The appeals court for the Navy and Marine Corps recently threw out the conviction of a Marine staff sergeant for sexual assault on the basis of unlawful command influence (UCI) from the commandant of the Marine Corps. This follows multiple rulings over the past year or so mitigating charges against service members on the basis of UCI from President Obama.
Readers unfamiliar with the customs of military service might understandably be confused, even outraged, by the notion that senior leaders exhorting members of the armed forces to "fix" a culture too tolerant of sexual assault could be prejudicial to service members' due process rights, particularly to a fair and impartial panel of jurors, or "members" in military parlance. After all, demanding better performance in areas where shortfalls are observed is a hallmark of good leadership.
Obama's declaration that "I have no tolerance" for sexual abuse within the armed forces set the right tone. But he went too far when he announced that, "If we find out somebody's engaging in this, they've got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period." That's a direct order from the commander in chief as to findings and sentencing.
Amos's words, befitting a Marine, were more blunt than the president's. In a nationwide tour in the spring and summer of 2012, Amos stopped at all major Marine Corps installations to personally tell "every single [senior noncommissioned officer, or NCO] and officer in the Marine Corps" that Congress had lost faith in the service to handle the issue. Further, he told Marine leaders that claims that those claiming sexual assault were those who had gotten "a little liquored up" and awoke the next day with "buyer's remorse" were "bulls---." Indeed, Amos declared, "The fact of the matter is 80 percent of those are legitimate sexual assault." In essence, then, the senior leader of the United States Marine Corps was telling those who would sit on court-martial juries that they should presume those charged to be guilty. That's simply unacceptable.
To be sure, there is no civilian analogue. The president or a state governor making statements of that sort, even about the guilt or innocence of a specific defendant, about civilian criminal cases under their jurisdiction would almost never introduce legal error. That's because civilian jurors are not duty bound to follow the orders of political leaders.
Not so for those in the armed forces. Officers take an oath to the Constitution of the United States, which makes the president their commander in chief. Enlisted personnel additionally swear to "obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice." Doing otherwise not only breaks their covenant with the nation but places them in legal jeopardy under the UCMJ.
For good reason, military personnel are bound by all manner of restrictions not applicable to civilians, even civilian employees of the Defense Department. Officers may be punished for using "contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present." Any uniformed member who "willfully disobeys a lawful command of his superior commissioned officer," "violates or fails to obey any lawful general order or regulation," or even merely "behaves with disrespect toward his superior commissioned officer" is subject to court-martial. A member can even be punished for failing to shave or wearing his or her hair out of regulation.
Further, while officers and noncommissioned officers are expected to exercise good judgment and to disobey orders which are obviously illegal, the culture is one that instills obedience for lawful orders. Indeed, especially when coming from the president and general officers, the merest expressed wish of those higher in the chain of command is treated as an order enjoying a presumption of lawfulness. For Marines, in particular, the commandant's word is gospel.
The opinion by U.S. Navy-Marine Corps Court of Criminal Appeals Chief Judge Moira Modzelewski documents that the impact on the jury in the specific case in question was not theoretical but actual. Numerous senior NCOs and field grade officers indicated that they had not only heard Amos but taken his word to heart. Most presumed the 80 percent figure was legitimate — why else would the commandant have said it? — and were inclined to bend over backward to comply with the order to crack down on those accused of the crime.
Amos readily acknowledged he was disregarding prudent legal advice regarding how his words would influence jury members. In committing what he readily acknowledges is an ultra vires act, he personally doomed to failure a swath of the very sexual assault cases he aimed to bolster, while simultaneously inspiring a crisis of confidence in the military justice system.
This ruling should serve as a clarion call to military justice reformers on Capitol Hill not to throw the baby out with the bathwater. While major reforms in the military justice system may be warranted, including those enacted during the last legislative cycle, the system must carefully toe the line between effective accountability for sexual assault aggressors and a system that is fair, transparent, reliable and law-bound.
Finally, it should also alert executive branch leaders that protecting the constitutional and statutory rights of those who volunteered to serve is a moral imperative similar in quality and magnitude to the duty to protect victims of sexual assault. Military justice reform is necessary and required, but Congress must not let the pendulum swing freely at the expense of the rights of men and women serving our nation in uniform.
Joyner, a former Army officer and combat veteran, is an associate professor of strategic studies at the Marine Corps Command and Staff College. Bracknell is a retired career Marine officer, national security attorney and member of the Truman National Security Project. These views are their own.