Military justice’s dirty little secret: the convening authority

Defense Secretary Chuck Hagel’s order this week for the Pentagon to review whether an Air Force three-star inappropriately overturned a sexual-assault conviction could trigger reform of the military justice system.

At stake is the power of the so-called “convening authority,” or military commanders who are in charge of the courts systems within their ranks.

“I don’t think it is too much to say that this could ignite a drive to remove the powers of convening authorities from courts-marital entirely. It could happen,” said Gary Solis, adjunct law professor at Georgetown and former West Point law professor. “God only knows where some politicians will go.”

Lawmakers this month have complained that Air Force Lt. Col. James Wilkerson, of Aviano Air Base, Italy, was inappropriately let off the hook when Lt. Gen. Craig Franklin, with one stroke of his pen, overturned the colonel’s November sexual assault conviction and 1-year jail sentence.

For critics of military justice, it’s the very power that the general wielded that’s the problem. In the military justice system, a convening authority can be the commander of the base, ship, or unit where the accused is based. Their ranks vary widely, from lieutenant colonels to multi-starred general or flag officers. And they hold full power over the trials, convictions, and sentences of U.S. troops.

“They have the authority to decide who to try, who will be on the court and what the outcome of the case would be, as the general did in this case,” Solis explained.

And that’s the problem. “Convening authority power has long been one of the principal objections to military justice,” he said.

In the military, what Lt. Gen. Franklin did for Wilkerson happens regularly. After a judge or jury hands down a conviction or sentence, the convening authority is allowed to lessen or eliminate criminal convictions and sentences. Often, convicted defendants beg and receive leniency from these commanders.

Proponents of the system, like Solis, argue the power to lessen punishments is a vital prerogative commanders should retain over their units. The Uniform Code of Military Justice, the argument goes, is a disciplinary tool as much as an instrument of justice. But even Solis said the Wilkerson case went beyond the pale.

“We have seen instances where commanders have lessened the punishment imposed, yes, absolutely, every day. But never so blatantly contrary to what would appear to be justice,” argued Solis, a retired Marine Corps judge advocate.

The convening authority power is codified in the UCMJ, itself a byproduct of post-World War II reforms Congress enacted in 1950.

Previously, justice was meted out by the uneven hands of commanders, leading to the phrase “unlawful command influence,” or criminal bullying by commanders who tried to keep victims or witnesses quiet, or who threatened their units with unreasonable punishments. The UCMJ gave troops the right to counsel, a courtroom, and appeal. Instead of field officers running trials unaided, their “staff judge advocates” began running the courts, advising their higher-ranking commanders along the way.

But while military courts have adopted some civilian proceedings, they have the retained the power of convening authorities to ignore courtroom decisions and dole out mercy. A convicted service member can take his conviction and sentence to the convening authority in hopes of a reduction — and often gets it.

The general’s leniency toward Wilkerson prompted outrage from senators in Washington, where sexual assault in the military has come under increasing scrutiny. Last week, in the Armed Services Committee, Sen. Claire McCaskill (D-MO) was so frustrated over the Wilkerson case that she railed about it to that day’s witness, Central Command’s Gen. James Mattis, though he had no jurisdiction in the matter.

So Hagel, on Monday, ordered the Pentagon and Air Force to review the powers given to “convening authority.” Pentagon press secretary George Little said in Tuesday’s Pentagon press briefing that Hagel ordered two reviews. First, the Air Force and its lawyers will review and make recommendations about the general’s use of that authority in the Wilkerson case. That report is due March 20. Second, the Defense Department’s general counsel will review Article 60, the UCMJ section governing the convening authority’s powers. After consulting with the top lawyers of all of the services, the counsel will present that report to Hagel by March 27.

“Secretary Hagel is determined to ensure that our military justice system works effectively,” Little said. “Our service members must know that they are protected from criminal assault by a system of laws that function promptly, fairly and justly.”

On Wednesday, the Senate Armed Services Personnel Subcommittee discussed convening authority powers after hearing testimony from witnesses including Anu Bhagwati, executive director of the Service Women’s Action Network (pictured above), who was sexually assaulted while in the military. Behind her, Maj. Gen. Gary Patton, director of DOD’s Sexual Assault Prevention and Response Office, listened.

For now, the Pentagon appears more focused on its efforts to curtail and punish sexual assault than reform the legal code. Reviewing the power of the convening authority, Little explained, is just the latest step among many the Defense Department is taking to curb sexual assault.

“I don’t think this is knee-jerk reaction. This isn’t some kind of spontaneous decision. This is part of a logical process,” he said.