Note: Post edited to provide a link to POD’s reply.

Back in April, in this post, we noted the publication of a report by the advocacy group Protect Our Defenders (POD) that accused the Department of Defense of misleading Congress regarding sexual assault prosecutions under the UCMJ.

The Secretary of Defense responded at the end of May and his response is available here.

The response included some harsh language about POD’s report:

[T]he central issues raised in the report and article are based on certain misunderstandings of how the military justice system works, lack of access to information contained in the full case files, or a disagreement on what “counts” as a sexual assault case.

Response at 1.

The response and its enclosure is a persuasive rebuttal of POD’s report in five ways.

First, the enclosure highlight’s POD’s “attempt[] to distinguish between cases where civilian authorities would not (‘declined’) bring a case in a civilian court, and cases where civilian authorities voluntarily allowed (‘deferred’) the case to be brought in a military court, even if the civilian authorities may have believed they would have been able to bring a case.” Encl. at 2 (emphases in original). The enclosure explains that the military justice system does not make a meaningful distinction between a declined case and a deferred case, and further that making such a distinction “would be difficult even with perfect data.” Encl. at 3.

Second, the enclosure discusses how sexual assault cases aren’t just those involving prosecutions for violations of Article 120, 120b, or 125, but rather that the military “tracks cases involving allegations of sexual assault as ‘sexual assault cases’ even when the charges filed may be for an alternate or collateral offense.” Encl. at 3-4. The enclosure then provides a few examples of cases involving convictions for other offenses (such as conduct unbecoming an officer, obstruction of justice, or possession of child pornography) that are rightly characterized as sexual assault prosecutions based upon the facts of the case. POD’s report, however, did not consider (or acknowledge) these facts.

Third, the enclosure disputes POD’s calculation of conviction rates based upon the fact that POD “applies different criteria to determine which cases to consider in assessing conviction rates than do the Services.” Encl. at 5.

Fourth, the enclosure chastises POD for its observation that “the military did not identify a single case where a commander sent a case to trial after a military prosecutor refused to prosecute.” Encl. at 7 (quoting POD report at 2). As the enclosure explains, “the commander has the statutory authority and responsibility to make the ultimate decision regarding referral of a case to trial, but he or she does not make that decision in a vacuum.” Encl. at 7

Finally, as POD’s report highlighted that court-martial sentences often vary widely, the enclosure notes that the UCMJ’s sentencing scheme was created by Congress, and the DoD recently proposed changing it.

Edited to add: POD replied to the Secretary’s response in a letter available here. 

14 Responses to “Secretary of Defense rebuts allegations of Protect Our Defenders”

  1. Weirick says:

    Good to see SecDef engaging and thereby further legitimizing POD. 

  2. Joseph Wilkinson says:

    The letter indicates that he was responding to a U.S. Senator, not to POD directly. 
    In any case, people like that are walking around with too much “legitimacy” already…their views are pervasive enough that you can’t induce others to ignore them by ignoring them yourself, especially not when those “others” are in Congress.

  3. DCGoneGalt says:

    POD People:  From the movie Invasion of the Body Snatchers.  A nomadic, parasitic group of aliens from a dying planet with no regard for the destruction they cause or the resources they drain whose sole purpose in life is to perpetuate their own survival.

  4. The Silver Fox says:

    How dare an organization stand up for crime victims!  The temerity.  

  5. DCGoneGalt says:

    You can stand up for crime victims without taking a vacation from reality.  Many people and organizations do it every day.  However, it takes a God-given talent to make the Pentagon appear credible, reasonable, and driven by common-sense but by comparison the POD-People manage to pull it off.

  6. Concerned Defender says:

    Well there is definitely serious cause for debate on this issue.  Articles 120, 125, and 134 (adultery) have become widely abused and are simply out of touch with society.  The former two in particular are so complicated and cumbersome in usage, and often the punishment doesn’t fit the crime.  When the definition of sex assault includes trivial playground incidents, or no evidence more than an unsupported allegation rammed through the system, and the harm results in a lost 18 year distinguished military career and the multi-million dollar ramifications – the train has went off the tracks.  

  7. stewie says:

    Pretty disingenuous comment SF since you know that’s not remotely the issue. Why even bother? It’s not even good snark.

