Prof. Joyner and Lt. Col. Weirick on unlawful command influence

Prof. James Joyner and Lt. Col. James W. ["The"] Weirick, USMC (Ret), speaking only for themselves, have written a powerful War on the Rocks essay on unlawful command influence and the role of commanders in the current military justice system. Here it is:

Recently, a military appellate court once again overturned a rape conviction on the grounds of unlawful command influence. This time (United States v. Garcia), the source of the influence went beyond a base commander or even a service chief and included comments made by President Obama and the general climate around sexual assault in the military command structure. 

Concerns over the military’s ability to effectively deal with sexual assaults had been percolating for years. These concerns were exacerbated by a spate of high-profile sexual assault cases: Naval Academy football players accused of sexual assault, members of the Fort Hood Sexual Assault Response Team accused of operating a prostitution ring, the head of the Air Force’s Sexual Assault Prevention and Response office arrested for sexual battery, and two Air Force general officers — Lt. Gen Susan Helms and Lt. Gen. Craig Franklin — overturning subordinates’ convictions for sexual assault. 

With this background, the Senate Committee on Armed Services convened a hearing in June 2013 to investigate the ability of the military to effectively combat sexual assaults in the ranks. The panel included then-Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey, all the service chiefs, and their uniformed legal advisors, or judge advocates general (JAGs). The chiefs and their JAGs were unanimous in their insistence on the criticality of “maintaining the central role of the commander in our military justice system.”

From this hearing emerged proposed legislative changes that fall into two camps, one headed by Sen. Claire McCaskill, (D-MO), and the other by Sen. Kirsten Gillibrand, (D-NY). The Gillibrand proposal would remove commanders from the decision to prosecute serious crimes, such as sexual assault and murder, while leaving uniquely military crimes to the chain of command. McCaskill’s plan leaves the decision to prosecute sexual assaults with commanders and focuses on mandatory minimum sentences, protecting victims from retaliation, and prohibiting a commander from overturning the results of a trial. McCaskill’s changes have been approved, while Gillibrand’s proposals have twice fallen short of the 60 votes required to overcome a filibuster in the Senate. 

In the meantime, an ironic twist has further complicated the matter. In order to address the burgeoning issue of sexual assault in the ranks and combat the perception that dealing with it was not a priority, President Obama, service secretaries, service chiefs, and commanders down to the lowest levels mounted an aggressive campaign to highlight the severity of the issue to service members. Thousands of speeches were given and extensive training was instituted. This very campaign was found to constitute “unlawful command influence” under Article 37(a) of the Uniform Code of Military Justice, which provides that “No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings” and that “No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.” 

The recent spate of unlawful command influence rulings began with a Navy judge’s finding that President Obama’s comments about sexual assault unduly influenced any potential sentencing. 

Then, in the high-profile prosecution of Army Brig. Gen. Jeffery Sinclair for sexual assault against a subordinate, themilitary judge ruled that unlawful command influence had tainted the trial. Former Commandant of the Marine Corps Gen. James Amos, was also found to have exercised unlawful command influence when he commenced on a worldwide speaking tour addressing the Corps about the problem of sexual assault. His actions resulted in a military court of appeals overturning a conviction for sexual assault. 

It is with this background that the Garcia case was decided. The Garcia opinion noted that “with multiple references — some overt and others thinly veiled — to the Army’s efforts to confront sexual assault, the government attempted to impermissibly influence the panel’s findings by injecting command policy into the trial.” In the Garcia case, the prosecutor repeatedly, and improperly, mentioned the Army’s stance on sexual assaults. 

The military judge failed to provide the proper limiting instructions to the jury, i.e., to ignore the prosecutor’s repeated references to the Army’s stance on the problem of sexual assault. This issue would not exist, but for the repeated public statements by senior Army officials, and other government officials, about the need to eradicate sexual assault from the military. It is this means of improper influence that is so difficult to remove from a military trial, even with a military judge vigilantly policing the arguments of the prosecutor. 

To be sure, improper and inflammatory appeals are common in civilian trials. Even though they are plainly prejudicial and have nothing whatsoever to do with whether the defendant committed the particular crime for which he is on trial, prosecutors often implore jurors to “send a message” about the unacceptability of rape, drunk driving, or what-have-you. For that matter, as we’ve seen in the recent turmoil over police misconduct, mayors, governors, and even presidents frequently make impassioned statements about ongoing cases that could influence potential jurors. 

