Unequal Military Justice is Good Policy

In Defense One, Butch Bracknell and I explain "Why 'Different Spanks for Different Ranks' Are Often Justified."

In Defense One, Butch Bracknell and I explain “Why ‘Different Spanks for Different Ranks’ Are Often Justified.”

The argument is complex and defies excerpting but here’s a taste:

A leading lawmaker has called out the Air Force for never trying a single general officer by court-martial in its entire history, suggesting it shows higher-ranking personnel face different standards of punishment. Indeed, courts-martial for flag and general officers in all four services are exceedingly rare, particularly in recent history.

[…]

Officers are, from selection and throughout their careers, held to much higher standards than enlisted personnel, particularly those in the lowest ranks. But more senior personnel are also accorded special treatment and do, in fact, avoid punishments for acts that, if performed by a junior enlisted member, would certainly result in trial by court-martial and often confinement, if convicted.

[…]

The more senior the soldier, the more they are held to high professional standards. They are expected to know their craft and set the right example for their subordinates. But they are also given much more credit for their past service and more benefit of the doubt for transgressions. Commanders, quite rightly, do not want to end the career of a good soldier, officer or enlisted, after 15 or 20 years of honorable service. Doing so would be not only demoralizing to subordinates, who will be signalled that their contributions, too, will be dismissed if they make one mistake, but the penalty is simply more harsh as time goes on―loss of retirement pay and the end of a chosen career.

The essay-in-full is over 1600 words.

 

FILED UNDER: Law and the Courts, Military Affairs, Published Elsewhere
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Roger says:

    The powerful can always come up with eloquent arguments for why members of their class should not be judged the same way that commoners are judged. Of course Petraeus should get probation for betraying his government’s secrets to his mistress–look at all the good he did.

    And, by the way, why are we always so sure that the senior officer has given 15 or 20 years of honorable service? I tend to doubt that people suddenly take up a life of crime for the first time in their 40s or 50s. Isn’t it at least as likely that these distinguished senior officers have gotten away with bad behavior throughout their careers as it is that they have always behaved honorably?




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  2. michael reynolds says:

    This would have been a really good argument to offer in, say, the 19th century, when officers were gentlemen and soldiers were just peons. Here, now, in 2018, I have to agree with @Roger. The argument is essentially that the American taxpayer, having invested vastly more in a general officer than it has in a corporal, should expect a lower standard of behavior from the guy we’ve spent millions paying, training and educating. Can we call it #BrassPrivilege?




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  3. James Joyner says:

    @Roger:

    Of course Petraeus should get probation for betraying his government’s secrets to his mistress–look at all the good he did.

    That’s part of the argument. It’s also that his mistress was an Army intelligence officer with a TS/SCI clearance whom he reasonably trusted to handle the information properly. He violated the rules—she had no Need to Know—but it mitigated the possible damage.

    @michael reynolds: As noted in the piece, we hold generals to a higher standard of conduct in almost every regard. But, yes, they’re also more likely to be able to plead down to a lighter sentence and quiet retirement. It surely works the same in the private sector–a Don Draper gets more chances and more leeway than a Paul Kinsey. Or a Kobe Bryant versus Nick Young.




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  4. michael reynolds says:

    @James Joyner:
    Yes, those that have, get, and the don’t haves get screwed, implicitly accepting the notion that power = privilege rather than power = responsibility.

    By this logic the Pope would be less guilty of child molestation than a parish priest. The CEO of a corporation would be less guilty of massive insider trading than some lowly cubicle dweller who got a one-time hot tip. The head of a crime family would be less guilty than his capos. We are equal before the law unless of course we have power or money. Which means we basically punish the weak, which I’m sure is one of the Beatitudes.




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  5. James Joyner says:

    @michael reynolds:

    By this logic the Pope would be less guilty of child molestation than a parish priest. The CEO of a corporation would be less guilty of massive insider trading than some lowly cubicle dweller who got a one-time hot tip. The head of a crime family would be less guilty than his capos.

