This is Why Civilianizing Military Justice Can Work

James Weirick and James Joyner

War on The Rocks

October 16, 2015

Gen. Charles Dunlap makes a number of compelling rebuttals to our argument for civilianizing felony prosecution in the military to remove the unlawful command influence Catch-22. Nonetheless, our central thesis remains unchanged: Military commanders have two jobs — sending the message that sexual assault will not be tolerated and prosecuting those who break the law — that are in conflict. Because the first of those jobs is essential to the commander’s role while the second can be done by objective outside professionals, the two must be split.

We do not claim, as Dunlap alleges, “that courts-martial would robotically make judgments in sexual assault cases because of the statements by superiors, regardless of the facts.” Rather, we argue that military justice is unique in that commanders simultaneously recommend prosecution and have direct authority over the jurors who try the cases; that there is no direct civilian analog to unlawful command influence; and that a series of judicial decisions overturning convictions on that basis signal a need for change. Given that statements by President Obama himself have been implicated in the most recent of these cases, this is a problem that will not solve itself.

Because we recognize the major differences between military and civilian law and values, we do not recommend removing the most serious military offenses, such as disrespect, desertion, dereliction of duty, cowardice, from military jurisdiction, contrary to what Dunlap states. Because those offenses are strictly about maintaining good order and discipline within the ranks, they’re best handled within the military. For crimes like murder, rape, and sexual assault — which not only have direct civilian analogs but also demand separation from society upon conviction — civilian courts, free from the unlawful command influence problem, are best equipped to handle them.

The thrust of Dunlap’s argument centers on retaining the status quo because that is how we have always done it. While the military justice system has served the U.S. military well in the past and generally continues to do so, that does not render the system beyond improvement.

How many cases are we willing to sacrifice to maintain the commander-centric form of military justice? This is an argument of degrees. Our position remains that we have crossed into an intolerable category due results in recent sexual assault causes. The time has come for removing commanders from the most serious military offenses.

Dunlap calls into question the legitimacy of the federal criminal justice system. It is axiomatic that any system of criminal justice is imperfect and is always in need of improvement. But attempting to indict the entire federal criminal justice system is unnecessary and counterproductive.

He also attempts to parse the difference between actual and apparent unlawful command influence. This is of little utility, as the highest military appellate court has determined, “allegations of unlawful command influence are reviewed for actual unlawful command influence as well as the appearance of unlawful command influence.” It is noteworthy that the case from which the above quote was pulled, United States v. Salyer, resulted in the dismissal of a conviction for possession of child pornography as the result of unlawful command influence.

Finally, Dunlap makes much of prosecutorial efficiency in the military justice system and its ability to conduct trials overseas. But an examination of general courts-martial, the military equivalent of a felony, involving serious misconduct demonstrates that overseas trials are not the norm, and efficient justice by the military justice system is a bit of an exaggeration.

The alleged murder of 24 civilians in Haditha, Iraq occurred in November 2005. The senior Marine charged with a crime, Staff Sgt. Frank Wuterich was eventually taken to trial in January 2012, at Camp Pendleton, California. The military personnel accused of murdering of an Iraqi man in Hamdania, Iraq in April 2006 were also all tried at Camp Pendleton. The senior Marine involved in that incident, Sgt. Lawrence Hutchins III, was eventually convicted of murder in June 2015. Is this efficiency?

The Army also tends to try serious cases away from the battlefield. Sgt. Hasan Akbar, convicted of the murder of two officers in Kuwait, was brought to trial at Fort Bragg, North Carolina. Similarly, the “Kill Teams” from the 5th Stryker Brigade, 2nd Infantry Division were tried at Joint Base Lewis-McChord, Washington, despite the murders having occurring in Afghanistan.

We recognize the many virtues of the current military justice system raised by Dunlap. We simply believe it would be improved by removing a handful of the most sensitive cases from the possibility of unlawful command influence.

Original article