The Air Force’s criminal justice system is noticeably ailing. Some would say it has been corrupted. Three particular issues together describe the problem: the intrusion of politics into issues of individual justice, improper (and sometimes unlawful) command influence, and excessive punishments for minor infractions.
If these issues are not addressed, they are capable of collapsing the system. When that happens, Congress will likely legislate away much of the legal authority commanders have traditionally held. This is an outcome generals have been resisting. Their manner of resistance has been to create pressure that warps individual justice for the sake of a policy outcome. This risks making what they fear a self-fulfilling prospect.
The warning signs are everywhere that legal authority has come unmoored from reason and objectivity wherever a politically sensitive issue prevails.
Three instructor pilots at Laughlin are facing ruinous disciplinary actions based on private text messages. Their phones were seized in an investigation into sexual improprieties between instructors and students, an issue that threatens the Air Force’s institutional interests.
An NCO at Minot is facing a panoply of felony charges for what his legal team says was little more than socially awkward behavior around the office. The Air Force is pursuing him as sexual predator. Squashing any hint of sexual predation with extreme prejudice is seen as critical to the service’s protection of its policy interests.
Earlier this year, a two-star general sought to restrict the protected communication of airmen with Congress on the subject of whether the A-10 should be retired. The Air Force views retiring the A-10 as important to the advancement of its institutional interests, including modernization of its fleet and clarification of its future warfighting role.
More recently, an Air Force lawyer stated flatly that airmen can be disciplined for private communications, which is to say they have no meaningful privacy. Her comments were echoed and amplified by the service’s top officer in an email to the field.
These are a select few from a mounting collection of circumstantial indicators that the Air Force has lost appreciation of the proper use of legally conferred power. Occasionally, more direct evidence is noticeable.
Just this past August, a military judge held that the Air Force’s senior lawyer, a three-star general, had unlawfully influenced a sexual assault case by pressing for transfer of the case to a new jurisdiction after it was dismissed by the original convening authority.
Judge Joshua Kastenberg found that Lt. Gen. Richard Harding had directed a transfer of the case in order to get a second chance at having the case proceed to court martial. Harding took this action because he was worried that “the failure to have charges preferred … would enable Senator Kirsten Gillibrand to gain needed votes on a pending bill to remove commanders from the court-martial process.”
In other words, the service’s senior lawyer wasn’t animated by justice or fairness, but by the political implications of how the case was handled.
He’s not alone in believing that individual lives can be justifiably manipulated for political ends.
Consider the following excerpt from a video interview with Gen. Mark Welsh just before he took over as Air Force Chief of Staff (the most relevant snippet is 2:16 to 2:30):
Welsh’s perspective here crystallizes the Air Force’s unfolding justice problem. In the midst of spitballing about how the service might take new steps to curtail the problem of sexual misconduct, he advocated the following:
” … increasing penalties for maybe lower-level crimes within this category … so that even something that would be considered — if there is such a thing — a minor sexual assault is a huge penalty … “
The month after this interview, Welsh took charge of all Air Force policies. In the time since, the service has been on an unmistakable trajectory of erasing meaningful distinctions between sexual harassment and sexual assault. The legal community is taking his lead, elevating the criminal culpability assigned to acts of sexual harassment.
Under his watch, airmen who misread social signals, commit minor boundary infractions of social norms, or engage in slimy but non-violent shenanigans subject to the same official response as those accused forcible, coercive, abusive sexual conduct.
These are two different forms of conduct with different levels of intentionality, criminality, and victimization. They earn different levels of punishment. The latter is primarily an issue of workplace appropriateness while the former is a violent felony.
But under Welsh’s philosophy, finding ways to apply legal rules such that any vaguely sex-related infraction is grounds for a “huge penalty” has become legitimate prosecutorial behavior. It’s not a coincidence that the service is having problems with the use of legal authority while being led by someone with this philosophy.
The Air Force’s most senior officer, it’s most powerful and influential leader, openly suggests punishments that exceed the level of culpability present in someone’s conduct. He’s embracing a classic utilitarian ideal — that using government power unfairly with respect to individuals is perfectly acceptable if it secures a policy objective that benefits the masses.
This is contrary to the entire object and purpose of our system — exemplified by the protections in the Bill of Rights — which forbids the derogation of individual agency and dignity for the sake of better governance or some sought-after societal benefit. And so it should. The instant we decide individuals are expendable for the sake of policies, liberty is dead.
This crystallizes why generals, who are paid to solve problems and get things done, should not be operating a justice system. They are politicians, or if we’re being more charitable, strategists. They’re not jurists, and it shows.
Of course, Welsh’s statement here — not to make too much of it — also focuses on punishing offenders. That’s part of solving the problem, but not as large a part as he seemingly believes. It’s not clear to what extent sexual predators are deterred by the punishments handed out to other sexual predators, much less the punishments given to airmen who violate social norms by touching the knees or backs of co-workers without invitation.
Prevention would be better approached by creating conditions where healthy, well-functioning squadrons can predominate. That means resources. Give squadrons appropriate manning, a sustainable tempo, freedom from unwarranted administrative obligations, and strong leaders operating under grants of appropriate latitude. Under those conditions, with the right vision articulated from the top, trust and mutual respect will crowd out the problem. Hiring enough lawyers to contend with the trickle of offenders who would inevitably remain … that would help too.
Welsh should revise his statement, and he should re-think his philosophy. To the extent his perspective has seeped into the service’s culture, it’s part of a pattern of improper and unhealthy influence. As the negative examples pile up, the system will be increasingly viewed as illegitimate, and backlash will follow. This is capable of causing cascading ripples of indiscipline on par with what happened to the Army in the 1970s. This is the problem many generals are worried about. They’re making it self-fulfilling by taking the wrong approach.
None of this is to vilify Welsh or Harding or any other Air Force general — at least not for these reasons. They are, after all, politically appointed officers. This makes it unsurprising that they’d politicize the justice process. But the fact it’s a foreseeable consequence of the system and structure within which it occurs makes it all the more distressing that we’ve thus far lacked the moral courage to change that structure and system.
There are a thousand valid ideas for addressing issues of sexism, sexual harassment, and sexual trauma in the ranks. The obliteration of individual justice is not one of them, and encouraging or permitting it to happen is certain to have a corrosive rather than constructive impact on good order and discipline. Unless the Air Force takes concrete and swift steps to curtail abuses of power, it will continue its ongoing moral hollowing to the point of collapse.
Let’s hope our adversaries don’t notice.
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