An item came over the transom very recently.  While deciding whether to publish or not Stars & Stripes scooped us – the item is in the news story.

36 Responses to “What might be a remedy for leaders comments about sexual assaults”

  1. K Fischer says:

    ’bout time………of course, this plays right into Senator Gillibrand’s narrative.  The CiC cannot order a punitive discharge for a rapist?  We need to change that, too…..

  2. Sea Lawyer says:

    The CAAF has yet to release its decision in Hutchins.  I suspect that opinion–addressing UCI from SECNAV–will have some bearing on this issue.

  3. stewie says:

    I can’t imagine the govt wont appeal and that the service court wont overrule.
    So folks REALLY think the President’s comments should now mean that no one gets discharged ever for sexual assault? Ipso facto?

  4. Christopher Mathews says:

    I rather expected the decretal paragraph of the opinion to end with the words “So there.”  It was a little more subtle than that, but only a little.
    If the conclusion of the military courts is that “the application of the doctrine … referenced by Article 37” means that elected leaders cannot be allowed to speak and act freely in their Constitutional roles — as commander-in-chief of the armed forces or as members of the body that makes rules for the government and regulation of the armed forces — without potentially undermining the administration of military justice, then the military justice system as we know it is ready for the scrap heap.

  5. W.T. Ph.? says:

    Hey where’d the list of the contributors go?  It used to be right down there on the right hand side!!!
    Are the contributors going deep deep deep undercover for the good of the republic?
    Things are getting exciting at!

  6. Babu says:

    @ChristopherMatthews:  Are you able to distinguish any of the MJ’s cited case law (Hagen/Simpson/Fowle/Doherty), or identify any specific flaws in his legal reasoning?  Or is it just that you don’t like the outcome?  As a corollary, suppose POTUS/SECDEF/Service Secretary hypothetically said, “I have seen Youtube videos of Private Snuffy punching a puppy.  This conduct is unacceptable for our military.  Private Snuffy should be court-martialed, convicted and dishonorably discharged.”  If you were the MJ at Private Snuffy’s subsequent GCM for punching a puppy, you would be cool with that, and write it off as our leaders acting and speaking freely in their Constitutional roles?  You would not conduct any sort of UCI analysis?
    @stewie:  While I am sure NMCCA would reverse after it conducted a “full and public vetting of the UCI claim,” I don’t think CAAF would play ball, although I guess we will see (disclaimer:  I am counsel on Hutchins).  But rather than fighting to carve out exceptions in the law which would permit civilian leaders to influence military justice, wouldn’t the better option just be for the President to “clarify” his statements?  


    Stewie:  I don’t believe that this is an appealable decision under Article 62, UCMJ.  It doesn’t exclude evidence and doesn’t terminate the case or amount to same. 

  8. Christopher Mathews says:

    @ Babu –  I think the ruling is correct to the extent that it recognizes Article 37 does not apply to the President’s statements, nor to those of members of Congress. 
    I think it goes astray by applying UCI doctrine anyway, and in particular by stretching it to reach this particular result.  The Doherty decision, which the ruling relies on to extend “the application of the doctrine of unlawful command influence” to civilian officials’ comments, provided that if the action of the convening authority is prompted by a belief that he is obliged to act in a specific matter, the accused is entitled to reconsideration by a convening authority properly apprised that the action is not in fact mandatory.  That’s considerably short of this ruling’s reach, which presumes such a belief (despite the convening authority’s statements to the contrary), treats that presumption as irrebuttable, and then awards a remedy that (as stewie noted above) appears to mean that — in this judge’s court, at least — from now on, no punitive discharge can ever be awarded for a violation of Article 120. 
    If the ruling is correct and no convening authority can be expected to faithfully exercise his duty of independence in the face of “policy pronouncements” by the President or members of the Senate, then I think that is possibly the strongest argument to date for eliminating the role of convening authority altogether.  If the military justice system as presently constituted cannot withstand the intolerable stress of free speech by civilians, then it is simply too fragile to survive.

