Just got off the phone with Hillary. I’m honored to be her running mate. Can’t wait to hit the trail tomorrow in Miami!
— Senator Tim Kaine (@timkaine) July 23, 2016
Hillary Clinton picked Senator Tim Kaine of Virginia as her Vice Presidential running mate. What is interesting about this pick is at one point in a Time magazine article in 2014, Clinton showed public support of the Military Justice Improvement Act, yet she chooses Senator Tim Kaine (D-VA) as her vice presidential running mate who has been blocking the bill since 2013. Of course Senator Angus King (I-ME) endorses this choice since he too has been blocking the due process bill sponsored by Senator Kirsten Gillibrand, Senator Susan Collins, Senator Rand Paul, Senator Ted Cruz, and many other bi-partisan Senators advocating for constitutional rights for military personnel and veterans.
“The move was surprising in that it means that if she becomes President, the normally hawkish Clinton would go against the advice of military brass and remove the cases from the chain of command. It also must have had a little bit of a silver lining dig at McCaskill, who endorsed Barack Obama over Clinton in 2008.” ~Time (2014)
The Military Justice Improvement Act (MJIA) would provide due process rights to both the accused and accuser in military sexual assault cases and felony crimes in general. Currently, a victim has to report the crimes to the Commander. The Commander decides whether an investigation occurs and then is the ultimate authority on whether or not the military prosecutes the accused. As recently as 2013, the Commander could even legally throw out a conviction if s/he felt that the verdict by a jury of peers was the wrong outcome. One of Claire McCaskill’s NDAA amendments addressed this issue and military commanders no longer have the authority to throw out a successful conviction. This particular military justice law change is one of the only good things Claire McCaskill’s military sexual assault bill did for victims and ultimately society. Senator Claire McCaskill, Kelly Ayotte, Roy Blunt, Lindsey Graham, and now Senator Joni Ernst (also a military Commander) have been the most vocal opponents of the MJIA.
Victims of crimes in the military, and now the accused, are asking for a justice system that more closely resembles the way the civilian court systems operate. In the civilian world, the accuser would report the crime to police who would enter the data into a database (even if the victim decides not to move forward with the case). Local police departments have access to national crime databases that would tell them whether or not this person has been reported before and if they have been investigated and/or convicted of any other crimes. In most cases, especially if they have a criminal history, an investigation would be initiated by detectives who specialize in violent crime. Then the detectives would present their findings to a prosecutor who would decide whether or not there was enough evidence to move forward with a case.
The civilian police are more likely to arrest someone accused of rape or sexual assault then the military is. The military Commander may do nothing and expect you to work along side your attacker. In the civilian world, if there is evidence of a crime, the accused would be served, detained or let out on bail depending on a judge’s decision regarding their potential danger to society. The accused is subpoenaed to court and has an opportunity to plead guilty or not guilty at a hearing. They have the right to request a jury trial at that same preliminary hearing. The accused also has a right to be represented by an attorney. If they cannot afford one, a public defender will be provided to them. The victim of the crime will most likely be assigned a victim advocate who would support them through the legal process. They also have a collaborative relationship with the detectives and the prosecutor in an effort to prove the case and assure a successful outcome.
“The chain of command’s involvement in prosecutions, advocates say, is one reason victims have so little confidence in the system. That’s why the MJIA would remove prosecution authority from the chain of command and give it to independent military prosecutors instead.” ~Vox (2016)
Investigators and prosecutors must protect the due process rights of the accused during the investigation and collection of evidence because otherwise it would be impossible to move forward with a winnable case. As a result, prosecutors work with the detectives to ensure evidence is collected appropriately. If the investigators and/or prosecutor do not respect the due process rights of the accused, the case can be thrown out on a technicality. An ethical prosecution demands the protection of due process rights so taxpayer money is not wasted and a person who breaks the law does not escape justice. Protecting the due process rights of the accused allows them to remain innocent until proven guilty and ensures a more successful outcome for a case in the event they are guilty. Protecting the due process rights of the accused ultimately protects the victim of the crime and society at large.
The single investigator model does not guarantee due process rights of the accused or accuser. The military commander has the authority to sweep a case with evidence under the rug or move forward with an unwinnable case while trampling all over the due process rights of the accused. And currently they are politically motivated to move forward with a case despite the lack of evidence in an effort to prove that military commanders are more likely to move forward with a case then military or civilian prosecutors. The military commander has the authority to make a case go away and kick out the victim, railroad the accused with no lawyer, collateral charges, and excessive punishments if they don’t take a plea, and bypass the legal process by kicking the accused out of the military based on a preponderance of the evidence. When the person gets tossed instead of prosecuted, their name never gets entered into a national crime database or sex offender registry that local police departments can access. Meanwhile they unleash the person accused of crimes on an unsuspecting community as was the case with veteran Micah Johnson, Army Reserve.
The politics at play with the constitutional rights of soldiers at stake are ludicrous. Claire McCaskill needs to prove that her military sexual assault bill is effective and the Pentagon did not mislead the Senate by leaving out data on a report arguing that military commanders are more likely to move forward with a case then civilian prosecutors. Protect Our Defenders is accusing the Pentagon of swaying the vote on the MJIA by making the Senate believe that a military commander is more likely to move forward with a case then their civilian counterparts. Military commanders are pressured politically now to move forward with a case to prove the point. This is undue command influence and federal government overreach at its finest. Because there is no evidence to prove a case, acquittal rates between 2012 and 2014 are high according to the Center for Prosecutor Integrity. And in other politically motivated cases, the accused is railroaded with collateral charges, swarmed with command directed investigators without proper representation, and threatened with excessive punishments if they do not take a plea. When politics are at play and the case makes the media, the soldier is scapegoated. The fact that Senators are in favor of a military commander moving forward with cases despite proper investigations and having the legal knowledge to do so is the most compelling.
“Although sexual assault is an important concern, Congress has over-reacted by forcing Commanding Officers to pursue criminal charges in every case regardless of the merit of the allegations. As a result of the over-charging, data shows that acquittal rates for sex offenses between 2012 and 2014 were high. The answer is not to make it easier for prosecutors to convict, but improve the investigation process to produce reliability of results.” ~Center for Prosecutor Integrity
The constitutional rights of all soldiers must be protected and the real criminals must be held accountable to protect our fellow soldiers and society. The military justice system should operate like the civilian court systems but it does not because prosecutions are guided by the single investigator model also known as command directed investigations influenced by congressional members. We need cases investigated by impartial professionals who specialize in these kind of crimes and collect the necessary evidence so that we can prove guilt or innocence. We need prosecutors to determine whether or not we have the evidence to move forward with a case. They specialize in investigations that protect due process rights and know what it takes to make a case. They need the legal authority to do their job. And lastly, we need reports of crimes entered into a national crime database so we can make the connections between crimes committed against military personnel and the civilians in our communities. The Military Justice Improvement Act is a start but ultimately it would make more sense to process all accusations of crimes through the civilian court systems so we could provide due process to accused and accuser and keep all the reporting data in one centralized database.
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How the Pentagon misled Congress to stop a law intended to help rape victims
Sen. Kirsten Gillibrand Slams Obama Over Inaction on Military Sexual Assault
The war in Congress over rape in the military, explained
Micah Johnson, Army Reserves, Responsible for Dallas Police Officer Shootings
Democrat Clinton picks Kaine as running mate, bypassing liberals
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Center for Prosecutor Integrity: Military Justice Project