As news reports continue to reveal that military veterans, military retirees and possibly active-duty personnel participated in last week’s attacks on Capitol Hill, the secretary of defense is now faced with determining how the military will provide the most just and fair accountability. The secretary should appoint a “consolidated disposition authority,” or CDA, with one senior commander to handle all allegations of misconduct by all military personnel associated with the Jan. 6 violence.
Navy rioters, if there are any, should not receive more favorable (0r harsher) treatment than those in the Army—yet that could happen if the secretary does not quickly establish a uniform process for handling all similar cases. While the military’s Uniform Code of Military Justice provides a standard set of criminal offenses and procedures for trial by court-martial, there is almost plenary discretion vested in non-lawyer military commanders across the military branches to decide whom to court-martial, and for what, with inadequate guidance as to both.
This results in unjustifiable variances regarding how the services handle certain crimes—court-martialed in one for marijuana, lesser nonjudicial disciplinary action in another for the same offense. Such potential differential treatment of similar conduct cannot occur with the crimes of last week.
The Department of Justice and U.S. prosecutors should be allowed to take the lead in any prosecutions of military personnel involved even though there is shared jurisdiction. We believe prosecution for serious federal crimes such as seditious conspiracy and insurrection, regardless of the offender’s military affiliation, should be tried in civilian federal court. With civilian institutions the direct victim of last week’s insurrection, now is the time to emphasize that federal criminal processes work—such action would constitute both actual and poetic justice.
But given the strong possibility that military leaders will desire to handle actions against military members, it is critical that the secretary of defense move now to establish a CDA with one general or admiral, supported by a senior military lawyer, tasked with deciding what disciplinary or criminal action, if any, is to be taken against active-duty and regular component retirees. (Aside: there are serious constitutional issues raised by court-martialing retirees, as a federal judge recently concluded.)
The defense secretary has authority to create a CDA position, as well as ample precedent. The infamous Tailhook scandal in 1991 involved so many U.S. Navy members, serving in units dispersed around the globe, that the Navy created a CDA to provide accountability. More recently, the secretary of the Navy in 2014 appointed a CDA for crimes associated with what is known as the “Fat Leonard” bribery scandal. And in 2012, the Commandant of the Marine Corps appointed a three-star general officer as CDA in response to the circulation of a video showing several Marines urinating on a corpse in Afghanistan.
While these previous “one-stop shopping” CDAs resided purely within one service, because their underlying scandals involved personnel purely from a single branch, last week’s assault on democracy allegedly included service members from numerous branches. It is vital that the secretary of defense ensure that the investigation of—and if necessary, punitive action against—any active-duty or regular component retirees not remain stove-piped within any one branch of the armed services. Uniformity, consistency, and level-headedness need to prevail.
The public needs to be assured that the armed forces take seriously the acts of military personnel that endanger the republic. The public also should be able to trust that all responsive actions will be fair and uniform across the entire Department of Defense. Furthermore, the defense secretary owes it to the millions currently honorably serving that if any of their colleagues are found to have committed serious acts of misconduct and civil disturbance, they will be held appropriately accountable through fair processes.
It is time for the secretary of defense to act and appoint a CDA.