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JAD_333
15 Aug 13,, 04:15
Being a lawyer and president, Mr O should know better. Apparently he's succeeded in getting the exact opposite results he wanted in military sex abuse cases.


http://www.nytimes.com/2013/08/15/us/politics/hagel-tries-to-blunt-effect-of-obama-words-on-sex-assault-cases.html?hp

By JENNIFER STEINHAUER
Published: August 14, 2013

WASHINGTON — In an effort to stop military lawyers from using comments by President Obama to prevent sexual assault prosecutions, Defense Secretary Chuck Hagel has sent out a directive ordering the military to exercise independent judgment in the cases and effectively ignore the president’s remarks.

“There are no expected or required dispositions, outcomes or sentences in any military justice case, other than what result from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law,” Mr. Hagel wrote in a memorandum dated Aug. 6 that is to be disseminated throughout the military.

Since May, when Mr. Obama said at the White House that sexual offenders in the military ought to be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” lawyers in dozens of assault cases have argued that Mr. Obama’s words as commander in chief amounted to “unlawful command influence,” tainting trials and creating unfair circumstances for clients as a result.

Their motions have had some success. At Shaw Air Force Base in South Carolina in June, a judge dismissed charges of sexual assault against an Army officer, noting the command influence issue. In Hawaii, a Navy judge ruled last month that two defendants in sexual assault cases, if found guilty, could not be punitively discharged because of Mr. Obama’s remarks.

“Unlawful command influence” refers to actions of commanders that could be interpreted by jurors as an attempt to influence a court-martial and 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.

Mr. Obama’s legal team, as well as Mr. Hagel, are trying to undo the potential damage to sexual assault cases in the future. Mr. Hagel’s memorandum quoted Kathryn Ruemmler, the White House counsel, as saying that the president “expects all military personnel who are involved in any way in the military justice process to exercise their independent and professional judgment.”

The White House declined to comment, but Lt. Col. Todd Breasseale, a Pentagon spokesman, said, “The secretary has been consistently clear here, and his commanders understand his intent,” noting that the memo “speaks for itself.”

Mr. Hagel’s letter produced some skepticism. “They are trying to unring the bell,” said Richard Scheff, a lawyer who cited unlawful command influence on behalf of his client, Brig. Gen. Jeffrey Sinclair, accused of sexually assaulting an Army captain with whom he had an adulterous affair. “I don’t know how President Obama can direct that certain types of punishment be administered and now you are supposed to ignore it. How does that work?”

In General Sinclair’s case, a military judge decided that the president’s comments did constitute unlawful command influence and that he would determine during jury selection whether the comments had tainted the case. Many other lawyers are awaiting rulings on similar motions that cite Mr. Obama’s remarks, as well as those of Gen. James F. Amos, the commandant of the Marine Corps, who in a speech last year asserted that 80 percent of sexual assault cases were legitimate and not the result of second thoughts from people who initially consented.

Experts in military law said it was unusual for a memorandum like Mr. Hagel’s to come from the secretary of defense, who directed recipients to “ensure this message is widely and immediately disseminated throughout your organizations.”

“It is a remarkable document,” said Eugene R. Fidell, who teaches military justice at Yale Law School. “I can’t remember a document quite like this coming from an official at this senior a level. It has been said that ‘unlawful command influence’ is the mortal enemy of military justice.”

But this directive, Mr. Fidell said, “is a kind of anti-venom to try to counteract the unfortunate statements that have given rise to the current wave of unlawful command influence motions.”

A recent Pentagon survey found that an estimated 26,000 men and women in the military were sexually assaulted last year, up from 19,000 in 2010. At the end of the last fiscal year, Sept. 30, there were roughly 1,600 sexual assault cases within the military either awaiting action from commanders or the completion of a criminal investigation.

The issue has become front and center on Capitol Hill, where Senator Kirsten E. Gillibrand, Democrat of New York, has sponsored a bill that would give independent military prosecutors, rather than commanders, the power to decide which sexual assault crimes to try.

