The word “politicization” sounds pejorative.  Merriam-Webster gives us this definition of “politicize”: “to give a political tone or character to.”  But our Constitution gives the authority to regulate the land and naval forces to Congress — a body comprised of (gasp) highly successful politicians.  Politicians are supposed to control the military justice system, subject to the system of checks and balances that the Constitution’s framers adopted to promote sound decision making.  And while there is plenty of room for debate over the optimal response to sexual assaults in the military, no one can seriously doubt that it is a real problem.

But politics shouldn’t affect the outcome of particular cases.  In the Anglo-American legal tradition, that’s the antithesis of justice, which is to be rendered by neutral, dispassionate actors.  Themis’s blindfold is supposed to prevent her from seeing political pressures, among other potentially distorting considerations.

With those dueling considerations in mind, let’s turn to our number one military justice story of the year:  the politicization of the military’s response to sexual assaults.

In January 2012, the film The Invisible War debuted at the Sundance Film Festival.  We’ve discussed the film at length on this blog (see, e.g.here, here, and here).  I’ve been critical of the film, but I hope even its admirers would admit that it doesn’t take a journalistic approach to the issue of sexual assault in the military.  Rather, it presents information to advance the thesis that the military (including the military justice system) fundamentally mishandles sexual assaults in the military and that one solution is to take the power to deal with sexual assaults away from military commanders.  The film ignores any evidence inconsistent with its thesis.

As an example, the film prominently features former Marine 1stLt Ariana Klay, described by the film’s website as “a Marine who served in Iraq before being raped by a senior officer and his friend, then threatened with death.”  But the Marine captain who was tried for raping her was acquitted of that charge.  Yet the film takes it as a given that the court-martial reached an incorrect result and that she was raped.  Consider the difference between these two approaches:  A.  1stLt Klay said that a Marine captain raped her.  A military judge found the captain not guilty of that charge.  B.  A Marine captain raped 1stLt Klay.  A military judge found the captain not guilty of that charge.  A sound journalistic approach would take the former approach.  Yet the Invisible War takes the latter approach, even though its filmmakers couldn’t have known the truth or falsity of 1stLt Klay’s allegations.  A balanced approach would have at least discussed the evidence that led the military judge to acquit 1stLt Kaye’s alleged rapist.  Yet that perspective appeared nowhere in the film.

There’s a word for the selective presentation of information to advance a political goal:  propaganda.  The film’s writer and director, Kirby Dick, doesn’t even attempt to hide his intent to use the film to advance a political goal.  He told a reporter: “We made the film to help change policy.” You might not change policy by presenting a balanced or accurate picture.

But if The Invisible War is propaganda, it’s been effective propaganda.  In April 2012, Secretary of Defense Leon Panetta announced that the power to dispose of sexual assault allegations would be restricted to at least special court-martial convening authorities who were O-6s or above.  Secretary Panetta reportedly told one of the Invisible War’s executive producers that watching the film was partly responsible for his adoption of the new policy.  But Kirby Dick isn’t satisfied with that change.  An article from The Wrap provides this quotation:  “By moving the decision up but leaving it in the chain of command, a lot of the problems that you get at the unit commander level still exist,” Dick said. “They might be somewhat mitigated, but they’re still definitely there in terms of conflict of interest. The decision absolutely must be moved outside the chain of command, to an independent arbiter who has no relationship to the perpetrator or to the victim.”  He continued:  “There would certainly be benefits to moving it outside the military, but given where the military is right now, I don’t think we can really achieve that at this point,” Dick said. “What is achievable is to take it outside of the chain of command, but leave it in the military justice system.”

Dick explained that effective change depended on influencing the members of the Joint Chiefs of Staff.  Again, from The Wrap article:

“It’s the joint chiefs of staff who have to take on this issue.”  The joint chiefs, he added, are aware of the problem. “I don’t know how much I can say about this,” he said, “but several members of the joint chiefs have seen the film. We know for a fact. At the very minimum, several members of the joint chiefs.”