  9. Babu says:

    @ChristopherMatthews:  Do you think CAAF was incorrect in Hagen and Simpson when it indicated that UCI analysis can apply to civilian leadership?  There must be some legal methodology for analyzing their statements about military justice, and CAAF has determined that UCI is the appropriate rubric (i.e. a Biagase burden shifting analysis).  The only way to get around the requirement for a formal methodology is, as you apparently suggest, to give civilian leadership blanket privilege under the rubric of “free speech.”  In which case, if you were the MJ at Private Snuffy’s GCM, you could take no corrective action.  But if, however, you would take some corrective action (instructing the members, getting testimony from the CA, etc.), then under which legal regime would you be resting to take such action?  Why would such action even be necessary if civilians exercising free speech is no problem?
    Regarding the fragility of military justice.  Of course it is fragile…we are attempting to guarantee Constitutional rights and due process within a system that is not truly independent.  That requires virtuous restraint from the chain of command (military and civilian), restraint which they generally have shown over the past several decades.  The problem now is that Congress and civilian leadership appear to have abandoned the restraint necessary for this to work.  So I agree with the MJ’s ruling as a necessary response.  But I also agree that if the current state of affairs from civilian leadership is the new normal, then we may as well shut this whole thing down. 

  10. COL Mustard says:

    @Charlie Gittens You are correct that this is not subject to an appeal, but it IS subject to an extraordinary writ under the All Writs Act.  The Government does not have the benefit of the automatic stay, but nothing would prevent the CCA or CAAF from issuing one.  Didn’t that happen in the AF case where COL Henley prohibited the dismissal in the Murphy case?

  11. Phil Cave says:

    I tend to agree with you as to past situations.  For example we saw that with the Marine Corps cases from Iraq.
    But I think this is different.  The CiC and Congress are not ordinary civilians.  If Mr. Smith or Ms. Jones want to call for hang-draw and-quatering, they can.  They don’t have the type of influence over the result.  We have a Congressperson “punishing” a general officer (and the AF and DOD) because she did not like that GO’s decision to set-aside a decision in a specific case.  The idea that such an action and that of LtGen Franlin are not liked and perhaps wrong, is fine – have a discussion about the concept.  And perhaps it’s a good idea to remove that power.  Although be careful because all those convicted of a 120 who do not get a punitive discharge or at least a year definitely do NOT get robust appellate review, and then have to go off and register.
    There are many times as a SJA or TC I have thought to do something.  I have looked, and I have decided it was legal.  But then I have asked, is that right.  I think some people in authority need to start asking that question.  I don’t think changing some of the rhetoric will take away from the earnestness or validity of appropriate comments and discourse.  Rather, I think it would contribute.
    Withholding CA is not a new or unused concept to the military.  It happens in all officer misconduct cases – authority is withheld to a certain level of command.  Where the GCMCA tells a CO to court-martial someone we look at that as potential UCI.  If the same GCMCA says give me the case, I will decide, then we look at that as an exercise of lawful authority.  But, if that GCMCA then asserts influence over the specific court we are back to UCI, not for taking the case but for what is then done.  
    I am not saying that the Commander in Chief or Congress should neglect their duties.  They do have an important role in supervising these serious issues.  But the climate is such that this goes beyond (IMHO) such good faith efforts.  There cannot be any (IMHO) other perception to GO’s, aspiring colonels, aspiring Lt Cols, aspiring majors, aspiring captains, whose promotion must be approved by the Senate, that they are being “directed” to certain actions.  The good news is that most, despite rhetoric from some, are honorable people who want and will do the right thing, regardless.
    I well remember after Tailhook having to sign a declaration that I had never been present anywhere at that convention before I could be promoted.  There were a number of Navy JA’s who were present and completely uninvolved who were taken off promotion lists because of their mere presence at the convention (is my recollection).  So I believe what’s happening goes way beyond.  That group punishment (outlawed I believe in some Conventions) didn’t go unnoticed or unresented.  As a result it may have had a counter effect to that intended.
    Keep in mind that we have a military crimial law system that is controlled by  the commander in chief and SecDef (super-CAs [check Art. 22]) and congress. (AND it is not within the Judiciary Committee.  In fact there’s a continuing rice bowl issue over that I believe.  You dont’ have the judiciary committee making rules for the federal courts engaging in the type of oversight seen here.)  This is a system that designs what should be a fair and just system for the accused and to hold them guilty according to political, social, and legal principles going back well beyond the first civil war in America.  Everything right now is unbalanced.  I read some of the comments by readers to the media reports which gives a a clear perception out there among the public that this is a gender issue.  It definitely isn’t, the statistics show more men sexually assaulted than women, there are women who sexually assault men, and I wonder that the unreported assaults are more weighted to men because of an even greater unwillingness to report and be stigmatized and harassed.  
    Congress and the CIC are in the position of a CA, with control and influence.  We have litigated for years about independence of the military judiciary for example, the idea that the CA picks the members, etc.  Well, that’s moving from the CA who is at least technically bound by Art. 37, and who in most cases acts honorably within those constrains, to a system where it is the CiC and congress using their power.  And when that power is directed to a specific case or specific class of cases then I think that could be considered an abuse of power.  In fact, I would argue that fits right into the “unauthorized” influence that was added to the UCI paragraph in the Gillibrand proposal, as an LIO of UCI.
    Making sure the system enforces the law and holds violators accountable and making sure the system convicts everyone based on an allegation regardless of the evidence is not a system that will be respected, and once there is a lack of respect it will not be an effective restraint on behavior.
    Break, break.
    W.T.Ph?  Don’t know, noticed that myself, you’d have to ask Zach.

