In a brief memo released on Monday (available here), Secretary of Defense James Mattis asserts that the burdens of the military justice system are worth the cost:

Time, inconvenience, or administrative burdens are no excuse for allowing substandard conduct to persist.

The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it. Military leaders must not interfere with individual cases, but fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system. Leaders cannot be so risk-adverse that the lose their focus on forging disciplined troops ready to ferociously and ethically defeat our enemies on the battlefield.

(emphasis in original). That all assumes that the behavior at issue is actually improper – under both the facts of the case and the law – rather than merely subjectively undesirable.

30 Responses to “SecDef says that “it is a commander’s duty to use [the military justice system]””

  1. Tami a/k/a Princess Leia says:

    This won’t raise any issues of unlawful command influence.  Sarcasm.

  2. CDR X says:

    I love me some Jim Mattis, but this memo is ridiculous.  Commanders aren’t prosecuting fewer offenders because they’re lazy or unwilling to hold people accountable, they’re choosing administrative actions because we’ve made the disciplinary process unworkable.  We don’t have restricted barracks or correctional custody anymore, bread and water is going away, and good luck finding a Navy brig anywhere near your command if you want to impose pretrial confinement or hold a summary court-martial with any hope of awarding a meaningful punishment.  Want to send a case to a special court-martial?  Well, too bad, prosecutors are too busy going after unwinnable sexual assault cases to bother with your UA + drug pop.  Don’t send us memos, SEND HELP.

  3. TC2017 says:

    CDR X is unequivocally correct. You hit the nail on the head, sir. 

  4. Kf says:

    It appears that SecDef thinks Commanders are too concerned with fairness to the accused to eradicate malignant behavior from the ranks.  That is promising.  This possibly means that Commanders are pushing back against their SJA’s on unwinnable (and sometimes outright frivolous) sexual assault cases because they have grown tired of sending Servicemen they believe to be innocent to a GCM.
     
    Or it could mean that Commanders are being given advice to administratively separate non-sexual offenses by SJA’s because their TC’s are so inundated with sex offenses that they have little time to deal with conduct by Sevicemembers who ten years ago would have received a BCDSPC.
     
    Or maybe it’s a little of both.  Either way, this memo does very little to address the issues that CMDR X so astutely raises.  One merely needs to scroll through the Army trial judiciary docket on JAGCNET to see that a case without an Article 120 offense is the exception, not the norm.  He ought to focus his fires on a few Senators who have created instability in the UCMJ in their quest to get sexual assault convictions.

  5. DCGoneGalt says:

    The contents of this letter aren’t anything different than what many commanders are already doing, IMO.  They are using the justice system as a fall back for any tough call (both factually/legally and on sexual assault cases tough on their career). 
     
     

  6. Bill S. Preston, esq. says:

     
    CDR X is spot on.
     
    When single specification SPCM takes almost as much time as a GCM, many installations don’t have brigs or even restricted divisions, and trial shops turn down cases investigated by commands or CID (as opposed to NCIS, etc.), commanders sensibly decline to use the MilJus system.  But the various JAG Corps have some responsibility here.  They need to take a hard look at their ability to support basic good order and discipline matters, as well as the advice that trial counsel give on what cases merit court-martial. 
     

  7. Alfonso Decimo says:

    Consistent with CDR X’s remarks, if SECDEF wants commanders to use the military justice system as they did in the past, rather than relying on the administrative process, he needs to restore the military justice infrastructure. Many decades ago, I joined the Navy JAG Corps when the brig, the restricted barracks, the criminal litigators, and the judge were co-located near every major base. I also served when military justice became under-resourced and all these elements needed to be coordinated across large distances. When they came together, in part b/c the stakeholders had insufficient personal and professional interaction, it was highly inefficient. Regional and base commanders predictably became increasingly inclined to use administrative actions as the default. Sometime around 2005, after Moreno, the Department of the Navy began to direct more resources towards military justice, but the infrastructure was never restored. I agree with SECDEF, but his initiative will fail if it’s only words on a page.

  8. Philip D. Cave says:

    One point here–if you do consider or find the SecDef’s directive is UI–he is subject to the UCMJ is he not, unlike Presidents Obama and Trump.  Remember part of the UCI discussion on the CinC–he was a civilian and not subject to the UCMJ even though the CinC has UCMJ powers.

