[UPDATE] Speier & Rosenthal Op-Ed Re: TJAG Lobbying

12/13/2021

"We were appalled but hardly surprised to learn that the head uniformed attorneys, known as the judge advocate generals or TJAGs, for some of the military services are lobbying Congress to remove the provision that would place the new Office of the Special Victim Prosecutor under the service secretaries and instead allow the TJAGs to retain control. To be clear, it is the TJAGs who have vociferously opposed meaningful changes to the military justice system for more than a decade. This is yet another attempt to undermine reform, no matter the damage or cost to morale, readiness, and order. And, it shows utter contempt for the principle of civilian control of the military."

Military justice reform must ensure Special Victim prosecutors are under civilian control

By Jackie Speier and Lynn Rosenthal

UPDATE: Prof. Dunlap today takes these authors to task for using the term "lobbying," and for the general notion that communication lines should be shut between TJAGs and Congress -- "To be clear, Cong. Speier and Ms. Rosenthal have every right to vigorously advocate their plan, but Congress should also welcome the views of those still-serving who may dissent from all or part of it. It is only through open-minded dialogue can we hope to devise what is really the best way to handle what everyone agrees is a critically important issue for America’s military."

Comment: I agree with Prof. Dunlap's words in the excerpt above. However, we must be careful not to convert "open-minded dialogue" into a presumption that one voice (which happens to be the unelected voice) is correct on the basis of "expertise." He has done that in the past, and that is an inversion of civilian control norms--something I said last summer.

14 Comments

Brenner Fissell

12/3/2021 12:03:42 pm

I do not agree that lobbying congress -- meaning making their desires and views known to members-- constitutes utter contempt of civilian control of the military. Perhaps I would go this far if there was evidence that they were lobbying the *chairs* specifically, in order to thwart an up or down vote by all the members (and we know there are the votes to pass it if a vote is allowed to be taken).

R John

12/4/2021 09:54:48 am

Factually speaking, the allegations of the editors about lobbying are very likely false. Servicemembers including the service Judge Advocates General are legally prohibited from lobbying Congress in their official capacities. The far more likely scenario is that members of Congress who disagree with the editors and/or have reservations about the editors’ proposals have requested the uniformed members’ views.

It is therefore very concerning that the editors are so fixed in their viewpoints that they are willing to make what are likely unsupportable allegations presumably to try to chill or discredit the viewpoints of those they disagree with. IMHO, the wholly un-objective indignation and over-zealousness of individuals like the editors in being right rather than doing right is the heart of the problem with sexual assault prevention and response and why the reams of legislation and millions of dollars thrown at the issue haven’t been successful (or at least are cast as being unsuccessful).

It's a horrible feeling to have to tell a sexual assault victim that their allegations are unlikely to hold up in a court of law or often worse, sit with them after a court returns an acquittal. Prosecutors who have experienced this know you cannot begin to feel the trauma experienced by the victim, but you can visualize and sympathize with the sense of powerlessness and frustration the victim feels when they receive no outcome or a negative outcome in the criminal justice process.

However, as one learns through bitter experience with the criminal justice process even the “best case” of a case successfully prosecuted to the end generally can’t render a victim whole because it can't take away all of the effects of the trauma. In fact victims prefer the term “survivor” which is much more descriptive of the physical and psychological trauma they not only endure through the offense, but after the offense. Survivors do a remarkable, even awe-inspiring job of overcoming the trauma, certainly with the help of medical and mental health care and family/loved one support, but mostly through their own personal fortitude and resilience... and it seems that in many cases the prosecution process, successful or not, provides very little succor.

Unfortunately, it seems like sexual assault prevention and response have become yet another casualty of identity politics and the limits of the criminal justice process in preventing sexual assault and/or mitigating victim trauma are largely ignored as the Services have IMHO become the scapegoats for a highly politicized debate that is more likely to re-victimize survivors than it is to support their recovery (and hopefully prevent the trauma to begin with).

As one illustrative example, early on the Services strongly advocated for Sexual Assault Prevention as the most realistic means to reduce sexual assault and thereby reduce the number of survivors experiencing trauma. More often than not, the Services were roundly castigated for this proposal for “victim blaming” as those who insisted on politicizing the issue myopically focus on a single solution - prosecution in military courts - and here now decades later the Services are still the punching bag for an issue for which the most obvious and effective (although still imperfect) response seems to be proactive education and prevention, not after-the-fact picking-up-the-pieces.

As a final point, IMHO the ad hominem attacks put forth by the editors are nothing short of disgraceful. The servicemembers they speak of with such derision and condescension have often made enormous sacrifices to serve and at least as far as I know they all continue to serve with honor and professionalism. Taking what is mostly likely a disagreement about the best means of achieving a public policy aim and instead casting it as an accusation of disrespect for civilian control (with zero evidence of the same) is an infamy. If CAAFLOG wishes to claim the mantle of being a reputable space for discussion and debate of military justice issues, perhaps it should avoid posting dog whistle attacks on the uniformed military who are so vital to the process.

