Exposed and Analyzed: Publicist Talking Points on Air Force Legal System

Fairness and Justice JA Letter

The photo is a modified screen shot of a set of talking points making the rounds within the Air Force’s public affairs and legal communities. The point of this publication — aside from justifying a public affairs billet — is to equip publicists, lawyers, and commanders with key themes and messages reinforcing the image of a sturdy, capable, even flawless legal system.

You might be asking yourself why talking points would be necessary for that task, and you’d be asking a valid question. The best way to convey a strong image would be for the Air Force to field an actually strong legal system and let the results do the talking.

But we’re not in that world right now … not with this Air Force and not when it comes to this issue. Messaging is preferred over substance, as reflected in the comparative size of the service’s public affairs apparatus (more than 5,500 airmen) as compared to the size of its legal community (less than 1,300 lawyers). 

Notwithstanding the exuberant tones and uplifting rhetoric of this internal document, the Air Force’s legal system is in trouble. Manifestations of unfairness, politicization, and unclean process are plentiful. Commanders are using criminal justice for — you guessed it — messaging … rather than protecting its sanctity as a truth-seeking and fact-driven endeavor. Investigations are used to manufacture ex post facto rationales for firings. Exculpatory evidence discovered by prosecutors is sometimes held out of the view of defense counsel, in violation of federal law, without accountability. Commanders engaging in overzealous prosecutions with life-crushing consequences are given official cover, even when the evidence eventually exonerates the accused. Overcharging is rampant, and generals too often ignore the recommendations of military judges.

But since we’re not in the world of honest introspection and an authentically searching effort to review problems and adjust policies … but instead the world of self-congratulatory messaging … we’ll have to deal with the world as we find it. To that end, here are a few points concerning “Fairness and Justice in the Air Force” — each denoted by its corresponding letter and highlight in the document above.

A. This is just factually wrong. The US armed forces have never been the most disciplined in the world, and in fact we’re notorious for not following our own doctrine. At countless points in military history, the willingness to temporarily exceed limitations, to exploit the fuzzy edge of latitude, and even to knowingly violate the rules based on independent judgments under extreme circumstances … have been decisive in securing battlefield victory. We don’t want the most disciplined force in the world. We want people bucking against their limits — yes, gasp! — even in unhealthy ways … because if they’re doing that, they’ll also buck against their limits in all the right ways. We call that innovation

None of this is to say discipline is not a valid goal for the legal community. But (a) the legal community should be more concerned with elemental fairness and justice rather than their disciplinary by-products, and (b) the hyperbole used here betrays a flawed appreciation for the concept of military discipline itself. Sometimes, military discipline means persisting with moral courage against the stupidity of a hidebound bureaucracy.

B. The UCMJ doesn’t protect against coerced confessions and illegal searches. The Constitution does that. Disappointing. Just reinforces the idea that there’s somehow a divided discussion about the rights, liberties, and protections afforded Americans and those afforded airmen. This is a fatally flawed idea that is running rampant in the Air Force’s legal and management cultures.

C. This is a nice statement about fairness, but it’s also incomplete. What it should also include is that punishments should be equitable across ranks, with senior officer and enlisted violators prosecuted and punished just the same as their junior counterparts. This isn’t the norm. The norm is that senior managers found culpable of wrongdoing are ordinarily allowed to slip away into retirement, feeding the perception of a crony system. A fair system also holds accountable, publicly, commanders and lawyers who abuse legal processes rather than operate the system in good faith. Here, the Air Force has failed time and again.

D. A few notes on ADCs. First, it’s not clear how “zealous” they can be without risking their own careers, since tours as defense counsel are temporary and those lawyers eventually cycle back to the “other side,” where they are often supervised by the very lawyers they previously opposed. This is taking nothing away from ADCs, but illustrating the built-in conflict of interest in a small, somewhat incestuous personnel system that draws lawyers from the same rotating labor pool. 

But even if ADCs wanted to represent their clients as zealously as possible (and many do), they lack the resources. By the Air Force’s own accounting, nearly 5,000 legal actions required defense consultation in 2015, and this doesn’t account for courts martial and Article 15 actions that were undertaken but never culminated. It also doesn’t account for appellate or clemency actions, or the masses of Letters of Reprimand for which ADCs are consulted.

Against this workload, a tiny cohort of approximately 85 defense counsel cover the entire globe … obeying (and very often violating) an unwritten rule limiting them to ten active courts martial at a time. They travel constantly, without dedicated support. They don’t have assigned paralegals. They don’t have their own investigators. Many ADCs have quit the Air Force because of these conditions, and many others were fired when the legal community was gutted in the 2014 drawdown.

This set of circumstances makes it clear that prosecutors have a systemically unfair advantage in the Air Force justice system. It’s a poorly kept secret long overdue for Congressional action since the Air Force is too busy soothing itself with talking points to wrestle with and correct these obvious imbalances.

E. No system is “absolutely” fair. Every system has problems. The very idea that the Air Force would lay claim to “absolute fairness” betrays a sense of denial or misguidedness about what a legal system is and isn’t. The thing to do is acknowledge that mistakes are made sometimes, and to heal those mistakes, holding officers of the court and the chain of command accountable when the situation demands. The thing to not do is refuse to sense or acknowledge issues, leaving them perpetually unaddressed and likely to worsen over time.

I’ve never understood why the Air Force engages in such frivolous self-massaging as this point paper represents. Everyone inside the system knows there are problems, and there’s no shame in dealing with them openly. That’s what is needed, and urgently so.

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