Late last week, a Hawaii-based Navy judge ruled that two sailors charged with sexual assault can't be thrown out of the Navy if found guilty. The reason? President Obama's demand that servicemen found guilty of sexual assault be dealt with severely amount to "unlawful command influence" on the two sailors' courts martial.
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.
[snip]
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.
Read the full ruling
here. The ruling was made in response to a defense motion to have the case thrown out altogether on the grounds that statements by Obama and numerous Pentagon officials all the way up to Chuck Hagel were so prejudicial that a fair trial would not be possible. While Fulton found there was no problem with the Pentagon officials' remarks, he had a big one with Obama's statement--specifically, his statement that anyone found guilty of sexual assault should be "stripped of their positions, court martialed, fired, dishonorably discharged." To Fulton's mind, this took Obama's statement from a simple call for accountability to an
ex cathedra demand that anyone doing this be drummed out of the military.
It's hard to argue with the reasoning here. The way I'm reading this, Fulton is saying that a military jury should not have to feel they're disobeying their commander-in-chief if they don't impose a specific sentence. Nonetheless, this ruling could have some pretty substantial implications. For one thing, it could be possible for someone found guilty of sexual assault to still get veterans' benefits.
Victor Hansen, vice president of the National Institute of Military Justice, thinks this ruling is a potential gold mine for defense attorneys.
Hansen found Thursday’s ruling surprising, since judges have rejected “unlawful command influence” arguments under the logic that statements by high-level officials lose their effect as they reach the military’s lower levels.
However, in recent months there has been a lot more said — and in overly specific terms — about sexual assault by military and political leaders, Hansen noted. Obama’s call for dishonorable discharges is an example of such specificity, which begins to sound to military juries like a direct order from the commander in chief.
“This is bad lawyering on [Obama’s] advisor’s part,” Hansen said. “It’s certainly not a problem to say that sexual assault is a bad thing and we need to weed it out … that’s innocuous. It’s when they get very pointed that it’s problematic.”
It's hard to argue with that reasoning. If I were Obama, I probably would have ended that statement by saying, "If we find out somebody's engaging in this, they should expect to be dealt with severely." Something like that would have conveyed the intended message without giving the impression that a specific sentence would have to be imposed.