The death of Corporal (CPL) Pat Tillman, the Abu Ghraib detainee scandal, and the Doctors Without Borders hospital strike are only a few examples of controversial and heavily criticized Army administrative investigations that drew widespread attention. The public perception that these internal investigations lacked impartiality contributed to some going as far as to call these investigations “cover ups.” Similar perceptions are not limited to high profile investigations. A typical installation legal office may encounter public criticism of seemingly routine administrative investigations concerning topics such as allegations of toxic command climate, suspected suicide, or poor treatment of wounded warriors.
This article analyzes the public’s attacks on Army administrative investigations and whether the newly revised Army Regulation (AR) 15-6 sufficiently accounts for perceived shortfalls in impartiality. Army administrative investigations suffer from outside criticism because internal investigations inherently lack a level of independence that would otherwise exist if an outside organization were responsible for its execution. Poorly executed high-profile investigations simply spotlight this lack of independence. However, the Army’s most recent updates to AR 15-6 sufficiently address many of these concerns. The updates strike the right balance between providing commanders an effective fact-finding tool and maintaining public trust in the Army by ensuring investigations are fair and impartial.
Part II of this article provides a brief overview of AR 15-6 and a commander’s authority to investigate. The second half of Part II also provides notable examples of substantially scrutinized AR 15-6 investigations. Part III discusses specific criticism of AR 15-6 related to perceived lack of independence. It also analyzes the sufficiency of the AR 15-6 updates in addressing the criticism and discusses the feasibility of measures intended to minimize lingering independence concerns.
A. Command Authority to Investigate and an Overview of AR 15-6
Army commanders possess a wide range of authorities and responsibilities which are vital for exercising “primary command authority over” their assigned units or “territorial area.” The successes and failures of a command fall squarely on the shoulders of its commander. Commanders have a duty and responsibility to maintain good order and discipline, and ensure members of their command abide by all Department of Defense (DoD), Department of the Army (DA), and command policies. It logically follows that the commander has inherent authority to investigate matters within his or her organization.
The Army has a variety of investigative organizations and investigative methods; however, the default administrative investigation procedure is codified in AR 15-6. This regulation is applicable to all levels of command and establishes the procedural framework for the initiation and conduct of “preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives.” The purpose of these procedures is to determine facts, “document and preserve evidence,” and report the results to the approval authority. AR 15-6 investigating officers (IO) are required to “thoroughly and impartially” determine and consider the facts from all relevant perspectives. The end result should be a comprehensive and unbiased investigation which provides the commander a better perspective of an issue or set of circumstances so they can make an informed decision on how to dispose of the matter.
In the past five decades, AR 15-6 has gone through a number of revisions, to include the most recent update from 1 April 2016. The latest version is a substantial revision nearly doubling the page count. While the original framework of AR 15-6 remains intact, the newest version builds on that framework to provide more clarity. The 2016 version restructures the types of fact-finding inquiries that may be conducted. It also provides revisions and more detailed instructions in a number of areas concerning appointing authority qualifications and authorities, IO qualifications and responsibilities, and the role of the legal advisors and legal reviewer.
B. Criticism of AR 15-6 Investigations
While AR 15-6 is an invaluable fact-finding mechanism for commanders, high profile Army administrative investigations tend to be intensely scrutinized and criticized by outside observers. One of the biggest post-9/11 Army controversies involved the Army’s mishandling of the reporting and investigation into the friendly fire death of CPL Patrick Tillman. A 2007 DoD Inspector General (DoD IG) report determined multiple levels of command errors in assigning administrative investigative jurisdiction and determined the first two of three AR 15-6 investigations were “tainted by the failure to preserve evidence, a lack of thoroughness, the failure to pursue logical investigative leads, and conclusions that were open to challenge based on the evidence provided.” The mishandling of these investigations greatly contributed to the perception that the Army covered up the cause of CPL Tillman’s death.
The CPL Tillman scandal was a public relations disaster not only for the Army, but also for the Bush Administration, which was simultaneously managing the fallout from the Abu Ghraib detainee scandal. Much of the criticism surrounding the Abu Ghraib scandal included the U.S. government’s investigatory efforts into detainee abuse in Iraq. Fourteen separate Army and DoD level investigations looked into the allegations of detainee abuse, yet the public believed the investigations failed to uncover the complete truth.