Which brings us to the actions by one of those members of Joint Chiefs of Staff — the Commandant of the Marine Corps.

This year, General Amos toured Marine Corps bases around the world to talk to officers and staff NCOs about responding to sexual assault cases.  His words were blunt.  And they referred to the politicization of the issue.  In his Heritage Brief delivered at Parris Island, the Commandant told the officers and staff NCOs in his audience that he had just met with five members of Congress at breakfast at his home and two of them walked out, saying they didn’t trust the Marine Corps to fix its sexual assault problem.  The Commandant mentioned five bills pending in Congress, one of which would completely remove convening authorities from the sexual assault referral process because Congress has “no confidence” in the Marine Corps’ “ability or willingness to do anything about” sexual assaults itself.  He said the bill would take control from Marine Corps commanders and give it to the Department of Justice.  He told his audience that he assured one of the members of Congress at his home:  “I am the Commandant of the Marine Corps and I am telling you we are going to fix it.  I’m sick of it; we’re fixing it.”  He then told he officer and staff NCOSs in his audience:

This past year, we had 348 sexual assaults in 2011 and you go – males in here, I know exactly what you’re thinking – well, it’s not true.  It’s buyer’s remorse, they got a little bit liquored up and ended up in the rack with a corporal, woke up the next morning, pants were down, what the hell happened?  Buyer’s remorse.  Bullshit.  I know fact.  I know fact from fiction.  The fact of the matter is: 80 percent of those are legitimate sexual assault.

. . . .

So let’s do “Math for Marines” for a second.  I said I had 348 sexual assaults that were reported last year.  Across the nation, the experts – I’m not talking about some expert you don’t care about, I’m talking about somebody that would actually have credibility with everybody in this auditorium – say that sexual assault is underreported by a factor of at least two.  Could be three [or] four.  I personally believe it is at least two . . . could very well be three times.

He continued, “[W]hy would we, as Marines, allow ten percent, six percent, five percent of our population of female Marines – why would we allow that to happen?  And the answer is, we shouldn’t and we won’t.  We are going to fix this.  . . .  It is a scar on the United States Marine Corps.  I’m ashamed of it.  And I am going to convince you that it’s real. . . .  And  if you do not believe in the statistics, just hang with me, because I am going to make a believer out of you, because it is real.”
In discussing the fix for the problem, the Commandant told his audience:

We have a problem with accountability.  I see it across the Marine Corps.  I see it in the Boards of Inquiry, they come in, their results, and we have got an officer that has done something absolutely disgraceful and heinous and the board – he goes to – he goes to a court-martial and he goes before a board of colonels and we elect to retain him.  Why?  Do I need this captain?  Do I need this major?  I don’t.  Why would I want to retain someone like that?

I see the same thing with staff NCOs.  You go before a board and the board sits around, “milk of human kindness” and misguided loyalty and says this is a good staff sergeant, this is a good gunny, he has got 17 years in, no mind the fact that he was sleeping with a corporal and he’s married.  We already took him, we already hammered him, he has a letter of reprimand, let’s keep him.  Why?  There is a lack of accountability that just befuddles me with the commanding officers and the senior enlisted.  And I will tell you that.  I am very, very disappointed.

He continued in a similar vein:  “I see this stuff in courts-martial, I see it in the behavior, I just – for the life of me I can’t figure out why we have become so ecumenical?  Why we have become so soft?  Where we’re gonna keep a sergeant that absolutely doesn’t belong in the United States Marine Corps.  Why would we need to do that?  The answer is: we don’t.”

