Why are politicos trying to silence the senior uniformed lawyers informing Congress about critical military justice issues?

In what only can be described as an ill-considered—not to mention inaccurate—op-ed, Representative Jackie Speier (D-CA) and Administration favorite Lynn Rosenthal made one of the most serious and insulting accusations possible against military officers serving in a democracy: that the services’ senior uniformed lawyers “show[ed] utter contempt for the principle of civilian control of the military.”  Speier and Rosenthal compounded their false accusation by inferring the officers are somehow improperly “lobbying.”

Why did Speier and Rosenthal do this?  Could it be they are trying, rather desperately, to silence the officers so as to prevent them from providing crucial information Congress needs about pending military justice legislation?  I think so. 

Speier’s and Rosenthal’s effort to stifle dialogue is profoundly wrong, and everyone–starting with the Commander-in-Chief – ought to say so.  Congress needs to hear from such experienced officers, and doing so doesn’t harm civilian control of the military; rather, it affirmatively reinforces it.

Background 

Speier, Rosenthal, and especially, Senator Kirsten Gillibrand (D-NY) are leaders of a faction who want to hobble commanders’ ability to discipline their troops by, among other things, creating a costly new Pentagon bureaucracy composed of staffers and civilians far from any battlefield, and outsourcing disciplinary authority to it.

Inexplicably, they want to enact these changes while America’s military is urgently trying to prepare to counter an extremely serious and very real threat from Russia towards Ukraine, as well as China towards Taiwan.  North Korea and Iran also remain constant concerns, and experts tell us that the Islamic State in Afghanistan could present a threat to the U.S. homeland as soon as six months from now.

Decide for yourself if this is really the right time to upend a military justice system which, though certainly not without flaws, necessarily forms the cornerstone of what all experts agree is currently the most powerful military in the world.  Is now the right time to make such extreme changes with wholly unpredictable impacts on the military’s warfighting capability?

Indeed, is now really the right time to inject a kind of ‘whose-in-charge’ confusion into the military’s disciplinary process?  Remember the Supreme Court’s admonition: “No question can be left open as to the right to command in the officer or the duty of obedience in the soldier.”  In the military setting, is an officer truly a “commander” without the authority to discipline troops?

Nevertheless, the Gillibrand faction claims their plan – which I (and many other servicemembers and veterans) believe would disrupt the military justice system and gut command disciplinary authority – is necessary to address sexual assault cases in the armed forces.

But analysts have found that “[s]tatistics don’t support removing commanders from military justice.”  As you might imagine, Gillibrand’s proposal drew formal opposition from scores of experienced former senior military lawyers and commanders (including me) in a letter last year.

In fact, if you want to get up to speed on this issue quickly, I highly recommend a brief essay in Military.com this past week by scholar (and Lawfire^® contributor) Brian Cox (who himself was a victim of sexual assault as he discusses here): “Gillibrand’s Case for Sweeping Military Justice Reform Is Built on Misperceptions and Defective Data” 

Until recently Gillibrand’s proposal was gaining support in Congress.  After all, who doesn’t want to diminish sexual assault in the military and, for that matter, everywhere else?  But this isn’t the right way to do it.  Now a growing number in Congress and elsewhere are realizing her proposal not only won’t accomplish that, but will create, as Brian puts it “an imminent risk of systemic military justice failure.”

The Speier/Rosenthal accusation 

Eviscerating commanders’ disciplinary authority is only one of the objectionable parts of the Gillibrand/Speier/Rosenthal plan. 

In their op-ed, Speier and Rosenthal, who have no military experience, complain that the senior military lawyers—The Judge Advocate Generals (TJAGs) of the respective services—also oppose the plan’s proposal to have military prosecutors report to a political appointee of the party in power instead of an independent, career military officer as the process presently works.

Suffice it to say, Speier’s and Rosenthal’s proposal to politicize the military justice system in this way is a terrible idea, and the TJAGs were right to oppose it. 

Congress designed the current process so that independent military officers (specifically, the TJAGs, who are legally required to be nonpartisan) would be the ones with ultimate supervisory authority over military prosecutors.  This helps to ensure the vagaries of partisanship stay out of the military’s criminal justice system.

How the current law works to keep the supervision of military prosecutor independent and nonpartisan

Current law establishes the independence and nonpartisanship of those ultimately responsible for the supervision of military prosecutors by requiring each officer nominated to be their service’s TJAG to first be recommended by a board of military officers (see 10 U.S.C. § 7037).   Only then can they be put forth by the President for Senate “advice and consent.”