  12. stewie says:

    There is nothing in the Presidents statements that says “convict everyone accused of sexual assault.”  Nor does it say kick out everyone convicted of a 120 offense.
    Sorry but I find all of this hyperbolic.  Clarifying would change the argument that Commanders feel pressure to go forward.  Commanders have felt pressure to go forward for almost a decade now.  So I don’t find that argument all that persuasive either.
    The solution is to allow defense counsel wide latitude in voir dire or members to deeply examine whether they will feel pressure to convict against what they believe the evidence shows or that they feel pressure to give a harsh sentence, or any sentence.
    We know the law is going to change inevitably to make mandatory minimums for serious sexual assaults of a punitive discharge, and I don’t really have a problem with that as the universe of cases where someone is convicted of a serious sexual assault who also shouldn’t be discharged is microscopic IMO, and the best-case scenario is that this will keep panels from splitting the baby and convicting someone of a serious offense and then giving a light sentence.  If you have reasonable doubts, then don’t convict.
    We can cheer all of this on, but what’s going to happen is more and more pushing towards civilians running it, and that I think is worse for everyone, accused and victims and justice alike.

  13. Christopher Mathews says:

    @Babu – To the extent that CAAF, or anyone else, purports to apply Article 37 to policy statements by civilian leadership, I think they are plainly wrong.  To the extent that judges purport to admonish or restrain civilian leaders with regard to such policy pronouncements, they overreach.  The President and members of Congress have Constitutional roles that Article 37 cannot supersede. 
    If cases like Hagan and Simpson are merely read to provide a “methodology for analyzing” the possible prejudice to a particular accused of statements regarding his case, I have no particular issue.  As I indicated above, I think creating what amounts to an irrebuttable presumption of prejudice is a bridge too far. 
    Finally, I disagree with your statement that “the problem now” is that civilian leaders have abandoned the “virtuous restraint” necessary for the system to work.  I think the problem now is that military leaders have not shown the civilians that restraint is all that virtuous.  For the most part, the military is allowed to police itself; but when self-policing doesn’t meet expectations, it’s not going to survive.  As I remarked some time ago, this is what comes of telling the world you have a zero tolerance policy for certain things when you really don’t.  Civilians have come to expect that the military will not tolerate sexual assault because we say we won’t — but what they see us actually doing doesn’t seem to match what we say.

  14. Zachary D Spilman says:

    To the extent that CAAF, or anyone else, purports to apply Article 37 to policy statements by civilian leadership, I think they are plainly wrong.  To the extent that judges purport to admonish or restrain civilian leaders with regard to such policy pronouncements, they overreach.  The President and members of Congress have Constitutional roles that Article 37 cannot supersede.

