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The New York Times

July 13, 2013

Obama Words Complicating Military Trials


WASHINGTON — 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.

“Unlawful command influence” refers to actions of commanders that could be interpreted by jurors as an attempt to influence a court-martial, in effect ordering a specific outcome. Mr. Obama, as commander in chief of the armed forces, is considered the most powerful person to wield such influence.

The president’s remarks might have seemed innocuous to civilians, but military law experts say defense lawyers will seize on the president’s call for an automatic dishonorable discharge, the most severe discharge available in a court-martial, arguing that his words will affect their cases.

“His remarks were more specific than I’ve ever heard a commander in chief get,” said Thomas J. Romig, a former judge advocate general of the Army and the dean of the Washburn University School of Law in Topeka, Kan. “When the commander in chief says they will be dishonorably discharged, that’s a pretty specific message. Every military defense counsel will make a motion about this.”

At Shaw Air Force Base in South Carolina last month, a judge dismissed charges of sexual assault against an Army officer, noting the command influence issue. At Fort Bragg in North Carolina last month, lawyers cited the president’s words in a motion to dismiss the court-martial against Brig. Gen. Jeffrey Sinclair, who is accused of forcing a lower-ranking officer to perform oral sex on him, among other charges.

In Hawaii, a Navy judge ruled last month that two defendants in sexual assault cases, if found guilty, could not be punitively discharged because of Mr. Obama’s remarks. In Texas, a juror was dismissed from a military panel on a sexual assault case after admitting knowledge of the president’s words. In Alexandria, Va., Eric S. Montalvo, a former defense counsel in the Marine Corps who is now in private practice, has cited the president’s words in motions to dismiss two sexual assault cases, one against an Army sergeant and the other against a Navy seaman.

“Because the president is the commander in chief, it’s going to come up in basically every imaginable context in sexual assault cases,” said Eugene R. Fidell, who teaches military justice at Yale Law School.

Mr. Obama’s comments come at a time of intense scrutiny of sexual assault in the military. A recent Pentagon survey found that an estimated 26,000 men and women in the military were sexually assaulted last year, up from 19,000 in 2010. At the end of the last fiscal year, Sept. 30, there were roughly 1,600 sexual assault cases in the military either awaiting action from commanders or the completion of a criminal investigation.

White House officials said Mr. Obama’s remarks, made in response to a reporter’s question, were meant to demonstrate his concern about the issue and were not intended to recommend penalties for offenders.

“The president was absolutely not trying to be prescriptive,” said Kathryn Ruemmler, the White House counsel. “He was listing a range of examples of how offenders could be held accountable. The president expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.”

Some military law experts said that while defense lawyers would naturally use the president’s words to try to have cases dismissed, they would be pushing legal boundaries. Mr. Obama, they said, used the phrase “dishonorable discharge” as a catchall for getting assailants out of the military and not in its strict, technical meaning.

“There is a point at which the statements of civilian officials could be so specifically directed, or so inflammatory, that a military defendant is deprived of due process,” said Diane H. Mazur, a professor emeritus at the University of Florida Levin College of Law. “But I don’t think the president’s remarks come close to that level.”

But others said it was hard not to see the potent meaning in Mr. Obama’s remarks, particularly on Capitol Hill, where lawmakers are contemplating making dishonorable discharge an automatic punishment for convicted offenders.

“There is a tension created between trying to give the victim their day in court, but you can’t ignore the defendant’s rights,” said Victor M. Hansen, a former military lawyer who is now an associate dean at the New England School of Law in Boston. “Whatever efforts are made to better address sexual assault, there is always the other side of the equation if someone gets too out front of the issue.”

The president’s comments have not been the only ones cited as influencing sexual assault cases. Last year, lawyers in more than 60 Marine Corps sexual assault cases filed motions claiming “unlawful command influence” because of a series of remarks made by Gen. James F. Amos, the commandant of the Marine Corps, according to a McClatchy-Tribune news report.

Lawyers said it was too soon to know how many judges would grant motions for dismissal because of Mr. Obama’s words. They said that in many cases, judges might stop short of that and rule that defendants should stand trial but not be punitively discharged — as the Navy judge, Cmdr. Marcus Fulton, did in the Hawaii case. (The prosecution is appealing the ruling.) Lawyers said that some judges might simply instruct jurors to disregard the president’s remarks.

But at Shaw Air Force Base, the judge dismissed the case last month against the Army officer based on a motion filed by the officer’s defense lawyer, Scott M. Somerset. In a military built on obeying the orders of commanders immediately and without question, Mr. Somerset made this argument in his motion: “The president publicly stated that a particular court-martial punishment is the correct response to the crime of sexual assault.” He further argued, “What choice would that seem to give” a judge “if the commander in chief is telling him to dishonorably discharge anybody who has engaged in sexual assault?”

In Hawaii, Commander Fulton wrote that Mr. Obama’s comments raised “concern” because “they may indicate that a particular result is required of the military justice system.”

In his comments on sexual assault, Mr. Obama said, “I expect consequences.” He 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 that somebody’s engaging in this, they’ve got to be held accountable

*VMBB Senior Chief Of Staff*
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The New York Times

July 13, 2013

Air Force General Takes Over Vastly Expanded Sexual Assault Office

WASHINGTON — As an Air Force wing commander, Maj. Gen. Margaret H. Woodward handled two sexual assault complaints in four years. Both times, she recalls, the accusers recanted, ending the investigations. Both times, General Woodward assumed the assaults never took place.