  9. It is what it is says:

    The military justice system has revealed itself to many to be an alter upon which, in order to avoid the jaundiced eye of their political and military superiors, general and flag officers readily sacrifice the reputation and well-being of subordinates – and particularly enlisted subordinates – who are accused of sexual assault in untenable cases. Compounding their inclination towards self-preservation, the general and flag officer ranks are predominantly advised by legal officers desperate to be seen as friendly to their patron’s career aspirations, and, no matter how many acquittals pile up, inevitably seem unable to find any prosecution whatsoever to be “unwarranted by the evidence” so long as the victim wants to go forward.Subordinate commanders see all of this, and they see the pitifully weak cases that are presented to them at the time of preferral and when they are selected to serve as jurors on courts-martial or members of discharge boards. They also see that, for all of their supposed concern, the military services have not seen fit to create a litigation career track such that trial advocates who present cases to them have any significant amount of litigation experience. We call a lawyer who barely graduated law school 6 years ago “senior.” ignoring the fact that half of their practice was probably spent drafting wills using will-producing software or producing power-point slides for the endless onslaught of inspections.  They see that the legal offices of the department of defense are more focused on ensuring that their experienced advocates are advising general officers on which gifts they may keep for themselves than they are on having those officers in the field litigating felony-level courts-martial. It breeds cynicism. It breeds contempt for superiors, it breeds contempt for judge advocates, and it breeds contempt for the military justice system. And so they use that system less because they see it as fundamentally prone to injustice. And, they are not wrong.In such light, this call to increase use of the military justice system is destined to be seen by those who actually lead troops as merely being an attempt by those with little actual human-to-human leadership responsibility, but lots of political vulnerability, to put on a good show for those who are pulling their strings or riding their backs. This is where we are. We might find our way out of this purgatory if would could but muster a little institutional courage. That might mean that a significant number of legal “yes men” need to be shown the door.

  10. Bionic Barry Dylan says:

    I don’t read SECDEF’s memo as UCI, and I don’t really believe this is even all that novel of a statement – especially from Secretary Mattis.  He regularly puts out reminders to stress that he expects discipline, ethical conduct, fiscal responsibility, etc. from all members of the DoD.  Setting and enforcing expectation in such a manner is good leadership.
     
    Of course, if this kicks off the discussion that leads to a return of sanity to the military justice system, I’m all for it.

  11. AnnoyingProle says:

    Yeah, where’s the U in the UCI?  This seems like LCI to me.
     
    That said, as much as I love Mattis, I’m with CDR X.  If it takes 8 months to complete a SPCM, all the while an Accused is engaging in low-level dirt baggery at the command, no rational CO who’s trying to keep good order at this command is going pass up a quick ADSEP.  And with the steadily mounting admin requirements that come with each case, without corresponding manning, it’s no surprise people focus on the cases they have to (e.g., sex assault and kid cases).

  12. Vulture says:

    Mathis may be doing what good military leaders have to do.  He has a boss that, for lack of a better term, is a sexual predator.  He has to remind his subordinates to hold the line regardless.  The presentation here is weak IMHO invoking the flame of lethality and waving the flag of disciple several times.  But he only prosecutes the deviant behavior once with calling it a “cancer.”
     
    How is this meaningful to a Sec of Service?  How is that meaningful to a Combatant Commander?  Where is the policy effective in those terms?  Mad Dog has plenty of weak leadership from the O6 to 3 star level.  Weak in character, weak in skill, weak in conduct: but they still promote.  As a civilian in control of the military he has to get out of the 5 man span of control mentality and be able to perceive the dynamics at a lower level. 
     
    He owns that 5 wall building and everything in it.  Those should be sufficient resources to make the changes he wants to.

  13. Richard Stevens says:

    I would be interested to know what prompted this memo, what (likely misleading) information it was based on, and what he would actually say he was specifically referring to if he wasn’t required to be so vague to try to avoid UCI issues.  What does he specifically believe is occurring in the military justice system, and what specifically is he basing this belief on?  It just amazes me how many changes to the system are based on mistaken information or misinformation.  I still remember seeing Don Christensen standing with Senator Gillibrand and pushing this insane narrative that GCMCAs are out there trying to ensure that military accuseds escape punishment for sexual assault allegations, so the system needs to be taken away from Commanders.  Comparing how “closely” GCMCAs know the accused to the head of Walmart.  It was bizarre, yet so many believed that narrative and ran with it.  When, in my 23+ years handling military cases, the Gillibrand/Christensen narrative was not my experience at all.  Lord knows what (mis)information SECDEF Mattis has been fed that led to this latest memo.  Can’t wait to see the new annual systemic changes in the next NDAA…

  14. That Guy says:

    With all this talk how justice needs to change, anyone have thoughts on the Military Justice Pilot Program that the Army implemented? Is the helping justice on non-sexual assault case go more quickly?   

  15. stewie says:

    Yeah, not seeing UCI here either. He’s saying you should have admin remedies as your “default” and should consider CMs as a tool. He’s not saying “stop doing admin seps, send everything to CM.”
     
