The Crisis Destroying Military Justice
Imagine facing criminal charges where your commanding officer—not evidence, not law—determines your fate. For thousands of service members, this isn’t a hypothetical nightmare. It’s the reality of America’s military justice system, where unlawful command influence (UCI) has metastasized into a crisis that mocks the Constitution our troops swear to defend.
The Promise and Failure of Military Justice
The Uniform Code of Military Justice (UCMJ) was born from noble intentions. Established after World War II to replace the archaic Articles of War, it promised fair trials and due process for those who wear the uniform. Over decades, Congress refined it to mirror civilian justice reforms. Today’s UCMJ contains 146 Articles, with Article 37 explicitly prohibiting UCI—the improper use of superior authority to interfere with court-martial proceedings.
Yet Article 37 has become a paper tiger. The pattern repeats with numbing regularity: commanders interfere with trials, lives are shattered, convictions collapse on appeal—and the officers who poisoned justice face zero consequences. Three cases expose this systemic corruption, where the powerful escape accountability for violations that would destroy any junior service member.
Case One: A Conflicted Commander Who Caved to Political Pressure
In 2014, Navy SEAL Senior Chief Keith Barry was convicted of sexual assault and sentenced to three years in prison. He lost his rank, received a dishonorable discharge, and was branded a sex offender for life. The verdict seemed final—until Rear Admiral Patrick Lorge made a stunning confession. In a sworn affidavit, Lorge admitted he harbored serious doubts about Barry’s guilt and wanted to overturn the conviction. But senior officials, including Vice Admiral James Crawford III, a top Navy lawyer, pressured him to uphold it anyway saying “Don’t put a target on your back.” Lorge’s testimony revealed the ugly truth: “the political climate regarding sexual assault in the military was such that a decision to disapprove findings, regardless of merit, would bring hate and discontent on the Navy from the President, as well as senators including Senator Kirsten Gillibrand.”
Read that again. A rear admiral allowed a man to go to prison because challenging the conviction might upset politicians.
Four years later, the U.S. Court of Appeals for the Armed Forces overturned Barry’s conviction, finding that unlawful command influence had poisoned the entire proceeding. Barry was cleared, reinstated, and awarded some back pay. But justice arrived too late to erase 30 months of imprisonment, the destruction of his reputation, or the psychological scars that will haunt him forever.
And Vice Admiral Crawford, the man who pressured Lorge to sacrifice Barry’s freedom for political convenience? He retired at full rank with complete benefits and has gone on to become President at Felician and Texas Southern University. No investigation. No charges. No consequences whatsoever.
The message to senior military leaders was unmistakable: interfere with justice all you want. Nothing will happen to you.
Case Two: The General Who Became Defense Secretary
The Haditha incident of 2005 triggered one of the most scrutinized military justice cases in recent memory. Among those charged was Lt. Col. Jeffrey Chessani, commander of 3rd Battalion, 1st Marine Regiment, facing court-martial for dereliction of duty.
But Colonel Ewers, the Staff Judge Advocate for 1st Marine Division, contaminated the case from within. As the investigator in Chessani’s case, Ewers was legally barred from advising General James Mattis, who commanded the division and would make critical decisions about the prosecution. Military law explicitly prohibits this conflict of interest to prevent exactly the kind of tainted advice that could corrupt justice.
Ewers violated that prohibition. He provided counsel to Mattis anyway.
According to the Navy and Marine Corps Court of Military Appeals opinion in U.S. v. Chessani, “Lt. Col. Riggs advised Lt. Gen. Mattis that Col. Ewers was ‘tainted’ regarding rendering any legal advice on the Haditha cases, because Col. Ewers had been involved in the investigation…” Mattis received explicit warning that his legal advisor was compromised—and proceeded anyway.
When Chessani’s defense team filed a motion to dismiss based on UCI, the judge agreed. All charges were dropped. The appeals court upheld the dismissal and explicitly cited the UCI that had corrupted the proceedings.
The penalty for Mattis and Ewers? Promotions. Ewers became a general and the Marine Corps’ highest-ranking lawyer. Mattis became Secretary of Defense—the most powerful military position in America.
Both men violated military law, destroyed a prosecution, and were rewarded with the pinnacles of their careers.
Case Three: Threatening Lawyers for Doing Their Job
In 2019, co-author Chief Eric Gilmet faced charges of negligent homicide and involuntary manslaughter in the death of a contractor in Iraq. His case took a sinister turn when one of his military lawyers, Captain Matt Thomas, attended a meeting with Colonel Christopher Shaw, a deputy director of the Marine JAG Corps.
In front of multiple defense attorneys, Shaw threatened Thomas’s career for his aggressive defense of clients like Gilmet. The threat was so blatant that word spread rapidly through the military legal community. Think about what this means: a senior military lawyer threatening a junior lawyer for fulfilling his ethical duty to zealously represent his client. This isn’t just UCI—it’s an assault on the Sixth Amendment right to effective counsel.
