Changes In Prosecuting Military Sexual Assault

MS. SUSAN PAGE

10:06:54
Thanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. She's on vacation. The Senate voted this week to approve changes in the way the military addresses sexual assault allegations. But critics argue the bill, championed by Sen. Claire McCaskill, does not go far enough. They vow to continue to fight for more significant reforms.

MS. SUSAN PAGE

10:07:15
Joining me in the studio to talk about the battle over how the military handles sexual assault cases: retired Maj. Gen. Bill Nash, Kevin Baron of Defense One, and Susan Burke, a lawyer who represents military rape victims. Welcome to "The Diane Rehm Show."

MS. SUSAN BURKE

10:07:31
Good morning. Thank you.

MR. KEVIN BARON

10:07:31
Thank you.

MAJ. GEN. BILL NASH

10:07:32
Thank you.

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10:07:32
We're going to invite our listeners to join our conversation later in this hour. Our toll free number is 1-800-433-8850. You can always send us an email at drshow@wamu.org or find us on Facebook or Twitter. Before we turn to our panel, we're joined by phone by Democratic Sen. Claire McCaskill of Missouri. Senator, thank you so much for being with us.

SEN. CLAIRE MCCASKILL

10:07:55
It's my pleasure. Thank you, Susan.

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10:07:56
You prevailed in Monday's vote in the Senate. How hard a battle was that?

MCCASKILL

10:08:02
Well, I think one of the things that's been frustrating about this is that there has been one policy disagreement in this area, but there has been a long list of sweeping reforms that have occurred within the last year. Frankly, we have changed the rules in terms of these trials, everything from the preliminary hearing process, which is called Article 32, in the military stripping commanders of a lot of their authority after a judge and jury have done their work.

MCCASKILL

10:08:34
We have done something that I think the civilian criminal justice system will be very envious of, especially people like me who've spent many, many years in the courtroom prosecuting these cases. And that is that every victim is going to have their own special counsel. That's unheard of in our criminal justice systems. Typically, you have defense lawyer, and you have a prosecutor. But the prosecutor's job is technically not to look after the victim.

MCCASKILL

10:09:07
The prosecutor's job is different than that. So the fact that we're going to have an advocate for these victims at a critical moment. And obviously they can report outside the chain of command, get their own lawyer, and then navigate what is a wrenching personal journey for any victim. And I am very proud of the list of reforms, including the ones that were passed unanimously in the Senate this week.

MCCASKILL

10:09:33
They're going to make a big difference in the military. And obviously my job now, along with Sen. Gillibrand and my other colleagues that have all worked so hard on this, is to make sure that we monitor the implementation of these changes and that they are done in a way that reflects respect and deference for the victim and focuses on putting these perpetrators in prison.

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10:09:54
Well, Sen. McCaskill, given the changes that you've just enumerated, do you think you're getting a bad rap on this issue with the argument that it just didn't go as far as Sen. Gillibrand and her supporters wanted to go?

MCCASKILL

10:10:10
Well, I mean, it's been difficult for me since I have fought for victims my entire career. I began my career as a courtroom prosecutor. And because I was the only woman in the office, I got assigned all of the sex crimes cases and many times was the only voice in my office saying we need to go to trial because I've seen, over and over again, prosecutors that maybe focus too much on whether or not they can win or lose and don't focus enough on whether or not this is a strong enough case that it should "have its day in court."

MCCASKILL

10:10:48
And that's really what we're talking about here. And it is a little frustrating because I believe -- if you look at the systems response panel that was made up of liberal feminist icons like Liz Holtzman and a federal judge woman, from New York who was the woman who overturned the DOMA case, wrote the opinion, to the woman who runs the National Victim Advocacy Center, they all -- after hearing 150 witnesses -- agreed that this change was not going to be good for victims. It wasn't going to result in more reporting.

MCCASKILL

10:11:23
All of our allies who have done it have not seen an increase in reporting. And we know more cases are going to trial at the insistence of the commander. In fact, prosecutors have been overruled almost 100 times just in the last two years in their decision to say, no, this case is a little -- it's too much he said/she said. We're not going to do it. And the commanders have said, let's get to the bottom of it. And I think that is a real indication of where we want to be here.

MCCASKILL

10:11:50
We want the victim to -- if they're willing to come out of the shadows and go through this incredibly difficult ordeal, we want them to have a chance at a courtroom. And, unfortunately, I think -- and the Sinclair case is a good example of that. I have been very frustrated at the way the media is characterizing that, that somehow commanders are messing up the Sinclair case.

MCCASKILL

10:12:11
The only thing that happened there was the victim's counsel wrote a letter saying the prosecutor's about to dismiss the most serious charge. The victim weighed in, just exactly like we want to happen. And when that victim weighed in, the commander said, you know what, this is going to trial -- and overruled the prosecutor. And that's the only reason we now have a general facing a trial for predatory activity.