She sees things differently today. While overseeing the Air Force’s investigation of sexual abuses at Lackland Air Force Base last year, she learned that victims often withdrew complaints because they blamed themselves, were ashamed or feared no one would believe them.

“I didn’t know enough to try and at least look into it and help,” she said. “You sit there and go, ‘Could I have made a difference?’ ”

The general is getting her chance to make a difference now. Last month, the Air Force named her to run a significantly expanded office in charge of its sexual assault prevention and response policies.

Among her main goals, the general said in an interview, will be to encourage more airmen and women to not only report sexual assault but also pursue prosecution. Providing good care for victims will help in that pursuit, she said, but so will improving the way cases are handled, from initial reports through investigations and prosecutions.

“How a person is treated in that first report can determine how she is going to handle it up the chain,” the general said. “And even how her recovery goes.”

General Woodward’s hiring represents not just an expansion of the sexual assault office, but also a significant elevation of its importance, as her predecessor was a lieutenant colonel. The move comes as the entire military is under fierce Congressional pressure to reduce sexual assault, fueled partly by a recent report estimating that 26,000 assaults took place in the military last year, up from 19,000 two years before.

Though its rate of sexual assault is not significantly different from the rest of the military, the Air Force has had a run of particularly bad publicity. Last year, a series of courts-martial at Lackland revealed widespread sexual misbehavior involving instructors and recruits in training programs. This year, two Air Force generals have come under fire for their handling of sexual assault cases: one for reversing a conviction, the other for granting clemency to a convicted officer.

But perhaps most embarrassing, General Woodward’s predecessor as director of the sexual assault response unit, Lt. Col. Jeffrey Krusinski, was arrested in May on a sexual battery charge. The police said he groped a woman he did not know in a parking lot near the Pentagon.

Just a few weeks after that arrest, General Woodward, then chief of safety for the Air Force, received a call from Gen. Larry O. Spencer, the vice chief of staff, asking her to lead an expanded sexual assault office. After she demurred, he called back the next day, a Friday, to ask again. When she finally agreed to take the job, General Spencer told her she would start on Monday.

In an interview, General Spencer denied that the Air Force had rushed to expand the office because of Colonel Krusinski’s arrest. But he acknowledged shortcomings in the Air Force’s efforts to fight sexual assault. “Whatever we were doing obviously did not solve the problem,” he said.

Putting the office under a two-star general who reports directly to him is just part of a broader campaign, General Spencer said. “I am on a rampage to stamp out sexual assault,” he said. “We’re pursuing this with as much vigor as anything I’ve ever seen.”

This year, the Air Force created the new position of special victims counsel to help sexual assault victims navigate the legal process. It has also begun requiring that all sex crime cases be reported up the chain of command to general officers to increase oversight. It will soon begin an online campaign to educate airmen on sexual assault, and this fall it will require wing commanders and general officers to attend a sexual assault conference.

General Spencer said that vigorous prosecution of perpetrators would be crucial to curbing the problem, likening the Air Force effort to the campaign to reduce drunken driving two decades ago. Though General Woodward’s office does not oversee investigators or prosecutors, she said she hoped to influence them through training and education programs.

General Woodward, 53, has the authority to hire a staff of 31, eight times as many as who worked in the small branch that Colonel Krusinski directed. Fourteen people have joined so far, including someone with a Ph.D. in social work, an analyst who will crunch statistics and a criminal investigator to provide guidance on how cases are handled.

The newest hire, Master Sgt. Heidi Huff, who volunteers as a victims’ advocate at Andrews Air Force Base, said she hoped the office would succeed in encouraging more people to report assaults.

“From my experience, that’s the toughest part — victims blaming themselves,” said Sergeant Huff, whose full-time job is as a flight attendant. “It makes me cry to think about it.”

Her experience is particularly relevant: in the 1990s, she said, she was sexually assaulted by a service member. Though she reported the attack, the perpetrator was not prosecuted, she said.

The newness of the unit, located on the fifth floor of the Pentagon, is palpable on the empty white walls of General Woodward’s office. Photographs she intends to hang sit on the floor awaiting hooks.

Among them is a picture that underscores her Air Force pedigree, showing her with President George W. Bush, with whom she became friendly when she commanded the 89th Airlift Wing, which operates Air Force One.

A pilot who has flown C-130 cargo planes and C-135 refueling tankers, the general has also commanded a wing at MacDill Air Force Base and the 17th Air Force in Ramstein Air Base in Germany, where she directed the NATO air campaign over Libya in 2011.

Her résumé will undoubtedly give her valuable credibility as she tries to influence the commanders who must carry out the policies her office develops. But there is also a sense of humility among her and her staff about the task ahead. “It sounds trite, I know, but we’re building the airplane as we fly it,” she said.

Describing her initial hesitation about taking the job, General Woodward said she expressed concerns to General Spencer about not having the answers for such a complex problem.

“He said that no one does, but that I needed to go out and find them,” she said. “I hope I can do that.”
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