Major General Charles J. Dunlap, Jr. (Ret.) recently published these interesting thoughts about recent incidents of misconduct by U.S. military personnel and how to minimize future incidents.

20 Responses to “Maj Gen Dunlap’s interesting analysis of recent military misconduct cases”

  1. Joseph Wilkinson says:

    An Army lawyer recently warned that “reports from deployed judge advocates show a nearly unanimous recognition that the full-bore application of military justice was impossible in the combat zone.” An updated Uniform Code of Military Justice should…eliminate unnecessary duplication and bureaucracy, better leverage technology and streamline sentencing processes. That will go a long way toward dispelling the idea the system is too slow and too unwieldy to use in the field.

    That man ought to read MAJ Gregory’s Army Lawyer piece for sure.

  2. Charlie Dunlap says:

    Joseph,

    Thank you for taking the time to read my op-ed and provide a comment.  Actually, I did read Maj Gregory’s excellent article and was privileged to serve on an ABA panel with him last December on this topic.  I do think his article establishes that in selected circumstances where significant resources can be be devoted to the effort, you can sometimes replicate in the field a ‘civilianized’ version of military justice.  However, I believe that a carefully reading of his very well-done piece does not necessarily rebut some key points in Maj Rosenblat’s equally thoughtful earlier article in the Army Lawyer.  Suffice to say, I am of the view (and I do recognize that reasonable people can differ on this) that there are things we can do to make the military justice system more portable and user-friendly in the field, yet at the same time rigorously preserve Constitutional rights of those accused.   In any event, when we get to the point where the SecDef has to lecture troops about discipline, we need to look hard at the process that is supposed to support it.  Thank you again for your comment.  Charlie Dunlap   
     

  3. stewie says:

    I am struggling to see the linkage between streamlining our military justice process, and things like servicemember urinating on dead bodies, or the like.
    Perhaps that is because I think the idea of general deterrence is somewhat overrated. I don’t think the folks who did their business on those dead bodies thought about, cared, or were reflecting on a possible court-martial. I certainly don’t think they were focused on how streamlined it was.
    We have a series of possible mechanism for addressing misconduct in war zones from expedited chapters and A15s all the way to court-martial, either in theater or back in the rear. I don’t think we need to water down our system. I don’t see the huge improvement we’d merit from doing so to make it worthwhile.
    I’m also concerned about spillover. “If it’s good enough for deployed Soldiers why isn’t it good enough for Soldiers in the rear” is what we will hear once we start watering down some of the protections of “civilization.”

  4. Joseph Wilkinson says:

    Sir, thank you for your kind words. 

    MAJ Rosenblatt’s article, which I have in front of me, mentions three areas where he thinks the accused’s rights should (or maybe-should) be curtailed to make military justice work overseas: (1) the right to live production of witnesses, (2) the right to civilian counsel, and (3) the right to refuse nonjudicial punishment and demand trial.  (Army Lawyer, Sept. 2010, at pages 31-33).   I think MAJ Gregory’s piece quite effectively shows that you can have these rights, very broadly, in a deployed practice. 

    One of MAJ Linneweber’s suggestions, that “military and political leaders” should stress the need to try cases in theater, seems to have been done during MAJ Gregory’s tour, indeed to have been at the heart of the successes he describes – and on that point I think the two articles agree, that the will to prosecute in combat zones is vital to making that happen. (I prosecuted during both my own Iraq tours and heartily concur with both authors on that one.)

    But when you write that you want changes to  eliminate “unnecessary duplication and bureaucracy” and “streamline sentencing processes,” I then wonder – which duplication and bureaucracy?  The right to investigation under Article 32?  Legal review and appellate rights?  (There was some good discussion of the less formal review available for small-sentence cases here recently.)  Something else?  (That’s not a problem MAJ Linneweber discussed.)  The CM sentencing procedures I know are quite streamlined already, certainly compared to civilian cases, and I don’t see how to streamline them further in a way that makes deployed practice better (this isn’t one of MAJ Linneweber’s points – the witness issues he identifies, for example, by law are much less onerous for sentencing than for the merits).  