    Obviously, the reverse is generally true in those walks of life and in the military. We cashier generals and admirals for sexual indiscretions that a less senior officer, or certainly an enlisted man, could get away with. We also end their careers for crimes committed by their subordinates that they had nothing to do with because they’re accountable for what happens in their commands. But, for reasons noted in the piece, we tend to do it quietly and without the process of the court-martial; they just go away.




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  6. Andy says:

    As noted in the piece, we hold generals to a higher standard of conduct in almost every regard.

    That’s an assumption that I don’t think is true at all (SNCO retired after 23 years of service) and neither does my wife (O-5 retired after 22 years of service).

    And really, if we give generals much lighter punishments than other personnel, even for very serious crimes, then they are obviously not actually held to a higher standard of conduct.




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  7. Andy says:

    I’m reminded of the line from the famous Paul Yingling essay, A Failure in Generalship:

    As matters stand now, a private who loses a rifle suffers far greater consequences than a general who loses a war.




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  8. James Joyner says:

    @Andy: Yingling was really talking about a different issue but he’s probably right. Mostly, though, that’s because our recent wars have 1) had no clear, achievable military objective and 2) been so damned long that, combined with our bizarre personnel policies of quick rotation even for senior commanders, everyone can claim “we were winning when I left.”




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  9. Andy says:

    @James Joyner:

    We cashier generals and admirals for sexual indiscretions that a less senior officer, or certainly an enlisted man, could get away with.

    That’s not true in my experience. And, we’re still living in a one-strike-and-you’re-out military. Article 15’s are no longer corrective actions, they are career enders. A junior officer who commits some sexual indiscretion will get an article 15 and, at a minimum, passed over and forced out. A General MIGHT get forced to retire somewhat earlier than planned.

    And there are plenty of instances where Generals who committed serious crimes are allowed to retire and keep their pensions (albeit at a somewhat reduced rank), while a lesser-ranked person gets court-martialed, prison time, a dishonorable discharge and the black mark of a permanent criminal conviction on their record that follows them forever.




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  10. gVOR08 says:

    Only marginally on topic, but Thomas Ricks in The Generals makes a case that our military leadership has declined since WWII because we no longer punish mediocrity or reward daring. A general gets a command and will serve his full rotation pretty much no matter what happens. In WWII Marshall, Eisenhower and their subordinates were quite ruthless about relieving people from combat commands for any real or perceived lack of success.

    Today, as one American colonel said bitterly during the Iraq War, “As matters stand now, a private who loses a rifle suffers far greater consequences than a general who loses a war.”

    Part of the WWII system was that being relieved wasn’t necessarily a career ender. The prime example being Terry Allen, who was relieved from command of the 1st Infantry Division, went home, trained the 104th Division, landed them in France a few months after D Day, and led them with distinction into Germany.




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  11. gVOR08 says:

    @Andy: Hadn’t seen your comment. I’m afraid I doubled up on the quote.




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  12. James Joyner says:

    @gVOR08: I’m somewhat sympathetic to Ricks’ argument but it has a major comparative flaw: The WWII Army was 10 million strong and we were cranking out new generals left and right. Hell, Eisenhower was a colonel at the outset. The current wars are fought by, as Rumsfeld infamously put it, the Army we have. Our current generals slowly made it up the ranks after careful vetting and tons of schooling. At the same time, as noted upthread, “winning” our current wars is much more elusive and less amenable to military solutions.




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  13. Andy says:

    @gVOR08: No worries, completely agree with your point.




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  14. James Joyner says:

    @Andy:

    Article 15’s are no longer corrective actions, they are career enders. A junior officer who commits some sexual indiscretion will get an article 15 and, at a minimum, passed over and forced out.

    Well….sort of. Because commanders understand the “one strike” mindset, they will handle it in much the way the pilot anecdote Butch contributed to our piece was handled—off the books. If a commander Article 15’s an officer, it’s because he wants to end his career.




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  15. teve tory says:

    When the CEO pressures his bank to sell a million fraudulent mortgages, he has to pay a small fine, and maybe gets booted from the industry. When the poor black 16 year old steals a car, he gets five years in p m i t a prison. Same moral logic.




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  16. Andy says:

    @James Joyner:

    If a commander Article 15’s an officer, it’s because he wants to end his career.

