August 15, 2013

JAMES TARANTO ON MILITARY JUSTICE: Hagel’s Science of Logic: The Secretary compounds Obama’s unlawful command influence.

Stars and Stripes’ description of the Hagel memo is accurate as far as it goes. “To be clear,” the secretary writes, “each military justice case must be resolved on its own facts. Those who exercise discretionary judgment in the military justice process must exercise their independent judgment, consistent with applicable law and regulation. There is [sic] no expected or required dispositions, outcomes, or sentences in any military justice case, other than what result from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law.”

That’s exactly the ethos that ought to guide the Judge Advocate General Corps and servicemen who serve on court-martial panels. That the top man at the Pentagon has been pressured to reiterate it is a very good sign–a hint that the moral panic over sexual assault in the military may be beginning to subside.

But Hagel’s memo is far from sufficient. We now have conflicting messages coming from the top two civilian leaders of the military. And Obama outranks Hagel, so that his thesis still trumps Hagel’s antithesis. If a military judge holding the rank of colonel instructed a court-martial panel to consider only the facts before them, that would not obviate the problem of unlawful command influence from the commanding general, the defense secretary or the commander in chief. The Hagel memo poses an identical scenario several levels up the chain of command.

And Hagel’s memo is insidious as well as ineffectual. In addition to contradicting Obama’s improper statements, the secretary also offers a benign reinterpretation of them. . . . In putting forward this reinterpretation of Obama’s words, he is encouraging military judges to reject the claims of UCI that have already been raised. Thus the Hagel memo itself constitutes unlawful command influence.

Read the whole thing.

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