  5. Joseph Wilkinson says:

    (I changed “Rosenblatt” to “Linneweber” – whoops!)

  6. RY says:

    I need help on a few points.  First, I don’t understand why it is imperative for trials to be held in a combat zone.  I am probably missing something here but IMHO, even a streamlined trial occupies much needed resources.  Some subject matter is also best dealt with away from combat zones, like CP cases.  Additionally, I don’t think we can take away experts from computer cases, cases with PTSD or mental health issues, or other forensic-based cases.  Traveling experts to the AOR is also not easily done and perhaps more costly than practical.  Further, I don’t buy the deterrence argument of most of these offenses.  Consider the photos with suicide bombers or deceased nationals: 99% of those deployed would never think this appropriate.  Let’s face it, those who think it a good idea to take a picture (i.e., evidence) of these things, are clearly not thinking rationally enough to be deterred.  

    Secondly, I didn’t fully get why a streamlined process is necessary.  It seems to me this argument rests first on the notion that we need to do more trials in the AOR/combat zones (see my questions above).  Assuming that is true, what about the trials need to be streamlined?  One of the things our metrics in the AF are now uncovering is how much of a delay is attributable to trial process and how much is attributable to investigation.  Assuming for a moment the trial process needs fixing, what is redundant or excessive?  I too am concerned about the slippery slope and combat trials becoming the norm CONUS, but I’m certainly open to streamlining where the adversarial process is not unduly sacrificed in the name of speed.  Our soldiers sacrifice too much to have the government burden of proof lessened or their entitlement to a vigorous defense curtailed just because they are deployed. In some ways, the fact they are deployed should compel more vigorous protections, not less.  In any event, help me understand,   

  7. Charlie Dunlap says:

    Colleagues,
     
    Thank you all so much for your comments.  Although they deserve ma more extensive treatment than I can provide at the moment, allow me to share a couple of –top-of-the-head thoughts.
     
    Stewie: I agree with you that those who desecrated the bodies probably gave no thought to the military justice system.  But doesn’t that kind of suggest that the military justice system has so atrophied that the idea of punishment for something they surely knew was wrong did not even occur to them?
     
    Regarding “watering down the system,” I am not in any way suggesting we ought to have a system that doesn’t meet, and where practicable, exceed Constitutional minimums.  That said, I think we have forgotten that today’s system is much more than the Constitution would require.
     
    The question is, exactly what does the Constitution require?  In this respect I would invite your attention to Judge Crawford’s dissent in U.S. v. Mizgala, 61 M.J. 122 (20050 where she notes:
     
    When Congress passed the UCMJ in 1950, there was some question as to the applicability of the Bill of Rights to members of the Armed Forces. Fifty-five years later, the Supreme Court still has never expressly held that the Bill of Rights applies to servicemembers. In United States ex rel. Innes v. Crystal, 131 F.2d 576, 577 n.2 (2d Cir. 1943)(citing Ex parte Quirin, 317 U.S. 1 (1942)), the court stated, “The Fifth and Sixth Amendments are, of course, inapplicable to courts-martial.”
     
    Moreover, as the Supreme Court said in Burns v. Wilson (1953) “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”  Those demands of discipline and duty, I would suggest, might necessitate disciplinary processes that will ensure the efficacy of the system in the austere combat environment, especially given the importance of discipline in an age when incidents such as the body desecration can be instantly transmitted around the world to the detriment of the mission.
     
    Perhaps it is helpful to review the purposes of the military justice system as I sometimes think we fail to appreciate as much as we should the intended differences with its civilian counterpart.  Specifically, the manual provides;
     
    The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.
     
    It seems to me that everyone gets the “promote justice” piece, but rather fewer people are aware of the other purposes, let alone the over aegis of “strengthening the national security of the United States.   It seems to me that we can do something to “promote efficiency and effectiveness” without compromising those Constitutional rights intended to apply in a military justice setting.
     
    In any event, the UCMJ (and the Manual) is already replete with passages that address combat circumstances, so it is intrinsic to the Code (indeed, most military justice systems) that it is supposed to apply differently in wartime and, indeed, war zones.   In fact, in some respects even civilian courts recognize this.  Wouldn’t you agree, for example, that the Classified Information Procedures Act permits things that but for the paramount national security interest, would not otherwise be permissible in any court?
     
