THE GUTTING OF MILITARY JUSTICE (AGAIN)
On December 28, 2015, the Department of Defense submitted a legislative proposal to Congress to change, yet again, the military justice system. The Military Justice Act of 2016 may just be the death knell of military justice and the rights of military servicemembers. This proposal was drafted by a group called the Military Justice Review Group, which is just another name for a bunch of high ranking or senior officials who do the bidding of the Pentagon. And it is the business of the Pentagon to radically change military justice.
You should understand that this is a power struggle between the Pentagon and certain members of Congress, notably including Senator Gillibrand. Senator Gillibrand (D-NY) assumed the position of U.S. Senator after Hillary Clinton left the post to become Secretary of State. Gillibrand has been on a crusade to hype sexual assault in the military, putting forth the story that sexual assault is rampant in the military and that military commanders have been turning a blind eye to the problem for years (a ridiculous notion). Senator Gillibrand and other members of Congress have threatened many changes to military justice. The most important of those proposals was to remove military justice from the power of the commanders.
Well, the Pentagon doesn’t want to give up any power and has been engaging in a campaign to show Gillibrand and other members of Congress that they take sexual assault seriously and are doing something about it. They have taken radical actions over the last decade. First, there has been an extensive training program instituted for all the services on how to prevent and recognize sexual assault. Such sexual assault prevention training would appear to be a great idea. After all, 85% of the military forces are made up of men and women between the ages of 18-22. The same age as most college students. And we know that most young men and women in that age range like to do two things – drink and have sex. However, this sexual assault prevention training was perverted and turned into a nightmare, especially for the Marine Corps. In 2012, then-Commandant of the Marine Corps General Amos went on a Heritage Brief tour, speaking to all of the officers and senior noncommissioned officers in the Marine Corps on sexual assault. Another way to look at this is that General Amos was talking to every potential military jury member in the Marine Corps (since commanders routinely exclude Sergeants and below from serving on court-martial). In his now-infamous “Heritage Brief” tours, General Amos made some outlandish and offensive comments to “his” Marines. He stated that 80% of all sexual assault claims are legitimate and that the Marine Corps needs to get rid of those accused of sexual assault. Talk about unlawful command influence!
In addition to sexual assault prevention training, the Pentagon began making radical changes to military justice. One of the earliest changes in this campaign is also one of the most shocking. Article 120 of the UCMJ addresses rape and sexual assault. A major change was made to the statute in 2007 (while President Bush was in office) when the old Article 120 was broken up and divided into many separate enumerated offenses, creating separate offenses for the different types of sexual assault. In one of those new Article 120 offenses, the statute addressed sexual assault while a victim was incapacitated due to alcohol or drugs. As probably 95% of the military’s sexual assault cases involve drinking by the participants, this was an important new offense. However, that statute said that if the government proved the alleged victim was incapacitated, then the defense must prove consent. Let me say that again – the defense must prove consent. Now the Constitution of the United States and the laws of our country are clear about one thing. The Government must prove all crimes beyond a reasonable doubt and the burden of proof is never on the defendant. That is what we call a bedrock principle. Yet in this new statute, for the first time in American criminal justice, the burden was being placed on a defendant to prove his innocence. When I and other practicing military and civilian attorneys first saw this new statute, it was immediately clear to us that this new rule was unconstitutional and couldn’t stand. Thankfully, the military judges and courts quickly ruled the same.
But what is most disturbing is from where this new law originated. It came out of the Military Justice Review Group! This MJRG was constituted of senior military lawyers and other very smart and experienced attorneys. It then was reviewed and approved by Congress. And while no one ever accused Congress of being the most thorough and competent organization, they do have actual lawyers there who are supposed to review laws in light of the U.S. Constitution. And the new law was signed by our President. And while it only took a few minutes for those who actually practice in the courtroom to recognize that this new statute was unconstitutional, this new law was originated by senior military lawyers and passed through our legislative and executive branches without even a hiccup!
Since that time, the military justice system has been receiving a total overhaul, with major changes every year or every other year. At the heart of this is the Pentagon and the Military Justice Review Group. Several years ago, I attended the semi-annual American Bar Association meeting held in Dallas, Texas. I went and sat in on the ABA’s Military Committee meeting. This meeting was attended by the Judge Advocate Generals or their assistants from all the services – lots of generals, admirals and colonels. It was also attended by two judges from the Court of Appeals for the Armed Forces (CAAF), the General Counsels from the services, the Department of Defense General Counsel, and various other civilian and military officials. The topic of discussion for this meeting was almost exclusively sexual assault and how to address the concerns of Congress. Generals and Admirals were almost falling over themselves to say, “See, we can be the toughest!” The Air Force general was excited over handling the pilot program of Victim Legal Counsel, one of the most idiotic and dangerous of the recent reforms. There was almost no opposition to any ideas being thrown around, with the exception of the DoD General Counsel who, when discussing the idea of Victim Legal Counsel, stated words to the effect of, “This is the dumbest idea I have ever heard.” All during this meeting, the two CAAF judges just sat there listening to the wishes and desires of big military. While I know that judges all over the country participate in various criminal justice committees and forums, in this setting it seemed to really bother me that these CAAF judges were soaking it all in. But most disturbing about this meeting was the fact that not one single leader or official in that hotel conference room in Dallas ever voiced any concerns for the rights of the individual servicemember.
