THE BLOG
02/29/2016 02:56 pm ET Updated Feb 28, 2017

Victimized by the Administrative State? A U.S. Army Star Chamber

"Hello, we're calling about your son Timothy"
A quickening of the pulse.
"We have received an anonymous report that you allegedly abused him"
Heart exploding--a choking, speechless realization that your world has just collapsed.

This story is deeply personal (full disclosure), but it sheds light on a larger national concern: administrative overreach. As the country lurches ever onward toward greater centralized bureaucratic control, the foundational precept of Rule of Law is quietly being replaced with Rule of Rules. Alexis de Tocqueville termed it "administrative despotism," and the shoe fits. Much ink has been spilled about the pernicious nature of administrative overreach within the executive branch (EPA overreach, BATF gun-running, etc.), but an obscure program buried in the bowels of the U.S. Army demonstrates that the trend is not isolated only to the executive, but has begun to seep into the legislative branch as well.

Let's say, for instance, that you were in a child custody dispute in civil court. You've tried everything, but the courts keep finding that both parents are equally entitled to parenting, and joint custody is the only lawful and equitable option. Desperate, you decide to pull a neat little trick:
It is possible, under the U.S. Army's congressionally mandated Family Advocacy Program, to initiate an underhanded chain of events that will ultimately give you a credible and perhaps overwhelming advantage in your custody bid. You can turn the opposing parent into a monster, complete with the daunting imprimatur of the Department of Defense, without ever having to resort to tedious procedures like providing proof or Due Process.

It begins with nothing more than a rumor and a phone call.

Here's how it works:
You make an anonymous report to a state-based Child Welfare office, suggesting that your opposing parent has engaged in some form of abuse. The report, if it concerns the child of an active-duty service member, gets funneled to the Family Advocacy Program (FAP) operating under guidelines of the Department of Defense (Directive 6400.1). This anonymous allegation is reviewed by a team of social workers and is immediately classified into a "dark zone" that cannot be pierced by any legal review. A social worker will call you in for an interview, along with the child you've (presumably) prepped to be the "alleged victim." You and the child each provide testimony, and you will have begun the "corroboration" process of an allegation you invented. No one is the wiser.

Then, a month or more after you've laid the groundwork, your opposing parent will first be notified. She (or he) will be surprised to learn that she is not allowed to see what the allegations actually are. Nor will she be allowed to know who made them. Nor will she be allowed to see the "alleged victim's" testimony nor your testimony. So far, so good.
The crowning beauty of the trick, however, is that the Army provides a perfect little Star Chamber to give your germ of an allegation the kind of formal status it needs to grow into a full-fledged "fact."
A Case Review Committee (CRC) convenes a few days after your opposing parent first gets notified. The CRC is a black hole; the "alleged abuser" cannot know whom it consists of, where it meets, or how it deliberates. The "abuser" is not allowed to attend, nor is her attorney or any other defense representative. The CRC, meanwhile "...uses a 'preponderance of the evidence' standard to determine if an abusive incident 'met criteria' under Army defined criteria for abuse or neglect." (FAP Interim Guidance and Information Papers, A.R. 608-18).

Did you catch that? It was subtle, but this is how administrative despotism works: "...to determine if an abusive incident 'met criteria'..."
The job of the CRC is not to determine whether the incident actually happened (which would necessitate all kinds of uncomfortable legal deliberations, replete with time-consuming discovery, evidence, and oversight) but simply to determine whether your anonymous suggestion of "abuse" would meet administrative standards if it had happened. Fait accompli. The allegation has undergone a curious administrative metamorphosis from anonymous suggestion to "report" into an "incident" (specifically between page 1, section b and page 2, section f in the regulation; FAP/CRC Information Paper, 8 August 2008).

If the Committee determines that the "incident" meets its criterion for abuse, it "develops an intervention/treatment plan for all individuals involved." This can consist of hundreds of hours of various parenting, anger-management, and other "supportive services." The little fib you've laid has now hatched into a living, breathing, administratively incubated fledgling. One more step and it soars from it bureaucratic birthplace into the halls of justice.

The "incident," the "abuser," and any "associated treatment" all enter what is called the Central Registry (CR), a restricted database that is legally subject to subpoena. Even the incidents that "did not meet criteria" are saved. "Met criteria" incidents, meanwhile, are flagged as a "positive CR check." Positive CR checks "may affect the approval of an offender's application to work with children on a military installation or eligibility of a family to provide child or foster care." Moreover, the Committee can request that a positive CR check be entered in the abuser's permanent medical record.

At this point the fabrication enters stage right in civil court as a vetted, third party confirmation of the opposing parent's insufficiency as caregiver. What judge is likely to consider, ceteris paribus, that the parents are equally capable when one of the parents has a documented, DOD-stamped black mark against her name? After all, it's in her medical records, she has undergone intensive "treatment" classes, and she's not even allowed to work in a childcare facility. Who would want that parent to have joint custody? The invented allegation has been laundered through an extra-legal administrative process that turns imagination into legal reality. The administrative process has outflanked Due Process, and that, dear friends, is how it's done.

Review
Now, obbviously, no Army program exists without some form of oversight. But in classic administrative form, the review process itself is self-rectifying. An "abuser" can indeed request reconsideration (once), but the review will only consider whether the Case Review Committee followed its own rules and procedures properly. The "abuser" can question whether the Committee "was inaccurate in determining an incident of abuse" (one wonders why he or she was unable to do so at the outset....), but the burden of proof has now shifted onto the accused to bring evidence why she (or he) did not commit the "abuse." QED.
If you felt that such a perversion of justice could hardly survive the scrutiny of an Inspector General inquiry, you'd be surprised again. The IG can only review the case to be sure that the Committee followed all of the established program protocols and guidelines properly. It is not allowed to ask the larger question--that is whether the program's protocol itself is improper. It is a hall of mirrors, with justice distorted in every view.

Bias
Because the process is so intentionally obscure, it is wide open to contamination by bias. If you happen to be friends with the primary investigating social worker, all the better, because it is practically certain that nobody will ever find out your obvious conflict of interest because no one is allowed to know who attends or briefs the closed-door Case Review Committee. Moreover, the Committee is supposed to be "advised" by the commander of the military member of the family involved. In a large organization, this might be a generally stabilizing influence. But let's allow ourselves to imagine a worst case scenario: if a military member instigates an anonymous report qua "incident," and his (or her) commander happens to be one of, say, three officers in the entire unit, and they are all social intimates, then the likelihood is very high that the commander would give biased input to substantiate the "abuse" for his friend's sake.

What has happened is that the U.S. Army has established an extra-judicial administrative protocol that is ripe for misuse. Like Jacobin tribunals of "Enemies of the People," it declares administrative immunity from standards of justice because the stakes are so supposedly high. Likewise here: child welfare is such an urgent, emotional issue that it becomes easy to justify the dismissal of regular standards of jurisprudence. It's a small (though vicious) example of a larger trend: the administrative process is given increasingly extraordinary power, including the power to destroy innocent lives.

As the head goes, so goes the body politic. "Administrative despotism" has become endemic within the regulatory state, take heed.
You're next.