    RY:  You asked why it was “imperative” for trials to be conducted in a combat zone.  Here’s my rather subjective view: I don’t think that misconduct ought to be a ticket out of a combat zone.  Period.  People will do weird things to get out of combat (which is why the Code denounces malingering in Art 115, isn’t it?  And criminalizes cowardice in Article 99?)
     
    And I do think that trials in-theater make the disciplinary process much more tangible and real, and therefore “assist in maintaining good order and discipline.”  Also, I don’t think it is necessarily always in the interest of the accused to yank him out of his unit, and try him far from those who might better understand the exigencies and circumstances in which a crime is alleged to have occurered.
     
    Finally, trial at the situs of the offense is deeply embedded in our concept of criminal justice.  People affected need to see the process work.  This is why, I think anyway, Article III of the Constitution requires the trials be “held in the State where the said Crimes shall have been committed.”
     
    Joseph:  You asked for details about improving the military justice system.  Again, you deserve a longer answer than I can give you right now, but here are a couple of quick thoughts:
     
    –       Increase the jurisdiction of summary courts-martial (or mandatory bench trial SPCM) to six months (which, I think would pass Constitutional muster Baldwin v. New York, 399 U.S. 66 (1970).
    –       Require acceptance of nonjudicial punishment in contingency areas (as is the case today for those embarked on a vessel).
    –       Eliminate the requirement for Article 32s.  These are an artifact of an era before the rise of professional investigatory agencies and seldom service their original purposes.  Unlike the sometimes Kafkaesque yet fully Constitutional grand jury proceedings, Article 32s have too often metastasized into virtually full blown trials.  There is no Constitutional reason to require a case to be tried, essentially, twice, or to put witnesses through the trauma of testimony twice.
    –       Eliminate member sentencing (except in capital cases); use a sentencing report in lieu of a hearing.
    –       Expand the use of video teleconferencing for witness testimony in the case in chief, even over the objection of the accused (but subject to a military judge’s determination that doing so will still result in a fair trial).
    –       Explore the use of hearsay, to include even testimonial hearsay, under circumstances where a national security imperative exists (as may be the case in some combat situations).
    –       Establish an independent judicial officer of some sort to preside over hearings at drug labs (and perhaps other labs and facilities) where the reliability of test results can presumptively be established and documents created that would obviate or at least minimize the need to call experts and others. 
     
    There are probably other things that can be done (yet still protecting the rights of the accused) as well if we really thought about it, and did so with an entrepreneurial, out-of-the-box mindset sort of way. 
     
    Finally, we have to do something about the confused state of UCI.  I am convinced that too many commanders think that any command influence about military justice or disciplinary matters is, ipso facto, unlawful command influence.  This has caused too many, I think anyway, to distance themselves from the process more than needs to be the case. 
     
    I fear we have commanders alienated from the system (for a number of reasons) at the very time when it is becoming clearer than ever before that there is a very direct relationship between force discipline and mission success.
     
    To be sure, I don’t have all the answers, and probably some (all?) of my ideas to address the issue are not good ones, but I think we all make a grave mistake if we think it ought to be business as usual when the SecDef sees the need to take the unprecedented step of lecturing the uniformed force about the need for better discipline, and the deleterious effect indiscipline is have on our operations. 
     
    My hope is that those brighter and more talented than me will take a hard look at the system and come up with ideas as to how it might better address the military justice systems’ purposes as set forth in the Manual.
     