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10:12:35
We'll talk about the Sinclair case later in this hour with our panel. One last question. The supporters of Sen. Gillibrand's proposal to remove these cases from the chain of command say they're going to continue to fight. She, in fact, got a majority of the Senate to vote with her, just not enough to meet the 60 votes necessary to avoid a filibuster. What are their chances of gaining those last few votes and eventually prevailing?

MCCASKILL

10:13:04
Well, I'm encouraged that so many of my colleagues really took a deep dive on the policy and looked at the data and the facts. I mean, let's be honest, this is a tough one, you know, victims vs. commanders, in a political environment. There's no question that the many times that Kelly Ayotte and Deb Fischer and I have felt like we were swimming upstream because we fundamentally believe that reforming this system and keeping commanders accountable is going to be better for victims than what's being advocated.

MCCASKILL

10:13:38
And I think that if we can keep everyone focused on the policy and if the military does its job now and implements all these reforms -- and we're going to be paying very close attention to that. I've already talked about visiting the various academies to make sure that young people on those campuses feel as protected as we want them to feel. I'm going to continue to monitor.

MCCASKILL

10:14:00
I've already had meetings with the people that are in charge of implementing these programs. We're going to continue to stay on top of this. And if the military does what I believe they will do with these reforms, I think that we will not throw the current system completely overboard for a system that won't work as well for victims.

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10:14:19
Sen. McCaskill, thanks so much for joining us.

MCCASKILL

10:14:21
Thank you very much.

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10:14:22
That was Sen. Claire McCaskill, Democrat of Missouri. Well, Susan Burke, you heard Sen. McCaskill argue that the system that's now been adopted is, in fact, a better one for victims of sexual assault in the military. Would you agree with that?

BURKE

10:14:37
No, I would not. I think that all of us who have grown up in this country realize that the best system of justice is one that's impartial and that doesn't swing like a pendulum, depending which side of the balance the political thumb is pressed on. What Sen. McCaskill saying is essentially that, well, we're all going to put a lot of heat on the commanders, and we're going to put our thumb on the side of the scale to tip it towards the victims.

BURKE

10:15:04
That's not what we want because, in the long term, that won't work. It will be viewed as bias. It'll be viewed as politically controlled, essentially a kangaroo court. Victims, defendants, everyone does better when there's an impartial system of justice where the people with the power are not personally involved. They have no personal skin in the game.

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10:15:25
She mentioned the Sinclair case and argues that the only reason that case is going forward is because the commander could override the advice of the prosecutors and that under the Gillibrand proposal that wouldn't have been possible. So what do you think about that?

BURKE

10:15:41
Well, I think that it's illuminating that Sen. McCaskill says it doesn't really matter whether we get convictions or not. All that matters is that the victims have their day in court, and isn't it wonderful that the commander overruled the prosecutors and they're going to go forward in the Sinclair case anyway. That ultimately is going to destroy trust and credibility in the system.

BURKE

10:16:02
If you have a military judicial system in which you can never ever get convictions, over time, people will not trust it. That's what's happened right now. That's why the victims don't trust it, is because the conviction rates are so low.

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10:16:16
I'm not sure it's fair to say that she said, though, that whether someone's convicted doesn't matter. I'm not sure that's a fair characterization of what she said. But, Kevin Baron, you know one thing we shouldn't lose in talking about the disagreements about this is that these are reforms that passed 97-0. In this U.S. Senate, that's a pretty rare thing on almost any issue. What has happened on this issue in the Congress that makes it possible to be passed by such an overwhelming -- by basically a unanimous vote of the U.S. Senate?

BARON

10:16:46
Well, who's going to vote no for a bill that tries to correct military sexual assault problems, I mean, right now? Especially, this has been going on for a long time. There's been a very public, very played-out debate, more than a whole lot of other military issues, honestly, and it got to the point, I think, where Gillibrand had her day with her bill.

BARON

10:17:07
It came very close. And everybody who I think maybe just didn't have as much skin in the game or didn't care as much to weigh in on the debate over command authority just wanted to vote yes for some reforms, and that's what you got -- a pretty easy vote.

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10:17:19
And, Gen. Nash, how much difference is this to the current system? If it get -- now, of course, it has to pass the House. It doesn't become law automatically. But how much difference would it make if this becomes the law of the land?

NASH

10:17:32
Oh, I think the McCaskill proposal that passed the Senate is going to have a major impact on the commanders and their behavior. I think what we've seen in the last year to two years has been both the executive branch and the legislative branch take very positive action in this arena. And as a consequence, they got the attention of the services and the commanders.

NASH

10:17:58
And if I could talk about skin in the game a little bit -- that people have used the term -- commanders have got skin in the game, and it's called fighting and winning the nation's war and defending the nations. And so the larger issue, and the difference between the McCaskill bill and the Gillibrand bill is the fact that the commanders have got the whole organization, and they have to focus their work on the ability to do the nation's deed. As a consequence, they need to be the ones that are taking care of the soldiers, everybody.

