unlawful command influence: a primer

In announcing his findings, the military judge stated: The mandate of United States [v.] Biagase, 50 M[.]J[.] 143 [C.A.A.F. 1999] could not be more clear.  Undue and unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically eradicated.  And this is going to be what we are about to see, the eradication of something that has shocked the consci[ence] of this court.

— U.S. v. Gore, 60 M.J. 178 (U.S. Court of Appeals of the Armed Forces, 2004)

Post by coram nobis. First of two parts.

Given the significant, adverse pretrial publicity against Bradley Manning, and in particular Barack Obama’s comment that “he broke the law” at a San Francisco Democratic fundraiser on April 23, it’s worth a more complete discussion of “unlawful command influence,” not just a pretty turn of phrase but a very real requirement of military law.

Improper enough that the Prez might cast guilt on a defendant in a civilian trial. The reason Charles Manson went on to conviction was that Richard Nixon wasn’t “in command” of the court trying him. Big diff in the military, where the chain of command convenes the court-martial, provides the prosecuting counsel (staff judge advocate’s office) and appoints the “jury”. The UCMJ and military case law have a much higher presumption of unlawful command influence.

And the commander-in-chief is at the direct top of that chain of command. Obama is not just the President of the United States, a constitutional-law professor and Nobel Peace Prize Laureate. He is the commander-in-chief. As US military appellate courts frequently say, UCI is the mortal enemy of military justice.

Unlawful command influence occurs when military authority influences, impedes or otherwise misdirects the administration of justice. This is quite possible in a military where disobedience to command authority is itself punishable by military law, where service members are conditioned from their first day in boot camp to obey that authority, where commanders are the convening authority for courts-martial and will pick the court-martial “jury” panel members.[1]

Unlawful command influence can be directed at members of military courts – judges, panel members, counsel, prospective or actual – or at potential witnesses. The pressure can be direct or indirect, e.g., by general pronunciamentos by the commander as indirect pressure, and it can be actual or apparent. A military appellate court cannot affirm findings and sentence by a court-martial if that influence has affected those findings.[2]

The underlying principle is simple: “A commander who causes charges to be preferred or referred for trial is closely enough related to the prosecution of the case that the use of command influence by him and his staff equates to ‘prosecutorial misconduct.’”[3]

Congress and the military have provided several defenses against unlawful command influence: direct (by statute and regulation); indirect (procedural statutes, also by removal of military trial judges, criminal investigators,[4] and defense counsel from the chain of command; creation of civilian-staffed, military appellate courts; also through procedural safeguards, (e.g., Art. 31 and 32), and through military case law.

Direct safeguards against command influence are:

Article 37 (10 U.S.C. § 837). Article 37 and Rule of Court-Martial (RCM)[5] 104 forbid unlawful command influence, which includes any attempt to coerce or retaliate against any member of the court (including judges and counsel), specifically including personnel evaluations (fitness reports).

Article 98 (10 U.S.C. § 898). Violations of Art. 37 can be prosecuted under Art. 98 (noncompliance w/procedural rules; punitive article).[6]

General and special court-martial convening authority cannot also be the accuser.[7] Defense counsel’s activity in defense of the accused may not be reflected unfavorably on their fitness reports.[8]

Indirect statutory safeguards that can inhibit command influence include:

Art. 26(c). Trial judges must be independent, i.e., their evaluation reports must not be written by convening authority, must be a member of the Bar (with all the ethics rules that implies) and must be assigned to that service’s Judge Advocate General, not the chain of command.

Art. 31 forbids anyone from compelling a defendant to self-incriminate, and, further, Art. 31(d) forbids the use of “coercion, unlawful influence or unlawful inducement” to elicit statements, and bars their use as evidence at trial. Command pressure on suspects or investigators could breach this.[9]

Art. 32 requires, among other due process requirements, a “fair and impartial” pretrial investigation at which defendants have a right to have counsel. Violation of Art. 32 does not constitute judicial error, though command or legal staff breaching Art. 32 (or Art. 31) could face prosecution themselves under Art. 92, failure to follow regulations. The decision to start an Art. 32 investigation does not of itself constitute improper command influence.[10]

Art. 34. Forbids the convening authority to proceed to trial without input from the staff judge advocate that the Art. 32 evidence justifies a trial on that charge. While the SJA is usually on the commander’s staff, the SJA is also a military lawyer with obligations under the code of professional ethics. A judge advocate has to make similar post-trial findings under Art. 64, before approving the findings of the court and sending it on for appellate review; The Judge Advocate General[11] will also review under Art. 69.

