But the change is expected to meet stiff resistance within the Pentagon. Though Austin, who retired from the military as a four-star general only five years ago, has made clear he is open to such a shift, military leaders across the force, as well as prominent former senior officers, have consistently argued that the move would undermine discipline in the ranks and erode the chain of command.
Ernst recently signed on to a revised bill championed by New York Democratic Sen. Kirsten Gillibrand that would go further than the Pentagon panel recommendation by removing military commanders from their role in prosecuting all serious crimes, not just sexual assault cases.
“This legislation is not partisan and not political, it is simply doing the right thing for our service members who do so much for us,” Gillibrand said. “This would be possibly the most fundamental change in the American military justice system since 1775,” said Eugene Fidell, a senior research scholar at Yale Law School, referring to the Constitutional Congress’s adoption of the 1774 British Articles of War, the predecessor of today's Uniform Code of Military Justice.
“It seems like that there is greater willingness within the Department of Defense to actually entertain those changes, and that’s a difference,” said Victor Hansen, a professor at New England Law|Boston and a former military lawyer. “Commanders serve a critical role in maintaining this balance,” Brown said. “Removing the commander from the military justice process would have a significant negative effect on accountability, discipline, and readiness.”
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