Major General Dunlap, USAF (Ret.), Professor of Law at Duke and former Deputy Judge Advocate General of the United States Air Force, has written a paper that opposes many of the current legislative proposals to change the UCMJ, and Senator Gillibrand’s proposal in particular. His paper is titled Top Ten Reasons Sen. Gillibrand’s Bill is the Wrong Solution to Military Sexual Assault, and is available on SSRN at this link.

The paper’s ten reasons are:

1) It will unnecessarily hurt victims of sexual assault.

2) It will impose a civilian-like process that has shown utterly no sign that it is more successful (and often less successful) at preventing sexual assault than the military’s commander-led system.

3) It will remove commanders – who have direct responsibility for success in combat – from taking tough action they need to take to maintain morale, good order and discipline, and it will shift accountability for sexual assaults away from them.

4) It fails to appreciate the purpose of military law, and the vital role commanders play in it.

5) It removes commanders from the disciplinary process even though the overwhelming majority of members of the armed forces, and their families, give their commanders the highest ratings in the battle against sexual assault.

6) It is inconsistent with the public’s opinion, which expresses vastly more confidence in military leaders than it does in any group of lawyers, including the Supreme Court.

7) It will deprive commanders – unique in their experience and expertise – of a key tool in addressing sexual assault as a threat to military readiness.

8) It is in ‘denial’ about the fact that foreign militaries that removed the commander from the disciplinary process fail to show an increase in the number of sexual assault reports, and may have complicated prosecutions in a way that would be detrimental to the American military.

9) It will unnecessarily cost the military millions in scarce dollars, and will drain needed legal resources away from troops and their families.

10) It is too tainted by bad data and the activities of “Washington-based advocacy groups with limited membership, participating in personal attacks, [and who] do not represent the views of all [sexual assault] survivors.”

22 Responses to “Maj Gen Dunlap’s top 10 reasons he opposes Sen. Gillibrand’s proposal”

  1. John O'Connor says:

    Sign me up. To me, the most important thing is to keep prosecutorial discretion in the hands of commanders and out of the hands of the lawyers. All the other proposals are just shrubbery. 

  2. RKincaid3 says:

    Regarding the current Congressional debate over revamping the UCMJ, I recommend this old 1967 Law Review article on the so-called “Crowder/Ansell Debates.   The link is at the very bottom of this comment. The current debate in Congress over the NDAA Amendment involving Congresswoman Gillibrand’sproposal to revamp the UCMJ is not new.  It is nearly 100 years old and simply the latest in the evolution of the UCMJ.   The current debate will likely not be complete before and will have to resume after the Christmas holidays.   The NDAA will have to be resolved before or as part of getting something done before the expiration of the current Continuing Resolution on 15 Jan 14, setting up another shutdown showdown.  Congress will likely fail again, but that is another debate.  This comment is about military justice vice military discipline. The issue: whether to establish an independent prosecution for sex offenses in the military, reducing a commander’s control over the resolution of the case.  The issue is divisive, even among Gillibrand’s fellow democrats.  Commanders in all the services hate it.  And some retired GOs and judges. My thoughts?  Gillibrand’s’ proposal doesn’t go far enough.  Rather than carving out a special independent prosecution process for sex assaults separate and apart from a Commander’s authority and discretion, Congress should draw a firm distinction between all “crimes” (not just sex crimes) and incidents of “misconduct,” thus leaving all “crimes” to be handled by prosecutors and all “misconduct” to be handled by Commanders. A separate prosecution for only a few but not all “crimes” would continue the fiction that a commander must have the power to inflict a federal criminal conviction upon a Soldier to maintain unit cohesion and discipline.There is a difference between “misconduct” and “crimes.”   History indicates that the latter must be done via courts and without commander control.  Commander input, maybe, but not control.   Then, as now, the debate in 1916 was brought about after a national outcry over the way commanders were handling punishments.  Back then it was abusing, neglecting and sacrificing Soldiers at the alter of “discipline,” i.e., executions completed without sufficient due process.  Today it is about commanders ignoring, neglecting and sacrificing victims at the alter of a commander’s “discretion,” i.e., setting aside jury verdicts despite evidence supporting the verdict.  And then there is the very real issue of commanders prosecuting Soldiers due to the political scrutinyy currently underway simply so the commander isn’t considered soft on sex assaults, even when there significant legal reasons to not prosecute a particular case. The passage of time has proven General Ansell right and General Crowder wrong with the adoption of nearly all of the most important of Ansell’s 1916 suggestions (independent MJ, independent defense attorney, discovery, etc).  An additional required modification must, of necessity, include a requirement for a unanimous guilty verdict vice a mere 2/3.One cannot have justice when the deciding official is focused on something (such as military or mission exigencies) other than the justice process.  Commander-centric issues are discipline issues. Justice requires balancing all competing interests, such as the rights of the accused as against the rights of the victim as against the rights of the public–and that requires an independent prosecution, judiciary and defense bar, all adversarially competing for balance.  Then and only then will “justice” be done.  It will tackle “crimes,” while commanders deal with “discipline.”  In fact, counterintuitively, every time a commander uses their discretion to retain or not prosecute a criminal, they undermine the very discipline and cohesiveness they assert is so important to effective command and execution of combat operations (because Soldiers don’t like uncharged or forgiven criminals in their midst).But conflating the justice and disciplinary systems in the military is and always has been the problem….too much is involved between too many interests to trust “justice” to just one person.  It requires a balance of all the competing interest before an independent arbiter.  Ansell was clearly the more visionary TJAG than was Crowder and history and the evolution of societal expectations, both within and without the military, has proven it. Now our current national leadership needs to muster the courage to finish what Ansell started those oh, so many years ago.  And it wouldn’t be a bad idea for that same national leadership to also pass a budget and avoid another needless and wasteful government shutdown while they are at it. http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/276473~1.pdf

