Washington Post Editorial Board Responds to Ft. Hood Report

12/13/2020

Link here (paywall).

"Some reforms have been instituted, but while they are laudable, problems persist. Advocates for survivors as well as some military experts say the fundamental issue lies with granting commanding officers, who have an inherent conflict of interest, the authority to investigate and prosecute wrongdoers. Legislation that would provide for investigation by independent units with special training has been championed by Sen. Kirsten Gillibrand (D-N.Y.), but despite bipartisan, majority support it has twice failed to overcome filibusters backed by fierce lobbying from the Pentagon."

5 Comments

Poster

12/14/2020 09:46:13 am

When was the last time we looked at our cadre of commanding officers, and sincerely thought that, on average, they handled an investigation thoroughly, fairly, impartially, and efficiently? How little of this has anything to do with the business of preparing their units for operational missions?

I don't usually agree with Sen Gillibrand - but I think there's something to be said for rescuing commanding officers from the quagmire that is military justice - let them keep NJP, but if something is court-martial bound, call in someone with the independence, training, and specialized experience to handle the process. Honestly, it seems like it would be a win on all fronts:

(1) Flag officers no longer have to worry about being hauled in front of Congress for 'mishandling' sexual assault investigations;
(2) UCI becomes far less of a concern;
(3) Defendants don't get sent to trial 'just to see what happens'

Clinging to the legal fiction that the glacially slow court-martial process has any impact on good order and discipline isn't helping anyone.

Dwight Sullivan

12/14/2020 11:43:39 am

[Standard disclaimer: I make this comment purely in my personal capacity; it should not be imputed to anyone or anything else.] Note that the WaPo editorial's point about investigations appears to be uninformed. It is already required that every unrestricted sexual assault allegation be referred to and investigated by a military criminal investigative organization (NCIS, Army CID, Air Force OSI). Commanders aren't allowed to investigate such allegations. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, sec. 1742(b), 127 Stat. 672, 979 (2013); DoDI 5505.18, Investigation of Adult Sexual Assault in the Department of Defense at para. 1.2 (2017, as revised).

Nathan Freeburg

12/16/2020 04:03:39 pm

In the real world, we all know that UCMJ is already essentially driven by the lawyers, except in the Marine Corps. They're the only ones where commanders do random things and then order the lawyers to support. In the other services a GCMCA may turn down a PTA or Chapter 10/4/SILT over an SJA's advice but that's about the extent of commanders operating independently of their lawyers.

Scott

12/17/2020 04:05:48 pm

I think that is right. Commanders rarely deviate from their SJA’s advice.

However, SJAs absolutely tailor their advice to protect their commanders, which, in the vast majority of cases, means advising referral, especially if a 32 found PC. Removing commanders from the decision tree would, theoretically, reduce the subtle pressure to protect them from backlash.

The DAC-IPAD’s recent recommendation might accomplish a similar goal by giving the SJA and commander an “out” by saying “yes there is PC, but there is not enough evidence to responsibly go forward.”

"Let me talk to your Actual."

12/17/2020 02:20:45 pm

Poster.
I'm glad to see that you are joining the discussion. And I have no problem with you taking up the gauntlet you appear to be. Keep asking questions and contribute where you can. But I think that you deserve your own handle.

Your comment will be posted after it is approved.

CAAFlog

Washington Post Editorial Board Responds to Ft. Hood Report

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