An Enemy of Justice: The Concept of Unlawful Command Influence

Unlawful command influence is a phrase and legal concept many are unfamiliar outside of the military or military legal community. Unlawful command influence (UCI) is effectively defined as “the improper use, or perception of use, of superior authority to interfere with the court-martial process” with Stephen Vladeck, a professor of national security law at the University of Texas School of Law, further commenting “the entire military justice system is comprised of men and women in uniform…these are folks who don't have the same kind of independence as our civilian judges… And the whole point of unlawful command influence is to try to insulate as much of the military justice system from those pressures as possible”.
 
It is a term that has no real relevance in other civilian criminal justice systems given its scope is limited purely to a military setting. However, the concept is an interesting one, one that has garnered scrutiny in the past few years with both the conduct of President Donald Trump and various military debacles.
 
This February, a military judge dismissed with prejudice multiple charges, including negligent homicide, involuntary manslaughter, obstruction of justice, and orders violations, against Chief Petty Officer Eric Gilmet, a Navy Corpsman assigned to a Marine Corps Special Operations Command (MARSOC) unit in the 2019 death Rick Anthony Rodriguez, a retired Green Beret Master Sergeant and Lockheed Martin contractor, in Iraq.
 
On 01 January 2019, Gunnery Sergeants Joshua Negron and Daniel Draher, alongside Gilmet, were leaving a nightclub in Erbil, Iraq when an altercation occurred. According to Task & Purpose, interviewing the three men’s defense counsels;
 
“On New Year's Eve, Draher, Negron, and Gilmet visited a bar in Erbil when Rodriguez allegedly got into an argument with Gilmet, which was caught on video by the bar's surveillance cameras…Gilmet later told his superiors that Rodriguez claimed that the Navy corpsman was not showing him enough respect. Draher tried to resolve the issue by speaking to Rodriguez…Video footage shows that Rodriguez first poked Draher in the chest and then lunged at the Marine…After Rodriguez threw a second punch, Negron hit Rodriguez, knocking him out…Rather than taking him to a base medical facility, the three men returned Rodriguez to his on-base quarters, where a co-worker monitored him. Several hours later, it became clear that Rodriguez was having difficulty breathing; so Gilmet began treating him and then Rodriguez was taken to the base's trauma center”.
 
The three accused had been assigned to the 3rd Marine Raider Battalion.
 
The case had been beset by delays and this was exacerbated by a Marine Colonel’s comments. At a November 2021 meeting, Colonel Christopher Shaw, the deputy director of the Marine Corps JAG, told Captain Matthew Thomas, who represented Gilmet, asked “What is being done to protect the attorney in that position from outside influences such as political pressures, media pressure and general societal pressure?” to which Shaw responded, “I know your name and I know what cases you’re on and you are not protected. You are shielded but not protected”. Following a , the Inspector General of the Marine Corps conducted an investigation which found “[the statements] did not warrant dismissing charges and, while “unprofessional,” they “did not constitute a violation” that caused harm equivalent to unlawful command influence”.
 
The case garnered interest within political circles after details of the Colonel’s comments were made clear, with “Representatives Louie Gohmert (R-TX), Madison Cawthorn (R-NC) and Daniel Webster (R-FL) [penning] a letter to the Secretary of the Navy and Commandant of the Marine Corps addressing allegations that a Marine colonel's comments may have jeopardized the fairness of the service members' trials”.
 
Following this, the judge in Gilmet’s case dropped all of the charges.
 
The judge, Commander Hayes C. Larsen, opined, “The facts in this case can be boiled down to a simple advert: a senior judge advocate who occupied a position of authority over the futures of young judge advocates made threatening comments to a young judge advocate about his career while this young judge advocate was assigned as IMC [individual military counsel] to a HIVIS [high visibility] case, creating an intolerable tension and conflict between an accused and his specifically requested military counsel…His actions constitute actual and apparent UCI [Unlawful Command Influence]”.
 
Both Draher and Negron’s cases have not moved forward given they are being tried separately, but their lawyers “have filed motions to dismiss, based on the same unlawful command influence allegations”.
 
In any criminal case being investigated and prosecuted, especially ones of a serious criminal charge like rape or murder, command must not be allowed to intervene or perceived to be intervening within a criminal case. It could easily warp the case, both in reality or perception, and effectively allow a person to not be punished for their crimes.
 
In this specific case, the crime of negligent homicide was certainly there; the soldiers in question did with the desire to “inflict great bodily harm” unlawfully killing “a human being in the heat of sudden passion caused by adequate provocation”. They furthermore did act without proper awareness or care in ensuring the contractor whom they had harmed was being treated effectively, instead entrusting themselves to do this.
 
The qualities and overall sentiment of negligent homicide were very present within this case; however, the presence (or even perceived presence) of UCI trumps all else.
 
Professor Jeffrey Addicott, a retired Lieutenant Colonel with Army JAG and a Professor at St. Mary’s School of Law in San Antonio, Texas, discussed both UCI and the case in an interview. “UCI is a necessary component to the military justice system.  Given the inherent requirements of strict discipline and chain of command, UCI attempts to ensure that the justice system is not prejudiced” he emphasized, while also stating that the judge is using this case “as a clear signal to deter other individuals from anything that smacks of UCI”. 
 
While it may be somewhat extreme or drastic given the charges, Addicott is right that UCI is one of the most important aspects of military justice and must be protected at all costs.
 
This case is an interesting one, mainly because the judge dissented from the official investigation by the Marine Corps and found that the complaint did constitute a situation of UCI. However, in terms of having an effect upon the rest of the military justice system, this will most likely be rather minimal. The real benefit this case has is showing just how valuable and important UCI is to our military justice system and emphasizing how this must concept must be protected at all costs.
 
“UCI is necessary for military justice to function,” Addicott said, “If we are going to police our own, we must have that extra layer of protection”.

Alan Cunningham