The Armed Services Committee issued a press release announcing the mark-up of NDAA 2015.  Included for our viewing audience are items related to:

 Continue to address the troubling prevalence of suicide within the military community.  While the Committee is cautiously optimistic about the recent decline in suicide rates in the force as a whole, the increase in suicides among the Special Operations Force and new information on suicide for immediate military family members is deeply troubling.  The Committee requires additional reporting on suicide rates for immediate family members of active and reserve forces and an assessment by the Secretary of Defense of the increase in suicides among special operators.

Continue robust oversight and reform of the military’s handling of sexual assault.  This includes reporting requirements updating Congress on progress in implementing the dozens of reforms included in the FY12, 13 and 14 NDAA.  It also includes new reforms spearheaded by Reps Turner (R-OH) and Tsongas (D-MA), including as part of every commander’s performance appraisal – an assessment of the handling of sexual assault cases and how unit members treat those making sexual assault allegations.

You perhaps be particularly interested in:


And also this.

 Section 505—Required Consideration of Certain Elements of Command Climate in Performance Appraisals of Commanding Officers.  This section would require a Secretary of a military department to include information regarding command climate with regard to allegations of sexual assault and the response to the victim of sexual assault by other members of the command on the performance appraisal of a commanding officer.

There are some potential significant issues depending on how the Services effect this proposal in addition to changes already being made.  On its face the rule change calls for something no different than getting graded on support for attention to EEO standards and programs.  So as a general principle I’m not averse to holding all accountable.  But, in view of the sexual assault politics, there is cause for concern in the way such a policy or practice may be enforced, or morph into.

The Army and Air Force has made changes along these lines for reports on all officers regardless of grade or position.  This includes defense counsel, military judges, and importantly panel members.

There is a significant problem IMHO with the Army rule (Army Admin Directive 2013-20), as I recently told a military judge along with the request for recusal and as part of a UCI motion.  The Army does not seem to counsel care when rating military judges, trial counsel (who have ethical obligations), staff judge advocates (who have ethical obligations), defense counsel (who have ethical obligations, see my post here), and members.  The Air Force has attempted to address the issue, although not strongly enough in my view, in their change.  Whereas the Army rule makes no attempt to account for Article 37, UCMJ, the Air Force does.  See, Asst DCS, Manpower, Personnel and Services Memorandum, Air Force Guidance Memorandum (AFGM) to AFI 36-2406, Officer and Enlisted Evaluation Systems, 1 January 2014.  Unlike the Army, the Air Force includes at least this language: Court-Martial Panel Membership. Do not consider performance as a member of a court-martial panel, or render a less than favorable evaluation because of the zeal in which the ratee served as a defense or respondent’s counsel (see Article 37, UCMJ). This is not intended to inhibit an accurate portrayal of a counsel’s competence in the representation of clients.

(I have asked one military judge to recuse themselves on the basis of the Army administrative directive, and I’m working on writ related to the recusal).

14 Responses to “In the congress”

  1. stewie says:

    Given the events of the last few months, one does wonder whether, should Sen. Gillibrand try again, if her legislation wouldn’t get 60 votes this time around.  I can’t imagine at some point in the next few months that she doesn’t try again.

  2. AmyTC says:

    The new Army Regulation relating to OERs rendered that Directive moot. There is new published guidance on the issue. See AR 623-3, paras 3-29 and 3-30. The reg now only requires (in para 2-12k) that the rater note specific failures when it comes to SH/SA.

  3. Phil Cave says:

    Army TC.  Thank you!

  4. Phil Cave says:

    Army TC,
    Para. 2-12.k., is the one that I’m more interested in.  So long as this doesn’t morph into something unintended, such as an adverse comment for a leader who supports an accused or even testifies for an accused – against the wishes of a complaining witness, etc., I can see how this will work out OK.

  5. DCGoneGalt says:

    Mr. Cave:  Should not be an issue since defense will never know that a leader wants to testify on behalf of an accused when their client is issued an order prohibiting the defense from speaking to any potential witnesses in the case?  (j/k)

  6. k fischer says:

    If I were a Commander who Congress accused of picking my nose with regards to Sexual Assault prosecutions,  I would want to flick that green and nasty UCMJ booger off my finger with such a velocity that it sticks to the TJAG of my respective branch of Service and never comes back on me.
    What I find ironic is the utter ignorance that Senator Gillibrand exhibits, yet her comments and proposed amendments are exactly what the UCMJ needs.  For instance, look at her answer to an interview conducted with USA Today:
    Q: Since the Senate vote last month, two celebrated cases have been closed without convictions, involving an Army general and a Navy Academy midshipman. What’s the lesson you draw?
    A: When the public looks at those cases, when men and women serving in the military look at those cases, they see justice not being done, and so they have no confidence or faith in the current system. And if you listen to victims, they will tell you over and over again that the reason they’re not reporting these cases is they don’t believe the chain of command will do anything. They also fear or have witnessed retaliation.
    So the reason why they’re urging that this decision not be made by commanders but be made by trained military prosecutors is because you want justice that’s blind. You want to rely on an objective review, something that’s professionally done. … You’ll have more transparency, more objectivity, and hopefully more reporting of the crime, meaning more being investigated and more going to trial and more convictions.
    So, it sounds like she is saying that there is a lack of confidence in the UCMJ run by Commanders because those two cases did not result in convictions for sexual assault.   I agree that there is a lack of confidence in the UCMJ by the public and those who serve, but not because of the lack of convictions, but because those cases resulted in courts-martial in the first place and continued notwithstanding some really, really troubling evidence regarding the accusers and actions by the Government.
    The she talks about how the UCMJ should be under the control of trained prosecutors based on the example of those two cases, yet the trained prosecutors recommended dismissing the sexual assault charges.  You will not have more going to trial and more convictions.  If those two cases are an example, you will have less going to trial.  However, once again she is correct, because trained prosecutors are better off making those decisions.  And, if the lawyers overstep their bounds by referring bs cases to court-martial, then the panels will revolt on the lawyers, whereas, they are less apt to revolt against the Commanding General of their post.
    I’m really beginning to think that someone very close to the Senator was falsely accused, the SJA recommended dismissal, and the GCMCA went forward anyways then that person got convicted, and she is some sort of double agent for the falsely accused.  And, the worst thing for me is that I agree with her, even though I disagree with the foundation on which she bases her changes and believe she is completely ignorant of how things actually work in the world.  Although she was pretty measured in her responses in this interview, typically her voice reminds me of a Turkey hen giving an assembly call.

