Testimony Before the Defense Legal Policy Board, 15 February 2013
On Friday, 15 February 2013, Daniel Zene Crowe, our President and founder -- along with Major Bill Donahue, USMC (Ret.), the head and founder of the United American Patriots -- had the tremendous privilege of testifying before the Defense Legal Policy Board in our nation's capital.
Created by Secretary Panetta in July of 2012, the Board is comprised of some of the foremost authorities on the UCMJ, along with former senior military leaders to bring a "Commander's Eye" perspective to these very important issues.
The Board includes Ms. Judith Miller, former DoD General Counsel and MG Walt Huffman, USA (Ret.) as co-chairs, as well as Mr. Daniel Dell'Orto, former DoD General Counsel; Congressman Ike Skelton; VADM James McPherson, USN (Ret.); Prof. Gene Fidell; Prof. Rick Rosen; Mr. Jeff Smith; GEN Peter Chirelli, USA (Ret.); LTG John Sattler, USMC (Ret.), among others. The Board is directed to review the management of military justice in combat areas, particularly considering the following six areas:
- The manner in which such alleged offenses are initially reported and
investigated; are there ways to ensure that alleged offenses are reported and
investigated promptly, thoroughly, and accurately? Are there ways to improve
cooperation with local law enforcement and local communities?
- The command level at which the initial and final disposition authority now
resides in such cases; is it at the right levels, or should the disposition
authority be withheld to a different level?
- In joint, deployed areas, should military justice be pursued within the
joint force, utilizing joint resources, rather than having cases handled
separately and within each component service?
- In deployed areas, are resources adequate for the investigation of offenses
and the administration of military justice?
- Should the system of military justice be revised in some manner to improve
the way in which cases involving multiple defendants are handled? In cases
involving multiple defendants, should the system be revised in some manner to
better secure the testimony and cooperation of those involved in the offense?
Are there lessons to be learned from the civilian system?
- Does the military justice system in deployed areas fully preserve the rights
of the accused, while also respecting the rights and needs of victims and
Pursuant to our thoughts on parts 3, 4, and 6 of the Board's Mandate, we offered the following written testimony.
The Board also graciously gave us the opportunity to deliver the testimony below in person. I have excerpted below my prepared comments. As soon as we receive the transcript, we will post the exact testimony that was delivered, including Major Donahue's subsequent statements:
DANIEL ZENE CROWE: Mister Chair. On behalf of our 208,450 contributors, Major Donahue and I want to thank the Board for agreeing to receive our in-person testimony today, in addition to your consideration of our admittedly rather lengthy written submission. As the author of our testimony, I apologize for its rough nature.
I also acknowledge that our written testimony was harsh in some respects to our military brethren, particularly in the Service Criminal Defense arms of each Service; but that harshness simply reflects the frustration the United American Patriots and the Innocent Warrior Project feel on behalf of our Warrior Service Members who have been given such short shrift. Our written testimony was prepared on short notice; and all mistakes were, of course, my own.
Before I introduce Major Donahue, I would like to touch on a technical issue that has come before the Board today to which I believe I can give some insight:
You are directed by the Secretary to consider Joint Justice. Having worked for five years in European Command and having served as the EUCOM Subject-Matter Expert on Joint Military Justice and having been given the lead on the rewrite of the EUCOM Directive on Military Justice, I think I bring a unique perspective to the matter.
I thought that no one was going to raise this matter to your attention, although I have heard comments from one of the Board members today that indicates that consolidation of the Defense function has been mooted to this Board already. Since Service Prerogatives argue against Judge Advocates pointing out the obvious solution, consonant with Goldwater-Nichols and the needs of our Service, we are happy to do so.
The Innocent Warrior Project was founded as a strategic-level advocate for reform of what we see as an obviously broken system. A large part of that is the conflict of interest which our written testimony pointed out in fine detail and which the Major is here to testify to further.
Simply put, we would concede that the Prosecution Function and the Staff Judge Advocate Function is a Train and Equip function. We need Judge Advocates who are selected by, and beholden to, the Chief of Staff of the Army and the other Service Chiefs to implement the Boss’ vision for reducing or increasing the size of the force and managing that force, which obviously impacts things like the likelihood of kicking people out or even pursuing courts-martial.
But I would suggest that the Defense Function is an Operational Function, not a train and equip one. It is our contention that not only should the Defense Attorney not be thinking about Service Resource constraints and the vision of the Service Judge Advocates General, to do so places those Chiefs of Trial and Appellate Defense in impossible – and impossibly conflicted – positions.
