Did the Pentagon mislead Congress?

Sen. Kirsten Gillibrand

Richard Lardner of the Associated Press has this story raising disturbing questions about whether the armed forces misled Congress in the course of resisting Sen. Kirsten Gillibrand's Military Justice Improvement Act. One of the key arguments advanced in the thus far successful struggle to head off the necessary 60 votes in favor of the bill was that military commanders, who currently have the power to send cases to court-martial, are tougher on sex offenses than are local civilian prosecutors. Not so fast, suggests the AP story.

Local district attorneys and police forces failed to act against U.S. service members who were subsequently prosecuted in military courts for sex crimes, according to internal government records that summarized the outcomes of dozens of cases. But in a number of cases, the steps taken by civilian authorities were described incorrectly or omitted. Other case descriptions were too imprecise to be verified. 

There also is nothing in the records that supports the primary reason the Pentagon told Congress about the cases in the first place: To show top military brass as hard-nosed crime fighters who insisted on taking the cases to trial.

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The records were obtained through the Freedom of Information Act by the advocacy group Protect Our Defenders, which provided the documents exclusively to AP. Protect Our Defenders is scheduled to release a report Monday that criticizes the Pentagon's use of the cases to undermine support for Senate legislation that would mandate a major change in the way the military handles sexual assault allegations.

Editor's note: Isn't there also a logical flaw in the now-debunked claim that commanders will send cases to trial that civilian prosecutors won't, in that the real test is whether commanders will send cases to trial that an independent military prosecutor outside the chain of command would not? Of course, since we do not have such a system, no comparison can currently be made. Alternatively, should the question of who gets to decide which cases go to trial turn on what will generate the most prosecutions (the body count approach relied on by Sen. Claire McCaskill), as opposed to who is best equipped to make the charging decision? (Ask the UK, Canada, Ireland, Australia, New Zealand, Israel, South Africa, Brazil, Singapore, what they think.) In any event, hats off to the AP and Protect Our Defenders. Watch for the Pentagon salvage effort.

Postscript: The report can be accessed via a link on the Protect Our Defenders website.