Article below and accompanying SECDEF memo are about a non-trivial, very high-stakes issue that threatens to destroy the military chain of command.  Principal immediate causes are the actions of two separate Air Force three-staff commanders, one of them female, who exercised their lawful discretion as courtmartial convening authorities in accordance with Article 60 of the Uniform Code of Military Justice.  What they specifically did was set aside the sexual assault convictions of two Air Force officers, a lieutenant colonel and a captain.  That led to several things, two of which are particularly important:  the female three-star has had her career destroyed — her promotion to a four-star command position has been suspended indefinitely.  Broader and worse, Senator Kristin Gillibrand (D-NY) is leading a Congressional crusade to take commanders out of the military justice loop, at least insofar as sexual assault cases are concerned.  All of the attendant publicity led to POTUS making the statements attributed to him and to military judges taking the actions attributed to them; I have read at least one of the MJs' decisions — very tightly reasoned; senior JAGs I talk to say it's 100% spot on.  This stuff is far from being over and, ultimately, Congressional action could jeopardize lives on some future battlefield.

SecArmy Letter 14 Aug 2013

Wednesday, August 14, 2013

“I won't be in a policy-making position,” Defense Secretary-designate Chuck Hagel memorably declared during his confirmation hearings in February. Six months later, Secretary Hagel is living up to that promise. He is engaged at the moment in a high-stakes effort at damage control–trying to unmake a mess that the commander in chief (along with Hagel's predecessor) made.

As this column noted, the New York Times reported on the problem last month:

When President Obama proclaimed that those who commit sexual assault in the military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” it had an effect he did not intend: muddying legal cases across the country.

In at least a dozen sexual assault cases since the president's remarks at the White House in May, judges and defense lawyers have said that Mr. Obama's words as commander in chief amounted to “unlawful command influence,” tainting trials as a result. Military law experts said that those cases were only the beginning and that the president's remarks were certain to complicate almost all prosecutions for sexual assault.

Now Stars and Stripes reports that “Hagel is pressing military juries and others involved in military criminal proceedings to exercise their own judgment based on facts.” The admonition comes in the form of a one-page memo, a copy of which this column has obtained.

Stars and Stripes' description of the Hagel memo is accurate as far as it goes. “To be clear,” the secretary writes, “each military justice case must be resolved on its own facts. Those who exercise discretionary judgment in the military justice process must exercise their independent judgment, consistent with applicable law and regulation. There is [sic] no expected or required dispositions, outcomes, or sentences in any military justice case, other than what result from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law.”

That's exactly the ethos that ought to guide the Judge Advocate General Corps and servicemen who serve on court-martial panels. That the top man at the Pentagon has been pressured to reiterate it is a very good sign–a hint that the moral panic over sexual assault in the military may be beginning to subside.

But Hagel's memo is far from sufficient. We now have conflicting messages coming from the top two civilian leaders of the military. And Obama outranks Hagel, so that his thesis still trumps Hagel's antithesis. If a military judge holding the rank of colonel instructed a court-martial panel to consider only the facts before them, that would not obviate the problem of unlawful command influence from the commanding general, the defense secretary or the commander in chief. The Hagel memo poses an identical scenario several levels up the chain of command.

And Hagel's memo is insidious as well as ineffectual. In addition to contradicting Obama's improper statements, the secretary also offers a benign reinterpretation of them:

Senior military and civilian leaders in the Department have an obligation to establish the standards of conduct expected of all military personnel. Drug abuse, sexual assault, hazing, and other criminal misconduct are not acceptable; senior leaders have made that clear and will continue to do so. But those comments are not made with the intent to indicate in any way what should or should not occur in any case. As Kathryn Ruemmler, the Counsel to the President, emphasized, “The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.”

This long paragraph can be summarized in eight words: Just to be clear, this is not UCI.

If you're been following this columnist's Wall Street Journal series on sex-assault cases, you recognize those words from our story about Trent Cromartie, the West Point cadet who was brought up on unsubstantiated sex-assault charges, acquitted and separated (expelled) from the academy anyway. Cromartie's appeal alleges UCI by commanders at several levels, including then-Defense Secretary Leon Panetta. As we wrote:

Perhaps the clearest indication of UCI came in April 2012, when the defense counsel asked Maj. Jeffrey Pickler, Mr. Cromartie's company tactical officer, to write a letter attesting to the cadet's good character. Maj. Pickler agreed, then sought advice from his superior, Lt. Col. John Vermeesch, who discouraged him from writing the letter. Maj. Pickler testified that Col. Vermeesch prefaced his recommendation with a pre-emptive denial: “Just to be clear, this is not UCI.”

“Just to be clear, this is not UCI” is a self-refuting statement. Its purpose was to influence Pickler–to reassure him of the soundness of the advice that followed. Pickler did in fact heed Vermeesch's recommendation and declined to write the letter of reference.

Hagel may not be in a policy-making position, but by virtue of being secretary he outranks every uniformed officer, indeed everyone in the chain of command except Obama himself. In putting forward this reinterpretation of Obama's words, he is encouraging military judges to reject the claims of UCI that have already been raised. Thus the Hagel memo itself constitutes unlawful command influence.