April 24, 2023

The ‘Good Order & Discipline’ Auto-Block in Making Military Policy

[Editor’s Note: This article also appeared on The Huffington Post on Monday, June 24th.] Good order and discipline have been the refrain of the military service chiefs over the past few weeks as our most senior uniformed leaders testified strongly against proposals to allow professional military prosecutors to make prosecutorial decisions on serious offenses committed within the ranks.

But the insufficiency of this catch phrase as justification for opposing policy changes on issues of critical importance to our nation sound eerily familiar to those of us involved in previous efforts to change military policies that were likewise opposed due to “good order and discipline. “

Had we blindly obeyed, in response to the tactical deployment of this catch phrase in the past, we would not have integrated units, we would not have such a wide array of military occupational specialties open to women, and troops could still be fired if they were discovered to be gay or lesbian.

All of these changes in military policy took place against the recommendation of many senior defense leaders and under the threat that such changes would negatively impact good order and discipline and impair the ability of military commanders — and the military as a whole — to function.

We now know, however, that each of these changes not only did not corrode military and command capabilities, but instead greatly enhanced the capability and reputation of our armed forces and the ability of individual service members to serve without added fear and stress.

Currently, the authority to decide whether to charge an alleged perpetrator with a crime, as well as the authority to arbitrarily overturn convictions, lies with individual commanders who are not lawyers. Staff Judge Advocates can certainly make recommendations to commanders on whether or not to prosecute, but ultimate convening authority in courts-martial cases still lies within the chain of command.

This set-up has proven to be especially problematic for victims of sexual assault, who anecdotally report that their fear that the chain of command may not always take them seriously serves as a disincentive to report sexual assault and rape.

This means that the basic problem at issue is trust, and so the solution must be one that increases trust and confidence that accusations will be taken seriously, that victims will be protected, and that alleged perpetrators will be investigated and prosecuted. Whatever the solution that Congress decides to support, it must address the core issue of trust in the chain of command and in the system of military justice.

Good order and discipline are indeed on the line, but less because of proposed updates and modernizations to the Uniform Code of Military Justice and more because far too many survivors of sexual assault and rape, not to mention the American public, have found “military justice” to have been an oxymoron in far too many cases.

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