Lawfare
In late 2021, Congress reformed the military justice system in a way that materially alters the traditional division of prosecutorial responsibility between nonlawyer military commanders and uniformed lawyers. That reform is consistent with trends among U.S. allies and the continued evolution of the American military justice system. To aid Congress in deciding whether further changes are warranted, steps should be taken now to gather data on the effect of the reform. Although the services remain surprisingly autonomous in the administration of military justice, it is critical that the data gathered reflect common standards, definitions and reporting periods across service lines.
Introduction
President Biden signed Public Law 117-81, the National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), on Dec. 27, 2021. Its hundreds of pages cover a host of topics. Among those that generated the most controversy were the provisions on military justice reform. And among those, attention focused chiefly on the sections that transferred the power to dispose of three categories of “covered offenses” from senior military commanders and other officials who are designated as convening authorities to a special trial counsel (STC) in each service branch.
Now that the guns have fallen silent, it’s possible to make a preliminary assessment of who won and who lost. No one is completely pleased with the end product. Those who opposed any transfer of disposition authority left the field a defeated if not spent force; those who sought transfer of disposition authority over all serious offenses (that is, those punishable by more than a year’s confinement) could claim a substantial, though incomplete, victory; those who chiefly sought transfer of serious sex offenses mostly got what they wanted; and those who sought transfer of serious sex offenses and a broad swath of other offenses involving the victim’s traits and the offender’s intent, such as hate crimes (The Division of Authority Between the Special Trial Counsel and Commanders Under the Uniform Code of Military Justice: Planning Now for the Next Phase of Reform