And the reform machine has kept moving forward, churning up our accused men and women warriors in its wake. The Article 32 pretrial proceeding, the one that is supposed to be the military’s substitute for the grand jury guaranteed to all citizens, has been gutted, effectively removing this important pretrial right from the accused. There are new mandatory minimum punishments for sexual assault. The defense of good military character has been eliminated for many offenses. The list goes on and on.
Now we have the new proposed legislation of the Military Justice Act of 2016. This new abomination is trying to turn the military justice system into something more akin to the federal criminal system. They want to create sentencing guideline ranges. In a time where there is great criticism of federal sentencing procedures and talk of reform, the military is going the other way. They want to eliminate the automatic appeal of conviction with serious sentences, seriously limiting our servicemembers ability to appeal their cases. They want to streamline the court-martial review process – not because it’s unnecessary but because it’s just another burden to the government. They want to eliminate sentencing by military jury members and substitute that with sentences by judges who are restricted by the sentence guidelines above.
If these new changes don’t scare you, they should. We should all be wary of any proposal that tries to take the law out of the hands of the people. In the case of the military, that means taking the power away from military juries and judges. Instead Congress and the Pentagon are inserting rules that will decide what and how much punishment convicted servicemembers will receive. Do we not trust our educated and experienced military jury members to decide both guilt/innocence and sentence as they have done for hundreds of years? Remembering that military panels consist of mostly or exclusively military officers, often senior ones, do we now not trust them to make such decisions? The same leaders that are entrusted with the lives of the men and women in their command? Apparently not. Instead our politicians and Pentagon elite will pass such judgment. This is an insult to the men and women of the armed forces, particularly the officer and senior NCOs who are entrusted to sit on these military jury panels. The Military Justice Act of 2016 is the most radical and offensive changes ever to hit the military justice system since the Uniform Code of Military Justice (UCMJ) was enacted just after World War II.
I have heard some discussion from various people supporting some of the changes proposed throughout the years. For example, I’ve heard discussion about the new Article 32 proceedings which stripped substantial rights from an accused in uniform. I have heard military scholars and talking heads say that 1) the Article 32 wasn’t that important of a right anyway; and 2) military members don’t have a Constitution right to a grand jury or the old Article 32 procedural rights. As a result, they say there is no problem with the current overhaul. My answer is twofold. First, it was an incredibly import proceeding for a defendant in a system where the government completely controls the discovery process, controls access to evidence, controls access to virtually all witnesses, and has the sole ability to issue subpoenas. Secondly, just because the government can make such changes without violating the Constitution doesn’t mean they should. There are many other rights and privileges that were introduced to servicemembers with the passage of the UCMJ that are fair and just but not Constitutional rights. One example is the right to counsel. Prior to the passage of the UCMJ, there was not right of a servicemember to be represented by an actual lawyer. Using the same logic as with the new Article 32 rules, Congress could simply eliminate the right to counsel (perhaps I shouldn’t even mention this idea for fear that we see such a change in the Military Justice Act of 2017) as it is not a Constitutional right in the unique military justice system.
I’ve also heard a Marine Corps general officer say that the military must make such changes or risk losing military justice as a result of Congressional threats of legislation. Such an argument shows fear and weakness and a complete lack of moral fortitude. If our generals and admirals have to bastardize the system and sacrifice the rights of our servicemembers to retain their power, then they don’t deserve to “save” military justice. It is already lost.
The most disturbing thing about these new changes is that no one is looking out for the rights of the men and women in uniform. These new changes don’t only address sexual assault offenses. They address all offenses. These new changes are ironic given the history of the UCMJ. The UCMJ was enacted a few years after the conclusion of WWII when millions of former servicemembers were assimilating back in American society. However, approximately 2.1 million servicemembers were court-martialed during WWII. And when they returned, there was a great many who were upset over their treatment. The membership of Congress included an incredibly large percentage of veterans who had served in the military and were familiar with these injustices. That was the genesis of the UCMJ – fair treatment of servicemembers charged with crimes in the military. When you read the legislative history behind the UCMJ, you’ll see a struggle: members of Congress advocating for the right of our warriors versus the military establishment not wanting to give up control. The result was a compromise which afforded substantial rights to those who wear the uniform while allowing military commanders the power to control the process. It was not a perfect system by any means and the potential for abuse and unlawful command influence has always been present. But at least fathers and mothers could rely on the fact that their sons and daughters would get a fair shake when accused of a crime. That is now disappearing.
Instead of a fight between Congresspersons fighting for the rights of servicemembers versus the military wanting to retain power, we now have a fight between Congresspersons wanting to increase convictions at all costs versus the military wanting to retain their power. There is no one looking out for the rights of the men and women in uniform. There isn’t even any significant discussion about it. The lack of senior leadership fighting for the rights of the individual Marine, Sailor, Soldier, Airman and Coast Guardsman is nothing short of cowardice. During every court-martial, the military judge always tells the jury panel that a trial is the search for the truth. With all of these changes and the degradation of individual rights, we can no longer say such a thing. It is a tragedy in the making.