Having worked in a Joint Environment, I can assure this Board that a Combatant Commander is interested in, indeed commanded to, consider Operational considerations above all others. In consideration of the structure and focus of prosecution function in a Combatant Command, in EUCOM we were challenged to execute even a letter of reprimand. Anything more serious than that was passed to the Services. After all, who was better qualified to evaluate disposition decisions than the Commanders answerable to the Services?
Prosecutions belong in Service Channels because the Prosecutor provides responsive, full-spectrum legal advice to his Commander.
The Defense Function, however, needs to be a capability that is singularly focused. Otherwise, we will continue to have compromised representation. As you sensed from the testimony of the service Trial Defense chiefs just now, no man can serve two masters.
The Innocent Warrior Project’s ultimate goal is to advocate ourselves out of a job. We have always maintained that the Defense Function could reside within the DoD, just not in Service Channels. We do not believe Service Chiefs – and those beholden to them – are evil; just as pre-Goldwater-Nichols Service Chiefs weren’t evil. Goldwater-Nichols was created as an acknowledgment that no man can serve two masters, and therefore we needed a system that refocused warfighting on its essentially joint nature.
We would suggest that the Defense Function, handled properly, is a tremendous combat multiplier. Belief in our conception of inalienable rights is what makes our Service Members reliable in battle, not the “harsh or tyrannical treatment” against which General Schofield warned us.
This Board has a unique opportunity to advance the debate on the issue of Service Member rights and the abuses thereof. As you have seen, the Services have all come in and said everything was great and we’ll be just fine by leaving our empires alone. It was exactly what the Service Chiefs and every subordinate uniformed witness testified to when Congress was considering Goldwater-Nichols.
You can’t have the fox guarding the henhouse. And you as a Board are not beholden to the Services as the uniformed witnesses we have heard from so far are. You can make a recommendation to the Secretary that is informed by what is best for America, not what is best or most comfortable for the Services, jealously guarding their sandboxes.
We currently have two very distinct military systems in the Department of Defense: the Services' Train and Equip responsibility and the Combatant Commanders' Warfighting responsibility. Let us leverage those two chains of responsibility to protect our Service Members' rights and serve our People.
By embedding a Defense Capability within the Department of Defense and outside of Service channels, an organization run by an SES and answering to the DoD General Counsel, we safeguard the inalienable rights of our Service Members. Nominative one-star heads of the Joint Appellate Division and the Joint Trial Defense Division can provide technical supervision to the Joint Regional Defense Counsel embedded in the Office of the Staff Judge Advocate in each Combatant Command, as well as an independent budget management capability. The organization could look somewhat similar to the structure currently in place for Federal Public Defenders.
Such a structure would protect Service Member rights, allow young Judge Advocates to be seconded into Joint Assignments where they discharge the Defense Function under properly aligned supervision, and yet retain the capability with the Department of Defense.
The conflicts of interest we decry are not absolute. We are not saying that every Judge Advocate is an irredeemable hack. It’s the organization structure that is the problem; and this proposal is a compromise that allows the DoD to retain this very important capability within its supervision, but with a high enough level of remove to ensure untoward pressures don’t distort the Defense Function.
Rest assured, the UAP and the IWP will keep an eye on the reformed system. If the restructure still presents systemic difficulties, the capability can easily be moved under the supervision of the Court of Appeals of the Armed Forces, or even migrated within the Federal Public Defender system as it currently
exists. We are open to incremental reform, as long as there is reform.
As I conclude this portion of our testimony and prepare to hand over to Major Donahue, let me give you one specific example of systemic blight of the Defense Function driven solely by Service prerogative: The Services currently forbid civilian DoD employees from representing Service Members at court-martial. Why? Because there are only so many Courts-Martial to go around and it’s an invaluable training ground for inexperienced counsel to make their mistakes.
But how does saddling our Service Members with inadequate and unqualified representation serve our Service Members? Answer. It doesn’t. The Services don’t care. In fact, they are constructed so that it is impossible for them to care.
Members of the Board, let me leave you with this thought: By placing the Defense Capability in warfighting channels, we send a powerful message to every young stud officer who rotates into those highly desirable joint positions: The Defense Function is important; it is desirable; it is combat-multiplying.
No person beholden to the Service hierarchy will bring this obvious solution before you, but the Secretary deserves your best and most considered analysis. Let us not be governed by complacency and the siren song of Services whose priority is defending the status quo ante. We owe our brave Service Members Heroes something better than more of the same injustices and compromise.
We thank you very much for your attention and your work on this singularly important issue impacting with singular force on the credibility of our Department of Defense in the eyes of our service members and our People.
By providing our written and in-person testimony to the Defense Legal Policy Board, the Innocent Warrior Project seeks to live up to its mission "to advocate for better representation for Service Members accused of military justice violations" and "to advance the interests of all Service Members in obtaining fair justice."