Another AR 15-6 investigation that drew worldwide criticism was a U.S. Central Command (CENTCOM) investigation into the accidental strike on the Doctors Without Borders hospital in Kunduz City, Afghanistan, in October 2015. Despite a thorough and timely investigation amassing over 700 pages, there was, significant international concerns about the investigation’s finding that war crimes were not committed. While numerous personnel, including one general officer, were issued a variety of potentially career-ending administrative and disciplinary actions for their involvement in the strike, many in the international community demanded an independent investigation and expressed skepticism of the U.S. Army’s ability to impartially investigate itself on the matter.
A. Independence Concerns Within AR 15-6
Public or media criticism of Army administrative investigations is usually for lack of independence in the investigative process. AR 15-6 contains significant procedural requirements outwardly conveying legitimacy in the process. However, internal investigations in any organization are still self-policing mechanisms that draw suspicion among a public that values transparency and accountability. When done well, Army administrative investigations can be an effective fact-gathering tool, which assist commanders in taking appropriate action within their ranks and answer questions from outside sources. Nonetheless, the lack of complete independence in the process is susceptible to criticism when the subject matter draws scrutiny and procedures are not followed.
Such criticism is not unique to the Army. Corporations and local government, similarly receive harsh criticism for conducting their internal investigations. Common to all internal investigations is the potential failure to uncover the full truth.
Investigations that are purely internal to the military, however competent, cannot examine the whole picture . . . . Internal investigations, by their nature, also suffer from a critical lack of independence. Americans have never thought it wise or fair for one branch of government to police itself. But that has been exactly the case in many of the abuse inquiries to date.
The primary concerns related to lack of independence in AR 15-6 investigations include the following: (1) the appointing authority’s power to define the scope of the investigation, (2) the appointing authority’s power to select the IO, and (3) the effect of Army organizational culture on the conduct of the investigation.
1. Scope of the Investigation
One of the first and most critical steps in an investigation is properly defining the scope of the investigation. A well-defined scope is imperative because it charts the course of the investigation for the IO. The scope drives evidence gathering and analysis, and the ultimate findings and recommendations provided to the appointing authority. The appropriate scope of an investigation should be defined after the appointing authority receives legal counsel, however, the power to make the final decision on the scope remains with the appointing authority.
Furthermore, these investigations are frequently used to respond to outside inquiries, especially into controversial matters; therefore, the scope educates the public on the investigation’s goal and may be one of the first yardsticks the public uses to measure the relative success of the investigation. A poorly defined scope may create a perception that the appointing authority is attempting to shape the outcome by limiting the subject matter or shielding certain people from the investigation. Such circumstances have the potential to undermine the legitimacy of the investigation.
For example with respect to Abu Ghraib, Lieutenant General (LTG) Ricardo Sanchez, the commander of Combined Joint Task Force 7 (CJTF-7),requested that the CENTCOM Commander appoint an IO to investigate allegations of detainee abuse. LTG Sanchez appointed Major General (MG) Antonio Taguba to conduct an investigation solely limited to the 800th Military Police Brigade. No other adjacent units were to be investigated despite the fact that special operations units and a military intelligence brigade were also involved with detainee operations at the prison. The narrow scope created an appearance that the Army was trying to hide unfavorable information, especially when the public discovered LTG Sanchez may have approved policies that led to widespread and systemic abuse.
2. Selection of the Investigating Officer
The next potential area of concern is the appointing authority’s selection of the IO. Army administrative investigations require IOs “be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service, demonstrated sound judgment and temperament.” The importance of IO selection is emphasized by the fact that this language closely mirrors the language found in Article 25, Uniform Code of Military Justice (UCMJ), which provides the criteria convening authorities must consider when selecting panel members for courts-martial.
AR 15-6 further requires that the IOs are “impartial, unbiased, [and] objective.” Yet, despite this mandate, legitimate concerns from an independence standpoint may still remain. The public may be concerned that an appointing authority will seek to control the results of an investigation by selecting a sympathetic IO. This perception existed with various DA and DoD investigations into the Abu Ghraib scandal. It was also present in the third AR 15-6 investigation into CPL Tillman’s death when the IO returned findings that clearly diminished the culpability of various commanders, including the appointing authority, despite logical leads that suggested otherwise.
