Critics have said that Defense Secretary Pete Hegseth’s replacing the chairman of the Joint Chiefs of Staff and the Army, Navy and Air Force judge advocates general (TJAG) threatens our “apolitical” military. This concern is misplaced. The real concern is not personnel changes, but rather the politicization of the military justice system that occurred during previous administrations.

Nowhere is this politicization more apparent than the prior administration’s changes to the Uniform Code of Military Justice, stripping military commanders of authority to maintain good order and discipline. Under the previous military justice system from 1950–2023, commanders, not lawyers, decided how to dispose of cases when a service member committed an offense, reflecting the unique nature of warfare and fundamental importance of good order and discipline. Recent statutory changes have gutted this command authority.

Politicization of the military justice system began about 30 years ago with media scrutiny on high profile cases such as the Tailhook incident; Aberdeen Proving Ground, Md., drill sergeants charged for sexually assaulting trainees; and other scandals. In 2011, activists led by current California Gov. Gavin Newsom’s wife, Jennifer Siebel Newsom, produced “The Invisible War,” a purported documentary about sexual assault in the military. This film put the false narrative of a military sexual assault “epidemic” into the mainstream and triggered a series of terrible policies, culminating in the 2023 transfer of UCMJ disposition authority from commanders to an “independent” JAG officer.

Yet, the military’s rate of sexual assaults is actually lower than civilian jurisdictions, military victims report sexual assault at a higher rate than their civilian counterparts, the military prosecutes a higher percentage of sexual assault crimes, and the military conviction rate of the percentage of allegations is higher than in the civilian sector. A woman in college has a 51% greater risk of being sexually assaulted than a woman serving in the military.

Facts were irrelevant as politicization of the military justice system became an everyday reality under President Barack Obama. And as U.S. Court of Appeals for the Armed Forces Judge Scott Stucky described, the dangers of this presidential and congressional influence caused a “perceptible chill over the entire military justice system that ... affect[ed] the right of an accused to a fair trial.”

For example, in 2012, one Coast Guard case reflected court stacking — given external pressures regarding sexual assault cases, to better ensure guilty verdicts, the panel (jury) was stacked with female service members, most of whom had previously served as victim advocates.

In 2013, Lt. Gen. Craig Franklin decided not to refer Airman 1st Class Brandon Wright’s case to a court-martial based on evidentiary deficiencies. Thereafter, the Air Force TJAG told Franklin’s legal adviser that not referring this single sexual assault allegation to trial would put the Air Force in a difficult position with Congress, and “absent a ‘smoking gun,’ victims are to be believed and their cases referred to trial.” The secretary of the Air Force then transferred the case to another jurisdiction, ensuring referral to a court-martial, and issued Franklin an ultimatum to retire or be fired. (Ultimately, Wright was acquitted after the panel deliberated a mere three hours.)

In perhaps the most flagrant instance of politicization impacting military justice, in 2014 senior Air Force JAGs conspired to have a military judge removed from only sexual assault cases because the prosecution was unhappy with his past rulings.

In 2015, after reviewing a Navy SEAL’s rape conviction, Rear Adm. Patrick Lorge, the convening authority, concluded that the prosecution had not proven its case and the accused had not received a fair trial, but the Navy Deputy TJAG, (later appointed TJAG) recommended he deny clemency, advising him “not to put a target on his back.” In denying clemency, Lorge later described his reasoning: “At the time, the political climate regarding sexual assault in the military was such that a decision to disapprove findings, regardless of merit, could bring hate and discontent on the Navy from the President, as well as senators including Senator Kirsten Gillibrand.”

In another sexual assault case, politicization was apparent during deliberations when two senior ranking panel members told members that based on the current political climate, the Army could not appear “weak or soft in dealing with sexual harassment and sexual assault.” The panel president (foreman) then asked members how the Army Chief of Staff‘s emphasis on sexual harassment affected their decision. Unsurprisingly, the panel found the accused soldier guilty.

President Joe Biden began his term by directing Defense Secretary Lloyd Austin to appoint a committee — the Independent Review Commission on Sexual Assault in the Military — to conduct a 90-day “independent, impartial assessment of the military’s current treatment of sexual assault and sexual harassment.” With only three of 12 members having ever served, and a chairperson who The Huffington Post called a “feminist activist,” the review was anything but impartial. Predictably, the commission recommended removing UCMJ authority from commanders, despite a lack of evidence that such action would enhance military justice. Biden rubber-stamped the recommendations, ordering disposition authority for major crimes including sexual assault transferred from commanders to “independent” military prosecutors, which was codified by the FY22 National Defense Authorization Act, effective Dec. 27, 2023.

In 2023, the secretary of the Army fired Brig. Gen. Warren Wells, the Army’s chief “independent” prosecutor, based on an email he sent 13 years prior in which he told subordinate defense counsel that they were the “ONLY line of defense” in protecting a soldier’s liberty from false allegations due to a hyper-politicized military justice system. This raised serious questions as to whether the “independent” prosecutors could truly be independent.

Our military and military justice system should not be used as a tool to score political points. Any changes to military policy going forward should be based on an educated, measured approach rather than hasty reactions to biased media coverage and false perceptions. Our service members deserve better.

Lisa Schenck is a retired U.S. Army colonel with over 30 years of experience with the military justice system, including as an active-duty Army judge advocate serving as an appellate judge, prosecutor, special assistant U.S. attorney and assistant professor at the United States Military Academy, West Point. She is the George Washington University Law School associate dean for National Security, Cybersecurity, and Foreign Relations Law and teaches Military Justice as a Distinguished Professorial Lecturer in Law. She authored numerous articles and “Modern Military Justice: Cases and Materials, 4th Ed.” and co-authored, with David Schlueter, “Military Criminal Justice: Practice and Procedure, 11th Ed. “