Thursday, January 18, 2018

Accountability: lessons from naval history

Captain Michael Junge of the Naval War College has written an outstanding, detailed post for War on the Rocks concerning the application of military justice to U.S. Navy vessel casualties. He notes:
Where death of sailors is involved, courts-martial are not always certain. When the USS Stark (FFG 31) was struck by two missiles killing 37 sailors, Navy leaders chose to not court-martial Capt. Glenn Brindell, his executive officer, or his tactical action officer. Cmdr. Scott Waddell was not court-martialed for his actions in command of the USS Greeneville (SSN 772) that killed 9 Japanese citizens. Cmdr. Martin Arriola was not court-martialed after the USS Porter (DDG 78) was struck by another vessel in 2012.
There have been occasional courts-martial for commanding officers in the Coast Guard as well for collisions and groundings, regardless of whether lives have been lost. For example, the O-5 commander of USCGC Owasco was taken to a general court-martial following a grounding within sight of the U.S. Coast Guard Academy. (The trial counsel acidly described him as having been a passenger on his own ship.) More recently, the O-4 commander of USCGC Mesquite, a buoy tender operating on the Great Lakes, was prosecuted following a grounding that resulted in the loss of the cutter (but no loss of life), although the conviction was later overturned and he was simply punished at Admiral's Mast.

In 1999, President Bill Clinton abolished loss of numbers as a punishment. As Jay M. Fidell (a former Coast Guard military judge) and the Editor wrote in 2001 in the Naval Law Review:
. . . Since, especially for crimes of command, dismissal or brig time are highly unlikely to be adjudged in a court-martial, and since involuntary separation can be effected through a board of officers (unless the offender chooses to retire or otherwise "go quietly"), abolition of loss of numbers means that essentially the same sanctions--notably, letters of reprimand--can be imposed at admiral's mast as are likely to emerge from a court-martial.
     The net effect of abolition, therefore, coupled with the rise of administrative measures such as removal from promotion lists, detachment for cause, retirement grade determinations, and the like, seems to be either to mark or to accelerate the demise of the general court-martial as the forum of choice for the administration of justice in cases involving crimes of command by naval officers.
     This evolution may make sense, but it is worth pondering since it is not without cost. It entails a rejection of the court-martial apparatus with all of its highly-touted protections for the individual (proof beyond a reasonable doubt, cross-examination of witnesses, "blue ribbon" juries, resolution of legal issues by a trained judiciary, to name a few) that have been developed especially over the last 50 years, as well as loss of the incalculable benefit of increased public confidence that justice has been done. Shifting a category of cases from the trial forum to a command-focused forum of, if anything, even greater antiquity, seems anomalous. Moreover, shifting to what may seem a more lenient forum a category of cases in which the accused is always an officer can be expected to generate consternation among enlisted personnel, not to mention the public. A court-martial can still reduce an enlisted member's pay grade; it can no longer even reduce an officer's seniority within a pay grade. The separate disciplinary treatment of officers and enlisted personnel has become a little more separate, and crimes of command have seemingly been decriminalized, the UCMJ notwithstanding. 
     Beyond all these considerations lies the loss of something even more elusive. The Joint Service Committee's explanation for abolition was right on a certain level: loss of numbers had become virtually a museum piece. It was essentially a 19th or even an 18th century sanction struggling to survive in a 21st century Navy. It had a certain anachronistic quality that tied the naval present to the naval past. Indeed, it also had an unmistakably ritualistic ring to it, like the old requirement that holiday colors be displayed when a general court-martial was in session. Even today, precise seniority has consequences at every turn, not simply for deciding who gets to be president of a court or board or who gets which quarters, but also, which ship renders passing honors and who salutes whom. Issues of seniority continue to pervade naval life. At the risk of sounding like old fogies, given all this, were we too hasty in throwing loss of numbers over the side? Will we one-day regret having done so?
Eugene R. Fidell & Jay M. Fidell, Loss of Numbers, 48 Naval L. Rev. 194, 198-99 (2001) (footnote omitted).

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  1. Compare the "Seaman's Manslaughter Statute." By the twelfth section of the Act of July 7, 1838 (today codified at 18 USC section 1115), Congress made negligence or inattention to duty by the captain of any steamboat or vessel punishable by imprisonment of up to ten years when the captain’s action or inaction results in the death of any person. See, e.g., United States v. Lussier, 2013 WL 673752 (D. Minn 2013).

  2. John Byron — If brought to courts martial, these cases will be resolved on the question of whether or not the law was violated. Not on whether it might have adverse (or salutary) effect on future actions by commanding officers. When you kill sailors, there should be a price to pay beyond having workplace troubles with your employer.


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