Military Judge: Obama’s Comments On Military Sex Abuse An “Undue Command Influence”

Did President Obama's comments about taking a tough stand on military sexual assault constitute "undue influence" on specific cases? One military judge says that they did.

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A military judge presiding over the Court Martial of two members of the United States Navy on charges related to the hot-button issue of sexual assault has ruled that recent statements by President Obama and others in the chain of command constituted undue influence over the proceedings:

Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court this week.

Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.

On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.

(…)

The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

“A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” Fulton stated. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.

“The strain on the system created by asking a convening authority to disregard [Obama’s] statement in this environment would be too much to sustain public confidence.”

The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.

Should other judges accept the same line of reasoning, commands would have to consider issuing lesser administrative discharges to servicemembers found guilty of sexual assault. In some cases, this could allow servicemembers found guilty of sex crimes to retain veterans benefits, according to Defense Department regulations.

“I think that as a defense attorney, I would raise this argument in virtually any [sexual assault] case I had,” said Victor Hansen, vice president of the National Institute of Military Justice and former instructor at the Army’s JAG school.

To be fair, the Judge in this case also abased his ruling on comments made by a number of high-ranking military officials including the Secretary of Defense, the Chief of Naval Operations, and several others below them in the chain in command but still well above the level of the men facing trial in Hawaii. It’s also worth noting that none of these comments addressed the facts at issue  in these cases or the allegations against these two individual defendants. While the comments of Secretary Hagel and others are mentioned in the ruling, though, it seems clear that the President’s comments were a substantial part of Judge’s ruling here. Those comments, you may recall, were made at a press appearance on May 7th during the height of the latest revelations about the sexual assault problem in the military:

President Barack Obama said Tuesday that he has “no tolerance” for sexual assault in the military, comments made in the wake of a new Pentagon report showing the instances of such crimes have spiked since 2010.

The president said he had spoken today with Defense Secretary Chuck Hagel to urge him to “exponentially step up” efforts to identify suspects in assaults, and aggressively prosecute those cases.

“The bottom line is: I have no tolerance for this,” Obama said at a press conference following his meeting with South Korean President Park Geun-hye.

‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

(…)

“For those who are in uniform who’ve experience sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs,” the president said. “I will support them. And we’re not going to tolerate this stuff, and there will be accountability.”

What constitutes “undue command influence” is, at least in part, established by Article 37 of the Uniform Code of Military Justice:

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

The operative question here is whether the comments by President Obama and others in the chain of command, which based on how they are set forth in the opinion seem to be little more than generalized statements about the need for increased vigilance against sexual assault in the military constitute an attempt to “coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”  In his ruling, the presiding Judge found that there was sufficient reason to believe that the President’s insistence that members of the military who have engaged in sexual assault should be “prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged” constituted at least potential undue influence over the sentencing phase of the hearing in the case before him. Consequently, he ruled that if the Defendant is convicted, the military jury would not be able to impose a dishonorable discharge or similar punishing upon him. As noted above, this would potentially mean that the Defendant would remain fully eligible for all veterans benefits despite having been convicted of a crime while in the military.

I don’t have the expertise in military criminal law to comment on the Judge’s decision here, however the immediate consequences of his ruling. Defense attorneys representing members of the military facing similar charges will without a doubt file similar motions in the cases they are involved in, and we’re likely to get contradictory rulings on the matter from the presiding Judges in each of those cases. Additionally, the ruling in these cases will likely end up being appealed, likely before the trial actually starts. As for the President’s statement itself, I can’t help but think that the Judge got it wrong here. On it’s face, what the President said struck me as a general, benign, statement regarding future policy and the message that the Commander in Chief wishes the military to take the issue of sexual assault far more seriously than it has been. Is that “undue command influence?” As I said, I’m not an expert in this area so I’ll leave that to others, but it does feel to me like the Judge went a little over the top here. I suppose we can be grateful that he didn’t dismiss the cases completely.

On a general level, though, this case does point out the importance of the White House in general, and the President specifically, not getting involved in criminal investigations and prosecutions that occur under his watch, whether in the civilian or military spheres. Recently, for example, the White House has been criticized for not commenting directly on the Justice Department’s investigation of leaks that includes pursuing information from journalists using subpoenas and search warrants. There has also been a lot of criticism directed at the White House from the right for it failure to officially designating the November 2009 Ford Hood massacre as a terrorist act, and that Major Nidal Hasan continues to receive his military pay while awaiting trial on those charges. In both cases, the White House has pointedly refused to comment on the cases at hand, and that was entirely the appropriate reaction. Specific comments from the President regarding guilt or innocence of a Defendant would be highly inappropriate and would likely result in defense attorneys moving for mistrials at any criminal proceeding. The comments the President made here, of course, were not about a specific  case, but this ruling is a pretty good reminder of what could happen if Presidents started bending to the demands of reporters or political opponents that they make comment on such matters.

Here is a copy of the Judge’s opinion:

United States v. Ernest Johnson Ruling by dmataconis

FILED UNDER: Barack Obama, Crime, Law and the Courts, Military Affairs, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    The judge is being a malicious little twat and opening the doors wide for rapists.




