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VanLandingham's Reply

6/21/2021

 
Professional Criminal Prosecution Versus The Siren Song of Command: The Road to Improve Military Justice. Just Security, 21 June 2021.​
Fact: Military commanders do not require prosecutorial discretion over serious criminal offenses by their service members in order to ensure good order and discipline within their units.

Fact: The vast majority of U.S. military commanders – officers vested with formal responsibility for particular groupings of service members in the military’s hierarchy – do not possess prosecutorial authority over serious crimes. There are approximately 14,500 military commanders (according to the most recently available data). Only roughly 400 have the power to convene courts-martial for serious crimes, and of those, approximately only 140 actually use that power: so less than one percent of all military commanders criminally prosecute (court-martial) service members for serious offenses.

Fact: Court-martialing Black service members at a rate twice that of their white counterparts is a broken system in need of repair. Period.

​
Fact:  Sens. Gillibrand and Ernst’s proposal contemplates a streamlined version of the current system that is more efficient and reduces the current need for staffing required for commanders with prosecutorial discretion. Why Mr. Johnson does not at least engage in that well known fact is puzzling. As for Guantanamo, the Military Commissions have been a tragic failure, indeed, but by almost all accounts due to evidentiary and due process issues related to torture allegations used to extract confessions; the refusal by the government to share classified information; along with hampered access to defense counsel and a merry-go-round of judges. The claim that the current proposal will result in similar failure is simply another scare tactic by those wedded to the status quo. Indeed, it is such a poor analogy that it calls into question the soundness of the opposition more generally and the rhetorical tactics used to make their case.
Current Army JAG
6/27/2021 01:22:55 am

A couple of critiques (intended to be respectful):

Prof/Lt Col (ret.) VanLandingham wrote: "Fact: Court-martialing Black service members at a rate twice that of their white counterparts is a broken system in need of repair. Period."

While they confirm racial disparities, neither the GAO report (Military Justice:
DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial Disparities, https://www.gao.gov/products/gao-20-648t) nor the Air Force review (Department of the Air Force releases findings on racial disparity review, https://www.af.mil/News/Article-Display/Article/2453681/department-of-the-air-force-releases-findings-on-racial-disparity-review/) go so far. "GAO's findings of racial disparities, taken alone, do not establish whether unlawful discrimination has occurred"; the AF's "data shows race is a correlating factor, it does not necessarily indicate causality." Both reports suggest more study and analysis is needed.

==

Prof/Lt Col (ret.) VanLandingham wrote: "This old fallacy is designed, whether or not by intention, to preserve the monopoly held by primarily white male (given the skewed demographics at the top) senior military commanders over their largely unchecked, often opaque criminal charging power."

I'm not quite sure how something is both "designed" and unintentional. Be that as it may, 0-6 Judge Advocates in the Army also skew "white male," so unless there is a conscious decision to appoint a higher percentage of minority 0-6 JAGs to new court-martial convening authority positions, there will will not be a noticeably demographic change in this regards.

==

The Air Force Academy case seems a poor choice for either Mr. Johnson or Prof. VanLandingham to rely on, given that the case was a "hate crime hoax" as indicated in the article.

=

FWIW, I agree with transferring charging authority, but that's because, like we see with state and federal prosecutors, there is logic in having the decision-maker be legally trained and experienced and free of personal or professional bias, vice being in the chain-of-command of the offender and/or the victim.




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