  3. John O'Connor says:

    Ansell was a backstabbing weasel.  See Frederick Bernays Weiner, The Seamy Side of the World War I Court-Martiual Controversy, 123 Mil. L. Rev. 109 (1989).  Linky (if this works):   http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/27607D~1.pdf

  4. Mike says:

    Dunlap doesn’t pull any punches.

  5. Bill Cassara says:

    Gee, nothing about fairness to the accused. Now that’s a shock.

  6. AFSVC says:

    @bc in the full article, Gen Dunlap does criticize the most recent version of Art 120 due to its removal of lack of consent as an element and the potentially overbroad list of acts that could be characterized as rape; for instance, throwing a pie in someone’s face.

  7. John O'Connor says:

    Gen Dunlap also notes that the Gillibrand proposal is based on what the accusers want, and that accusers should never be the ones to decide what process is due because that’s unfair to the accuseds.

  8. Lampwriter says:

    Hugely important points made by RKincaid3.  Thanks for sharing, and please keep posting.  

  9. RKincaid3 says:

    J.O.:  Thanks for the link.  I will read it and consider its value, if any, in the formation/evolution of my opinions/philosophy.  And, I concur that accusers should have no say in the decision on what due process is owed to the accused because to allow that transforms the “justice” system into “retaliation” system.  But I remain committed to the concept that justice must be blind or it is not justice.  And commanders are usually blind to everything except completing their mission–which inevitably means that sometimes, individuals–either or both the accused and/or the accuser–are overrun for the sake of the mission.  However, a commander’s loyalty to their mission (which is to be lauded and encouraged in order to have an effective military take the battlefield), in the modern context (where the ends don’t justify the means) makes them unsuitable to serve as more than “recommending” officials in matters of “justice.”  I know this flies in the face of military history…but so much of what we do in the military today now flies in the face of military history–such as not shooting people for sleeping on guard duty–that homage to history and tradition seems hardly an appropriate justification for ignoring the inevitable evolutionary slog of the views and expectations of the very society that the military serves.  And really, Congress needs to do something more substantive in fighting crimes generally, but especially in the case of sex assaults, than allowing the services to fight the scourge by simply adding a meaningless mandatory “checkbox” to NCOERS/OERS affirming the the rated Soldier supports not committing a sex assault (or other crime) during the rating period.  Shame on Congress if they swallow that one as a serious and substantive step in combatting sex assault while continuing to ignore the much needed changes to the UCMJ we have been discussing.

  10. RKincaid3 says:

    Mike: It’s easy to not “pull any punches” when one is singing the
    party line and swinging broad generalizations that, because they are
    generalizations, are hard to refute factually. Thus, the result is a debate
    over personal opinions couched as fact-based opines supported by nothing more than the weight and
    grandiosity of the (former) duty title and position of the opining officials
    involved.