John D. Altenburg Jr., a former deputy judge advocate general for the Army who now practices law in Washington, said the letter could be useful for the administration.

“It can only be positive,” he said. “I am not sure it was absolutely necessary, but this certainly clears the air. Most people in the military understand that comments are made by people for political purposes and they are not to take that under consideration, but this makes it clear to everybody.”

Blademaster
15 Aug 13,, 16:01
I fail to see how it is undue command influence. Obama is the commander in chief and has the supreme authority of disciplining the offenders and set certain standards of conduct that a commander in chief has the right to expect and the right to enforce with whatever means necessary. Don't forget that the Senate made all the hoopla about the sex offenses and wanted bigger punishments and Obama followed suit. So if you want to castigate Obama, then include John McCain as well as others.

Officer of Engineers
15 Aug 13,, 16:06
Obama's directives are seen as overriding the UCMJ.

JAD_333
16 Aug 13,, 06:31
I fail to see how it is undue command influence. Obama is the commander in chief and has the supreme authority of disciplining the offenders and set certain standards of conduct that a commander in chief has the right to expect and the right to enforce with whatever means necessary. Don't forget that the Senate made all the hoopla about the sex offenses and wanted bigger punishments and Obama followed suit. So if you want to castigate Obama, then include John McCain as well as others.

To put the colonel's comment another way, when the commander in chief telegraphs what ought to happen to anyone under his command who is convicted of a sex crime, he is influencing the outcome of the trial, and that as everyone knows is good cause for the defense to cry prejudice. Hence no trial.

Some in the Senate are for changing the way sexual offenders in the military are tried and are calling for stiffer penalties, but until the Senate acts as a body it is incorrect to say the Senate is for harsher measures. Also, the Senate, not being in command of the military, cannot be accused of undue command influence.

zraver
16 Aug 13,, 07:08
Congress is also the proper body to rewrite the UCMJ to change the penalties meted out for various crimes.

desertswo
16 Aug 13,, 09:30
To put the colonel's comment another way, when the commander in chief telegraphs what ought to happen to anyone under his command who is convicted of a sex crime, he is influencing the outcome of the trial, and that as everyone knows is good cause for the defense to cry prejudice. Hence no trial.

Some in the Senate are for changing the way sexual offenders in the military are tried and are calling for stiffer penalties, but until the Senate acts as a body it is incorrect to say the Senate is for harsher measures. Also, the Senate, not being in command of the military, cannot be accused of undue command influence.

How much "harsher" is "harsher?" I've been the investigating officer in a lot of Article 32s, sat more than a few General Courts Martial panels, and of course, been judge, jury and executioner at more Article 15s (or as we call it in the Navy, "Captain's Mast") than I care to recall. There is this nagging bell going off in my head saying rape could be a hanging offense. It's been a long time so I won't swear to that, but it seems to me that the penalties can be pretty harsh.

Regardless, the Commander-in-Chief, joke that he is, ought to keep his yap shut about things like this, or at least choose his words more carefully. Of course, he really doesn't understand all this stuff, because just like Bill Clinton, for whom I once worked, he didn't take the time to get to know "us." Clinton finally did in his second term, and I must confess, I enjoyed working in his defense establishment on the Joint Staff. I worked for George Bush for six months, and while I had no issues with him, Donald Rumsfeld was an absolute asshole of major proportions. He knew everything, and if you didn't think so, just wait a while, he'd tell you so eventually. I voted for Mr. Bush, but I didn't vote for that cheese dick. What a waste of opportunities under that turd. Sorry, we kind of hit a nerve there.

astralis
16 Aug 13,, 14:30
desertswo,


I enjoyed working in his defense establishment on the Joint Staff

that is one sick, sick admission....:biggrin:

Blademaster
16 Aug 13,, 15:26
When the sexual offenses are on the rise or being unchecked or not enforced, then how do you expect the commander in chief to respond? I see more of it as a discipline matter and he is telling his generals and commanders that they are not doing their job of enforcing the current existing military code of justice and letting the offenders off easy. Witness the base commander letting off an airman (I forgot the names and ranks so forgive me) for sexual offenses and that set off a media shit storm and it was not only the Senate that got mad, but half of the US population mad. So I don't blame the President for making the comment. I blame the U.S. military courts for making that happen and allowing it to become "undue influence" I think it is a bullshit and flimsy defense. I hope that this gets appealed to the highest court possible.

