More on Unlawful Command Influence

Post by coram nobis.

A continuation on the UCI post earlier (footnotes may refer to cases in the first post). What will follow is more in the nature of points of information, but bear with us.

The President’s comments, and the nasty pretrial publicity, should come up in pretrial court-martial proceedings, notably the DuBay hearing and the selection of the military “jury”, as we discussed. Some more analysis:

The good news is, the military legal community is aware of the problem of improper command influence. Considerable case law, much of it recent, has provided counsel with means of identifying, proving and arguing it. The bad news is, field commanders are not aware of it, particularly the more zealous ones, if the Stoneman case is any indication.[1] In a commander who has unique judicial powers on top of the legal power to command, and the administrative power to end someone’s career with a bad report or relief of command, this can easily become improper command influence. It can be implicit: if a commander is at his desk at 0630 every day then his subordinates are apt to be as well; if a commander proclaims “zero defects” in military discipline, it won’t be lost on his/her staff judge advocate – or on the officers that commander appoints to the next court-martial.

This is a possibility to consider by anyone with a military defendant as a client. Improper command influence may be direct, and counsel will want to inquire about any pressures on panel members during voir dire. But command influence also may be indirect even if the command says nothing about a particular case, and counsel may want to examine the more general circulars, policy directives announcements and pronouncements of the command. Such pronouncements may not be official, but what a commander says at the O Club bar may still influence your case – even if it wasn’t on point. Re-read Stoneman to see how much force even the CO’s attitude can have. Public statements about particular cases or types of cases by the convening authority, even as general comments to officers’ meetings, can overturn a case.[2]

The more usual kind of pretrial publicity – statements by military policy makers to news media – is an area of uncertainty in military case law. The Ayers case,[3] subsequent to the 1996 sexual-harassment scandal involving female recruits at Aberdeen Proving Ground, involved a drill sergeant tried amid considerable pretrial coverage and statements by the higher chain of command, including the Defense and Army Secretaries, the Chairman of the Joint Chiefs and the commander of TRADOC, among others. Ayers was unsuccessful because defense counsel didn’t show a nexus between the publicity and any harm wrought by command influence.

Press coverage (or leaks) of itself, is not of itself unlawful command influence, at least so far as military courts have reviewed it.[4] For example, public statements on the Abu Ghraib scandal, notably by then-Defense Secretary Donald Rumsfeld, who by law[5] was in the direct chain of command,[6] who has professed a belief that the case should be prosecuted but that command influence was something he wished to avoid even as he wished to prosecute[7] — as if he is seeking to cause command influence by protesting it loudly enough. Congress noticed:

[Republican Sen. James] Imhofe also suggested that an important reason that officials higher up in the military and civilian chain of command were not given details on the full nature and extent of the prisoner abuse at Abu Ghraib was because of the problem of “undue command influence.” Air Force Lieutenant General Lance Smith, deputy commander of the U.S. Central Command, agreed with Imhofe.

Smith said that should high-ranking military officers of Central Command say something like “we must take this action against these individuals,” that would constitute undue command influence on those who would making judgments on the accused personnel. It “would influence and bias their decisions,” Smith said.[8]

Central Command should have been the convening authority for Manning; its commanders, being possible defendants themselves, would have an interest in the outcome. When Manning was arrested in May 2010, Gen. McChrystal was head of ISAF, above 10th Div. where Manning served; Gen. David Petraeus was then at CENTCOM, next level up. (Both McChrystal and Petraeus had ample power under UCMJ to convene a court-martial, and initiate speedy Art. 32 proceedings, at either of their levels. (What Manning was doing in Quantico is bizarre. An Army private in a Marine brig?)

Above CENTCOM is SECDEF. SECDEF oversees not only the chain of command but also the military appellate courts, since, as they are creations of 10 U.S.C., are Art. I courts, not Art. III, and are a military agency. Defense counsel in Abu Ghraib courts-martial raised this motion, unsuccessfully.[9]

During the Abu Ghraib controversy, DoD put out a very misleading background briefing on unlawful command influence, suggesting a concerted pattern.[10] In this context, counsel should ponder whether if, by raising a press-publicity challenge in a local case of command-influence, it might let suspects in abuse cases – high ranking ones among them – get off on an easier command-influence standard?  Ayers[11] merely suggests that counsel will have to raise this challenge at voir dire and show a nexus between the publicity and the military court.

A second, and more novel challenge, is a collateral review in Federal court. Though the APA excludes a challenge to a court-martial finding, a question of agency conduct may not be.[12]

A third challenge can come in areas where command influence is technically proper in doubtful areas, not yet challenged by courts, such as policy maker statements cited above, or in institutional areas. Potential new challenges could include:

• Challenge to Art. 32(e). Although the decision to launch an Art. 32 investigation might not be improper command influence, command pressure on an Art. 32 investigator, say, to flout the procedural requirements of Art. 32(c) and (d) would not be judicial error under Art. 32(e). This conflicts with Gore[13] and other rulings on command influence, and Art. 32(e) may be worth a constitutional challenge.[14]
• Command-function challenges to convening authorities, on breaches of Arts. 34, 60 and 64, among others, so far have not disqualified convening authority from some judicial functions as an institutional matter, as noted above. This may be worth re-opening but probably won’t be successful unless the convening authority breached the UCMJ procedurally, not merely exerted influence.
• In Art. 36, Congress permits the President to make rules for courts-martial, rules which have force of law; the President merely has to conform to the Constitution.[15] Though Art. 36 may be constitutional, a flaw in the MCM or in service regulations permitting command influence in violation of due process, though technically proper otherwise, may be worth challenging under Art. 36.
• Art. 46 requires equal access to witnesses, and since military witnesses are subject to the UCMJ, a court’s jurisdiction over active-duty witnesses could be worldwide. Procuring the witnesses – their travel orders and transport – is a command function; Art. 36 and 46 case law mention no instances of failure to procure military witnesses but that would be a matter of command influence, technically a command prerogative but worth raising as a new challenge. The USCAAF did find, in Rivers, that overt command pressure, in that case intimidating them, is in breach of the Sixth Amendment; impeding their travel orders is an easy analogy.[16]
• The presence of service appellate courts under the office of the Judge Advocate General. Though not in the direct chain of command, it does put the TJAG and the court under the supervision of the chiefs of staff and the service secretaries.
• The fact that the accused must, given fraud on the court or new evidence, petition the JAG for new trial under Art. 73. This raises more questions about the TJAG’s presence under the chief of staff, as above. Unlawful command influence often is discovered after trial and it’s a short step from the offending convening authority, to the chain of command, to TJAG. This is an inherent conflict of interest even if improper command influence itself, on TJAG, isn’t proven.
• The convening authority’s judge advocate reviews findings and sentence of the trial under Art. 64. Case history on 10 U.S.C. § 864 suggests that if the convening authority has an interest in the outcome of the trial, it will act on it.
• Where an administrative investigation[17] becomes the basis for preferment of charges, e.g., as in U.S. v. Johnson,[18] and the staff and legal (e.g., Art. 31, 32 et seq) procedures commingle. The Johnson court didn’t find unlawful command influence that time; a future case, where the command didn’t keep a “firewall” between, say, a “15-6” and a subsequent “Article 32” may raise this kind of challenge.[19]
• The lack of an independent trial defense service in the Navy Department.[20] Unlike the Army and Air Force, the Navy and Marines have no trial defense counsel agency outside the chain of command; the convening authority may very well be able to hand pick military defense counsel, and may be the one signing off on those officers’ fitness reports later. (The fact that the commander may abide by the RCM, even if s/he is not aware of the rule, and not penalize zealous counsel, doesn’t mean counsel won’t wonder if s/he might). Further, there is no mention of unlawful command influence in the JAGMAN index and Navy and Marine commanders, if not their legal staffs, may be unaware of this concept. This is both a danger to justice and an opportunity for a challenge, if not a mandamus.
• The fact that convening authority gets to pick trial panels – it’s almost as if a U.S. Attorney got sole choice of jurors (see U.S. v. Dowty, 60 M.J. 163 (USCAAF, 2004)). The convening authority still has a duty to appoint a “fair and impartial” panel, and attempts to “pack” will not be tolerated by USCAAF, but perhaps this built-in temptation to abuse is enough of a danger that a court may either question the underlying statute, Art. 25(d)(2), or, more likely, see a need for a firewall between the commander and his/her staff judge advocate.

All of this is a grab-bag of possibilities, but one the defense team may be considering.

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[1] See the brigade commander’s various communications starting at Stoneman, 57 M.J. at 36 in which he threatens to “CRUSH” leaders who don’t lead by referent (sic) rather than legal power. Notice also that even his disclaimers, later, failed to abate the legal damage.

[2] U.S. v. Baldwin, 54 M.J. 308 (USCAAF, 2001).

[3] U.S. v. Ayers, 54 M.J. 85 (USCAAF, 2000).

[4] U.S. v. Johnson, 54 M.J. 32, 35 (USCAAF, 2000).

[5] Goldwater-Nichols Act, cited supra.

[6] And strictly liable, under command-responsibility doctrine, for any atrocities committed by his soldiers even if he didn’t order them. Application of Yamashita, 327 U.S. 1 (1946).

[7] See Armed Forces Information Service article, “Rumsfeld Arrives In Baghdad to Visit Troops,” May 13, 2004; see also his ABC’s Today Show interview, May 5, 2004.

[8] David A. Denny, “Discipline, Leadership, Training Scored in Prisoner Abuse Case,” USIA (11 May 2004).

[9] At the trial of SP4 Charles Graner, “Abu Ghraib Soldier Loses His Bid to Dismiss Trial,” MSNBC, Dec. 6, 2004.

[10] “A Senior Military Lawyer,” May 19, 2004, cited supra. Again, this link.

[11] Along with the recent Baldwin and Johnson (2000) cases cited above.

[12] As noted above.

[13] 60 M.J. 178, cited supra.

[14] Citation of Art. 32(e) normally keeps a defective Art. 32 investigation from invalidating a trial. U.S. v. Clark, 11 M.J. 179, 181-2 (CMA, 1981).

[15] U.S. v. Kelson, 3 M.J. 139, 140 (CMA, 1977).

[16] Rivers, 49 M.J. at 443.

[17] Not an “Article 32” but a staff or “collateral” investigation like an AR “15-6”, a “JAGMAN investigation,” an Inspector-General investigation, etc.

[18] Johnson, 54 M.J. at 34, where an administrative (medical peer review) investigation morphed into a court-martial on sexual charges.

[19] Col. Robert Burrell, Recent Developments in Unlawful Command Influence, 2001-MAY Army Law. 1, 3. Col. Burrell worried that this might lead to a “recipe for disaster” in a future case.

[20] see JAGMAN 2004 §§ 0130-0131.