Unlawful Commander-in-Chief Influence

Unlawful Command Influence (UCI) has been frequently called the “mortal enemy of military justice.” The Uniform Code of Military Justice (UCMJ) and the Military Trial Judiciary take great pains in eliminating any command influence (real or perceived) from the sanctity of the military courtroom and justice process. It is a particular worry for the military because of rigid rank structure and the importance of obeying orders. This environment is ripe for abuse, if not properly managed. If allowed, UCI destroys trust in the UCMJ and impairs the proper application of the constitution to accused members of the Armed Forces.

For this post, I’d like you to remember some important things:

  • UCI is bad. Very bad.
  • UCI can be committed by anyone in a command position.
  • The President occupies the highest command position in the US Armed Forces (Commander-in-Chief).

Many who read this blog are not intimately familiar with the UCMJ or UCI. For this reason, I’ll give an example of run-of-the-mill UCI.

A Brigade Commander (Colonel) commands approximately 3000-4000 troops. One of these soldiers is caught smoking marijuana in violation of the UCMJ. The Brigade Commander orders a lower commander to punish this soldier as harshly as possible. This is UCI. The lower commander, by law, has independent authority at his/her level to dispose of this criminal misconduct as they see fit. If the Brigade Commander is so hot-to-trot about punishing the soldier, he can do so by elevating the matter to his level, if he feels so inclined. It is impermissible for him to order the lower commander in matters necessitating independent discretion.

That is an example of something relatively simple. The next example is a bit more severe.

A soldier faces a court-martial for child molestation. One potential member of his jury is Major X. Prior to the court-martial, Major X is called-into his Brigade Commander’s office. The Brigade Commander tells Major X that he expects his officers to show no mercy to “kiddie diddlers.” Further, he says that he read the soldier’s confession, and he is definitely guilty.

Wow, here is a high-level commander attempting to influence the outcome of a court-martial where the members of the jury should have complete independence in voting their conscience. This example is extreme, and potentially subject to prosecution.

The problems are numerous in the second example:

  1. He clearly implies that he expects a harsh punishment.
  2. The Major is under the authority of this Brigade Commander, and, presumably, his next promotion depends on a good evaluation from the Brigade Commander.
  3. The Brigade Commander tells the potential juror that the soldier is guilty (whereas the Major should presume not guilty unless and until proven guilty at the court-martial)(not to mention what happens if the confession is suppressed).

Today, I’m focusing on problems related to a commander saying something similar to #3.

I’ve used a Brigade Commander as the bad guy in my examples, but it could occur at any level of command. Most of the time, higher commanders are taught to respect the justice process, and they remain silent until proceedings finish. In more publicized cases, they defer to a Public Affairs Office. Colonels/Captains and Generals/Admirals are trained repetitively regarding their role in the justice process and the realities of UCI.

However, it doesn’t appear that the President read the memo, as he comments on the Bradley Manning situation and pending court-martial (pay particularly close attention at the 47s mark).

Here is a rough transcript, in case the background noise was too much for you (bold type added by me):

OBAMA: So people can have philosophical views [about Bradley Manning] but I can’t conduct diplomacy on an open source [basis]… That’s not how the world works.

And if you’re in the military… And I have to abide by certain rules of classified information. If I were to release material I weren’t allowed to, I’d be breaking the law.

We’re a nation of laws! We don’t let individuals make their own decisions about how the laws operate. He broke the law.

[Q: Didn’t he release evidence of war crimes?]

OBAMA: What he did was he dumped…

[Q: Isn’t that just the same thing as what Daniel Ellsberg did?]

OBAMA: No it wasn’t the same thing. Ellsberg’s material wasn’t classified in the same way.

OK, so, let’s break this down:

  • The President is the Commander-in-Chief. This is the highest command authority within our Armed Forces.
  • He can commit UCI.
  • “He is guilty.” “…he dumped…”

Come on. Isn’t there some Chairman of the Joint Chiefs of Staff dude that should be holding a leash here? Sure, he isn’t exactly ordering an outcome, and I’m sure he doesn’t mean to influence a judicial proceeding, but UCI can be both intentional OR unintentional. All he had to say was “As Commander-in-Chief, I cannot comment on pending criminal cases in the military.” There you go. Simple.

Now, who knows what might happen. We already know that, if reports are true, a military judge will likely grant a lot of sentence credit for the allegations of abuse and discomfort during Manning’s pretrial confinement (provided they are founded). Now, the Judge must chew on the potential influence of the President’s comments.

Further, we have no idea what forum Manning will choose for his court-martial. He can choose one of three: Judge alone (bench trial), a jury of all Officers, a jury of mixed officers and noncommissioned officers. With this, the potential jury selection would be a nightmare, with defense attorneys taking days (and possibly more) to flush-out any effects of the President’s comments. I won’t even touch the potential appellate issues.

This may be a moot point if Manning initiates a plea agreement or chooses a bench trial. (Note: We must also remember that, even with a Bench Trial, the Military Judge still falls under the authority of the President).  Prior to these POTUS comments, I suspect his attorneys already decided on a method to mitigate the damage to their client through careful pleadings and a possible cap on sentence. With this news, they must completely reevaluate their strategy.

I figured that, in the first couple of days in office, some guy with stars on his epaulettes would sit with the President to discuss things like commenting on high-profile military cases.

I guess not.

H/T to Scott Greenfield, Blawg Review, and FireDogLake.