Friday, June 17, 2016

Another view on military justice reform

Chris Bray
Chris Bray writes in this National Interest essay, "Don't Break America's Military Justice System": "The push to expand the role of legal professionals in the military, and therefore to diminish the role of military commanders, fits into a much larger context." See what you think. Comments welcome (real names only, please).


  1. From Nick Verbitsky,

    Mr. Bray says "It simply isn’t the case that military commanders are inevitably unjust", and he's right.

    But, I also don't think reformers are saying that. What they are saying, at minimum, is that the OPTICS of having a commander order a prosecution/inquiry into a soldier, and then selecting those who would sit in judgment of that soldier is troubling. At it's worst, they say it creates a terrible incentive in which a commander can go easy on someone they know/respect-it's the INCENTIVE it offers that is the problem. This issue isn't unique to military commanders. Not every Wall St. banker is a cheat or a fraudster. However, the incentive structures apparent in their businesses offer ample reasons to do just that-and they do, with what has been a frightening regularity both in incidence and scope.

    And, while its a very fair comparison in looking at how civilian justice deals w sex assaults, and its own shortcomings, that doesn't mean the incentives to be selective in punishment/prosecution of wrongdoers by commanders shouldn't be ameliorated.

    In an interesting Op-Ed in today's NYT, Gen. Stanley McChrystal offered the following on guns:

    "Some opponents of closing these gaps in our laws will continue to argue that dangerous people will obtain guns in our country no matter what, and therefore that taking steps to make it harder for them is fruitless. That is both poor logic and poor leadership."

    Similarly, arguing that the civilian form of justice doesn't do much better at prosecuting sex assaults than the MJ system, doesn't mean the MJ system shouldn't be reformed to protect vs. Undue Command Influence-particularly when we're talking about the revocation of someone's liberty.

    It remains an interesting debate, and I thoroughly respect Mr. Bray's passionate position on it, as well as his service to our country.

  2. "The health of our military culture is a national security issue." Preservation of military culture is the argument that has been used to justify the exclusion of blacks, women, and homosexuals (or at least their open service).

    I fully admit that sexual assault cases are difficult and we may not have higher conviction rates if handled by civilians. Cinviction rates are far from the only criteria to be evaluated. Unlawful command influence remains a serious problem in the military-justice system, in fact it in part derailed the court-martial in US v. Sinclair.

    Another issue for honest debate, what is the true danger of civilians investigating and prosecuting military members. Well we have an excellent case study: Fat Leonard and the 7th Fleet. If civilian prosecution truly undermines command authority and good order and discipline we should have verifiable evidence coming from the multi-year Fat Leonard case. I anxiously await that evidence.

    If not, we are just relying on opinion, i.e., "In my opinion removing commanders will be bad for military culture." We have listened to that same line to oppose any change to the military over the past 100 years.

    James W. Weirick


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