“It is clear that despite sweeping reforms by the Department of Defense to improve prevention, investigation and prosecution of military sexual assaults — including adding specially trained legal personnel and Victim Advocates — these efforts become irrelevant when a case of this magnitude can be thrown out at the discretion of a Convening Authority.”
Indeed, the decision comes at a time when the military has found itself dealing with more and more women reporting they have been assaulted while in the military. Military officers have stressed the need for more training in the ranks and among commanders, and stressed that the military has a zero-tolerance policy toward sexual assault. But the unexplained decision by Franklin appears to undercut that policy, according to Boxer, Shaheen and McCaskill.
“In addition, we urge you, in the strongest possible terms, to take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions,” Boxer and Shaheen wrote to Hagel. “We also ask that you work with us as we consider additional legislative options.”
In the House, Rep. Jackie Speier, D-Calif., plans to introduce a bill this week that would prevent commanders from being able to lessen sentences or overturn convictions after a court martial. A House Armed Services Committee member, Speier will also try to attach her bill to the panel’s annual defense authorization measure.
“There is no justice in a military system that allows a general to overturn the decision of a judge or jury in a court martial. Generals are not above the law,” Speier said in an emailed statement. “The reason why rape victims in the military do not report the crimes is precisely for this reason — they think the system is rigged to protect the accused.”
Under senators’ questioning, Gen. James N. Mattis, the head of U.S. Central Command, said that while he was unfamiliar with the case, he supported the current structure of the U.S. Military Code of Justice, which he pointed out the Supreme Court has upheld several times over the years.
Mattis said that the convening-authority powers were important to avoid the appearance of “kangaroo courts” convened by commanders involving their troops in which the commander is supposed to provide for the prosecution and defense.
Mattis said he has convened numerous military courts in his 41-year career, and that he has with dry eyes locked away Marines who have committed crimes. But he defended the need for absolute authority being granted to the unit commander in military law.
“I can assure you that we take this seriously; we took it seriously a long time ago,” Mattis said. “We have the authority to deal with people who act like a jerk or” behave illegally.
Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, said his panel will hold a hearing on sexual assault March 13, in which he intends to make the Pentagon’s legal office aware that it will need to answer questions about convening authority.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.