Secretary of Defense Chuck Hagel briefs the press April 2 aboard the amphibious transport dock ship USS Anchorage (LPD 23) in Honolulu. (Erin A. Kirk-Cuomo / Defense Department)
The Pentagon is launching a “systemic” review of the entire military justice system that will look at how commanders convene courts-martial and impose nonjudicial punishments.
The 18-month review of the Uniform Code of Military Justice “will help ensure the continued effectiveness of our armed forces and the fair administration of justice for our service members,” Defense Secretary Chuck Hagel said in a statement.
The aim of the review is to “provide both a step-back look at ways to improve how the UCMJ operates and a close technical scrub to address any discontinuity after decades of individual amendments,” according to the announcement.
The review comes at a time of increasing concern among Pentagon leaders about sexual assault specifically and broader misconduct across the force after years of war.
The Pentagon also is under pressure from Congress to reform the UCMJ in fundamental ways. In March, the Senate narrowly rejected a bill that would have stripped commanders of their authority to oversee courts-martial of major crimes and instead transfer that mission to a new military prosecutor’s office.
Sexual assault has been a hot political issue, but for military lawyers the issues at stake are more far-reaching.
“A lot of this comes up in the context of military sexual assault but it gets to bigger issues about the UCMJ,” said Victor Hansen, a retired Army judge advocate who teaches at New England Law School.
Many of those issues involve the influence commanders have on individual cases. Currently, commanders decide whether to convene a court-martial, have authority to appoint the judge and jury and then have the power to revise the final punishment with the stroke of a pen afterward.
“There are those who argue for a far more diminished role for the commander,” Hansen said.
Hagel noted that it has been more than 30 years since the department has sought to “examine and update the UCMJ in a systematic fashion.”
Congress has changed the UCMJ several times in recent years, most notably in 2005 by rewriting Article 120 related to rape and sexual assault. That change was politically popular, aiming to put rapists behind bars and protect victims, but it was criticized by some lawyers who said it was poorly written, confusing and ineffective in practice.
The new review will be overseen by a Andrew Effron, a retired judge who served on the Court of Appeals for the Armed Forces.
Hagel stunned many at the Pentagon recently by suggesting the military has a “deep” ethical problem. “It is the responsibility of all of us,” he said in February, to root out problems such as cheating, fraud, drug and alcohol abuse, sexual assault and other forms of misconduct.
In March, Hagel appointed a Navy admiral to a newly created position as his senior adviser for “military professionalism.”