Scholarship Saturday - Congress has diluted the law against unlawful command influence and exposed the military justice system to constitutional attack

Scholarship Saturday will, from time to time, offer law students the opportunity to publish comments on military law. This week we feature the work of Jackson Rubinowitz, a J.D. candidate at Columbia Law. Mr. Rubinowitz is commenting on an article soon to be published in the Hofstra Law Review by Southwestern Law School Professor (and retired Air Force judge advocate) Rachel VanLandingham: Ordering Injustice: Congress, Command Corruption of Courts-Martial, and the Constitution, 49 Hofstra L. Rev. 211 (2021).

Mr. Rubinowitz' work begins after the "read more" break.

- Isaac Kennen, Scholarship Editor

The military justice system has always faced the unique challenge of balancing two countervailing interests. On the one hand, order, discipline, and control are necessary for the proper functioning of our armed forces. On the other hand, a fair and transparent adjudicatory process is necessary to protect the due process rights guaranteed by the Fifth Amendment of the US Constitution. One area where these interests are visibly in tension is the law of unlawful command influence, or UCI, codified in Art 37 of the UCMJ. The National Defense Authorization Act of 2020 (“NDAA 2020”) altered the language of Art 37 in response to a pair of high-profile sexual assault convictions that were reversed on grounds of UCI. (See United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018) and United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) [editor's comment: also see this column's discussion last month of those two cases, here.]). Specifically, the changes to Art 37 eliminate “apparent” and “unintentional” unlawful command influence as grounds to overturn a conviction. In her recent essay, Professor Rachel VanLandingham argues that these changes, if fully enforced, would pose a serious threat to the due process rights of the accused in a court-martial and that the US Constitution requires CAAF to read the statute to cover both apparent and unintentional UCI. Professor VanLandingham’s analysis is exactly correct with respect to unintentional UCI. For apparent UCI however, there is a better solution. CAAF should instead recognize that the division between apparent and actual UCI was illusory in the first place and that military jurisprudence could better achieve the goal advanced by apparent UCI doctrine by altering the standard for finding prejudice for purposes of actual UCI.

1. Military Tribunals currently lack sufficient constitutional due process safeguards

There are a number of structural impediments to due process rights in military tribunals that necessitate a robust standard for unlawful command influence. First, and most obvious, is the fact that the convening authority, often a commander, chooses the jury panel in a court-martial. The mere fact that the convening authority has endeavored to prosecute a case signals to the participants that they should convict. Given the hierarchical orders-based system upon which the military depends, the result is that the deck is stacked against the accused from the start. One would think that, given the inherent bias in favor of convictions, the court-martial process would have other safeguards to counteract the risk of due process violations, but that is not the case. In fact, court-martial procedures are less protective of due process rights than those that exist in civilian court. There is no requirement that a verdict to convict be unanimous, and military jury panels are smaller than the 12-person jury used in civilian criminal trials. Military judges are Department of Defense executive branch officials, as opposed to independent Article III judges, and they hear arguments from Department of Defense lawyers. (For a detailed analysis on these inequities, see Scholarship Saturday: We hear drums, drums in the deep.) In sum, there is an inherent bias against the accused built in to the military justice system, and the court-martial process not only fails to counteract that bias, but actually exacerbates it. Therefore, professor VanLandingham’s argument that a strong unlawful command influence laws are necessary to safeguard Fifth Amendment rights of the accused is a prescient one.

{Editor’s comment: Based on the comments of a reader, and with consent of the author, I edited the above paragraph on February 9, 2021. Mr. Rubinowitz' article previously stated that convening authorities detail military judges. However, Article 26 of the UCMJ does not prescribe who has responsibility for detailing military judges. On that question, Congress demurred: “the Secretary concerned shall prescribe regulations.” Congress’ decision to leave the detailing of military judges up to each service was echoed by the President in Rule for Courts-Martial 503(b), who only added the condition that whomever "the Secretary concerned" picks as their detailing authority must be “a person assigned as a military judge and directly responsible to the Judge Advocate General or the Judge Advocate General’s designee.” Each of the Service Secretaries have published the required regulations, placing detailing discretion in the hands of the officer selected by the Judge Advocate General to serve as their Chief Trial Judge. In some services, that authority can be further delegated to subordinate military judges. See AFI 51-201 ¶ 10.1; AR 27-10 ¶ 7-6.a; JAGINST 5800.7G § 130a; and COMDTINST M5810.1G, Ch. 7 § A.

The fact that military trial judges are appointed by their service’s Judge Advocate General (or their direct subordinate) rather than a convening authority does not remedy Mr. Rubinowitz’ principal concern: there is an inherent conflict of interest in having trial judges appointed by an authority who exercises prosecutorial discretion. Convening authorities are certainly prosecutors. See United States v. Fernandez, 24 M.J. 77, 78 (C.M.A. 1987). But, so are Judge Advocates General. They determine whether the United States will appeal an adjudged sentence [Article 56(d)], they determine whether to pursue further appeal after the government loses before a Court of Criminal Appeals [Article 66(g)], and they determine whether the government will require the Court of Appeals for the Armed Forces to hear cases the government wishes to have heard [Article 67(a)(2)]. All of those powers are prosecutorial in nature. As such, Mr. Rubinowitz’ concern is well founded: it is decidedly unseemly to have a prosecutor exercise control over military judges, whether that prosecutor be a convening authority or a Judge Advocate General. Those concerns are particularly valid given the conduct of Judge Advocates General in recent history. Take, for example, what CAAF Senior Judge Ryan called just a few years ago “monkey business aplenty . . . with respect to Lt Gen Franklin” [United States v. Boyce, 76 MJ 242 (C.A.A.F. 2017)]. There, she was, in part, referring to the behavior of now-retired former-Air Force Judge Advocate General Richard Harding which raised “the possibility of government misconduct; that is, the misshaping of legal and other advice to the acting Secretary of the Air Force as well as to the AFDW Commander in order to bring the appellee [who was ultimately acquitted] to trial by general court-martial” [United States v. Wright, 75 M.J. 501, 508 (A.F.C.C.A. 2015)]. - Isaac Kennen, Scholarship Editor}

