Stars and Stripes, a judge in Hawaii military court has ruled that due to Barack Obama's public statements about sexual assault in the military, he has exerted "unlawful command influence," and because Obama did so, even if defendants are found guilty of sexual assault they cannot be punitively discharged. Meaning they cannot receive a bad conduct discharge or a dishonorable discharge.
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.”
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.
Is obama ever going to learn that discretion is the better part of valor and there are times when it is beneficial that he keep his big mouth shut?