Readers may wish to consider Dr.
Elizabeth Van Winkle's
recent op-ed in
USAToday. She was the DoD civilian who served with The Judge Advocates General on the recent quickie Task Force the Pentagon created to make sure Sen.
Martha E. McSally didn't jump ship. [Not to worry --
her vote is safe.] In a nutshell, Dr. Van Winkle's view is that even though commander-centric charging has failed for years when it comes to sex offenses it should nonetheless be retained because soldiers trust commanders. She says the latest data are "a call to action" and that "[a] commander standing in front of their force with the power to criminally charge them for not abiding by orders is an extremely powerful tool within the military."
Today, commanders cannot make these [charging] decisions without legal counsel, nor can they overrule legal counsel without review by a higher commander. These safeguards and others make one thing fundamentally clear: Removing commanders from the military justice process is an empty gesture. It will have no impact on decreasing perpetration of the crime because it is limited to what happens after the crime occurs.
How about an annotated version?
Today, nonlawyer commanders whose careers are on the line if the unit reports too many disciplinary issues cannot make these quintessentially legal decisions without legal counsel whose advice they need not take, nor in sex cases but not other serious cases such as murder can they overrule [wrong word: the SJA only gives advice, which the commander either accepts or rejects] legal counsel without review by a nonlawyer higher commander. These safeguards and others [such as?] make one thing fundamentally clear: Removing commanders from the military justice process is an empty gesture. How so? The Brits and others got rid of commanders' disposition power over serious offenses with no adverse effects. It will have no impact on decreasing perpetration of the crime [how do you know, and in any event is the issue one of body counts or of public confidence in the administration of justice?] because it is limited to what happens after the crime occurs. This implies that the disposition power is a commander's only or primary tool -- which it's obviously not. What is more, the services have had years and years to get a handle on sex offenses under the current commander-centric system and have still not gotten their hands around it.
In my experience, which is admittedly becoming dated, the problem is not the commanders, it is the nature of the cases. When I left active duty, allegations that would never have seen the inside of a civilian courtroom were being taken to court-martial. We can debate whether that is a good or bad thing, but it was happening.
ReplyDeleteIt seems to me that the legal standard to refer charges to courts-martial is lower than the ethical standard for a civilian prosecutor to take a case to trial. I am therefore uncertain what advantage is to be gained by removing commanders from the process. I also believe this is an issue that, by its very nature, is an essential issue of good order and discipline within their units.
If we are wondering why there is a sudden increase in the number of these crimes, perhaps we should consider the ways that the culture of the nation has recently shifted. When a candidate who frequently and publicly demonstrated misogynistic tendencies becomes president and commander-in-chief, it is understandable---though *not acceptable*---that we would see a change in the behavior of the youngest and most impressionable members of the armed forces. As these battlefield misconduct pardons as well as the detainee abuse before 2006 suggest, our commanders' authority and ability to maintain good order and discipline is reduced when there are conflicting messages being received from the top of the chain of command.
John, thank you for this comment. Are your first two paragraphs in tension with one another? If cases are being sent to trial in the military justice system that would not be sent to trial in the civilian courts, and if CAs are not subject to the stringent ethical standards we apply to lawyer prosecutors, can we really avoid addressing whether the result is a good or bad thing? Is murder or rape "downtown" a good-order-and-discipline issue, or just garden-variety administration of justice? On the third paragraph, couldn't a lawyer-prosecutor independent of the chain of command get the war-crimes/detainee-abuse and similar messages across perfectly well by throwing the book at accuseds when the facts warrant? Is the problem whether offenses will be pursued, or is it whether unit cohesion deters reporting (especially but not only for war crimes and other battlespace offenses)? As for sex offenses, isn't it clear that, after all these years, the commander-centric charging system has failed and doesn't deserve another decade to prove itself?
DeleteGene, I do not think the paragraphs are in tension. There is a deeper issue here about the ability of our adversarial criminal justice process to handle these cases and what the proper response to that problem might be.
ReplyDeleteFor example, the creation of different Title IX standards for sexual assault allegations on college campuses seems to have been in part a product of the belief that standard criminal prosecutions were not able to properly address/curtail sexual assault in that context. We have the same demographic and similar issues in our military barracks as they have in college dorms, sororities, and fraternities. Should we consider similar, non-criminal approaches? Should we use a restorative justice model in all cases that do not involve evidence of predatory behavior? I do not know the answers here, but we should have that discussion. The myopic focus on criminal prosecution and whether we should remove commanders from that process appears to me to be preventing us from considering other ideas/alternatives.
(Relatedly, the lower threshold for referral is helpful only if one believes that sending cases unlikely to result in conviction to trial will help to reduce the behavior or encouraging reporting. I have my doubts whether that is true and, in fact, wonder if it might have (or be having, according to current numbers) the opposite effect.)
Whether an off-base sexual assault case should be handled by courts-martial is another debate entirely, in my opinion. I have significant concerns with Solario. Should the Supreme Court have dispensed with the service-connection test? I think not. I am not even sure it was consistent with the Constitution for it to do so. One step might be to have Congress reinstitute that requirement in the UCMJ.
As for the third paragraph and detainee abuse/war crime matters, I am not sure an independent prosecutor is the answer there either. I was one, and it was not a great experience. The lack of support from the chain of command (and some of their self-interested lawyers) made for tough sledding in a lot of ways. An independent prosecutor seems to naturally yield an "us-them" mentality. The problem then becomes finding witnesses and evidence.
In my view, these areas are essential aspects of good order and discipline and require a command driven process, as the other article you linked makes clear. Only a commander can set the proper tone in his or her unit. Removing the commander from the process may very well create a different and more serious accountability problems.