There is a maxim of law, dating back to the Romans, "Ubi Ius, Ibi Remedium" ("Where there is a right, there is a remedy.") Modern lawyers often state it as "Where there is a right there is a remedy, but not (necessarily) where there is a wrong."
Reading two recent articles, Addressing Torture in our Own Backyard by Duchess Harris, Esq., Ph.D. and Senator Martha McSally's Responsibilities to Survivors of Military Sexual Assault by Lynn K. Hall, made me think about this maxim.
Sometimes, the hardest part of law is in determining what body of law in which to seek the remedy and if there is a practical remedy outside the law.
Responsibilities to Survivors of Military Sexual Assault
My military experience was in the Army and did not include direct experience in these matters as a victim, perpetrator, or complainant (in other words, a member of the Chain of Command). However, based on my experiences with other matters under the Uniform Code of Military Justice (“UCMJ”). I'm not so sure what Sen. Gillibrand proposes has that much value.
Serious offenses under the UCMJ are already subject to the Article 32 Investigation process, a sort of a military "Grand Jury." (F. Lee Bailey, who got interested in law as a Marine pilot after Korea who had the extra duty of helping out the Staff Judge Advocate for his Wing, used to say a defendant's rights are protected better under the military system than under the civilian system.)
So, I'm not sure taking commanders "out of the loop" is the answer, in part, because I'm not sure military prosecutors would not err of the side of caution in bringing such charges or in disposing of such matters. "[A]ppropriately trained military attorneys" may also be prone to plea bargain cases, in fact, are often more prone to hold Commanders back than the reverse, at least in my experience on other types of serious offenses.
Both Commanders and Judge Advocate General ("JAG," lawyers for the Command, as opposed to Trial Defense Services" ["TDS"] the military lawyers who represent the accused) personnel want to justly resolve these matters. But, there is a corollary to that, true of most organizations, which is that if something can be resolved without "bad press," as quietly as possible, it will be.
Many times, there are situations where a Commander may think justice is best served by letting some one retire or by administering non-judicial punishment (although the risk there is the accused can always refuse Non-Judicial Punishment and demand a Court Martial, which is problematic if the law or the evidence is weak in the first instance) or by some sort of administrative sanction (giving them a damaging efficiency report or keeping them from attending required Professional Military Education ["PME"] or, in an extreme example. sending them to Johnson Atoll, where we were neutralizing our old chemical weapons back in the day).
Military lawyers may (or may not) be aghast at this.
They may not be because, for example, if the particular matter goes to Court Martial, the Army (the service I was in) may lose and something . . . clever . . . may need to happen for justice to be served in any manner.
The Harris Article
There is another current Article, Addressing Torture in Our Own Backyard by Duchess Harris, that raises similar issues.
A recent case with which I have more familiarity than the one Dr. Harris cites in her Article is the Eric Garner Case from Kings County, NY.
Mr, Garner died during his apprehension for selling loose cigarettes on the street. Mr. Garner did not cooperate in his arrest but also did not forcefully resist.
The police officers who apprehended Mr.Garner were Rookies and a Supervisor. The matter was brought before a Grand Jury. There was no conscious desire to harm Mr. Garner based on what the Grand Jury decided and a no "true bill" issued.
The Department of Justice twice investigated the matter and did not find a Civil Rights violation, a civil matter.
The family threatened a civil tort action for wrongful death. NYC, as it often does, relied on sovereign immunity but settled with Mr. Garner's heirs, I believe, while not admitting liability.
Finally, the matter is being looked at by a police review board administratively.
There is criminal law; there is torts law; there is Civil Rights Law; and there is administrative law. There is federal and state and local jurisdiction of there matter.
Our system of law is complex and it moves slowly. However, that also means there is more chance for justice to be done (at some level, or under some legal theory) for all concerned.
The maxim of law is (to paraphrase Robert Bolt): "Ubi jus ibi remedium," usually translated as, "Where there is a right, there is a remedy."
Lawyers often put it as, "Where there is a right there is a remedy, but not always where there is a wrong." Perhaps the best way to see it is to say, "Where there is a right there is a remedy but you have to find it."