Lieutenant Colonel John L. Kiel, Jr., is the Chair and Professor of the Criminal Law Department at the Army Judge Advocate General’s School in Charlottesville, Virginia. His article in January’s edition of The Army Lawyer is entitled, They Came in Like a Wrecking Ball: Recent Trends at CAAF In Dealing with Apparent UCI, 2018 Army Law. 18.
In his article, Professor Kiel explores how, lately, senior judge advocates have not only failed to curb unlawful command influence, they have furthered it. His piece focuses on two recent cases this blog has covered extensively: United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) (CAAFlog case page) and United States v. Barry, No. 17-0162/NA (CAAFlog case page).
Professor Kiel’s first takeaway from those two cases concerns how judge advocates should communicate with convening authorities:
First and foremost, [judge advocates] must remember that they can commit UCI. In both cases, the appellate courts found that telephone calls from the Air Force and Navy TJAGs to subordinate SJAs and in Barry’s case, to the convening authority directly, placed an intolerable strain on the public’s perception of military justice. Telling your boss not to put a target on his back and warning him that political atmospherics require him to take certain action is always going to be ‘some evidence’ of apparent UCI[.]
2018 Army Law at 24.
His second takeaway concerns how subordinate judge advocates should communicate with superior judge advocates at higher headquarters:
You should never, ever put TJAG (or DJAG) in a potentially compromising position by discussing cases that are still pending in your jurisdiction. Providing an update for the high profile tracker is one thing, getting TJAG’s advice and passing it along to your convening authority is quite another. As we saw in both cases, you, your boss, and TJAG may all end up testifying at a DuBay hearing concerning the intimate details of your private conversations. If your boss feels comfortable enough to pick up the phone and call TJAG to discuss specific cases, you need to know exactly what was said and then try like hell to prevent them from doing it again.
Perhaps most importantly, Lieutenant Colonel Kiel recommends:
[K]eep your legal advice free from politics. That can only lead to trouble down the road. The only thing your legal advice should be steeped in is the law and the facts. [F]igure out how to convey legal advice that comports with the evidence, is grounded in the rules, and is consistent with the powers the convening authority can exercise under the UCMJ without cajoling them into taking action that the President or members of Congress might like them to take.
If, after receiving your politics-free advice the convening authority insists on a decision which you disagree with, then, after that decision is made – not before – “send the case file up and let the superior convening authority and their legal advisor conduct an independent review.” Id.
As I see it, the sum of Lieutenant Colonel Kiel’s advice to all judge advocates – whether they are advising a convening authority or a Service Secretary – is to behave with courage. And, to behave like a lawyer rather than a politician.
Of course, any good lawyer should be open and responsive to the advice of more senior attorneys. However – especially when receiving such advice – a good lawyer should courageously and jealously guard their role as the proper fount of legal advice for their particular client. When mustering the courage to fulfill that duty, a judge advocate should recall:
The opposite of courage in our society is not cowardice, it’s conformity.
Rollo May (attributed)