On Monday, Brig. Gen. Jeffrey Sinclair avoided prosecution on sexual assault charges that could have brought him a life sentence. In an agreement with the prosecutor, General Sinclair pleaded guilty to lesser charges, including mistreating his accuser, an Army captain and his former mistress.
The deal followed a stunning ruling by a military judge last week suggesting that by holding out for more severe punishment, and by rejecting an earlier plea deal, the senior Army officer overseeing the prosecution might have been improperly influenced by political considerations in bringing the most severe charges against the general because of a desire to show new resolve in the military against sexual misconduct. The prosecution had also been badly shaken by revelations that the general’s accuser may have lied under oath.
The episode offers a textbook example of justice gone awry, providing yet another reason to overhaul the existing military justice system, which gives commanding officers with built-in conflicts of interest — rather than trained and independent military prosecutors outside the chain of command — the power to decide which sexual assault cases to try. In the Sinclair matter, the commanding officer appears to have ignored his colleagues’ reservations in an effort to look tough on sexual assaults and avoid criticism at a moment when the military is under pressure to address its sexual assault crisis.
Yet tilting the scales of justice to look tough is no less reprehensible than tilting them against victims of abuse by senior officers. Exactly what transpired between General Sinclair and the captain may never be known. What is abundantly clear is the urgency of fixing the commander-centric structure of the current military justice system that deters victims from reporting attacks, helps result in an abysmally low prosecution rate, and, as the Sinclair case has reinforced, inspires little confidence in the integrity of the decision-making process.
The Senate had an opportunity to address the problem but declined to take it. On March 6, the Senate defeated a bold approach championed by Senator Kirsten Gillibrand, Democrat of New York, that would have removed commanders’ authority to make prosecutorial decisions and vested it in impartial military prosecutors instead. The measure garnered 55 votes — a clear majority but still five votes short of the 60 needed to overcome a filibuster led by another Democrat, Senator Claire McCaskill of Missouri.
Advocates of letting military commanders decide whether to investigate and try serious cases have insisted that abandoning this approach would somehow undermine “good order and discipline” and weaken accountability. But how?
The overhaul the Gillibrand bill offers is not about letting “commanders walk away,” as Ms. McCaskill misleadingly suggested. Nor is it about letting commanders say that sexual assault “is no longer my problem,” as Senator Lindsey Graham, Republican of South Carolina, put it.
The debate in Congress has led to some positive steps, like making it a punishable offense to retaliate against a victim who reports a crime, and sharply limiting commanders’ power to overturn jury verdicts. But the current system is a relic from the days of King George III. Eugene Fidell, a military law expert at Yale Law School who supports the Gillibrand bill, likens the new changes to “piling Band-Aids on a badly broken 18th-century museum piece.” They are no substitute for correcting the core problem — namely the lack of impartiality.
Ms. Gillibrand put it well in a February interview with Andrea Mitchell on MSNBC. “I’m not interested in an innocent soldier going to jail any more than I’m interested in a guilty perpetrator going free,” she said. “We need an objective, trained prosecutor making these decisions about whether a case should go forward, not politics, not the discretion of a senior officer or a commander who may like the perpetrator or might like the victim, who may value the perpetrator more than the victim.”
