The House Armed Services Committee recently met to debate the National Defense Authorization Act for 2018. Congressman Steve Russell (R-OK) (a retired Lieutenant Colonel in the Army) had some harsh words for critics of the UCMJ. In the course of a debate over a proposal to make court-martial panel selection random (taking from commanders the responsibility to select the members), Congressman Russell said this:

And again, I go back, Mr. Chairman. Honestly, I didn’t know that I was such a knuckle-dragger, that I was so closed minded, that I was a rapist, that I was a murderer, that I was a sexual assaulter, that I were all of these things until I came to Congress and often heard from my colleagues how horrible I was when I was in uniform as a commander and how incapable I was in being able to do justice and make decisions. But now I’ve learned that maybe I just didn’t realize who I was. What I would suggest is that, once again, we do not break the Uniform Code of Military Justice. It is the glue that holds our discipline and good order together.

Here’s a clip (link if video does not show below):

And here is a link to his full remarks in context.

20 Responses to “Congressman Russell says what a lot of us are thinking”

  1. DCGoneGalt says:

    Judging by AFM commercials he’s probably also a baby-shaker, an alcoholic, over his head in debt, and suicidal.

  2. stewie says:

    I’m sorry but I see no reason why commanders need a say in the panel selection process. Random panels are mighty fine IMO. I understand keeping the commanders in the referral process certainly, but I don’t see nearly the same requirement for panel selection.
    I mean most of the time it’s a joke. At least one of the two selections during a typical two year tour involves a new commander who knows almost nothing of a large portion of the officers and enlisted under his/her command. Some involve them just picking BDE and BN CDRs and SGMs with a smattering of other folks.
    I’ve sat in half a dozen panel selections and I’ve seen at best sporadic indication that the CDR was doing a deep analysis of who was most fit or qualified.

  3. DCGoneGalt says:

    stewie:  I share your experience.  It was never a conspiracy but was more like a commander thinking “how do I initial randomly on this sheet of paper this time?  Last time was choose one, skip two.  Maybe this time I should choose two, skip two, then choose one, skip one.”

  4. Zachary D Spilman says:

    I agree with your premise, stewie, but the blame for under-trained and poorly-advised convening authorities goes to the lawyers (as I wrote here). 

  5. k fischer says:

    I like Congresswoman Speier’s comment at 1:43:45  “We just want to make sure that a Servicemember has the same level of justice as a person in the civilian world.” 
     
    I wish I was there, so I could shake my head and tell her, “No, you don’t.  You see, in the civilian world, you wouldn’t see near as many cases go to trial the way you do in the military.” 
     
    Then again, she could be referring to Servicemember Accuseds as opposed to Servicemember complaining witnesses because there are some complaining witnesses who aren’t actually Servicemembers.  Randomly selected juries might take away a little of the inherent UCI because the panel members would not go into the Courtroom knowing that they were hand selected by the Convening Authority.
     
     

  6. Concerned Defender says:

    I don’t think some people really know what “justice” is or “fairness” means.  
    A service member faces far greater chance of conviction than a civilian, and it’s a near abusive jurisdictional issue and a stacked deck.  There may be legitimate reasons for that, IOT maintain efficiency and Good Order and Discipline.  But at least educate yourselves before you make sweeping changes or call for “same level of justice” nonsense.  
    Among the big differences is the nepotism type chain of command relationships between the Commanders and their appointing authority and approval authority relationships with investigators, their seating panels they oversea, their command over the MJs at their bases, the 2/3rds majority to convict, the strongly implied UCI over all members involved in the CM (TC, DC, SVP, panel members, MJ, and military and civilian witnesses, MPs, CID, IG….).  I’m not saying that’s a vast conspiracy, but every person on that installation knows in the back on their mind who is the top dog on that installation.  And 2/3rds to convict is basically a coin toss with the low numbers seated (3 out of 5, 6 out of 10, etc.).  
    So you’ve got a panel of individuals who are predisposed to following rules and judging more harshly, appointed by the General to judge the Accused, prosecuted by the Trial Counsel who answers to the OSJA who answers to the CG, and barely over 1/2 of them need to be convinced in guilt…  often for things that aren’t even crimes in the civilian world.  hhhmmmmm…..
     
    Doesn’t sound very “fair” or “just”  to me… 
     
     
     

  7. The Silver Fox says:

    This Congressman’s straw man argument just proves why commanders ought not have any prosecutorial discretion.  Nobody is saying they’re incompetent to make legal decisions because they’re “rapists or murders or ‘sexual assaulters'” (his words)–they’re incompetent to make serious prosecutorial decisions because they have no legal training.  And, if you’ve conceded that CA’s poor decisions are the result of poor legal advice from their SJAs, then why not make the SJAs responsible for the decision and cut out the middleman?  Wouldn’t the SJAs thus be more accountable?
    I respect this Congressman and his service to our country.  And, I acknowledge that commanders ought to have some discretion over minor offenses.  But, commanders should not have the discretion to make legal decisions about felony-level offenses, nor should they be allowed to hand-select members.  Defend the system all you want, but, to the vast majority of civilians out there, commander control over prosecutorial decisions and member selection makes JAGs look like they’re practicing a kabuki theater version of the law.

