President Obama’s remarks about what punishment should be meted out to service members who commit sexual assault crimes have landed him in hot water with a military judge.
At a press conference in early May, the president put on his outraged face and threatened to deal with sexual assault criminals by naming specific punishments:
“I expect consequences,” Obama said at a press conference in early May that came just as the Pentagon released a report detailing rising incidences of sexual assaults in 2012. “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.”
What sounded great on TV landed with a thud in a military court in Hawaii:
President Obama’s comments condemning military sexual assault and suggesting that those convicted be punished with, among other things, a dishonorable discharge may be backfiring on his efforts to root out the growing problem.
In pretrial hearings in two cases, a Navy judge in Hawaii ruled this week that Obama had exerted “unlawful command influence” as commander-in-chief in outlining the specific “consequences” he saw fit for members of the military convicted of sexual assault.
As a result of Navy Judge Cmdr. Marcus Fulton’s rulings, the defendants in United States v. Johnson and United States v. Fuentes can’t be punitively discharged, even if they’re convicted of sexual assault. Stars and Stripes first reported on the rulings.
Fulton wrote in his ruling that Obama’s comments raise “concern” because they “may indicate that a particular result is required of the military justice system.”
As soon as Obama made his off-the-cuff comment, military lawyers began to voice concern that his comments might be detrimental. “I thought of the unlawful command influence issue as soon as he spoke,” said James Mackler, a private attorney and Army reserve lawyer who was involved in sexual assault cases while on active duty.
“The principle behind it is a sound principle, which is that in the military there is a lot of pressure to follow the directives of your commanders, including the president,” he said. “It’s a legitimate problem.”
As a lawyer, Obama knows to be cautious in speaking about specific cases — as he has been for the past week in not speaking out on Edward Snowden — but may not be as familiar with the military justice system, Mackler said, where unlawful command influence creates problems, as it has in these cases and likely many more to come.
The president used the press conference to try and score political points with women’s groups who have been agitating for harsher treatment of sexual assault cases. The disposition of sexual assault cases is not at issue here. This is a question of knowledge and competence. In Obama’s eagerness to show women’s groups how tough he is going to be on military personnel convicted of sexual assault crimes, he stupidly handed defense lawyers a gift — and tied the hands of military judges.
Stars and Stripes lays out the consequences of Obama’s ignorance:
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.
Those convicted of serious sexual assault charges will still go to prison. But being unable to dishonorably discharge the felons means it’s possible one could be convicted of sexual assault and still be eligible for veterans’ benefits.
A president more respectful of military traditions would not have made such a stupid gaffe.