Military Court Rules Obama Exerted “Unlawful Command Influence” in UCMJ Sexual Assault Trial
A U.S. Navy sailor accused of sexual assault and facing a UCMJ trial has prevailed in a motion to throw out the possibility of a dishonorable discharge, because his court martial was tainted by undue command influence by the President of the United States. A PDF of the ruling obtained by Stars & Stripes is available here.
According to the presiding judge, Marcus Fulton, the president’s problematic remarks were as follows:
“The bottom line is: I have no tolerance for this. I expect consequences. 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 stuff, they’ve got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”
Why were these words problematic? Because there is nothing in the UCMJ that requires that someone found guilty of sexual assault be fired or dishonorably discharged. Court martial convening authorities are, by law, supposed to operate free of command influence. Appeals courts have already repeatedly held that it is unlawful for a commander to “send word” of a desired case outcome to the members of a court martial. This would be a violation of Article 37 of the Uniform Code of Military Justice. This article reads, in part:
(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.
While the president, as the civilian commander in chief of the Armed Forces, is not directly subject to the UCMJ, the judge in this case ruled that President Obama’s words constituted sufficient interference in the court martial proceedings that no sentence including a discharge could be trusted as free of undue influence.
The judge also referenced Congressional interference in the UCMJ process, pointing to an instance last month in which Senator Claire McCaskill (D-MO) blocked Air Force Lieutenant General Susan Helm’s promotion.
“As the senator works to change the military justice system to better protect survivors of sexual assault and hold perpetrators accountable, she wants to ensure that cases in which commanders overturned jury verdicts .?.?. are given the appropriate scrutiny,” said a spokesperson for Senator McCaskill to the Washington Post.
If this were done by members of the chain of command, this, too, would have been an unlawful violation of Article 37 of the UCMJ, which prohibits those covered by the UCMJ from using an officer’s conduct or decisions while a member of a UCMJ court martial against him or her in officer evaluations or promotion consideration. Again, this is to insulate UCMJ proceedings from political or unlawful command influence.
A similar case is winding its way through the military justice system. When the Air Force’s own head of sexual assault prevention programs, Lt. Colonel Jeffrey Kusinski was arrested for an alleged drunken sexual assault, the Secretary of Defense personally called the Secretary of the Air Force, Michael Donley, to express his outrage and either promise or extract a promise from Secretary Donly (the Washington Post’s reporting is not clear as to which) that the matter would be “dealt with quickly and decisively.”)
Kusinski’s defense counsel will no doubt raise the issue of unlawful command influence in the UCMJ proceedings. Given the precedences already in place, including this one, it is difficult to imagine a court finding that there was no undue command influence taking place. What is less clear is what the proposed remedy would be.
We first raised the alarm bells about undue and unlawful political and command influence in UCMJ proceedings here, where I wrote “Where any decision in favor of a defendant in a sexual harassment case is liable to come under fire straight from Secretary of Defense, and potentially become a career-ender for any officer, then we can trust no prosecution.” At least one military judge agrees, as far as the sentencing goes.
Meanwhile, if this sailor is indeed convicted, and if he is indeed guilty, the military may well be stuck with a sexual predator they can’t discharge. Who loses? Good sailors.