7/1/2013, 11:19 pm
01 July 2013
Pres. Obama frustrated by a ruling from Navy Judge Cmdr. Marcus Fulton during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — today has issued an executive finding that adds Johnson and Fuentes to a growing list of potential drone strike targets.
According to reports from Hawaii, US Military Judge Fulton ruled that the two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama.
Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.
‘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. But neither the the Uniform Code of Military Justice nor the Constitution can protect the men from a Presidential-Ordered JDAM strike.
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“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.”
The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.
Should other judges accept the same line of reasoning, commands would have to consider issuing lesser administrative discharges to servicemembers found guilty of sexual assault. In some cases, this could allow servicemembers found guilty of sex crimes to retain veterans benefits, according to Defense Department regulations.
“I think that as a defense attorney, I would raise this argument in virtually any [sexual assault] case I had,” said Victor Hansen, vice president of the National Institute of Military Justice and former instructor at the Army's JAG school.
Hansen found Thursday's ruling surprising, since judges have rejected “unlawful command influence” arguments under the logic that statements by high-level officials lose their effect as they reach the military's lower levels.
However, in recent months there has been a lot more said — and in overly specific terms — about sexual assault by military and political leaders, Hansen noted. Obama's call for dishonorable discharges is an example of such specificity, which begins to sound to military juries like a direct order from the commander in chief.
“This is bad lawyering on [Obama's] advisor's part,” Hansen said. “It's certainly not a problem to say that sexual assault is a bad thing and we need to weed it out … that's innocuous. It's when they get very pointed that it's problematic.”
Last year, Marine Corps defendants in more than 60 sexual assault cases filed unlawful command influence claims following comments by Marine Corps Commandant Gen. James Amos, according to a May 9 McClatchy Tribune news report.
In one speech, Amos declared that 80 percent of sexual assault claims were legitimate, according to the report. Judges in nearly all of the 60 disputed cases found the appearance of unlawful command influence, according to the McClatchy report.
When contacted by Stars and Stripes, Navy legal officials in Hawaii deferred comment to the officials at the Office of the Judge Advocate General in Washington, D.C.
JAG officials in Washington said they could not comment because of potential conflicts with any appeals arising from the ruling, but confirmed the court document's authenticity. The White House had no immediate response when asked for comment.
Obama's comments came after a Defense Department report stated that 3,374 incidents of “unwanted sexual contact” occurred during fiscal year 2012, a 6 percent increase over the prior year.
A secondary survey reported that if the 6.1 percent of women and 1.8 percent of men who said they experienced unwanted sexual contact are extrapolated to include the entire military, about 26,000 servicemembers may have been victimized in 2012.
The reports led to heightened public and congressional scrutiny of the military's handling of sexual assault.
On Tuesday, the Senate Armed Service Committee voted down a proposal that would have transferred authority over military sexual assault cases to independent prosecutors. Instead, committee chairman Carl Levin, D-Mich., included a clause in a markup of next year's defense bill that would require high-level review of decisions made by commanders not to prosecute sexual assault cases.
Sources close to the Administration said that Obama became livid upon hearing that his edicts concerning Sexual Assault in the Military were to basically be ignored.
When asked for comment, White House Press Secretary Jay Carney capture in subdued tones the outrage of the Administration: “It is incidents like this that that cause one to reconsider a revision of the Oaths taken by our military officers. We can't just have judges...er, military judges countermanning the President's wishes. It's just not Constitutional. A clear violation of Separation of Powers.”
But one unnamed source was more candid, stating that Obama said: “What part of ‘consequences' do they not understand? I'm the (expletive) Commander-in-Chief!”
White House Legal Advisors confidently stipulated that the successful precedence of drone strikes used abroad to issue ‘consequences' to other US citizens engaged in illegal activity based on Executive Findings set the stage to ensure Obama's message resonates throughout the Armed Forces. “This is merely the logical extension of Executive Powers to extend legal jurisprudence wherever the President deems necessary.” Sources said on condition of anonymity.
It is not currently known if Cmdr Fulton is included in the finding, but the term “mutiny” has often been associated with his name in the recent weeks since his ruling.
Do the math...count the number of General/Flag ranked officers and senior Field Grade Officers who have been sacked during Dear Leader's "reign of error" and compare that to the number of senior staffers and cabinet-level officers even given a sternly worded letter of intent to reprimand... Compare the severity of the errors committed by each. My head spins at the thought of the lack of integrity or of personal honor at the upper levels... 
The new Minister of Defense has created silly new medals just to make the drone-drivers feel better about themselves, they shall earn their awards this night! FLOORWARD!