Military justice is simply different. Because military jurors are under obligation to follow the orders of those above them — and in particular the president, secretary of defense, and senior generals — the command climate and references to the wishes of senior leaders are much more difficult for military jurors to discount. Civilian jurors are simply not subject to that same pressure. Which, in turn, means military defendants need more protection than their civilian counterparts. 

Officers take an oath to the Constitution, which makes the president their commander-in-chief. Enlisted personnel additionally swear to “obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.” Doing otherwise not only breaks their covenant with the nation but places them in legal jeopardy under the UCMJ. 

For good reason, uniformed military personnel are bound by all manner of restrictions not applicable to civilians, even civilian employees of the Defense Department. Officers may be punished for using “contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present.” Any uniformed member who “willfully disobeys a lawful command of his superior commissioned officer,” “violates or fails to obey any lawful general order or regulation,” or even merely “behaves with disrespect toward his superior commissioned officer” is subject to court-martial. A service member can even be punished for failing to shave or wearing his or her hair out of regulation. 

Further, while officers and noncommissioned officers are expected to exercise good judgment and to disobey orders that are obviously illegal, the culture is one that instills obedience for lawful orders. While there is the requirement to disobey obviously illegal orders, one does so at one’s peril. If the service member is later tried for disobeying an order, it is presumed that the order is lawful, and the accused bears the burden of rebutting the presumption. Moreover, especially when coming from the president and general officers, the merest expressed wish of those higher in the chain of command is treated as an order enjoying a presumption of lawfulness. For Marines, in particular, the commandant’s word is gospel. 

Thus, most of the public conversation on this topic has been focused on the wrong problem. While it’s true that some commanders have failed to vigorously do their jobs in prosecuting sexual assault as a serious crime, that’s fixable. The real problem is that commanders have two jobs here — sending the message that sexual assault will not be tolerated and prosecuting those who break the law — that are in conflict. Because the first of those jobs is essential to the commander’s role while the second can be done by objective outside professionals, the two must be split. 

The unlawful command influence restriction unnecessarily hampers senior leadership from trying to solve serious issues like the sexual-assault problem. While Amos was particularly ham-fisted in his messaging, his heart was in the right place by placing great emphasis on an issue that was impacting the welfare of the female Marines in his charge and the cohesion of his Corps. 

And, of course, no one is going to stop the president of the United States or service secretaries from grandstanding when a military issue comes into the spotlight and puts pressure on them to weigh in. Commander-in-chief is only one of many hats the president wears and declining to speak out in the face of public perception that sexual assault is rampant in our armed forces would be unthinkable. 

The combination of these two factors makes taking felonies out of the UCMJ imperative. For minor offenses — many of which aren’t crimes in the civilian world — the uniqueness of the military occupation, exigencies of location, and considerations as to whether an individual is otherwise a “good soldier” make the longstanding practice of commanders having a heavy influence vital for “good order and discipline.” 

But felonies are a different matter. There, the aim is punishing transgression and separation of a bad egg from not only the military ranks but society at large. The civilian courts, lacking the conflict of interest inherent in military command, are simply the better venue for dealing with that. 

The shared experiences of our allies — the United Kingdom, Canada, and Australia — have demonstrated that removing felonies from their systems of military justice has increased the fairness and transparency of criminal trials, while maintaining the commander’s ability to ensure good order and discipline. 

The United States federal justice system has demonstrated that it is well equipped to handle these types of felonies, even with the exigencies of location and unique difficulties presented by crimes committed on the battlefield. Military contractors are the closest analog to service members, and the recent convictions of four former Blackwater employees for murder, resulting from deaths of 17 Iraqis in 2007, demonstrates the feasibility of removing felonies from military jurisdiction while ensuring justice. 

It is time to remove felony crimes from military jurisdiction. Military leaders have an obligation to address issues such as sexual assault and do all that they can to eradicate this scourge from our ranks. But as recent history had clearly demonstrated, these laudable efforts continue to result in criminal trials that courts find unfair and are forced to dismiss. The solution is to remove these cases from military jurisdiction, thus enabling commanders to continue to communicate openly with their units without impacting the fairness of criminal trials.

Postscript: In a cross-post of the above essay, Prof. Joyner has written:

As the issue of sexual assault by military servicemen gained attention some years back, calls came to take the authority to prosecute away from commanders. I’ve opposed this policy change, arguing that the issue was one of good order and discipline within the ranks and that commanders who failed to do their job in protecting their female troops should be relieved. While my faith in the ability of commanders has not wavered, the secondary issue of “unlawful command influence” and over a year of conversations with now-retired Marine JAG James Weirick changed my mind.