Art. 66 and 67 provide for review by military appellate courts, outside the chain of command; after that, Art. 67a provides for Supreme Court review on a writ of cert. Congress meant the military appellate system to be a check, a “bulwark” against command influence.[12] The military has two levels of appellate courts, one in each armed service (Army, Navy/Marines, Air Force and Coast Guard Courts of Criminal Appeals), and a U.S. Court of Appeals of the Armed Services (USCAAF).

However, the convening authority – the commander – is rarely a lawyer. From company command level s/he will be trying Art. 15s, will be subject to service on court-martial boards[13], and able, in senior command, to serve as court-martial convening authority. Service regulations typically incorporate UCMJ/RCM mandates in legal training for future commanders, in cadet, basic officers’ course, and advanced-course training curricula.[14] This training may or may not impart either a rudimentary legal education or an understanding of the underlying principles of military justice.

Indirect institutional safeguards include the removal of armed services’ trial judges, defense counsel[15] and criminal investigators[16] from the direct chain of command. These entities may be in separate organizations, attached to field commands but not under direct command. The Army and Air Force Departments have all three of these agencies, which report to central offices in their department, not to the base commander. A fortiori, a military judge must be independent of convening command authority per 10 U.S.C. § 826(c) (Art. 26(c) UCMJ) nor may the judge consult ex parte with members of the court (Art. 26(e)).

The Navy Department is slightly different: The Navy JAG office has a trial judiciary to serve the Navy and Marine Corps; it also includes the Navy/Marine Corps court of criminal appeals, whose chief judge reports to the Navy’s judge-advocate general.[17] However, trial defense counsel will be Navy/Marine JAG personnel “detailed by the judge advocate’s commanding officer,” i.e., possible convening authority.[18]

Note that the military lawyer has a responsibility, under both the RCM and the military’s code of professional ethics,[19] to report any instances of unlawful command influence.[20] A military judge that fails to uphold the independence and integrity of his/her court had committed dereliction of duty, which can include prosecution under Art. 92, failure to comply with regulations.[21]

Finally, each member of the armed services swears an oath of allegiance to the Constitution of the United States, and “true faith and allegiance” to it. By inference that would include the applicable provisions of the Fourth, Fifth, Sixth and Eighth Amendments.

Case law spells out what a defendant must do upon alleging unlawful command influence.

(Case law does apply to military courts-martial. Above the courts-martial are two levels of appellate courts: the court of appeals for that service branch, and above that the U.S. Court of Appeals for the Armed Forces, and above that, if they ever grant cert. to hear an appeal, is SCOTUS. And any case law these courts issue — esp. USCAAF in this area — is binding on courts-martial.)

One method is a “DuBay hearing”[22] which will remand the trial record to a convening authority other than the one that appointed the court-martial, and then on to a board of review.[23] Counsel can raise this during trial or on appeal, e.g., if finding after the fact that the trial panel voir dire was subjected to improper command influence, however, any such objection must be timely raised or it will be waived.[24]

Manning’s lawyer could raise UCI during the voir dire phase, that is, the DuBay hearing. At issue will be not just Obama’s comments but anything from the chain of command from him down to brigade level that might look like court tampering or even a hostile command climate. It could come up again if Manning is convicted and it goes to the Army Court of Criminal Appeals and then to USCAAF. It could get even more interesting if the barrage of bad pretrial publicity against Manning, via NYT, Frontline and the Guardian, came from military sources, because that would affect the “jury”, voir dire, and military officers who would staff the court-martial panel may very well read those news sources.

