The Best Defense

Accountability, Gen. Amos? How about doing the right thing by Maj. Weirick?

By L. Lee Thweatt
Best Defense guest columnist

We recently saw General Amos relieve two of his commanders for failing to protect an airbase in Afghanistan.  He was right to do so, and I'm sure it was difficult to deliver such news to his colleagues of so many years.

I wonder now, though, if General Amos has the self-discipline to hold himself accountable, as well, in a matter involving military justice and what certainly appears to be an orchestrated effort by the commandant and his top legal advisors to burn and discredit a Marine Corps officer for filing an inspector general's complaint which exposes disturbing misconduct at the highest levels of the Marine Corps.

You are by now familiar with sad episode of Marines urinating on a dead Taliban member in Afghanistan.  Those events were photographed and filmed.  The misconduct involved was, of course, sent to senior Marine Corps commanders for handling and disposition.  Whatever misjudgements committed by the Marines depicted in those images (and from the photos it appears there were many), they were still entitled to fair treatment and due process as the appropriate punishments were considered.  After all, some charged with misconduct had been wounded in combat on multiple occasions, nonetheless re-enlisting to the dangerous and hard work asked of them and their brethren in faraway lands.  Their commitment to one another continues to amaze.  Because we know by now that Marines do not run across fields of fire to serve notions of baseball, apple pie, and the American flag.  No sir, they do not.  Not really.  They do that most of all for one reason:  for each other.  That is why they fight:  for each other.  Even when they do things like this that we all wish they would not do.    

My long-time friend and colleague Major James Weirick was assigned as a deputy staff judge advocate to help a lieutenant general navigate the disposition of these difficult cases.  In the conduct of that job, to his chagrin, he ultimately observed and uncovered a pattern from the commandant and his senior lawyers revealing unlawful command influence, a failure to comply with legal discovery requirements, and preferential treatment given to the son of a former commandant while other Marines were placed on legal hold.  Without valid legal justification, the commandant and his senior advisors refused to turn over documents establishing all of this misconduct.  So, Major Weirick did what he was trained to do, and he spoke truth to power in order to compel them to comply with the rule of law.  Specifically, he filed a complaint with the inspector general of the Department of Defense detailing their coordinated efforts to hide what had occurred.  After the filing of that complaint, relevant documents were finally produced, although not without an effort by the commandant to first have the documents improperly and unlawfully characterized as "classified" to prevent their disclosure to inquiring criminal defense attorneys.  Additionally, a lieutenant general has signed a sworn affidavit detailing that the commandant told him to "crush" the Marines involved in these desecration cases.  For years, military appellate courts have deemed such directives from commanders as "unlawful command influence" decrying it as the "mortal enemy of military justice."  And as well they should.  Nobody, not even and especially the commandant of the Marine Corps, is permitted to deprive a Marine of due process by seeking pre-determined outcomes in a military justice setting.  No matter the conduct, fairness must rule the process.  Otherwise, it is a sham.

As a reward for his moral courage, Major Weirick was relieved of his duties, and yesterday was compared by the commandant's top civilian attorney (Robert Hogue) to the mentally unstable mass murderer who killed 12 people recently in the Washington Navy Yard.  I have written the general counsel for the Department of the Navy in protest.  My email to him has the hope of prompting what thus far has been completely absent from the commandant and his most senior legal advisors:  accountability.  The very thing all Marines are taught, and that which, on this issue, they have themselves avoided and worse, they have now improperly and wrongly assigned to someone else.  It is shameful, and given the corrosive chilling effect it can have on the ability of junior officers across all disciplines to speak with candor to senior commanders, I hope it is something you will look into as you continue to hold military leaders accountable going forward.  Because we all ought to expect that the commandant of the Marine Corps and his lawyers will serve the rule of law rather than trample upon it, and hang another Marine out to dry for doing the right thing.

L. Lee Thweatt is a former Marine Corps judge advocate, honorably discharged at the rank of captain, now in private law practice in Houston.  While on active duty, he served as a trial counsel for various units within the 1st Marine Division at Camp Pendleton.

U.S. Marine Corps

The Best Defense

'Civilian' faculty in professional military education: Just what does that mean?

By John R. Schindler and Joan Johnson-Freese 
Best Defense guest columnists

One of the perennial tensions in Professional Military Education (PME) is the role of civilian faculty at DOD learning institutions. Although all PME institutions employ civilians to teach, the specific part they play varies widely across colleges. While our own Naval War College employs a considerable number of civilians, some NWC teaching departments have few, and there is a spectrum of "types" within the general category of "civilian professors."

This issue was highlighted in a recent exchange on Best Defense about the Army's Command and General Staff College (CGSC) at Fort Leavenworth. Professor Nicholas Murray's commentary revealed how CGSC's schedule is configured to the detriment of learning, and does not meet the real-world standards of any respected graduate-level academic program. Murray is a civilian academic with a Ph.D. in history from Oxford, and it's clear that his op-ed rankled some feathers in Kansas.

A response came quickly from Steve Boylan, a retired Army officer who serves on the CGSC faculty, who maintained that the institution is doing a good deal better than Prof. Murray had portrayed. While asserting that CGSC is getting along fine -- everything being "fine" is a common PME refrain -- Boylan made an odd assertion. He stated that the institution -- which, after all, bills itself as a college -- isn't really like civilian graduate schools, and perhaps should not be compared to them, as Prof. Murray had done. 

