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Sunday, July 14, 2013

The Commander-in-Chief's Words

A previous post noted that a president's every public utterance weighs a ton. Because of his authority and political power, there may be legal and diplomatic consequences for even an offhand remark.  The New York Times reports:
When President Obama proclaimed that those who commit sexual assault in the military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” it had an effect he did not intend: muddying legal cases across the country.
In at least a dozen sexual assault cases since the president’s remarks at the White House in May, judges and defense lawyers have said that Mr. Obama’s words as commander in chief amounted to “unlawful command influence,” tainting trials as a result. Military law experts said that those cases were only the beginning and that the president’s remarks were certain to complicate almost all prosecutions for sexual assault.

“Unlawful command influence” refers to actions of commanders that could be interpreted by jurors as an attempt to influence a court-martial, in effect ordering a specific outcome. Mr. Obama, as commander in chief of the armed forces, is considered the most powerful person to wield such influence.
The president’s remarks might have seemed innocuous to civilians, but military law experts say defense lawyers will seize on the president’s call for an automatic dishonorable discharge, the most severe discharge available in a court-martial, arguing that his words will affect their cases.
“His remarks were more specific than I’ve ever heard a commander in chief get,” said Thomas J. Romig, a former judge advocate general of the Army and the dean of the Washburn University School of Law in Topeka, Kan. “When the commander in chief says they will be dishonorably discharged, that’s a pretty specific message. Every military defense counsel will make a motion about this.”

“The president was absolutely not trying to be prescriptive,” said Kathryn Ruemmler, the White House counsel. “He was listing a range of examples of how offenders could be held accountable. The president expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.”
Ruemmler's comments are at odds with the president's plain language. Here is a fuller version of his remarks:
So bottom line is, I have no tolerance for this. I have communicated this to the Secretary of Defense. We're going to communicate this again to folks up and down the chain in areas of authority, and I expect consequences.

So I don't want just more speeches or awareness programs or training, but ultimately, folks look the other way. If we find out somebody is engaging in this stuff, they've got to be held accountable: prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period. It's not acceptable.