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10:18:29
We're going to take a short break. When we come back, we're going to go to the phones soon. You can call our toll-free number, 1-800-433-8850. And later in this hour, we'll talk with Sen. Richard Blumenthal from Connecticut on the other side of this issue. Stay with us.

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10:20:00
Welcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And with me in the studio, Maj. Gen. Bill Nash from the U.S. Army, retired after 30 years in the service. Kevin Baron, he's executive editor of Defense One, part of Atlantic Media. And Susan Burke, she's a lawyer from Baltimore who represents military rape victims.

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10:20:20
She has spearheaded a series of lawsuits designed to reform the manner in which the military prosecutes rape and sexual assault. Well, Susan, we heard several references already in this hour to the case of Brig. Gen. Jeffrey Sinclair. Tell us what's happening with that case.

BURKE

10:20:36
Yes. This is a case in which a high-level general was charged with sexual assault, having pornography, as well as adultery. He has pled guilty to all but the assault charges. And it is going -- it is right now scheduled to go forward. It was -- the proceedings were temporary stayed on the allegation by the defense that there had been undue command influence, essentially that Gen. Sinclair was not permitted to plead guilty and avoid life imprisonment but instead was being forced to stand trial.

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10:21:10
But there was a case that happened just -- a development just yesterday where there was a feeling that this was becoming a political case, maybe not fair to him. They're allowing now some more plea bargain discussions. Bill Nash, what do you think is happening in this case?

NASH

10:21:27
Well, the allegation has been made that there was undue command influence from above, the General who was the deciding authority on whether or not to continue the case. And that was a sufficient question that the judge yesterday dismissed the jury and postponed proceedings pending a review of, A, the plea bargain and, B, a determination on the part of the command -- the higher command on what to do.

NASH

10:21:58
What's key here is that it was not the Lieutenant General, the three-star General who made the decision to continue the prosecution. It was in full authority to do that, and he independently made a judgment. What is alleged is that he was influenced. It's the influence upon him from higher authority that is in question.

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10:22:23
And what kind of influence?

NASH

10:22:25
Well, allegedly, there's exchange of emails that his boss's boss may have said things or provided influence that caused him to make a certain decision. That was brought into question. Now, I'm not passing judgment of whether that happened or not happened. That is what the judge has determined needs to be resolved.

NASH

10:22:49
My view is is that the Lieutenant General that made the original decision to proceed was well within his rights. It was an appropriate decision apparently. The question is is whether or not outside influence caused him to go forward. And I don't know the answer to that. And the judge apparently at this time doesn't either.

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10:23:10
Susan Burke.

BURKE

10:23:11
We think the Sinclair case kind of proves the point that you need to take this out of the chain of command for two reasons. First, what's clear is that politics, people's career interests, attempting to curry favor with their bosses ends up becoming entangled in what should be an impartial judicial process. The second thing I would point out is that you now have this Gen. Sinclair who has pled guilty to some of the charges.

BURKE

10:23:36
If you think about it, this man has had the unfettered power to be the one deciding other people -- whether or not other people's allegations of rape and sexual assault should be investigated, should be prosecuted. It kind of proves the point you should not have these commanders in these judicial roles.

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10:23:54
Bill.

NASH

10:23:55
Well, I understand what Susan's saying, but it does not prove the point because I'm not as sanguine about the behavior of an independent prosecutor process as I look at the allegations made about the Department of Justice and the ability to prosecute or not prosecute. There seems to be as many questions on a civilian side or an independent prosecutor as we've seen over the years.

NASH

10:24:27
So I'm not convinced the other system will work any better. And the negative part of it is the fact it takes the hand out of -- it takes the power away from the commander who is responsible for the performance of the organization.

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10:24:39
Kevin, tell us a little about the history of this. I mean, this debate all centers now on whether this should be in the chain of command. How does that -- how has that been handled historically when the military's faced serious allegations of misconduct?

BARON

10:24:51
Well, it's interesting. Over the last, you know, hundred years or so, the military justice system had slowly started to make itself look a little more like the civilian system. And this is one of the relics that still has stayed behind. You know, think through an old Civil War movie, if the soldier deserts and takes off, well, the commander on the battlefield has the right to grab that guy and put him up on a post and shoot him. And that's his command authority to maintain discipline.

BARON

10:25:16
That got all the way into World War I and World War II. And then suddenly the military realized they needed a better way of doing things. And we ended up with, you know, the, UCMJ, the military justice. What's happened since then, as we're seeing now played out in this extreme public, you know, aversion about military sexual assault, all these questions that we've heard today.

BARON

10:25:36
But it's not just on sexual assault. This is a question that would affect all crime. It would affect all violent crime, serious crimes, murder, you name it, which happens all over the military, just like any part of society. And the problem is you're talking about a system -- a military system that is global, that is spread out across the world where there are literally trials on ships, on bases, and far-off places. And commanders in those locations are in charge of everything underneath them, including the justice system.