    The reality is that up until Iraq really blew up (no pun intended) we were routinely taking barracks larcenies and drug possessions to CM. Now, we usually deal with those via administrative separations. I’m not suggesting going back per se, there isn’t anything inherently wrong with that approach, but it’s definitely a difference between then and now.
     
    Now some have pointed out that it isn’t risk adverse that’s the problem, it’s timelines. But that’s as it should be. A CM (other than a summary or straight special) should NEVER be quicker than an administrative separation. The Command has always had to make a choice between getting the alleged offender out more quickly, or more slowly but with a greater range of possible punishment.

  16. Kf says:

    To what do you think he was referring when he states “[F]airness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks.”?
     
    Do you think Commanders give a rip about ‘fairness to the accused” in a drug hot case or an AWOL charge?  They didn’t ten years ago.
     
    If he has heard that Commanders are adminseping accused to be fair to them, then my hunch it is for 120 offenses. 

  17. Kf says:

    That might mean that a significant number of legal “yes men” need to be shown the door.

     
    Harding retired and brought his prosecution philosophy to our institutions of higher learning.  And it strongly appears Crawford will retire before Barry is published……

  18. stewie says:

    kf, I tend to read things in context and look for intent. The vast majority of that paragraph is focused on telling commanders to not simply prioritize timeliness or ease over discipline. I don’t think the one sentence you point is some sort of wink and nudge about sex assault cases. The main thrust of his missive is that he believes, rightly or wrongly, that commanders are not doing CMs, not because it would be unfair, or there isn’t evidence to support it, but because it takes longer, is more expensive and harder while admin separation is quicker, easier, and cheaper.
     
    Now as gov counsel I’ve always advised CDRs that admin sep is a valid tool. It creates quick results, it gets the alleged offender out of your formation and sends a message that misconduct will be dealt with quickly. You save the court-martials for the big stuff. Of course, other GC advocate for a more aggressive CM approach.
     
    There is no perfect number. We may have done too many at one point, not enough at another.

  19. Alfonso Decimo says:

    KF – I agree the YM who need to be shown the door are mostly three-stars! – Al

  20. Tami a/k/a Princess says:

    The discipline of today includes vigilant operational security, protection of electronic equipment, and responsible social media activity. We must demonstrate respect for all Service members, build trust, and remove the cancer of sexual misconduct from our ranks.
     
    Enforcing standards is a critical component of making our force more lethal. Our leaders must uphold proven standards. They should know the difference between a mistake and a lack of discipline. If a subordinate makes a mistake, leaders should learn to coach them better. But we must not tolerate or ignore lapses in discipline, for our enemies will benefit if we do not correct and appropriately punish substandard conduct.

     
    So, sexual “misconduct,” including “irresponsible” use of social media, is a “cancer” that MUST be dealt with in the military justice system, as it is a “commander’s duty” to use it.  Never mind that an administrative separation will also result in the servicemember being eliminated, because an administrative separation is an “easy wrong” versus the military justice system is the “hard right.”
     
    Apparently sexual “misconduct” is never a “mistake” that someone could learn a lesson from–it is always a “lack of discipline.”  Of course, it also assumes every complaint is a legitimate complaint that actually involves actual sexual “misconduct.”

  21. Nathan Freeburg says:

    The unsaid part of all of this is that the SVC/SVW etc. programs have absolutely decimated military justice expertise (for a number of reasons).  Great for me, bad for the uniformed folks.  A giant own goal.

  22. Sir Visdis Crediting says:

    The unsaid part of all of this is that the SVC/SVW etc. programs have absolutely decimated military justice expertise.

    This is true. Most victims don’t want to testify and undergo cross-examination (for a number of reasons). When commanders are told this by an SVC, it’s usually accompanied with an explanation of how respecting the victim’s wishes gives control back to the victim. What commander, let alone any decent human being, will argue with that?
     

  23. Tami a/k/a Princess says:

    Doesn’t this fly in the face of DoDI 6495.02, Encl. 4, para. 1(c)(1), that alleged victims’ “wishes” should be honored?  So if they don’t want a court-martial but are OK with an administrative separation, the commander is required to say too bad, so sad, my boss told me to do otherwise.

  24. Isaac Kennen says:

    Doesn’t this fly in the face of DoDI 6495.02, Encl. 4, para. 1(c)(1), that alleged victims’ “wishes” should be honored? 