    Thanks again, Charlie Dunlap

  8. stewie says:

    Addressing some of your responses:
          1.  But doesn’t that kind of suggest that the military justice system has so atrophied that the idea of punishment for something they surely knew was wrong did not even occur to them?
    I don’t think so, I think it suggests the limitations of general deterrence. I also think it suggests that being in a combat environment is going to engender actions that aren’t caused by reflective thinking.
         2.  In any event, the UCMJ (and the Manual) is already replete with passages that address      combat circumstances, so it is intrinsic to the Code (indeed, most military justice systems) that it is supposed to apply differently in wartime and, indeed, war zones.  
    Yes, but much of that deals with punishments (re: increasing them) and certainly there are some situations that would require differences with the civilian system, like your example of classified information, but that’s no different than what would be done state-side.
         3.  I don’t think that misconduct ought to be a ticket out of a combat zone.  Period.
    Fair enough, the problem is, commanders don’t have time to deal with problem Soldiers back in the rear, they REALLY don’t have time to deal with them in combat. So, the practical answer is that those Soldiers are going back home, whether they make a brief stop at the Joint Regional Correctional Facility on the way back or not notwithstanding. Your proposal is not going to keep more offenders in the combat area because the commanders aren’t going to want them around.
         4.  I do think that trials in-theater make the disciplinary process much more tangible and real, and therefore “assist in maintaining good order and discipline.”
    Maybe, although those trials usually take place at a centralized location, away from the troops. All they generally know is the guy is gone, he got into trouble, and he aint coming back. Maybe they find out what the sentence was, often they are a bit busy worrying about other things to worry about whether PVT Snuffy got six months and a BCD for smoking hash or he got a supercharged Chapter 14/SCM. From that perspective, the tool that gets rid of them faster might actually be better for good order and discipline for all but the most major offensives, which might explain why commanders opt for other than court-martial more often overseas than at home.
    As for some of your suggested revisions:
    What does hearsay have to do with the exigencies of combat? That doesn’t sound like something designed to take into consideration deployment realities.
    In my experience, most cases tried overseas are judge alone anyways, so what would getting rid of member’s sentencing do to appreciably make things better?
    Article 15 turndowns also don’t seem to be a major issue overseas, so what would mandating A15s appreciably do to make things better?
    Getting rid of the article 32 has negative implications BOTH for defense and in many cases government (as it is often also the first chance the government has at really evaluating the case).
    The video witness part makes sense as something that can be talked about as does the drug thing.
    Again, I think we are learning that war equals bad things happening, which aren’t going to be solved IMO by tweaking our court-martial process. The problem, as most are, is better solved at the unit level.

  9. Joseph Wilkinson says:

    RY – First, I don’t understand why it is imperative for trials to be held in a combat zone.  

    You should definitely read both MAJ Rosenblatt’s article (Library of Congress link here) and MAJ Gregory’s (not available at LOC yet, sadly).  They both have good arguments in favor of trying cases fast and in theater  (both agree that it should happen, though they don’t agree on how practical it is to do).  MAJ Rosenblatt is especially concerned with the PR side (making sure the locals understand that we do punish our own), and MAJ Gregory with the general benefit of getting justice done fast – he points out that trying cases in the rear and sending witnesses back can be even more disruptive than trying them forward and sending witnesses that way. 

    Some subject matter is also best dealt with away from combat zones, like CP cases.  Additionally, I don’t think we can take away experts from computer cases, cases with PTSD or mental health issues, or other forensic-based cases.

    One of my 2008 IZ prosecutions was contested CP – I don’t say it was easy but it can be done, and it was right to do it there.  And we did bring our USACIL civilian expert into theater to try it.  The defense didn’t get an expert (not for want of trying!) because they weren’t able to demonstrate the need for one to the judge’s satisfaction – there isn’t a blanket right to experts or reimaging, as you know. 

    What MAJ Gregory’s article shows is that, even when civilian experts are granted to the defense (as they sometimes were in the practice he describes), it’s possible to try cases in theater, and fast – if you have the will, and the command support, to do it.   If you try these articles, I think you’ll be impressed, regardless of which you find the more persuasive.

  10. Don Rehkopf says:

    My old friend Maj Gen Charlie Dunlap knows a thing or two about trying cases, both from the prosecution perspective (as I got to defend them for a long period of time) and also having been a military judge.  But (as we have in times past) I disagree with some of his analysis as his logic is slightly flawed.  But, in principle I do agree that the system can be tweaked a bit to make it more efficient.