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  2. OzarkHillbilly says:

    I really don’t know where to begin…. I guess I need to go back and reread Catch 22 again so that I can reacquaint myself with military logic.




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  3. beth says:

    Seriously? Substitute the word murder for sexual assaults and then tell me that we would let murderers go free because the President spoke out against it. This is nonsense and I can’t wait to hear the reactions from Senators Gillibrand and McCaskill.




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  4. JKB says:

    It is hard for those who have not trained for nor considered command authority to understand its power. When you are the commander, your words must be circumspect. Your idle thought can become action by subordinates before you finish the thought. Obama spoke of the outcome he expected, that is a very wrong thing to do. But he is a man who neither trained nor held a position of consequence before the Presidency so it is understandable that he would he would have a community organizer’s approach to a job with actual responsibilities and authority.

    This is what we saw with his jokes about auditing people who, what was it, didn’t confer an honorary degree or something. And yes, I thought Reagan’s joke about bombing the USSR was wrong as well, except that no one was going to launch on the face of his speech without orders through channels on that.

    Command authority comes with real responsibilities and your words matter.




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  5. Tony W says:

    @JKB:

    he would have a community organizer’s approach to a job with actual responsibilities and authority.

    Yeah, and Kenya and death panels too!




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  6. stonetools says:

    Time to reassign this judge away from sex offender cases. Dumbest ruling I’ve seen from a judge in a while.




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  7. michael reynolds says:

    @JKB:

    Oh plus Obama’s a neeegro!

    Moron.




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  8. Davebo says:

    @stonetools:

    Time to reassign this judge away from sex offender cases.

    Time to reassign the guy from the military itself. One would have thought a JAG officer would have at least some concept of Commander in Chief.

    If he doesn’t he should be retired so he can buy some polyester coveralls and take up complaining about the government full time.




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  9. I guess that means any time that Obama or anyone at the top of the chain of command condemns war crimes or murders by United States military personnel against Iraqis or Afghans, that’s “undue command influence” too?

    This judge needs a dishonorable discharge.




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  10. Andy says:

    This isn’t anything new. Commanders are not supposed to use their unique authorities to influence the direction of a trial. Whether there was sufficient command influence in this particular case is a subjective judgment.




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  11. superdestroyer says:

    @Davebo:

    If anyone tries to reassign the judge, those responsible would immediately give the defendants reason for their next appeal.

    I think one of the problems is that the Democrats in the White House have always seen the Pentagon and the Department of Defense as not really part of their government. Look how the media reports defense news. It totally separates what the Department of Defense from the rest of the Obama Administration. Nothing the Pentago does is ever attributed to any policy of the Obama Administration. Now along comes a judge who has to remind the President that he is in the chain of command and has to think about how his words and actions will influence everyone who is in uniform.

    I guess this will cause the Democrats in the Senate to want to take away more authority from commanders and try to recreate the witch hunts that have occurred on too many college campuses.




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  12. Neil Hudelson says:

    So any comments Obama has made regarding Fort Hood would mean tht that killer can not e discharged?




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  13. superdestroyer says:

    @Neil Hudelson:

    If President Obama said that he expects Hasan to be convicted and will accept nothing else, then the President could create a similar situation. However, all the military would have to go is turn Hasan over to the State of Texas. Not only would Texas would be quicker but could probably successfully execute the man.




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  14. @superdestroyer: Hey numb nuts, Obama never said that someone accused of sexual assault should immediately be convicted and the State of Texas has no jurisdiction to charge someone for a crime that happened on a military base.




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  15. Davebo says:

    I guess this will cause the Democrats in the Senate to want to take away more authority from commanders and try to recreate the witch hunts that have occurred on too many college campuses.

    Exactly SuperD!! It’s getting to where you can’t even get away with raping a brown woman on campus anymore.

    I blame the one party system myself.

    But in all seriousness. Have you consider phone sex? It’s cheaper than the cheapest defense lawyer.




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  16. Davebo says:

    However, all the military would have to go is turn Hasan over to the State of Texas. Not only would Texas would be quicker but could probably successfully execute the man.

    Oh I don’t know. We screwed the pooch on Clarence Brantley. Even with prosecutors, police and even a Texas Ranger perjuring themselves.

    Sometimes it’s really hard to kill an innocent person in the name of the state.




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  17. al-Ameda says:

    @JKB:

    It is hard for those who have not trained for nor considered command authority to understand its power.

    Conversely, it’s not hard for conservative military judges who don’t like President Obama to come up with asinine comments such as those that Navy Judge Cmdr. Marcus Fulton made.




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  18. dennis says:

    @JKB:

    I suppose you’d be criticizing the President if he said NOTHING about the matter. Your lack of honesty and intellectual depth in this matter are astounding.




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  19. superdestroyer says:

    @Timothy Watson:

    IF you are going to discussion jurisdiction, you should look up the term “exclusive federal jurisdiction. Most of Fort Hood is not really under exclusive federal jurisdiction. The states and the military fight over jurisdiction all of the time. One of the murdered and one of the wounded were civilians. If anothng else, Texas could claim jurisdiction for them if nothing else. You could look up how both the feds and the State of Oklahoma prosecuted Terry Nichols.




