There is much to like about the 2022 National Defense Authorization Act, just passed by wide margins in both houses of Congress. Foremost is the $25 billion it added to programs such as shipbuilding, facilities, and tactical training—money made even more necessary to cope with the 6.8 percent inflation rate we are now experiencing.

Other welcome features include a $2.1 billion increase to the Pacific Deterrence Fund to counter Chinese’s malign influence and provisions creating commissions to examine the war in Afghanistan and to recommend improvements to the Pentagon’s resourcing process. 

But, as good as the bill is, it is not perfect. Two provisions stand out as particularly egregious: the damage wrought to the Uniform Code of Military Justice and the exorbitant increase in parental leave for secondary caregivers. Future defense authorization acts should attempt to remedy these errors.

Lawmakers insisted on changing the administration of military justice without evidence of a problem with the current system.  Indeed, the U.S. military justice system has proven its efficiency.  The conviction rate in the military is eight times higher than that of New York, for example. 

While the changes were made with the noble goal of reducing the number of sexual assaults in the military, nothing suggests that the proposed solution---substituting special lawyers for military commanders in dealing with serious crimes---will solve this problem.  Indeed, putting military lawyers in charge of deciding whether to send serious crime cases to trial will result in fewer, not more, prosecutions. That’s because lawyers can charge someone with a crime only when they conclude a case has a reasonable likelihood of success on the merits, whereas a commander (a non-lawyer, not bound by bar ethics rules) needs only to meet the lower standard of probable cause.

In a review of decisions made in over 1,000 military sexual assault cases over a period of three years, an independent panel found that there was “not a systemic problem” with commanders’ decisions to prefer sexual assault charges. Indeed, the panel found that commanders were biased toward referring charges even when there wasn’t sufficient admissible evidence.  In other words, given similar evidence, a commander was more likely to refer charges than a lawyer. 

Based on this finding, it seems likely that fewer sexual assault charges will be preferred under the new rules in the 2022 NDAA.  So much for reducing sexual assault.

While even one sexual assault is too many for the U.S. military, it’s worthy to note that female college students have a 51% greater chance of being assaulted than similarly aged women serving in the military.

Perhaps we should be grateful the final bill was missing some of the most extreme ideas contained in Sen. Kristin Gillibrand’s (D-N.Y.) “Military Justice Improvement Act.”  Those provisions included taking commanders out of the loop for all crimes (not just the most serious), transferring the responsibility for selecting jurors to lawyers, and revoking commanders’ authority to grant immunity. While lawmakers thankfully omitted those provisions, the bill still creates a complex, bi-furcated system of military justice with commanders responsible for referring cases for some crimes and special prosecutors handling others.  This will invite all sorts of legal challenges.

Another harmful provision in the NDAA quadruples parental leave for secondary caregivers, which rises from 3 to 12 weeks per birth or adoption.  Active-duty mothers are already authorized 12 weeks of maternity leave; this provision extends that benefit to secondary caregivers. 

How could more time for parents to bond with children be a bad thing? Well, in the military, it will result in the annual absence of thousands of servicemembers from formations. With over 100,000 births per year for military families, granting secondary caregivers an additional nine weeks of parental leave translates into the absence of roughly 16,000 active-duty servicemembers, the equivalent of losing an entire Army division from the force.  For a U.S. military already stretched to maintain the readiness levels needed to confront China, Russia and other bad actors, this change could not have come at a worse time.  

Kudos to the lawmakers who hammered out the 2022 agreement and ensured that for 61 years straight, Congress passed a defense authorization act. There is a lot to like in the new NDAA. But to ensure the military remains the best in the world, a couple of fixes should be made as quickly as possible.