A Reformist Response

5/28/2021

Recently there has been an eruption of blog posts from opponents of the military justice reforms championed by Sen. Kirsten Gillibrand, Rep. Jackie Speier, and other federal legislators. Many of these are simply rehashes of things the same or other authors have argued in the past. As the Administration and Congress move from the still-unpublished recommendation of the Independent Review Commission appointed by Defense Secretary Lloyd Austin to taking a definitive stand on the pending proposals, a few basic points need to be kept in focus:

First, the numbers of sexual assault in the armed forces have essentially not budged despite past legislative initiatives and assurances from the service chiefs.

Second, the acquittal rate in sex-offense courts-martial is sky-high. Sending unwinnable cases to trial is unfair to everyone and detracts from public confidence in the administration of justice.

Third, one ally after another has removed from commanders the power to decide who shall be prosecuted for serious crimes. They have not done so to drive down the number of sex offenses; rather, they did it out of regard for the need for independent and impartial decision making in the administration of justice in the armed forces. And, a number of these changes arose before the prevalence of sexual assaults became a public issue. Commanders are neither independent nor impartial.

Fourth, 21st century Americans in and out of uniform recognize that prosecution decisions for serious and oftentimes complex criminal matters (as opposed to minor disciplinary offenses) are best made by persons with legal training.

As we observe Memorial Day, all Americans should be grateful to our military personnel. It is not enough to mouth the words "Thank you for your service." We should show our appreciation by ensuring that they will have the benefit of a state-of-the-art legal system that reflects contemporary values and in which they and we all can have confidence.

Fair seas and following winds to all. Brenner Fissell and Phil Cave.

6 Comments

Richard Stevens link

5/29/2021 02:22:13 pm

I agree that we should all be incredibly grateful to those who are serving in the military, and they all deserve a military justice system that not only includes a "state of the art legal system" but is - above all - fair. It is my personal opinion, based on my experience, that fairness is not the politicians' goal in proposing the latest change of replacing commanders with lawyers in the referral decision.

The points you raise give far too much credit to the politicians who are seeking these latest changes. First is your point that the number of sexual assaults has not budged. To that I would say these are allegations and extrapolated statistics, not proven numbers, and there is a significant issue in how "sexual assault" is understood and defined when the statistics are being reported.

Second is your point that acquittal rates are sky high, and that sending unwinnable cases to trial is unfair to everyone and detracts from confidence in the system. I agree with your statements, I just don't agree with the point I believe you're trying to make. I don't see high acquittal rates as a negative. That represents the factfinder rejecting a case that was pressed forward to trial. Your point seems to suggest that the politicians who want this latest change of largely removing commanders from the referral decision would be satisfied if all the questionable, dubious, weak cases that are now being referred to trial by commanders would be dropped by the lawyers who are going to be replacing them. I have seen no evidence in any statement by Sen. Gillibrand, Rep. Speier, et al. that they would be satisfied with alleged sexual assault cases being dropped, as long as that decision comes from lawyers instead of commanders. These politicians are the proponents of "believe the victim." They want more allegations and cases to go to trial, and they want more actual convictions. They aren't seeking fewer cases being referred, so that the rate of conviction goes up. I have never heard them argue that too many weak cases are being pushed to trial. I have only heard them argue that too few cases are going to trial, and the conviction rate is also too low. So, it is my belief that politicians are under the impression that replacing commanders with lawyers will cause an increase in the number of cases that are referred to trial, and there is a hope that the rate of conviction will (somehow) also rise. This is the flaw in their logic. They don't agree with your position that there are too many unwinnable cases being pushed to trial, so that is not a problem they are seeking to fix. At least this is my view, based on my interpretations of the arguments they have made.

I don't disagree with your statements about why allies have replaced commanders in the system, or that these decisions benefit by inputs from legal professionals. But, again, you're giving way too much credit to these politicians. Convening authorities are not going rogue, en masse, and referring weak and unwinnable cases to trial against the advice of their JAGs. All of these weak and unwinnable cases are being referred to trial because convening authorities and their JAGs don't want to see their careers destroyed - like Lt Gen Franklin or Lt Gen Helms. So, the referral decision is increasingly a rubber stamp and the convening authorities are following the advice of their JAGs. These politicians are still stuck on the narrative that commanders are the problem. When lawyers replace the commanders, and the numbers don't satisfy the politicians, the lawyers will now be seen as the problem these politicians seek to fix.

These politicians are not seeking a state of the art legal system. They believe that if a sexual assault allegation is made, it is true, it should be believed, it should go to trial, and there should be a conviction. Dropped cases are not acceptable to them, regardless of who makes that decision. Acquittals are not seen as the result of unwinnable cases being referred, or factfinders doing their jobs, they are seen as failures of a broken system.

At the end of the day, you may believe it makes more sense to have lawyers making these decisions, and you may be absolutely right, but your belief about why this makes more sense does not mirror the reasons the politicians want to make this change. You want a state of the art legal system in which the best decisions are being made. They just want outcomes and numbers that satisfy them. If (and when) that does not happen, your state of the art legal system will be their new target.

Just my observations...

CTC

5/29/2021 03:53:36 pm

Great comments, Mr. Stevens. I couldn't agree more with your analysis. My only hope is that when referral authority is given to O-6 JAGs (as provided in the draft legislation I've read here) they will not feel the same political pressure to "rubber stamp" cases as Generals. Senior JAGs shouldn't feel the same political pressure an upwardly-mobile NAF/CC does; they're likely not promoting past O-6 and thus not as beholden to congressional approval.

If this holds true, we should expect to see fewer questionable cases referred to CM, thus restoring some measure of justice to the system. That is, until the next round of Congressional meddling...

Tami a/k/a Princess Leia

5/30/2021 08:44:43 pm

CTC, but that's the problem--JAGs are just as beholden to the Senate (including Gillibrand) for their promotions as commanders. "Senior JAGs" feel just as much, if not more, political pressure than JAGs pending promotion to O4.

Former DC

5/30/2021 06:10:05 pm

Spot on, sir. Spot on!

One quibble - even if the accused is acquitted of the worst offenses that would require registration - they still often face GCM convictions for the accompanying NJP level offenses that the prosecutor tagged onto the worksheet to guarantee a conviction.

Nathan Freeburg

5/30/2021 08:58:46 pm

Word.

Isaac Kennen

5/30/2021 08:01:59 am

Swapping commanders for senior judge advocates is cosmetic.

The changes that are truly necessary to do justice by our service members:

1) amend art. 52 to require unanimity in all convictions and sentences by impaneled members

2) amend art. 25 to eliminate the preference for commissioned officers on courts-martial panel and require the services to appoint members regardless of their grade or the grade of the accused

3) amend art. 25a to require 12 members in all cases where the maximum term of confinement is 6 months or more

4) amend arts. 26 and 66 to make the positions of military judges and appellate military judges permanent assignments that are under, and directly accountable to, the U.S. Court of Appeals for the Armed Forces rather than the Judge Advocates General

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