Outsourcing Military Discipline: Bad for Everyone

October 27, 2015

Retired lieutenant colonel James Weirick and professor James Joyner have fired their latest salvo on civilianizing parts of the military justice system. For those of you keeping score at home, it is a rebuttal to my response to their proposal to move “felonies” out of the military justice system into the civilian criminal law bureaucracy because of unlawful command influence. However, nothing in their counter displaces my original critique; indeed, it reinforces it, as I discuss in this counter-rebuttal.

Among other things, they now claim they were not advocating “removing the most serious military offenses” from Uniform Code of Military Justice (UCMJ) jurisdiction. Really? Judge for yourself: In their original essay they argued that “taking felonies out of the UCMJ [is] imperative,” saying felonies were “a different matter” from the “minor offenses” for which the commander’s role, they said, was “vital.”

Actually, civilian law defines a felony (military law doesn’t use the term) as any offense carrying a potential punishment of more than a year’s incarceration. In reality, the bulk of the “military” offenses that Weirick and Joyner would keep in military courts are hardly “minor.” Most are “felonies” as civilians define them, and some even carry the death penalty.

More problematic is that they do not seem to fully appreciate what it takes to build a disciplined force. You cannot say that the offenses they want to civilianize — “crimes like murder, rape, and sexual assault” — are so disconnected from overall military discipline (which Washington characterized as the “soul of an army”) that they can be wisely outsourced to civilians with no responsibility for the military’s primary purpose: “to fight or be ready to fight wars.”

Furthermore, Weirick and Joyner’s exclusion of sexual assault from their listing of serious “military” offenses” to be kept under the UCMJ is puzzling. I can’t imagine any commander — or anyone for that matter — who thinks it doesn’t seriously compromise the military’s ability to accomplish its mission. Its just disposition is simply too “vital” to commanders, too central to warfighting capability, to outsource to any system not involving those experienced in military matters.

This view isn’t new. In a 1986 case involving sex assault offenses against a child, the military’s all-civilian appellate court concluded that such crimes “have a continuing effect on the victims and their families and ultimately on the morale of any military unit or organization to which the family member is assigned” (U.S. v. Solorio, 21 M.J. 251 (CMA 1986). Similarly, the Supreme Court had previously held that the rape of adult civilians was service-connected. (Notably, drug offenses were always considered within UCMJ jurisdiction.)

The Supreme Court finally recognized the futility of trying to parse out which offenses were or were not sufficiently “military,” and acknowledged what Congress had already concluded that military courts needed jurisdiction over all offenses military members commit. The point is clear: Building a disciplined force is a complicated, holistic endeavor in which all criminal behavior is profoundly relevant.

Weirick and Joyner repeat their contention that there are “series” of cases overturned because of unlawful command influence, but fail to offer any statistics. Despite reports that “only a handful [of military cases have been] reversed or altered on appeal” because of unlawful command influence, they nevertheless claim that this issue has “crossed over to the intolerable category due to recent sexual assault” cases. Where’s the evidence?

Regardless, the facts just don’t support the “civilianization” solution. Current surveys estimate the number of military sexual assault victims as having “dropped dramatically,” while on college campuses under the jurisdiction of the civilian system Weirick and Joyner recommend, complaints are up 1,000 percent in five years. The data plainly shows that the military system is more effective at dealing with these cases.

Weirick and Joyner are in denial about the problems with today’s civilian justice system. In addition to the issues discussed in my original post, let’s not forget that the military has long prosecuted sexual assault cases that civilian prosecutors decline. How do civilians often dispose of allegations? On college campuses anyway, administrative hearings characterized by some as “kangaroo courts” handle most cases.

Where is the proof that civilians really do a better job than the military for victims or the accused in sexual assault cases?

Moreover, where are the endorsements from civilian prosecutors showing they even want these cases? Maybe they know enough about their systems (and little enough about the armed forces) that they are not seeking the responsibility that Weirick and Joyner want to thrust upon them. Crucially, neither Sen. Kirsten Gillibrand nor Sen. Claire McCaskill — both relentless advocates for sexual assault victims (and frequent military justice critics) — has ever advocated ending UCMJ jurisdiction.

Weirick and Joyner imagine my disagreement with them “centers on retaining the status quo because that is how we have always done it.” Completely wrong. I oppose their idea because the facts show that it would hurt victims, those accused, and America’s military itself.

 

Charles Dunlap is currently a Professor of the Practice and Executive Director of the Center on Law, Ethics and National Security at Duke Law School. He retired from the Air Force in 2010 as a major general, and over his 34-year career he served as a military judge, prosecutor, and defense counsel, as well as the Chief of the Military Justice Division at the Air Force Judge Advocate General School.

 

Photo credit: Airman 1st Class Daniel Blackwell, U.S. Air Force