Because of the tremendous amount of influence commanders wield within the military, creating a fair system of courts-martial would be impossible without carefully crafted rules prohibiting unlawful command influence over the judicial process. Since everyone involved with a court martial is usually a member of the military and almost always below the rank of the convening authority—including the panel members and defense counsel—it is important to safeguard against unlawful command influence over the military justice process.
Unlawful Command Influence
Unlawful command influence is the improper use, or perception of use, of superior authority to interfere with the court-martial process. According to the Court of Appeals for the Armed Forces, unlawful command influence is “the mortal enemy of military justice.”
Because of the great influence that they may have, commanders must be extremely careful when speaking to the soldiers within their units about certain cases or types of cases. Statements such as, “Anyone who receives a DUI in this unit should be separated from the Army,” could constitutes unlawful command influence and should therefore be avoided.
Commanders are therefore forced to walk a tight line. On one hand, they cannot improperly influence the process; on the other hand, as convening authorities, they must engage with the process. So, while commanders should be engaged in the process, they must do so without telling subordinate commanders what the disposition of the case should be or improperly influencing the testimony of potential witnesses.
It should be noted that commanders at all levels, not simply the convening authority, can unlawfully influence the process. For example, when speaking about sexual assault in the military, President Obama stated, “If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.” As a result, a military judge ruled in two pre-trail hearings that the defendants, if found guilty, could not be punitively discharged because the President’s statements, having come from the commander-in-chief, could unlawfully influence the decision of the members toward that result.
Accusatory v. Adjudicative Unlawful Command Influence
There are two main types of unlawful command influence: accusatory and adjudicative. Accusatory unlawful command influence occurs while an individual stands accused of wrongful conduct. It affects the process and often occurs when the first command level—usually the company commander—is conducting an initial investigation and deciding the appropriate action to take (prefer charges, nonjudicial punishment, etc.) or as the process is going up the chain. An independent assessment without outside influence from above must be made at every level to avoid accusatory unlawful command influence.
Adjudicative unlawful command influence occurs once the process has reached the court-martial stage. An individual in a position of authority telling the accused’s unit that the accused is dishonest and no one should assist in his or her defense is an example of adjudicative unlawful command influence. Whenever the influencer has a mantel of authority, unlawful command influence may occur.
Basis of Unlawful Command Influence
The Manual for Courts-Martial addresses the issue of unlawful command influence. Rule 104(a)(1) addresses the behavior of the convening authority and commanders, and Rule 104(a)(2) addresses the behavior of all persons subject to the UCMJ. The latter is necessary because unlawful command influence can go all the way down to the lowest levels if there is an ability to influence. An E-5 squad leader could be guilty of unlawful command influence, as well as could a judge advocate.
The foundations of prohibiting unlawful command influence lies with the belief that commanders should have independent discretion, without interference from above, when making judgments and the accused should be free to build his or her case. In addition, members of the court-martial should be free to make their own decisions in the interest of justice without the outside influence of senior ranking officers.
Unlawful command influence can be both actual and apparent. Actual unlawful command influence occurs when the commander intentionally acts in such a way to unlawfully influence the process. Apparent unlawful command influence occurs when the commander inadvertently causes unlawful command influence; that is, when the commander didn’t mean to unduly influence anyone. Both types, however, constitute unlawful command influence.
Unlawful command influence is prohibited in both the courts-martial and Article 15 process. It does not, however, exist during adverse administrative actions, and so an individual subject to such action cannot raise it as a defense. The only exception to this is where administrative action is performed in lieu of a court martial as a result of unlawful command influence.
As the military justice process is heavily focused on the actions of commanders, not every action of a superior commander constitutes unlawful command influence. Withholding over an offense, offender, or subordinate—that is, a senior commander’s stating that he or she will be the initial disposition authority for certain types of offenses or certain ranks of soldiers—is permissible.
Commanders may also send a matter back down the chain for disposition at a lower level. Should a commander do this, however, he or she cannot send it down with instructions that specific action be taken. For example, the general court-martial convening authority sending a case back down to the special court-martial convening authority with instructions that nonjudicial punishment be imposed would constitute unlawful command influence.
If commanders want to be involved with the process, they must be careful in how they approach it. If they disagree with the way things are going, they should simply take control of the case. They should not give orders to lower level commanders as to how they should handle the case. In addition, when speaking about military justice matters in general, commanders should talk about offenses, not offenders, and processes, not results. If commanders are concerned about unlawfully influencing the process, they should consult with the staff judge advocate and the public affairs officer for advice.
Garrett Ham is an attorney at Smith Hurst, PLC in Fayetteville, Arkansas and serves as a Judge Advocate in the Army National Guard. You may reach him at (479) 301-2444.