Pentagon announces overhaul in how the military will investigate serious crimes

A major overhaul in how the military investigates and prosecutes sexual assaults and other serious crimes launches today as the Pentagon shifts decision-making from unit commanders to independent prosecutors to determine if an accusation should go to court martial.

Starting today, cases of military members accused of sexual assault, domestic violence, child abuse and murder —regardless of where they occur — will be overseen by an independent office staffed by specially trained lawyers the Pentagon is calling “special trial counsels,” a senior defense official said in a briefing with reporters last week. Each military branch will have its own office of special trial counsel and the lead prosecutors for each will report to their service Secretaries in the Army, Navy, Air Force and Marine Corps.

Historically, service members accused of serious crimes would be investigated and prosecuted by legal teams under the same local chain of command as the defendant, a system that many alleged created conflicts of interest for commanders. Those cases will now be handled by independent prosecutors who will decide what actions if any, from a court martial to dismissal, a case requires.

In 2025, the office authority will extend to sexual harassment cases.

The Office of the Special Trial Counsel was established by an executive order signed by  President Joe Biden in July. The independent office grew from recommendations made by ani Independent Review Commission on Sexual Assault in the Military, stood up by Defense Secretary Lloyd Austin in 2021. The DOD accepted the commission’s 82 recommendations which centered on accountability, prevention, climate, culture and victim support..

“There’s no concern for our careers about which cases we send forward or don’t send forward,” a senior Army official said, describing the incentives and motivations that an independent counsel will bring to cases. “We’re just interested in achieving justice so I think that’s where – if you’re gonna see a difference in the number or quality of cases getting referred – it’s going to be reflective of that.”

The reforms to the Uniform Code of Military Justice aim to “better protect victims and ensure prosecutorial decisions are fully independent from the chain of the command,” according to Biden’s 2023 order. For sexual assault cases, the Army, Navy, Air Force or Marine Corps office will decide whether to proceed with a court martial rather than leaving it up to military commanders – a practice long decried by victim advocates as biased and unethical.

“This shift should assure sexual assault victims that if they choose to make an unrestricted report, the case will be handled professionally and consistently with the best practices and procedures of civilian prosecution offices,” a senior defense official said.

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The Pentagon is hiring 2,000 specialized primary prevention personnel to staff the offices which will have outposts located at every military base around the world, according to officials.

“Our special trial counsel hasn’t just been sitting at home waiting for December 28 to hit before we start doing work,” the Army official said. “There’s not going to be a sudden flood that comes in and overwhelms us. We’ve already been working on those cases.”

The new offices will also be able to act on cases already underway using a discretionary “reach back” authority included in the fiscal year 2024 national defense bill signed into law by President Joseph Biden last Friday. The ability for prosecutors to reach back will come in handy for “offenses that start on one side of that 28 December date and end on the other side of it,” a Marine Corps official said. 

Certified special trial counsels will decide whether to use the authority on a case-by-case basis, the Army official said and will depend on how far a case has progressed under previous UCMJ procedures.

“If it’s the day before trial, I wouldn’t anticipate that we would come in and pump the brakes on that and try and restart a process,” the official said. “Those cases that are just being reported or had just started an investigation, those would be good candidates for us to exert authority over.” 

The military service offices have already begun reviewing recent cases that fall under the covered criminal offenses and in some cases, are providing their office’s expertise. Since September, the Navy has been working on those cases and prosecuting them when necessary. 

“We’re well aware of the cases and we’re staffed ready to continue to do those cases as well as any new cases that arise,” the Navy official said.

In the Marine Corps, officials have engaged with the Criminal Investigative Division on investigations and provided “non-binding input to the commander on those cases,” a service official said.

The new office’s debut stumbled in early December when the Army fired its top sexual assault prosecutor after a 10-year-old email surfaced in which he appeared to belittle a victim’s claims. In 2013, in his role as a military defense counsel, Brig. Gen. Warren Wells emailed his staff that “you and your teams are now the ONLY line of defense against false allegations and sobriety regret.” He told them they were the only “personal defenders” of troops no lawyers would defend, “even when all signs indicate innocence. 

The vetting process for his replacement is ongoing, an Army official said. In the meantime, Col. Robert Rodrigues will act as the lead prosecutor. 

“Just to be clear, there’s been no impact on our ability to begin exercising independent authority on December 28, and start doing our jobs,” the Army official said about the firing incident. “Our team’s in place, they’re trained, they’re resourced and ready to get to work and this change has not affected our readiness in any way.”

The newly minted offices will cover cases in the U.S. and those involving U.S. military personnel at international bases. The Navy will have offices in Japan and Italy; the Marine Corps in Okinawa, Japan; the Air Force in Japan and Germany; and the Army in South Korea, Germany and Italy.

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