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.

Id.

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.

Id.

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)

14 Responses to “Scholarship Saturday: Lawyer-caused unlawful command influence – a symptom of faltering courage”

  1. DCGoneGalt says:

    IMO, the military promotion system rewards conformity and political skill over everything else.  So commanders and JAG leadership will continue to value those skills over courage.

  2. stewie says:

    To Colonel I probably agree…up until then I think you don’t have to have political skill or conform all that much other than paying some attention to “broadly skilled” in your assignment pattern.
     
    Once you become an SJA/O6, things do change a bit…and making General definitely requires political skill and being a “company man” to some extent. That doesn’t mean all JAG Generals are without courage of course. Not saying that at all, but clearly some seem to be struggling with their role.

  3. DCGoneGalt says:

    Colonel and above are the ranks that matter for these issues.  And anyone with an IQ over 80 knows what you have to say and do about anything related to sexual assault to get to Colonel.  It requires a mastery of politics and the ability to turn talking points into advice.  What it doesn’t require is candor and courage.  
     
    The JAG leadership response to the sexual assault “crisis” has shown me here is something rotten in the system that selects higher levels of leadership.  If they can’t be honest and stand up th political pressure on this issue then how on the hell can they be trusted to give honest advice on serious operational issues?  I have had discussions where people have argued that operational issues aren’t subject to the same political concerns but I think it’s an integrity issue.  And there’s no such thing as a small lapse of integrity.  You either have it or you don’t.  
     
    And this issue has shown JAG doesn’t have it.

  4. Isaac Kennen says:

    DCGoneGalt said:

    I have had discussions where people have argued that operational issues aren’t subject to the same political concerns but I think it’s an integrity issue.

    The questions that arise in military operations may not always be big-P “Political” questions (though sometimes they are) in the sense that nobody on Capitol Hill or in the White House is (usually) paying attention.

    But, there are little-p “politics” in every decision made in a joint environment. When the decision involves the use of lethal force, everything – including the political implications of the decision – becomes amplified. To a judge advocate being asked to advise on whether their boss should allocate resources or effort in a way that may not comport with the desires of other stakeholders in the fight, the difference between big-P and little-p political pressure lacks much distinction. If the advice concerns whether your boss ought to help other stakeholders destroy their priority targets, then the pressure to give advice which falls in line with the wishes of the battle-space owner can reach a fevered pitch.

    Undoubtedly, the most challenging – and controversial – legal advice I’ve ever had to give occurred in an operational law context – and specifically the targeting context. I’m grateful that during those times I was always blessed to have outstanding leadership – from both my judge advocate and command chain. They gave me the freedom to be intellectually honest, which made it easy to give them courageous legal advice – even if they ultimately saw things differently. I don’t think there is a greater gift a military superior could give a subordinate than that. And, I think there’s a great deal of courage involved in allowing subordinates that sort of independence. I’d like to see senior leaders extend that same consideration in the military justice context. With little oversight, we trust a field grade judge advocate to advise commanders concerning the use of violence against the enemy (our profession’s raison d’etre). We let that judge advocate advise largely without oversight even when the violence in question will be carried out in the midst of civilian populations.

    Yet, if that same judge advocate is advising that same convening authority on criminal law matters, the advice is audited incessantly for content, timeliness, and to make sure all relevant stakeholders were given “appropriate” consideration. The result is a military justice apparatus that is needled, scolded, badgered and bothered – and shepherded by judge advocates who seek conformity first.
     
    God forbid the same process were applied to our wartime functions. We might never kill another enemy.

  5. Anonymous says:

    Want to fix UCI in the JAG Corps? Hold them accountable. They’re subject to the Code just as much as the A1C that’s stole from the BX. The shenanigans that was displayed in the recent Vargas case should be enough fodder to send a message to the bad apples out there that they’ll be held accountable. All I see from comments from this forum is “nothing will happen” or “they’ll get promoted and move” or “UCI is a military specific problem, most state bars wouldn’t care.” Punish those found to have committed UCI and leave that up to their state bar to determine if any discipline comes from it, not assume it won’t.
    An accused is entitled to a fair trial. If it’s questionable if the accused received a fair trial due to UCI from the JAG’s and/or their chain of command, that’s a huge injustice and those who influenced it to have a certain verdict should be punished.
    If you don’t hold people accountable for their actions, they’ll always do what they want.

  6. Vulture says:

    Kyle.  Several months ago you posted that you’d read some of my comments and couldn’t figure out what makes me tick.  Don’t know.  But I can tell you what sets me off, and that is UCI. 
    Ten years ago, June, the Army Lawyer posted a story by Lieutenant Colonel Mark L. Johnson, Unlawful Command Influence—Still with Us; Perspectives of the Chair in the Continuing Struggle Against the “Mortal Enemy” of Military Justice, here.  In it, the story relates that practitioners are all safety’s, appealing to the necessity for caution on the firing range.  But they just stayed in their foxholes, and when they saw UCI they just went, “phew, phew” while Commanders where emptying their magazines into one UCI victim after another.
     
    Ten years later, and the same story is coming from the same place, saying the same thing.  This is why I sometimes find it acceptable to say “Damn Concerned Defender, where you at?”

  7. Charles Martel says:

    This goes hand-in-hand with the gossiping and third-filing that has been pandemic in the JAGC for years.  Moreover,this issue is not only for G.O.s; as I have seen Battalion and Brigade Commanders harangued by Field Grade SJAs acting on behalf of the Division Commander.  Moral courage means not sticking one’s finger in the air to discern whether or not the politics of the day will agree with a decision. One need only look at the military’s taking every allegation of sexual assault to a GCM as evidence of this lack of moral courage.

