Hagel aims to curb unlawful influence arguments in trials

Defense Secretary Chuck Hagel is pressing military juries and others involved in military criminal proceedings to exercise their own judgment based on facts, a message that comes as claims of unlawful command influence by senior officials are being made in some sexual assault trials.

Comments by President Barack Obama, Joint Chiefs Chairman Gen. Martin Dempsey, Marine Commandant Gen. James Amos and others have been cited for the appearance of improperly influencing military jurors and command authorities, who some argue may interpret “get-tough” comments on sexual assault as directives.

“Central to military justice is the trust that those involved in the process base their decisions on their independent judgment,” Hagel wrote in an Aug. 6 memo slated for wide distribution. That judgment “must be based purely on the facts of each individual case, not ... an effort to produce what is thought to be the outcome desired by senior officials, military or civilian.”

“There are no expected or required dispositions, outcomes, or sentences in any military justice case,” Hagel wrote.

In at least two recent cases, Obama’s comments to reporters in May could possibly affect the type of punishment that servicemembers, if found guilty, may receive.

Obama said servicemembers engaging in wrongful sexual activities must be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

Here's the Hagel memorandum minus the official seal and his signature.

SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

AUG 06 2013

MEMORANDUM FOR: SEE DISTRIBUTION

SUBJECT: Integrity of the Military Justice Process

This memorandum reiterates my expectations and those of the President regarding the integrity of the military justice process. Every military officer and enlisted member of the Department of Defense is to be made aware of its contents.

Military justice is an essential element of good order and discipline, the indispensable ingredient that allows our Armed Forces to be the best in the world. Central to military justice is the trust that those involved in the process base their decisions on their independent judgment. Their judgment, in turn, must be based purely on the facts of each individual case, not personal interests, career advancement, or an effort to produce what is thought to be the outcome desired by senior officials, military or civilian.

Service members and the American people must be confident that the military justice system is inherently fair and adheres to the fundamental principle of due process of law. Everyone who exercises discretionary authority in the military justice process must apply his or her independent judgment. Military judges, commanders, convening authorities, criminal and administrative investigators, staff judge advocates, supervisors, Article 32 investigating officers, trial counsel, defense counsel, members of court-martial panels, and witnesses in military justice cases are among those included in this mandate.

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."

To be clear, each military justice case must be resolved on its own facts. Those who exercise discretionary authority in the military justice process must exercise their independent judgment, consistent with applicable law and regulation.. There are 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.

Please ensure that this message is widely and immediately disseminated throughout your organizations. The integrity of the military justice process is too important to risk any misunderstanding of what the President and I expect from those involved in it.

Thank you.

[signed] Chuck Hagel

DISTRIBUTION:
SECRETARIES OF THE MILITARY DEPARTMENTS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
UNDER SECRETARIES OF DEFENSE
DEPUTY CHIEF MANAGEMENT OFFICER
CIREFS OF THE MILITARY DEPARTMENTS
COMMANDERS OF THE COMBATANT COMMANDS
DIRECTOR, COST ASSESSMENT AND PROGRAM EVALUATION
DIRECTOR, OPERATIONAL TEST AND EVALUATION
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE
ASSISTANT SECRETARIES OF DEFENSE
DEPARTMENT OF DEFENSE CHIEF INFORMATION OFFICER
ASSISTANTS TO THE SECRETARY OF DEFENSE
DIRECTOR, ADMINISTRATION AND MANAGEMENT
DIRECTOR, NET ASSESSMENT
DIRECTORS OF THE DEFENSE AGENCIES
DIRECTORS OF THE DOD FIELD ACTIVITIES

Rape and other types of sexual assault are bad and should be punished. So should other criminal offenses. However, each case depends on its unique facts and it is the function of the panel of officers (and in some cases enlisted personnel) at a court martial to determine the facts once a case has been designated by the convening authority for trial and the trial has begun. Ensuring that they do so is one of the most important functions of a military judge

The lack of command influence was once a major feature of military law. Back in 1970, many years ago, when I was a special court martial military judge for Korea, we had been advised, very emphatically, in the JAG course I attended before being allowed to assume what became my responsibilities, that several general officers in Europe had been dismissed from the service for attempting to exert command influence. It was definitely a no-no. Has that happened recently? Back then, I took great pride in the military justice system because it was, in many respects, far superior to the civilian justice system. It still should be.

The military justice system, and the entire military, should reject any of the sort of command influence which, in a civilian context, brought us the George Zimmerman farce. It should reject, strongly, any attempt at command influence, whether by the Commander in Chief, convening authorities or anyone else.

President Obama has shown the wrong way and officers subject to and compliant with his whims seem in many cases, not only implicating military justice, to have abdicated their responsibilities.

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