CONGRESS TARGETS MILITARY JUSTICE By Charles G. Kels

DeM Banter:  This will be interesting to watch.  Funny how when a civilian court does not convict it is okay, but if the military finds someone innocent… it is different.  I have no clue as to the cases below, but if the Generals were willing to overturn…there was good reason.  Obviously they were well aware of the maelstrom this would cause–yet sought to do what they believed was right.  Not everyone accused of a crime is guilty. Our JA/Lawyers are top notch, and yes we (as commanders) can go against their advice, but that is so very rare…to the point I have not seen it.  I would agree when the article says the UCMJ is usually pretty darn harsh–of course the depends on the Commander, but in 24+ years of observing first hand (not many in congress have that experience) it is not a perfect system, but is a VERY good one. Of course… I am wrong a lot… I guess we could simply give all of our cases to Congress?  Thoughts? 

Wall Street Journal
May 14, 2013
Pg. 15

090408-F-1949L-003When George Washington assumed command of the nascent American Army in 1775, one of his most urgent priorities was installing a system of military justice. Pleading with the Continental Congress for the appointment of a military lawyer, or judge advocate, Washington professed that “my great concern is to establish order, regularity, and discipline.” Otherwise, he fretted, upon the outbreak of combat “general confusion must infallibly ensue.”

Washington’s instincts about the importance of good order form the basis of America’s military-justice system, which gives commanders ultimate authority. The modern court-martial process provides robust safeguards for the accused, as in the civilian criminal system. Yet the purpose of military law is not only to promote justice. It is also to maintain discipline in the ranks.

The foundations of this commander-driven system are now under attack, due largely to a string of scathing reports and high-profile sexual-assault cases. The decision in February by one Air Force commander, Lt. Gen. Craig Franklin, to overturn the aggravated sexual-assault conviction of another officer, Lt. Col. James Wilkerson, has angered many in Congress and inspired calls for wholesale modification of the Uniform Code of Military Justice, the military’s criminal canon. Secretary of Defense Chuck Hagel has endorsed at least some of Congress’s proposed changes, which would circumscribe commanders’ authority to set aside guilty findings after trial.

Meantime, Democratic Sen. Claire McCaskill has blocked the promotion of Air Force Lt. Gen. Susan Helms for granting clemency in a sexual-assault case last year. The senator’s move follows last year’s lamentable sexual-abuse scandal involving basic-training instructors, and the arrest on May 5, 2013, of the Air Force’s sexual-assault prevention chief for, of all things, sexual battery.

Understandably outraged by an apparent epidemic of sexual violence in the armed forces, lawmakers have lashed out at the military-justice system, taking special aim at the prerogative of non-lawyer commanders to bring and dispose of criminal suits. Much of the controversy has centered on Article 60 of the code, which empowers commanders to change a court-martial verdict. But other critics have been blunt about their intentions to upend a “primitive” system, as Rep. Jackie Speier (D., Calif.) put it. The goal, Sen. Kirsten Gillibrand(D., N.Y.) acknowledged in an April interview, is ultimately “to remove all decision-making out of the chain of command about whether to prosecute a case.”

A common complaint is that the commanders who convene and ratify military trials do not possess specialized legal expertise. Although required to consider the recommendations of their legal officers, commanders are not bound to follow their advice. The fact that a non-lawyer ultimately controls this legal system no doubt appalls the many members of Congress who are lawyers with strictly civilian experience.

However, the notion of command prerogative is deeply ingrained in the military’s legal tradition. While the schemes being floated in Congress would greatly enhance the autonomy of uniformed lawyers—and I am one of them—it is striking that the highest-ranking legal officers of all five branches of the armed forces testified in support of commanders retaining their sole discretion. Notably, it was Sen. Lindsey Graham (R., S.C.), himself a judge advocate in the Air Force Reserves, who warned his congressional colleagues not to “over-indict the system.”

