Top 10 military justice stories of 2012 – #1 The politicization of the military’s response to sexual assaults
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.