Commentary Magazine


Topic: military justice

The Impact of Politics on Military Justice

In what many Americans may have seen as an eerie echo of the “House of Cards” television series, last week an effort to change the way sexual assaults of military personnel are prosecuted failed to amass the 60 votes needed to end a filibuster. It was an issue on which normal party and ideological lines were completely blurred as Democratic Senator Kirsten Gillibrand, the primary advocate for the bill, was joined by Republicans such as Minority Leader Mitch McConnell, Ted Cruz and Rand Paul and opposed by her normal liberal allies like Carl Levin and, more crucially, Claire McCaskill. While Gillibrand claimed that opponents of taking such crimes out of the military chain of command “turned their back” on the survivors of sexual assaults, they responded by saying that this reform might have unintended consequences. One such critic of the bill was Amy Davidson who wrote in The New Yorker last week that this change might actually result in fewer prosecutions of assaults.

 Given the experiences of many rape survivors in the military, Gillibrand’s stand is hard to argue with. While, as Gillibrand has noted, every secretary of defense has enunciated a zero tolerance policy for the past 20 years, the number of assaults continue to rise with many in the military still convinced they have more to lose by speaking up about these crimes than by staying silent. But, as the New York Times’ coverage of a sensational sexual assault case now being tried at Fort Bragg, North Carolina shows, the military’s desire to avoid being labeled as insensitive to this issue may be leading to some poor decisions. The trial of Brigadier General Jeffrey A. Sinclair for sexual assault of a female officer with whom he had an affair illustrates just how messy the nexus between politics and justice can be in the military.

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In what many Americans may have seen as an eerie echo of the “House of Cards” television series, last week an effort to change the way sexual assaults of military personnel are prosecuted failed to amass the 60 votes needed to end a filibuster. It was an issue on which normal party and ideological lines were completely blurred as Democratic Senator Kirsten Gillibrand, the primary advocate for the bill, was joined by Republicans such as Minority Leader Mitch McConnell, Ted Cruz and Rand Paul and opposed by her normal liberal allies like Carl Levin and, more crucially, Claire McCaskill. While Gillibrand claimed that opponents of taking such crimes out of the military chain of command “turned their back” on the survivors of sexual assaults, they responded by saying that this reform might have unintended consequences. One such critic of the bill was Amy Davidson who wrote in The New Yorker last week that this change might actually result in fewer prosecutions of assaults.

 Given the experiences of many rape survivors in the military, Gillibrand’s stand is hard to argue with. While, as Gillibrand has noted, every secretary of defense has enunciated a zero tolerance policy for the past 20 years, the number of assaults continue to rise with many in the military still convinced they have more to lose by speaking up about these crimes than by staying silent. But, as the New York Times’ coverage of a sensational sexual assault case now being tried at Fort Bragg, North Carolina shows, the military’s desire to avoid being labeled as insensitive to this issue may be leading to some poor decisions. The trial of Brigadier General Jeffrey A. Sinclair for sexual assault of a female officer with whom he had an affair illustrates just how messy the nexus between politics and justice can be in the military.

Davidson made the following argument about why Gillibrand’s reform might backfire:

 Is any involvement by the chain of command in sexual-assault cases a mistake? Gillibrand would say yes—that it’s a conflict of interest. She is disappointed that Obama didn’t put his weight behind her bill now. Many survivors and advocates who have long, painful experience with the workings of the military would agree.

One can fully respect that view and not share it. It’s not just that, as many around the military argue, this is how it works for all sorts of crimes. McCaskill, who has prosecuted sexual-assault cases herself, has argued that, as well-meaning as it sounds, pulling out sexual assault in this way would result in fewer prosecutions. Part of the reasoning is technical and structural: while commanders are motivated by discipline and order (as well as, one hopes, respect for the law and concern for and loyalty to all their troops), prosecutors are often looking for cases that they can win. If it is left up to the prosecutors alone, they might have a more jaundiced view of how a jury would hear a witness than does a commander—again, no longer the unit commander, and no longer alone.