2.  Unintentional unlawful command influence is a due process violation

Before the NDAA 2020 amendments, Article 37 read, in part:

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.

UCMJ art. 37(a), 10 U.S.C. § 837(a) (1950) (amended 2019).

In its 2018 decision in United States v. Barry, CAAF held that the Navy’s Deputy Judge Advocate General’s unintentional unlawful command influence was grounds for remedial action. In so holding, the court interpreted the word “attempt” in Article 37 to modify only “to coerce” but not “influence the action.” Id. at 78. In response to the result in Barry, congress changed the language of Art 37 to read:

No person subject to this chapter may attempt to coerce or, by any unauthorized means, attempt to 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 or preliminary hearing officer with respect to such acts taken pursuant to this chapter as prescribed by the President.

UCMJ art. 37(a)(3), 10 U.S.C. § 837(a)(3) (emphasis added).

Professor VanLandingham argues that the constitution requires the CAAF to continue providing a remedy for unintentional, actual unlawful command influence, even if such a remedy is no longer supported on a statutory basis. The CAAF’s doctrine defines actual unlawful command influence as “improper manipulation of the criminal justice process which negatively affects the fair handling and/or disposition of a case.” Boyce, 76 M.J. at 247-49. That is, it requires prejudice against the accused. There is no mens rea requirement in the Fifth Amendment. Regardless of intent, if the accused’s right to a fair and untainted proceeding is deprived, there has been a due process violation. Therefore, professor VanLandingham’s analysis is correct; when an unintentional, unlawful command influence causes actual prejudice to the rights of the accused, the Constitution requires the CAAF to provide remedial action.

3. A better alternative to apparent unlawful command influence

NDAA 2020 also sought to eliminate remedies for so-called apparent unlawful command influence by providing in Art 37(c) that “No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused.” This effectively codified [editor's addition: Senior] Judge Margaret Ryan’s dissent in Boyce, arguing that Art 59 already required actual material prejudice in order to overturn a conviction on the grounds of unlawful command influence. Professor VanLandingham makes a creative argument, 49 Hofstra L. Rev. at 236, to reconcile apparent UCI doctrine with the new Art 37(c) and Art 59. She asserts that apparent unlawful command influence, defined by CAAF to exist when an “objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding,” does in fact prejudice the rights of the accused insofar as it taints the public perception of fairness of the military justice system. See Boyce, 76 M.J. at 244. The appearance of an unfair system, she argues, amounts to a separate but very real form of prejudice against the accused. This is a well-constructed argument. However, upon closer examination, the distinction the CAAF draws between actual and apparent UCI is not exactly clear in the first place.

The CAAF’s 2020 opinion in United States v. Bergdahl, 80 M.J. 230 (C.A.A.F. 2020) is instructive. There, Appellant argued that his conviction was tainted by apparent unlawful command influence, specifically citing public statements made by President Trump and Senator John McCain (a veteran of the US Navy) calling for his conviction for desertion with intent to shirk hazardous duty and misbehavior before the enemy. (slip op. at 6) CAAF ruled that although these statements were clearly intended to influence the outcome of the case, an objective, disinterested observer would not harbor reservations about the fairness of the proceeding because the evidence against Appellant was overwhelming and Appellant actually pleaded guilty to the offenses with which he was charged. Effectively, this reasoning is that in order for there to be apparent unlawful command influence, there has to be a reasonable likelihood of actual unlawful command influence. The Bergdahl decision begs the question: how much closer could the case against Appellant have been before the court would have held that an objective, disinterested observer would harbor doubts about fairness? If the answer is that there is apparent unlawful command influence once there is some nonnegligible likelihood that the accused suffered prejudice as a result of unlawful command influence, isn’t that just assessing whether there was actual unlawful command influence, albeit with a lower burden of proof? This line of inquiry is not meant to offer any concrete answers, but rather, to point out how the doctrine of apparent unlawful command influence never truly functioned as a standalone protection of due process rights. The CAAF could protect the rights of the accused as professor VanLandingham urges, not by preserving the apparent unlawful command influence doctrine, but by simply lowering the threshold for finding actual unlawful command influence. Doing so would preserve due process safeguards while de-cluttering the law.
 
Professor VanLandingham is correct in her assessment that NDAA 2020, if enforced to the letter, constitutes a threat to the due process rights of the accused in military tribunals. The Constitution requires the CAAF to continue allowing for remedial action in response to unintentional, unlawful command influence. Similarly, CAAF will have to adjust its analysis of cases that would have fallen under apparent unlawful command influence.

Jackson Rubinowitz

J.D. Candidate at Columbia Law School