A Broken Military Justice System - New York Times Editorial
… The episode [BG Sinclair court-martial] offers a textbook example of justice gone awry, providing yet another reason to overhaul the existing military justice system, which gives commanding officers with built-in conflicts of interest — rather than trained and independent military prosecutors outside the chain of command — the power to decide which sexual assault cases to try. In the Sinclair matter, the commanding officer appears to have ignored his colleagues’ reservations in an effort to look tough on sexual assaults and avoid criticism at a moment when the military is under pressure to address its sexual assault crisis…
Comments
The system is broken and has been for decades... And the leadership has a vested interest in not seeing it fixed... Because if they get into trouble themselves, a broken system benefits them.
Additionally let us look at the work arounds... GO Letter of Reprimand etc. When they can't get you one way, they will find another. Another piece of the pie that either should be gotten rid of or added to the list of punishments available.
Anyone can say what they want, but the brass does not want this to change. I personally love an investigation of records of high level brass who got one and retired... I bet you find many never make it into the official file.
But hey as long as we hold low ranking personnel to a higher standard than the brass, who cares?
This whole discussion is a massive farce of half-truths and partial knowledge. What Sen. Gillibrand proposed was about as myopic a measure as conceivable. A measure that would have fundamentally restructured the way mil-justice functions based on a single hot-topic issue. I don't mind conversation on the "justice" of mil-justice, but I mind when it is issue-driven, ignorant of consequences, and the discussion starts with conclusions.
The NYT Editorial is hardly better. I suppose it's nice that they at least try to stay impartial and claim that commanders can be unjust to the accused as well as the accuser. But that hardly saves their argument from the same half-baked understanding of the system.
PS Bill C., thank you for that example!
PPS There is an assumption in the op-ed that in my opinion is dangerous in a liberal democracy with an adversarial system of justice. That assumption being that justice can only come at the hands of those trained in it. A prosecutor isn't trained in justice, he is trained in procedure and experienced in what the State considers criminal. His professional success rate is based on his ability to win an argument (i.e. the court-room), not in deciding when and how justice is served. If the point is impartiality then we can easily make a law that says all accusations of sexual assault WILL go to trial regardless of how strong the prosecution believes the case to be. Re-assigning "justice" as a responsibility from one human representative of the state to another isn't "justice", it's just what technocrats do best...proceduralize in spite of effectiveness. Again, I am quite critical of the entire affair and the college freshman solutions bandied about.
So we are going to have the individuals who have to try these cases (the prosecutors) determine if these cases will, in fact, be tried?
This, instead of commanding officers making these decisions?
True story -- as best as I can remember it:
1. Drug sale case goes forward to the JAG office recommending trial by special court-martial empowered to adjudge a bad conduct discharge.
2. It is a less than perfect case and, as such, gets pushed off to the side while the overwhelmed prosecutor deals with easier, quicker cases.
3. Thus the case does not make it to the general court-martial convening authority in a timely manner.
4. Because of this, a potential speedy trial problem develops with the case.
5. Prosecutor then suggests to the subordinate commanders that the case be dropped because (1) it is not that good of a case and (2) there is now a potential speedy trial problem.
6. Subordinate commanders (specifically the brigade commander) say that this is an important case to the command and that they want the prosecutor to (1) lean forward in the fox hole, (2) draw his sword and do battle in the trial arena and (3) not give up on the fight this early in the game.
7. Case moves forward with the general court-martial convening authority approving trial by special court-martial empowered to adjudge a bad conduct discharge.
8. The prosecutor, now properly motivated, moves forward to do battle for the command.
9. This prosecutor (1) overcomes the inevitable speedy trial motion, (2) wins the case and (3) sees the military judge sentence the soldier to confinement at hard labor for four months, forfeiture of 2/3s pay per month for four months, reduction to the grade of Private E-1 and a bad conduct discharge.
10. Before the soldier goes off to Kansas, he is taken for chow to his old unit mess hall, where his fellow soldiers (and his s--- house buddies) see him going through the serving line -- in irons and with armed guard escort.
11. Drug crime drops off in this unit.
12. Order and discipline are enhanced/restored.
(Note: Trial was by military judge alone.)