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  20. superdestroyer says:

    @Davebo:

    How soon progressives have already forgotten the Duke rape case or the Hofstra fake gang rape or even the controversy caused by the Department of Educations new standards for universities investigating sexual assaults on campus. See http://www.dailycal.org/2012/10/29/guilty-until-proven-innocent/

    The Department of Education has lowered the burden of proof that universities must follow when punishing students accused of sexual misconduct. Universities have been mandated to follow a “preponderance of the evidence” standard when punishing ,male students. I suspect that the Democrats in the Senate would like the military to follow the same standards.




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  21. Truly when someone doesn’t understand afterward its up to other viewers that they will help, so here it happens.




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  22. @superdestroyer:
    “[A]bout 157,588.023 acres of Fort Hood Military Reservation–less a few excepted areas–have been subject to the exclusive jurisdiction of the United States since October 30, 1950; but 49,578.72 other acres have never been subject to any Federal jurisdiction.” United States v. Williams, 17 M.J. 207, 214 (C.M.A 1984).

    And then you should consult that Constitution you conservatives claim to know so much about:

    The Congress shall have Power To […] exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings




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  23. Neil Hudelson says:

    @superdestroyer:

    Got it, so the exact same situation exists in both these cases (except for the crime committed) but in this one Obama is wrong because…??
    Because you say so? Because he’s uppity? Because your crotch gets warm anytime someone criticizes Obama, regardless of facts?




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  24. Hans Bader says:

    The Navy judge’s ruling seems strange to me, given the generality of the president’s statements, and the fact that one would have expected a dishonorable discharge in such cases.

    Doug Matconis writes, “I suppose we can be grateful that he didn’t dismiss the cases completely.”

    Does this mean the defense sought not only to preclude certain sentences, but to dismiss the charges completely???

    That would be truly bizarre. There is no colorable argument that these presidential remarks were encouraging conviction of innocent defendants (as opposed to, conceivably, recommending certain sentences for those convicted).




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  26. michael reynolds says:

    Is it just me or are the spammers brighter and more lifelike than superdestroyer?




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  29. superdestroyer says:

    @Timothy Watson:

    I found this analysis. http://military-law.lawyers.com/Military-Law-Basics/Whats-Next-for-Army-Major-Nidal-Hasan.html

    It seems that the State of Texas could get prosecute Nasan for the murder of an unborn child. However, if the military screws up the prosecution, the federal courts could step in and prosecute Nasan as a terrorist.

    I await your next insult because we all know that the rules do not apply to progressives.




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  30. Rick Almeida says:

    @JKB:

    Did you learn these tidbits of military leadership as Commanding General of the 88th Bloviating Wingnut Division of the RedState Trike Farce?




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  31. Eric the OTB Lurker says:

    @superdestroyer:

    I think one of the problems is that the Democrats in the White House have always seen the Pentagon and the Department of Defense as not really part of their government.

    Yeah, FDR–what a pacifist p***y. LBJ–total softie. Clinton–didn’t drop enough bombs on the Serbs. Yeah, you’re right, Democrats just don’t believe in the military.

    Seriously, superdestroyer, do you ever tire of being a dumba**? Just about everything you assert is falsified instantly by these things called “facts.”




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  32. Mikey says:

    @Rick Almeida: Actually, JKB is pretty accurate on one point–a commander’s statements can have the force of an order even if not stated as such.

    Hollywood has made people think “and that’s an order!” is a necessary phrase. It absolutely is not.

    As to the case in question, I find the concept of the President’s statements being undue command influence a bit of a reach, because he speaks as a civilian even though he is the Commander-in-Chief. I certainly would not hear his statements as anything besides the President making a statement. Even crusty old senior NCOs like me have some common sense. But if someone in the military chain of command said such things, it would absolutely be undue command influence.




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  33. HarvardLaw92 says:

    @Mikey:

    I can’t speak for others, but I’m former military (JAG), and an extemporaneous statement like this wouldn’t have the slightest effect on my judgment as a participant in a court-martial.

    A statement issued through the chain of command in an official capacity? Sure, that I’d take note of.

    But this statement wasn’t that animal.




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  34. Mikey says:

    @HarvardLaw92: Pretty much where I stand on it, too. I wouldn’t consider it anything besides the President speaking as the President.




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  35. Rick Almeida says:

    @Mikey:

    Your comments do not match my experience in the military.




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  36. superdestroyer says:

    @Eric the OTB Lurker:

    Clinton was actually the master of separating himself from the actions of the Defense Department. Look at how the left wanted to hold GW Bush and Chaney personally responsible for the actions of the military in Iraq but Clinton was basically divorced from the actions of the military in Serbia.




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  37. Mikey says:

    @Rick Almeida: A sentence I remember very clearly even though I heard it way back when I was an Airman First Class: “The commander’s request has the force of an order.”

    Hence the concept of “undue command influence.” When people who are accustomed to interpreting a commander’s statements as orders hear someone in the chain of command assert the necessity of a certain type of punishment, it can certainly bend their judgement.




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