  8. k fischer says:

    The other amendment that was resoundingly voted down was an amendment to place prosecutorial discretion in the hands of a chief prosecutor as opposed to a non-legally trained Commander whose Staff Judge Advocate, according to Rep. Speier, has no recent experience in military justice matters and are not experts in military justice.  Around the 1:14:19 mark, Congresswoman Speier brings up the case of US v. Boyce and who C.A.A.F. made the “ridiculous” move to set aside the conviction based on the appearance of unlawful command influence.
     
    This whole debate raises some interesting points and many of these representatives are pretty well educated on these matters.  Rep. Susan Davis D-California @1:30, discusses how lawyers do not push for prosecution as much as Commanders in those he said/she said cases and that discretion should be placed in Commanders because they are more likely to refer the case to trial. 
     
    So, Rep. Davis realizes that more cases go to trial with commanders than lawyers because they want the case to be “resolved” because it takes the pressure off of them one way or the other.   Whereas, Speier wants discretion to be placed with a chief prosecutor, which would actually result in less UCI allegations.  Congress would be able to push the bellybuttons of only three TJAG’s when they don’t like a result and would be free from allegations that they were unlawfully influenced.  Of course, this is all in the name of ensuring that victims receive justice, rather than Accused receive fair trials.
     
     

  9. k fischer says:

    Silver Fox,
     
    I think that Rep. Russell’s statement is a reaction to the inherent argument that Commanders are sweeping sexual assault under the rug, and therefore, should not be trusted with prosecutorial discretion in sexual assault crimes.  The reality is that Commanders are not sweeping sexual assault crimes under the rug, but rather, they are sending too many cases to trial to “be resolved” as Rep. Davis says.  Of course, they are being advised by their TJAG’s to do so, or otherwise, it will ruin their careers.  See US v. Barry.
     
    So, Silver Fox, assume that I like what Rep. Speier is proposing because I genuinely do.  (I think this system would be, in the long run, far more fair than the system we have in practice right now.)  What law should be passed to ensure that the lawyers don’t pull a Mike Nifong and prosecute innocent Servicemen, so they can look tough on sexual assault and get promoted?  Because if we could put something in place to combat the rogue attorney who looks at the prosecution of innocent Servicemen as collateral damage in the US Military’s war on sexual assault, then I think Speier’s system is far more fair.  Right now, Article 37 is the mechanism designed to provide fairness in the process.  You pass Speier’s Amendment and Article 37 is now moot for the most part.
     
    It would be nice if someone would differentiate themselves by not only arguing for things that are solely victim focused to bring about convictions, but also allow for a fair trial. I wonder if Rep. Speier or other persons on this panel are afraid to say, “Well, random juries would be fairer to the Accused also” because it would upset the victim’s rights groups that are pushing for this kind of change. 
     
    It might be a little easier to manufacture assent for these amendments if you can please both sides of the aisle.  Because you will never be able to convince the other Representatives that Staff Judge Advocates are not experts in military justice.  Some are not.  But, I would venture that most are experts, or at least very competent.

  10. The Silver Fox says:

    As a recovering DC, I advocate for JAG control exclusively because the process would be fairer to the accused and would appear fairer to the public writ large.  How do you avoid Mike Nifong?  I don’t know, you uphold the ethical rules for prosecutors (which cc’s aren’t subject to)?  Just because there are bad/unethical prosecutors here and there doesn’t mean we ought to throw the (typical federal/state system of prosecution) baby out with the bathwater. 

  11. k fischer says:

    As a recovering TC, I have shared my opinion with a pro-fair trial group I was involved with only to get shot down because of the stated belief that “prosecutions would skyrocket” if the lawyers ran the show.  And, that might be true initially, but, I think in the long run the trials would be more fair, and they number of less than meritorious prosecutions would decrease.  Lawyers don’t like to lose and are bound by ethics, like you said.  Convening authorities aren’t, and an acquittal at trial allows them some CYA.

  12. The Silver Fox says:

    Agreement in the CAAFLog comments section.  Wonders never cease.  Happy 4th, ‘Murica!

  13. stewie says:

    Zach my only response is…huh? The issue here is one of pragmatism not training or advisement. The rule for selecting panel members basically boils down to…pick ones that can do the job based on your knowledge of them (education, experience, temperament, etc).
     
