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Top Brass Reject Overhauling Military Justice System to Reduce Sexual Assault

June 4, 2013 at 12:00 AM EST
The military's top leaders rejected Senate proposals to remove commanders from their role in adjudicating service personnel who are accused of serious crimes while in uniform. Gwen Ifill gets two views on possible solutions from Eugene Fidell of Yale Law School and retired Maj. Gen. Charles Dunlap of Duke University Law School.
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GWEN IFILL: The military’s top brass crowded into a Senate hearing room today to defend themselves against charges that they are doing too little to put an end to sexual assault in the military, at issue, who can be trusted to fix the problem.

GEN. RAYMOND ODIERNO, U.S. Army Chief of Staff: Two weeks ago, I told my commanders that combating sexual assault and sexual harassment within our ranks is our number one priority.

GWEN IFILL: Army Gen. Ray Odierno and the other service chiefs presented a united front on the damage done by sexual assault. But they also opposed any move to strip commanders of authority over prosecuting those cases.

GEN. MARTIN DEMPSEY, Joint Chiefs of Staff Chairman: As we consider further reforms, the role of the commanders should remain central.

RAYMOND ODIERNO: Without equivocation, I believe maintaining the central role of commander in our military justice system is absolutely critical to any solution.

ADM. JONATHAN GREENERT, Chief of Naval Operations: We have found that successful, effective, and permanent changes in our military are best done through our commanders, the chain of command.

GEN. JAMES AMOS, Marine Corps Commandant: Commanding officers never delegate responsibility. They should never be forced to delegate their authority.

GWEN IFILL: The bill’s sponsor, Democratic Sen. Kirsten Gillibrand of New York, sharply disagreed.

SEN. KIRSTEN GILLIBRAND, D-N.Y.: Not all commanders are objective. Not every single commander necessarily wants women in the first. Not every single commander believes what a sexual assault is. Not every single commander can distinguish between a slap on the ass and a rape, because they merge all of these crimes together.

GWEN IFILL: Missouri Democrat Claire McCaskill pursued that theme, contending the problem goes much deeper than military leaders comprehend.

SEN. CLAIRE MCCASKILL, D-Mo.: This isn’t about sex. This is about assaultive domination and violence. And as long as those two get mushed together, you all are not going to be as successful as you need to be at getting after the most insidious part of this, which is the predators in your ranks that are sullying the great name of our American military.

GWEN IFILL: A recent Pentagon study found as many as 26,000 sexual assaults went unreported last year, up nearly 7,000 from 2010.

Gillibrand warned that victims do not believe the chain of command will treat them fairly.

KIRSTEN GILLIBRAND: My concern is this: You have lost the trust of the men and women who rely on you that you will actually bring justice in these cases. They’re afraid to report. They think their careers will be over. They fear retaliation. They fear being blamed.

GWEN IFILL: But the chiefs argue that if commanders don’t decide on sexual assault cases, it could hurt unit cohesion.

Indiana Democrat Joe Donnelly questioned Odierno on that claim.

REP. JOE DONNELLY, D-Ind.: Why would a soldier think less of their commander simply because their commander doesn’t handle this area?

RAYMOND ODIERNO: I want the commander fully involved in the decisions that have an impact on the morale and cohesion of the unit, to include punishment, to include UCMJ. That’s their responsibility. It’s not too much responsibility. In my mind, it sets the tone.

GWEN IFILL: But Republican John McCain of Arizona said the problem may already be doing more damage than the military realizes.

SEN. JOHN MCCAIN, R-Ariz.: We have to ask ourselves, if left uncorrected, what impact will this problem have on recruitment and retention of qualified men and women? Just last night, a woman came to me and said her daughter wanted to join in the military and could I give my unqualified support for her doing so. I could not.

GWEN IFILL: The chairman of the Joint Chiefs, Gen. Martin Dempsey, acknowledged the issue deserves much more attention than it received during a decade of war.

MARTIN DEMPSEY: Coming out of this period of conflict, we have got soldiers, sailors, airmen, Marines, Coast Guardsmen who engage in some high-risk behavior as they come out of the conflict. And so when you tie it all together, I wouldn’t say that we have been inactive, but we have been less active than we probably need to be.

GWEN IFILL: Despite their opposition to that key portion of the Gillibrand bill, Dempsey and the other chiefs promised to work with Congress.

So, everyone agrees on the breadth of the problem, but there is no single agreed-upon solution.

Here with two views are Eugene Fidell, a senior research scholar at Yale Law School. He spent his career practicing military law, and is a member of the Defense Department’s Legal Policy Board. And retired Maj. Gen. Charles Dunlap, executive director of the Center on Law, Ethics and National Security at Duke University Law School.

Welcome to you both, gentlemen.

Gene Fidell, starting with you,what’s the correct solution?

EUGENE FIDELL, Yale Law School: I think the correct solution, Gwen, is that it’s time to bring the military justice system in general, not simply with respect to sexual offenses, but in general, into the 21st century.

There was a very impressive array of officials at the hearing today before the Senate Armed Services Committee, many of them in uniform. But, if you will forgive me, I want to put up a picture of the person who was sort of the ghost at the banquet. It’s this individual. And perhaps you recognize our last monarch, George III, because, in key respects, we’re still dealing with a system that was in existence when George III sat on the throne of Great Britain.

We have got to get past the 18th century and get into the 21st century when it comes to who decides which charges are brought against whom at which level of court-martial.

GWEN IFILL: Gen. Dunlap, what’s your opinion?

