A military commander’s authority to overturn the decision of a court martial dates back to the Continental Army. But the Pentagon’s top lawyer on Wednesday acknowledged that there is “something that seems odd” about such arbitrary power in the wake of an Air Force general’s decision to overturn a jury’s guilty verdict against a pilot accused of sexual assault.
Robert S. Taylor, the Pentagon’s acting general counsel, told the Senate Armed Services Subcommittee on Personnel that Defense Secretary Chuck Hagel tapped him to review whether a commander’s authority to overturn decisions is still necessary.
Taylor’s preliminary report and any recommended changes to the power of the “convening authority” — used under U.S. military law to refer to a commander’s job — are due on Hagel’s desk by March 27.
But in a rare public show of discord between civilian defense leaders and military brass, lawyers from all of the military services balked at any efforts to take away commanders’ power, arguing that doing so would hurt their ability to enforce “good order and discipline” within their units.
“I think for so long as we hold our commanders accountable for everything that a command does or fails to do, then they must have these types of authorities,” Maj. Gen. Vaughn A. Ary, Marine Corps staff judge advocate, told the panel.
The resistance from the services prompted an immediate backlash from Personnel Subcommittee Chairwoman Kirsten Gillibrand, D-N.Y., who convened Wednesday’s marathon hearing that included testimony from several sexual assault victims who described the prevalence of these crimes as well as the difficulty of reporting assaults and navigating the military’s judicial system.
“I appreciate the work that you are doing [on sexual assault]. I honestly do,” Gillibrand said. “But it’s not enough. And if you think you are achieving discipline and order within the current convening authority framework, I am sorry to say you are wrong.”
The decision by Lt. Gen. Craig Franklin to overturn the conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy, has reignited passions on Capitol Hill, where lawmakers have been working for several years to pass laws aimed at ending what they believe is an epidemic of sexual assault within the military.
Top military leaders have said they have set a “zero tolerance” policy on sexual assault and are working to better protect victims and change the culture. But victims who testified Wednesday before the panel painted a picture of a military where sexual assault is a common occurrence, crimes go unpunished, and perpetrators get promoted.
“Many of the women who were impacted by these incidents, including me, are no longer in the military,” said Anu Bhagwati, executive director of the Service Women’s Action Network and a former Marine Corps officer who said she experienced daily discrimination and sexual harassment. “However, all of the officers who were complicit in covering up these incidents have since retired or are still serving on active duty.”
The Defense Department estimates that 19,000 service members are victims of sexual assault each year. But only a small fraction — about 2,700, or 14 percent — actually report these crimes, underscoring the fact that many victims fear retaliation if they seek legal action.
Prosecution rates are just as bleak. In 2011, the Defense Department investigated 1,518 members of the military for sexual assault; only 240 cases made it to trial by April 2012, resulting in 191 convictions, according to the Pentagon’s most recent statistics.
The instances of commanders rejecting jury decisions on sexual assaults and other crimes is small — about 1 percent or less in the military services. But many on Capitol Hill fear that Franklin’s decision to overturn a conviction will only serve as another deterrent to victims in reporting sexual assaults.
“The Aviano Air Base case is shocking,” Gillibrand said. “And the outcome should compel all of us to take the necessary action to ensure that justice is swift and certain, not rare and fleeting.”
In the House, Reps. Michael R. Turner, R-Ohio, and Niki Tsongas, D-Mass., who co-chair the Military Sexual Assault Prevention Caucus, sent a letter to Air Force Secretary Michael B. Donley on Tuesday requesting a briefing on the case and the necessity of commanders’ power to overturn convictions.
“Over the last several months, we had become optimistic that the Air Force was making some notable progress in investigating, prosecuting, and adjudicating sexual assault crimes,” they wrote. “Unfortunately, this decision seems to be a step backward.”
Rep. Jackie Speier, D-Calif., on Tuesday unveiled a bill (HR 1079) that would prevent commanders lessening sentences or overturning convictions after a court martial.