  7. DCGoneGalt says:

    k fischer:  The Senator as a double agent for the falsely accused is a Congressional/JAG choose-your-own-adventure novel I would read.

  8. k fischer says:

    You know, I quite often watch ‘Morning Joe’ when I am working out because I usually get quite angry and the rage usually makes for a great workout.  Many times, Joe and Mika interview Kirsten and Claire, as they are on a first name basis with them, and I get to hear the latest on how they intend to ruin our great military, in whiich neither has served.  Claire’s plan is indeed the best plan for those who want to see every rape allegation go to a GCM.  However, Kirsten’s plan is best in my estimation for those interested in seeing justice done.  Yeah, I know that there are some JAG Attorneys who really really drink the victim Kool Aid, but the vast majority of them want to see justice done.  And, the few JAG’s who don’t care about justice because they want to get as many trials under the belt as possible are usually pretty easy to beat.  
    I would have loved to interview her on Morning Joe when she starts talking her crap.  I’m sure after a few questions, she would start sounding like this.

  9. DCGoneGalt says:

    k fischer:  The Senator has to know giving the cases to JA would result in less cases going forward, regardless of how much pressure they place on JA.  That is why I think the result will be (from a previous post):

    I disagree that the end of the military justice system is a possibility. That would entail giving cases to the civilians and that will not meet the desired ends of more sexual assault allegations resulting in trials. Instead, I think the worst endgame scenario involves a centralized Sexual Assault Justice system with a separate preferral/referral authority, as well as regional Art 120 IOs for Art 32s, regional SVPs and quarterly member panels in each region that are specially chosen to hear Art 120 cases. Creating a wholly separate system for Art 120 cases with these special command and prosecution structures would likely achieve the desired result of many more cases going forward and increase the conviction rates. It is a truly scary proposition but one that I think is more possible than the complete abolition of the military justice system, or even the partial abolition of taking Art 120 cases and handing them to civilians.

    This is the only Constitutional scenario that ensures more cases go forward and more cases result in convictions.  Give it some time.

  10. RKincaid3 says:

    k fischer:  Concur wholeheartedly with your thoughts.  Alas, though, the writ application in the Morse case is a glaring example of how, apparently, even a JAG is not immune from either caving to politics or screwing up big on basic principles of law.  I will give him the benefit of the doubt–even though his e-mail response about disobeying the illegal order would be at his own “peril” certainly implies that such benefit is not warranted.  When a client makes a serious mistake of law, a lawyer does not continue to assist that client–if he can’t contradict the client publically, and he can’t assist the client with the illegality–he advises opposing counsel and his bosses that he is off the case and the wayword client is on his own.  And if that principled and ethical act means discipline–so be it.  Service before self–and the law–require it.
    DCGG:  Concur.  I for one do not care whether more or less cases go forward.  I think you and agree more often than no–and especially on this:  the number of cases prosecuted and the number of convictions are not a measure of justice.  The McCaskill bill is more of the same and the Gillibrand bill is a little–not enough–breath of fresh air.  Let’s hope it is resurrected soon and passes.
    All:  I am still miffed at the lack of visibility in the press on the writ application in the Morse Case.  The coverage should at least be as great as that given to his suspension and the allegations.  Sigh…but that is not politics…

  11. DCGoneGalt says:

    RK3:  The lack of coverage for this fiasco is because it does not fit into the fabricated political narrative.  When the facts come out at trial and they result in acquittal those facts seldom, if ever, make it into the media especially when the facts show the true nature of the allegations (e.g. Sinclair, Krusinski, Naval Academy . . . hopefully you can add the Wright case in this summer).  Instead, the facts are disregarded and the outcome is used to further the narrative as in the Senator’s USA Today interview posted today.

  12. RKincaid3 says:

    DCGG:  Yep…I know.  That is the damnable politics at work.  We are a shameful species given what we do to each other–and how we so seem to enjoy doing it.

  13. Lieber says:

    nah, this isn’t media coverage worthy.  first, the order was rescinded, no harm no foul (I realize there are all sorts of internal issues this raises…but it’s all inside ball); second, it would just be seen as legal wrangling early in a case long before the real fireworks. 

  14. stewie says:

    Exactly correct Lieber.  On all counts.