Ei Incumbit Probation Qui Dicit.

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 134 - Obstructing Justice

Paragraph 96 of the Manual for Court Martial deals with obstructing justice. The text of statute of Article 134 says that all neglects and disorders which are adverse to the discipline and good order in the armed forces, all conducts that can bring discredit to the armed forces and offenses and crimes not capital, can be punished by convening a court martial.

This provision forbids service members from interfering in the administration of military justice for the entire time a criminal investigation is being conducted and not only during judicial proceedings awaiting decisions. Obstruction of justice also includes hindering criminal proceedings and investigations in foreign lands.

Elements of the offense

  • The accused has wrongfully committed a certain act.
  • The accused did so for an individual against whom, the accused knew, criminal cases were pending or would be initiated soon.
  • The accused committed the act with the intention of impeding, obstructing or otherwise influencing the administration of military justice.
  • In these circumstances, the accused's conduct was adverse to the discipline and good order in the armed forces or the nature of the act brought discredit to the armed forces.

Explanation for the elements

The offense (obstruction of justice) can be based on an act of the accused before the 'preferral' of charges. If a suspected crime is discovered and after investigations have been completed, the proper authorities may direct the 'preferral' or filing of charges against the accused. It can be compared to civilian indictments. Criminal proceedings also include non-judicial punishments.

Examples for obstructing justice are wrongfully influencing, impeding, injuring or intimidating a witness; who is acting on charges against an individual, or an officer who is investigating an act of the individual, or any party; and preventing or delaying the transfer of information concerning a violation of a criminal statute to a person who is authorized by an agency, armed force or a department, by resorting to bribery, misrepresentation, intimidation, or force of a threat to use force.

Maximum punishment for the offense

The maximum punishment that can be levied on a service member who is held guilty of obstructing justice is a dishonorable discharge, forfeiture of allowances and pay and 5 years of confinement.

Example to show how a service member may be charged with the offense

In 2007, the leader of a kill-team in Iraq, taking part in counterinsurgency operations in Diyala province was charged with the murder of two unarmed Iraqi teenagers who turned out to be deaf. The children were cattle herders and they were driving their head towards the soldiers who were in hiding. The rest of the unit did not see the boys as a threat, but the accused stood up from his hiding place and shot the boys. A third boy, a cousin of the first two, who was bringing the boys their lunch was also killed by the accused and his men in a similar fashion. It turned out that the third boy was also deaf.

Recently, the service member was charged with pre-mediated murder and obstruction of justice; the latter for lying to his superiors about the incident and for directing his colleagues to do the same, so that the crime could be covered up. Military investigators, who had originally reviewed the case back when the crime was committed, had recommended that the soldier be charged with committing murder, but it never progressed to an Article 32 hearing.

If a service member pressurizes another service member, who is also a witness in a case, not to testify before a military court, it can amount to obstructing justice and the accused can be charged with the offense. This happened in United States V. Stombaugh, where an officer testified that certain members affiliated to the Junior Officers Protection Association were putting pressure on him not to testify in the case.

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