The Blog


Our history of emergent cultural change, led by military experience, provides reason for optimism as well as enduring civilian oversight. Vigilance and oversight, in that no institution blocks change like the military; confidence and optimism, in that no institution on earth tackles change as successfully as the US military.

The current issue under debate is whether military commanders (status quo) or independent military legal prosecutors (Gillibrand bill) should exercise decision authority to prosecute felony crimes punishable by over one year confinement.

In short, should trained independent assessment of evidence guide the decision to prosecute serious felony crimes such as rape or should we leave this decision to unit commanders whose position of authority with respect to the accused and/or the victim represents an fixed conflict of interest, whether actual or perceived.

Last June, the military brass lined up its formidable presence on Capitol Hill and voiced its unanimous opposition to moving decision authority to a trained independent legal professional, asserting that such action would undermine good order and discipline. Remarkably, this argument mirrors military opposition to change over the past three generations with respect to racial parity; gender integration; and relational equality.

In the intervening months, 54 Senators have pledged their bipartisan support for the Gillibrand bill, including Barbara Boxer (D-CA), Ted Cruz (R-TX), Elizabeth Warren (D-MA) and Rand Paul (R-KY). Whether an additional 6 Senators come forward to thwart a filibuster is yet unknown. What is certain is that this issue will not go away.

Here are a few voices to consider:

“A judge advocate outside the chain of command will be looking at a case through a different lens than a military commander. I believe the impact would be decisions based on evidence rather than the interest in preserving good order and discipline.”                        — Jo Ann Rooney (Undersecretary of the Navy)

“Having someone within your direct chain of command handling the case, it just doesn’t make sense. It’s like your brother raping you and having your Dad decide the case.”

— Sarah Plummer (Marine veteran and survivor of military rape)

“District Attorneys and Attorney Generals don’t have to get permission from Mayors or Governors to prosecute cases because they’re independent. At the felony level, military Judge Advocates should be independent too.”

— Patrick Murphy (former Congressman and Army JAG deployed to Iraq in 2003-4)

“We need to look at fundamental change in the military justice system itself.”

— Jeh Johnson (former Pentagon General Counsel 2009-2012)

“It’s a little bit like when we opened up {to} gays in military in the late ‘80s. There was a lot of concern at that time that there would be issues. But not surprisingly, there haven’t been any.”

— Paul Cronan (Director-General, Australian Defence Force Legal Service)

“Everything about this proposal {Gillibrand bill} takes military needs into account, except for the fact that military leaders don’t like change.”

— Diane H. Mazur (former Air Force officer and law professor)

And a few additional perspectives:

1.   According to the Rand Corporation (2012), the total bill for covering the medical, mental health and “intangible costs” of military sexual trauma is estimated at $3.6 billion dollars.

2.  According to the Department of Defense (2012), 50% of female military sexual trauma survivors did not report the crime because they believed nothing would be done.  Of those who have reported unwanted sexual contact, 62% say they have already been retaliated against by their chain of command.

3.  According to the San Antonio Express (2013), a survey of 1200 service members {male and female} who sought help since 2003 at the Military Rape Crisis Center revealed that 90% of victims who reported sexual assault were involuntarily discharged and diagnosed with mental disorders. This retaliatory mobbing tactic is simply unconscionable in its extreme destructive impact on individuals and systems.

In summary, it is clear that Secretary of Defense Hagel and his Service Secretaries and Chiefs have plenty of work to do. Given the relentless outbreaks of fraud, deceit, misconduct, and myriad other dishonorable actions exposed in recent weeks and months, it would seem that the Gillibrand bill would present a timely opportunity to pivot towards building a culture of good order and discipline supported by evidence and justice.

With all due respect, Sirs:  Stop blocking, start tackling!

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