Air Force’s Senior Lawyer Pressured Prosecutors on Sex Case

Official Photo – Lt Gen Richard Harding (U.S. Air Force Photo by Michael Pausic)

Yesterday, we told you about an Air Force rape case recently overturned by the military’s most senior appellate court due to the appearance of unlawful command influence. Delivering its holding, the United States Court of Appeals for the Armed Forces wrote:

This holding sets out in striking clarity a standard expecting the chain of command to give matters of justice a wide berth, avoiding not just actual influence, but even the appearance of it. This makes sense, and is important. One of the primary goals of any system of justice is to inspire confidence in those subject to it that they will be treated fairly according to a stable and predictable system of rules.

But there was something important about the case of Airman Rodney Boyce beyond the gross buffoonery of Deborah Lee James and Mark Welsh, who conspired to mangle the appearance of fairness by asking a sitting general court martial convening authority whether he wanted to retire with a demotion or be fired — the equivalent of giving a duck a choice between Peking and L’orange — while allowing him to continue ruling on cases. There was also the conduct of Lt. Gen. Richard Harding, the Air Force’s senior lawyer at the time and the chief legal advisor to Welsh and James at the zenith of the rampant legal chicanery.

According to court documents, Harding was deeply involved in base-level cases being ruled upon by Lt. Gen. Craig Franklin months before Franklin’s decision to refer the Boyce case for court martial — the decision seen by the Appeals Court as irreparably clouded by impropriety. Harding had reached out from his perch at the Pentagon, where he’d previously led the staff effort to concoct Air Force Instruction 1-1, to insist that sexual assault complaints be honored and taken to court no matter the evidence. The relevant excerpt:

Absent a smoking gun, victims are to be believed and their cases referred to trial.

This is a monumental burden shift. Rather than prosecutors proceeding only when sufficient evidence exists to sustain a conviction (the actual standard), they’re told by the most senior legal officer in the service — a 3-star general whose influence will determine the their career viability — that they should proceed unless the evidence is so weak that a conviction definitely cannot be sustained. A “smoking gun” standard means they have to be convinced someone else committed the crime or that the accusation is demonstrably false.

This sort of thing is arguably worse than the ham-handed meddling of the unfortunate Welsh and James. Whereas their interventions might warp the decision making of one or a few commanders, Harding’s pressuring of a key judge advocate implants distorted decision calculus at the systemic level, with legal advice to multiple commanders iteratively infecting the entire structure of the referral process.

Harding was at the time a legal advisor. This means there was a proper role for him to play in helping guide the advice given by Col. Bialke and others. His role would be to help others understand the law and know the processes by which it operates.

But it’s a different thing altogether for a senior legal advisor to depart the realm of passively offering advice and actively infusing political influence into the minds of subordinates. The worst part of what Bialke claims Harding to have said is

“the failure to refer the case to trial would place the Air Force in a difficult position with Congress”

By this read, what actually happened doesn’t matter. Nor the evidence nor the dignity of the victim nor an accurate outcome for the accused. What matters — all that matters — is the Air Force’s political standing with Congress.

This reduces the accused to nothing more than a pawn in a game to secure and cultivate political approval. This type of utilitarian calculation makes the accused nothing more than an incident to someone else’s objectives — someone with more power and greater interests. When we follow this philosophy, we end up with a system that readily obliterates civil rights for the sake of “the greater good.” At its grosses extreme, this type of thinking results in justice-free show trials designed to maintain societal order rather than find the truth.

Oh yeah. The truth. No where in this entire mess do we see anyone wearing a high rank actually concerned with the truth or showing any commitment to finding it. Not James, Welsh, or Harding. They’re more concerned with playing politics than doing the right thing for victims and defendants in a system designed to safeguard our (allegedly) most cherished principles and values.

It’s this latter point that should worry Congress most. If you can’t trust the Air Force to safeguard principles and properly execute laws in the face of political pressure, you can’t trust it to do a great many things we’ve been trusting it to do, perhaps for too long.

Just one man’s opinion, but we might want to be much more careful going forward how we choose who gets to dole out legal advice for the world’s most consequential Air Force. It’s clear the position requires a great deal of judgement, and that getting things wrong in the position can have lasting consequences … as can failing to constrain one’s own views to a responsible stable and separating those personal views from learned legal advice, as distinct from rational political judgements.

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