    I see a lot of argument that “policy pronouncements” are excluded from the prohibitions in Article 37. Even if this is true (and I don’t agree that it is), musings about punitive dispositions are hardly “policy statements.” And if they were (i.e., it’s “policy” that all cases of a certain type be referred for trial), then I think they would suffer from a severe constitutional infirmity. 

    There are dangers lurking in military trials and our system only survives constitutional scrutiny because of a careful set of checks-and-balances. One can only tip the cart so far before it topples over.

  15. Christopher Mathews says:

    Zach, the distinction in the passage you quoted above is not whether some statements are excluded from the purview of Article 37 because they’re policy pronouncements, but rather whether Article 37 covers statements by civilian leaders. 
    In this respect, the trial judge’s reasoning tracks my own comments here a month ago.  Article 37(a)’s first clause provides that no person convening a court-martial may “censure, reprimand, or admonish” the personnel “thereof” with respect to the “the conduct of the proceedings.”  Since neither the President nor any of the other civilian leaders whose conduct is being questioned by the military convened the Johnson court-martial, that clause does not apply.  See Order at 6.  The second clause of Article 37(a) applies to persons subject to the UCMJ, and therefore likewise does not reach the President or members of Congress.  See Order at 7.

  16. Zachary D Spilman says:

    Got it. And that’s a fair point. But I think the law of UCI is very unsettled right now, considering the unprecedented developments over the past 18 months. Notably, while we’re seeing trial judges take action, I don’t think we’ve seen any CCA tackle the influence consequences of the sexual assault crisis. Yet.

  17. Babu says:

    And if you concede that a Biagase UCI analysis (initial showing of “some evidence” and then burden shift to the govt) appropriately applies to statements/actions by the civilian chain of command, then Article 37 is irrelevant.  As a  matter of case law then, rather than statute, civilians in the chain of command are constrained in the same manner as the military chain of command.  So call it Article 37 or not, but if there is some evidence that statements/actions by civilian leaders have influenced proceedings, then the govt must prove harmlessness beyond a reasonable doubt.   

  18. Phil Cave says:

    Hyperbole it may be – fine. 
    But we’ve been here before.  Remember Haditha, Hamdaneyah, and a certain Pennsylvania congressman.  In that case he was essentially a lone voice.  One who was at one time sued by one of the accused’s.  This is more serious because it’s not a lone voice.  So, what I say today may be hyperbole, but come back in three or four years.
    On the auto BCD at SPCM and auto DD at GCM.  If that’s what the President and DOD wants why then don’t we have it.  I’m going to stick my neck out for “My Liege” Dwight  Sullivan to chop off.
    The President recently published the punishments for the new 120.  He could of directed that all cases where the accused is convicted of certain offenses a punitive discharge will be mandatory.  He’s done that with certain murder cases hasn’t he as to minimum life.  I don’t think it’s prohibited to mandate a discharge by Art. 57, is it Dwight?

  19. Christopher Mathews says:

    As a  matter of case law then, rather than statute, civilians in the chain of command are constrained in the same manner as the military chain of command.
    No they are not.
    Article 37 prohibits certain conduct by certain categories of persons.  It is a restraint whose violation was considered by the drafters of the Code to be a prosecutable offense under Article 98.  There is no corresponding restriction on the conduct of the President or the members of Congress in the execution of their offices, and there is no corresponding potential penalty.
    The issue is not whether there has been a violation of Article 37; there hasn’t been.  The question is not whether there has been “unlawful command influence;” unless we can find something that makes what the President and the members of Congress have done “unlawful,” then the question is at best sloppily-phrased and at worst politically-motivated.  The proper question is, as it should be, whether the accused can receive a fair trial.  I think the ruling in this case creates a prospective and irrebuttable presumption that he and others similarly situated can’t, and I think that’s a stretch that goes well beyond what the case law supports.

  20. Ed says:

    Christopher Matthews
    How about SecNav when he specifically targeted Hutchins. Not a general comment but acts concerning one case.
    What is your opinion on that?

  21. Brian says:

    So does this become an almost required filing by defense counsel in all sex assault cases going forward?