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10:26:04
And how do other militaries handle this, the military force in other countries?

BARON

10:26:09
Well, some countries have -- switched to, like, a magistrate system where there's basically a parallel type of judicial process that does pull victims out of their chain of command, like we've been discussing. You know, I used to be a "Stars and Stripes" reporter during the end of the Iraq War. And at the time, there were a lot of concerns there about some of the more high profile, the Haditha killings, the canal killings, a lot of fog-of-war cases.

BARON

10:26:34
And this started to bubble up then too, not about military sexual assault but about the idea of was the military going easy on its own soldiers because of the effects of war. And the problem there came out that -- well, what we found was that there were very poor record keeping. There was very poor oversight of what was happening.

BARON

10:26:51
And there was a lot of sentences and convictions really being knocked down by these convening authorities, these commanders who are not trained in the judicial system, just like they're not trained in most everything underneath their command except for what they do.

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10:27:06
Here's an email from Robert who asks, "Does the panel know the proportion in the Republic, reported 20,000 incidents of actual physical assault and rape and unwanted sexual conduct? How do you define it?" I think the question, Susan, is are these all serious cases? Are some of them just cases of -- that would be less serious? How big a problem do you think this is that the military faces now?

BURKE

10:27:29
Well, using the military's own data, they estimate by extrapolating from reported rapes to 26,000 rapes and sexual assaults and unwanted sexual contact. So I think what you have is the Department of Defense and the services themselves admitting, yes, they have a significant crime problem within their ranks.

BURKE

10:27:50
And so one of the issues is, why did that come about and how do you fix it? But most rapists tend to be serial rapists. So each rapist that is not incarcerated usually has multiple victims. And it's really that lack of incarcerating those that they've identified that over time has led to this growing embedded predator problem.

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10:28:14
We want to talk about whether there's a military cultural problem here. But first we're joined by phone by Democratic Sen. Richard Blumenthal of Connecticut. Senator, thanks so much for being with us.

REP. RICHARD BLUMENTHAL

10:28:25
Great to be with you. Thanks for having me.

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10:28:27
Before serving in the U.S. Senate, he was Connecticut's attorney general, and he voted for, and co-sponsored in fact, Sen. Gillibrand's proposal. How big a setback was it, Senator, when you failed to be able to move forward on that on Monday?

BLUMENTHAL

10:28:42
There were plusses in this fight, and it was a good-natured fight among senators who had the same overall objective. And I'm very grateful to Sen. McCaskill for her leadership. But it was a setback for the Gillibrand proposal which would have taken prosecutorial decisions out of the chain of command.

BLUMENTHAL

10:29:04
We worked very hard to persuade our colleagues, and, in fact, we reached a majority. But it was not enough to reach the 60-vote threshold. So in a sense our biggest obstacle was the filibuster 60-vote threshold rule. And I believe that we will actually reach that threshold if we need to do so because I think that history is on our side.

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10:29:30
Now, how will you reach it in the future if you weren't able to reach it now?

BLUMENTHAL

10:29:34
The voices of the victims are going to be most powerful. Survivors have such powerful stories to tell about the impacts of sexual assault on them individually in their lives. And on good order and discipline -- after all, the major argument against our proposal was that it -- preserving the commander's decision-making authority was essential to good order and discipline, and these sexual assaults certainly undermine good order and discipline.

BLUMENTHAL

10:30:05
And anything we can do to encourage more reporting, more aggressive and successful prosecution and decisions by trained experienced prosecutors who are better equipped by virtue of that experience to make these decisions and successfully prosecute than the commanders who are great war fighters but may not be great lawyers and, in fact, are not trained as lawyers, that is the ultimate objective that I think will be successful in bringing those arguments to the Senate, but again particularly bringing the voices and stories of survivors.

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10:30:41
You had a pretty united Pentagon front against you on this issue. And I wonder if that is not a serious problem in trying to get those last five votes, the fact that you've got the military commanders saying with a pretty unified voice that this would be a bad thing from their perspective to do.

BLUMENTHAL

10:31:01
The military commanders were pretty well united, but two points. Number one, I think that ultimately the issue was raised to a level of consciousness and awareness that it's never reached before. And part of that is due to wonderful work by people outside the military. And the invisible war is just one example but a superb example of an educational tool.

BLUMENTHAL

10:31:30
And part of what we did was to educate. So the military's united fund may continue for a while but I think that the educational impact was profound. Second, although it was united at the command level that came before the Senate, I can't tell you how many officers at the mid-levels and also enlisted leaders came to me and said, you know, you're on the right side here.

BLUMENTHAL

10:32:00
Commanders shouldn't be making these decisions. We trust them to lead us into combat but they're not lawyers. And they'd be better off not making these decisions. And many commanders felt the same way. And off the record -- although we couldn't quote them by name -- told us in essence, you know, we'd be better off if our lawyers make these decisions rather than ourselves.

