Equally misguided is the argument recently put forward by Sen. Claire McCaskill, D-Mo., that commanders are more apt than prosecutors to pursue cases that they’re unlikely to win. Contrary to popular rhetoric, the goal of military justice reform isn’t simply more prosecutions but, rather, more meritorious prosecutions. If advocates for victims and for defendants can agree on nothing else, they voice a common concern over the types of charging decisions yielded by a commander-driven criminal justice system. Whether recounting instances of unmerited prosecutions or citing improper refusals to prosecute, they express the same frustration with the practical results of allowing an interested party to decide whether to invoke the judicial process.
For the accuser as well as the accused, the best way to guard against improper prosecutorial motives is to professionalize case disposition by vesting authority in a neutral specialist. Those who occupy both roles are doubly in need of such protection.
Rachel Natelson is an attorney specializing in the rights of military women. She formerly served as the legal director of the Service Women’s Action Network, and she developed and presided over the Veterans and Servicemembers Project at the Urban Justice Center in New York City.
Terri Henderson, 6, center, whose mother is El Salvador, attends a rally with members of Congress at Union Station's Columbus Circle to announce the Restore Opportunity, Strengthen, and Improve the Economy (ROSIE) Act on July 29, 2014. The legislation provides incentives for government contractors to pay a living wage and other benefits that would help low-income workers.