  22. ContractLawyer says:

    I caught what the President said and he was just making a self serving political grand standing statement.  He wanted to be the big man and make the big statement.  Now it causes motions in all the 120!or SA cases.  This is going to cause the Government a lot of problems in attempting to do the thing that the statement attempted.  Had a GO said something that caused as much trouble, they would be facing adverse action and retirement at a grade or two lower. In any case,  it is funny how things come home to roost sometimes.

  23. Babu says:

    Applying the phrase “unlawful command influence” to civilians may be “sloppily-phrased” or “politically-motivated,” but at risk of beating a dead horse, that is the phrase used by CAAF when referring to influence from civilian leadership. From Simpson: “In that regard, we note that senior officials and the attorneys who advise them concerning the public statements should consider not only the perceived needs of the moment, but also the potential impact of specific comments on the fairness of any subsequent proceedings in terms of the prohibition against unlawful command influence.” 
    So unless CAAF reverses itself, actions by civilian leadership which can negatively influence military justice proceedings should continue to be identified and analyzed under the rubric of “unlawful command influence.”

  24. stewie says:

    Mr. Cave, I was speaking of the proposed law from Congress talking about setting a mandatory minimum punishment of a punitive discharge for serious sexual assaults, not about whether or not the President might do it…although I suppose that’s a future possibility too.
    I don’t think three or four years is going to change anything based on the President’s statements.  What may and probably will change will be the law via Congress.
    I would be very surprised if many other judges adopt the position in this case, or if CAAF or the Service Courts do either, so  I do not think this is going to cause the government a lot of problems other than one more standard motion to respond to.  Obviously, I agree after this ruling, all DC in every sexual assault case should attempt this motion, nothing to lose by doing so.

  25. Christopher Mathews says:

    @ Ed – I haven’t followed the Hutchins case closely, but I would in general be more concerned with statements about a specific accused.
    @ Babu – It’s not often you see a sentence that’s more plainly dicta than the one you cited.  As I noted upthread, using UCI analysis to provide a methodology for analyzing the possible prejudice to a particular accused of statements regarding his case causes me no particular heartburn, and I think that’s pretty plainly all that CAAF was suggesting.  Creating what amounts to an irrebuttable presumption of prejudice, as appears to be what happened in Johnson, goes way beyond that.
    @ CL – I caught what the President said and he was just making a self serving political grand standing statement. That’ll help in in his next run for office, for sure. Or, I suppose it’s always possible that he was sincere in his statements. You can never tell about politicians.

  26. Atticus says:

    Not surprised.  Former Code 45er. We’ve lost all common sense. We can’t trust military panels to follow legal  instructions.  We can’t let the voir dire process address it. We have to get our name in lights.  And continue feeding the beast that is trying to destroy us. 

  27. Babu says:

    If you read the MJ’s order, the issue was with the CA, not the members.  In that regard, in light of an affirmative statement from the Commander-in-Chief, combined with the ongoing examples of LtGen Franklin and LtGen Helms, do you truly believe that a CA could fairly and independently make a decision to disapprove a DD in a sexual assault case?  What does “common sense” tell you?

  28. stewie says:

    Common sense tells me that most CA are decent people, and if they truly thought that there wasn’t enough evidence to go to trial, and their SJA was telling them that there wasn’t enough evidence to go to trial, then they probably won’t go to trial.  Same goes for determining punishment.
    Having said that, I think the universe of cases where a sexual assault conviction shouldn’t result in a punitive discharge (BCD or DD) is so tiny as to be almost microscopic.

  29. Babu says:

    Are you convinced “beyond a reasonable doubt” that CAs will be independent when it comes to approving or disapproving a sexual assault DD (or negotiating a PTA which requests DD protection)? 

  30. stewie says:

    The vast majority? Yes.  Now, there are all sorts of reasons why a CA might not be independent “BRD” as individuals.  They could have a bias against a certain offense that is unstated, they could feel pressure in a certain area, they could have an SJA who feels biased against certain offenses, they could be predisposed to just “listen to their SJA” which would also mean they weren’t necessarily independent.
    I’m sure others could name more examples.  Again though, as I said, I think the universe of cases where one could reasonably think a DD or BCD isn’t a fair punishment for a serious sexual assault conviction is so small as to be almost non-existent.

