, but took over after the memo was finalized.
Wermuth did not specifically address the recommendations, but in a message to the force on Wednesday she said: ‘We must also eliminate harmful behaviors that reduce readiness. There is no place for sexual harassment and assault, domestic violence, extremism or racism in our military. During its recent Senate confirmation hearing, it also said the military should focus more on improving the command environment at all levels so that young soldiers feel safe and able to complain when needed.
Officials said that the army chiefs of all the armies participated in the discussion till the memorandum of the secretaries. Since the Marine Corps is part of the Department of the Navy, there was no separate Marine Recommendation. And the Space Force was incorporated as part of the Department of the Air Force.
There was widespread agreement on other recommendations made by the independent review panel. Officials largely supported efforts to reform the Judge Advocate Corps, and agreed that protective orders for victims should be handled more quickly.
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