    On a regular basis, the person doing the picking is new, the people being picked are new, and the SJA advising is new. Not necessarily even new to positions of leadership or the job, but to each other. It’s a fiction a large chunk of the time. On occasion, you get a CDR that knows a good chunk of his senior leaders, so he ends up picking a lot of them, but he still ends up “filling” up the rest with folks he knows very little about.
    That’s not the CG’s fault, it’s not the SJA’s fault, it’s the system’s fault.  Those are the best case examples.  The worst case of course is the CG who picks folks he KNOWS are going to be hard cases, or hard sentencers, or hard on sexual assault, etc. The SJA should advise against that, but if the CG says I don’t care, you have a problem that isn’t the “lawyer’s fault.”
     
     

  14. Zachary D Spilman says:

    I’ll take your anecdotes, stewie, and give you one back. Much of the time (perhaps as much as nearly always) the SJA picks the members and sends the list to the CA for the rubber stamp (with a alpha roster, of course, so that there’s a veneer of choice). So – as I’ve said already – the lawyer is to blame.

  15. DCGoneGalt says:

    Celebrating agreement?  Call me when Stewie and Concerned Defender agree on something.  

  16. k fischer says:

    Wait a second…….I agreed with Silver Fox???????   Inconceivable!
     
    Stay safe and Foxy, my friends.

  17. stewie says:

    First, no, not nearly always as that’s not an anecdote I’ve ever heard from others who have done panel selection.
     
    It’s not the lawyer’s job to tell the CA who to pick, only to make sure he or she understands the standards by which to pick. If the CA abdicates or otherwise sloughs off that responsibility, that’s on them. Certainly an SJA should not be picking themselves, so if they do that, then yes they are wrong, but I’ve never seen or heard of that happening in the Army. Not on the sly, not anecdotally.

  18. Vulture says:

    No Congressman Russell.  I am not concerned with you being a rapist, murderer, or even being a draft dodger if that is what floats your boat.  But I am concerned, when a field grade officer picked by the Convening Authority, becomes a liar: United States v. Commisso, No. 16-0555/AR.   Simple Twist of Fate. @ 1:19:35.

  19. k fischer says:

    Vulture,
     
    Assuming that at the time he was asked the question, the panel members knew that the specification in the case that was in hearing was the same case they reviewed on the SARB and they therefore lied, is this lie product of them them being chosen by the Convening Authority to sit on the court-martial panel, or is it a product of the narrative that the military has a sexual assault problem and the complaining witness is to be believed?  (Not disagreeing with you.  Quite frankly, I am more concerned about the fact that one panel member stated he wanted to reach over and punch the DC or the Accused in the face during a SA trial and actually felt comfortable enough to convey this fact to another person.)
     
    And, if the chain of command has become so tainted that they are unable to provide even the appearance of a fair trial, so that prosecutorial discretion should be taken from them and placed in the hands of a chief prosecutor, then how do we protect them from TJAG’s like Harding, Crawford, and DeRenzi who are not only responsible for the prosecutorial decisions of their respective JAG Corps, but advise Convening Authorities inappropriately?  US v. Boyce and US v. Barry.
     
    Isn’t this kind of like arguing that we take the authority to deal with allegations of sexual assault away from Duke University because Title IX hearings are so unfair to the accused, so we can hand the cases over to Mike Nifong?  How do we ensure that the Chief Prosecutor for each Corps is completely free from Congressional or Command pressure? 
     
    If we keep the status quo, one way we can deal with this issue is yoke these TJAG’s up and give them some kind of adverse consequence for their actions to send a message that violations of Article 37, or even the appearance of violations of Article 37, will not be tolerated.  Because there appears to be zero tangible consequences for violating the rules when the Accused is the one who suffers a violation of his rights.  Who gives a crap about the right to a fair trial when the male is the accused, right?  Adverse action against Convening Authorities is taken only when they take an action that hurts complaining witnesses.
     
    But, I prefer to place responsibility on the people who can own the decisions being made with stupid SA cases–the lawyers.   For the first two years, I would predict that the number of cases will explode.  And, then panel members would begin to distrust the Government lawyers like they do CID, and the Accused would receive a fair trial.
     
    btw, excellent movie reference.

  20. Anonymous says:

    How often do CA’s go against SJA/JAG legal advice?  I can think of two famous times and it didn’t work out for Franklin or Helms career wise.  Until CA’s show they aren’t going to just blindly follow their SJA’s legal advice, which sounds like it’s given only to protect the career of the CA and SJA especially with Art 120 cases, then why would Commanders have that authority to begin with.
    My panel had six officers and four of them were commanders and one had been selected to be a commander.  You can’t think that was just sheer coincidence by the CA selecting them?  If TC has the accused CO testify as a witness how does that influence the panel?  I know in the USAF commanders are told to never second guess another commander’s decision, unless it’s very blatantly obvious (which usually means public and now they have to act on it).  Is that fair or justice?