Scholarship Saturday: We hear drums, drums in the deep

It’s been a little over 9 years since the Sundance Institute decided to fund production of The Invisible War, a documentary film by Kirby Dick concerning sexual assault in the U.S. military. The Invisible War ended up winning the Audience Award at the 2012 Sundance Film Festival (as well as other awards), but its greatest impact was felt in the nation’s capital. Pre-release screenings of the film were held for members of Congress, their staff, and senior Pentagon leaders.

With the release of The Invisible War, the military establishment was called to a reckoning for its perceived inability to appropriately handle sexual assault. That campaign of scrutiny, driven by data that has, at times, tended to be more anecdotal than empirical (discussed in detail in this column, here), has prompted a dramatic erosion of command authority. Secretary of Defense Leon Panetta’s 2013 decision to deny junior officers the authority to dispose of sexual assault cases was a reaction to having recently viewed The Invisible War.

That contraction of command authority is still in place, but it was only the beginning. Later that year, Congress enacted Section 1702 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2014 (Public Law 113-66), thereby gutting the efficacy of Article 32 pretrial investigations while simultaneously sapping commanders of their authority under Article 60 to grant clemency in any serious case, not just sexual assault cases. That expulsion of command from the post-trial process was made complete by Title LIX of the NDAA for FY 2017, which has made commanders mere surplusage in the post-trial process for serious offenses.

These dramatic raids executed against command authority in the military justice system have invited a wholesale reexamination of the foundations of the military justice system. Command authority over the military justice system has never sat well, but that is not the only feature of the system that has been in tension with the American sense of justice. As the Congressional Research Service commented only a few months ago:

A perennial concern has been the perception of a lack of complete judicial independence, as well as commander’s control over courts-martial, in part by choosing which charges to prefer against whom and by exercising post-trial clemency.

Report R46503, Military Courts-Martial Under the Military Justice Act of 2016, Congressional Research Service (August 28, 2020) at 1.

In our eagerness drive commanders out of the handling of sexual assault cases, we have awoken skepticism towards the military justice system at large. The system now stands to be overrun by inequities “older and fouler” than injustice in one class of cases.

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Inequity 1: Commanders are more prone than is appropriate to prosecute sex offense cases despite insufficient evidence.

A subcommittee of the Judicial Proceedings Panel [JPP] first warned in 2017 that sexual assault cases were being prosecuted despite lacking evidence:

The consensus among [both government and defense] counsel interviewed during [the JPP’s] site visits was that the combination of a less robust Article 32 process, pressure on convening authorities to refer sexual assault cases to court-martial, and the low standard of probable cause for referring cases to courts-martial has led to cases being referred to courts-martial in which there is little chance for conviction. Many counsel felt that the result has been a high acquittal rate in sexual assault cases, which, in turn, has caused military members to question the fairness of the military justice system.

Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases, Subcommittee of the Judicial Proceedings Panel (May 2017) at 22. (The JPP subcommittee’s report was discussed in detail in this column, here.)

The JPP subcommittee’s fears in 2017 that commanders routinely abuse their prosecutorial discretion in sexual assault cases, to the detriment of the accused, was borne out when the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) completed its October 2020 Report on Investigative Case File Reviews For Military Adult Penetrative Sexual Offense Cases Closed in Fiscal Year 2017. The DAC-IPAD report found that, in cases that went all the way to verdict, the file materials upon which commanders made their prosecution decision only satisfied the probable cause standard 89.4 percent of the time. When those case file materials were evaluated against the higher “sufficient admissible evidence to obtain and sustain a conviction” standard that is used by United States Attorneys Offices, they only met that bar 68.9 percent of the time. Report at 56.

The work of the JPP subcommittee and DAC-IPAD show that, perhaps, the practice of commanders improperly pursuing cases for which there is insufficient evidence is a greater threat than the poorly-evidenced narrative that commanders shield suspected offenders from justice.

Inequity 2: Court-martial guilty verdicts are not required to be unanimous, and the command picks the members of the court-martial who sit in judgment.

The practice of commanders pursuing improvident prosecutions is made worse by the fact that, because verdicts are not required to be unanimous in the military, it is easier to get a conviction in a military courtroom than any other court in the United States. Those two inequities put together – a pattern of pursuing improvident prosecutions coupled with the ease of obtaining a conviction when there is no requirement for unanimity – raises, substantially, the risk of wrongful convictions for military members. This risk has captured the attention of prominent military justice advocates, like David “Bull” Gurfein, a retired Marine and the CEO of United American Patriots, who has taken to the media of late to make complaints such as this:

The UCMJ has some key aspects which do not afford military personnel the same degree of presumption of innocence that you’d see in a civilian court. For example, the jury. In a civilian court, you need a unanimous jury verdict. In a military court, you don’t. Even for capital cases, where you may be putting people away for life, they only need three-quarters of the jury to get a conviction. So the scale is ticked against the accused.

But it’s actually worse than that. The convening authority (the person who oversees whether or not you go to this court-martial) actually oversees the prosecution, the defense, and the judge, and selects the jury. So, the jury comes from those who serve under his or her command.