The President has the constitutional right to expect and demand certain standards from the military and that is what he did when he made those comments.

Officer of Engineers
16 Aug 13,, 16:24
Not the President's place to tell the judge and jury to find the perp guilty and hang them.

JAD_333
16 Aug 13,, 18:26
How much "harsher" is "harsher?" I've been the investigating officer in a lot of Article 32s, sat more than a few General Courts Martial panels, and of course, been judge, jury and executioner at more Article 15s (or as we call it in the Navy, "Captain's Mast") than I care to recall. There is this nagging bell going off in my head saying rape could be a hanging offense. It's been a long time so I won't swear to that, but it seems to me that the penalties can be pretty harsh.

Regardless, the Commander-in-Chief, joke that he is, ought to keep his yap shut about things like this, or at least choose his words more carefully. Of course, he really doesn't understand all this stuff, because just like Bill Clinton, for whom I once worked, he didn't take the time to get to know "us." Clinton finally did in his second term, and I must confess, I enjoyed working in his defense establishment on the Joint Staff. I worked for George Bush for six months, and while I had no issues with him, Donald Rumsfeld was an absolute asshole of major proportions. He knew everything, and if you didn't think so, just wait a while, he'd tell you so eventually. I voted for Mr. Bush, but I didn't vote for that cheese dick. What a waste of opportunities under that turd. Sorry, we kind of hit a nerve there.

I suppose 'harsher' penalties in relative terms means harsher than what we have now. Piling on is the usual reaction by lawmakers. Never solves the problem. Look at the war on drugs. Once in full swing, drug use, smuggling etc just got worse.

From your experience as judge and jury in military courts martial--BTW, as former Navy I know what Captain's Masts are :)--I'd venture to guess that you expected some of your decisions would get more outside attention than others, and I'd also venture to guess that at times you felt harsher penalties were called for when certain types of violations were becoming rampant.

We have something in common in that I too worked for several SecDef's, starting with Weinberger and both his successors, Carlucci and Chaney, but in a civilian capacity. Handled all their public and media stuff, and base visits, except black box stuff. Got to see them up close and personal. Weinberger was a good man; he got hosed in the Iran-Contra scandal, unfairly I think, thanks in part to his mil asst, that paragon of virtue, Colin Powell. Carlucci was the best of the bunch, administrative wise, but he wanted to make money so left and went to work for Sears International and then the Carlyle Group. Chaney I didn't serve for long. He, or at least his staff, thought their sh*t didn't stink and broke any rule they didn't like. But I'll say this about Chaney; he was a master of taking control. Came in and fired the first general who stepped out of line. Did wonders around the building. Anyway, I loved my job; of course, when Clinton came that was all she wrote for us Reagan-Bush appointees.

Blademaster
17 Aug 13,, 15:12
Not the President's place to tell the judge and jury to find the perp guilty and hang them.

I do not think he said like that. He said enforce the laws to stamp out sexual offenses going on and to deter further sex crimes and to stop sex crimes from occurring.

Moreover, in a military, discipline runs supreme over justice. if you have sex crimes occurring in the military, you have a failure of discipline.

Officer of Engineers
17 Aug 13,, 15:53
Receiving a kiss from a grandmother after you just pull her granddaughter out of a ditch is a violation of the Queen's Rules. You want me to go after that.

Blademaster
17 Aug 13,, 16:02
Receiving a kiss from a grandmother after you just pull her granddaughter out of a ditch is a violation of the Queen's Rules. You want me to go after that.

