The major flaws in the Air Force justice system that let generals go unpunished
“You would never let someone who last stepped in the cockpit as a junior captain take over as wing commander, but that’s what we do for trials."
The Air Force made history this month by charging a general officer with sexual assault. Maj. Gen. William T. Cooley is the first active Air Force general to be charged with a crime, and he could become the first Air Force general to face a court-martial if a preliminary hearing in January deems it necessary.
The former chief prosecutor of the Air Force called the charges “a lightning strike” which might help finally hold senior leaders to the same standards as their lower-ranking peers.
“What I hope it does is flip this script that they’ve had where generals and admirals are held to a lower standard than the people they lead and start actually holding them to a higher standard,” retired Air Force Col. Don Christensen, president of the advocacy group Protect Our Defenders, told Task & Purpose.
However, the prospect of a Cooley court-martial reveals two serious flaws which undermine the Air Force justice system.
The first flaw is well-known: like its sister services, experts say the Air Force has an ‘old boy’s’ network that protects its top brass from serious punishment for violating the Uniform Code of Military Justice. But the second flaw is more surprising: experts say the Air Force Judge Advocate General’s Corps has few lawyers with enough court-martial experience to prosecute complex military justice cases, especially when the accused is a general with the means to retain seasoned civilian defense attorneys.
“Civilian defense attorneys can run rampant with military prosecutors,” said Lt. Col. Rachel VanLandingham, a former Air Force judge advocate and law professor at Southwestern Law School.
The problem is not the prosecutors, who experts said are often highly-skilled and motivated. The problem is that the Air Force encourages its judge advocates (a military attorney) to practice several different fields of law throughout their careers rather than specialize in one particular practice area.
While this approach is good for growing administrative leaders, it means Air Force judge advocates, despite their talents, do not develop the trial experience one might find in a civilian district attorney’s office. Experts said the lack of experience hurts the service’s ability to reach convictions in courts-martial—particularly in sexual assault cases—, hold its top brass accountable, and detect widespread racial disparities in its justice system.
“If good order and discipline is really what your concern is and that’s why you’re court-martialing people, then don’t you want a special track within the JAG corps that does nothing but prosecute cases as well as defend cases?” asked VanLandingham.
“It just seems to make structural sense,” she added. “But the Air Force is like ‘ah, we’ve got this,’ and I do think there’s some hubris involved there.”
Flaw one: ‘This old boy chummy network’
Cooley allegedly made unwanted sexual advances by kissing and touching a female civilian during an off-duty incident on August 12, 2018, while he was still chief of the Air Force Research Laboratory. The general is accused of kissing the woman on her mouth with his lips and tongue “to gratify his sexual desire” without her consent, Military.com reported.
Cooley is also accused of sexual contact: touching the woman’s breasts and genitalia through her clothing without her consent and also making the woman touch his genitalia through his clothing with her hand without her consent.
The general is not the first in the Air Force to face allegations of sexual misconduct. Others include Maj. Gen. Thomas Fiscus, who the Air Force Inspector General found in 2004 had made inappropriate sexual advances on 13 women; and Brig. Gen. Richard Hassan, who the IG found in 2005 had sexually harassed female subordinates and created a hostile work environment.
But instead of preferring charges against them, Fiscus and Hassan were allowed to retire after a demotion to colonel.
General officers “don’t want to prosecute each other because it’s this old boy chummy network,” said VanLandingham. “Many of them have integrity, but that track record doesn’t speak well on their behalf. It speaks of the euphemism ‘different spanks for different ranks.’”
The case of Maj. Gen. Cooley is a step forward in the sense that Lt. Gen. Gene Kirkland, commander of the Air Force Sustainment Center, decided to prefer the charges against Cooley to an Article 32 preliminary hearing, the first time an Air Force general will face such a hearing.
