How the Biden administration sees its ‘historic’ changes to the military justice system

Geoff Bennett:

Last night on this program, we heard from two attorneys with expertise in the military justice system about new changes the Biden administration has made to how the Department of Defense deals with sexual abuse and harassment in the ranks.

Tonight, we hear from the White House in response.

Here again is Laura Barrón-López.

Laura Barrón-López:

An executive order signed by President Biden last week makes the largest changes to the military justice system since its creation in the 1950s.

It transfers authority over certain offenses from commanders to a new team of independent prosecutors called the Special Trial Counsel. Those prosecutors, not commanders, will now decide whether to bring charges in cases of sexual assault, rape, murder, and other offenses.

Some military legal experts "NewsHour" spoke to have called the changes a movement in the right direction, but see room for improvement.

To discuss the new action by the president, we're joined by retired Navy Admiral John Kirby, spokesman for the White House National Security Council.

Admiral Kirby, thank you so much for joining us.

You have called this new executive order, these changes, a monumental step. Why is that?

John Kirby, NSC Coordinator For Strategic Communications:

Well, it's historic, quite frankly, Laura.

I mean, when you think about the most significant change since the Uniform Code of Military Justice was put in place in 1950. And to take a whole set of covered crimes — you mentioned a few of them, sexual assault, rape, murder, as well as others — and remove them from the commanding officer, from the chain of command, and put them under Special Trial Counsel, that has just never been done before.

So it is a monumental step. It's historic, and we certainly believe that it will help us deal better with these sorts of crimes to properly — more properly investigate them, more properly prosecute them, and, just as critically, in the case of sexual assault specifically, help restore some confidence in the judicial system by members of the military, particularly women service members.

Laura Barrón-López:

We spoke to a number of former military lawyers who pointed to three areas that they found concerning in the language of the executive order in the annexes that they say still leave some authority under commanders.

The executive order states that commanders will select the jury pool and provide that to the judge, which is then randomly selected. And it also has specific language on pretrial confinement authority. It states: "Who may direct release from confinement? Any commander of a confinee may direct release from pretrial confinement."

So that language seems to still leave some authority with commanders. What's your response to that?

John Kirby:

So let me take each in turn, if I might.

On the jury selection, it is written into laws by statute that a commander selects the members of a court — of a court-martial, a panel, and that can't be solved — that can't be solved by an executive order, because it's law. So, there would have to be legislation to change that.

On how the process will work, commanders will certainly have the ability to help provide context on the availability of members to serve. But, by the randomization that has been added into this, they don't they won't get veto authority. They won't get to — they won't get to preselect members in that regard, because of this randomization factor that's been added into the E.O., which will give the system a lot more flexibility.

And then, on your pretrial confinement question, it's very specifically designed, this E.O., to make it clear that, while, yes, commanders can assign pretrial confinement, they have that authority — they already had it before that — and that they will have the ability if, for operational readiness concerns or other concerns, to want to remove a member from pretrial confinement, that the Special Trial Counsel can override that decision by a commanding officer and demand, if there is justification for it, demand that the accused stay in pretrial confinement.

So, the Special Trial Counsel can come in over the top of a commander and demand that an accused stay in pretrial confinement. Again, they have to be able to justify it in terms of the case, like in terms of maybe the intimidation of witnesses. But there is an override capability built into this E.O.

Laura Barrón-López:

That's interesting, because we didn't see the specific override language. But is there override language for this other part of the executive order that I want to ask you about?

It's on another potential area where commanders have some authority still, on national security matters. It says — quote — "If a commander believes that the trial would be detrimental to the prosecution of war or harmful to national security, the matter shall be forwarded to the secretary concerned for action."

So they could forward it on to the secretary and essentially potentially halt the trial.

John Kirby:

Right.

I mean, the irony here with this language and why it's fresh language is, it's actually making it more restrictive for commanders. It's actually making it harder for them to stop a prosecution or an investigation going forward, because now they have to make a formal justification, based on national security needs.

Now, look, we're the United States military. The military fights wars. The military defends the country. So, obviously, we want to hear a commander out if he has national security concerns. But the bar is pretty high.

And, before, there was no stipulation that, A, he had to claim national security, he or she had to claim national security matters as a reason for involving itself in slowing down or curtailing or stopping an investigation or prosecution, and, B, that now that commander has to go, has to petition the service secretary, the civilian secretary of the Army or Air Force or Navy, in order to make that case.

So, the provision actually, as written, makes it more restrictive and places an additional burden on commanders that wasn't there before.

Laura Barrón-López:

Admiral, does the president think that more offenses, more criminal should be moved from under the commanders' chain of command over to this new Special Trial Counsel?

I know that there's many more offenses than the ones that we have talked about, including kidnapping, including retaliation, including stalking, that have been moved over to the Special Trial Counsel, but not all of them.

So, do you — does the president think that, ultimately, Congress should change the law, so, that way, all of the offenses could be moved over to independent prosecutors?

John Kirby:

The president believes it's really important to focus on these covered crimes — and you mentioned a few others. And I thank you for that — because they are so complicated, and because they are often outside the realm of what a normal commander's experience would lend him or her, their ability to investigate and to prosecute.

And we really want to focus on executing to this executive order and implementing that. And, look, as we go through this process, Laura, if we learn some things — and we might — and we might as we execute, implement this — if we learn some things that cause us to change our minds or to find new amendments or to — or to look at other articles that might — that might apply, we're certainly going to stay open-minded to that.

But we really chose a set of covered crimes that truly are difficult for the normal commander to be able to investigate, adjudicate and prosecute, because they're so complex. And that's what — that's what we're really going to put our focus on, on these covered crimes for right now.

Laura Barrón-López:

And, finally, Admiral, what has the response been like that the White House has heard from sexual assault survivors since the president signed this executive order?

John Kirby:

So we're hearing some very positive feedback from victims and from victims advocates.

And I'm glad you asked that question, because we're focusing right now on the accountability measures. And that is very important. And covering these crimes outside the chain of command, we believe, again, is historic and will have a huge effect on our ability to hold properly accountable those who commit these crimes.

Laura Barrón-López:

Admiral John Kirby of the White House's National Security Council, thank you so much for your time and for answering our questions.

John Kirby:

My pleasure. Thank you.