    Or the Commander wants to protect his/her career, or any number of other considerations. But that just illustrates the divide – that is not a situation that General officers face – instead, Generals simply get retired.

    The current wars are fought by, as Rumsfeld infamously put it, the Army we have. Our current generals slowly made it up the ranks after careful vetting and tons of schooling.

    The system today is definitely careerist and that brings with it certain characteristics, many of them undesirable. Colonel is the gateway drug to the General ranks and those who make it are not necessarily the best and brightest.




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  17. Barry says:

    @James Joyner: “The WWII Army was 10 million strong and we were cranking out new generals left and right. Hell, Eisenhower was a colonel at the outset. The current wars are fought by, as Rumsfeld infamously put it, the Army we have. ”

    James, you contradict yourself. We could alway promote like we did in WWII. And in Iraq/Afghanistan, there was very good reason to do so. A general who spent 25 years preparing for conventional war won’t do well at other types of war.




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  18. DrDaveT says:

    @James Joyner:

    Our current generals slowly made it up the ranks after careful vetting and tons of schooling.

    Some of them, yes. Others have degrees in physical education from small state schools in Florida, but end up Superintendent of West Point anyway.

    Noblesse oblige, James. The powerful should always be held to a higher standard, precisely because they are powerful. When was the last time you saw a general officer ruined — not just professionally, but financially and socially? Never? Are you seriously claiming that they never deserve ruin, even though we ruin junior officers and enlisted personnel all the freakin’ time?




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  19. James Joyner says:

    @DrDaveT:

    Some of them, yes. Others have degrees in physical education from small state schools in Florida, but end up Superintendent of West Point anyway.

    Hagenbeck is an odd case, to be sure. But he was a West Point graduate and went through the standard schools: Infantry Officers Basic and Advanced Courses, Command and General Staff College, Army War College. And he did get an MBA in addition to his MS in exercise physiology.




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  20. James Joyner says:

    @DrDaveT:

    When was the last time you saw a general officer ruined — not just professionally, but financially and socially? Never? Are you seriously claiming that they never deserve ruin, even though we ruin junior officers and enlisted personnel all the freakin’ time?

    There are very few generals and admirals, and they’re vetted over decades before they get there. Relatively few of them commit crimes. Further, under existing law, we can’t strip personnel of any rank of their pensions*, which vest at the 20-year mark, for crimes committed later in their careers. [*With certain rare exceptions. See @Butch Bracknell downthread.]

    I think that, for example, those involved in the Fat Leonard case should get serious jail time. Rear Admiral Robert Robert Gilbeau, according to Wikipedia, “Pleaded guilty in June 2016 to making a false official statement. Gilbeau retired from active duty in September 2016 and was demoted to captain. Sentenced to 18 months in prison, in addition to a $100,000 fine, $50,000 in restitution, 300 hours of community service, and three years on probation.” Everyone else convicted was either a civilian or below flag rank. There are a couple of other admirals awaiting trial.

    We had BG Jeffrey Sinclair, mentioned in the piece (and wrote about at length at the time), who got reduced to LTC and retired at that rank despite being convicted of relatively minor offenses (he was accused of much more serious ones). That’s a pretty major financial and social hit.

    There was also the 2010 case of Maj. Gen. Thomas J. Fiscus, the Air Force’s former top military lawyer, who was reduced two ranks (to colonel) “after an investigation found him involved in several affairs and improper conduct with more than a dozen women.”




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  21. MBunge says:

    You know, the argument being made by Joyner and Bracknell might have some merit if we were in the midst of some kind of public frenzy where newly draconian standards were being applied to military leaders. But as far as I can tell, that is not the case. And not only is that not the case in the military, it is painfully obvious that one of the greatest systemic problems facing society now is the lack of accountability for elites in general.

    What is the point of making this argument at this time?

    Mike




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  22. James Joyner says:

    @MBunge:

    What is the point of making this argument at this time?

    As noted in the very first sentence of the article, Members of Congress are raising questions about the issue.




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  23. Mikey says:

    @James Joyner:

    It’s also that his mistress was an Army intelligence officer with a TS/SCI clearance whom he reasonably trusted to handle the information properly.