Then came Boylan's most interesting admission, that the CGSC faculty is "a mix of active-duty officers and civilians (civilians are usually but not always retired lieutenant colonels and above)," which is more revealing than he perhaps intended.  All war colleges have, in reality, several categories of faculty: serving military officers, former military officers now working as civilians, security practitioners with varying levels of academic training or experience, and civilians who possess academic qualifications (i.e. a Ph.D. or relevant terminal degree) and a professional record comparable to academics in civilian institutions. While there are exceptions, such as retired military officers with substantive Ph.D.s in the fields they are teaching and/or a strong research and publication record, they are relatively rare in PME. Given that Boylan's bio lists no experience teaching in higher education, and no terminal degree, one wonders his ability to assess the caliber of civilian faculty, much less how CGSC compares to civilian graduate schools.

Categorizing all non-active duty faculty as "civilian" faculty poses problems, since many of the "civilian" faculty are such only in a narrow, HR sense of the term, since they lack minimum qualifications to be teaching in any graduate-level program, and many undergraduate programs. Clearly, there are areas of study in PME institutions, perhaps most often in institutions like CGSC, such as military operations, defense budgeting, and the DOD planning process, where civilian academic skill sets do not fit the bill and retired officers fill those niches well. But the proportion of individuals with those skill sets versus academic credentials becomes important when PME institutions compare themselves to civilian graduate schools, for the purposes of such occasions as inspections, including schools such as Yale. There is clearly a need for the Pentagon to examine what being a "civilian professor" at our war colleges actually ought to mean.

Relatedly, the matter of tenure enters as a touchy subject because here, too, there is no standard policy across PME. In the Navy there is the oddity that both the Naval Academy and the Naval Postgraduate School grant tenure to accomplished civilian faculty while the Naval War College does not. It considered a tenure policy a few years ago, and shelved the idea when retired military faculty objected to tenure qualifications they were unlikely to reach, but ostensibly is preparing to consider it again. The Air War College has flip-flopped on a tenure policy in recent years, including once giving tenure-track faculty the draconian option of giving up their tenure-track contract, or receiving a one-year contract -- with termination implied. It is difficult to explain, save in the narrowest HR sense, why some PME institutions grant tenure and others do not. It's clear that tenure ought to exist at any institutions that want to bill themselves as being on a par with civilian graduate schools. Moreover, tenure has a role to play across PME, one that occasionally bubbles to the surface.

Take the recent case of Bruce Fleming, professor of English at the Naval Academy. Fleming has been at Annapolis for a quarter-century and has a well-honed reputation as a gadfly, having written extensively, and not always in a complimentary fashion, about USNA's educational shortcomings -- something that, as a tenured professor, he has been free to do. Professor Fleming claimed that he was denied a raise by the Naval Academy in 2010 after publishing an unflattering editorial titled "The Academies' March Toward Mediocrity" in the New York Times. That claim was validated by the U.S. Office of Special Counsel, and the Naval Academy ordered to pay him a settlement. More recently, Fleming was suspended by the USNA for two days while he was under investigation when two female midshipmen objected to a poem he used in class.

The case remains under investigation, but Fleming maintains that Academy leadership is out to remove him, and his own department prevented this. He is fighting back, again filing a complaint with the U.S. Office of Special Counsel, accusing USNA leadership of bias and misuse of sexual harassment rules to suspend him. Regardless of what happens in this matter -- we are staunch defenders of academic freedom in PME though we have no particular knowledge of this case nor do we know Prof. Fleming -- it's likely that Prof. Fleming only still has a job because he is tenured. It's safe to say that at any PME institution that hires its civilian faculty contractually, like our war colleges, his contract may not have been renewed, given his history of speaking out publicly about USNA issues. Though you would like to think otherwise, individuals like Professor Murray at CGSC sometimes bravely speak out at their own peril if administrators are thin-skinned and status-quo oriented.

Faculty tenure is important not just so that faculty can speak out regarding institutional shortcomings, but first and foremost to allow faculty to challenge students in classrooms without fear that bruised student egos will result in poor evaluations that can cost them their jobs. It is the specific job of faculty to challenge students, to make them defend their views, and challenge them with new, sometimes uncomfortable perspectives. Administrative fears ought not to be allowed to interfere with what is best for the students and therefore for the nation, which is a real consideration given PME's mission of educating our military leaders.

Does the Pentagon want its PME institutions, especially its war colleges, to be comparable to civilian graduate programs, as it says it does? If that's the case, it would be wise to better define who exactly are "civilian professors," as well as the hiring and retention rules they are employed under. Given that all PME institutions report to the Pentagon, these rules ought to be the same across the board as well. These would be excellent steps toward making PME better for its students and for the nation, across the board.

Joan Johnson-Freese is a professor of national security affairs, and former department chair, at the Naval War College in Newport, RI, and authored the 2013 book Educating America's Military. John R. Schindler is a professor of national security affairs at the Naval War College and a fellow of the International History Institute at Boston University. The views expressed in this article are those of the authors alone and not of the Naval War College, the Department of Defense, or the U.S. government.

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