    1)  Grand Juries still serve a valid screening purpose for dubious cases, especially in jurisdictions such as New York’s where there can be defense input into the Grand Jury process.  Article 32’s were never intended to be the equivalent as the Legislative History demonstrates.  Yes, they were meant to also screen out dubious cases, but the process (not necessarily the procedure) does not work because either the I.O. is a non-lawyer and doesn’t have the ability to do critical legal analysis in complex cases, or when there is a thorough investigation done and the I.O. recommends dismissal or some or all of the charges, SJA’s are too timid in many cases to follow the advice.  But, more importantly, it overlooks the second purpose of an Article 32, viz., “discovery.”  CID/OSI/NCIS investigations in complex cases are rarely completed before the Article 32 is scheduled, so if Article 46 is to have any real meaning, the Defense must “probe” the government’s case at the Article 32 level.  Finally, it overlooks the real problem / redundancy he discusses – if Article 32’s were conducted in the context of the 21st Century instead of the 1950’s, there would be verbatim transcripts of witness’s testimony, which in turn would satisfy “confrontation” issues in 98% of the cases, and provide an easy method for stipulations of expected testimony for use at trial for unavailable witnesses.

    2)  Abolishing member sentencing has two flaws.  First, it presupposes truly neutral and detached Judges, i.e. one’s with tenure who didn’t have to worry about promotions or follow-on assignments.  (In his defense, he was a “good” judge for both sides).  Second, for anyone who has practiced in jurisdictions where pre-sentencing “Reports” are used, those are hardly a panacea, require experienced personnel to complete them and are generic (and thus worthless) if prepared prior to Findings – hence the lengthy delay between a verdict and sentencing in most US civilian jurisdictions.  They are routinely challenged, hearings on factual and legal disputes do not go away and sometimes take longer than the actual trial and from a military justice perspective, then become subject to appeal.  If the “good order and discipline” prong is to mean anything in the context of military justice, Commanders and Senior NCO’s need to provide that input via the sentencing forum.  When for reasons that all defense counsel appreciate, it is too “dangerous” to risk that, then most Accused are amenable to a judge-alone trial.

    3)  I agree with Charlie that the drug lab situation can be made more efficient.  But the current “problem” is one created by the government in two contexts.  First, the emphasis on quantity, i.e., testing 10,000 samples a week or whatever the number may be; second, getting cute and having “professional witnesses” with Ph.D’s testify rather than the lab rats who do the work.  But, civilian forensic labs have many of the same problems.  There is an institutional problem as well — not all defense counsel have the scientific background to recognize “problems” much less figure out what or how to deal with them.  In the civilian sector, attorney’s specialize in “drug defense” or DWI defense etc., a luxury not often afforded in the military, hence the almost rote request for defense “experts.”  Allowing lab witnesses to be deposed prior to trial at the lab [some civilian labs are turning conference rooms into one suitable for a deposition], will (in many cases) either eliminate the issues or refine them to a narrower scope, and except in capital cases, are admissible [Art. 49(d)] and if visually recorded, probably satisfy confrontation clause concerns for subsequent admissibility.

    Finally, for those with a historical bent on how “battlefield justice” worked in WW II, see Wade v. Hunter, 336 U.S. 684 (1949).

  11. John Harwood says:

    I have nothing to add to this discussion other than to say that this insightful, respectful dialogue on a current military justice issue is precisely why I continue to peruse this blog.  Sometimes it seems like one shovels through immense quantities of manure to find a diamond like this, but in the end it’s worth the effort. 

  12. Frank Rosenblatt says:

    Joseph Wilkinson and Maj Gen Dunlap both make excellent arguments for why military justice must be portable. 
    A couple other thoughts:
    If our system can’t deploy, courts-martial then become duplicative of surging alternatives.  An increasingly muscular SAUSA practice in the federal district courts and booming numbers of stateside veterans courts could absorb court-martial dockets, which are already more depleted than ever due to consistently high use of administrative discharge procedures.  Deployability distinguishes. 
    Recent events in Australia, Canada, Great Britain, and Europe demonstrate weakening court-martial jurisdiction among our military peers.  The difference between those countries and the U.S. is the extent of our worldwide deployments.  Those deployments are also the opportunity for military justice.  

  13. Frank Rosenblatt says:

    I have long been impressed by Maj Gen Dunlap’s entrepreneurial, outside-the-box thinking.  Once again he does not disappoint.  

