President Barack Obama’s blunder in his role as Commander-in-Chief of the Armed Services might ultimately lead to dismissals of all pending sex offense cases in the military

When President Obama announced that anybody in the military who had committed sexual assault should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” he muddied the waters in military legal prosecutions for sexual assault across the legal world of the U.S. military

In more than a dozen sexual assault cases since the president’s remarks at the White House in May, judges and defense lawyers have said that the President’s words as commander in chief amounted to “unlawful command influence,” tainting the military trials as a result (See “Remark by Obama Complicates Military Sexual Assault Trials” by Jennifer Steinhauer, 7/13/13, NY Times [http://www.nytimes.com/2013/07/14/us/obama-remark-is-complicating-military-trials.html?hp&_r=1&] similar to article appearing in the NY Times on 7/14/13).  According to the Times report, military law experts have said that those cases were only the beginning of the problem and that the president’s remarks were certain to complicate almost all military prosecutions for sexual assault.

The president’s remarks might have seem innocuous to most civilians, but many military law experts are saying that defense lawyers will seize on the president’s call for an automatic dishonorable discharge, the most severe discharge available in a court-martial, and argue that Obama’s words will affect their cases as unlawful command influence. “Unlawful command influence” refers to actions of commanders that could be interpreted as an attempt to influence a court-martial; in effect, it could be viewed as ordering the military jurors to reach a specific outcome. Even though a civilian, as the Commander-in-Chief of the U.S. Armed Forces, President Obama is at the top of the military chain of command and is considered the highest ranking person capable of wielding “unlawful command influence.”

“Because the president is the commander in chief, it’s going to come up in basically every imaginable context in sexual assault cases,” said Eugene R. Fidell, who teaches military justice at Yale Law School. According to Jennifer Steinhauer’s report in the NY Times, there already have been dismissals of various sexual-based assault charges because of the President’s remarks.

In a belated effort at backfill since the flap has blown up over the President’s remarks, White House officials have said the President Obama’s remarks were made only in the context of a news reporter’s question, and were only intended to demonstrate the President’s concern about the issue of sexual assaults in the military.  More important, that they were never intended a  recommendation for penalties for convicted offenders. “The president was absolutely not trying to be prescriptive.... He was listing a range of examples of how offenders could be held accountable. The president expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.” said White House counsel Kathryn Ruemmler.

However at the time he made his remarks, President Obama also said this,  “I expect consequences.... So I don’t just want more speeches or awareness programs or training, but ultimately, folks look the other way. If we find out that somebody’s engaging in this, they’ve got to be held accountable.” It sounds like he knew what he was saying and really meant what he had said.