He admonished  his audience:  ““I want the staff NCOs in here and I want the  officers in here, the commanding officers, and the sergeants major to take a  hard look at how we’re doing business.   If you got a Marine that is not acting right, you’ve got a Marine that  deserves to leave the Corps, then get rid of them.  It’s as simple as that.”In a predictable result of the speeches, many Marines detailed to serve as court-martial members echoed portions of the Commandant’s remarks during voir dire.  And at that point, the threat emerged that the politicization of sexual assault cases would affect the just determination of individual cases.  That’s when the Navy-Marine Corps judiciary rose to the occasion.In one of the first (and possibly THE first) courts-martial in which the issue of the Commandant’s Heritage Brief was raised, Judge Palmer ruled that the defense had not even crossed the “some evidence” threshold to shift the burden to the government to either disprove the existence of actual or apparent UCI or to show that it wouldn’t have a prejudicial effect.  The accused’s defense counsel filed a petition for extraordinary relief.  NMCCA then ordered the proceedings stayed and issued a show cause order.  United States v. Howell, No. NMCCA 201200265 (N-M. Ct. Crim. App. June 14, 2012).  The military judge ended up leaving the bench while the case was stayed, for reasons we discussed previously on this list.  And in one of the military justice highlights of the year, Navy-Marine Corps Trial Judiciary Chief Judge Daniel J. Daugherty ruled in another case that the Commandant of the Marine Corps’ remarks had resulted in apparent unlawful command influence.  While litigation continues over whether the remedial measures have been sufficient, the swift response by both the Navy-Marine Corps trial and appellate bench to the threat to fairness caused by the Commandant’s remarks certainly helped to protect the system’s fairness.
2012 ended with Congress passing new measures dealing with sexual assault in the military.  On 30 December, the NDAA containing these measures was presented to the President, who is expected to sign it.  In that bill, Congress requires the creation of hand-picked, specially trained, and certified “special victim” units of investigators, judge advocates, and victim witness assistance personnel for the prosecution of child abuse, serious domestic violence, and sexual offenses.  And the bill will establish two panels to study further possible reforms to the military justice system’s handling of sexual assault cases.  The panels are directed to study the impact of SECDEF’s April 2012 policy change limiting the authority to dispose of sexual assault cases and to consider the strengths and weaknesses of proposals to take prosecutorial discretion away from military convening authorities in sexual assault cases.With further reforms — including the MCM’s provisions executing the Article 120 amendments that took effect on 28 June 2012 — still to be implemented and these new studies still to be written, this likely won’t be the last year that the military’s response to sexual assault cases appears in our top-10 list of military justice stories of the year.  For 2012, it’s number one.

13 Responses to “Top 10 military justice stories of 2012 – #1 The politicization of the military’s response to sexual assaults”

  1. OPLAW-LCDR says:

    Forgive me if this was discussed when the film first came out, but I was out of the loop then.
    Something we all tend to forget in the MILJUST system is the fact that our system floats on a sea of statutes and case law that few of us know or understand.  For example, I know that when I was at NJS, no one ever mentioned the fact that ADSEP is built upon and subject to the requirements of the Administrative Proceedures Act (trying to avoid a rabbit hole here).
    This concept of getting the commanders out of the decision maker seat has a massive, hidden trap.  The UCMJ creates an Article I court system.  The US Sct. has stated numerous times that Article I courts are only permitted when they serve a particular purpose and are not simply a way to avoid Article III protections.  For the court-martial system, that purpose is the maintenance of good order and discipline in combat units.  That’s why our statutes discuss conduct prejudicial to good order and discipline, and not acts against the peace and dignity of the people (the usual reason for criminal prosecution in civilian courts).  This is what gives us the limitations on Article III rights that we all know and deal with in the MILJUST system.
    If there were a change that removed the commanders from the control of courts martial – any courts martial – then that underpinning is removed too.  At that point, a successful challenge could be made to the whole of the MILJUST system, as the purpose of good order and discipline is no longer being served; it has been converted to one of simple retributive justice, just like the US Attorneys handle every day.
    The result:  Article III protections apply, probably in every case, because we couldn’t operate a separate system for sexual assault.  Thus, no more CA’s or CA’s selecting panels, no more Article 15, and no more Military Judges, just to name a few.  Also, no more Article 66 review, no more clemency, and no more Trial Counsel having to do all the legwork.  It wouldn’t be easy for anyone.  It might even end the need for judge advocates as we know them.
    Doomsday scenario?  Maybe.  But I’ve seen many times when changes were made to something in the name of “progress” or “improvement” that suffered from the law of unintended consequences. Secondary and tertiary effects are a killer.
    Of course, this also gives a nuclear scenario for our friends in appellate defense.  Have at it.