  11. RKincaid3 says:

    AFSVC: Concur…Art 120 (or is it now Art 360/480?) is a mess, which is
    unavoidable when one attempts to draft “catch-all” statutes which
    encourage the very kind of “creative” charging rejected by the CAAF
    in the case of United States v. Warner, No. 13-0435/AR, __ M.J. __.

  12. RKincaid3 says:

    Lampwriter: Thanks for the kind comment. I usually get villified for my
    opines! But I don’t learn…I just keep asking for the punches by typing!

  13. RKincaid3 says:

    Apologies in advance…CAAFLOG
    deletes paragraph spacing upon submission, so this comment, as with my last one,
    will appear to be one big, long paragraph. 
    Wish they would fix that.

    Thanks to J.O. for referring me
    to the other Law Review article on the Crowder Answell debate.  I have
    reviewed it and here are my thoughts:

    I note first that Crowder opposed Ansell’s memo and
    position that the TJAG possessed the power to “revise” the court-martial
    sentences of several alleged mutineers as legally insufficient by asserting that the word “revise,”
    as used in Revised Statutes 1199, didn’t mean what “revise” usually means
    because, among other things, “[t]he administrative history of the departmental practice
    over a period of fifty-five years is plainly to the contrary.”  Said another way, this means: because we’ve
    always done it this way, we should keep doing it this way (how many JAGs have heard that as a justification for not doing what is supposed to be done?), especially since, if
    correct, Ansell’s view means that Crowder never looked at, much less read, the plain
    language of the very statute with which Crowder was charged to understand when advising
    the SECWAR.  Then, after disavowing
    Ansell’s position on the use of the word “revise,” Crowder then did what he
    said Ansell couldn’t do:  specifically, he
    acted as if had the authority to determine that the mutineers conviction was
    legally insufficient and upon completing that review, undertook to “…restore
    those soldiers to duty from their confinement in the Disciplinary Barracks. They
    were accordingly restored to duty on January 5, 1918, without any loss of pay.”  In short, he “revised” the record of trial,
    exactly as Ansell stated was allowable, and essentially acted like the
    appellate authority that he denied existed in the Revised statute.  This certainly tilts the scales in favor of
    Ansell.

    As for the case of the black Soldiers executed in
    Houston, TX, days after sentencing, which occurred without any review or any
    knowledge by the powers-that-be in Washington, D.C., are we really supposed to
    believe that a thorough legal review by JAG COL James J. Mays, which consisted
    of the self-serving statement that the trial was “singularly free from evidence
    that is irrelevant or of doubtful competency” is a sufficient legal review?  On what records is that statement based?  Is there a transcript?  Exhibits?

    The author states that General Ruckman, the commander
    in charge of the executed black Soldiers in Houston, did nothing wrong as the
    execution was “…entirely legal under the newly enacted 1916 Articles of War. A
    department commander in time of war was authorized to confirm death sentences
    in cases of murder and mutiny. Where, as in the Houston case, the confirming
    authority had himself convened the court-martial, no action additional to his
    original approval was required, and the law imposed no prior legal review by
    any staff officer, much less any reference to the War Department.”  If General Ruckman did nothing wrong in
    executing those Soldiers, why, then, was he “…discharged from his National Army
    commission as major general, reduced to his permanent rank of brigadier
    general, and relieved from command of the Southern Department.”  It stands to reason that if removal was
    warranted over how Ruckman handled the executions, then Ansell was correct in
    his assertion that the power to execute Soldiers was not “entirely legal” at
    the time Ruckman acted.  Again, the
    scales tilt in favor of Ansell.

    Further, the author asserts that “[t]here were indeed
    provisions that looked to the future in the military justice bill that Ansell
    drafted for Senator Chamberlain. But it is impossible to examine the nearly
    1,400 pages of the hearings on that measure–and the present writer has read
    every word in that volume on four different occasions over the years–without
    concluding that Samuel T. Ansell was engaged in a virulent and vindictive
    vendetta against the particular individual who was first his sponsor, and who then
    became the principal benefactor of his military career.”  And, to further suggest that Ansell was
    simply tilting at windmills due to some then-undiagnosed mental disorder ala
    the Diagnostic and Statistical Manual of Mental Disorders (Adjustment Disorder
    with Mixed Disturbance of Emotions and Conduct) is simply weak
    speculation.  Aren’t these tactics the
    standard response to every challenge of the status quo?  Isn’t this just more of the traditional response
    of “shoot the messenger” (e.g., “if one can’t defend status quo or the message,
    then discredit the challenger or the messenger”)? The scales are tilting even
    further in favor or Ansell.