Now you are making an Reductio ad absurdum argument. Please give me another one and this time, a valid one.

Officer of Engineers
17 Aug 13,, 16:29
Man and wife deployed on the same mission. They found some alone time. No sex. Just holding each other.

And yes, they were tossed out of the CF.

Blademaster
17 Aug 13,, 16:48
Man and wife deployed on the same mission. They found some alone time. No sex. Just holding each other.

And yes, they were tossed out of the CF.

How is that a sex crime? The context here is sex crimes, unwanted advances of sexual connotation or rape. By the way, how did your premier get involved in that? Was it undue influence?

How that happeened was the fault of the local commanders for allowing such an absurd situation to happen. they could have ignore it or do a non judicial discipline but somebody along the chain of command want it to happen.

Officer of Engineers
17 Aug 13,, 16:54
How is that a sex crime?Fractinization in the Field.


The context here is sex crimes, unwanted advances of sexual connotation or rape. By the way, how did your premier get involved in that? Was it undue influence?No one political got involved. It was reported and then it was automatic.


How that happeened was the fault of the local commanders for allowing such an absurd situation to happen. they could have ignore it or do a non judicial discipline but somebody along the chain of command want it to happen.No one else in the Field was allowed to fractinize. But it was a pain in the ass. They got what they deserve but we lost two very good people in the Field and have to spend time dealing with this crap while we were trying to get the locals to stop shooting at each other.

Blademaster
17 Aug 13,, 17:03
Fractinization in the Field.

No one political got involved. It was reported and then it was automatic.

No one else in the Field was allowed to fractinize. But it was a pain in the ass. They got what they deserve but we lost two very good people in the Field and have to spend time dealing with this crap while we were trying to get the locals to stop shooting at each other.

What happened to the thinking that "Officers are automatons but thinking people"? It is readily apparent that officers involved in the disciplining were acting under orders and following the law and not allowed to think or exercise prudent judgment. Either the officers were not allowed or refused to exercise their discretion.

Let's bring that back to our topic at hand here. Obama said that rapes and forcible unwanted sexual advances must not be tolerated and must be stamped out. Is it so wrong to follow that order or are you so afraid of repeating the episode that you just cited that you would allow the rapes and forcible unwanted sexual advances to proceeds?

I want to know which one is it and then we can proceed from there.

Officer of Engineers
17 Aug 13,, 17:20
Either the officers were not allowed or refused to exercise their discretion.You're ignoring the bureaucracy. Once JAG got involved, they got their own little empire to protect and their Officers have to be promoted too.


Let's bring that back to our topic at hand here. Obama said that rapes and forcible unwanted sexual advances must not be tolerated and must be stamped out. Is it so wrong to follow that order or are you so afraid of repeating the episode that you just cited that you would allow the rapes and forcible unwanted sexual advances to proceeds?I'm saying the Queen's Rules and the UCMJ should be the guiding principal, not the President's nor the Colonel-In-Chief's personal beliefs.

Blademaster
17 Aug 13,, 17:27
You're ignoring the bureaucracy. Once JAG got involved, they got their own little empire to protect and their Officers have to be promoted too.

I'm saying the Queen's Rules and the UCMJ should be the guiding principal, not the President's nor the Colonel-In-Chief's personal beliefs.

Well if the Queen's rules and UCMJ fall short on protecting the soldiers from rapes or unwanted sexual advances, a far more serious situation than holding hands, then I fail to see that how we should adhere stridently to the UCMJ.

Let me ask you this? Are we not doing enough to enforce the Queen's rules or UCMJ? If it is not, then Obama's comments can be rightfully interpreted as doing more to follow the UCMJ than exercising undue influence upon the judiciary process.

