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Obama Words on Military Sexual Assault Backfire

President Obama is rightly outraged by a wave of sexual assaults in the military. He unwittingly made them harder to prosecute.

A month ago, Doug Mataconis wrote about a military judge ruling that Obama’s declaration that those who commit sexual assault should be dishonorably discharged amounted to undue command influence. A wave of similar rulings has ensued.

NYT (“Obama Words Complicating Military Trials“):

When President Obama proclaimed that those who commit sexual assault in the military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” it had an effect he did not intend: muddying legal cases across the country.

In at least a dozen sexual assault cases since the president’s remarks at the White House in May, judges and defense lawyers have said that Mr. Obama’s words as commander in chief amounted to “unlawful command influence,” tainting trials as a result. Military law experts said that those cases were only the beginning and that the president’s remarks were certain to complicate almost all prosecutions for sexual assault.

“Unlawful command influence” refers to actions of commanders that could be interpreted by jurors as an attempt to influence a court-martial, in effect ordering a specific outcome. Mr. Obama, as commander in chief of the armed forces, is considered the most powerful person to wield such influence.

The president’s remarks might have seemed innocuous to civilians, but military law experts say defense lawyers will seize on the president’s call for an automatic dishonorable discharge, the most severe discharge available in a court-martial, arguing that his words will affect their cases.

“His remarks were more specific than I’ve ever heard a commander in chief get,” said Thomas J. Romig, a former judge advocate general of the Army and the dean of the Washburn University School of Law in Topeka, Kan. “When the commander in chief says they will be dishonorably discharged, that’s a pretty specific message. Every military defense counsel will make a motion about this.”

At Shaw Air Force Base in South Carolina last month, a judge dismissed charges of sexual assault against an Army officer, noting the command influence issue. At Fort Bragg in North Carolina last month, lawyers cited the president’s words in a motion to dismiss the court-martial against Brig. Gen. Jeffrey Sinclair, who is accused of forcing a lower-ranking officer to perform oral sex on him, among other charges.

In Hawaii, a Navy judge ruled last month that two defendants in sexual assault cases, if found guilty, could not be punitively discharged because of Mr. Obama’s remarks. In Texas, a juror was dismissed from a military panel on a sexual assault case after admitting knowledge of the president’s words. In Alexandria, Va., Eric S. Montalvo, a former defense counsel in the Marine Corps who is now in private practice, has cited the president’s words in motions to dismiss two sexual assault cases, one against an Army sergeant and the other against a Navy seaman.

“Because the president is the commander in chief, it’s going to come up in basically every imaginable context in sexual assault cases,” said Eugene R. Fidell, who teaches military justice at Yale Law School.

Obama is not only a graduate of Harvard Law School but taught for years at the University of Chicago Law School, two of the most prestigious legal institutions in the country. Nor is he at this stage a neophyte; he’s been president four years. Surely, he should have understood the impact of his words here.

Alas, this is a case of his multiple roles being in conflict. As the nation’s head of state and as the Democratic party’s leader, he had to say these things about the outrage of sexual assault, let alone that committed by top officers. As commander-in-chief of the armed forces, it was also imperative to make it clear that this behavior can not and will not be tolerated. But that role also brings with it a responsibility to not prejudice trials that would come before military juries. He failed in that responsibility.

The commander-in-chief can—and indeed must—demand that his subordinates follow the Uniform Code of Military Justice and order commanders to vigorously enforce parts of that law that are being ignored. What he can not do is issue statements that those accused of crimes are guilty or  urge specific punishments; that can quite reasonably be taken as a direct order.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Tyrell says:

    There was a big flap about years ago when President Nixon made some comments about the guilt of Charles Manson and the possible effect it could have on him getting a fair trial, even though everyone including cave dwellers in Mongolia knew that guy was guilty. Nixon is long gone, but Manson is still around.

    Like or Dislike: Thumb up 1 Thumb down 0

  2. Butch Bracknell says:

    Lets cut the President a little slack here. Con Law professor or not, UCI is not a universal legal concept: it is LIMITED to the military law context only, and there’s no reason he should have really foreseen the impact of his words. There is simply no analogue in civil law. The Governor of Texas can say in a press conference “every murder conviction should result in a death sentence” and it introduces NO legal error. The military system is different because jurors are also reflexive orders followers and there is a huge risk their tendency to follow orders will overcome their duty to exercise independent judgment as a juror. And the President made these remarks extemporaneously, sort of blindsided by a reporter’s question as he met with a foreign leader. If this was said at a press conference ABOUT MILITARY SEXUAL ASSAULT it would be less understandable. If there is a failure here — IF — it’s with DOD for failing to foresee this very scenario and failing to send over a white paper to the President’s communications gurus. Like they would have read it.

