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June 22, 2021

Inhofe Releases Letters from Top Military Officials Citing Serious Concerns with Military Justice Improvement and Increasing Prevention Act

U.S. Sen. Jim Inhofe (R-Okla.), ranking member of the Senate Armed Services Committee, today released letters from the nation’s seven most senior military officials describing their personal views and best military advice on the proposed Military Justice Improvement and Increasing Prevention Act of 2021 (MJIIPA). 

Three- and four-star military officials, as a requirement of their Senate confirmation, commit to providing, if asked, their personal views on a matter, even if those views differ from those of the current presidential administration.

Upon releasing the letters, Sen. Inhofe also issued the following statement:

“Any instance of sexual assault is too many, and eliminating sexual assault and harassment from our military and holding perpetrators accountable demands action — a goal my colleagues and I share. That’s why over the last 15 years, the NDAA has included over 250 provisions to address sexual assault and harassment, many of which are just now beginning to take effect.

“Given how important it is to get this right, I asked our nation’s top military officials for their personal views and best military advice on the MJIIPA. I wanted to understand what they believed would result from this legislation becoming law — would it truly reduce sexual assault or other crime in the military? Would removing the role that commanders have always played in the military justice system have any adverse effects, including to readiness?

“Their answers were, across the board, not reassuring. The service chiefs acknowledged the devastating effects of sexual assault on our military, and all were open to reasonable ideas to address this issue. However, I also heard them caution that any changes should be evidence-based and limited in scope to sexual assault and related offenses. Further, they emphasized that any change must prevent harm to military readiness, mission accomplishment and other attributes that make our military the very best in the world. I join them in welcoming new ideas to tackle this problem, but from their responses, it seems clear the MJIIPA does not meet these criteria.

“As I would expect from our military’s finest, each chief committed to striving to fulfill any law Congress enacts, given enough time and money. But I will note: This bill provides neither time nor money — it only allows for six months to make wholesale changes to the military justice system, provides zero resources for its implementation and actually prohibits an increase in new personnel to implement these massive changes. Further, it leaves reforms to the Space Force and the Reserve Components — particularly the National Guard — out in the cold.

“The input from our top brass is just one piece of the puzzle. I’ve also appreciated the chance to hear directly from troops at Fort Hood and other installations, and what they’ve said is our military needs to do better. But based on this thoughtful feedback, I don’t believe this well-intentioned bill will change anything — in fact, I remain concerned that, as written, it would not reduce sexual assault or other crime in the slightest and would complicate the military justice system unnecessarily. What we need are effective prevention measures — not legislation that has the potential to do more harm than good. For that reason, I remain opposed to the MJIIPA. I also think it’s more important than ever that this legislation be considered through the standard committee process.

“I’m grateful to General Milley, General McConville, Admiral Gilday, General Berger, General Brown, General Raymond, and General Hokanson for their candor. Like all of us, they want to create a military environment where every service member can flourish, safe in the knowledge that their teammates have their backs. I know I can count on each of these officers to keep working with me and the rest of the Armed Services Committee to see that through.”

The following are excerpts from each response Sen. Inhofe received. The full letters are also linked below. Sen. Inhofe’s initial request can be found here.

General Mark A. Milley, Chairman of the Joint Chiefs of Staff: It is my professional opinion that removing commanders from prosecution decisions…may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead. However, in the specific and limited circumstance of sexual assault, I remain open-minded to all solutions…I urge caution to ensure any changes to commander authority…be rigorously analyzed, evidence-based, and narrow in scope, limited only to sexual assault and related offenses…It is my belief we have not made sufficient progress in recent years to eliminate sexual assault, and we have consequently lost the trust and confidence of many Soldiers, Sailors, Airmen, Marines, and Guardians in the chain of command’s ability to adjudicate these serious crimes.”

General James McConville, Army Chief of Staff: I am totally committed to fixing this problem and willing to consider any solution…[M]y best military advice continues to be that removing commanders’ case disposition authority would be detrimental to the good order and discipline required for effective warfighting…If, however, Congress decides to alter military commanders’ Court-Martial authorities for major crimes, I would offer two recommendations. First, I would recommend that the law only apply to Article 120 offenses [rape and sexual assault]…Second, I would recommend that any changes to UCMJ [Uniform Code of Military Justice] authority be implemented on a trial basis of three years…Should Congress and/or my own chain of command then deem otherwise, I will well and faithfully discharge their orders.”