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10:32:25
All right. Sen. Blumenthal, thank you so much for being with us this hour.

BLUMENTHAL

10:32:29
Great to be with you and thank you.

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10:32:31
That was Sen. Richard Blumenthal of Connecticut. Now, he voted with -- on the Sen. Gillibrand's side. What do you think of the arguments he was making, Gen. Nash?

NASH

10:32:40
Well, the first point I want to make is that I'm deeply grateful for this conversation that took place and debate that took place within the Congress of the United States. They're fulfilling their requirements of the constitution to provide appropriate regulations. And it's the first time that I've seen a nonpartisan legitimate political debate take place on an issue, which is absolutely superb.

NASH

10:33:04
The one point I would make on what the Senator said is the education process, don't forget, it's had a big impact on commanders. And the commanders are going to take action in the future that will show, I believe, that they get it. And it's going to be much better.

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10:33:24
I'm Susan Page, and you're listening to "The Diane Rehm Show." Kevin, I wonder, the fact that there are more women in the Senate, more women senators, has that been a factor in the fact that this has become a subject of debate and vote in a way it hasn't been in the past?

BARON

10:33:42
Yeah, just jotted a note to myself. I said, what if this wasn't about sexual assault? Like I said, I was looking into this when it was about civilian deaths and in the fog of war and when it was about the normal level, I guess, of criminal activity that we see at some of the major basis in Japan and Korea and Germany, soldiers going off base, getting into where they have situations with women off base. These are stories you've heard for a while. Or soldiers among themselves, male on male violence.

BARON

10:34:16
When it came to this getting to the Congress, you know, members started -- I think the case in Italy with the commander there, it became about -- it became more accessible to the civilian world, I think, to see a problem that, wait a minute, there was somebody who's accused of sexual crimes against a woman. And his conviction was getting knocked down by a commander above him. Wait a minute. Why is that happening?

BARON

10:34:43
Well, that's been happening for a long time. It happens all over the world every day in the military. So I think it took, as most things in politics do, a kind of perfect storm to bring it to the attention of the Congress. And it does happen, you've got a couple of great active senators there with McCaskill and Gillibrand who took it to heart and have really done, as I said, a pretty good fight over what to do about this.

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10:35:08
Susan Burke, has it made a difference that there are more women in the Senate?

BURKE

10:35:12
I believe it has. And if you think about where we started with this, originally the same military brass that lined up in uniformed opposition to the Gillibrand proposal, they did the same thing to the -- what is now a well-accepted part of the McCaskill proposal. And that is what's called Article 60, the ability of the commanders to set aside the finding of a military jury.

BURKE

10:35:36
So when we first began united opposition to that, no, we can't do without that. That's essential for good order and discipline, and now it's just part of the exceptive thing that, yes, that is a bad idea. That's why I'm optimistic, as is Sen. Blumenthal. That's why I'm optimistic that over time the rationality of the proposal of taking it out of the chain of command will prevail. And you'll see the additional votes come through.

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10:36:02
Before we have that, we might have passage in the House of a version like what the Senate passed this week. Kevin, what are the prospects of the House?

BARON

10:36:10
Well, it either goes through as a standalone bill, or it'll have to get attached to the authorization bill. And a standalone can move at any time. It, you know, probably would end up with a pretty bipartisan heavy vote like we saw in the Senate 'cause what member wants to stand up and try to explain the long form why they're against reforming military sexual assault, you know, process?

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10:36:32
And so you think it's clear that it will pass the House this year and become law?

BARON

10:36:36
I'm sure it would pass. You know, there was -- to the talk of it being attached to the authorization bill I think would only be a way to pressure anybody who doesn't want to vote for the president's military budget into somehow being cornered into saying, well, if you don't vote against this, you're also voting against military sexual assault.

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10:36:51
And did President Obama and the White House have much to do with this debate?

BARON

10:36:56
Honestly, if they did, you didn't hear it on the public level in the headlines. They really stayed out of it. This was Sen. Gillibrand and McCaskill versus the joint chiefs. And we would keep -- and that's a good point to say, by the way, that it wasn't just commanders who came before the Senate to stand up for this. This was the Joint Chiefs of Staff. And I'm sure that made a humongous difference when it came to which bill won when we're talking about a difference of what five votes.

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10:37:22
Susan Burke.

BURKE

10:37:23
The president actually spoke briefly saying that the sexual assault was not welcomed. And that ended up being a command influence defense that it managed to excuse several alleged perpetrators.

BARON

10:37:33
That's true.

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10:37:33
We're going to take another short break. When we come back, we'll go straight to the phones and take your calls and questions. Stay with us.

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10:39:59
Welcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And with me in the studio: Maj. Gen. Bill Nash, Kevin Baron from Defense One, and Susan Burke, a lawyer who has represented military rape victims. Let's go to the phones and let some of our callers join our conversation. We'll go first to Esmeralda who's calling us from Hickory, N.C. Hi, Esmeralda, you're on the air.

