Somebody, Anybody, Teach The POTUS about UCI

Via the New York Times, President Obama still hasn’t learned to be mindful of unlawful command influence and its application to his position as Commander in Chief.

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.

Here, he talks specifically about the outcome of courts-martial and potential punishments. Former Army Judge Advocate General Thomas Romig (Major General, Retired) said it best.

“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.”

What are the possible outcomes?

At Shaw Air Force Base in South Carolina last month, a judge dismissed charges of sexual assault against an Army officer, noting the command influence issue. At Fort Bragg in North Carolina last month, lawyers cited the president’s words in a motion to dismiss the court-martial against Brig. Gen. Jeffrey Sinclair, who is accused of forcing a lower-ranking officer to perform oral sex on him, among other charges.

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. In Texas, a juror was dismissed from a military panel on a sexual assault case after admitting knowledge of the president’s words. In Alexandria, Va., Eric S. Montalvo, a former defense counsel in the Marine Corps who is now in private practice, has cited the president’s words in motions to dismiss two sexual assault cases, one against an Army sergeant and the other against a Navy seaman.

“Because the president is the commander in chief, it’s going to come up in basically every imaginable context in sexual assault cases,” said Eugene R. Fidell, who teaches military justice at Yale Law School.

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2 thoughts on “Somebody, Anybody, Teach The POTUS about UCI

  1. Glad you saw this. Almost sent you a link two days ago. Same or similar story seemed to have run in a number of high circulation publications which further disseminates the comments. I sent a highlighted PDF copy of the article to all my commanders.

    Seems like it is being well utilized by military defense counsel nationwide. Any thoughts on how long the prospect of UCI lasts — just for trials that were in progress, or until the end of the present term in office.

  2. I was a 1st Lt. JAG OFFICER at Ft. Ord in the 50’s when one day the Commanding General called all officers on base to a lecture wherein he told them to give any accused the maximum sentence – he was tired of seeing lesser sentences, remeber he knew which officers sat on each court, etc., etc. Defense Counsel challenged all base officers as subject to command influence and therefore not independent or qualified to serve on any Court Martials. That challenge was overruled and cases were forced to trial with this error preserved. It took 4 months for the first case (US vs Olivas) to reach the Military Appellate Court – the Court promptly ruled that this Command Influence required the Olivas case and all subsequent 40 cases tried at Ft Ord to be retried in another jurisdiction (San Francisco).

    During the 4 months while cases were being tried, the Commanding General ordered that the JAG officers (two at a time) be sent for 60 days special duty with a troop unit where they would participate in the activities of the unit and be efficiency rated for their service. We were told such service would stimulate in each of us an appreciation and understanding of the line officer’s responsibilities.

    During the 4 interval months, we JAG Officers proceeded cautiously fearing we might also find ourselves the subject of court martial. On the other hand, we were sworn to do our duty including representing accused to the best of our ability no matter the consequences. We had faith the higher military commands would see this situation for what it was and act promtly to correct it. We made direct appeals through military channels but were turned back at every instance. None of us wanted to involve the press or politicians and see the Army maligned without first giving the Army a chance to handle it. In desparation, we pursued a course of direct appeal to JAG Officers we knew on duty in the Office of the Judge Advocate General, including the Appellate Branch. One of these letters hit pay dirt and one of our JAGS got a telegram “Don’t Give Up. Stop. Help is on the Way.Stop.”

    Shortly,the Order came down from Wilbur Brucker, Secretary of the Army, to the Commanding General, Fort Ord and it:

    1) Removed his authority to convene any Court Martial’s.
    2) All orders sending JAG Offficers to the field will be promply revoked.
    3) He was ordered to assemble all officers on base and deliver a speech verbatim written by JAG Headquarters retracting his earlier improper remarks.
    4) Per the decision in US vs. Olivas, all 40 cases will be reversed and retried outside his jurisdiction.
    Finally, the Commading General was soon transferred to a minor post in Vietnam.

    All of us were very sad that this problem ever happened. But, once aware, the Army took appropriate and immediate action to correct the situation and assure all military accused a fair trial.

    President Obama is the worldwide commander in chief of all levels of the military, including the miltary justice system, instead of simply being a Commanding Officer of one base. In my view, his remarks were clearly inappropriate and rise to the level of improper Command Influence. IT WILL BE INTERESTING TO SEE IF THE MILITARY JUSTICE SYSTEM CAN PURIFY ITSELF of President Obama’s remarks. Perhaps, some of the actions taken in US vs. Olivas might be appropriate?

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