    Ironic, since every action both of them took with regard to that information was by definition improper handling.




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  24. Mikey says:

    @MBunge:

    What is the point of making this argument at this time?

    The owner of this blog found it interesting. No other “point” is necessary.

    If you disagree, by all means start your own blog instead of walking into someone else’s and crapping on the floor.




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  25. Andy says:

    @James Joyner:

    We had BG Jeffrey Sinclair, mentioned in the piece (and wrote about at length at the time), who got reduced to LTC and retired at that rank despite being convicted of relatively minor offenses (he was accused of much more serious ones). That’s a pretty major financial and social hit.

    These weren’t minor offenses. He misused his government charge card for his affair – I’ve seen enlisted personnel receive BCD’s and reduction to E-1 for misusing a GTC alone. An SNCO who did all the things that Sinclair did would be in Leavenworth.

    Retiring as a Lt Col may be a major financial and social hit from his peak rank potential, but it is not a punishment equal to what someone of lesser rank would receive for the actions that Sinclair did. That he did them as a senior officer in a position of authority makes his actions worse and deserving of a tougher punishment because he betrayed the special trust he was given. Yet he still gets all the benefits of his retired rank including the privileges that come with being an officer.

    Again, in every example, we see that General officers are NOT held to a higher standard – their rank ensures that their punishments are less severe for equivalent and even worse behavior committed by lesser ranking personnel. That is not, by definition, holding them to a higher standard.




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  26. MBunge says:

    @James Joyner:

    No, what is the point of making THIS argument at THIS time? Do you actually think it’s the appropriate attitude to have in these circumstances?

    Mike




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  27. MBunge says:

    @Mikey:

    There’s no reason to lash out just because you can’t keep up. I’ll make sure and dumb things down for you in the future.

    Mike




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  28. Mikey says:

    @MBunge: You’re a Trump supporter. It doesn’t get any dumber than that.




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  29. gVOR08 says:

    I can’t find a clean comparison of numbers of generals over time (possibly because I’m too lazy) but in 3013 we had 37 four stars (with Navy/Coast Guard equivalents).

    which is more four-stars than served during World War II – when the military had nearly 10 times as many enlisted personnel.

    There may be any number of reasons for not replacing generals, but we don’t seem to have a shortage.




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  30. Butch Bracknell says:

    @Roger: I’m uncomfortable making decisions about disposition of current misconduct based on what *might* have happened in the past.




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  31. Butch Bracknell says:

    @James Joyner: Point of order — an officer can be divested of his pension if his sentence at court-martial includes a dismissal. This is the officer equivalent of a DD, and it divests the pension as a matter of law. It is a HUGE penalty reserved for the most egregious cases, obviously, just as BCDs and DDs are judiciously awarded for enlisted members who are retirement eligible.




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  32. James Joyner says:

    @Butch Bracknell: Thanks for the clarification. I inferred that as a policy from the Sinclair and even Fat Leonard cases. The latter, in particular, strikes me as sufficiently egregious to warrant that punishment.




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  33. Butch Bracknell says:

    @gVOR08: So, with respect, I f****** HATE this comparison of raw numbers between WWII and now. The security environment is more complex now, and so is the administrative and legal environment. In WWII, we had no nuclear subs. In WWII there were no nuclear missiles. In WWII, there were very few complex international security assistance programs. In WWII, we weren’t building Joint Strike Fighters and Abrams tanks and Paladins and LCSs and DDGs with networked Aegis systems. In WWII, there was no SAPRO and equal opportunity office and family readiness directorates and all the stuff we have hung on the armed forces for 70 years, for better or worse. So stuff is harder now, or at least more complex, than it was then, and it takes more senior and experienced people to manage it. We had 26 year old battalion commanders in the Marine Corps in WWII. Anybody think that’s also a good precedent in 2018?




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  34. Butch Bracknell says:

    @James Joyner: On the Fat Leonard cases, in particular, I couldn’t agree more. The conduct of those officers offends me to the core — not as a moral purist, but as a violation of a pretty serious oath for personal profit and gratification. Those ship schedules are classified for a reason. Ask the CO of the USS Cole why that is.




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