  8. k fischer says:

    I still don’t have the foggiest idea of how civilians DA’s not taking cases to trial that the military takes to court-martial is even remotely relevant to whether or not military lawyers should exercise prosecutorial discretion over sex offenses, rather than Commanders.  I am an educated man, but I cannot explain why the DoD and the POD are engaging in this proverbial pissing contest. It completely baffles me.  Unless, POD’s position is that state prosecutors should handle sex assault prosecutions rather than the military, it seems that this issue is comparing apples to oranges.  And, I don’t know why DoD would bring this topic up since it is not even related to the issue between McCaskill’s grand plan and Gillibrand’s grand plan.
    As far as the DoD boasting about how they can get a conviction for collateral misconduct and still hold a Serviceman accountable for sexual asasult charges for which the Serviceman is acquitted, I think that point is completely stupid.  Yes, it is true and it happens every day in military court rooms, but it is by no means something to brag about……unless you are trying to please Nancy Grace.  To apply Bobby DeNiro’s logic and reasoning when he played Al Capone in The Untouchables:
    I’m gonna tell you something. Somebody rapes a Servicemember, I’m gonna Court-martial him. Somebody rapes, I’m gonna say you raped. Not Court-martial him for spitting on the sidewalk. Understand? 
    I actually support many of POD’s position that trained lawyers should have the discretion to prosecute or not prosecute.  I think this would do wonders on decreasing the UCI and the appearance of UCI, and it would bring balance to military trials.

  9. Joseph Wilkinson says:

    ….and it would mean commanders couldn’t enforce their orders, if the lawyers personally didn’t like those orders.  Bad idea for military justice.   (But quite a good one for civilian justice, where rape cases belong.)

  10. DCGoneGalt says:

    Giving convening authority and disposition authority to JAGs would not change the politicization of the decision-making process.  It would just be shifted to JAGs.  And based on what I have seen from JAG Corps leadership and SJA recommendations they are no more willing or able than commanders to cave to the pressure.

  11. DCGoneGalt says:

    Meant to say they are no more willing or able to resist caving to the pressure.

  12. stewie says:

    DCGG, I think y ou would see SOME resistance.  There a few O6s who know they will never make O7 and are just doing it because they still enjoy it, and those folks would probably feel less pressure to cave to anything.  But yes plenty of O6s either would feel an obligation to the command/commander to protect them, or would feel pressure themselves for various reasons.
    But at the end of the day, it certainly wouldn’t result in more cases going to trial.  It would be at most the same amount and likely at least a little bit less.  Which is the opposite of the intent behind the push.
    And JW what does “there isn’t enough evidence to go trial” have to do with “enforcing orders?”
    Do MJs rebut that authority if they rule in favor of a 917? Do Panels when they vote to acquit?
    Not getting the link between enforcing orders and determining whether suitable evidence exists to go to trial.  In fact Congress has already said that if it’s weak enough and an SJA says not enough in the pretrial advice then it CAN’T go to trial. Yes?

  13. Concerned Defender says:

    I don’t have the solution.  But shifting the decision making to JAGs is not the solution.  As a former JAG and now civilian counsel, I’ve reviewed thousands of investigations.   The number of investigations and recommendations for prosecution or negative action which passed “legal review” yet were totally lacking is absolutely mind-blowing.  I’ve had 5 in the last year where the lawyers who approved the findings and recommendations should be sanctioned from ever practicing law, and appeals to the SJA fell on deaf ears.  Each of these five veered so far from the written regulation standards as to cause me to seriously question the integrity and mental abilities of these “lawyers.”  I literally have seen better work from high school students.   And the SJAs lacked the moral courage and intellectual integrity to do the right thing.  I am so frustrated at the laxidasical application of facts and evidence to anything coming close to a real investigation.  It’s totally undermined my confidence in the JAG Corps and Army leadership.  Thankfully, up to this point, I’ve been able to fix these injustices at the top of the food chain, including recently fixing one at the Sec Army level (to my surprise, and only because the investigation was so illegal there was no other choice).  
    But when I look to the top, we have social justice warriors running the show.  In this environment, where intellectual honesty and integrity is shunned for the next special interest groups, the JAG Corp and justice will be gutted and destroyed.  This is where we are folks. 
    I’m not alone in my views.  Ask any military defense attorney and most will agree and have seen it too. 

  14. Vulture says:

    This summer I an doing an stats course and have a project as part of the course work.  I remember seeing these numbers that came out with the report and thought that it was hard to draw a correlation between the thousands of cases they cite and the only 35 or so cases that CAAF writes and opinion on in a year.  Also, the raw numbers do not form a basis to connect any individual data point (by individual, I mean Accused) to the category the report puts it in.  That is not to say that these figures are worthless, but the annual FY reports and occasional news story don’t provide a workable picture.
    If you know of other data available can you please post a link to it?