Interview with Susan Burke, Attorney at Law regarding the Military Justice Improvement Act.

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One of the more controversial issues concerning this year’s national defense authorization act concerns an amendment introduced by New York Democratic Senator Kirsten Gillibrand called the Military Justice Improvement Act. While the amendment would affect how many crimes are prosecuted it was conceived mostly as a way of dealing with the recent epidemic of sexual assaults in the military. To find out more about this issue, the Voice of Russia spoke to Susan Burke, an Attorney who has represented victims of sexual assault in the military and she is a major proponent of Gillibrand’s amendment. In her interview Burke said that the issue at the center of all this is the broad powers military commanding officers enjoy over the military criminal justice system, and that erasing those powers are the only way to ensure justice for violent crimes, including sexual assault.

– Can you tell us what the Military Justice Improvement Act, which is Kirsten Gillibrand’s amendment, is?

– Certainly. Right now we have 2 Federal systems that operate in the courts in our country, one is the regular federal courts that most folks are familiar with, and then in addition we have a whole other separate judicial system that is operated by the military, for the military. And that is governed by what is called the Uniform Code of Military Justice. Now what that current code allows is that it allows for people who are not lawyers, who are not trained in evidence collection or in court proceedings, it allows the chain of command to be making decisions as to whether or not a reported crime will be investigated and prosecuted.

So, what Senator Gillibrand bill does is making a very logical and much overdue change to that and it simply says for the investigation and prosecution of crimes the military judicial system once take the lead, will be in charge of that. Civil lawyers and the prosecutors and the investigators will be making the judgment calls as to whether a report of rape should be investigated and prosecuted rather than these untrained chain of command people.

– To make it clear, this amendment would affect a lot of different kinds of violent crime, not just sexual assault, right?

– That is correct, it would apply to essentially all felonies, anything where there is potential jail time over 1 year.

– But it was designed specifically to deal with sexual assault. Does the same problem exist for murder or assault or anything like that?

– The same problem does exist for all crimes and the reason is that in all instances when the chain command is involved, they are not impartial, it rather they have their own career that are intertwined with their decision making and they also know, both the victims and the perpetrators for all crimes. What this does is says “wait a minute, we as Americans know that the best justice is blind justice, impartial justice and we are going to make sure that the service members, the men and women who are willing to put their lives on the line to protect us don’t have some kind of second class justice but they have the same blind impartial justice that the rest of us enjoy.”

– You’ve been very involved in the fight to bring justice to victims of military sexual assault, there is a documentary called the invisible war which you are featured in. Can you tell us about your work and how you got involved in this?

– I was first contacted few years ago by a woman who had been raped by a soldier that she knew. It was actually a friend of her husband. Her husband was also a soldier. And so she contacted me and told me what had happened, where it had gone to court-martial but the prosecution had lost the evidence and there was one mishap after the other. So, based on that initial really contact out of the blue from someone I began to study the issue and I began to talk with people who had not obtained justice and they were very upset with the way that no one was obtaining justice. So, I began to network, spread the word that I would be willing to help these folks and we filed a series of law suits in Federal civilian court saying “this is so poorly handled that you are actually violating these people’s constitutional rights.”

– How have these lawsuits worked out?

– Right now all of them, the Federal judges that have heard them, although they have expressed their concern about the way that the military is handling things, they done what is called abstention, they have abstained from exercising jurisdiction based on Supreme Court case. So, essentially the case has not been heard.

– And what has to happen in order for your case to be heard?

– I think there is two different possibilities, one is that Federal Judge will decide to hear it, because abstention is really a prudential doctrine, it is in the judge’s discretion. So, we are going to continue to keep filing them and maybe judge does decide that the facts here are so egregious that they are not going to defer to the military. Obviously the second and what we hope more likely outcome is that Senator Gillibrand bill gets through and the structural problems are eliminated and the military judicial system begins to function more effectively. As a practical matter, right now although the military itself estimates that they have 26.000 rapes and sexual assaults per year, they only manage to convict and incarcerate a couple hundred people. So, you’ve got a very low conviction rate and that is why we are seeing all these problems because they are just not doing a good job of prosecuting and convicting folks.

– Even the rate of reports is very low. It is something like 90% don’t get reported, is that correct?

– It is correct. If you think about it, it is very logical. If a judicial system doesn’t function well and it is corrupted because the people who are holding the power have their own interests at play, what happens over time if you don’t trust that system, you don’t report and if you look around the globe, in fact if you look at the state department human rights report, they tend to look at judicial systems around the globe and say this country has one that is not impartial, it is corrupted by people knowing each other, and what happens there is if you don’t trust the judicial system, you don’t report crimes. So, that is why this is really a critical national issue, we need to make sure that there is an impartial judicial system that is trusted so that service members who are crime victims are comfortable reporting.

– There is a lot of pushback to Gillibrand amendment and to the idea of taking commanders out of the military judicial system, and one of those is that the commanders will be held accountable if they are responsible of how the system works and if it works independently of them, then the accountability is a problem. What is your reaction to that?

– It is not true because if they were going to be held accountable for how the system failed to work, they would already be held accountable. It’s been broken for several decades now.

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