While 2012 saw military courts grapple with issues of unlawful command influence by senior military leaders, 2013 upped the ante with several cases of alleged UCI by senior civilian leaders, including POTUS himself. The first big story broke on May 7, 2013 when, in response to new DoD numbers on sexual misconduct in the military and several high-profile military sex assault stories in the media, POTUS stated:
The bottom line is: I have no tolerance for this…I expect consequences…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.”
These comments quickly led to UCI motions in sexual assault cases across the country, covered here. More interestingly though, it gave rise to UCI-related filings at the service courts of appeal for the Air Force, Navy and Army, although not necessarily in the way one might expect. Specifically, of the three writ appeals that received coverage on CAAFlog, two of them were filed by the Government.
The first case, United States v. Eller, Misc. No. 2013-15 (A.F. Ct. Crim. Ap.. Jun. 21, 2013), covered here, had potential for analysis on some really great issues. The Government filed a writ appeal to a ruling by the MJ granting a defense implied bias challenge to a panel member. It’s not entirely clear, but the Government seemed to think that the judge granted the challenge based on the member’s knowledge of the President’s remarks, as well as for her personal views on consent. Additionally, there was a separate issue, and maybe more interesting one, of whether the Government could even bring the writ appeal, since it would be outside of the Government’s Article 62, UCMJ appellate rights.
The end result was the Government looking a little silly after it derailed its own court-martial over a member challenge just to send up a trial balloon on the issue of POTUS UCI. AFCCA, in the spirit of the season, pulled out their Red Ryder carbine-action, 200 shot range model air rifle with a compass in the stock and this thing which tells time, and promptly dropped that trial balloon by affirming the MJ’s ruling based on the member’s statements about her views of consent.
The ACCA also declined to shed any light on the propriety or impropriety of POTUS’ comments, when it denied BGEN Sinclair’s request for a stay of his pending GCM to consider his writ on POTUS’ comments. See here and here.
Our last hope for some clarity on this issue from the service courts of appeal is with the NMCCA in the as-yet unresolved case of United States v. Johnson – or as it is currently titled at the court United States v. Marcus Fulton, No. 201300233. This case also comes in the form of a government writ appeal, after CDR Fulton ruled that, due to POTUS’ comments, a punitive discharge could not be adjudged against an accused, should he be convicted. See here.
Fortunately, the NMCCA will not be completely in the dark as to how to handle this case. In the middle of the POTUS’ comments controversy, CAAF delivered its opinion in United States v. Hutchins, No. 12-0408/MC (CAAFlog case page here). The majority reversed and set aside the findings and sentence on the granted issue of whether Sgt Hutchins’ Fifth Amendment rights were violated. Therefore, the majority did not reach the other granted issue of whether post-trial comments about the case by SECNAV constituted UCI. However, that issue did receive thorough treatment in Judge Ryan’s concurrence and Judge Baker’s dissent. While the two judges come to different conclusions about whether SECNAV’s comments constituted UCI, they both seemed to be in agreement that the standard framework for analyzing UCI claims against military commanders can and should be applied to civilian leadership.
It should also be noted that, likely in response to negative press on POTUS’ comments and the potential effects on courts-martial, the SECDEF did issue a retraction/clarification of sorts regarding military justice. (Covered here). My math may be wrong on this, but last time I checked SECDEF < POTUS, so it’s not clear that such a statement would fix the POTUS’ comments problem.
2014 could be an exciting year for this area of military law. Is the Government entitled to file writ appeals? Did the POTUS’ comments constitute UCI? If so, did the SECDEF’s memo cure it? All these questions and more could soon be answered (although I’m not really holding my breath). What would be refreshing though is if somewhere along the way there was a strong judicial statement, along the lines of the one from Judge Ryan in Hutchins, directly addressing the sexual assault mania that is currently animating the Beltway.
I think everyone would agree that sexual assault is a heinous crime that has no place in the military and society for that matter. I think most people would also agree that alleged victims of crimes should be treated with dignity and respect. But, I would also hope that most people could agree that those accused of crimes should be treated with similar dignity and respect and that they are entitled to a fair process. Not a process where the thumb of authority is pressed on the scales justice, whether that thumb is placed intentionally or unintentionally.