ESMERALDA

10:40:22
Hi, how you doing?

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10:40:23
Good.

ESMERALDA

10:40:25
My question is, as a commander myself previously, who protects the victim if the commander is the perpetrator?

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10:40:37
And, Esmeralda, you were a commander yourself in the armed forces?

ESMERALDA

10:40:41
Correct. I was a basic training commander and a commander of a maintenance company.

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10:40:46
And we've heard that the Joint Chiefs were united against taking these cases out of the chain of command. It sounds like you have a different perspective on that.

ESMERALDA

10:40:55
I agree. I believe that they should stay out of the -- to get out of the chain of command. We as commanders, as mentioned before, we're not trained in every other aspect. We're not doctors either. So when soldiers get sick, we send them to the hospitals. It's the same thing as an attorney. We're not attorneys. We're not trained to be lawyers. So the best thing is let the attorneys handle it. Let the military police handle it. And let the Criminal Investigation Department handle it.

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10:41:28
All right. Esmeralda, thanks so much for your call and your perspective. And thank you for your service.

ESMERALDA

10:41:32
You're welcome.

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10:41:34
So, Gen. Nash, what do you think about what she's saying? Should we go to the people who are actually best trained -- most trained to handle these kind of cases?

NASH

10:41:41
Well, commanders are going to do that. And the relationship between a commander and his doctor and his lawyer and his other technical -- and his artillerymen, his other technical expertise, the genius of command is to learn how to use those people in the proper way and to listen to their advice and counsel. And good commanders do that. And Esmeralda brought up the point that when a commander is the alleged perpetrator, then it's his commander that should be responsible for investigating and prosecuting as necessary.

BARON

10:42:17
And, you know, I recall in the beginning of the cyber commands were being stood up, I was on an event watching a panel of all four services and their recently appointed nation heads of these cyber commands. And I think three out of four of these nice white-haired senior commanders made a passing joke that they weren't even sure they knew how to turn on their computers. But they were the men in charge of cyber commands.

BARON

10:42:40
This is a part of the military that I think the civilian doesn't understand unless you have some way in to know that it didn't matter that these gentlemen knew how to turn on a computer or not. They knew how to command something. They knew how to manage something, and that's why they were given that trust. But that was also being questions at the time was, well, wait a minute. How can you be the commander of this type of a thing if that's not your specialty?

BARON

10:43:00
Or how could you command something in a different era or setting? So, for example, if we're talking about it's OK to use the JAG, we should rely on JAG lawyers and the expertise of the lawyers. Well, you're only as good as the expertise of those lawyers. And at the height of the Iraq and Afghanistan Wars, the operational tempo was so high that the turnover of personnel coming in and out of the war zones made it very difficult to prosecute trials.

BARON

10:43:27
And you had a lot of cases being played out because you couldn't pull them back from the war zones to Korea, wherever they were around the world. The whole system made it difficult to rely on, you know, even the lawyers themselves instead of having a command authority able to manage that process.

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10:43:44
Susan.

BURKE

10:43:45
One of the things I think is important to remember is that the reason we're here and the reason we're having this national debate is because we have decades of failure. So, although the commanders like to think that they'll be able to handle these legal proceedings and they like to think that they have the capabilities and consultation with the lawyers to do a good job, the results actually prove otherwise.

BURKE

10:44:04
Their conviction rates on rape and sexual assault were markedly below civilian systems. The rates of the rape and the sexual assault in turn rose. So when we look from Tailhook forward we have two decades of failure.

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10:44:18
In fact, we have a caller who, I think, has a related point to make. Bob is calling us from Indianapolis. Hi, Bob.

BOB

10:44:25
Hello.

PAGE

10:44:26
Do you have a question or a comment?

BOB

10:44:28
Well, if good order and discipline was existing, as the comment just came through, than people wouldn't be getting raped. And so the commanders have had their opportunity. What makes us think they're not -- they're going to be able to do it in the future if they haven't done it over the last 30 years since the civil rights culture has been part of our society?

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10:44:53
Bob, thanks for your call. Gen. Nash.

NASH

10:44:57
Well, I guess my only comment would be that, Bob, 30 years ago, I court marshaled my command sergeant major and very close friend for sexual behavior -- for inappropriate sexual behavior. Also in my career I have brought charges for murder against soldiers, against German civilians. I have court marshaled soldiers on operational deployment for misbehavior towards local citizens.

NASH

10:45:25
And the fact of the matter is is most of our commanders are going to belly up to the bar and do what's right. There have been cases, and too many cases, of sexual abuse that have gone unanswered. And that's wrong, and that's why I think this debate and pending legislation on the part of Congress is very good because we need to keep the pressure on. But we also need to keep the pressure on commanders at all levels to do what's right.

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10:45:56
Do we know whether the rate of sexual assault in the military is higher or lower than in the civilian population at large, Susan?