An investigation was launched—but the investigating officer was Shaw’s fellow Marine colonel and lawyer. Predictably, the investigation found no wrongdoing and actually blamed Gilmet’s legal team for the conflict Shaw had created. The system protected itself.
Gilmet’s civilian lawyer filed a motion to dismiss all charges, arguing that Shaw’s conduct had created an unconstitutional conflict that forced Gilmet to release both military attorneys. The judge agreed the government had violated Gilmet’s constitutional rights and dismissed the charges. The Court of Appeals for the Armed Forces upheld the dismissal.
Colonel Shaw’s punishment for committing UCI and threatening a defense attorney? He retired with full honors and benefits.
Why Current Reforms Fall Dangerously Short
Critics of systemic reform often point to recent changes as evidence that the system is fixing itself. The Military Justice Act of 2016, which took effect in 2019, shifted serious offenses like sexual assault and murder to independent special trial counsel. Congress addressed concerns about “the perception of a lack of complete judicial independence, as well as a commander’s control over court-martial, in part by the choosing which charges to prefer against whom and by exercising post-trial clemency.”
This was progress—but it’s dangerously inadequate. Here’s why:
The reform is too narrow. Special trial counsel handle only the most serious offenses. The vast majority of courts-martial remain under commander control, leaving thousands of service members vulnerable to UCI.
It doesn’t address accountability. The reform changes who prosecutes certain crimes but does nothing to punish those who commit UCI. Without consequences, commanders continue to interfere with impunity in cases that fall outside the reform’s scope.
It preserves the fundamental conflict. Even with special trial counsel, the same chain of command that controls your career—your fitness reports, your promotions, your assignments—still influences the environment in which justice occurs. That structural conflict poisons the well.
It ignores military culture realities. In a culture built on following orders and respecting rank, merely removing certain cases from commander control doesn’t eliminate the enormous pressure service members and military lawyers feel to defer to senior officers’ wishes.
Recent reforms are like putting a bandage on a gunshot wound—better than nothing, but nowhere near enough to save the patient.
Confronting the “Good Order and Discipline” Myth
The strongest objection to removing prosecutorial authority from commanders is that it threatens military discipline. Critics argue that commanders must maintain authority over military justice to preserve good order and unit cohesion. This argument sounds compelling until you examine it closely.
First, the current system is already destroying discipline. When service members watch commanders violate the UCMJ with impunity, they learn a corrosive lesson: military justice is arbitrary, political, and controlled by whoever wears the most stars. That doesn’t build discipline—it breeds cynicism and contempt for the system. True discipline flows from fair, consistent application of law, not from commanders wielding unchecked power.
Second, discipline and prosecution are separate functions. Commanders already possess extensive non-judicial tools to maintain discipline: non-judicial punishment (Article 15), administrative separations, negative counseling, loss of privileges, and reassignment. These tools are immediate, flexible, and perfectly suited to maintaining unit order. Felony prosecutions, by contrast, are rare, time-consuming, and fundamentally different in nature. Commanders don’t need prosecutorial power to maintain discipline—they need it to maintain control, and that control is precisely what corrupts justice.
Third, our closest allies prove the system works. The United Kingdom, Canada, and Australia have all removed or dramatically reduced commander involvement in military prosecution. Their militaries haven’t collapsed into chaos. Instead, they’ve built more trusted, more fair systems while maintaining world-class fighting forces. The notion that American service members need less legal protection than British, Canadian, or Australian troops is insulting and indefensible.
Fourth, the military already accepts civilian justice in many contexts. Service members stationed overseas often face local prosecution. Those stationed in the U.S. can be prosecuted in civilian courts for crimes committed off base. The military doesn’t implode when civilian prosecutors handle these cases. Why should we believe military prosecutors—independent of command influence but still subject to military law and culture—would somehow destroy discipline?
The “Military Is Different” Fallacy
Another common objection holds that the military’s unique mission demands unique justice. Combat readiness, the argument goes, requires different rules.
This argument fails on multiple levels. First, the vast majority of courts-martial have nothing to do with combat or readiness. They involve crimes that would be prosecuted in any society: assault, theft, drug offenses, sexual assault. Fairness in prosecuting these crimes doesn’t weaken combat effectiveness—it strengthens trust in the institution.
Second, even in combat-related cases, fairness and effectiveness aren’t opposites—they’re complements. Service members who trust the justice system fight harder, stay longer, and maintain better morale. Those who fear arbitrary prosecution become risk-averse, paranoid, and cynical. Which force would you rather lead into battle?