In other words, Congress wisely wanted TJAGs recommended not by some political operatives who are openly partisan, but rather by a board of uniformed officers required to be nonpartisan by law and custom.  We should want military prosecutors overseen by officers selected by an apolitical process, not by people who, however otherwise qualified, only obtain their jobs if they have the right political connections.

When military lawyers provide information to Congress, civilian control of the military is bolstered

The Speier and Rosenthal op-ed is plainly meant to intimidate and, really, gag TJAGs from informing Congress of the facts, and giving legislators the benefit of their many years of experience in the military justice system.

But, ask yourself this: in what universe is trying to cow military officers into denying members of Congress information on a controversial proposal an aid to civilian control of the military?  The truth is quite the opposite: Congress needs to hear from servicemembers, especially about something that could be so damaging to America’s warfighting ability.

(Take a look at what former Secretary of Defense and retired Marine general Jim Mattis said here about removing commanders’ disciplinary authority.)

The law about communicating with Congress, and “lobbying”

For its part, Congress has made it clear it wants to hear from those serving.  In fact, 10 U.S.C. § 1034 explicitly includes this specific provision: “No person may restrict a member of the armed forces in communicating with a Member of Congress. . . .”

What about “lobbying?”  Bottom line up front: TJAGs are not engaging in illicit “lobbying.”  As the Congressional Research Service reported in 2015:

Although these restrictions exist in both federal statutory laws as well as in yearly appropriations riders, because of their precise language and the exceptions to the limitations, and because of recognized countervailing public interests and the necessities of efficient governmental functioning, such restrictions are interpreted in a narrow fashion. The restrictions on the use of federal funds to lobby the Congress have, for example, been consistently interpreted to allow direct communications from federal officers or employees to Congress with respect to legislation or appropriations in order to facilitate an open dialogue between the agencies, departments, and officials in the various branches of government with regard to the public business and public policy options.  (Emphasis added.)

Everyone ought to condemn the effort to deny Congress information from senior military officers on such a key issue.

Productive and effective civilian control of the military requires the legislative branch of our democracy to have access to not only information in possession of the armed forces, but also to the thinking of its leaders.

I’m not surprised that Speier and Rosenthal are frantic to shut down the information flow to Congress.  As more people fully internalize the extent of their proposals, the more realize this is the wrong approach, and one that will significantly damage the military’s ability to maintain a disciplined, accountable, and effective force.

Just last Friday Senator Gillibrand, the faction’s leader, was roundly criticized by the Chairman of the House Armed Services, a member of her own party, for  “mischaracterizing the military justice reform provisions in the annual defense policy bill.”   It may be that support for some of the faction’s most egregious proposals is unraveling.

Of course, everyone ought to be concerned about sexual assault in our society—including the military—and be actively working on solutions.  But, it is a testament to the weakness of their ideas that Speier and Rosenthal are trying to deny Congress the benefit of the views of very experienced military officers by making such serious—and false—accusations against them. 

Concluding thoughts

It saddens me when anyone tries to suppress communication from a member of the armed forces to Congress, but especially so when the person attempting to do the suppressing is herself a member of Congress.  

Of course, it is also disturbing that Ms. Rosenthal, who headed the Pentagon “study” of the military justice system that produced the damaging proposals, is evidently so obtuse about the basics of the Constitutional architecture for civilian control of the military, as well as the statutes applicable to communications with Congress and lobbying.  The question has to be asked: was she really qualified to conduct the study?   Maybe her leadership helped to make it so flawed.

To be clear, Cong. Speier and Ms. Rosenthal have every right to vigorously advocate their plan, but Congress should also welcome the views of those still-serving who may dissent from all or part of it.  It is only through open-minded dialogue can we hope to devise what is really the best way to handle what everyone agrees is a critically important issue for America’s military.

I can only hope that responsible people in Congress and American society will value the perspective of those in uniform, and welcome their views on this and, really, any topic involving the armed forces.

No matter where one stands on this matter, I hope all would condemn any effort to deny Congress information from senior military officers on important issues.  Where then does the silencing stop?  Civilian control of the military flourishes when the branches of government are kept fully informed, not when politicos try to gag military officers from offering their perspective on vital issues.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!