    Like or Dislike: Thumb up 2 Thumb down 1

  3. edmondo says:

    and he has “unwittingly” not prosecuted any Wall Street wrongdoing. And he has “unwittingly” put our healthcare into the hands of for-profit companies and has “unwittingly” made us a nation of part-time workers while “unwittingly” monitoring billions of phone calls.

    At some point we are going to have to admit that this “transformational figure” is nothing but a statist who is continuing the policies of his two predecessors.

    Like or Dislike: Thumb up 3 Thumb down 7

  4. James Joyner says:

    @Butch Bracknell: Well, the guy has been commander-in-chief for four-plus years, now. At some point, it’s incumbent on him to familiarize himself with his duties.

    Like or Dislike: Thumb up 10 Thumb down 1

  5. wr says:

    Oh, please. This is a cheap, sleazy excuse by the same male officers who routinely dismiss this cases to keep dismissing more of these cases. Before the outrage of the Black Guy in Chief daring to suggest that crimes should be punished, even if committed by whites in the military, the rape conviction of an officer was overturned simply because a higher ranking officer felt like it. Now they can continue to sanction the abuse of women in the military and blame it on Obama.

    Like or Dislike: Thumb up 8 Thumb down 5

  6. Dave Schuler says:

    The president has a quality typical if not required for holders of the highest office in the land. As Alice Roosevelt put it just about a century ago, they want to be the bride at every wedding, the corpse at every funeral, and the baby at every christening. Sometimes that quality runs afoul of prudent silence.

    Like or Dislike: Thumb up 4 Thumb down 1

  7. edmondo says:

    @wr:

    …Black Guy in Chief daring to suggest that crimes should be punished, even if committed by whites

    That’s why Bush and Cheney are in prison today along with half of the big ban CEOs. He’s the black Lone Ranger.

    http://www.youtube.com/watch?v=uUpDG680uew

    Like or Dislike: Thumb up 1 Thumb down 9

  8. Icabod crane says:

    Obama is the Commander and Chief, their boss, this shows how the military will do anything to get away with sexual assault and rape! A comment shouldn’t stop a trial! The fact is the US military has shown it is a power all its own not subject to federal laws, they don’t even follow their own!
    The US military now enlists criminals and promotes rapist, there are not hero’s in the military and the US military has no honor and is a disgrace to the US, and a danger because these guys get out and think raping is a privilege! How many become cops and politicians! Their rape culture is bleeding into society!

    http://www.theusmarinesrape.com/FaceBook.html

    Like or Dislike: Thumb up 4 Thumb down 3

  9. wr says:

    @edmondo: “That’s why Bush and Cheney are in prison today along with half of the big ban CEOs. He’s the black Lone Ranger.”

    I’m sorry, Edmondo, is today the day you pretend to be an Obama voter who’s been disappointed because he’s not liberal enough or a hard-right conservative. It’s tough to keep up with your mood swings.

    Like or Dislike: Thumb up 8 Thumb down 0

  10. wr says:

    Just wondering: If Obama said that anyone in the military caught smuggling heroin, trafficking in little girls or committing random murders should be dishonorably discharged, would high ranking military officials be setting such criminals free on the basis of the horrible prejudice the president had committed?

    “Your honor, I understand that I forced six year old girls into prostitution, but he president said that was a bad thing, so I want to go free.” “Petition granted.”

    Like or Dislike: Thumb up 7 Thumb down 1

  11. bill says:

    I’m just glad that his inability to think before he speaks didn’t have an effect on the Zimmerman trial. I’m not sure that he realizes he’s the commander in chief ….or what it entails.

    Like or Dislike: Thumb up 1 Thumb down 5

  12. So, when are the charges against Staff Sergeant Robert Bales going to be dropped because of what Panetta and Obama have said about the crime?

    Like or Dislike: Thumb up 2 Thumb down 0