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Military Justice and Sexual Violence: An Ideal, or a Tool for Commanders?

iStock military justice“The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” 

Manual for Courts-Martial, Preamble, Section 3, Nature and Purpose of Military Law

In an honest discussion about what the US military values and pursues in terms of addressing wrongdoing within its ranks, it would be unfair not to point out that the promotion of justice is the first of three clauses defining its very purpose in the MCM, or Manual for Courts-Martial

That being said, in 32 months of civilian employment with the United States Army as an experienced sex crimes prosecutor, hired to assist the JAG in addressing sexual violence within the ranks, I heard far less about the first clause and much more about the second. As a singular concept, “good order and discipline” is at bottom the condition most crucial to enabling our military to do what must do. I was told again and again that military justice had to be understood in a different context than that of the civilian world. Justice in the military is an ideal, but more practically a “commander’s tool” to maintain good order and discipline.

A commander is an officer responsible for the development, maintenance, and actions of a particular military unit. Junior commanders include Army captains in charge of 150 or so soldiers in a company. A senior commander might be a general commanding tens of thousands of soldiers in a Corps. Regardless of their level of responsibility, all commanders must maintain good order and discipline. Without it, everything else they seek to preserve- including the very lives of their warriors- is at risk. So a cohesive, obedient and ordered fighting force is the ultimate goal. Most everything else, at least in terms of the mission to be carried out, is secondary.

Two things should clarified here: First, the JAG officers I encountered, in addition to commanders, were almost always deeply decent, honorable men and women who abhorred, among other things, sexual violence perpetrated by one of their own. Second, the concept of “justice” as we normally view it in the Judeo-Christian context, is appropriately intertwined with good order and discipline. Of the things that inspire servicemen and women to follow the rules and act as a unified fighting force, a belief that they’re treated equally and justly is probably first among them. So it’s not that justice isn’t a concern of military commanders. Rather, it’s a concern tempered by other imperatives, most not typically experienced or appreciated by civilian observers.

Enter sexual assault and military priorities.

More of the civilian world now knows, from the sexual assault case out of Aviano, Italy, that high-level commanders (with the authority to convene general courts-martial, or simply Convening Authorities) can overturn the findings of a military tribunal. No reason for doing so is required, and the action of the convening authority is not reversible.

Senator Kirsten Gillibrand (D-NY) last week questioned a panel of Judge Advocates General about how justifiable it was to allow one commander to negate the findings of a military tribunal after months of litigation (the convening authority who overturned the panel verdict in the air force case never spoke to the victim). Gilibrand argued forcefully that the sole authority to negate the findings of a general court martial was anything but emblematic of or conducive to “good order and discipline.” Instead, she argued, the power of one commander to undermine the efforts of a full and concerted legal process only chills reports and emboldens perpetrators. This, in turn, eats away at good order and discipline by compromising the backstop of enforcement that aims to keep all servicemen and women safe from harm by- first and foremost- each other.

I suspect Gilibrand is right. But the issue of justice as an ideal versus justice as a means to an end must be fully understand by civilian decision makers before changes are made, if they are to be. Understanding the military view (as I understood it) did not change my perspective. But it helped to know why a different perspective existed.