Navy judge: Obama exerted “unlawful command influence” on military sexual assault sentencing

Stars and Stripes reports on an interesting ruling coming out of a Hawaii military court this week involving two defendants in separate sexual assault cases:

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.

Wow. This is a big deal, especially when you consider the context of today’s raging debate regarding the alleged high number of sexual assaults in the military and an unwritten system of reporting that supposedly punishes the accusers.  I’m sure this was not the intent of President Obama when he made his comments back in May, but nevertheless this is the result.  One would think that someone as well-versed in law as our “Constitutional scholar President” supposedly is would understand that he needs to be very cautious as Commander in Chief in making comments about the punishment defendants in military trials should receive, but apparently not:

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.

PJ Tatler’s Rick Moran chided the President for putting attempts to solidify his appeal to “women’s groups” over the rule of military law:

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.


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.

Let’s take a moment and think about how “feminists” and other left wing activists would react to this judge’s ruling if it’s something that happened during the Bush administration … as it stands, their reaction in this case will be quite muted, I assure you. Why? Because Obama is the pro-abortion President they’ve always dreamed of, even more so than Bubba Clinton, and really – when all is said and done with this administration when it comes to left wing women, that is -sadly – all that matters.

President Obama golfing
”Shh” indeed, Mr. President. In the words of the great President Abraham Lincoln, ”Better to remain silent and be thought a fool than to speak out and remove all doubt.”
(Photo via Reuters)

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