    I don’t think so… the DODI merely says a victim’s decision to not participate in a prosecution should be honored. The DoDI doesn’t require the command to give that same deference to the victim’s views on disposition. Instead, under RCM 306, the victim’s views on disposition merely have to be “considered,” along with a laundry list of other factors including any potential improper motives the victim may have for making the allegation. See RCM 306b, Discussion.Accordingly, I don’t think there is any regulatory support for allowing victims to dictate disposition.  Commanders should just be taking the victim’s desires regarding disposition into account as one of many factors they must balance. 
    True, if that victim is unwilling to participate in the prosecution, then that may make prosecution as a means of disposition logistically untenable… but that doesn’t mean the victim gets to “call the shots” for some alternate disposition.  Their views – not offered under oath and not subject to cross-examination – are just one piece of the puzzle, and should be given whatever weight the commander things such untested statements deserve.  I’d wager some are worth more than others, depending on the totality of the circumstances.

  25. Concerned Defender says:

    With respect to Mattis, and there are lots of going points here, I never once recall looking around in the military and having a general feeling that there was no rule, law, good order and discipline.  Nor do I recall thinking, “Geez, not enough Courts Martial around here.”  Sure, crimes will happen in any system, but they are universally and appropriately addressed.  But I vividly recall extremely busy CM dockets, and TCs and DCs working, quite literally in many cases, around the clock with huge case loads.  I also recall waiting rooms full of Soldiers facing relatively fast/easy Article 15s and Chapters.  
    This tells me there IS rule, law, good order and discipline.  And that absent tripling the JAG Corp size, it would over burden the system to prosecute every allegation.  Nor does that fit “justice” very well.  
    The UCMJ system is indeed broken in some ways, but not for the reasons of being too lenient on criminal allegations.  The big way to fix it is to restore some of the rights of the Accused, as I see that as the area most often and most egregiously violated. 

  26. B says:

    Nor do I recall thinking, “Geez, not enough Courts Martial around here.”
    Your thinking is directly contrary to that of the TJAG, which he has stated on multiple occasions.  And our numbers are down from historic levels.

  27. stewie says:

    “Apparently sexual “misconduct” is never a “mistake” that someone could learn a lesson from–it is always a “lack of discipline.” 
     
    In this climate? It’s a bonehead stupid thing to do, best case, and I don’t want that person next to me in a foxhole if they are that colossally stupid after all the training they receive. And yes, it’s a lack of discipline. Keep your hands to yourself is something we learn in grade school.
     
    “Of course, it also assumes every complaint is a legitimate complaint that actually involves actual sexual “misconduct.”
     
    I didn’t read that in this. And it certainly isn’t the reality, or else we’d have a 100 percent prosecution and conviction rate.

  28. Concerned Defender says:

    B says:
    August 18, 2018 at 5:10 PM  
     

    Nor do I recall thinking, “Geez, not enough Courts Martial around here.”Your thinking is directly contrary to that of the TJAG, which he has stated on multiple occasions.  And our numbers are down from historic levels.

    And there’s part of the problem.  Seems to me the role of the TJAG (and the SJA, as a direct extension) is meant to be and should be IMPARTIAL and seeing that fairness and justice is done.  
    Sadly, the TJAG and SJA morphed into senior Trial Counsel prosecutor arms.   And not impartial, rarely siding with the defense or accused in my experience.  With what frequency is the TJAG and SJA having ex-parte correspondence with the MJ shop vs. the DC shop?  I’d say 9 to 1.   In my view, that’s abusing their positions of authority.  
     

  29. Bionic Barry Dylan says:

    Wouldn’t a convening authority’s election to not refer a garbage 120 accusation be the “harder right” as opposed to the “easier wrong” of just referring those charges and letting a panel decide?
    In today’s climate, where a commander puts a bulls-eye on his/her own back for rightly exercising command discretion, I think that is the much “harder right.”

  30. Kf says:

    Stewie,
     
    I think you can infer an assumption in this memo that all claims are valid without there being a “100% prosecution and conviction rate” in reality.
     
    Once again, MCIOs are complaining that they are discouraged from thoroughly investigating Article 120 offenses.  So, this presumption appears to be trained and implanted from the start of the case.  And it’s kind of difficult to find the smoking gun that Harding refers to when your MCIO are trained to be ostriches.   And, politically, it is far safer to throw the complaining witness on the stand to be devoured by defense counsel, than to dismiss charges that strongly appear to be fabricated.  If the accused is acquitted, then everyone’s clean, right?  
     
    My personal experience has shown me that some of the most ridiculous cases can be brought before a GCM panel even after the PHO recommends dismissal. So, I’d hate to see how bad the cases where the guy gets administratively separated were.  I’ve also bad cases where I brought forth exculpatory evidence where an admin board got cancelled due to the recommendation of the TC.  So, there are good ones too.
     
    But I agree with Bionic Barry.  On too many cases the harder right is dismissal, and the Convening Authority takes the easy left with referral or an admin sep.  Makes me wonder if they are teaching the leadership philosophy of Pontius Pilate at the Service Academies and the various Office Basic Courses of Excellence in the respective UCMJ blocks of instruction.