The Sinclair court martial seems to demonstrate the truth of this assertion. Sinclair is accused of coercing a junior office into sexual relations and then threatening her if she told anyone about what had happened. But the chief military prosecutor in the case withdrew from the court martial because he believed the evidence showed that the alleged victim in this case — who acknowledges that she had a three-year affair with Sinclair — had been untruthful and that the most serious charges of assault against the general should be dropped. He was overruled and the case has gone to trial only on those counts since the general has entered a guilty plea on the lesser charges of having an inappropriate relationship. The victim has testified about what she says is the general’s violent behavior and his threats. Sinclair, who was once the deputy commander of U.S. forces in southern Afghanistan and a rising star in the army and whose future in the military is now finished, claims the female officer only accused him of rape after he refused to leave his wife as well as to avoid prosecution herself for adultery after their affair was revealed.

Davidson’s point about experienced prosecutors being reluctant to go to trial without an open-and-shut case seems to be vindicated by what happened here. The military establishment has been rightly excoriated for a lackadaisical approach to sexual assaults as well as a culture of apathy toward the victims. But it may be overcompensating for that here by deciding that the bad press and probable political firestorm that would have resulted from a dismissal of rape charges against a high-ranking officer was far worse than going to trial with a case that seems unlikely to result in a conviction or to be upheld on appeal.

As Davidson writes, previous reforms of the Defense Authorization Act have made it easier for such prosecutions to continue and to take the immediate unit commanders out of the decision since they may be part of the problem. She also argues that the growing number of female officers is creating a better atmosphere in the military for dealing with the problem. However, it may also be that the Sinclair case points out the pitfalls of expecting the military chain-in-command to deal wisely with these issues. Gillibrand rightly worries about officers who want to cover up these crimes or are involved with them being part of the process of victims seeking redress. But by the same token, an army that is worried about being branded as soft on rape may proceed with shaky or unsubstantiated cases that would never be prosecuted in civilian courts.

The more the Times reports about the Sinclair court martial, to which they have devoted a steady stream of articles, the more Gillibrand’s assertion about the military’s incapacity to deal with these cases appears to be justified. Georges Clemenceau, France’s prime minister during World War One famously said that, “military justice is to justice what military music is to music.” The less the soldiers have to do with prosecuting rapes committed in the military, the better it may be for both the victims and the cause of justice.

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Soldiers Won’t Cut Afghan Killer Any Slack

All I can say is: It’s a good thing that Staff Sgt. Robert Bales, who apparently killed 16 Afghan civilians in cold blood, will be tried by a panel of his peers (i.e. fellow soldiers) in a military court-martial rather than by a civilian jury. The latter, I suspect, will be more sympathetic than the former to the media-driven image of him as a poster boy for post-traumatic stress disorder rather than simply judging him to be a murderous fiend.

The New York Times, for example, has a lengthy account todaythat portrays Bales as an all-American type—high school football player, family man, patriotic volunteer—who simply snapped, through no fault of his own, under the weight of four combat deployments combined with marital and money woes. The depiction may be accurate enough, and there is no doubt that PTSD is a real problem and that nonstop combat deployments take a toll, but there is no excuse or justification for the heinous act he is accused of committing.

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All I can say is: It’s a good thing that Staff Sgt. Robert Bales, who apparently killed 16 Afghan civilians in cold blood, will be tried by a panel of his peers (i.e. fellow soldiers) in a military court-martial rather than by a civilian jury. The latter, I suspect, will be more sympathetic than the former to the media-driven image of him as a poster boy for post-traumatic stress disorder rather than simply judging him to be a murderous fiend.

The New York Times, for example, has a lengthy account todaythat portrays Bales as an all-American type—high school football player, family man, patriotic volunteer—who simply snapped, through no fault of his own, under the weight of four combat deployments combined with marital and money woes. The depiction may be accurate enough, and there is no doubt that PTSD is a real problem and that nonstop combat deployments take a toll, but there is no excuse or justification for the heinous act he is accused of committing.


According to the statistics provided to me by the army, there are 51,270 soldiers, active duty, reserve and retired, who, like Bales, have four or more deployments. (More than 81,000 have at least three deployments.) Arguably that it is too much stress for any one person to carry and no doubt many of those who have deployed that many times engage in all sorts of reckless behavior–drinking, driving fast, and so forth. But there have been precious few war crimes like the one that was allegedly committed by Bales–and none as terrible measured by the loss of life. A civilian jury might not understand that and might buy into an argument from his lawyers that he was a victim of the army’s deployment tempo. His fellow combat vets, who have been through similar experiences but have maintained their composure, will not, I would guess, be so quick to cut him a lot of slack.

