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Leadership and accountability: A military lesson for police reform

Leadership and accountability: A military lesson for police reform
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Defense lawyers have a saying: “If the law is against you, pound on the facts; if the facts are against you, pound on the table.” For military defense lawyers, there is a slight modification: “Before you pound on the table, pound on the chain of command.”

Why? Because in the military, leaders are accountable for the failures of their subordinates and military juries are the harshest critics of their colleagues whose leadership failures contribute to misconduct. Indeed, the Vanessa Guillen disappearance at Fort Hood, Texas, and its subsequent fallout, is a prime and recent example of how failures at low levels of the military result in accountability at high levels.

With all the public attention focused on police reforms, as a former military officer and lawyer I find it perplexing why leadership accountability is not the central focus of this dialogue. How did a former police officer such as Derek Chauvin get to the point where he felt it was appropriate, as the prosecutor in his trial argued, to treat a fellow human being with depraved indifference? What type of training did leaders provide to former officer Kim Potter, charged in the killing of Daunte Wright, before the deadly moment of error? Where were the leaders who should have backed, but instead fired, former police officer Cariol Horne after she intervened to protect a suspect from abuse at the hands of a fellow officer?

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“Command responsibility” is a central premise of military leadership, a concept that imposes accountability for commanders when they “knew or should have known” that subordinates would violate the rules of war. It is a doctrine of imputed criminal responsibility derived from what amounts to a dereliction of leadership duty, a doctrine created by our own Supreme Court when it upheld the conviction by military tribunal of Japanese General Tomoyuki Yamashita for the murderous rampage committed by his subordinates as the Philippines fell to Allied forces in 1945.

But command responsibility means much more than a simple mode of liability. It is a manifestation of the very essence of leadership. Indeed, since 1899, international law has conditioned the “privilege” of participating in hostilities with being a member of an armed force subject to “responsible command.” In that context, the essence of this responsibility is preparing subordinates to navigate the complexity of participation in mortal combat while preserving fidelity to legal and moral limits on permissible violence. That responsibility also extends to imposing disciplinary consequences to those who cross those lines.

Policing is not war, but when large segments of our communities perceive themselves as “the enemy,” something is wrong. And the responsibility for that “something” falls at the feet of police leaders. Like the soldier in the military, our society entrusts the power of law enforcement into the hands of police officers and provides them with an analogous legal privilege or protection to engage in violence. However, this violence is justified only when genuinely necessary within the meaning of the law. If police leaders fail in their responsibility to ensure that their subordinates are prepared to navigate this complexity, no one should be surprised when individual officers abuse their power. 

Nor should anyone be surprised how willful blindness — or even worse, tacit approval — of subordinate misconduct sets the conditions for more frequent and troubling abuses of power. Indeed, ignoring such misconduct or sweeping it under the proverbial rug is among the most compelling evidence that “commanders” should have known that more violations were foreseeable.

We as a nation are long overdue for much greater emphasis on the “command responsibility” in law enforcement organizations. Scrutiny for the misconduct of an officer on the beat rarely should be confined to that individual; leaders also should be put under the microscope. And, like their military counterparts, these leaders should face consequences when it is established that their own derelictions — in training, oversight or disciplinary response — set the conditions for the subordinate’s dereliction.

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Reasonable minds may differ on what are considered necessary police reforms. But the strategic objective must be unitary: to mitigate the risk that those entrusted with immense power will abuse it. Military experience teaches us that this objective necessitates that leaders be subjected to greater accountability for the failures of their subordinates. Without this command responsibility, efforts to achieve this objective largely will be in vain.

This is not to say that all police leadership is defective; far from it. Good leaders do and will continue to develop cultures of respect for law and humanity — the type of leaders who should be celebrated and held up as examples of what good leadership means. But tolerating those who abdicate, ignore or fail to truly understand their command responsibility inevitably will corrode whatever positive impact their competent colleagues seek to produce.

Geoffrey S. Corn is the Gary A. Kuiper Distinguished Professor of National Security Law at South Texas College of Law Houston, a retired U.S. Army lieutenant colonel and Army Judge Advocate officer, and a distinguished fellow with the Jewish Institute of National Security for America. Follow him on Twitter @cornjag1.