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POD sends letter to Senators Tillis and Gillibrand, addressing the utilization of independent prosecutors in foreign military services

April 25, 2019

Chairman Thom Tillis
113 Dirksen Senate Office Building
Washington, DC 20510

Ranking Member Kirsten Gillibrand
478 Russell Senate Office Building
Washington, DC 20510

Chairman Tillis and Ranking Member Gillibrand,

Thank you again for the concern and leadership you have shown on the issue of sexual assault and rape in our armed services. The hearing you held last month was another example of the Senate’s vital oversight of this scourge. Chairman Tillis, during the hearing you asked several questions of other witnesses concerning the experience of our allies who have moved away from the commander controlled criminal justice system to an independent prosecutor-based system. I don’t believe you received a comprehensive answer to your question, and I wanted to bring to your attention the testimony on that very issue before the Response Systems Panel (RSP).

During a hearing, the RSP heard from eight witnesses concerning their country’s experiences after moving from a commander-controlled military justice system to a prosecutor-based system. I believe the testimony can be fairly described as glowing and overwhelmingly positive. In particular, the RSP heard from both commanders and lawyers in Australia, Canada, the United Kingdom, and Israel, and I have provided the attached comprehensive summary of the testimony that highlights the fact that our allies unanimously believe the changes have improved military justice. Below, I have included a few of examples from the testimony:

Air Commodore Paul Cronan, Director General, Australian Defence Legal Service, testified, “these reforms have undoubtedly had a significant and positive impact on efficacy, impartiality, and perceived fairness of Australia’s military justice system. This is a fact confirmed by a number of subsequent independent reviews…”

Lord Martin Thomas testified that commanders are pleased with the reforms and that “they were simply unaware of any discontent at all within the services over the removal of the CO’s powers.” He concluded, “it is believed that the incidence of sexual assault in the Royal Navy has been severely diminished by steps that we have taken.”

Professor Amos Guiora, retired Israel Defense Forces commander and JAG echoed these conclusions. “I would suggest that that increased sense of confidence is directly related, at least in Israel, to the forceful prosecution policy implemented by the JAGs who are, again, not in the chain of command.” He also noted, “the uptick in high profile prosecution of sexual assaults in Israel has clearly implicated the willingness of soldiers, men and women alike to come forward.”

Major General Steve Noonan, Canadian Joint Operations Commander, testified, “At no time did I feel our soldiers, Canadian soldiers, were less disciplined than those from other counties, nor more hesitant to execute their assigned tasks. That is to say, the Canadian military justice system worked in the theater of operations. In my view that is the highest compliment I can give it.”

Air Commodore Cronan summed up the impact of the reforms in Australia by reading from an independent review of the Australian system. “The military justice system is delivering and should continue to deliver impartial, rigorous, and fair outcomes. Enhanced transparency and enhanced oversight is substantially more independent from the chain of command, and is effective in maintaining a high standard of discipline both domestically and in the operational theater.”

The testimony is thorough and demonstrates that our allies have improved their justice systems by removing commanders from the prosecution process. While some commanders were opposed to reform, they now support the changes and believe it has strengthened their authority and improved the system. The consensus is that commanders do not feel disempowered or disenfranchised and the process is viewed as more fair to both the accused and the victim.

After many years of our allies having a prosecutor-based system, I am unaware of any movement to reverse course and return the authority to commanders in any of these countries. The great debate we are having here on the role of command is simply not occurring in the countries that have reformed their military justice process. That should tell us something. Moreover, contrary to the assertions of Lt Gen Rockwell during the hearing, I am unaware of any evidence that the reforms have made things worse on the issue of sexual assault.

I hope this information proves useful to you and the other members of the Subcommittee, and I am happy to answer any questions you may have.

Don M. Christensen
President of Protect Our Defenders

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