Third, constitutional rights don’t evaporate in uniform. The Fifth Amendment promises due process. The Sixth Amendment guarantees effective counsel and an impartial tribunal. These aren’t peacetime luxuries we discard during military service—they’re fundamental rights that service members defend with their lives. To argue that defenders of the Constitution deserve less constitutional protection than the civilians they protect is moral bankruptcy masquerading as pragmatism.
What Real Reform Looks Like
Half-measures won’t fix a broken system. We need wholesale transformation:
First, enforce Article 37 with the full force of military law. Senior officers who commit unlawful command influence must face courts-martial themselves. Every case of proven UCI should result in criminal charges. Without personal consequences, UCI will continue to metastasize. The current system where admirals and generals retire with honors after corrupting justice must end.
Second, court-martial panels must be selected from outside the accused’s chain of command. No service member should face a jury composed of officers who depend on the same commanders who brought the charges. Panel members should be randomly selected from a service-wide pool, eliminating institutional pressure and conflicts of interest.
Third, remove prosecutorial authority from commanders entirely for all felonies. Establish a professional cadre of military prosecutors overseen by the Department of Justice, insulated from command pressure while preserving commander authority over non-judicial punishment and administrative actions. This isn’t radical—it’s how most functional democracies structure military justice.
Fourth, create an independent military judiciary. Judges should be appointed based on legal expertise, not rank, serving fixed terms with robust protection from reprisal. For the most complex cases, establish standing courts-martial that include experienced civilian judges to provide additional safeguards against institutional bias.
Fifth, establish an independent inspector general with prosecutorial authority specifically for UCI violations. This office should investigate every claim of command influence and have the power to bring charges against any service member, regardless of rank. It should report directly to Congress, not the Pentagon, to ensure genuine independence.
The Real Cost of Inaction
This isn’t just about legal theory—it’s about human wreckage. Senior Chief Barry lost nearly three years of his life to a prison cell because an admiral cared more about politics than justice. Lieutenant Colonel Chessani spent years under the shadow of false charges because a general and his lawyer violated rules designed to protect him. Chief Gilmet watched a senior lawyer threaten his attorney’s career for doing his job.
These are just the cases we know about, the ones where UCI was so egregious that courts intervened and the media reported. However, these three cases are not isolated instances of commanders abusing their power. Since 1999, there have been 31 appeals where UCI was brought before the United States Courts of Appeals for the Armed Forces. How many service members right now are facing prosecution tainted by command influence that’s just subtle enough to escape judicial notice? How many are pleading guilty to avoid the risk of facing a commander-influenced jury? How many military lawyers are pulling their punches because they watched what happened to Captain Thomas?
The current system doesn’t just destroy individual lives—it corrodes trust throughout the ranks. It tells junior enlisted members that the UCMJ applies to them but not to their commanders. It tells officers that rules are for the little people. It tells defense attorneys that zealous advocacy might end their careers. It tells everyone that the Constitution they swore to defend doesn’t actually protect them.
This undermines unit cohesion, weakens morale, and damages the military’s ability to recruit quality personnel. Who wants to serve in a system where your constitutional rights evaporate the moment you put on the uniform? Who wants to risk their life for a country that won’t give them a fair trial?
A Promise Worth Keeping
Service members volunteer to defend the Constitution, often at enormous personal cost. They deploy to dangerous places, miss their children’s birthdays, and sometimes never come home. They do this because they believe in something larger than themselves—a nation built on law, not the whims of powerful men.
We owe them a justice system that honors that sacrifice. We owe them the Fifth Amendment protections they fight to preserve for others. We owe them courts that value evidence over politics, law over pressure, and truth over convenience.
Until commanders who corrupt military justice face the same accountability they demand from their subordinates, the system will remain fundamentally unjust. Until we remove the structural conflicts that make UCI inevitable, we’re just pretending to care about fairness.
The UCMJ applies to all service members, regardless of rank. It’s time we started acting like it.
The question isn’t whether we can afford these reforms. The question is whether we can afford not to make them. Every day we delay, more lives are destroyed, more trust is shattered, and more service members learn that military justice is a lie.
We must do better. Our troops deserve nothing less.
CDR Theresa Carpenter (U.S. Navy, ret.) is a 29-year veteran whose career spanned aircraft maintenance, surface warfare, and public affairs leadership, including serving as NATO’s Chief Public Affairs Officer at Allied Maritime Command. A decorated officer, she deployed during Operation Iraqi Freedom as an aircraft maintainer and later deployed as a Surface Warfare Officer aboard USS Russell (DDG 59). She is the creator and host of the Stories of Service podcast.
Chief Eric Gilmet (U.S. Navy, ret.) a decorated Special Operations Independent Duty Corpsman with over two decades of service, including multiple combat deployments with Marine Raiders in Afghanistan and Iraq. A Michigan native, he earned three Combat Action Ribbons and the Navy
and Marine Corps Commendation Medal with Combat “V.”
This article was originally published by RealClearDefense and made available via RealClearWire.