An Article 32 is analogous to a civilian preliminary hearing, used to determine whether there is enough evidence and probable cause to warrant a court-martial. It is also a more transparent process than a commander simply issuing a nonjudicial punishment, such as what happened with Fiscus and Hassan, experts said. A hearing requires people to testify under oath and allows professional lawyers to make a formal recommendation on whether the case should proceed to court-martial.
“I feel like it would have been better for military justice to go through an Article 32,” in the case of Fiscus and Hassan, said retired Lt. Col. Joshua Kastenberg, a former Air Force JAG and judge who teaches law at the University of New Mexico.
“Maybe a presiding officer would have said that the case didn’t deserve a court-martial,” he explained. “But what ended up happening is they bypassed the UCMJ altogether by going straight from an Inspector General report to an Article 15 nonjudicial punishment.”
Cooley is the first Air Force general to have charges preferred against him, meaning he is the first to be officially accused of a crime. Lower ranks are not so immune; the judge recalled prosecuting several majors, lieutenants and sergeants who were charged with similar offenses.
“Historically in the U.S. Air Force, there’s a greater degree of control over the fate of a general who’s been alleged of misconduct than there is over the fate of a major or master sergeant or a new airman,” Kastenberg said.
Related: A Recent Air Force Sexual Assault Case Displays The Cascading Problems With Military Justice
A demotion to colonel meant Fiscus and Hassan received a few hundred thousand dollars less in pension over the course of their retirements. But that loss is small potatoes compared to what lower-ranked airmen face for the same offense.
“When a junior officer or enlisted service member gets a bad conduct discharge or a dismissal, they lose everything: VA benefits, retirement,” said Kastenberg. “I don’t subscribe to the argument that there’s an equivalency there.”
Still, change may be on the horizon: the #MeToo movement and pressure from Congress has put the military on notice to fix its sexual assault problem. Experts said that pressure, and, most importantly, substantial evidence of wrongdoing compiled by an Air Force Office of Special Investigations’ probe, explains why Cooley may face a court-martial where so many other generals did not.
“The people involved in the process have been told that they need to take [sexual assault] seriously,” Kastenberg said. “You apply the same measures of evidence that you would for a brand new airman accused of this as you do with a general, and because of that seriousness it is less likely to be buried.”
Flaw two: JAG of all trades, master of none
Beyond the chummy old boys’ network, the prospect of a Cooley court-martial reveals a deeper flaw in the Air Force JAG Corps: a lack of experienced prosecutors to take the case. The Air Force employs about 1,300 judge advocates, but few of them have significant experience in a military justice courtroom.
That’s because military justice — the prosecution of violations of the UCMJ — is only one area practiced by Air Force judge advocates. Other areas include air and space law, claims and tort litigation, environmental law, and government contracts. The Air Force encourages its judge advocates to spend time in each of these areas in preparation for becoming staff judge advocates, who advise non-lawyer Air Force commanders on legal matters.
“Ultimately, the goal is to grow leaders who can advise command across a wide spectrum of legal issues across all domains,” Air Force spokesperson Ann Stefanek told Task & Purpose.
Stefanek explained that most young JAGs start their career in military justice, but after the first two assignments they “are expected to further develop operational and strategic competence across the legal domains.”
In other words, the Air Force thinks that a taste of each practice area will better prepare judge advocates for leadership than specializing in one particular field. Experts said that approach works well for training administrators, but not so much for developing deep expertise in specific areas such as military justice.
“The Air Force JAG Corps has always wanted to develop utility players, they’re the ones that get promoted,” said VanLandingham, using a baseball analogy.
The problem is that the JAG is full of jacks of all trades, but masters of none. The highly-skilled Air Force captains and majors practicing military justice today are not encouraged to develop decades of expertise like the kind you might find in a civilian district attorney’s office.
“Throughout my career I was told over and over ‘you’ve been in military justice too long, you’re going to hurt your career, you need to get out,’” said Christensen.
By staying in military justice until he retired in 2014 at the rank of colonel, Christensen was an exception that proves the rule.
“Don was one of the last folks with that kind of experience,” said VanLandingham, who also struggled with the pressure to generalize.