3. The Effect of the Army’s Organizational Culture on the Conduct of the Investigation
The Army’s unique organizational cultureis another perceived obstacle to achieving unbiased administrative investigations. The Army’s strict and disciplined hierarchical structure is seen as a hindrance to an IO’s ability to be candid if doing so would jeopardize the IO’s professional advancement. This structure may inhibit IOs from pursuing logical leads when the chain of command is implicated. Furthermore, those outside the military have argued the IO’s indoctrination within the Army is an implicit and pervasive bias that could affect the outcome of an investigation.
Implied in hierarchical organizations are power relationships that are “absolute and autocratic.” As a result, this organizational culture has a tendency to “suppress subordinates from questioning, disagreeing, or raising alternative points of view” which in turn “has the potential to squash conflict and disallow dissent.” This potential danger is addressed in AR 15-6’s requirement that IOs outrank subjects of investigations; however, within a hierarchical organization problems still arise when an IO may be hesitant to express candor to the appointing authority when unfavorable or displeasing information about higher levels of command are uncovered. Honest feedback could have a negative effect on an IO’s career and may discourage a thorough investigation. MG Taguba experienced this firsthand when he opined he was “forced into retirement” by senior Pentagon officials due to his honest yet scathing report on detainee abuse. Given these concerns, there is always danger that an IO, especially a less mature and confident one, will only deliver the news he thinks his commander wants to hear. This is particularly risky when the subject matter is controversial and has the potential to embarrass the command.
An additional concern in past investigations was the perception that the hierarchical structure may effectively prevent the IO from pursuing logical leads when the chain of command is implicated in wrongdoing. In the first Abu Ghraib AR 15-6 investigation, MG Taguba quickly realized senior level officials, including the appointing authority, had knowledge of the abuse or were involved in the development and approval of policies that led to the abuse. Other DA and DoD investigations into the Abu Ghraib scandal also failed to follow the leads up the chain of command despite evidence pointing to senior leader involvement. In the third AR 15-6 investigation conducted into the Tillman scandal, the IO failed to appropriately pursue a logical lead that implicated the appointing authority in his misrepresentations concerning next-of-kin notifications to the Tillman family.
Finally, the fact that the IO works for the same institutional organization he is investigating raises suspicions on his impartiality because the Army very likely shaped his “frame of reference” early on in his career. Based on this, an IO’s frame of reference will very likely affect the conduct of the investigation and the findings and recommendations made to the appointing authority. While there is certainly a benefit for an IO to have familiarity with the organization he or she is investigating, there may be instances where an IO’s frame of reference may be difficult to overcome, especially if the IO is a more senior officer and the investigation involves new policies that may be controversial among an older generation of service members.
B. The New AR 15-6 and Its Sufficiency in Addressing Independence Concerns
Absent replacing the current AR 15-6 framework with a completely independent investigator, it is nearly impossible to eradicate all perceptions of a lack of independence in internally conducted investigations. However, the latest revision of AR 15-6 appropriately addresses and mitigates many concerns discussed in the preceding section. Specific language was added to AR 15-6 that provides disqualifying criteria for appointing authorities who appear to be biased or have a conflict of interest and the required legal support during all stages of the investigation is vastly improved.
1. Addressing Appointing Authority Bias and Conflict of Interest
Under the previous version of AR 15-6, the only qualifying criteria for an appointment authority concerned the officer’s grade and whether they were in command. Nowhere did the regulation comment on conflict of interest or bias as disqualifying factors.
Contrast this with the latest version of AR 15-6, which retains similar guidance, but expressly forbids any “individual who is reasonably likely to become a witness to an inquiry, investigation, or board” from appointing one. The regulation further states any “individual who has an actual or perceived bias for or against a potential subject of the investigation, or an actual or perceived conflict of interest in the outcome of the investigation, should not appoint an inquiry, investigation, or board.” When bias or a conflict exists the “potential appointing authority” is required to forward the subject matter to the “next superior commander or appointing authority” who will decide whether the subject matter needs to be investigated. The regulation provides a couple examples of actual or perceived bias and conflicts of interest.