Military lawyers check their egos at the door when they put on their uniforms. Judge advocates play a vital role in advising command, but they support—rather than run—the overall mission. In a sentiment that might shock some Beltway pundits, military lawyers are comfortable with their role and do not yearn for absolute power.

Historically, concerns about military law have been precisely the opposite of those being articulated today—namely, that the system is overly harsh and stacked against the accused. This is largely why the Uniform Code of Military Justice was instituted and subsequently revised, and why Article 60 permits commanders to reduce, but not augment, court-martial results. From this perspective, the clemency authority of commanders is actually less unsettling than the current political pressure to make an example of military rape suspects, rather than treat each case on the merits.

There is nothing more antithetical to competent command than the specter of sexual violence. That’s why now is the time to exercise military leadership—not to undermine military law.

Mr. Kels is a judge advocate in the Air Force Reserve and an attorney for the Department of Homeland Security. His views do not reflect those of the Department of Homeland Security, Air Force or Defense.

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One thought on “CONGRESS TARGETS MILITARY JUSTICE By Charles G. Kels

  1. It never fails to perplex me when Airmen sexually harass or assault others. Given the amount of time we spend educating the AF on what sexual harassment and assault IS, how to prevent or stop it while happening, and publicly ending the careers of convicted assailants, how can one of us not understand that it is wrong and such an act has grave consequences? I have absolutely no problem removing these people from the profession.

    Before I left my last assignment, the CSAF directed all reported cases of sexual harassment and assault to be decided at the WING COMMANDER level. That was in early 2012. A year has now passed and the situation in the AF seems to be getting worse. I am at a loss to explain this and find the situation embarrassing and blot on the professionalism of the Air Force. And yet despite this horrible situation, we must avoid the temptation of pressuring commanders to set aside their duty of due process and/or compel them to impose unusually harsh punishment in the interest of avoiding more bad press.

    I have spent some time studying the recent case surrounding Lt Col Wilkerson, the IG at Aviano AB convicted by a court martial earlier this year for sexual assault. The convening authority, Lt Gen Franklin, dismissed the findings of the court martial and provided complete clemency to Lt Col Wilkerson. Gen Franklin’s decision was VERY unpopular with the media, congressional representatives and women’s rights advocate groups. This is an example of an officer executing his duty and making a decision he felt morally and professionally obligated to make – regardless of the consequences to himself. Service Before Self – isn’t that a Core Value? What about Excellence? Did he possess the qualifications necessary to arrive at the decision to overturn the case? Did he do due diligence? If you have a moment, read his letter to the Secretary: http://www.foia.af.mil/shared/media/document/AFD-130403-022.pdf I do not have access to the comprehensive trial material required to make an independent assessment of Lt Gen Franklin’s reasoning – and I think it’s a safe bet MOST reporters didn’t either – but in his own words he spent weeks agonizing over the material. He knew this decision would bring public scrutiny on him and his profession. His decision was not made lightly. I fear the outcry over Gen Franklin’s decision may produce an environment where commanders are pressured to make politically expedient decisions in lieu of what they believe to be morally right and just.

    As evidenced by the coverage of Lt Gen Franklin’s decision, the theme broadcast by the general media implies that commanders are NOT conducting a proper review of the evidence and they are reducing or dismissing charges against those accused of sexual crimes because they do not care about victims or worse, they are deliberate sexist members of the good old boys’ network. The charge is that this behavior has created an environment where victims of sexual harassment or assault fear coming forward to report these crimes. Personally, I find this theme offensive because it impugns the integrity of the profession. I have always taken my oath to the Constitution very seriously. This includes ensuring accused members are provided due process and making disciplinary decisions based upon reasonable standards of proof. I can assure you; I would severely punish and/or separate sex offenders IF the evidence supports the charges. To do otherwise would be an arbitrary and capricious miscarriage of my sworn duty. We must eliminate sexual crimes by attacking their cultural and environmental roots while simultaneously guarding against creating an environment where commanders feel pressured to convict without sufficient evidence thereby trading one injustice for another.

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