Far East Cynic

Don’t throw the baby out with the bath water.

In recent days the military journals have run stories of how Congress wants to strip commanders of their authorities to confirm or overturn the results of courts martial. This due to several high profile cases where folks did not agree with the final decision of the convening authority.

On Capitol Hill, Sen. Kirsten Gillibrand, D-N.Y., introduced legislation Thursday taking top commanders out of the process of deciding whether a sexual misconduct case goes to trial. For sexual offenses with authorized sentences of more than one year in confinement — akin to felonies in the civilian judicial system — that decision would rest instead with officers at ranks as low as colonel who are seasoned trial counsels with prosecutorial experience.

“‘What we need to do is change the system so victims know that they can receive justice,” Gillibrand said Thursday on CBS “This Morning.”

Let me state it clearly, to do this is a huge mistake. Commanders who have court martial authority HAVE to have the ability to decide how cases are to be prosecuted and the ability to affirm or reject the conclusions of the judicial proceedings.

There are fundamental differences between the civilian criminal justice system and the military justice system. Yet far too many people fail to understand those differences and the rationale for them.

It is important to remember that in a military proceeding there is no standing court -it has to be created. And because the commander is still trusted with the responsibility to maintain good order and discipline-he or she has to be quite careful not to create a stampede to make an example out of someone. That is a big difference between the military and civilian systems. The civilian court system is more removed from the proceedings after they occur. Not so in the military.

The specific case that prompted the desire for this change was one involving the 3rd Air Force commander overturning the conviction of a Lt Col accused of sexual assault. He had been convicted by court martial. LTG Franklin made the decision to overturn the decision, throwing out the sex assault conviction.

I don't know the details of the case-but I do know that the general, in making his decision,  did not make it lightly. He knew full well how particularly sensitive these types of cases are and how much visibility anything with the "sex" word attached to it gets right now. So I am convinced that he must have had access to some pretty good mitigating information to make the very serious decision that he made. We will never know that-but I am confident he would not have made the decision flippantly. Overturning a conviction happens very rarely.

And it should be his decision to make. If he made the wrong decision-then fine. Fire him and find a new 3 star. But don't take away the commander's ability to fully exercise his authority. That in the long run is a big mistake and is setting the stage for some innocent person to be wrongly convicted and railroaded for the rest of his life. Court Martial do make mistakes.

We claim that we want to enforce a culture of accountability. And then we turn around and deny commanding officers the tools they need to exercise their authority and lead their subordinates in fairness. That's not smart.