COMMANDER'S CLEMENCY POWERS A NEEDED SAFETY VALVE FOR COURTS-MARTIAL SYSTEM

​An Air Force General recently ignited a firestorm of criticism when he used his powers under Article 60 of the Uniform Code of Military Justice (UCMJ), to vacate the sexual assault conviction of a Lieutenant Colonel. The media has excoriated that General and bills to modify Article 60 have been introduced in Congress.

A recent study showed a sharp increase in estimated military sexual assaults. Few of those allegations were reported and even fewer resulted in courts-martial. What has gotten lost in the conflagration of criticism, is that many accusations are false. Allegations cannot be accepted at face value but must be throughly and completely investigated. Curtailing Art. 60 powers will not solve the sexual assault problem but may lead to more false reports. The commander’s authority is not the problem. If it is abused the commander can and should be disciplined. The problem is that sexual assault cases often lack physical evidence or witnesses. These "he said-she said" cases should be completely investigated at an Article 32 investigation, the military equivalent of a grand jury.

Strengthening the Article 32 investigation process is the key to encouraging the reporting of legitimate sexual assault cases. Only experienced judge advocates, who have served as both a prosecutor and defense counsel should be assigned as Investigating Officers. Fact finding will be conducted in a more informal and relaxed setting. Most of the rules of evidence do not apply. A victim can testify by video teleconferencing or telephone. Faced with a strong case against him, a guilty person will be more likely to plead, thus sparing the victim an arduous trial and cross-examination.

The Article 32 also protects the rights of the accused. Unlike a grand jury, the accused or his counsel cross-examines witnesses and presents evidence. However, an Article 32, until recently, had no subpoena powers and its decision is not binding. The Army even assigns non lawyers to conduct the proceeding. If probable cause is not found that finding should be binding.

There is a significant difference between a military and civilian trial. Most people do not realize that Court-Martial panel members are not randomly selected but are appointed by the commander. Instead of twelve members, there can be as few as three for a Special and five for a General Court-Martial. Attorneys are only allowed one peremptory challenge and it takes only a two-thirds vote of the panel to convict. Of course, these panel members are often susceptible to command influence. The commander's Art. 60 powers are used to off set some of these government friendly regulations.

The commander plays an important role in ensuring the integrity of the military justice system. Senator Kirsten Gillibrand recently asked why the Article 60 authority promotes good order and discipline. The short answer is that it acts as a safety valve. Though seldom used, it enhances faith and confidence in a system often criticized as arbitrary and unfair. After a conviction, the commander must review and consider the record of trial and the advice of his lawyer, known as the staff judge advocate. He may consider evidence not admitted at trial and clemency requests. He must be convinced beyond a reasonable doubt that the accused is guilty. Setting aside a conviction is very rare and is never done frivolously. But it is an important review designed to balance inequities between the military and civilian justice system.

Unfortunately, the statements of the President, the Secretary of Defense and various lawmakers are having a chilling effect. Commanders are now less likely to set aside convictions, even when warranted, for fear of criticism or negative effects on their own careers. Senator McCaskill recently put a hold on the nomination of a female commander who had also set aside a sexual assault conviction, to be Vice Commander of the U. S. Space Command.

A failure to discipline those who assault women is unacceptable. In ensuring the guilty are disciplined, however, we cannot send innocent men to prison. Sexual abuse allegations must be taken seriously but they cannot become the subject of a witch hunt. The focus should be on finding the truth and not on promoting a social or political agenda.