The revised AR 15-6 also includes new language expressly requiring immediate forwarding of allegations of “senior official” misconduct to the Investigations Branch of the DA Inspector General (DAIG) and that the authority to appoint an investigation into senior officials is retained at the highest levels of the Army. While this is not a change in policy, the restatement of reporting requirements per DoD Directive vastly reduces the potential for errors in assigning investigative jurisdiction for senior official misconduct, bolstering public confidence in the investigatory process.
The extent of these revisions makes it reasonable to conclude the drafters intended to address the independence concerns raised in high profile investigations of the past decade. While an honest and self-aware appointing authority may preemptively recuse himself after identifying his own biases and conflicts of interest, the responsibility to identify these issues and enforce the regulatory standards falls on the command’s legal advisor. The new AR 15-6 includes more guidance and a vastly expanded role for those providing legal support.
2. Increased Role for Judge Advocates
In practice, legal advisors always played an important role in administrative investigations; however, the previous version of the regulation provided substantially less guidance and a less defined role for attorneys. For instance, it was standard practice to formally assign legal advisors for informal investigations, yet the prior version of AR 15-6 did not require a formally appointed legal advisor. Furthermore, while legal reviews were done for nearly all administrative investigations, the previous version of AR 15-6 did not make this a blanket requirement.
The latest AR 15-6 enhances the judge advocate’s role. Not only is the regulation filled with instructions requiring the appointing authority and IO consult with the servicing staff judge advocate or assigned legal advisor, there is also an entire section in Chapter 2 devoted to outlining the scope and stages of legal support. In particular, paragraph 2-6, emphasizes judge advocate involvement at all stages of the investigation to include pre-appointment, conduct of the investigation, and the legal review of the completed investigation.
During pre-appointment, the servicing legal advisor is required to advise the appointing authority on selecting the investigatory method, regulatory requirements, selecting the IO, scope of the investigation, and any other necessary “preparatory guidance.”
Additionally, every IO is required to have a legal advisor who will provide advice on any issue the IO is concerned with for the duration of the investigation. The legal advisor shall help the IO “develop an investigative plan,” identify relevant witnesses, generate witness questions, ensure the rights of subjects are protected, verify all appointment requirements are met, and “ensure the evidence supports the findings” and the “recommendations are logically related to the findings.” The legal advisor should review the final product before it is submitted to another attorney for legal review.
Finally, the legal review’s scope expanded. It includes the prior requirements and adds that the reviewing attorney ensures “the investigation does not raise questions that it leaves unanswered; anticipates future uses of the investigation; resolves internal inconsistencies; makes appropriate findings; and make recommendations that are feasible, acceptable, and suitable.”
This widely expanded role for judge advocates in AR 15-6 reflects the importance of an overseer or protector of the administrative investigation process. The Judge Advocate General (TJAG) is the proponent of AR 15-6, and therefore it is only natural for the official oversight responsibility to fall on judge advocates. Yet, aside from this formal designation, as a practical matter, judge advocates are the officers best positioned to navigate such a task. As a member of the commander’s personal and special staff, the servicing judge advocate has a direct line of communication to the commander. The legal advisor is traditionally one of the few staff officers able to speak more candidly with the commander despite the Army’s hierarchical structure. Therefore, the judge advocate should have the access and rapport to appropriately advise the commander on the requirements of AR 15-6 to include the second and third order effects of failing to abide by bias and conflicts of interest disqualifiers.
If a commander refuses to follow AR 15-6 requirements, the judge advocate has a variety of tools at their disposal to rectify this issue and protect the best interests of the Army. First, judge advocates are subject to technical supervision by a supervisory judge advocate outside the traditional chain of command. In the event they cannot affect the necessary change within the traditional chain of command, the unit’s legal advisor has support from other judge advocates who may provide advice on how to proceed with the commander or, if absolutely necessary, may even go as far as addressing the issue with the next superior level of command.
Additionally, unlike other staff officers, the judge advocate is beholden to both Army professional responsibility regulations and civilian professional conduct requirements. The judge advocate’s client is the Army, as officially represented by the commander. When a commander decides to do something that may substantially injure the Army, the judge advocate must remind the commander that they should reconsider their decision. If that does not work, they may be obliged to consult their technical chain of supervision in order to preserve the interest of the Army. These ethical obligations are another reason why the judge advocate is the best-positioned officer on the staff to hold the command accountable to the requirements of AR 15-6.
