Do not presume that Military Justice exists in some familiar way

When a female soldier is sexually assaulted by a fellow soldier, and a commanding officer can make the crime disappear with the stroke of a pen, or the wave of his hand, that’s not justice. That’s Military Justice.

And the more I find out about this bizarre animal the less impressed I become. In fact, I’m inclined to believe that the military take the same attitude toward ‘justice’ that they take toward women: Maybe. And: Depends upon the situation.

Now I come across this:

Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” [about] derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court this week.

These were the President’s comments:

“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.”

Back to the circus:

Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.

I bolded the important bit there. I read the Judge’s decision to block sentencing in these assault cases [here], but that is not his reasoning. The article is absolutely wrong.

Unfortunately, you’re going to have a hard time believing the actual ruling. If you’re like me, your head is about to explode. Fulton ruled that no member of the court was influenced. The people in uniform weren’t the problem. That should be case closed. But No. Fulton averred that the problem was that the public had been influenced. Therefore, Americans’ perceptions of the sentences handed down for punishment would be presumptive. The trust placed in the military courts would be abused, and therefore punitive court-martial needed to be voided.

If this isn’t one of the dumbest rulings I’ve ever come across:

At a minimum the court finds that a member of the public who is aware of all the facts and circumstances in this case would have doubts about whether the accused would receive a post-trial review of any punitive discharge that was untainted by improper external influences. A disinterested and informed member of the public would believe that the Commander-in-Chief’s statements about the military are significant to a flag officer. A member of the public would believe that the post-trial actions of a flag officer are acts of significance, and that the officer’s seniors would take note of them particularly in the current climate surrounding the issue of sexual assault in the military. A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable. A member of the public would draw the connection between the “dishonorable discharge” required by the President and a punitive discharge approved by a convening authority. The strain on the system created by asking a convening authority to disregard this statement in this environment would be too much to sustain public confidence.

What a freak I am, huh? Me being the non-existent member of the public who did believe “the President’s statement to be a simple admonition to hold members accountable.” Given I don’t exist, Fulton had no choice but to remedy the President’s “unlawful command influence” — over the public?! — by nullifying proper punishment for sexual assault. And just to make Fulton’s opinion crystal clear, here was his ruling as to the actual (relevant) “influence” on members of the military:

Effect of the statement on members

The Court finds there is currently no evidence that members are influenced by the President’s statement. It may be that members in this case have not heard of the statement or, if they have heard of it, they may have already forgotten it.

So nobody that could convene a hearing, preside over one as a judge, or sit in judgment of a defendant has been unduly affected. It’s only the people outside the military who have been victimized by the Commander-in-Chief’s “unlawful command influence.”

Now that this ruling’s come down, you know what it means.

The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.



4 thoughts Do not presume that Military Justice exists in some familiar way

  1. avatar Rev. Howard Furst says:

    In contrast, here’s a different perspective from upside-down Australia. Lt. Gen. David Morrison, chief of the Australian Army says this about sexual harassment and assault by people in his army:

    “Those who think that it is okay to behave in a way that demeans or exploits their colleagues have no place in this army,” he says in the video. “On all operations, female soldiers and officers have proven themselves worthy of the best traditions of the Australian army. They are vital to us maintaing our capability now, and into the future.

    “If that does not suit you, then get out,” he states. “I will be ruthless in ridding the army of people who cannot live up to these values, and I need every one of you to support me in achieving this.”

  2. avatar toma says:

    Why can’t an American officer say this? Why can’t American leadership actually lead? It’s not complicated in any way. ‘We will never tolerate sexual assault of any kind. We will put you in prison.’ That would be a good start.

    The original title of this post was ‘PRIMA DONNAS.’ I wonder how it is that these guys manage to fight overseas. They seem to complain about everything.

  3. avatar Rev. Howard Furst says:

    The real dirty little secret is that U.S. girl soldiers are better fighters than boy soldiers. That’s what’s really going on.

  4. avatar toma says:

    I wouldn’t be surprised if you were right. 1/3 of the Israel Defense Forces are women, and they haven’t lost any wars. If I had a daughter, I couldn’t in good conscience advise her to join the American military. It’s a toxic, if not downright dangerous, environment.

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