- The Washington Times - Tuesday, March 23, 2004

A military judge has found that one of the Marine Corps’ top officers is responsible for “apparent unlawful command influence” by referring to two criminal defendants as “pond scum” and saying one should be castrated.

The written opinion of the judge, who is a colonel, was directed at Lt. Gen. H.P. Osman, who commands the 2nd Marine Expeditionary Force at Camp Lejeune and Cherry Point, N.C. The MEF provided the Marines who are now helping to restore order in Haiti.

Gen. Osman made the offending remarks to groups of Marines at a time when the convictions of two defendants were still under review by officers under him.

“The court finds that apparent unlawful command influence has occurred because of certain comments made by Lt. Gen. Osman at two officers’ calls on 10 December 2003,” wrote the judge, Col. Alvin W. Keller, in a Feb. 9 order obtained by The Washington Times.

A military legal source, who asked not to be named, said the fact that a colonel took on a much more senior officer is “really remarkable.”

“It is unusual for a three-star to be accused of unlawful command influence,” the source said.

The military justice system takes such cases seriously. The Uniform Code of Military Justice forbids commanders from taking any action or giving opinions that can unduly influence jurors, trial judges and the officers who convene courts-martial. The U.S. Court of Appeals for the Armed Forces ruled in a landmark case that unlawful command influence is the “mortal enemy of military justice.”

Col. Keller also admonished the general for refusing to publish in base newspapers the Marine Corps’ legal policy. This was to serve as a retraction of his remarks.

Lt. Col. Dave Lapan, Gen. Osman’s spokesman, said that, after the judge’s ruling, the general wrote a “command commentary which was published in the Globe, the base newspaper at Camp Lejeune. Gen. Osman described his talk in December on military justice, but did not refer directly to his “pond scum” remark.

“I asked that every leader involved with the military justice system to exercise the highest moral integrity while using their own personal judgment and that they address each military justice case on its own merits,” Gen. Osman wrote.

Col. Lapan said the general would have no comment on Col. Keller’s ruling.

“Lieutenant General Osman is confident that all of his commanders understand that strong moral values and ethics are essential tenets of leadership,” Col. Lapan said.

Gen. Osman’s comments came in two criminal cases: one a conviction for adultery; the other for drug possession. Col. Keller is the chief judge in the Marine military district that includes Camp Lejeune. He presided at the drug case court-martial.

Col. Keller found that Gen. Osman’s comments did not result in “unlawful command influence,” but did constitute another form called “apparent unlawful command influence.” This occurs when “reasonable members of the public believe command influence prejudiced the accused.”

“Although it has no direct impact on the fairness of a trial, the appearance of unlawful command influence is as much to be condemned as its actual existence,” Col. Keller wrote.

In addition to calling the two Marines “pond scum,” Gen. Osman said that an officer must at some point shift loyalty from the individual Marine to protecting the Corps as an institution. And the general said the two Marines should have received punitive discharges instead of being allowed to stay in the Corps after their convictions at court-martial.

“The court finds that some evidence has been raised that a senior officer, Lt. Gen. Osman, made certain remarks to subordinates on 10 December 2003 that could constitute unlawful command influence,” Col. Keller wrote. “Such remarks were not a legitimate and necessary exercise of leadership.”

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