  2. Gene Fidell says:

    With respect, OP, an Art. I military justice system would easily survive a transfer of the power to decide who gets prosecuted from commanders to a director of military prosecutions (not just for sexual assaults but for everything).
    Beyond Art. III, such a change would hardly be the end of the world: ask the UK, Canada, Australia, New Zealand, Ireland, South Africa, Israel, Brazil.

  3. OPLAW-LCDR says:

    Gene, respectfully, the UK has no written Constitution, the next four use the Westminster system (same result), and the last three all have constitutions that don’t create the Art I/Art III dichotomy. This is a problem created by our Constitutional structure. Given the US Sct’s habit of protecting the jurisdiction of the federal courts, even in the face of legislation that purports to limit it (see the Guantanamo cases), somehow I suspect as US Attorney for the military – whether uniformed or civilian – would take us out of the Art I purpose. Not to mention the fact it creates a mess for readiness (taking control of all sorts of issues from commanders and putting lawyers in charge), as well as creating someone who could easily become a Zampolit. Bad move. 
    Who knows? What I do know is it would be dangerous, shortsighted, and unnecessary

  4. Don Rehkopf says:

    “Reforms” are like flags.  They point in whatever direction the political wind is blowing from!
     
    Any actual sexual assault is one too many, but for those of you who were around for the fallout from the 1991 Tailhook fiasco, we all know that when reported properly an investigation generally follows.  The Air Force has (and continues to have) problems with it fighter-pilot fraternity, the Command Barstoolers Association.Thus, in an effort to appear “fair,” we have the latest reincarnation of the Kelly Flynn affair:
     

    http://www.wral.com/news/local/story/130213/
    http://www.wral.com/news/local/story/131645/

     
    Anyone who has been in the criminal trenches, military or civilian, for any length of time, also knows that “false rape” cases exist and make it to court now and then.  But, a properly conducted Art. 32, investigation, with competent counsel on both sides provides a far superior factual basis to make the decision on whether or not to prosecute a given case than does the normal civilian, one-sided grand jury.
     
    If military justice is indeed about “good order and discipline” then those people who make false sexual assault allegations should be prosecuted to preservesuch “good order and discipline” – lying within the military heirarchy vitiates the trust and cohesiveness necessary to any unit’s proper mission accomplishment.  Yet, that simply is not done so as not to “chill” the complaints that are presumably bona fide.  Hogwash – lying is lying and actual victims have no need to lie or to think no one will take them seriously.  One only has to look at the amount of money being thrown at this to know that any remote possibility of a claim not being investigated, is zero.

  5. Gene Fidell says:

    OP, having a director of military prosecutions would work no change in the purpose of the military justice system, much less “take us out of the Art. I purpose.” Now that I’ve looked up Zampolit on wikipedia, I’m afraid I see no basis for the reference. 

  6. Gene Fidell says:

    Don, it’s “Flinn.”

  7. OPLAW-LCDR says:

    Gene, the reference is to an officer who has control over the unit commander, just like a Zampolit diid, with the attendant destruction of readiness. For instance, right now, commanders decide how witnesses are produced. Could this person order a ship into port because it was necessary for a case? How about order witnesses from a deployed unit be returned to CONUS for hearings? Its custom made to destroy a unit’s combat ability and readiness, not to mention telling every officer that they are not trusted. Bad, bad idea. 
    I agree with Don. Every case I have ever seen has been investigated, and there is no excuse for not addressing false allegations equally. Col Sullivan’s comment about Themis and the blindfold is well taken. 