BURKE

10:46:04
That's a difficult question. We don't really know because the data-keeping is not nationwide. So we don't have the same good data in the civilian world that we have in the military world. What we do know is that the Navy did its own internal clinical review study. And there, 15 percent of incoming recruits admitted that they had raped before joining.

BURKE

10:46:27
And of those, over 80 percent admitted that they were serial rapists. So that's why -- because you are necessarily going to have this crime problem in your ranks, we don't want the victims to be in the position of, you know, their lives changing depending on whether they happen to pull a good commander like Gen. Nash or a bad commander like Gen. Sinclair. Keep it impartial.

BARON

10:46:49
(unintelligible) it's hard to -- it's difficult to make any comparison for military population to civilian because the military is a very -- it's a very odd population. It's very skewed toward younger males than any general population, right. You're talking about the (word?) kids who are just out of high school. Instead of going to college, they go off to the military, and they work their way up the ranks. There's no sideways recruiting in the military in your 20s and your 30s. You come in, and you work your way up.

BARON

10:47:16
So it becomes difficult to make those comparisons. And also, again, you know, as an investigative reporter in an earlier life, you know, you find out that the military -- you assume that they have got wonderful records on everything possible under the sun -- we ask the question. But it turns out they keep great records on things that they're asked to keep records on and then not much else.

BARON

10:47:35
And this is one of the problems. There's not very good record keeping on the number of these crimes, sexual assaults, and other violent crimes, that follows them from the incident reporting all the way through the entire process to show not just the rate of prosecution but the rate of conviction and then whether those convictions held up, were they overturned by the commanding authorities all the way to the end.

PAGE

10:47:58
You've mentioned the issue of serial rapists, Susan, and here's an email we've gotten from a listener. She writes, "As a junior enlisted member, I was the victim of a sexual assault by an NCO in my unit. I reported the assault through the proper channels. Nothing was done. It wasn't until this NCO raped another woman in my unit that the situation caught our commander's attention. His response, did we do what we needed to do for you?

PAGE

10:48:18
"And of course the answer was no. The NCO was acquitted. Two years later, I received a call from a JAG at another base to which the NCO was transferred because he was again being prosecuted for rape. And they wanted testimony about what had happened at the NCO's prior duty station." I mean, I think that the statistics you cited on serial rapists sound shocking to me.

BURKE

10:48:40
And I was shocked when I first started studying this issue and began to look at how it was being handled. But because this is the data, if you think about it, this is why we permit there to be sexual crime registries because there's a recognition that the science has proven that these are crimes of compulsion and that those who commit them do it again and again.

PAGE

10:48:59
Now, Gen. Nash, you're shaking your head.

NASH

10:49:01
In sadness at the example that was just given by that soldier -- that former soldier. It's atrocious what has happened. There's no question about that. And I am personally deeply saddened. The issue at hand is, how do you go forward? And I personally think that we found a good compromise in Sen. McCaskill's endeavor. And I think you'll see that the Joint Chiefs, after committing themselves to future action, I think over time we'll see improvement.

PAGE

10:49:36
But I guess one thing that makes some Americans look at this and wonder about the culture of the military, it's cases like the one earlier this month when the army suspended its top investigator for sexual assault cases because he had allegedly sexually assaulted a lawyer at a conference about sexual assault.

NASH

10:49:55
And I would also point out to you that the similar affair with respect to the Air Force officer that was brought to trial in a civilian court by an independent prosecutor, the charges were adjusted to almost insignificance. And as a consequence, these are -- if I may -- damn hard cases to deal with. And we've just got to keep working it.

BURKE

10:50:22
Well, you know, from my perspective, what we want to do is say, who is it that should be cloaked in the judges' robes? So we're not asking whether the commanders should have all of these other powers that they have. We're asking, should they have judicial power? And I think that given the level of misconduct, even among the ranks of the generals, given the past decades of failures, the appropriate time is to say these people are not equipped to be judicial officers.

BURKE

10:50:50
Let's create this parallel system, keeping it within the military to account for the logistical challenges, but let's have the lawyers and prosecutors hold these judicial roles.

PAGE

10:51:00
You know, Kevin, clearly the military is an organization that's designed to fight wars. That's a tough thing. But is there a problem with the military culture that allows a lot of sexual assault?

BARON

10:51:14
Well, I really caution against that generality that we hear all the time when it comes to any type of wrongdoing in the military for lots of reasons. Number one, like I said before, the recordkeeping is, I think, so poor it's hard to make that case. It also depends on the time. Are you talking about the military of 2006 that was getting, you know, destroyed in Iraq and was really at probably worst public opinion, lowest level of quality troops coming in, highest amount of public scrutiny?

BARON

10:51:41
Are we talking about, you know, the next 10, 20 years as we come out of those war years and we become a military that's -- if we have a military -- that is further spread around the world in smaller operations? But really most, by far, people in the military are not actual "war fighters," a nice made-up word from the last decade. But they're actually, you know, doing jobs like pushing paper and maintenance and air traffic control and, you know, lots of other things that don't put them on point.

