President needs to know law before he speaks
May 18, 2013 at 12:18 a.m.
Editor, the Advocate:
The May 8 article on military sexual assault reports reveals appalling ignorance of the military justice system and human nature and Obama's apparent violation of the law banning the exercise of unlawful command influence in criminal cases.
The assertion that sexual assaults are "a growing epidemic" confuses allegations with convictions. The "estimate" that "26,000 military members may have been" victims last year (based on a survey of whom?), is speculative.
For several years, I prosecuted or defended against such charges and later advised generals who exercised authority to convene general courts-martial to try viable cases or dismiss plainly unviable charges and to review verbatim records of trial and approve or disapprove findings of guilty and approve or reduce sentences. Very early in my career, I learned that alleged victims have fabricated allegations of such assaults in a significant percentage of cases. With a substantial increase in the number of women in the services and growing social experimentation imposed upon the services regarding their utilization, it is unsurprising that the number of allegations has risen substantially.
Obama reportedly said, "Any military member found guilty of sexual assault should be held accountable, prosecuted and fired." A court-martial alone finds a member guilty of this or any other serious offense; it holds a member "accountable." When it finds guilt, it may "fire" the member by imposing a dishonorable or bad conduct discharge if the convening authority and the military appellate court(s) later approve.
The military code that governs action taken on charges of serious offenses has, for more than 60 years, prohibited unlawful command influence by commanders on members of courts-martial and convening authorities acting in criminal cases. This applies to the president, who is commander-in-chief. His reported statement, as applied to an element of sentences in sexual assault cases, clearly orders courts to impose punitive discharges in all such cases. This clearly violates article 37a of the Uniform Code of Military Justice.
Jack A. Mullins, U.S. Army, Retired, Victoria