“I wanted to become a specialist in the law of war arena, the law of armed conflict,” said the former JAG, who worked at CENTCOM for four years and said she was asked by then-Gen. David Petraeus to stay longer. Instead of welcoming that development, her superiors pushed VanLandingham to try other practice areas.
“They were like ‘you can’t go to another law of war assignment, you’re never going to get promoted,’” she said. “And I’m like ‘Why not? We’re at war for God’s sake, and how great is it that you have an Air Force officer being asked by DoD for advice on law of war issues?’
“In the military justice arena you end up cutting off your nose to spite your face,” she added, “because that means you’ve got a judge advocate who maybe had one assignment in criminal justice.”
‘You wasted the court’s time’
No matter how well-trained or motivated they may be, inexperienced JAGs help produce an ineffective justice system, experts said. That is especially true when they reach positions of influence. One example was the 2019 court-martial of former Navy SEAL Eddie Gallagher, who was acquitted of murder charges after multiple witnesses said he shot two civilians and stabbed an ISIS detainee in Iraq.
The Navy lost the Gallagher case in part due to inexperienced prosecutors, VanLandingham said. Like the Air Force, the Navy discourages specialization in their JAG corps, she said, and that led to prosecutors making terrible decisions. For example, prosecutors violated Gallagher’s right to a fair trial by tracking his lawyer’s emails without a warrant.
“Anybody with a brain would have said this is pure Sixth Amendment stuff,” she said. “You never mess with the relationship between the accused and their defense counsel. That to me showed that [lead prosecutor Cmdr. Christopher Czaplak]’s bad judgment was informed by his lack of experience.”
Related: Judge removes lead prosecutor in case against Navy SEAL Chief Eddie Gallagher
As an Air Force judge, Kastenberg noticed a similar error when a prosecutor rested after introducing a confession without any other evidence to prove the accused’s guilt. That falls short of a central tenet of the U.S. legal system, which is that an out-of-court confession alone is not enough to prove a defendant’s guilt. Kastenberg had no choice but to grant the defense’s request for a dismissal.
“I said ‘well, you wasted your time, you wasted the defendant’s time, and you wasted the court’s time by not understanding the law,’” Kastenberg recalled telling the prosecutor afterward. “And then he said ‘I understood the law, Your Honor, my bosses didn’t. They said ‘just go in there with a confession.’
“That’s why it’s important to know something about criminal law,” Kastenberg continued. “I don’t remember who the colonel [in charge] was, but my guess is it was someone who had not been in the courts a long time, and military justice was not their thing.”
In contrast to the Air Force and the Navy, the Army JAG Corps has a dedicated military justice track. VanLandingham pointed to the Army’s successful convictions for war crimes, such as former Lt. Clint Lorance and Staff Sgt. Robert Bales, as proof that the Army model works.
“The Army is smarter than the Air Force in this area,” she said. “They develop military justice experts who do nothing but that.”
There is the possibility that Maj. Gen. Cooley’s sexual assault charge would not be a very complicated one, should it be sent to court-martial. In that case, the Air Force might not need a highly-experienced prosecutor in its corner. However, sexual assault cases tend to be complex, VanLandingham said, and inexperienced JAGs may hurt the Air Force’s prosecution of them.
Low experience, low conviction rates
Christensen said the Air Force’s lack of experienced prosecutors may play a role in the Air Force’s poor record in courts-martial convictions. The Air Force had a 61 percent conviction rate in its general courts-martial in fiscal year 2019, according to the Joint Service Committee on Military Justice. By comparison, the Army had an 84 percent conviction rate.
“If you’re running a civilian prosecution office, you’re hoping to be in the 90-plus percent conviction rate on the cases you take to trial,” Christensen said. “You’re supposed to be taking cases to trial that you have probable cause on and sufficient admissible evidence to prove the accused guilty beyond a reasonable doubt.”
To be fair, there are some military-specific circumstances which may drive down the Air Force conviction rates, said VanLandingham. For example, military convening authorities often send cases to court-martial without sufficient evidence to produce a conviction.