Ellis, Asher, David Gurfein: Advocating on Behalf of Accused American Service Members, MerionWest (December 30, 2020). (This column has previously covered the work of United American Patriots as regards service members accused of war crimes, here.)

Mr. Gurfein’s concerns regarding the lack of a unanimity requirement in military verdicts appear to be supported by the United States Supreme Court. As this column covered, here, in 2019 the Supreme Court’s decision in Ramos v. Louisiana abolished non-unanimous verdicts in criminal cases in all civilian jurisdictions, with Justice Kavanaugh observing during oral argument that:

[The practice of allowing non-unanimous verdicts] is rooted in a – in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.

There has not yet been a case presented to the Supreme Court to test the Ramos decision’s application in the military jurisdiction. However, there does not seem to be a good rationale for why an exception should apply. The allowance of non-unanimous verdicts in trials by court-martial appears to be a vestige of the past, overripe for reevaluation.

Inequity 3: Military judges lack the independence required of true judicial officers.

As noted above, the Congressional Research Service has advised Congress that "the perception of a lack of complete judicial independence" is "a perennial concern" for the military justice system.

The Congressional Research Service is right: the lack of judicial independence in the military has, indeed, been a matter of great concern. As this column covered, here, the Court of Appeals for the D.C. Circuit’s 2019 decision on a writ petition in the Al-Nashiri case aptly demonstrated the problem of having an executive branch officer pretend to be a judicial officer. In that case, the D.C. Circuit Court of Appeals disqualified then-Chief Judge of the Air Force, Vance Spath, from serving as the judge in Al-Nashiri’s military commission on the basis that Spath was applying for a post-retirement job as an immigration judge in the United States Department of Justice (DOJ) while simultaneously presiding over the Al-Nishiri case, where DOJ attorneys were participating.

If Spath’s applying for a job with the DOJ while DOJ lawyers were appearing before him was a judicially-disqualifying conflict of interest, then it is hard to imagine how a military judge – who already has a job with the DOD while DOD lawyers are appearing before them – would not have an even worse conflict of interest.

Indeed, as this column has covered in the past, here, a consensus has started to form in the international community that having criminal cases presided over by military judges is no longer permissible. Our friend, India, recently argued, for example, in the Jadhav case, that a trial which is “presided over by a judge who is independent of the executive” is an “indispensable element of due process as it is understood in present times with the evolution of human rights jurisprudence.” Further, India argued that the fact that an accused may have the right to seek judicial review of military proceedings in the civilian courts “can hardly be a substitute” for providing an independent judge in the first place. Reply of the Republic of India, Jadhav Case (India v. Pakistan), April 17, 2018, at 52.

With decisions like the D.C. Circuit Court of Appeals’ in Al-Nashiri and statements from our close strategic partners such as were made by India in the Jadhav case, the continued use of military judges who, under Article 26 are “assigned and directly responsible to” the same Judge Advocate General who oversees prosecutors, is increasingly indefensible.

Inequity 4: The Department of Defense has proven unable or unwilling, year after year, to address racial disparities in the administration of justice.

The military justice system’s failure to address its racial disparities is long-standing, and has been commented on in this column before, here.

As far back as 1972, a “diverse collection of civilians and military officers” were commissioned to study the problem. Everett, Robinson, The New Look in Military Justice, 1973 Duke L.J. 650-701, 662 (1973). Their 4-volume Report of the Task Force on the Administration of Military Justice in the Armed Forces concluded that the military justice system suffered from intentional discrimination, but also from systemic discrimination that resulted in a racial disparity in punishment rates. In its opening memorandum, the Task Force diagnosed the causes of that systemic discrimination as being:

[T]esting, assignment and promotion practices, minority officer shortage, insufficient funding and support for DoD equal opportunity and human relations programs, unfairness and the perception of unfairness concerning military justice[,] [. . .] off-base housing and recreation segregation, over-regulation of personal appearance and group expression, policies which unnecessarily limit communication to the English language, peer group pressure resulting in social polarization and ‘reverse discrimination.’

The Task Force then set out four volumes worth of recommendations.

It is therefore inexplicable how off-guard the DoD appears to have been taken by the May 2019 General Accountability Office (GAO) report, “Military Justice: DOD and the Coast Guard Need to Improve their Capabilities to Assess Racial and Gender Disparities” (GAO-19-344). That GAO report found that the military services have failed to reliably collect the data necessary to track whether they are making progress towards addressing racial and ethnic disparities in the administration of justice. Nonetheless, from the data available, the GAO was able to determine that racial and gender disparities exist in investigation, disciplinary actions, and punishment imposed against service members in the military justice system. Further, the GAO concluded:

[Although] DOD and the military services have taken some steps to study racial and gender disparities in the military justice system over the last several decades[,] they have not comprehensively studied the extent or causes of any disparities.

