In this post, I offer this reply to Charlie Dunlap’s post (the “Post”), as well as his underlying essay (the “Essay”), in which he provides full-throated opposition to Sen. Gillibrand’s proposals to remove sexual assault reporting, investigation, and prosecution from the military chain-of-command.  In some ways, this debate is asymmetric because Charlie opposes Sen. Gillibrand’s proposal as fundamentally inconsistent with the military mission whereas I am open to her proposal subject to significant study of the problem it seeks to address as well as potential unintended consequences to military command-and-control.  However, having worked on this issue in Congress, including as staff to four oversight hearings on the subject (see here, here, here & here), I do have some reactions to his arguments.  I am honored to engage in the debate.

Specifically, I would like to address a few of Charlie’s arguments that I believe are counterproductive and a few that are quite significant.  In the spirit of debate, I’ll start with his problematic arguments.

First, he begins his Essay and Post with the observation that he has seen “plenty of Congressional efforts to ‘improve’ the military justice system.”  He goes on in the Essay to criticize Congress for failing to address sexual assault on college campuses with equal seriousness as efforts to reform military justice.  He argues:

Exactly why Sen. Gillibrand and others in Congress berate the military’s efforts yet tolerate “no tangible disciplinary action” for sexual assaults at a university that reaps hundreds of millions in Federal grants is hard to figure.  Could it not do more?  For example, why not suspend a university’s eligibility for Federal largess pending the enactment of tough standards for dealing with sexual assault? (Essay at 3) (internal hyperlink omitted).

This argument troubles me for a couple of reasons.  For starters, it is a straw man.  Nothing about congressional activity or inactivity in the addressing the very serious problem of sexual assault on our nation’s college campuses is a meaningful argument against addressing the problem within the military.  It is only a form of a selective prosecution argument:  Sen. Gillibrand is unfairly picking on the military.  Sexual assault is a problem in the military.  It is also a problem on college campuses.  The fact that Sen. Gillibrand seeks to try to mitigate its pernicious effects on those from whom we ask so much, rather than another sector of society that may not fall within her committee assignments, is not worthy of disdain.

Also, as I note in my original post on this topic, while sexual assault plagues all too many sectors of our society, we have a particular responsibility with respect to the military because it is an intentional community created as an instrument of public policy.

I detect a sense on Charlie’s part that Congress has no business getting into this area, either because it is an unseemly intrusion into military affairs or Congress is not competent to do so.  If it is the former, I think that sentiment conflicts with the notion of civilian control of the military.  Just as Marbury v. Madison asserts that it is “emphatically the province” of the judiciary to decide what the law means, it is emphatically Congress’s responsibility, part-and-parcel with civilian control of the military, to establish military policy.

If it is the latter, competence point, I will grant that we have had plenty of instances of warranted disappointment in congressional competence, motives, and tactics.  While the congressional record is admittedly mixed, it is still the role of Congress under Article I and as our elected policymakers.  Of course such policy should seek out the best advice from military leaders as well as academics, civilian officials, victims’ advocates, and other stakeholders.  But competence arguments eventually merge with the wisdom of the proposal under consideration, referenced below.

Second, in his Essay, Charlie argues:

According to Sen. Gillibrand, she proposed her legislation not because it would be better for national security, but because, she claims, “victims have asked.”  No criminal justice system, in the military or anywhere, ought to be shaped by what accusers want.  Quite the contrary, the Constitution’s Bill of Rights, is based on protecting the citizenry against the accusatory powers of the state. (Essay at 6).

On this score, I believe Charlie conflates criminal substance and procedure.  We erect a system of criminal law for the primary benefit to protect society from social harms, those social harms usually are expressed through harm to victims, and most criminal laws are enacted with such victims in mind.  In contrast, the notice principles, investigative regulation, presumptions, jury trial rights, evidence tests, appellate rights, and other procedural protections are certainly designed to ensure legitimacy of the system, fairness to those accused, and limit government power.  But, in the main, victims are essential ingredients in the raison d’etre of most criminal laws and are usually meaningful stakeholders in their enforcement.

There is also an inconsistent quality to this argument.  On one hand, he says we shouldn’t shape the system based on victims, with which I take issue.  On the other, he says the proposal would be worse for them.  (See Essay at 3 (“It will unnecessarily hurt victims of sexual assault.”)).  I think Charlie is on much stronger footing – as a political and analytical matter – to discard the argument that “victims” aren’t a primary stakeholder worthy of consideration in fashioning the right rule.  If he can convince policymakers that the proposal would, in fact, be detrimental to sexual assault victims, that would end the conversation, but it is a hugely contested point in the Senate policy debate.

Third, I take issue with the following passages of his Post:

Moreover, Sen. Claire McCaskill’s characterization of some in the Gillibrand camp caught my attention.  She called them “Washington-based advocacy groups with limited membership, participating in personal attacks, [and who] do not represent the views of all survivors”.

Although she is a former prosecutor and ferocious advocate of sexual assault victims, I still wondered: is McCaskill’s “participating in personal attacks” allegation just political hyperbole?  Disturbingly, it seems to be borne out by a recent attempt by a Gillibrand booster to muzzle active duty JAGs who were simply trying to explain the Department of Defense’s position on the commander’s essential role in the disciplinary process.  That’s why I knew I had to speak out.

This argument amounts to an ad hominem attack on the other side’s advocates.  I share Charlie’s view, I think, that the conduct he cites in the hyperlink would improperly silence an important internal military voice in this policy debate.  However, my reaction to that vignette as an argument against the Gillibrand plan is a shoulder-shrug.  In any political fight, I can always find someone on the other side that is acting irresponsibly.  Here, I am concerned that the Gillibrand proposal supporter’s conduct could be perceived to be used as a guilt-by-association straw man to discredit Sen. Gillibrand’s reform effort itself.  On that score, it’s irrelevant.

The cumulative effect of such jurisdictional, unnecessary scrutiny, and ad hominem arguments, to me, undermines the much more important arguments about command necessity and victim effect.

In contrast, Charlie makes considerable arguments about incremental progress within the current chain-of-command model.  First, he notes the long line of cases recognizing the essential role discipline plays within the chain-of-command.  Such discipline is critical for warfighting, i.e., sending people willingly into harm’s way, as well as civilian control of the military.

He effectively raises an important point about the differing motivations and disciplinary triggers between a commander and prosecutor.  (See also Essay at 5).  This argument suggests that commanders who are serious about preventing and punishing sexual assault may initiate disciplinary action long before a prosecutor would feel they had sufficient evidence to prosecute a case.  True, but only as long as commanders have truly internalized an anti-rape command culture.  I’m not quite as sanguine as Charlie about the mean and median of current command attitudes.  With that said, and as I noted in my previous post, there are efforts to make sure that military promotion is tied to appropriate management of sexual prevention and response.  That is a very good thing, especially if we retain the current model.

Charlie makes the convincing point that, as a cultural observation, anything that matters in the military is commander-led.  That can’t be an end in itself though.  If commanders prove to be incapable of managing sexual assault appropriately, they will lose authority to do so.  He argues that the commanders are on their way to getting it right.  As I said in my previous post, I am prepared to entertain further empirical observation and policy analysis given the significance of a meaningful move away from the chain-of-command model.

I have 100% faith in Charlie’s commitment to eradicating sexual assault as anathema to military values.  I also think Charlie’s impassioned defense of commander responsibility and accountability merit very serious consideration and caution against hasty changes.  A kitchen-sink approach, however, has the potential to be counterproductive to Charlie’s cause because pro-reform advocates point to it as evidence that the military is reaching for any available instrument of resistance to change.