What the FY 2022 NDAA Does, and Does Not Do, to Military Justice
By Dan Maurer
Thursday, December 30, 2021, 7:01 AM
Editor’s note: An earlier version of this essay was posted, on Dec. 15, 2021, as an executive summary on CAAFLog, where Lt. Col. Maurer serves as an editor in his personal capacity. This essay reflects his own opinions and not the official position or policies of any part of the U.S. government.
On Dec. 15, the Senate passed the National Defense Authorization Act (NDAA) for Fiscal Year 2022 by a vote of 88-11, sending the bill (which the House approved the week before by a margin of 363-70). President Biden signed the bill into law on Dec. 27.
Notably, the military justice portions of the final bill reflect a contentious compromise following competing versions that developed over the last year in the House and Senate. Conflict over the bill generated an intense amount of press coverage, a reactionary (but meant to be curative) Department of Defense “Independent Review Commission,” no small amount of opinion writing and greater than typical congressional interest in this part of Title 10. The various proposals were distinguished by—primarily—how much discretionary court-martial disciplinary authority would be removed from commanders (Would it be for some types of crime, like sexual assault, or for all “felonies” or “major crimes?”) and what kind of authority would fill the vacuum (Would it be some type of military or civilian independent prosecutorial office answering to senior civilian officials in the Pentagon rather than a disaggregated population of senior commanding officers?). In both respects, the NDAA’s reform departs unequivocally from the historical and constitutionally validated American practice that has been followed for more than two centuries, long justified by claims of senior military officials. But whenever a large institution’s internal practice is changed from the outside, it is important for those practitioners to maintain a sense of perspective. In this case, proper perspective includes acknowledging not only what the law does do but also what it does not change at all.
https://www.lawfareblog.com/what-fy-2022-ndaa-does-and-does-not-do-military-justice
