WASHINGTON An Air Force general who overturned the sexual assault conviction of a fellow fighter pilot finds himself caught in a political crossfire that could change military justice perhaps, some fear, for the worse.
Citing the general's actions, lawmakers including Democratic Sens. Barbara Boxer of California and Claire McCaskill of Missouri are pressuring the Pentagon to restrict commanding officers' power to dismiss court-martial convictions. The lawmakers are not, however, seeking to restrict their officers' corresponding power to press ahead with sexual assault cases that investigators may consider weak.
The result could be a further tilting of scales that some fear already may be swinging out of balance, as a military that once seemed oblivious to sexual assault now moves full force against it. At the least, what happens next will highlight the extraordinary clout that the military justice system grants commanding officers in sexual assault and other criminal cases.
Although the general's high-profile reversal of the sexual assault conviction is seizing attention, it's a step that's rarely taken.
Meanwhile, a McClatchy review of nearly 70 military sexual-assault cases, involving thousands of pages obtained under the Freedom of Information Act, found that commanding officers aggressively pursue sexual assault prosecutions, sometimes over the objections or concerns of investigators. Many acquittals have resulted.
Lawmakers, nonetheless, are mobilizing in the wake of Lt. Gen. Craig Franklin's Feb. 26 overturning of the aggravated sexual assault conviction of Lt. Col. James Wilkerson, an F-16 pilot who's back on active duty after his release from a military prison in Charleston, S.C.
"This is a travesty of justice," Boxer and Sen. Jeanne Shaheen, D-N.H., wrote Defense Secretary Chuck Hagel on Tuesday. "At a time when the military has unequivocally stated that there is zero tolerance for sexual assault, this is not the message it should be sending."
McCaskill, at a Senate Armed Services Committee hearing Tuesday, blasted "the arbitrary decision of one general" to reject a military conviction.
"This could be a tipping point, I think, for the American people to rise up, particularly the women, and say, 'I don't think one general should be able to overturn a jury,' " McCaskill told Marine Corps Gen. James Mattis, the head of the U.S. Central Command.
All of which worries military defense attorneys and scholars, who fear a congressional overreaction.
"The senators' statements are a danger to the fair administration of military justice, not just in the Wilkerson case, but in all pending and future military justice cases, especially those involving sexual assault," defense attorney Phil Cave cautioned.
A former Navy legal officer, Cave added that lawmakers' "specific interference" in the Wilkerson case amounted to an abuse of their authority and also might amount to unlawful command influence.
Wilkerson's civilian defense attorney, Frank Spinner, agreed in an interview Friday that "the senators' statements may constitute unlawful command influence and will have a chilling effect" on military officials.
The demands from Boxer and Shaheen that Hagel take immediate steps to restrict commanding officers from "unilaterally dismissing military court decisions" appears to conflict with the Uniform Code of Military Justice, which is written by Congress.
"It's completely inappropriate," Eugene Fidell, who teaches military law at Yale Law School, said of the senators' demands. "If they're serious about this, they should change the statute."
Boxer and Shaheen suggest that legislative changes might, in fact, be a possibility, something Fidell says could be useful if handled in a balanced fashion. He did not, however, mean the kind of bill to be introduced Wednesday by Rep. Jackie Speier, D-Hillsborough, which would strip away a commander's ability to dismiss convictions.
The political hubbub over Franklin's actions, moreover, might create a misleading impression about the frequency with which commanding officers overturn convictions.
Marine Corps Col. John Baker, the chief defense counsel of the Marine Corps, said in an interview that it was very rare for convictions to be dismissed.
Fidell agreed in an interview that "it's rare, though it does happen."