    I especially appreciated the point about the confused state of UCI.  I thought back to the timidity of the military’s media responses immediately following the Hasan shootings at Fort Hood and the SSG Bales shootings in Afghanistan; the allegations of President Obama’s UCI with PFC Bradley Manning; and how fears of unlawfully influencing the military justice system delayed the reporting of the Abu Ghraib abuses.  

    Should consultation with a military lawyer be a prerequisite for leadership in the face of a military crisis?  Common sense says no, but the UCI doctrine says yes.  The expanding body of UCI caselaw ensures that the doctrine is beyond the quick grasp of anyone.   This is a perfect area for Congress to step in and set a standard.  

  14. Frank Rosenblatt says:

    Mr. Harwood,

    Agreed! 

  15. Gene Fidell says:

    Modest proposal No. 1: The JSC convenes a day-long no-holds-barred forum to entertain and thrash around suggestions.

    Modest proposal No. 2: HASC and SASC do the same.  

  16. stewie says:

    “If our system can’t deploy, courts-martial then become duplicative of surging alternatives. ”
     
    But they can, and do. I thought the question was, how well? Also, other than the unfortunate push to take away sex assault cases, there doesn’t seem to be much of a push to take away courts-martial from the military like in our Western European brethren, or am I missing something?

  17. Frank Rosenblatt says:

    Professor Fidell,

    I second your motions.

    Stewie,

    To address one of your previous points about the deterrent value of courts-martial, you used the example of the videotaped Marines not caring about how effective the downrange court-martial system is.  I am sure you are correct about that. 

    However, the misconduct you mentioned was certainly not the first misconduct for these Marines.  It likely started with more minor acts of indiscipline such as tardiness, uniform infractions, negligent discharges, FTRs, disrespect, alcohol, or drugs.  If standards aren’t enforced, misconduct percolates. 

    NJP should be one of the commander’s tools to nip minor misconduct in the bud, but NJP can’t work if the offender knows the command won’t/can’t back it up with a court-martial.  That is why it makes sense to scrap the turndown option downrange to make NJP the commander’s choice, not the offender’s.  This would be one tool to help address what can only be described as a serious problem of indiscipline in the force. 

  18. stewie says:

    I concur standards must be enforced; however, doing a chapter is enforcing standards, doing an Article 15/NJP is too. IOW there is nothing about the proposed changes that IMO better enforce standards than the current way things are done.
    Commands shouldn’t go the A15 route unless they are prepared to go to CM if the A15 is turned down. And again, what facts do you have that NJP turndowns are a problem overseas? They certainly weren’t when I deployed, I don’t think I even remember one.
    You, and others, have proposed some fairly significant changes without much of a discussion as to what specific facts demand these changes.

  19. Frank Rosenblatt says:

    Stewie,

    There is now considerable agitation to improve combat discipline, including a spate of OpEds (most recently by NYT) and Secretary Panetta’s speech urging the troops to behave.  If the JAG community doesn’t offer solutions and says only “we like things the way they are now” then we won’t get a seat at the table and changes will be imposed upon us.  As just happened with the sexual assault changes.  

  20. stewie says:

    And that happens every few years or even months. I’m fairly certain we can predict when it happens, when the occasional idiot or group does something particularly noteworthy and messed up, like say Abu Gharib.
    NONE of your proposals would have stopped Abu Gharib and none of them would have stopped the urination games of those Marines. No one is talking about too many people smoking hash, or drinking, or watching porn, or most of the other stuff.
    That boiled down to lack of supervision, in short, it was a leadership problem, not a JAG problem.
    And comparing the sexual assault problem to the urination et al is apples and oranges. What movement is there to change how we do courts-martial in combat? Particularly when combat will be over in less than two years for all intents and purposes?
    Other than proposals from a few, like yours, don’t see it. Sexual assault changes have been a huge thing for about a decade now. And given the massive changes we’ve made, folks are STILL calling for it to be taken away from us, so offering up solutions seems to have only had a moderate impact.
    We certainly shouldn’t advocate the wrong things just so Congress is pleased. We should advocate for the right things, and if Congress changes it, that’s their prerogative.