  8. Gene Fidell says:

    OP, I doubt the directors of military prosecution (or commanders) in the perfectly sensible democratic countries I listed would agree that they are in any way like political commissars. Doesn’t your argument also imply that we should turn back the hands of the clock and jettison our 40+ years of experience with a military trial bench?

  9. OPLAW-LCDR says:

    Gene, I don’t think my argument does, but I’ll bet my paycheck that the next argument from the people advancing this idea will be to take the MJ’s away too.  As serving officers, they “obviously” can’t be trusted to judge fairly in sexual assualt cases. A “not guilty” verdict is proof that the system doesn’t work, don’t you know?
    We have a nasty habit of politicizing things in this country. Just because other countries had more sense not to abuse military prosecutions doesn’t mean that something similar wouldn’t be abused here.  I for one would never want to risk it.
    I think I’ve beaten this to death.  I give you the last word.

  10. Gene Fidell says:

    Happy New Year. 

  11. k fischer says:

    This polticization issue can be addressed by two recent posts on CAAFLOG:  the 2012 measures taken as referenced in this post and the Military Service Academy report for 2011-2012 found at http://www.sapr.mil/media/pdf/reports/FINAL_APY_11-12_MSA_Report.pdf
     
    The 2012 measures requires studies and review panels on specific cases of sexual assault, but we could start by conducting a study on the MSA report for 2011-12.
     
    The MSA report states there were 80 reported assault, 42 of which were unrestricted and 38 that were restricted.  Of those 42 unrestricted reports, 40 had investigations which closed  involving 39 subjects. (1 report involved one subject and two victims).  By the end of the year, there were 34 outcomes for the 39 subjects.  Of those 34, there were merely 8 courts martial and 3 adverse administrative actions for sexual offenses.  
     
    This is a paltry 23% prosecution rate.  If you read the case notes for the spreadsheets starting at page 62, it makes you wonder how on earth any of these cases were dismissed.  
     
    So, why wait?  It appears they could do a study similar to that done by Dr. Charles MacDowell or Dr. Eugene Kanin to determine if these cases fit their false allegation model.   It would be nice if the SAPR report could adequately explain why no action was taken on 23 of the 34 sexual offenses that were reported in which the Government could do something about.   It seems that the answer would be either (1) the cases had no merit, or (2) the MSA’s are sweeping sexual assault offenses under the rug.
     
     

  12. Lieber says:

    Don Rehkopf, “One only has to look at the amount of money being thrown at this to know that any remote possibility of a claim not being investigated, is zero.” Nope. It still happens. All it takes is for a company commander not to report it up in compliance with the withholding policy. Still happens (heck, it happened in the Fort Jackson case just this past year…and I know of others). The four-stars can set DOD policies all they want but that doesn’t necessarily change things at the company or platoon level.

    OPLAW-LCDR: “For instance, right now, commanders decide how witnesses are produced. Could this person order a ship into port because it was necessary for a case? How about order witnesses from a deployed unit be returned to CONUS for hearings?”

    Huh? this happens all the time. That person is called a military judge. Judge Advocates deal with deployed witness issues all the time: you’ve got a convening authority on one hand, and then deployed witnesses who belong to someone else who has no interest in the court-martial…the current system is rife with such issues.

  13. Christian Deichert says:

    I’ve not seen much press on the issue in CAAFlog, but another piece of fallout from this issue has been the Air Force’s decision to stand up the position of Special Victims’ Counsel to implement 10 USC § 1565b and provide “dedicated legal representation to victims of sexual assault.”

    AFJAGS had a three day SVC course in December to get attorneys trained and get the ball rolling, and the program will go live on 28 January.