In addition to advising the appointing authority, another critical area of judge advocate involvement is providing legal advice to the IO. The IO’s legal advisor can positively influence an investigation by providing the IO perspective and guidance when independence concerns emerge. If an IO discovers the appointing authority is implicated in the investigation, the legal advisor can pass this information to their supervisory judge advocate who may address it with the appointing authority’s next superior commander. This provides the IO an outlet to be candid and reveal critical information affecting the independence of the investigation without the fear of directly confronting the appointing authority and jeopardizing their career.
Moreover, as an objective party, the legal advisor may be able to combat an IO’s frame of reference that is improperly shaping or affecting the investigation by providing another perspective. For example, educating an IO on future use and disclosure of the investigation pursuant to the Freedom of Information Act (FOIA) should help the investigator stay within his scope and write to a specific audience by limiting redacted material. If the IO’s frame of reference is distorting the investigation to a point where it constitutes actual or implied bias, the legal advisor can immediately identify this and address it with the appointing authority and technical supervision to determine if another IO needs to be appointed. This expanded role affirmatively empowers the legal advisor to be a proactive referee making the hard calls on sensitive issues.
Finally, it is important to note that AR 15-6 provides an additional check on the process by requiring a legal review of all investigations conducted pursuant to the regulation and strongly encouraging the review to be done by an attorney who has not already provided legal support to the investigation. This provides a second set of legally trained eyes to review the investigation and look for any deficiencies or concerns that may affect the future use of the investigation.
The value judge advocate oversight provides to the process is contingent upon one thing: well-trained and competent attorneys who are up to the task of making hard calls. Given the increasing responsibilities attorneys have in the AR 15-6 process, it is essential that all judge advocates are properly trained on their roles in the process and that they have strong support from the technical supervision chain.
3. Additional Considerations
Despite the positive changes in AR 15-6, there are people who will never be satisfied with Army administrative investigations because they inherently lack total independence. For these skeptics, the only way to gain their confidence is to use an investigatory body functionally independent of the organization that is under investigation. However, it is not in the interest of the Army to remove the AR 15-6 process from command authority, nor would it be prudent. While much consideration is given to public perception of the administrative investigation process, it is critical to keep in mind the primary purpose of AR 15-6: to provide commanders an efficient fact-finding method so they can make informed decisions on how to address matters within their commands and maintain good order and discipline. Command authority should not be minimized merely to gain a modicum of public confidence, especially when the process is sound. Highly sensitive investigations or ones likely to draw national media scrutiny are already withheld to higher levels to minimize the risk of mishandling by less experienced commanders and IOs. As it stands, the latest version of AR 15-6 is more than sufficient for achieving its purpose.
In Keith Rohman’s case study of the flaws in the Abu Ghraib investigation, he suggests hiring subject matter consultants as members of the investigative team, which is similar to corporate practice when conducting internal investigations into employee misconduct. While this may provide an outside perspective, any gains in public perception of credibility in the process may only be incremental and the fact that the consultant is paid by the Army may undercut any desired appearance of independence.
An effective way to mitigate public misperception is by synchronizing efforts between judge advocates and public affairs offices (PAO) to ensure accurate messaging and expectations to the public. As seen with the Doctors Without Borders incident, mixed messages may breed skepticism. Judge advocates must be proactive and work with commanders and PAOs to ensure expectations are appropriately set and managed throughout an investigation.
While the Army suffered embarrassment from a variety of administrative investigations, it also learned fromthese mistakes and took valuable steps forward, namely, addressing the fundamental independence concerns in AR 15-6. Although it is impossible to eradicate all perceptions of a lack of independence, the latest regulatory update is better equipped to mitigate perceptions of bias, conflicts of interest, and other issues inherent to internally conducted investigations. Ultimately, the judge advocate is the key to combatting public misperceptions.
The updates, however, are only as effective as the judge advocates shepherding the process. The JAG Corps must ensure its attorneys are adequately trained to fully understand their vital roles throughout the investigatory process. Judge advocates must know the regulation, anticipate second and third order effects that may arise from the investigation, have the fortitude to provide candid advice, and actively ensure accurate information is disseminated. With these regulatory updates, the Army is in a better position to prevent the mistakes of the past and maintain the trust of the American people.