    Finally, the author asserts that “[s]ignificantly,
    although General Ansell had solicited the assent and signatures of ten officers
    new to both the practice and the precedents of military law, he never submitted
    to General Crowder for comment his own newly vouchsafed interpretation of
    section 1199-and that was the officer with whom he had worked closely for five
    years, who then had been an Army judge advocate for over twenty years, and served
    as Judge Advocate General for over six years. Instead, feeling himself securely
    independent in the new status with which the day old order under section 1132
    had invested him, General Ansell bypassed, deliberately so on the evidence, the
    single individual who had not only been his chief but who was responsible for
    his becoming first a judge advocate, then a general officer, and finally Acting
    Judge Advocate General of the Army.”  Was
    this simply Ansell being a “backstabbing weasel” or Ansell simply avoiding the
    unpleasant act of presenting Crowder with direct evidence that Crowder had slavishly
    continued past practices without regard to the meaning of the words used in the
    statute he had apparently never read instead of being the honest broker as JAGs
    are expected to be?  Talk about
    challenging the status quo…Ansell even took his “progressive” legal views to
    the Supreme Court and won on an arcane issue of Congressional immunity from
    service of process for civil complaints. 
    Ansell opened more legal doors than he closed and the passage of time
    has proven him not crazy or a slave to tradition, but a legal scholar with more
    of an appreciation for the sanctity of a justice system focused not on the justness
    of the outcome, but on the justness of the procedure used to achieve a just whatseover.

    The author of that Law Review article closes with “[t]he
    only conclusion that can possibly be drawn…” from Ansell’s subordination to
    Crowder as TJAG pulling double duty as the PMO is that SECWAR Baker lost “…confidence
    in General Ansell.”  Is that the case or
    is it simply he didn’t like the rocking boat, or the person who rocked it, even
    though he later allowed Crowder to do the very thing that Ansell said could
    (and Crowder said couldn’t) be done–“revise” the convictions of the mutineers
    and restore their pay. 

    In conclusion, I don’t see any weight whatsoever on
    Crowder’s side of the scale…Ansell’s side has bottomed out with all the
    evidence in his favor—even under direct assault as to his mental fitness and
    loyalty.  This is so even if Ansell’s
    foresight and intellectual honesty in the face of impossible political power and institutionally
    entrenched obeisance to “tradition” might be considered by those in power, resisting
    the slow, inevitable march of social and legal progress, as backstabbing
    weaselry.

     

     

  14. RKincaid3 says:

    Ok…I am at a loss for words…that time my paragraph inserts worked and my disclaimer in the first paragraph is out of line.  My bad…

  15. RKincaid3 says:

    Ok…the paragraphs didn’t work across the board…now sentences are split where they should not be…I hereby quit trying to understand how this thing works!

  16. John O'Connor says:

    Rkinkaid3:I would say that you are rejecting facts in the article when they don’t fit your narrative, and drawing all possible inferences in favor of your precnceid narrative, a narrative that seems to favor a more radical change to the military justice system.  That’s okay, we all do that to an extent, and I probably do that in this issue in the other direction without even realizing it. 

  17. rkincaid3 says:

    :)  

  18. Brian lc says:

    I’ll note that I did not get a cite for the pie in the face bit. 
    I’m fairly certain it was heard here first : http://www.caaflog.com/2011/12/27/the-revised-article-120/
    (At least I think I’m original.  It was several years ago)
     
    I am willing to share credit with Stewie, as he did mention the clowns gag.
     

  19. stewie says:

    I’m willing to take credit for just about anything anyone is willing to let me.

  20. Charlie Dunlap says:

    Brian lc,
     
    Thank you so much for the pie-in-the-face cite.  I got it from an e-mail from an Army JAG that wasn’t amenable to a hyperlink cite, so I am esepcially glad to get your note. 
     
    By the way, the ‘Readers’ Digest’ form of my argument is found here:  http://justsecurity.org/2013/12/09/guest-post-reasons-gillibrand-bill-is-wrong/
     
    Thanks again!  Charlie Dunlap

  21. Brian lc says:

    I’m fairly certain citing an anonymous comment by a guy using the moniker of a (now dead) character from The family guy would not have heightened the level of scholarship.  

  22. stewie says:

    You aren’t dead forever…I hear I’m going to bring you back in a Christmas Special.