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How Obama unwittingly gave military sex offenders a legal defense
Lawyers have been using Obama's words to their advantage
 
Obama clearly doesn't understand the concept of "no takebacks."
Obama clearly doesn't understand the concept of "no takebacks." Mark Wilson/Getty Images

When President Barack Obama said that sex offenders in the military should be "prosecuted, stripped of their positions, court-martialed, fired, [and] dishonorably discharged," he probably didn't mean to give them a legal defense. But that's exactly what he did.

Obama made the comments in May, when the Pentagon released estimates that sexual assaults in the military had increased by 35 percent since 2010, resulting in 26,000 military personnel who experienced "unwanted sexual contact" in 2012. Obama was hoping to spur lawmakers into action.

Defense lawyers, however, jumped on his words as evidence of "unlawful command influence" — meaning that military jurors might view them as a command, resulting in an unfair trial.

The strategy has worked several times. In South Carolina, according to The New York Times, a judge cited the president's words while dismissing a sexual abuse case against an Army officer. A Navy judge in Hawaii ruled that two officers couldn't be dishonorably discharged in a sexual assault case because of unlawful command influence.

Now Secretary of Defense Chuck Hagel is trying to limit the damage with a memo that tells service members, more or less, to ignore the president's remarks when sitting on a military jury:

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. [The New York Times]

Conservative columnist James Taranto, who once called the campaign against sexual assault in the military a "war on men," claimed in The Wall Street Journal that Hagel's memo did little to clear up confusion.

"We now have conflicting messages coming from the top two civilian leaders of the military," Taranto wrote. "And Obama outranks Hagel, so that his thesis still trumps Hagel's antithesis."

Hagel's memo was also decried by reformers who want to remove some of the military's authority over sexual assault cases within its ranks.

"Overall, there is nothing here that will significantly curb sexual predators and their behavior, nothing that will guarantee the safety of victims who report abuse, and nothing that will fix the ongoing problems keeping cases inside the chain of command," Rep. Jackie Speier (D-Calif.) said in a statement. "The Pentagon has missed yet another opportunity to fulfill its promises of zero tolerance and improved justice."

Not everyone thought the memo was a bad idea. While it might not work, Hagel's message can "only be positive," John D. Altenburg Jr., a former Army deputy judge advocate general, told the Times. He added, "Most people in the military understand that comments are made by people for political purposes and they are not to take that under consideration, but this makes it clear to everybody."

 
Keith Wagstaff is a staff writer at TheWeek.com covering politics and current events. He has previously written for such publications as TIME, Details, VICE, and the Village Voice.

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