Loose Canons

Kirsten Curses the Commanders

New York’s junior senator goes too far.

By 11.20.13

UPI
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Liberals casually use our armed services as lab rats for all sorts of social experimentation. But even they used to have limits. The warrior culture — which has everything to do with merit and nothing to do with “diversity” — embraces every man of every race, creed, and religion who can make the grade. But the liberals have successfully attacked it in the past ten years with women in combat arms and the repeal of “Don’t Ask, Don’t Tell.” We’re all supposed to believe that none of that interferes with the culture of the warrior, military readiness, enlistment rates, or the retention of officers. We’re also supposed to believe that the military welcomes those changes despite rampant misogyny, bias, and discrimination within it.

And that’s driving the latest experiment on the military. It’s Sen. Kirsten Gillibrand’s (D-NY) attempt to impose “social justice” on the military. Her bill, which would ensure “justice” by taking the military justice system out of the chain of command, may be voted on by the Senate as early as today. (Senate sources say Gillibrand lacks the 60 votes needed to invoke cloture.)

The idea she proposes is so bad that not only are the military chiefs of staff united against it, but even some of the most prominent liberals — such as Michigan Democrat Carl Levin — oppose it. You’d never think that Sen. Ted Cruz (R-TX) would support it, but he does. He should know better.

Soldiers, sailors, airmen, and Marines are required to obey any lawful order, a concept that covers a lot of ground. Illegal orders, such as an order to kill an unarmed prisoner (a war crime), are extraordinary rare.

On the flip side, military commanders are held accountable for everything the people who must follow their orders do. Never mind that the officer of the watch was a junior lieutenant. If a submarine runs aground, it’s the skipper of the ship who’s going to be fired.

One of the basic truths that makes our military function as well as it does is that if you have the responsibility for something, you pretty much are guaranteed the authority to accomplish it. Kirsten Gillibrand wants to take that authority away. She’s going where no social experimenter has gone before.

Gillibrand’s idea comes from several high-profile sexual assault cases which, she claims, prove that victims can’t get justice within the military chain of command. Her proposed legislation takes away commanders’ authority to investigate and prosecute not just sexual assaults but all major crimes under the Uniform Code of Military justice and puts those crimes in the hands of “independent” civilian prosecutors.

The proposal leaves only those crimes that would be misdemeanors in civilian life — and in the military are offenses such as being absent without leave — subject to the chain of command.

Introducing her proposal in July, Gillibrand said it “will end sexual assault in the military. And the way we want to do it is to create an independent, accountable military justice system that is not partisan, not ideological, that can create the kind of transparency and accountability that our men and women that serve in the military need so that they can receive justice.” She said that her bill was crafted from what she had learned about sexual assaults from victims, that they didn’t trust the chain of command, and that justice wasn’t possible in the current system.

Start at the beginning. Gillibrand’s claim that her legislation would end sexual assault in the military is laughable. You cannot place men and women together in close quarters under high stress without sexual incidents — both criminal and consensual — happening. Liberals like Gillibrand forced this condition on the military, and those incidents are an inevitable consequence.

Gillibrand told ABC’s This Week on Sunday that military men and women “shouldn’t have a justice system that is rife with bias and unfairness.” Which is even more risible than her earlier statement if that’s even possible.

For example, my law school pal Joe Rehyansky served as an Army JAG prosecutor for 18 years and then about a decade as an assistant DA in Tennessee. He told me, “In all my years prosecuting, in and out of the Army, I never saw a sexual assault allegation swept under the rug; never encountered a woman who was afraid to file a formal complaint; and never saw such a case handled as anything other than a crime that was prosecuted or not based on the evidence. Victims these days, especially women victims claiming sexual assault, see themselves as a privileged class. Something's got to be done, regardless of whether the allegation is provable.”

If the civilian lawyers of Gillibrand’s new system are outside the chain of command, who will prevent them from going on crusades pursuing soldiers, sailors, airmen, and Marines who are unjustly accused? That bias doesn’t concern Gillibrand. Her new legal force would be “independent.”

In the current military justice system, the prevention of bias is one of the top priorities, and it’s a goal that is achieved. First of all, most commanders don’t interfere at all with the decision to bring someone up on charges. They rightfully rely on their lawyers. When they don’t, the military justice system deals with any interference they might attempt in a manner designed to protect the rights of the accused.

There’s a concept in military justice called “command influence.” A senior commander — whether it’s a colonel or a multi-star general — is designated the “convening authority,” which means that the charges in a special or general court martial are brought under his orders.

When any commander, or someone higher in the chain of command, tries to influence the lawyers or the judge in a prosecution, either by urging prosecution and conviction or by telling the lawyers or judge that a suspect should get a free pass for a crime, that’s improper command influence under the Uniform Code of Military Justice. The consequences can be severe.

When I was a young JAG captain in the Air Force in 1974, my JAG School class was flown to Washington and ushered into a meeting with the Judge Advocate General. One of the first things he said to us was if you have any evidence of command influence, “… call me directly and I’ll be on the first flight to where you are.”

In the years since, the military hasn’t grown any less concerned about improper command influence.

Our careless president found that out last June when he shot his mouth off about the kind of sexual assault cases Gillibrand thinks she’s going to prevent forever. Talking about two prominently reported Navy sexual assault cases, Obama said that those convicted should be dishonorably discharged. Soon after, a military judge ruled that Obama’s comments constituted illegal command influence. He apparently needs to be reminded that he’s in the chain of command. The judge’s ruling also said that as a result of Obama’s intervention, the two suspects couldn’t be dishonorably discharged even if they were convicted.

So how is Gillibrand’s proposal going to affect the military should — Heaven forbid — it ever become law?

Under Article 60 of the UCMJ, a convening authority can, upon conviction, review the conviction and the sentence, considering the trial record and additional information submitted by the defendant. In the convening authority’s discretion, he can commute or suspend a sentence in whole or in part and can even dismiss specific charges or reduce the charge to a lesser included offense.

All of that is consistent with the idea that a convening authority is a commander, and that his judgment reflects his responsibility for those under his command. But Gillibrand’s bill would eliminate the authority of the convening authority under Article 60.

Commanders learn, see, and hear things no civilian can. They have an understanding of the context of a crime that civilians can’t, because they haven’t served for years in the same places and conditions. The commander’s understanding of that context may as easily influence the commander against the convicted person as in his favor him. The context and understanding a commander has by the nature of his service is crucial to any accused’s Article 60 petition.

Remove that, and you remove one of the fundamental powers of any commander to maintain the discipline, readiness, and morale of his force.

Any general — or colonel or major or lieutenant — who would tolerate that is someone who shouldn’t be in command of anyone else. That’s the result we can expect from Gillibrand’s proposal. The only people who will want to command others will be unfit to do so.

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.