“The general officer may decide to take the case anyway, even if he thinks we’re not going to win, to send some kind of message,” she said. “I don’t think you should be putting someone through a court-martial or putting the system through that strain just to get acquittal. That’s not what justice is about.”
This occurs frequently across the military with sexual assault charges: Of the 68 cases the Air Force sent to court-martial in fiscal year 2017, only 39 had sufficient evidence to produce a conviction, according to a DoD committee on sexual assault. Military-wide, only a third of such cases resulted in a conviction.
Related: A new Pentagon report on sexual assault in the military is a wakeup call to a ‘systemic’ problem
VanLandingham said poor advice might also drive down conviction rates, since many Air Force staff judge advocates who advise convening authorities are themselves inexperienced in criminal justice.
“The concern is that you have the blind leading the blind,” said VanLandingham. “You have folks who are not very steeped in criminal justice advising commanders who know very little about criminal justice because they are pilots or they are logisticians. They are not lawyers.”
It also does not help when the accused has the means to hire civilian defense attorneys who are often more experienced than military prosecutors. For example, Cooley’s lawyer, Daniel Conway, helped write the book on military justice defense.
“You can have these really heinous murder cases and the senior proseuctor would be a four-year captain,” said Christensen. “A lot of times they’re going against a civilian defense counsel who’s been doing it 20, 30 years. So the Air Force loses a lot of cases.”
The Air Force defense
The Air Force disputed any claim that its staff judge advocates, who advise convening authorities on military justice cases, are inexperienced or ill-equipped. Spokesperson Ann Stefanek touted the credentials of Air Force SJAs, specifically those colonels who advise the convening authorities of general courts-martial.
Out of the 127 who did so in the Air Force from 2014 to 2019, Stefanek said, 109 had served previously in military justice positions, such as assistant staff judge advocates, circuit trial counsel, circuit defense counsel, judge, or chief of military justice.
However, experts were unimpressed by the credentials. They said Air Force JAG colonels may have spent time in the courtroom in their early years, but most of them have not returned for decades.
“There’s a lag time,” Kastenberg said. “People start off in military justice and then do other things. They don’t go back. To say we have experienced military justice folks becoming SJAs … I don’t know if that’s accurate.”
That lag time is a problem, Christensen explained, because Air Force lawyers need to stay current for the same reasons as Air Force pilots.
“Wing commanders stay current throughout their careers, so when they’re leading F-16 pilots they know how to do it,” Christensen said. “You would never let someone who last stepped in the cockpit as a junior captain take over as wing commander as a colonel, but that’s what we do for trials.
“Law is constantly changing, so you have to stay up-to-date,” he added. “If you’re a surgeon and you only do a surgery every five years, how good of a surgeon are you going to be?”
On the one hand, it makes sense for staff judge advocates to generalize, Christensen said. The Air Force has a wide range of commands and a wide range of legal needs that commanders need advice on. But the Air Force also needs specialized litigators, he said, and it’s a bad sign when inexperienced, non-current SJAs are advising convening authorities on whether or not a case goes to a general court-martial.
“It’s a weakness of the convening authority when the people giving advice have never prosecuted a sexual assault case ever in their lives,” he said.
Besides SJAs, Stefanek said the Air Force has a skilled team of circuit trial counsels to prosecute complex general courts-martial, and a Special Victims’ Unit-CTC to prosecute complicated sexual assault cases. But the positions often are not as formidable as Stefanek made them out to be, Christensen said.
“The problem is the average CTC comes into the job with three to five years as a base level JAG, including usually an area defense counsel job,” said the former chief prosecutor, who stood up the Special Victims’ Unit-CTC program in 2013. “If lucky, they will have done 10 fully-litigated cases, and that would be an exception by the time they become a CTC.”
A CTC might serve a year before joining the Special Victims’ Unit, then do that for a year or two before being transferred to another position, Christensen said. In total, they might litigate 20 cases, which is a far cry from the 60 cases that Stefanek said an average Special Victims’ Unit – CTC has prosecuted.
