By Col. Robert Harvey, USAF (Ret.), Guest Writer
Led by U.S. Senators Claire McCaskill (D-Mo.) and Kirsten Gillibrand (D-N.Y.), political correctness is bullying its way into our military in the name of protecting women. Sadly, the changes to the military justice system being advanced by these women are designed specifically to convict more men accused of sexual assault without regard for the truth.
The senators’ proposed changes include stripping military commanders of their authority to dismiss convictions during the clemency process. Commanders would still be “permitted” to review cases, but prohibited from dismissing them. In other words, commanders would only act as “rubber stamps” if the proposed changes are approved.
The senators want to mandate dishonorable discharge/dismissal for sexual assault. Strong punishments for sure, but they can deny servicemen retirement benefits previously earned during lengthy and otherwise honorable service. Currently, court-martial panel members (a.k.a., “jurors”) decide, along with other punishments, whether or not to strip retirement benefits. In turn, those decisions are reviewed by commanders. While dishonorable discharge/dismissal may be warranted in aggravated or violent cases of sexual assault, the same punishment for something the military now describes simply as “unwanted touching” — something that’s not even considered a crime outside the military — would be cruel and unusual punishment. Leave the sentencing to the jury!
The senators want to require input from victims during clemency hearings. A clemency hearing is a post-conviction review by the commander. During this post phase, the commander conducts a review and either approves or reduces the sentence. He cannot, however, increase the sentence. The requirement for a victim to provide input during clemency would be redundant. Victims can speak as witnesses during trials, and they’re afforded opportunities to speak during sentencing. What more would the senators like them to be able to say?
The senators want victims to be able to read letters of support for the defendant and respond to them. Again, why? Just so the victim can have the last word? Since the senators want commanders to be nothing more than “rubber stamps,” why have this (or clemency) at all? In all probability, this idea stems from a case the senators disagree with that involved a commander dismissing a conviction. In other words, the senators are acting like spoiled kids when they don’t get their way.
The senators want to “make it clear commanders failing to address sexual assaults should be relieved of command.” This is troubling — a direct threat to any commander who considers not pressing every case to court martial, regardless of the evidence. In other words, if Senators McCaskill and Gillibrand do not get their way, the commander gets fired.
Recently, a two-star Army general in Japan was relieved of duty, because his higher ups did not believe he adequately pursued an assault case. Now, the de facto policy in the Army is that every case goes to court-martial or the commander gets fired. This sets a very serious precedent that sweeps aside any effort at truth or justice in favor of a political agenda.
As if threatening their careers is not enough, another push is underway to force commanders to send cases to court-martial regardless of the available evidence. The senators want to include this provision: “Commanders retain ability to refer cases for court martial in consultation with legal counsel—including when prosecutors decline.”
Why would a commander insist a case proceed to court-martial after prosecutors decline to recommend that option? This provision, along with threats of being fired, will encourage commanders to do just that. At the same time, it confirms the senators’ joint goal is to force each case to trial regardless of the evidence or strength of the case.
Isn’t this just the flip side of what the senators object to already – that is, a commander being able to affect a case? Evidently, the senators only disagree with a commander when he rules in favor of an accused. When a commander rules against an accused and over the best judgment of a prosecutor, the senators find that acceptable. That’s not justice!
Two other changes the democrats want to implement include eliminating the consideration of the defendant’s military character and establishing guidance to move the accused from the unit.
Elimination of military character as a consideration for case disposition means that a defendant will be prohibited from showing a positive military record of good conduct as part of his defense. Even murderers get the opportunity to show that they have not always been bad people. Why take this away from military defendants? Why are they singled out for slander in the courtroom without being able to provide a defense?
Finally, the senators want to “protect” the alleged victim by moving the accused from his unit prior to any trial being conducted and without regard to evidence of the establishment of guilt. Without time for due process, this has the effect of establishing that the accused is guilty until proven innocent.
In a modern-day version of the Salem Witch Trials, Senators McCaskill, Gillibrand and others want to establish that one woman’s story is enough to send any man to prison; that every man who is accused is guilty; and that evidence and legal process need not interfere with the sequence of events that follow an accusation. “Just burn them all!” is the new mantra, and that’s unacceptable!
Colonel Harvey retired after 33 years of military service which included six years in the U.S. Army and 27 years in the U.S. Air Force. A combat fighter pilot with more than 3,100 hours in F-16 cockpits, 160 of which were flown in combat during Operation Desert Storm, his distinguished career also includes service as a fighter squadron commander and an air operations group commander.
EDITOR’S NOTE: Sen. Kelly Ayotte (R-N.H.) is guilty, too. For details, see Senators McCaskill and Ayotte Push Sexual Assault ‘Witch Hunt.’ To learn more about the dangers facing the military justice system, read my my series, “War on Men in the Military.”