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Put Palestinian Tactics, Not Israeli Military Justice, On Trial

Yesterday, the New York Times devoted considerable space to the story of one Islam Dar Ayyoub, a 15-year-old Palestinian from a village near Ramallah. According to the story, Ayyoub’s childhood was stolen from him when he was thrust into Israel’s military court system a year ago. Ayyoub is the Times’ candidate for the position of poster child for what it calls Israel’s “harsh, unforgiving methods” in dealing with Palestinian violence. But though the purpose of the story was to indict Israel, anyone reading between the lines of Ayyoub’s sob story could see the real villain of this tale is not Israel’s military but the Palestinian “activists” who have exploited their children. They are recruited into gangs explicitly tasked with starting violent confrontations with Israelis by the throwing of stones and other lethal weapons, hoping the soldiers will defend themselves and kill one of the kids.

Ayyoub is depicted as a victim because he gave up his confederates to the Israelis and in particular a local Palestinian adult named Bassem Tamim, who was the overseer of what in any other context would be called a violent youth gang. “Human rights” activists think the prosecution of this person should be scrapped because the kid who dropped the dime on him didn’t have a lawyer or his parents present when he talked. That might be what would happen on an episode of “Law and Order,” but the realities of the Middle East conflict are such that Israel’s tactics are justified.

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Yesterday, the New York Times devoted considerable space to the story of one Islam Dar Ayyoub, a 15-year-old Palestinian from a village near Ramallah. According to the story, Ayyoub’s childhood was stolen from him when he was thrust into Israel’s military court system a year ago. Ayyoub is the Times’ candidate for the position of poster child for what it calls Israel’s “harsh, unforgiving methods” in dealing with Palestinian violence. But though the purpose of the story was to indict Israel, anyone reading between the lines of Ayyoub’s sob story could see the real villain of this tale is not Israel’s military but the Palestinian “activists” who have exploited their children. They are recruited into gangs explicitly tasked with starting violent confrontations with Israelis by the throwing of stones and other lethal weapons, hoping the soldiers will defend themselves and kill one of the kids.

Ayyoub is depicted as a victim because he gave up his confederates to the Israelis and in particular a local Palestinian adult named Bassem Tamim, who was the overseer of what in any other context would be called a violent youth gang. “Human rights” activists think the prosecution of this person should be scrapped because the kid who dropped the dime on him didn’t have a lawyer or his parents present when he talked. That might be what would happen on an episode of “Law and Order,” but the realities of the Middle East conflict are such that Israel’s tactics are justified.

Getting arrested and questioned by the Israeli military was probably no picnic for Ayyoub. Yet, as the Times reported, he was not tortured. His interrogation was videotaped and reveals nothing the Palestinians could claim was an atrocity. Like many another culprit, he got scared and talked. The result was not an injustice but the arrest of an adult Palestinian who exploited Ayyoub and other village kids in an effort to keep the war against Israel alive. Tamim and other Palestinian terror facilitators train kids to attack soldiers and hope some will be hurt. They are not promoting non-violence but instead are deliberately placing teenagers into harm’s way so as to provide more martyrs for their cause.

As France’s World War One leader, Georges Clemenceau, said, “military justice is to justice as military music is to music.” But the situation on the West Bank is complicated because Israel is still forced to have a security presence in the region in order to prevent attacks on its forces and civilians. Because it is impossible to apply Israel’s own civilian laws in the area, the military uses the laws that existed there before Israeli rule from the British and Jordanian eras. But unlike the courts run by the Palestinian Authority, all terror and violence suspects are given trials and have the chance to defend themselves. The system is, like all justice systems, imperfect, but despite the assumption that Israel’s actions are unfair, there was nothing in the story that doesn’t pass the smell test.

We are told in the conclusion to the piece that Ayyoub, who has been released unharmed and is free to go to school, is afraid of the soldiers. More likely, he is afraid of revenge from other Palestinians who treat people who inform on those involved in violence as “traitors.”

Until the Palestinian leadership is prepared to recognize the legitimacy of a Jewish state and make peace, Israel will be forced to keep order in the region and to do its best to fend off terrorism and the orchestrated riots that were at the core of the Ayyoub case. The real scandal is the willingness of Palestinians to sacrifice children like Islam Ayyoub on the altar of hate for Israel.

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