WASHINGTON – 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 base their judicial decisions only 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 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.

First reported by The New York Times, the memo’s 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.


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