The chief lawyers of the military services chose the 72nd anniversary of D-Day to launch their own offensive. They sent a joint letter to Sen. John McCain, Chairman of the Senate Armed Services Committee, lobbying against legislation aimed at improving the military justice system by reducing the role of the commander in favor of an expanded role for legal professionals.
Military opposition to the Military Justice Improvement Act (MJIA) is by no means a subtle notion. Ever since the idea of reform was first suggested a few years ago in response to perceived failure to bring the issue of sexual assault in-hand, generals and their legal advisors have lined up foursquare against it. The arguments they cite are familiar and unpersuasive, but rather than recount them here, I’ll simply show you a copy of what was sent to John McCain earlier today … and then explain why I think it’s interesting.
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Now, it’s not necessarily controversial that this letter was sent with the language it contains. While AFI 51-902, para. 4.1.2 arguably proscribes this sort of thing when it declares thou shalt not …
“Use official authority or influence to interfere with an election, to affect its course or outcome, to solicit votes for a particular candidate or issue, or to require or solicit political contributions from others.”
… it’s also fair to say that interpreting this as preventing the chief military lawyers of the services from advising Congress on pending legislation would be an absurd reading, and therefore can’t be the intended meaning.
But here’s the problem. Not long ago, an Air Force officer was investigated and punished for making a comment on the same subject on Sen. Kirsten Gillibrand’s Facebook page. Moreover, she made the comment in her personal capacity rather than championing a legislative cause using her official position. That didn’t stop bullies in the chain of command from hounding and attempting to defame her on the way out the door.
Capt. Maribel Jarzabek was just three weeks shy of separation from the service when she made a remark supporting a previous iteration of MJIA while clearly delineating it as her personal opinion based on her professional experience as a Judge Advocate and Special Victim Counsel. A Command Directed Investigation (CDI) was swiftly launched. Here’s a copy of the framed allegations (and as a side note, the Air Force didn’t give Jarzabek a copy of the CDI … she requested and received a redacted copy under the Freedom of Information Act.
As a result of the CDI, she was verbally reprimanded, given a direct order to refrain from similar conduct, and told that if she’d had more than a week left on active duty, the reprimand would have been issued in written form. Jarzabek filed a complaint with the Inspector General (and can be reasonably expected to do so again in the wake of this report), but got no meaningful redress.
For the life of me, I can’t distinguish between what she did and what these five lawyers have done today in their letter. To the extent there’s any difference between her conduct and theirs, they’ve arguably gone more astray from the intent of applicable speech restrictions than she did. They’re advocating against legislation using their official titles and positions. When Congress requests such inputs, we call that “advice.” When they don’t, we call it “lobbying.” Secretary of Defense Ash Carter says it’s not the job of the military to lobby (see 4:30 here), but this letter and a thousand other examples make his statement look like a cute attempt at wordplay. Military generals lobby Congress constantly.
Should we worry about that? Probably not. But we should worry about a command philosophy that seeks to reserve the privilege of inexplicit lobbying for politically appointed elites while pretending it is at the same time acceptable to constrain more junior personnel from similar activity. That’s not how this should work. If generals are going to dance the line between advice and lobbying, they’re setting an example they should expect will be mimicked up and down the spine of the services. Otherwise, we’re just a tinpot dictatorship with a more elaborate structure.
When it comes to the MJIA, they’re pretending to speak for the services, and are empowered to do so officially. But many have differing personal opinions, and they must be (and by law, are) free to offer those opinions without suffering reprisal.
Fact is, we shouldn’t trouble ourselves with defining a bright line rule distinguishing lobbying from mere opining. Our system needs more knowledge, more activity, and more impassioned debate on legislation impacting the services, and it is strong enough to weather the consequences (to the extent they’re not totally imagined) of men and women who know what they’re talking about weighing in rather than sitting on their hands. This doesn’t mean everything should be a political free-for-all … but it means in close cases, we should err on the side of assuming an offered opinion falls on the permissible side of the line, wherever it is.
No matter what, the Air Force owes former Capt. Maribel Jarzabek an apology. T0day’s developments make it crystal clear that no one in the Air Force truly believed she was outside the rules. This exposes what happened to her as an abuse of authority … a public reprisal designed to bully her into silence while sending a strong message to anyone like-minded.
If the Air Force doesn’t want to admit it got things wrong with Jarzabek and hold those involved accountable, then it’s time to open a CDI on Lt. Gen. Christopher Burne. After all, it wouldn’t be the first time in recent memory that a general officer misunderstood the rights and wrongs of servicemember communication with Congress.
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