GAO’s findings are damning. It is indefensible for the military services to have not attempted to comprehensively study the causes of racial disparities they have known about since at least the Task Force’s report in 1972. The response that the Air Force gave when watchdogs like Protect Our Defenders sought data regarding the problem raise concerns of a different sort: Air Force Concealed Materials Showing Racial Disparity in its Ranks, Advocacy Group Says, Military.com (Pawlyk, Oriana, 27 May 2020).

It is in that context – the military services’ demonstrated inability or unwillingness to adequately address racial disparities in the administration of justice – that Congress began drafting the NDAA for FY 2021. With the President’s veto of that legislation now rendered barren, the following provision will come into effect, tasking the Comptroller General to review the military justice system’s handling of its racial inequity problem:

SEC. 547. Comptroller General of the United States Report on implementation by the armed forces of recent GAO recommendations and statutory requirements on assessment of racial, ethnic, and gender disparities in the military justice system.

(a) Report Required.—Submit to the Committees on Armed Services of the Senate and the House of Representatives a report, in writing, on a study, conducted by the Comptroller General for purposes of the report, on the implementation by the Armed Forces of the following:

(1) The recommendations in the May 2019 report of the General Accountability Office entitled “Military Justice: DOD and the Coast Guard Need to Improve their Capabilities to Assess Racial and Gender Disparities” (GAO-19-344).

(2) Requirements in section 540I(b) of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116-90, 133 Stat. 1369; 10 U.S.C. 810 note), relating to assessments covered by such recommendations.

William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, H.R. 6395, 116th Cong. § 547 (2020) (vetoed by the President; veto overridden by the House of Representatives by a vote of 322 Yea, 87 Nay, and 21 not voting; veto overridden by the Senate by a vote of 81 Yea, 13 Nay, and 6 not voting).

Essentially, the Comptroller General has been tasked by Congress to grade the Department of Defense’s and Department of Homeland Security’s racial justice homework on 7 questions. Those 7 questions can be grouped into 4 bins: data collection, analysis, corrective action, and reporting.

The data collection tasks DOD and DHS are to be graded on are:

1. Whether the Secretary of the Army (SECARMY), Secretary of the Air Force (SECAF), Secretary of the Navy (SECNAV), and COMDT have developed the capability to present servicemembers’ race and ethnicity data in their  investigations and personnel databases using the same categories of race and ethnicity established in the December 2018 uniform standards for the military justice databases [the creation of uniform standards for military justice databasing was required to be complete by 23 December 2020 per the NDAA for FY2017, Public Law 114-328 § 5504, 130 Stat. 2962] (GAO-19-344 at 68-69);
   
2. Whether the SECARMY, SECNAV, and COMDT have considered the feasibility, to include the benefits and drawbacks, of collecting and maintaining complete information for all nonjudicial punishment cases in their respect service databases, such as information on the servicemembers’ race, ethnicity, gender, offense, and punishment imposed (GAO-19-344 at 70); and
   
3. Whether Commandant of the Coast Guard (COMDT) has modified the Coast Guard’s military justice database so that it can query and report on gender information (GAO-19-344 at 68).
   
   The analysis tasks the DOD and DHS will be graded on are:
   
4. Whether the SECDEF has issued guidance that establishes criteria to specify when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed, and that describes the steps that should be taken to conduct such a review (GAO-19-344 at 70); and
   
5. Whether the SECDEF has completed an evaluation to identify the causes of any racial, ethnic, or gender disparities identified in the military justice system (Public Law 116-90 § 540I(b)(3)(A), 133 Stat. 1370).
   
   The corrective action task DOD will be graded on is:
   
6. Whether the SECDEF has taken steps, as appropriate, to address the causes of any racial, ethnic, or gender] disparities identified in the military justice system (Public Law 116-90 § 540I(b)(3)(B), 133 Stat. 1370 and GAO-19-344 at 70).
   
   And, the reporting task DOD will be graded on is:
   
7. Whether the SECDEF has ensured the Joint Service Committee on Military Justice, in its annual review of the UCMJ, considered an amendment to the UCMJ’s annual military justice reporting requirements to require the military services to include demographic information, including race, ethnicity, and gender, for all types of courts-martial (GAO-19-344 at 69-70).
   

In summary, the attention that the military sexual assault crisis has brought to the military justice system has awoken a sense of scrutiny that extends well beyond the handling of sexual assault cases. Continued commander involvement in the system is now held at risk. The continued use of executive-branch judges in courts-martial is assailable. The persistence of non-unanimous verdicts appears vulnerable. And, the failure of the Department of Defense to adequately address its racial disparities has been given to the Comptroller General for study. The coming years may bring great change to the practice of military justice that make the evisceration of Article 32 and Article 60 appear like minor wounds. Indeed, it appears that in rendering Article 32 and Article 60 inert, proponents of reform are just getting started:

They have taken the Bridge and the Second Hall. . . . We cannot get out. . . . Drums. Drums in the deep.

Tolkien, J.R.R. The Fellowship of the Ring. New York: Houghton Mifflin Company, 1994 (Chapter V, The Bridge of Khazad-Dum, Galdalf the Grey reading the Book of Mazarbul’s last entry).

Isaac Kennen

Scholarship Editor