As senators probe the issue of sexual harassment and assault, they are overlooking two critical issues. The solutions favored do not go to the root of the problem, and they threaten to mitigate the critical link between discipline and command in harm’s way.
Acts taken in combat to ensure no fallen comrade is left behind depend fundamentally on trust and respect—not on legal instruments. The Congress can help with modification of certain rules. But it will only do damage by shearing from commanders responsibility for disposition of cases involving sexual harassment and assault.
Commanders who convene courts martial are joined at the hip with their Staff Judge Advocates (SJA), their senior attorneys. A service’s top lawyer, The Judge Advocate General (TJAG), handpicks these legal advisors from the ranks of his very best and most experienced lawyers. SJAs not only recommend on charges and disposition of trial, they lead the prosecutorial function in commands. They also work with and advise commanders on a wide variety of issues, including Status of Forces negotiations, legal aid and operational law.
For a senior commander to reject the advice of his SJA and overturn the finding of guilt in a court martial that he or she has convened is certainly unwise. But it is also very, very rare. Focusing on the very small (though unacceptable) number of these cases fails to address two of the most taxing problems in the very challenging area of preempting sexual misconduct—the persistent nature of this misconduct and the reluctance of victims to report it.
Of all the kinds of misconduct I encountered as a senior commander, sexual harassment and assault were by far the most challenging. Enabling attitudes—abuse of authority, naivete, lack of institutional and personal standards—helped to reinforce its persistence. The stressors of military life, especially serial deployments, aggravated the pattern. Only rock-solid discipline based on enthusiastic involvement of the commander, his junior officers and noncommissioned officers, as well as a command climate based on trust that encouraged reporting the misbehavior, helped to limit the problem.
We can mandate better training of the individual that begins in Basic Training and continues with advance in rank. We can improve leader development of officers going into command and Sergeants Major who serve at the battalion level, who are our first responders, so to speak. We should also look at strengthening the shield rule (Military Rule of Evidence 412), which prohibits a victim’s entire history of sexual misconduct from being exposed in court. We should allow commanders to administratively separate with a less than honorable discharge individuals found guilty of sexual harassment or assault but not discharged by the jury’s sentence.
Victims often do not report sexual assault or harassment. They do need psychological support during and after that very difficult process that begins with making a complaint. They need specialized counseling to help them navigate the processes of reporting, investigating, prosecution and recovery. By funding and creating institutional incentives for the generation of more counselors and victim advocates, Congress can help the Services with the issue.
Addressing the challenge of sexual misconduct should start with attacking the cultural roots of the behavior and the environment in units—not in splintering the disciplinary function of commanders. Removing the authority of commanders to convene courts martial would take away one of their most important disciplinary tools. Nor would that action address the cultural enablers. It may also manifest itself in harm’s way. In combat or peace enforcement, success depends on seizure and maintenance of the initiative. In these situations commanders must often make decisions instantaneously and on gut instinct. Operational and tactical timidity lose wars.
As the commander of the NATO’s Stabilization Force in Bosnia (SFOR), I worked with contingents from thirty-nine countries. Those formations all had different legal structures. Most nations provided attorneys from their Ministry of Justice who were fiercely independent of the force commander. These attorneys, not the commander, handled all prosecutorial issues. Allied commanders always looked over their shoulder when they made tactical decisions.
For instance, when I first took command of SFOR in 1998, we pushed Multinational Division Southeast (MND-SE) to be more aggressive in their operations. The Spanish, German, French, Italian and Portuguese attorneys resisted. Their opposition required an interesting visit by me to MND-SE’s headquarters. As the senior commander, I had been asked to lead a seminar with these dissenting allied staff judge advocates about my orders and the rationale for them.
Fortunately, after a contentious discussion, the French commander took me aside. He explained that in his case if any Bosnian reached Metropolitan France and convinced any magistrate that the French commander had violated the law, he would find himself in civil court at his own expense. In these contingents, attorneys from the Ministry of Justice gave opinions that constrained orders.
With an appreciation of the real problem, my SJA, the senior lawyer in SFOR, negotiated a solution. To keep them and their commanders content, we developed for every order that might have a tactical task not specifically mentioned in the overarching campaign plan, a legal finding signed by my SJA stating that the missions being conveyed were in accordance with Annex 1A of the Dayton Peace Treaty. That treaty stated that as COMSFOR, I was the final authority on what was needed to preserve a safe and secure environment in Bosnia. Our legal finding provided sufficient basis for the allies’ attorneys to allow their commanders to accept the operational and legal risk.
Orders of U.S. commanders have no paragraph requiring justification of the legal basis for the actions directed. In all of our institutions that develop combat leaders, we instill initiative, risk taking, and tactical and operational instinct along with adherence to law as the basis of command. Command in combat means creative and timely decisions under great uncertainty, stress and fatigue. By splitting off some or all of the areas of misconduct from commanders who are convening authorities and giving it to a parallel legal structure that may become subtly competitive, we risk creating the beginnings of a command environment like the one that encouraged tactical and operational timidity in some of the formations I had the privilege to lead in SFOR. Do we really believe that a two-star or more senior officer with an experienced staff judge advocate giving advice is able to make legally sufficient decisions on murder cases or sending troops on dangerous missions—but not about sexual harassment or rape?
Former Chief Justice Charles Evans Hughes wrote that the ability to wage war means doing so successfully. To the end we hold commanders responsible for discipline and law and order in their units, we must give them the tools to do so.
General Montgomery C. Meigs, USA (Ret.) is president and CEO of Business Executives for National Security, a nonpartisan organization based in Washington.