I’d say that Dr. Jo Ann Rooney, the President’s nominee for undersecretary of the Navy, perhaps misspoke when she made the patently awful sounding statement “the impact [of judge advocates outside the chain of command making prosecutorial decisions in sexual assault cases] would be decisions based on evidence rather than the interest in preserving good order and discipline.”
Except that Dr. Rooney didn’t speak. The statement was written, as testimony, to the Senate committee considering her nomination. One would think that answers reduced to writing are a product of more coherent thought and willful expression than what is sometimes uttered, despite best intentions. Rooney chose, or approved of, these words, and frankly they sound shocking, at least to people who don’t view justice the way she appears to view it. In fact, it seems that Rooney views military justice the way many military commanders and insiders do, that is as a tool for commanders to maintain discipline and good order rather than an ideal unto itself.
I’ve written on this before and I’ve pointed out, in fairness, that the promotion of justice is the first of the three clauses that describe the purpose of the United States military justice system. But Rooney’s apparent attitude that justice is more of a tool toward the forging of a larger goal- the maintenance of a cohesive and lethal fighting force- is one I commonly saw reflected during my civilian service to the Army.
She has since back-tracked in a letter to chairman Carl Levin, saying that while commanders certainly need to consider evidence in whether to bring charges such as sexual assault, they also need to consider more than that, and include factors such as the impact on morale and discipline.
Small wonder this clarification served to alarm Gillibrand more, not less.
Rooney believes that prosecutors are, apparently, too narrowly focused on simply whether a crime was committed against one human being by another. “Prosecutors, in my experience, evaluate evidence with an eye toward whether a conviction is likely,” she said. “Commanders consider additional factors.”
I’m not sure what prosecutors Rooney is referencing. Prosecutors are not, despite this description, auto-piloted hammers who bring charges as long as a cold analysis favors a conviction. In fact, prosecutors at all levels do consider other factors like resources and the interest of the involved parties and the community.
But what civilian prosecutors don’t do, ideally and certainly structurally, is concern themselves with whether the prosecution of a wrongdoer might be best avoided because of its effect on a larger group as an organism or entity.
This is exactly what Gillibrand is correctly fighting to end once and for all: The understandable but potentially justice-adverse tendency that commanders have to consider factors unrelated to whether one individual committed a serious criminal offense against another.
Rooney also notes favorably that commanders have “non-judicial punishment options” in dealing with offenders. But the offenders that Gillibrand’s initiative targets are service members who are committing rape and felony sexual assault. Non-judicial punishment under Article 15 of the UCMJ involves relatively minor confinements, restrictions, extra duty, counseling, and other disciplinary measures in lieu of a court martial for minor offenses.
Gillibrand herself, in reference to Rooney’s original troubling statement, asked “in what world would you recommend that the decision to prosecute a serious crime….not be based on evidence?”
Indeed, I’d follow up with, “in what world would you recommend non-judicial punishment for a felony sex crime?
Gillibrand’s proposed Military Justice Improvement Act does not disturb a commander’s ability to use non-judicial punishment for minor offenses, which means Rooney is either dreadfully misinformed or actually believes that NJP might be the answer to some cases of sexual violence, given the “other factors” she believes commanders should consider.
The supremacy of the individual observed in our culture is not one that can be similarly observed in military life. Many aspects of it involve compromising the needs of individuals for the larger health- and fighting ability- of the group.
But where justice, and a competent and effective response to sexual violence is concerned especially, the current system should be amended- reasonably- to do better. Dr. Rooney seems to make this very clear.