Are commanders boycotting the UCMJ?

LTC (R) Frank Rosenblatt, JA, USA

Retired Army JAG Corps Lieutenant Colonel Frank Rosenblatt writes here for Military Times about Defense Secretary James N. Mattis's recent memo about commanders' use (or nonuse) of the UCMJ. Excerpt:

Avoiding civilian casualties does not guarantee mission success, but failing to reckon for them virtually guarantees mission failure. Operation Iraqi Freedom and its progeny ended in 2011 not because U.S. forces had accomplished their mission or because they were defeated on the battlefield. Rather, Iraqis had grown so incensed at a lack of accountability for civilian casualty incidents that their government refused to continue to confer acceptable status protections for U.S. forces to remain in country. In Afghanistan, the strategic setbacks from civilian casualty incidents are well documented.

With few exceptions, military commanders talk about the importance of avoiding civilian casualties to military success. Yet also with few exceptions, they fail to employ the UCMJ to prevent and punish civilian casualty incidents.

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The rights of the accused deserve equal attention. If the 16 service members involved in the Kunduz incident did in fact suffer career-ending consequences through administrative measures ― again, we don’t know ― it is troubling that they did not enjoy the same rights to defend themselves as they would have enjoyed through the UCMJ.

The UCMJ reflects the timeworn balance of accomplishing the military mission with the rights of the accused, as Mattis noted. “The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it.”

He could have added: “Or lose it.”