Officer of Engineers
17 Aug 13,, 17:36
Well if the Queen's rules and UCMJ fall short on protecting the soldiers from rapes or unwanted sexual advances, a far more serious situation than holding hands, then I fail to see that how we should adhere stridently to the UCMJ.The other side of this is how many women uses the threat of sexual charges to get what they want. There are women who deliberately get pregnant just to avoid deployment.

It is not as simple as rape.


Let me ask you this? Are we not doing enough to enforce the Queen's rules or UCMJ? If it is not, then Obama's comments can be rightfully interpreted as doing more to follow the UCMJ than exercising undue influence upon the judiciary process.I don't know. I don't have the statistics but it is not Obama's place to order punishment to the fullest extent of the law. That is the pre-orgative of the judge and jury.

Blademaster
17 Aug 13,, 17:38
The other side of this is how many women uses the threat of sexual charges to get what they want. There are women who deliberately get pregnant just to avoid deployment.

It is not as simple as rape.

I don't know. I don't have the statistics but it is not Obama's place to order punishment to the fullest extent of the law. That is the pre-orgative of the judge and jury.

Yes Obama can just as the same way the DoJ can request and order punishment to the fullest extent of the law for convictions of federal crimes. Ever hear of mandatory minimum sentencing?

Officer of Engineers
17 Aug 13,, 17:40
That is not the same as Mandatory Maximum sentencing.

Blademaster
17 Aug 13,, 17:45
That is not the same as Mandatory Maximum sentencing.

Then what are laws that mandated life without parole, or sentencing with no paroles allowed? We have those and they have been held up by the Supreme Court.

Officer of Engineers
17 Aug 13,, 17:49
If I am correct, the death penalty is the maximum sentence in the US and do note that the courts do practice charging lesser crimes (manslaughter vs murder) in plea barginings. What Obama effectively stated is that such will not be allowed.

Blademaster
17 Aug 13,, 17:52
If I am correct, the death penalty is the maximum sentence in the US and do note that the courts do practice charging lesser crimes (manslaughter vs murder) in plea barginings. What Obama effectively stated is that such will not be allowed.

that is no different from the DOJ saying to the judge or defense we will not accept plea bargains for less than this and that. If you don't like it go to trial and get the maximum worst.

Officer of Engineers
17 Aug 13,, 18:00
That is EXACTLY how the Defence is now wording this. In effect, there is no difference between a trial abnd plea bargining.

Blademaster
17 Aug 13,, 18:08
That is EXACTLY how the Defence is now wording this. In effect, there is no difference between a trial abnd plea bargining.

That argument doesn't hold up in the civilian courts. If there is no difference between a trial and plea bargaining, how is it undue influence? In plea bargain, you voluntarily accept your crimes and convictions whereas in trial, you get to protest your innocent and attempt to prove that there was not enough evidence to convict you of guilt. Not the same thing. In plea bargain, you accept the evidence against you. In trial, you get to see the evidence presented and defended and attacked in court.

Officer of Engineers
17 Aug 13,, 18:13
That argument doesn't hold up in the civilian courts.This is the military. You still have to work for the guy who thinks you're guilty, ie, Obama. Undue Command Influence.

Blademaster
17 Aug 13,, 18:16
This is the military. You still have to work for the guy who thinks you're guilty, ie, Obama. Undue Command Influence.

For a person who is guilty of sex crimes, why would you allow him to continue to work for you? He is a detriment to the unit cohesion and discipline. Put him in brig/stockade/prison and strip him of all ranks, etc.

Officer of Engineers
17 Aug 13,, 18:24
For a person who is guilty of sex crimes, why would you allow him to continue to work for you?Guilty of what? Fractinization in the Field? Holding hands with your wife?

Let's go up the ladder and even include sex. Even concential, in the Field, it's against the Queen's Rules and at least Discharge with Disgrace. But is it rape? Does the guy need to do time at the Edmonton Barracks?

Let's go further and the case is brought forth a Not Guilty, does the man retains his rank and his chances of promotion after this, right after Obama said he should be punished to the fullest extent of the law? What Officer would now speak up for this man, to get him his promotions, right after your C-In-C said punish him.

