In a highly unusual move to blunt the legal impact of the president’s comments on military sexual assaults, Defense Secretary Chuck Hagel is ordering his top leaders to be sure to only base their judicial decisions on facts and their own independent judgment.
The one-page memo tells the military that even though senior U.S. leaders may openly condemn sexual assault, drug abuse, hazing and other crimes, such comments are not intended to sway the outcome of any particular case.
In early May, as high-profile incidents of sexual assault in the military spiked, President Barack Obama — the nation’s commander in chief — declared he had no tolerance for the matter.
“I don’t want just more speeches or awareness programs or training but, ultimately, folks look the other way,” he said. “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.”
Obama’s remarks have already affected the outcome in some cases, including the decision by a judge in South Carolina to dismiss sexual assault charges against a soldier. Defense lawyers have argued that the president’s remarks amounted to unlawful command influence on the cases.
“The comments made by the president did result in an impact in some of the cases that were ongoing from the view of the judges,” Lt. Gen. Curtis Scaparrotti, director of the Joint Staff, said during a Pentagon press briefing Thursday. “As a result, we believed it was necessary … to make a statement, simply to ensure that commanders understood that they act independently, based on the merits of a case, and to ensure that there’s no taint in any of the jurisdiction that takes place or any of the cases that are ongoing now.”
It’s not clear if the memo will effectively limit the legal arguments that defense attorneys have made. But Scaparrotti said that commanders understand their responsibility to act on the merits of a case and will continue to act independently in line with the justice system.
The memo, obtained by The Associated Press, was first reported by The New York Times. Its disclosure comes as the Pentagon on Thursday released additional steps to increase accountability of commanders reviewing sexual assault cases and to improve support for victims of the crimes.
The new measures include the creation of a legal advocacy program to provide legal representation for victims; requirements that pretrial hearings of sexual assault charges be conducted by judge advocate general officers; and new authorities for commanders to reassign or transfer troops accused of sex crimes to eliminate contact with victims.
The changes would also require greater oversight by senior officers, allow victims to give input during the sentencing phase of a court-martial and direct the inspector general to regularly review sexual assault investigations.
In a statement, White House press secretary Jay Carney said the initiatives are a step along a path toward eliminating the crime from the military ranks. He said the president “expects this level of effort to be sustained” as far into the future as necessary.
The measures are being taken under growing pressure from Congress, including a spate of bills that seek to overhaul the military justice system in an effort to stem the surging tide of sexual assaults in the military.
Critics complain that victims don’t trust the system and are worried about retaliation if they come forward and lodge complaints against fellow service members or officers who may be protected by their comrades. Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, has expressed concern that women in the military are losing confidence that the problem can be solved.
Lawmakers, including Sen. Kirsten Gillibrand, D-N.Y., argue that commanders should be removed from the process of deciding which crimes go to trial and be replaced by seasoned trial lawyers with experience in such cases. Military leaders oppose the idea, arguing that removing the decision from their purview would undercut the ability of officers to maintain good order and discipline.
On Thursday Gillibrand went to her Twitter account to warn that while the new policy is a step forward, it is “inadequate to truly address this crisis.”
Sen. Claire McCaskill, D-Mo., said Congress will move ahead with its own reforms, adding, “I think it’s wise for our military leaders to get on this train rather than get run over by it.”
In a recent report, the Pentagon estimated that as many as 26,000 military members may have been sexually assaulted last year, up from an estimated 19,000 assaults in 2011. The estimates are based on an anonymous survey of military personnel.
The number of sexual assaults that members of the military actually reported rose 6 percent to 3,374 in 2012, but thousands of victims were still unwilling to come forward despite new oversight and assistance programs aimed at curbing the crimes, the report said.
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