Once unlawful command influence is raised, either at trial or on appeal, the burden shifts to the government to show, beyond a reasonable doubt, either that there was no unlawful command influence or that the unlawful command influence will not affect the proceedings, and the government may meet that burden by: (1) disproving the predicate facts upon which the allegation of unlawful command influence is based; (2) persuading the military judge or appellate court that the facts do not constitute unlawful command influence; (3) producing, at trial, evidence proving that the unlawful command influence will not affect the proceedings; or (4) by persuading an appellate court on appeal that the unlawful command influence had no prejudicial impact on the court-martial).[25]

To raise unlawful command influence on appeal, the appellant must show (1) facts that, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness.[26]

The threshold showing is merely “some evidence” of improper command influence (though beyond mere allegation or speculation).[27]

Raising the unlawful command influence issue during trial or on appeal could potentially result in having the charges or the conviction dismissed. [28] The court may also determine that a less drastic remedy is appropriate, such as restricting the ability of the government to present evidence, insuring that witnesses are informed of the protections they are entitled to under the Uniform Code of Military Justice, allowing the defense greater leeway in the voir dire, or disqualifying a convening authority from taking further action on the case after the trial.[29]

The commander is arguably a magistrate;[30] command influence can be proper if conferred by, and in conformity to, the UCMJ. Courts have found some command functions to be a matter of command prerogative, e.g., Art. 34 does not disqualify a convening authority, where command functions are at issue, from having its staff judge advocate review a case for trial under Art. 34.[31] Same thing for Art. 60 and 64, post-trial review by convening authority.[32]

That’s the thing about the court-martial system. Having set it up so that a senior commander is the court-martial convening authority (CMA), the UCMJ and the military have provided for the independence of those courts.

I might add that they’ve also removed the trial judges, military defense counsels, and investigative agencies (e.g., CID) from the chain of command. They’re still on the base or in theater, but they are stovepipe agencies reporting to DOD, not the commander in the field. Military counsel, whether defense, prosecution, or staff judge advocate, are bound by professional rules of ethics very similar to, say, the Model Rules of the ABA (see, e.g., Army Regulation 27-26, other services have similar). There’s even a provision (Art. 34) that requires the commander’s staff judge advocate to report (under, might I add, their professional rules of candor) whether the prosecution is even justified.

Although the Administrative Procedures Act normally forbids civilian courts to review court-martial convictions,[33] some courts have held that collateral review is possible on matters, e.g., as due process,[34] and improper command influence interferes with due process.

More on this subject later in the week.

[1] But the panel must be fair and impartial and military courts of appeal will not tolerate attempts to “stack” or otherwise mess with it. U.S. v. Dowty, 60 M.J. 163 (U.S.Ct. of Appeals of the Armed Forces (USCAAF), 2004). However, Sixth Amendment right to jury does not apply to courts-martial and the convening authority’s authority to pick the panel is valid.

[2] U.S. v. Rivers, 49 M.J. 434, 443 (USCAAF, 1998).

[3] Thomas, 22 M.J. at 393.

[4] For instance, the Army’s Criminal Investigations Command is a “stovepipe” agency, with detachments (CID) in field units and bases serving commanders but not under their direct command. DoD Background Briefing, May 21, 2004, on the CID’s investigation of deaths of prisoners at Abu Ghraib.

[5] Rules of Court Martial and Military Rules of Evidence are in the Manual for Courts Martial (2005 ed.)

[6] Per fn., MCM (2005 ed.) at II-4.

[7] Art. 22(b) and 23(b) UCMJ (10 U.S.C. §§ 822(b), 823(b)).

[8] RCM 104(b)(2).

[9] Command meddling in an investigation will trigger Art. 31. Cunningham v. Gehlke, 36 M.J. 94, 101-102 (CMA, 1992). Military courts have construed Art. 31 to be broader than Miranda. U.S. v. Baird, 851 F.2d 376, 383 (D.C. Cir., 1988).

[10] U.S. v. Stirewalt, 62 M.J. 297 (USCAAF, 2004).

[11] “The Judge Advocate General” is senior counsel in each service, working under the service Secretary and Chief of Staff. Thus not in the operational chain of command specified by the Goldwater-Nichols Act (see esp. 10 U.S.C. §§ 161-168) which runs from the President and Secretary of Defense (“National Command Authority”) directly to the unified (regional) and specified combatant commands, e.g., CENTCOM in the Middle East. For duties and responsibilities of the TJAG see 10 U.S.C. § 5148 (Navy/Marine Corps), 10 U.S.C. § 3037 (Army), 10 U.S.C. § 8037 (US Air Force). However, each TJAG is appointed by the President, who can terminate him/her.

[12] So noted in Thomas, 22 M.J. at 393.

[13] 10 U.S.C. § 825 (Art. 25 UCMJ).

[14] See, e.g., AR 27-10, Military Justice, ¶ 19-5 on curricula requirements, and Field Manual (FM) 27-1, Legal Guide for Commanders.