Obama should have shut up and leave this to JAG.

Blademaster
17 Aug 13,, 18:43
Guilty of what? Fractinization in the Field? Holding hands with your wife?

Let's go up the ladder and even include sex. Even concential, in the Field, it's against the Queen's Rules and at least Discharge with Disgrace. But is it rape? Does the guy need to do time at the Edmonton Barracks?

Let's go further and the case is brought forth a Not Guilty, does the man retains his rank and his chances of promotion after this, right after Obama said he should be punished to the fullest extent of the law? What Officer would now speak up for this man, to get him his promotions, right after your C-In-C said punish him.

Obama should have shut up and leave this to JAG.

Sex crimes are rapes and unwanted forced sexual advances, not those cited examples you just gave. Any person with two peas for a brain can tell the difference. You are engaging in Reductio ad absurdum arguments and no, Obama should not shut up. He is the commander in chief and he has the authority to tell to his troops not to engage in sex crimes. Obama is the President of the United States and JAG follows him, not the other way around.

Officer of Engineers
17 Aug 13,, 19:23
Sex crimes are rapes and unwanted forced sexual advances, not those cited examples you just gave. Any person with two peas for a brain can tell the difference.Fractinization is fractinization regardless if it involves sex or not.


You are engaging in Reductio ad absurdum argumentsYou are ignoring the arguements involving sex.


and no, Obama should not shut up. He is the commander in chief and he has the authority to tell to his troops not to engage in sex crimes.But he DOES NOT have the authority to influence the courts which is exactly what the Defence has been arguing and winning.


Obama is the President of the United States and JAG follows him, not the other way around.The President is not above the Law.

desertswo
18 Aug 13,, 06:39
I suppose 'harsher' penalties in relative terms means harsher than what we have now. Piling on is the usual reaction by lawmakers. Never solves the problem. Look at the war on drugs. Once in full swing, drug use, smuggling etc just got worse.

From your experience as judge and jury in military courts martial--BTW, as former Navy I know what Captain's Masts are :)--I'd venture to guess that you expected some of your decisions would get more outside attention than others, and I'd also venture to guess that at times you felt harsher penalties were called for when certain types of violations were becoming rampant.

We have something in common in that I too worked for several SecDef's, starting with Weinberger and both his successors, Carlucci and Chaney, but in a civilian capacity. Handled all their public and media stuff, and base visits, except black box stuff. Got to see them up close and personal. Weinberger was a good man; he got hosed in the Iran-Contra scandal, unfairly I think, thanks in part to his mil asst, that paragon of virtue, Colin Powell. Carlucci was the best of the bunch, administrative wise, but he wanted to make money so left and went to work for Sears International and then the Carlyle Group. Chaney I didn't serve for long. He, or at least his staff, thought their sh*t didn't stink and broke any rule they didn't like. But I'll say this about Chaney; he was a master of taking control. Came in and fired the first general who stepped out of line. Did wonders around the building. Anyway, I loved my job; of course, when Clinton came that was all she wrote for us Reagan-Bush appointees.

And then when that went to hell, he went out and got someone who at least had a brain; Republican Bill Cohen was a good guy, and he surrounded himself with good people. I didn't care what their politics were, they at least listened to the guys in uniform. Then came Rumsfeld, and I think the history pretty much speaks for itself.

desertswo
18 Aug 13,, 06:44
The point is not that the President shouldn't comment on the situation. It's that he shouldn't comment publicly on the situation. Once he has, in the eyes of the lawyers, and at the end of the day, a JAG is a lawyer, is a lawyer, is a lawyer . . .

When they hear something like that, they are going to use it to their advantage. It's not about being automatons or thinking beings, it's about trying to beat the system. They are using what the man upstairs threw them.

Minskaya
18 Aug 13,, 14:09
While I can understand his angst and frustration, Obama should have sought legal opinions before sounding off.