This diary contains a recommendation for Congress to fix a loophole in military justice. The need for the fix is illustrated by a current news event and my own experience as a whistleblower in the Navy.
The military allows commanders to punish members (and officers) through Article 15 of the Uniform Code of Military Justice (aka "Captain's Mast" on "non-judicial punishment" in the Navy and "office hours" in the Marine Corps).
Non-judicial punishment can be used to cover-up crimes where the chain of command bears some responsibility for the misconduct. There are two aspects of NJP that should be addressed.
The accused will almost always accept NJP instead of requesting courts-martial. The maximum punishment through NJP is much lower than at courts-martial. So if the chain of command offers NJP the accused figures that foregoing future promotions is a better deal than going to prison and losing retirement benefits.
NJP can be used to further a cover-up in two ways.
First, NJP findings effectively prevent the military from dispensing punishment at courts-martial. It's not true double jeopardy, but it gives the chain of command an excuse not to prosecute if it doesn't want to.
We saw this abuse perpetrated at Abu Ghraib. The on-the-ground supervisors were disciplined through NJP. Then the rank-and-file chump hillbilly reservists were tried at courts-martial.
Second, NJP records are exempt from exposure through the Freedom of Information Act under the personnel exception.
So NJP is a great place for the chain of command to hide its dirty little secrets. The accused is getting a good enough deal s/he won't squawk and implicant her/his seniors. And the records are all exempt from the FOIA.
When I read the story about the captain of the USS Minneapolis-St. Paul (SSN-708) being disciplined at NJP, I suspected there was at least a partial cover-up happening. See Yahoo (Anne Flaherty, AP) or Virginia-Pilot (Jack Dorsey). I suspect the sailors were on deck rendering honors when they were killed. I don't know because the Navy isn't telling the whole story, but they don't have to because the records are exempt from the FOIA.
I saw this scenario play out in Navy Recruiting Command. The recruiters were pressured if not ordered to fraudulently enlist applicants. When these fraudulent enlistments were detected the Navy bent over backwards to dump the entire blame on the applicants/recruits.
But sometimes there was evidence implicating the recruiter that was impossible to ignore. In these cases the recruiter was punished at NJP. He was implicitly promised less punishment if he--and the recruiters were almost entirely male--kept his mouth shut and didn't implicate his supervisors that coached him on how to fraudulently enlist applicants.
I would like to see a couple fixes.
- Congress should pass a law that says the personnel exception does not apply to NJP records.
- There should be some sort of review of NJP cases involving grievous crimes (homicide, rape, torture, etc.) to see if the chain of command is inappropriately disposing of these cases at NJP when they should be going to courts-martial. Generals and admirals that are engaging in this type of cover-up should be identified and called out.