Military (In)Justice: Real problems, phony answers (Op-Ed)

This article is an official statement of the Military Law Task Force and represents its views. The author is a founder of the Task Force, and currently serves on its steering committee.

In the aftermath of the reports that Air Force Lt. Gen. Craig Franklin, exercising his prerogative as convening authority (CA), overturned the aggravated sexual assault (i.e. rape) conviction of Lt. Col. James Wilkerson, Defense Secretary Chuck Hagel is calling for a change in the Uniform Code of Military Justice to remove that power. Hagel’s initiative (if one could call it that) fails to do anything substantive to address the real potential for abuse in the powers that inhere in the CA, while depriving court martial defendants of a protection that has existed virtually since the founding of the Continental Army.

As the accused’s commanding officer, the CA holds a unique place in American criminal jurisprudence and can choose to have an undue, if not determinative, influence over the outcome of a court martial. Among other powers, the CA selects the officer to conduct the Article 32 preliminary investigation, the members of the court, approves charges and specifications and designates the judge. It is hoped that these powers will be exercised neutrally, but they open the door for command influence, direct or subtle, which far more often inures to the disadvantage of an accused than the rare times that a conviction is set aside. An overhaul of the entire system, including the power of the CA to reduce sentences and reverse findings, is long overdue. Indeed, the old saying that military justice is to justice what military music is to music is attributable, in large part, to the decisive influence the CA is able to exercise. Parenthetically, the other reason the military “justice” system is so skewed, despite the substantial and extensive due process rights that an accused has, is that everything carries potential criminal liability. Nowhere else can someone be prosecuted, for example, for being late to work.

Given all this, It is both curious and unsettling that Hagel’s only suggested change is one that will make conviction more certain, however slightly. Because he is focusing on that single aspect of CA power – while ignoring all those other powers that have the potential to deprive an accused of any genuine due process – the change he is proposing is both too limited and too extensive. That is to say, this single change is dangerous and wrong by itself. It should be one part of a complete overhaul of the CA system.

It is never a good idea to make policy decisions based upon a single, aberrational event. For centuries, the authority of a commanding officer to set aside court martial findings and reduce or suspend sentences has never been questioned, nor has it caused any problems. On the contrary, it has served as a protection for members of the military accused of criminal acts. It rarely results in convictions being overturned, as it did in this case, but the rarity of that happening does not diminish its value. Indeed, the value may well be that, at least on occasion, such authority, and the knowledge that it can be exercised, insures circumspection on the parts of investigators, prosecutors and courts and scrupulousness in deciding which cases are brought and whether guilt has been proven beyond a reasonable doubt. If the price for this is a miscarriage of justice every 300 years or so, it is a small one to pay. When I was young, I was taught that our system held it better to allow 10 guilty people to go free than one innocent person to be convicted. I fear that, in today’s environment, growing numbers of people in the United States believe that convicting innocents is a fair price to pay to protect our safety. Leaving aside whether or not we are really safer if we reduce the rigor with which we approach the awful possibility of someone being imprisoned or executed, I would only note that anyone holding such a position would change it rapidly if falsely charged with a crime.

It is worth noting that a 2/3 vote of the members of a court martial is sufficient to convict an accused. That is, for example, if there are six members, only four need to be convinced of guilt beyond a reasonable doubt to convict. One would think that, if two of six members were not convinced, that would be proof of the existence of reasonable doubt. Thus, the review by a CA is a means of protecting an accused’s rights where unanimous verdicts are not required. So, if Hagel wants to strip the CA of the power to set aside convictions, it would seem that, at a minimum, he should also require unanimous verdicts to convict.

The proposed change, presumably suggested to address the epidemic of sexual violence in military ranks, will overwhelmingly affect those accused of other crimes without having any significant effect on the problem. The military’s own statistics indicate that most sexual assaults are unreported and most of those that are reported do not result in prosecution. On the contrary, the careers of the victims are damaged and those of the perpetrators are unaffected, if not enhanced. How this proposed change will alter that dynamic is unexplained and unexplainable. It is nothing more than a means of having the Defense Department and Congress, as is their wont, make a show of doing something, rather than actually doing the hard work of changing the military culture that is at the root of the problem.

This may be the most insidious part of the proposal. Sexual violence and rape have been a part of military culture since time immemorial. With military service being opened up to women (and, more recently, homosexuals), awareness has increased. Military and government leaders pay lip service to advocates for victims by condemning the violence. They claim that such things have no place in our armed forces, as if saying so is all that is necessary to change the deeply-ingrained culture. Now, they will be able to say they have taken concrete steps to protect rape victims. But, if the proposed change had been put in place 50 years ago, the increase in the conviction rate for crimes of sexual violence would not have been increased by a single per cent. It would have had no effect on the uncounted number of victims who were afraid to even report being raped, or those uncounted more who were belittled and despised because they did report it. None of those victims has received any redress and none in the future will, whether or not the change is implemented. Rather, we will hear solemn words of how the armed forces and Congress are not going to tolerate what they have always tolerated, and they will pat themselves on their backs and say, “Problem solved,” when, in fact, it will have been swept under a rug.

On the other hand, if the change is implemented it will deprive countless accuseds of that protection. The regimentation and discipline that members of the armed forces are subject to includes any number of criminal offenses that do not exist outside the military and anything that impairs the rights of service members facing prosecution should be ingested with a large helping of skepticism so that its indigestible aspects can be regurgitated before they cause more serious maladies. So, lest we be caught in the undertow of diminution of the rights of the accused, we must say, with Frank Sinatra, that if we tinker with the CA system, it should be all, or nothing at all.

David Gespass is the immediate past president of the National Lawyers Guild and founder and steering committee member of its Military Law Task Force. This article was written for, and reflects the views of, the Task Force.