  31. Babu says:

    The President made no distinction for “serious” sexual assaults.  His comments concerned “sexual assaults,” which could be reasonably interpreted to be a 120 conviction.  So how about this hypo:  An E-9 with 25+ years of service in the infantry, recently had both legs blown off in A’Stan, is at a mess night in his wheelchair, gets extremely drunk, and on the dance floor grabs several womens’ private areas and makes lewd comments.  We know intoxication is no defense, and the lewd comments ensure that the grabs will be seen as sexual.  So this is most definitely “sexual assault.” 
    I would submit that it is within the realm of reasonable to have a CA disapprove a DD in such a circumstance, considering that a DD would sever VA and retirement benefits.  But are you comfortable that in today’s climate and in light of the President’s direction a CA in this case could independently entertain a PTA request which seeks a suspended discharge?  Are you certain BRD that sans PTA, a post-trial clemency request to disapprove a puntivie discharge would be fairly considered by a CA? 
    If you are not, then what would you propose as a remedy?

  32. stewie says:

    Respectfully, you talked earlier about common sense.  Do you really think anyone is going to reasonably interpret the President’s remarks to encompass a drunken grab and lewd comments in your hypo?  Really?
    This is what I am talking about when I say hyperbole.  It isn’t a “sexual assault”, either colloquially or legally.
    And yes, I am very comfortable that in such a hypothetical if a DD were given, which is almost certainly wouldn’t be, a CG disapproving it wouldn’t exactly draw a lot of scrutiny.  This is an extreme hypo; you selected it as extreme to make a point.  You’d be better off coming up with a hypo involving a low level sexual assault, like say two drunk kids having sex, where they are both young, no force is involved, both are significantly intoxicated, and let’s say the accused is a war hero or some other high mitigation.
    Such a hypo would be far more likely to happen and far more likely to not involve a discharge of any kind, and a far more reasonable argument to make on your point than the one you just proposed.

  33. Atticus says:

    Common sense tells me the President never thought about courts martial cases being affected.  Common sense tells me that – unlike  alot of persons who regulalry post on this blog – the President does not have the time to get a daily briefing from some JAG about the concept of UCI.  The President does not sit around reading about military justice.  I don’t know that I have ever heard of a President who did. So the idea that there is some JAG lawyer/adviser sitting next to him and telling him what he ought or ought not say (like we might expect a service JAG to do with the CNO or the CMC for example-see Gen Amos) is kind of humorous.  Common sense tells me we shoudl actually probe the panel to see if, first, any of them even KNOW about the comments.  Second, if they actually know about the comments, common sense tells me we shoudl ASK THEM if they have been or will be affected by the comments.  If they say no, I guess your approach is to call them liars and prejurers and deliver draconian remedies that will have no deterrent effect on future Presidents, because, as I have said, I don’t think the President has time to sit around reading military justice caselaw. 

  34. k fischer says:

    I remember hearing somewhere that UCI is the carcinoma to military justice and when found must be surgically eradicated.  It also has been described as the mortal enemy of military justice, to which the military judge is the sentinel.  You guys are making it sound like it is a mosquito bite.
    I don’t care whether or not the President had every TJAG behind him when he made the statements, the appearance of those statements indicates that a Servicemember cannot receive a fair trial when the Commander in Chief has stated that anybody engaging in this stuff should be stripped of rank and dishonorably discharged.  
    The military judge could have killed two birds with one stone.  Why not dismiss without prejudice and allow Eric Holder or the local District Attorney the opportunity to prosecute this case, so those ignorant good ‘ole boys can see how sexual assaults should be prosecuted?

  35. stewie says:

    No, we make it seem like it is not UCI.

  36. Butters says:

    “Don’t tell me words don’t matter. ‘I have a dream’ – just words? ‘We hold these truths to be self-evident, that all men are created equal’- just words? ‘We have nothing to fear but fear itself’ – just words? Just speeches? – Barack Obama, February 16, 2008He knew the impact that his words would have on the military justice system. If he didn’t think his words had impact, then why speak about the topic in speeches? Why have your Defense Secretary and the Service Secretaries also speak about the topic in their speeches? We had one recent President hold military members accountable for a law that he would have been prosecuted for committing. Now, perhaps, we have two.