On a recent episode of the popular Freakonomics Podcast, Bilecki’s very own Ben Gold had an opportunity to highlight one of the most common logical fallacies used by military prosecutors to ruin the lives and careers of good men and women in uniform. Namely, he took to task the all too common “slippery slope” argument. Now, if you’ve been in the military for any length of time, you know exactly how this goes. Some jacked up supply SNCO sees a Marine with his hands in his pockets on a cold day in the field and acts like that singular act will lead to the decimation of the entire regiment in combat. Certainly, military discipline and order has its place and rightful use. If that SNCO chews out the Marine or gives him next to last firewatch, then it is generally no harm no foul and par for the course in military life.
However, when the slippery slope rears its ugly head within the military justice system, a minor infraction of the UCMJ turns into a career Marine or service member losing their retirement and career. It is all based on the slippery slope fallacy that if we allow any infraction to go unpunished to the most severe degree, then all military order breaks down. It’s just not true and military prosecutors will use this slippery slope argument to ruin the lives of some of the finest men and women we have ever known. We know this to be true because on more occasions than we can count, they called on Bilecki to step in and save the day. With your permission, we’d like to discuss what court martial lawyer Ben Gold was bringing to light and just what you can do to fight back.
What An Appropriate Use Of Slippery Slope Looks Like In The Military Justice System
During the podcast, Gold highlighted that while studying for the LSAT he would go back and look at why he got something wrong. He would discover that he was taught that the slippery slope was a logical fallacy. Just because X and Y happened, that doesn’t mean Z is guaranteed to ensue. However, the guests on the podcast also pointed out that there are indeed some slippery slopes for which we should exercise caution. In other words, there are times where the slippery slope argument is in fact a good and logical argument.
In military culture, drinking alcohol is as ubiquitous as camouflage and firearms. Both namesake Tim Bilecki and Ben Gold served in the military and they can attest to as much. Consequently, if NCOs and officers failed to punish service members missed formation due to being drunk or perhaps tried to qualify on the rifle range with a fifth of Jack right beside them, the alcohol itself is going to take over.
Military leadership must set some boundaries around the use of alcohol in the military or alcohol is going to lead to the total breakdown of military order and discipline. In fact, this is exactly what we are seeing within the Russian military right now during the war in Ukraine. The Russian military failed to set such boundaries and Russian soldiers are drinking vodka on the frontlines like it is water. That’s aiding the Russians demise and we can see that the slippery slope argument is aptly applied in this case.
What A Terrible Application Of The Slippery Slope Argument Looks Like Within the UCMJ
Just take one of our favorite scenes from the beloved Band of Brothers series which is, in fact, a documented part of military history. Captain Sobel is berating Lieutenant Winters over missing a courier message about a change in schedule for latrine inspections. Winters tells him that the family he was housed with had no phone and no courier found him. Soble tells Winters that it doesn’t matter, if he lets his own XO go unpunished, it would lead to a total breakdown of order. Namely, the slippery slope. We all recognize that wasn’t justice, but that didn’t hinder Soble from sticking to that logical fallacy.
Now, let’s talk a bit about what we see within the modern U.S. military and its fickle application of the UCMJ. Let’s consider a scenario: a highly respected Non-Commissioned Officer (NCO) unintentionally makes a distasteful remark about another service member’s attire in the presence of a junior female enlisted member. The thought among the current leadership is that if we allow such inadvertent comments to go unpunished, that NCO will rape a junior service member someday. So, let’s take his rank, pay, career, retirement and put him in prison because if we don’t, well, it’s a slippery slope.
We wish we were kidding with these examples, but if you don’t like those, just ask for another and we’ll pull one of countless examples from our rolodex of the slippery slope of injustice. Lives ruined, careers destroyed, families torn apart and retirements ripped at the last minute from men and women who justly earned them. It’s not right and it sure as hell is not justice.
Not Every Violation Of The UCMJ Should End A Career
This might come as a shocking admission from a distinguished criminal defense law group, but we are happy to admit that we defend some very guilty individuals. It’s true and we don’t hide it. That’s because when an E-4 knowing engages in a consensual relationship with an E-3 from another unit, they have indeed violated the UCMJ. However, when that E-4 is charged with rape after they have been broken up for 6 months, the game changes.
That NCO may very well have violated the UCMJ, but he’s didn’t commit sexual assault. Moreover, when the charges come up because that E-3 is now in her own trouble with the UCMJ and recognizes that allegation will save her, it becomes a grave injustice. That E-4 is deserving of a staunch military court martial defense, despite the fact that he is guilty of fraternization. Why, because it’s not sexual assault.
Military prosecutors operate under the slippery slope fallacy that if we allow any sexual misconduct to go unpunished to the most severe degree that it will result in debauchery unseen since the Roman Emperor Caligula’s famous orgies. It is just not true. You can punish guilty service members commensurate with their offense and keep them in the fight for this nation’s security. You don’t have to make that young man register as a sex offender for the rest of his life. You don’t have to ruin his life over a consensual relationship gone bad in his early 20’s.
Why Attorneys Tim Bilecki and Ben Gold Chose To Get Into This Fight
At the beginning of the podcast, Gold disclosed that despite his prior service as a Navy Surface Warfare Officer, he didn’t want to join the military justice system after law school. He saw the flaws and thankfully for good men and women in uniform, Gold decided to stand up for them against that flawed system. Squarely in his sights to dismantle was the slippery slope fallacy and disarm military prosecutors from the tool they have used to ruin the lives of so many.
Tim Bilecki was a senior defense counsel for the U.S. Army JAG program and as a JAG defense attorney, he could testify how the military justice system ties the hands of the defense and gives prosecutors every tool available. Reminiscent of the scene from the Movie Gladiator where Maximus was to face the prior gladiator champion while tigers and lions were unleashed upon him. It is not a fair fight between JAG defense attorneys and military prosecutors.
When Bilecki left the military, he decided that he would have his vengeance on military prosecutors, in this life or the next. He has taken the fight straight to the heart of the military justice system on behalf of the average service member. He doesn’t have to worry about his own military career and as such, he will shred any witness the prosecution brings to the stands, regardless of how many stars are on their shoulder.
The slippery slope is just one of many fallacies the military justice system uses to ruin lives, but thankfully both Bilecki and Gold are here to step into the fray. If you want to check out the Freakonomics podcast that discusses the slippery slope fallacy, you can do so here. If you’re the victim of the slippery slope fallacy or any other right now and you’re facing a monumental fight with the UCMJ, reach out to us and get us into that fight on your behalf.