Stop me if you’ve heard this one: Donald Trump, after being asked about a national security issue on national television, gave an answer that showed he has absolutely no idea what he’s talking about.
The question this time was about rape in the military, at the NBC News Commander-in-Chief Forum on Wednesday. A father in the audience said that his daughter decided not to join the military after she saw the statistics about sexual assault, and asked Trump what he planned to do to support victims of sexual assault in the military.
Trump agreed with the man that military sexual assault is a "massive problem," and that’s true: There are too many assaults and too few prosecutions, and victims have too little confidence in the system to come forward. But Trump also said this: "I want to keep the court system within the military. It shouldn't be outside of the military. … The best thing we can do is set up a court system within the military. Right now, the court system practically doesn't exist. Takes too long."
In typical Trump word-salad fashion, he appeared to be saying at least two different things: that we should "keep" prosecutions within the military (in other words, not change the way things are done now), but that we should also "set up" a new system because the current one "practically doesn’t exist."
Advocates for victims of military sexual assault would agree with Trump that the process "takes too long," and they would also agree with his later remark that the "small number of results" and prosecutions are a problem — but the rest is total gibberish. There is no need to "set up a court system within the military," since a military court system already exists to prosecute sexual assault and other crimes. And nobody working to reform that system is currently proposing that military rape cases should be prosecuted "outside of the military," such as in a civilian court.
But if Trump is confused about how the military justice system works when it comes to sexual assault, he’s not alone. The system as it works now is incredibly confusing, including for the victims who try to navigate it. Advocates and most members of Congress agree that the system needs reform, and the debate over that reform is complicated because the system is complicated.
Yet that’s actually the biggest problem, some advocates say — the current system is much too complicated, in a way that's both annoyingly redundant and actively harmful. It's complicated in a way that does nothing but give commanders authority they don't need, and give victims a bunch of legal headaches they don't want.
Our eye-poppingly convoluted military justice system, in two charts
The road between first reporting a crime and actually going to court-martial (essentially a military trial) is long and riddled with stumbling blocks. When someone (either a military member or a civilian) is raped by a member of the military, before getting a trial the victim has to go through all of this:
Whereas if that person is raped by a civilian, the pretrial process looks more like this:
There is a robust disagreement in Congress over how to reform the military justice system when it comes to sexual assault, as I’ve explained at greater length. The most radical overhaul being proposed is Sen. Kirsten Gillibrand’s (D-NY) Military Justice Improvement Act (MJIA), which would give independent military prosecutors, not commanders, the authority to decide whether a serious criminal charge for something like sexual assault should go to trial.
Very basically, the MJIA wouldn’t take sexual assault prosecutions "outside of the military," as Trump suggested — it would just make the first chart look more like the second one in serious criminal cases like sexual assault. It would take the "convening authority" — the ability to decide whether a case goes to court-martial — away from commanders and give it directly to experienced military prosecutors instead.
Advocates say this reform wouldn't harm commanders' ability to lead. It wouldn't change the responsibility that lower-level commanders have to protect their troops and deal with unit cohesion issues. It would just take higher-level commanders, who often don't know the law, out of a highly technical legal process.
Trump isn’t the only politician who doesn’t understand this issue very well. Even some critics of the MJIA in Congress, like Sen. Lindsey Graham (R-SC), make outrageous claims that the bill would "fire every commander and replace the commander with a bunch of military lawyers." That's not even close to the truth. No commanders would be fired; a few of them, about 3 percent according to Gillibrand, would just have one less duty to deal with as part of their jobs.
Why advocates say it’s a bad idea to let military commanders decide which rape cases go to trial
The charts above were made by Protect Our Defenders, one of the leading advocacy groups pushing for the MJIA and other military justice reforms. Their president is Col. Don Christensen, who used to be the Air Force's most experienced prosecutor of sexual assault cases before he retired out of frustration with the system.
Christensen told Vox earlier this year that commanders are often redundant at best, and a major obstacle at worst, in the legal process. He said that during his career, he had to fight military bureaucracy at every turn to make even the most basic decisions — including whether a case has enough evidence to move forward to trial in the first place.
Christensen said he felt like a district attorney who had to ask the mayor for permission before charging every case. He couldn't do anything — call an expert witness, add or drop charges, strike a pretrial agreement — without the approval of the convening authority. And the convening authority was usually a very busy 2-star general or higher.
Say you strike a plea bargain on Thursday before a trial on Tuesday, Christensen said, but the commander isn't available until Tuesday. You'd have to spend all the time and money flying in witnesses and preparing for a trial that will probably never happen, just in case the commander rejects the deal.
And all of this was to get the approval of a commander who didn't know the first thing about military law. That's because he didn't have to; he has legal advisors for that sort of thing. Many commanders, Christensen said, actually consider it a nuisance to have these cases on their plate along with everything else they have to deal with.
It all sounds pretty Kafkaesque, and it's hard to see why the Pentagon thinks this system is a good idea. Indeed, it seems the Defense Department had to rely on bad information to convince Congress to keep it in place.
Yet some in Congress are still defending the DoD, bad information and all. Click here to read more about the intellectual chaos that has ensued as a result.