Admiral Michael Gilday, Chief of Naval Operations: “…I recognize a substantial number of Sailors have lost trust in our Navy’s ability to handle these cases appropriately…Therefore, I do not oppose thoughtful, evidence-based adjustments to our system that do not undermine the ability of leaders to handle misconduct rapidly and without fear or favor...My first concern is with the broad scope of offenses that would be covered by an alternate judge-advocate run process. By removing commanders’ authority to effectively respond to many of the most serious threats to good order and discipline…MJIIPA erodes the ability of commanders to create and maintain the environment necessary to effectively exercise mission command…I also have concerns with the MJIIPA implementation timeline…If MJIIPA goes into effect without careful implementation, there is significant risk that cases may be delayed during trial or overturned on appeal. This, in turn, would erode confidence in the system and re-victimize victims…Quite frankly, we will not prosecute our way to fewer cases. Rather, our efforts must begin far to the left of the crime and involve cultural transformation, education, and leadership, and accountability.”

General David H. Berger, Commandant of the Marine Corps: Difficult decisions must be made when new requirements arise without corresponding resources…If directed to create a new military justice structure and process without a corresponding increase in resources, I would be forced to reduce funding and structure elsewhere in our military legal system…As a result, I consider this bill a significant risk to readiness and mission accomplishment if not appropriately resourced…This [bill] would seem to lengthen the process, limit flexibility, and potentially reduce confidence among victims…It is unclear to me whether or not the bill would promote the interests of justice by increasing accountability for perpetrators of sexual assault…The bill would challenge the timely administration of military justice in combat and forward-deployed environments by creating delays and procedural uncertainty, distracting commanders from their combat mission. We should guard against that outcome…The bill requires execution in 180 days. That is not nearly enough time to reconfigure a military justice system that has been in place for over seven decades…No matter what changes are made, commanders must remain connected to the military justice process.”

General Charles Q. Brown, Air Force Chief of Staff: The Air Force remains fully committed to preventing and rooting out sexual assault and sexual harassment in our service. I know this requires accountability, and I am open to improving our processes that deliver justice…I do not know if removing commanders’ authority to act on certain offenses will affect the occurrence of sexual assault to the degree we all desire and need…Removing elements of authority will likely create some risk, particularly if poorly scoped, communicated, or implemented. That does not mean we should not try new measures if we believe they will increase accountability and reduce sexual assaults. However, supporting analysis associated with any proposed changes would be beneficial in determining the best approaches and the way forward on implementation…The scope of the offenses covered should be specific to the sexual assault and harassment… Implementation should reinforce commander’s responsibilities in the process, not relieve them from it.”

General John Raymond, Chief of Space Operations: “Unfortunately, our efforts to date have not made substantial progress in reducing rates of sexual assault, and although I do not take any changes to command authority lightly, I believe the time has come to consider changes…I recognize that some victims do not have confidence that their commanders can handle these cases appropriately, which may be preventing them from reporting, getting the care they need, and identifying perpetrators. Lack of trust and reluctance to seek justice are, in themselves, readiness issues…If the ability to enforce discipline in sexual assault and sexual harassment cases is to be removed from the chain of command, there is a risk that commanders may not display the same focus on prevention efforts… I will be vigilant to ensure that commanders stay focused on preventing sexual assault and sexual harassment…If the MJIIPA were enacted as written, covering a broad range of offenses, it would have the potential to adversely affect good order and discipline and weaken the readiness of our forces. Any changes such as those proposed in the MJIIPA must be properly resourced and implemented on a timeline that ensures trusted and effective administration of justice from the start.

General Daniel R. Hokanson, Chief, National Guard Bureau: “...Any approach or change to the federal military justice system should consider the impact these changes would have on the non-federalized National Guard due to our unique operating environment and authority structure…Our National Guard commanders and judge advocates must be knowledgeable and proficient in both the non-federalized military justice processes and the Uniform Code of Military Justice (UCMJ). It appears to me that these proposed legislative changes to the UCMJ would make the federal military justice practice more complex and specialized, further increasing the distinctions between the federalized and non-federalized processes…I am concerned that the scope of the proposed changes…goes beyond the military commander’s authority to address military sexual assaults to a much broader set of offenses. Such a significant change could have serious adverse impacts on the commander’s authority to execute the military justice responsibilities inherent in military command.” 

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