“No way that’s the average anymore,” said one of Christensen’s former SVU prosecutors. “Not even close. Grossly inflated.”
Besides lost cases, the high turnover also wastes resources, Christensen said.
“You put the time into getting them trained and then they move them. Often early,” he said. “That was an issue when I led the SVU: JAG Corps leadership often moved my best counsel early into non-litigation jobs, so you start from scratch.”
Christensen emphasized that the Air Force has some very talented attorneys, “but they aren’t allowed to stay in a job they love, and many choose to separate so they can stay in the courtroom.”
Congress is aware of this problem: in the National Defense Authorization Act for 2018, lawmakers called for a number of measures to improve the military’s prosecution and defense of courts-martial. The measures included using civilian employees to advise less-experienced judge advocates; building a military justice career track for judge advocates; and ensuring that officers who join that track have the same chances for promotion as other JAGs.
“Because our JAGs transfer so frequently, most do not gain the necessary experience to try cases, defend the accused, or represent a survivor adequately,” wrote Sen. Kirsten Gillibrand (D-N.Y.) in 2017 when she and Sen. Joni Ernst (R-Iowa) introduced the measures.
“Moreover, JAGs are encouraged to have a broad range of experience, which means that a JAG who has very little experience trying cases may be assigned to a complex sexual assault case,” she said. “Our bill will change that and model the military justice system after the civilian system where lawyers become experts in their fields.”
Retaining both specialized military justice experts and generalist SJAs and administrators is not a big ask, Christensen said. All the Air Force needs to do is let JAGs who already practice military justice stay in that field for their entire careers, rather than push them out to other practice areas.
“To do this really well you would need a cadre of 25 to 30 people making a career out of being prosecutors, and another 25 to 30 making a career out of being defense counsels,” he explained. “We already have that many people being circuit trial counsels and circuit defense counsels, we’re just saying you can do it the rest of your lives.”
Seeing the big picture
The Air Force justice system is not working, experts said. Otherwise, why would the conviction rate for courts-martial and sexual assault be so low; why has it taken so long for a general officer to have sexual assault charges preferred against him; and why are there such disparities between the rates at which Black and white airmen are prosecuted?
“If military justice is so professional, how come if you’re African-American, you are twice as likely to face a court-martial or NJP?” Kastenberg asked. “I will dispute any sense of perfection or anything close to perfection in the system they’re touting right now.”
High turnover among military justice JAGs plays a role in this disparity, Christensen said. Talented as they are, Air Force JAGs simply don’t have the years to observe systemic problems unfolding in the courtroom.
“The average JAG doesn’t spend enough time in litigation to really see in person the trends across the Air Force when it comes to justice,” he said.
These issues are not new: Kastenberg remembered hearing calls for a military justice track when he first joined the Air Force in the 1990s. But the model for success in the JAG Corps seems to be the same: none of the past three top Judge Advocate Generals returned to the courtroom after leaving it as junior JAGs in the late 1980s and early 1990s.
“If I were to start a litigation law firm, I couldn’t find better talent than the attorneys that worked for me when I was chief prosecutor,” Christensen said. “The problem is the Air Force doesn’t allow them to make a career out of it.”
The system must be changed to either allow Air Force judge advocates to specialize in criminal justice, or to encourage them to reach out to more experienced Army judge advocates, VanLandingham said.
“I highly doubt that will ever happen, because the services don’t play well, we are not purple”—the color of services working together—”in the criminal justice world,” she said, citing different practices for non-judicial punishment and referral charges among the services.
“The UCMJ did not go far enough,” she added. “These crimes have the same elements across the services, so why can’t we have more joint-ness? I think that could help overcome inexperience within the services if they just helped each other out.”
It’s about more than just raising conviction rates, she explained. It’s about the very definition of justice.
“It’s because that’s what justice means,” she said. “We want the best people, the most experienced, doing these jobs.”