[15] E.g., the Army Trial Defense Service.

[16] Army: Criminal Investigations Detachments (CID); Air Force: Office of Special Investigations; Navy/USMC: Naval Criminal Investigations Service (NCIS, formerly NIS). This keeps commands from impeding an embarrassing investigation; also command intrusion into a criminal investigation, even well meant, can poison a chain of evidence, see Cunningham footnote supra. It’s a reason the military leaves this to professionals, e.g., CID; even on-base MPs might have to defer to them. FYI.

[17] Dept. of the Navy JAG INSTR 5400.1A, Office of the Judge Advocate General (OJAG) Operating Manual.

[18] See Navy/Marine Corps’ comprehensive JAG manual, JAG INSTR 5800.7D (JAGMAN 2004), §§ 0130b, 0131b(2). The latter section permits convening authorities this role, and the commander can make determinations on attorney-client privilege. § 0131d. Compare with the Air Force’s AFI51-201, Military Justice, and the Army’s AR 27-10, Military Justice.

[19] AR 27-26, Rule 5.4(b), Rules of Professional Responsibility for Lawyers, App. B.) See also, e.g., Navy JAG INSTR 5803.1C, Professional Conduct of Attorneys.

[20] R.C.M. 104, MCM, 1984.

[21] U.S. Navy-Marine Court of Military Review v. Carlucci, 26 M.J. 328, 336 (Court of Military Appeals, 1988).

[22] U.S. v. DuBay, 37 C.M.R. 411, 17 U.S.C.M.A. 147 (CMA, 1967), undertaken under authority of Art. 67(c).

[23] All in accordance with Arts. 61, 64, and 67, UCMJ.

[24] United States v. Ayers, 54 M.J. 85, 91 (2000), citing Mil.R.Evid. 103(a)(1).

[25] United States v. Biagase, 50 M.J. 143 (USCAAF, 1999).

[26] United States v. Richter, 51 M.J. 213 (USCAAF, 1999).

[27] United States v. Stoneman, 57 M.J. 35 (2002), see also U.S. v. Dugan, 58 M.J. 253-4 (USCAAF, 2003). but see U.S. v. Bridges, 57 M.J. 540, 551 (Coast Guard Ct. of Crim. App., 2003).

[28] United States v. Gore, 60 M.J. 178 (USCAAF, 2004). The issue: command intimidation of witnesses.

[29] 53A Am. Jur. 2d Military and Civil Defense § 265

[30] “A Senior Military Lawyer,” Background Briefing, Uniform Code of Military Justice and Court Martial Procedures, May 19, 2004. An interesting characterization of the commander’s role, in an otherwise misleading, even silly, discussion of military law and command-influence issues. That DoD put out this Monty Python view of law in the time of the 2004 Abu Ghraib inquiry is disturbing, to say the least.

[31] See generally case law for 10 U.S.C. § 834.

[32] 10 U.S.C.A. § 860, see, e.g., U.S. v. Taylor, 60 M.J. 190, 194 (USCAAF, 2004) which disqualified the staff judge advocate but not the convening authority.

[33] The APA exempts courts-martial and military commissions, and military actions in the field in time of war, from civilian court review. 5 U.S.C. § 701(b)(1)(F) & (G).

[34] Cothran v. Dalton, 83 F.Supp.2d 58, 63 (D.C. Cir., 1999), finding that while the court-martial is not an “agency,” the military – i.e., staff judge advocates – are. But see McKinney v. Caldera, 141 F.Supp.2d 25, 31 (D.C. Cir., 2001), agency action should not be “arbitrary and capricious or contrary to the law.”

3 responses to “unlawful command influence: a primer

  • harpie

    Hi, and thanks.
    Marcy Wheeler ended The Army’s “Sticky Note” SIPRNet Security with this interesting point:

    Hey DOD? You gotta be trying to keep stuff secret if you’re going to claim it’s secret. If the password to get to the secrets is floating around on Post It notes, you really can’t argue that you were actively trying to keep this stuff secret.

  • Co-authors of blog: Coram Nobis and Helen Gerhardt

    Hi, Harpie. You’d think that they would at least have put NetNanny on their Super Secret Decoder Routers at Manning’s HQ. I suggested that in Greenwald’s column after the Manning story broke, but so far they haven’t sent me my Medal of Freedom.

    Maybe they haven’t fixed it yet.
    — coram nobis

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