Brenner

12/4/2021 10:03:06 am

You should take two minutes of time to read more carefully before writing a 500 word screed. These are the statements of Rep Speiers and the former chair of the DOD working group. Notice the quote marks.

12/4/2021 11:20:32 am

I apologize for the confusion. I certainly made my comments with the understanding that I was commenting on an excerpt from an article hosted elsewhere. I'm sorry I didn't make myself clearer. Of course, "screed" is often in the eye of the beholder and it's often used to try to discredit or marginalize those we disagree with it, isn't it? For example, I may have used "screed" to describe my view of Ms Rosenthal's and Congresswoman Spier's attacks on the character and integrity of uniformed servicemembers. I thought however it was too complicated of an issue to dismiss with a singular label. My post is admittedly long. For want of more time I would have written a shorter note... and unfortunately my object point is probably lost. Bottom line, I believe many servicemembers including me, share profound reservations about the proposals to pull sexual assault prosecutions into a centralized bureaucracy because the layers of bureaucracy are likely to thwart prosecutions not facilitate them. Moreover from my viewpoint, what feels like an almost singular focus to characterize this as a good guy/bad guy issue with uniformed service leadership playing the villain is not only unwarranted, but more importantly counter-productive to the aim of putting forth our best efforts to first prevent sexual assault, but also then to support survivors to the fullest. This seeming trend of attempting to score political points by vilifying uniformed leadership is not confined to one political party and it's certainly not new. It is however a drastic and troubling trend for which SAPR is illustrative, but by no means exhaustive...but perhaps my viewpoint on this is another screed... : )

12/4/2021 11:24:27 am

All good. Lots of good insights in your screed. You just directed it at the wrong people.

12/4/2021 10:15:30 pm

I suggest Mesdames Speier and Rosenthal will be very disappointed by the effects of the proposed bill. IMHO there will be fewer prosecutions for Sexual Assault as experienced lawyers will kick many of the cases currently prosecuted. Just take a case like Major Burris. It is doubtful that case would have been prosecuted if an O-6 JAG made the decision whether the Jag reported to an admiral or some bureaucrat in the Secnav's office.

Lawyer

12/13/2021 08:20:43 pm

Why are we so sure that a uniformed O-6 bent on keeping his or her pension, reputation, or possibly hope of making Flag0 will want to rock the boat? I think it's likely more meritless cases will be referred, IMHO.

Lone Bear

12/13/2021 09:47:50 pm

Lawyer,

Probably, at least for a while. But over time I think the prosecutors who tried those stupid cases will become O-6’s who kill the meritless cases.

LB

12/13/2021 10:02:57 pm

Bill requires O-7

12/14/2021 10:38:45 am

O-7 nor O-6, same difference. In fact, you can argue that an O-7, whose confirmation depends on Congress, will be *more* sensitive to political pressure than an O-6.

I remain unconvinced that this new system will be the cure that its advocates claim it will be.

Stephen Karns

12/14/2021 05:41:14 pm

I also doubt that changing to civilian oversight will mean fewer cases as I think the civilians will be under even greater congressional pressure as their jobs were created because congress decided commanders were not doing enough.

The only legal mechanism to make the weaker cases go away would be a grand jury process where the grand jurors were not subject to losing their jobs/promotions.

Poster

12/5/2021 01:25:18 pm

CAAF is the expression of civilian control in the military justice context. The JAG's are just SME's. Seems like a while back the SVC's were sending amicus briefs that were kind of like 'Me also.' in content. What difference does it make if they come from the Secretary?

1984

12/7/2021 10:05:23 am

I read the rest of their opinion in the Military Times. It is hard to take these people seriously when they have such a false and ignorant assumption of what the UCMJ is;

"Moving the decision to try a service member for sexual assault from the commander — who is not a legal expert and has a glaring conflict of interest due to a supervisory relationship to the accused — to an independent military prosecutor has been an issue of concern for survivors, advocates, and one of the authors of this piece throughout her time in Congress."

Notice he did not say one word about the accused.

Also his premise is false, 99% the Commander's "supervisory" relationship of the accused is hearing his name for the first time when they are facing charges.

Also, "not a legal expert" smacks of arrogance, typical of those in the legal profession who think a law-degree is needed to make simple judgement of character and preliminary disciplinary decisions.

The same "legal experts" told my commander to prosecute me under title 18 USC 1030 under asinine legal theories and to prosecute me again for "violating" an expired no contact order.

I have a solution for Congress. Stop trying to make the military into a frat house to test your social experiments.

12/16/2021 07:13:47 pm

Being a social experiment is the price you pay for being a separate society.

Your comment will be posted after it is approved.

CAAFlog

[UPDATE] Speier & Rosenthal Op-Ed Re: TJAG Lobbying

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