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A Legal Maelstrom in the Military Courts

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"If we find out somebody's engaging in this stuff, they've got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged -- period. It's not acceptable."

These were the incendiary remarks from President Obama, the Commander-in-Chief, earlier this year. Comments which have muddled the legal process in sexual misconduct cases in the military courts ever since. Emotion triumphed over logic in his remarks. Lawyers for the defendants have quickly filed briefs demanding that charges be dropped citing 'unlawful command influence' (UCI). Some may go as far to interpret the president's remarks as a 'direct order', diminishing any chance of due process.

In the wake of these controversial comments, Chuck Hagel, the Secretary of Defense, has been forced to issue a memorandum, implicitly dismissing the president's comments and categorically stating that jurors should not be swayed by any comments made by any government or military officials. The memo, first reported by the New York Times, was circulated to the higher echelons of the military, stating:

"Central to military justice is the trust that those involved in the process base their decisions on their independent judgement. Their judgement, 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."

Yet, the damage has already been done. In Marcus Felton v. United States the judge in the Navy-Marine Court of Criminal Appeals issued a stay-order for the trial in the belief that the president's comments:

"May indicate that a particular result is required of the military justice system -- namely that members found to have committed sexual assault must be "prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged."

Several other cases will quite possibly follow suit with this ruling. As a former constitutional law professor, the president should have known better than to speak publicly. This is not the first time Obama has been mired in controversy regarding comments which may be in line with public opinion but legally troublesome. Of course, no one can forget, the infamous "Beergate" comments made by the president early on in his first term.

The president's reaction although ill-advised is quite understandable. Sexual misconduct in the military has been steadily rising for a number of years and has become a blight on the reputation of the armed forces. According to the DoD's Annual Report on Sexual Assault in the Military, the number of sexual assaults rose by 6% to 3,374 in 2012. Many officials believe though that the true figure may be closer to 26,000. Many incidents thought to have occurred remain unreported due to fear of recrimination and an inadequate command-report structure.

These findings have led to an increased scrutiny of the military's handling with incidents of sexual assault. The DoD's Sexual Assault Prevention and Response Office (SARPO) which leads all criminal investigations, reported in June, that in break with tradition, Army Major General Gary S. Patton would be assigned as their new director. Rather than a Lt. Colonel who usually directs the Office. A clear sign of the gravity of the situation.

This week, Hagel announced a new wave of initiatives and prevention measures designed to combat sexual assault. Many of these measures have been long overdue but some believe that they still do not go far enough. A rare bipartisan coalition in Congress, including Sens. Rand Paul (R-KY) & Ted Cruz (R-TX), have supported Sen. Gillibrand's (D-NY) proposal to remove the military chain of command entirely from the trial & decision-making process. One of the main obstacles in having victims come forward is the fear of retribution from their commanders and fellow unit members. But, the proposal has been met with fierce resistance both from Congress and Pentagon officials who believe that the military top brass must address their own crisis.

As Chuck Hagel correctly wrote in his statement, sexual misconduct is, "a stain on the honor of our men and women who honorably serve our country, as well as a threat to the discipline and the cohesion of our force." Time will tell whether these latest efforts will curtail sexual assault or if a greater caliber of action is required.