BARON

10:52:10
So people make an assumption. They think that -- they think every soldier's a soldier on point who might, you know, somehow snap or be partial to -- because they volunteered to do that kind of a job -- some sort of, you know, criminal behavior or behavior that's beyond the pale when in fact that's just not the reality of most people in the military in their experience.

PAGE

10:52:29
I'm Susan Page, and you're listening to "The Diane Rehm Show." You know, that's such an interesting point. The Iraq War has ended, the war in Afghanistan. U.S. troops will be out, most of them, by the end of the year. Is that likely to change the shape of this debate, Susan Burke? Is it likely to make it less of such a difficult problem?

BURKE

10:52:48
No, it won't. Because the reality is that any single rape has a multiplier effect through people's families, through their communities. And so lack of justice is a very troubling thing, whether we're at war or not. And you're going to continue to see the survivors concerned about the lack of justice for themselves and for their peers. So it's not going to make a different in the debate.

PAGE

10:53:13
Let's go to Alma, Ga. and talk to Kathleen. Kathleen, thanks for holding on.

KATHLEEN

10:53:17
Well, thank you very much for having me. My comment is, basically, as a sexual assault survivor, when I tried to report what was done to me and as an enlisted (word?) officer -- or not at the time. I was a seamen at the time. But as an enlisted person, my chain of command was my chief. And so this was right before Tailhook in the late '80s.

KATHLEEN

10:53:46
And my commanding officer put the brown shoe, and that means he was associated with an air wing. So I don't know why, as a crypto, I wasn't listened to or heard, and the chief who tried to defend me and to help me to, you know, get these people who held me prisoner for three days -- these weren't enemies that did this.

KATHLEEN

10:54:13
These were American service members. And, you know, they were men and one female that did this to me. So taking it outside the chain of command, I think, would remove some of the natural intrinsic kind of, you know, defend your own, kind of like what your area -- your specialty is. You know what I'm saying?

PAGE

10:54:36
Well, Kathleen, tell me what happened to the -- what happened in your case to the men and the woman you accused of this terrible crime?

KATHLEEN

10:54:44
Well, the thing that happened to me was I was 18 at the time. And I was a very naïve 18-year-old. And, you know, when you wake up and somebody's, like, doing that to you, and they say, like, big words you don't understand, you're kind of like, wow. So when you try to get it prosecuted and you have to explain all this -- I had one person on my side. That was my chief. And the chief that was on my side never made senior chief, ever.

PAGE

10:55:16
And were they ever prosecuted?

KATHLEEN

10:55:19
No. They were never prosecuted, even with -- they threatened to murder me if I told. But I thought it was more important to tell. This happened in the '80s, and I just recently posted my story on the website, sexual assault in the military, along with kind of my picture. I didn't know it was going to go to Facebook and Twitter and, oh my gosh, everywhere. But now that it has -- because if I let the truth stay hidden, then, you know, nobody knows.

KATHLEEN

10:55:52
And my brothers who have had -- you know, not brothers literally, but my brothers in arms, who have had this done to them as well, we need a venue to be able to take this somewhere. My commanding officer tells me what to do for my mission, but my commanding officer may have prejudices based on their background. Not all brown shoes are CT. Not all brown shoes are EW. You know what I'm saying? Some are different branches of the Navy. And they may have, you know, predispositions to want to protect their own, you know.

PAGE

10:56:30
Yes.

KATHLEEN

10:56:31
So outside the chain of command -- like I say, my commanding officer, I do what he says, and I try to respect him at all times.

PAGE

10:56:39
Yeah, right.

KATHLEEN

10:56:40
But when it happens and you try to get justice for yourself -- you know, and it doesn't make anybody feel good to have to bring these charges.

PAGE

10:56:49
Yeah, I'm sure, Kathleen. Kathleen, thank you so much for your call, and thank you for telling us your very difficult story. Kevin.

BARON

10:56:56
Well, I think her story and other ones we've heard, you know, are -- they remind us about the military we have now and where we're going because, you know, these are stories from the '80s and from Tailhook. That was a military that was, you know, the Garrison military, right, not a military that's deploying at wars and a military that was built on the previous 10, 20 years of recruiting.

BARON

10:57:15
We now are dealing with a military that just came out of those 10 years. And where we go forward is going to depend on the people that have stayed in and the people that are going to be the commanders and care for that military going forward.

PAGE

10:57:27
Kevin Baron of Defense One. We've also been joined this hour by Susan Burke, a lawyer who's represented military rape victims, and by retired Army Maj. Gen. Bill Nash. Thank you all for being with us this hour.

NASH

10:57:38
Thank you, Susan.

BURKE

10:57:38
Thank you for having me.

BARON

10:57:39
Thank you.

PAGE

10:57:40
I'm Susan Page of USA Today sitting in for Diane Rehm. Thanks for listening.
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