MAJ. GEN. CHARLES DUNLAP, Executive Director, Center on Law, Ethics and National Security, Duke University Law School: I disagree with my friend Gene.

I think we have thousands of years of military history to show that a commander-centric military justice system is what works. And what we also ought to remember is that the United States has the most powerful military in the world, and that’s built on the system that we have.

I’m not saying that some changes should not be made in the military justice system, but we shouldn’t be giving to anyone other than a commander who has the responsibility, that complex responsibility of preparing human beings to kill other human beings, something which — for which there’s no counterpart in the civilian world, taking away that responsibility for discipline.

Let me tell you something. In the military, if the commander isn’t the centerpiece of something, you are taking away the potential effectiveness of the program. It has to be — it can’t be given to some staff officer.

GWEN IFILL: Let me ask you both to weigh in on this, because both of you are talking about the entire military justice system and the importance or the lack of importance for the commander being central to it.

But in these particular cases, these specific cases which were cited at this hearing about sexual assault, in which people, as we heard Sen. Gillibrand say, victims don’t trust the commanders, they don’t trust the chain of command to pursue what they need pursued.

Is that different from what you’re talking about, what happens to the entire military justice system, starting with you Gene Fidell?

EUGENE FIDELL: Look, no system is every going to be perfect. That’s something we have to get on the table.

And, indeed, if you look at the civilian system as a model, it, too, has blemishes. On the other hand, it’s clear that, in this era, the decision-making as to who gets sent to jail or who gets sent into a criminal trial is a decision that is heavily legal in content and it’s made by prosecutors.

And that’s in stark contrast with the way the military justice system works now, where commanders, who may have a little more than a couple of weeks’ training as they ascend the ladder into the major command billets, have to learn.

That is the work of lawyers. It’s the work of district attorneys. It’s the work of United States attorneys. And in the military justice system, the person with his or her finger on the trigger in terms of prosecution ought to be a lawyer, not simply an advice-giver, but a decider.

GWEN IFILL: Gen. Dunlap, is Sen. McCain, is Sen. McCaskill right when they say that they — that women shouldn’t feel secure anymore about being in the military because of the way that these charges are pursued?

CHARLES DUNLAP: Look, sexual assault is a terrible crime. It’s a terrible crime in the civilian society.

And if you look at the statistics from civilian society, I think that I would hope that young women especially would continue to consider the military. But the fact of the matter is that the military, as the Supreme Court has said multiple times, it is a different kind of society than civilian society. So, trying to build a civilian system into the military for this particular kind of crime is a mistake.

It needs — commanders need to be the central issue. And the idea of non-legally trained people making these decisions seems to be overlooking the fact that governors and the president issue pardons all the time, and they’re not even required to get legal advice, as a military commander is. Military commanders make far more complex — make extremely complex decisions based on very conflicting matters of fact all the time.

And how they’re somehow incompetent to apply rules and so forth and make factual judgments in this area is beyond comprehension.

GWEN IFILL: But what if the person who is in charge of deciding how your case will be prosecuted someone who is also in charge of you? What do you do, Gene Fidell, or what can a member of the armed forces do who fears retaliation? Is that a real concern?

EUGENE FIDELL: Yes, it is a real concern.

Retaliation can have a very corrosive effect on the administration of justice, as well as on unit cohesion, by the way. Unit cohesion is this catchphrase that is dropped in into the conversation, much as it was, by the way, in connection with the now-abandoned “Don’t ask, don’t tell” policy.

The problem is that a commander may be put in a totally impossible situation. Here’s why. Commanders are going to be graded in terms of their own evaluations by their superiors on command climate, one element of which is, how do the genders interact and are women at a disadvantage, for example?

They also have to worry about the welfare of those personnel who have been victimized in one way or another. And they have to worry about the welfare and rights of people who are their subordinates who may get charged with offenses. How do you juggle those things? The only way …

GWEN IFILL: Let me ask Gen. Dunlap to answer that question.

EUGENE FIDELL: OK.

GWEN IFILL: How do you juggle those things?

CHARLES DUNLAP: Well, commanders juggle multiple things all the time. They’re making life-and-death decisions on battlefields.

I do agree that there are rogue commanders out there, but we already have at least three statutory means for the kind of person who feels that they have been wronged by their commander, article 138 already in the UCMJ.

GWEN IFILL: The Uniform Code of Military Justice. I just want people who didn’t — weren’t familiar with the title to know what you’re talking about.

CHARLES DUNLAP: Thank you.

GWEN IFILL: Go ahead.

CHARLES DUNLAP: We also — the Congress changed the law in 2006 and now makes it — or has always been in the UCMJ — excuse me — that judge advocates can go around the chain of command and make — raise things in the senior level of the JAG chain.

And, in addition, there’s the inspector generals, which are — is another statutorily protected option. So there’s at least three options where people can go around the chain of command already in the law.

GWEN IFILL: Well, we are going to have to leave it …

CHARLES DUNLAP: And before we start — and we should keep in mind that the system in place now, in 2006, there were 34,000 estimated sexual assaults. We’re …

GWEN IFILL: Well, OK.

CHARLES DUNLAP: They dropped to 19,000, a 44 percent drop in 2010. And now we have seen an uptick.

GWEN IFILL: We’re going have to …

CHARLES DUNLAP: We need to understand better why this is.

GWEN IFILL: … leave that conversation for another time.

Eugene Fidell at Yale Law School and General Charles Dunlap at Duke Law School, thank you both very much.

EUGENE FIDELL: Thanks, Gwen.

CHARLES DUNLAP: Thank you, Gwen.