The Corner

Hagel to Military Judges: Please Forget about What Obama Said

Secretary of Defense Chuck Hagel is trying to undo the inadvertent effects of President Obama’s rhetoric on sexual-assault prosecutions in the military. Hagel has released a “directive ordering the military to exercise independent judgment in the cases and effectively ignore” remarks made by the president, the New York Times reports today.

As the Times noted last month, those remarks by Obama have complicated several military sexual-assault trials because they amount to the commander-in-chief ordering a specific outcome in those cases, what’s known as “unlawful command influence.” Obama told reporters in May that “if we find out somebody is engaging in this stuff, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

In an August 6 memo, Hagel attempts to walk back Obama’s comments by emphasizing that “there are no expected or required dispositions, outcomes, or sentences in any military justice case, other than what result from the individual facts of a case.” Hagel quotes White House counsel Kathryn Ruemmler’s initial damage-control statement: “The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.”

But it’s not clear that the consequences of the president’s remarks can so easily be undone. “They are trying to unring the bell,” Richard Scheff, a lawyer whose client is currently facing charges of sexual assault told the Times. “I don’t know how President Obama can direct that certain types of punishment be administered and now you are supposed to ignore it. How does that work?”

The Wall Street Journal’s James Taranto is equally skeptical, arguing that “the Hagel memo itself constitutes unlawful command influence,” in its attempt to encourage “military judges to reject the claims of UCI that have already been raised.”  

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