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Military leaders promise to address systemic racial disparities in the military justice system

A sunset as seen from the Wasp-class amphibious assault ship USS Iwo Jima in February.) (Mass Communication Specialist 3rd Class Dominick A. Cremeans/U.S. Navy)

Disparities in how white U.S. troops and service members of color are treated in the military justice system have persisted for years and new efforts are needed to understand racial bias and its consequences, senior officers told a congressional panel Tuesday.

The officers, all military lawyers, acknowledged years of data showing that black service members have faced investigations, courts-martial and other forms of discipline more frequently than white service members in a system in which commanders have the power to decide how to prosecute.

“We must understand that how preconceptions and prejudice can affect both the investigation and disposition of misconduct,” said Lt. Gen. Charles N. Pede, the Army judge advocate general. “While my experience tells me that we have an extraordinarily healthy system of justice, I also recognize that we simply do not know what we do not know. It is our job to discover what needs fixing and to fix it.”

The officers spoke about the issue at a hearing of the House Armed Services Committee’s military personnel subcommittee after the release of reports detailing racial disparities in military justice. Rep. Jackie Speier (D-Calif.), the panel’s chairwoman, said senior defense officials must acknowledge biases in the system and look for solutions.

“The way things have always been done are wrong,” she said. “The results are repugnant.”

The hearing, titled “Racial Disparity in the Military Justice System — How to Fix the Culture,” was held after the nonpartisan Government Accountability Office and the nonprofit Protect Our Defenders released reports showing that black service members are punished more frequently than white service members, and as protests against police brutality and racism following the police killing of George Floyd continue across the country.

Lawmakers recently included a provision in the 2020 defense spending bill, the National Defense Authorization Act, that would require the Pentagon to track the race, ethnicity and gender of those facing court-martial and to identify causes for any disparity. Doing so, the lawmakers and military officials agreed, will help understand the issue.

The GAO found that black and Hispanic service members were more likely to be tried at court-martial than their white counterparts and that the services do not record information about race and ethnicity uniformly, making it difficult to identify problems. Military officials said they are already working to collect more information.

Protect Our Defenders said in a report released last month that while the Air Force had created a working group to address racial disparities in military justice, it conducted a “superficial review” of the issue and Air Force leaders ignored its recommendations.

Don Christensen, the president of Protect Our Defenders, told the committee members that his organization’s most recent report is based on the results of a lawsuit it filed against the Air Force. The service had declined to comply with a Freedom of Information Act request seeking data about how it addressed racial disparities that Protect Our Defenders detailed in a 2017 report.

The 2017 report, relying on information released through FOIA, showed that black service members were substantially more likely than white service members to face punishment or military justice, and that the disparities had existed for years. Black airmen were 71 percent more likely to face court-martial or nonjudicial punishment, an administrative proceeding used to address less serious misconduct.

Christensen, a retired Air Force colonel and former military prosecutor, said he does not think that innocent people of color are frequently being tried for acts that they did not commit. Rather, he said, it is more likely that “others are getting the benefit” and leniency from commanders.

The Air Force announced recently that its inspector general will scrutinize disparities in its military justice and career advancement opportunities.

Lt. Gen. Jeffrey A. Rockwell, the Air Force judge advocate general, told the panel that black men below the rank of staff sergeant and with less than five years of service are nearly twice as likely to be punished than their counterparts.

“Today, while we believe that we no longer have intentional discrimination in our processes, the fact is that racial disparity in the aggregate persists,” he said. “This demonstrates the complex and challenging nature of the issue.”

Maj. Gen. Daniel J. Lecce, the top Marine lawyer in uniform, told the committee that the disparities demand action.

“Training and education serve as the fundamental components of eliminating racial bias,” he said. “To this end, the Marine Corps is pursuing the inclusion of unconscious bias training curriculum at every level of professional development.”

Vice Adm. John G. Hannink, the Navy judge advocate general, said his service is working to train commanders and prosecutors about unconscious bias and how it can affect their decisions.

“This is not a panacea,” he said. “But we can’t let up."