Guest Post by Mara Zebest
The full US v Johnson military Judge ruling for Obama’s unlawful command influence can be viewed here.
Stars and Stripes reports the following:
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 bottom line is: I have no tolerance for this,” Obama said, according to an NBC News story submitted as evidence by defense attorneys in the sexual assault cases.
‘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.”
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.
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.” [...]
Read more here.
Politico adds the following:
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 White House did not comment on the rulings.
Read more here. Politico gives Obama credit for understanding what should be done as a “lawyer.” Guess Politico doesn’t realize that all the “D” students are running this country.