  8. Ed says:

    Isn’t there an argument that UCi in the Vargas Case was obstruction of justice.

  9. J.M. says:

    The CAAF has recently drawn some very bright lines when it comes to apparent UCI. Gone are the days when you could breathe a sigh of relief knowing that there had been only apparent and not actual UCI found in your case.

    I find it disgusting that anyone would breath a sigh of relief over it ‘only’ being apparent UCI. 

    The amendments to Article 60 will help prevent the UCI issues litigated in Barry. Had they been in effect, RADM Lorge’s hands would have been truly tied and he couldn’t have set aside the findings and sentence even though he wanted to. In cases where the convening authority has doubts about whether to refer the case despite his SJA’s advice, the safest option is to let the convening authority independently work out if they truly want the Service Secretary reviewing their homework.

    This guy says almost the same thing that Crawford says to Lorges and it’s published as a warning AGAINST UCI? Why does the this read like a combination of CYA instructions and cheer-leading the tying a convening authority’s hands in sex assaults? This article should be a overdue blistering reminder of professional and ethical responsibilities that a large percentage of the Military’s lawyers need. Since Lt Col Leavey has some free time, with his reduced case load, he could write an article on UCI and ethics. 

  10. Concerned Defender says:

    Vulture- 
    Ten years later, and the same story is coming from the same place, saying the same thing.  This is why I sometimes find it acceptable to say “Damn Concerned Defender, where you at?”

    I got your back Vulture.
    I wrote a long comment, then deleted it.  Seen it many times- JAGs need to face serious legal penalties for all ethical violations, including UCI…. sadly they rarely do.  They often toss the figurative hand grenade into a proceeding, and are long gone when it all shakes out after multiple appeals.  They “won” their case, got their OER bullets and promotions, and are long gone.  I’ve been a *furious* defense counsel on these situations many times, eating the soup sandwich.

  11. Vulture says:

    Glad to see it CD.

  12. k fischer says:

    Vulture, 
     
    I, too, get set off by UCI.  And, I enjoyed this timely article, which I am assuming that it was a rush job to get out based on a couple of typos, which I do not begrudge TJAGCLS in the least because this article needed to get out right away. 
     
    I have filed at least 4 motions alleging UCI at Courts-martial.  My first was back in 2005 as a TDS counsel at Ft. Benning, which resulted in a call from MAJ Matthew McDonald calling me to inquire whether my client, who was facing a GCM and 15 years in prison, would turn down a FG Article 15 (without the bs charge the SJA included to justify a GCM) if it were offered to him.  (He also wanted to discuss my professionalism in filing said motion……)  The last three were filed at GCM’s for Article 120 offenses in 2012, 2015, and 2017.  They were all denied, although I was able to call the SJA to testify in 2012 and got the CG to submit to written interrogatories in 2015.  In all three GCM’s, the Article 32 recommended that the charges not be referred to a GCM, and the GCM’s in 2015 and 2017 resulted in full acquittals.  So, I have a little bit of experience with positive results on this topic.  And, by positive results, I mean I made the SJA’s office tap dance.
     
    In addition to the motions I have filed, I also called out POTUS 44 for his statements which showed his inflexible disposition towards sexual offenses when he called for the dishonorable discharge of anyone caught engaging in sexual assault, which I included in my last two motions.  And, to show that this is not a partisan issue, I believe and have commented that POTUS 45 committed UCI when he criticized SGT Bergdahl’s sentence in a tweet, and COL Nance, indirectly.
     
     Above Stewie and DCCG discussed at what rank UCI is most likely to affect a military attorney.  Quite frankly, I have found most SJA offices to be a fishbowl where very few secrets are held, so I highly doubt that the other attorneys were not aware that Lorge was having misgivings in approving the findings and sentencing in Barry.  I think an independent investigation should be held in this case where O2’s all the way up to the O6 level are asked questions to figure out what was said to them and what they overheard said to others regarding Barry’s Court-martial and clemency submission.  I think all a review of all the Courts-martial dealing with 120 offenses should be reviewed to see if the policy in that particular office, in the very least, affected the referral decisions.
     
    LTC Kiel seems to imply that Congress amended Article 60 to prevent UCI.  I would disagree that their intent when amending Article 60 was to prevent UCI, but rather, was to ensure that the CA could not undo what a Court-martial did and further victimize a victim by rendering moot the trial that brought her justice.  McCaskill and POD said as much when it lambasted Franklin by stating that he was not a legally trained and had no business overturning a conviction where a panel of Officers found Wilkerson guilty BARD, or words to that effect.
     
    Within the closing of this Article, LTC Kiel also seems to imply that these issues will not be brought up again because Article 60 was amended.  But, certainly the advice given in Barry could be given at the referral stage of a Court-martial, could it not?  Take for instance, cases where the IO found probable cause, but recommended dismissal of the charges because the complaining witness lacked credibility, or the PHO believes that a panel could not find the Accused guilty BARD.  That’s what the IO said in my GCM’s where I filed a UCI motion at Ft. Benning Article 120 GCM’s in 2015 and 2017.  I think that is similar to what the PHO said in US v. Burris.  Anybody else have a case where that happened at the 32 PH?
     
    The advice that Lorge received can just as easily be given in those cases, and I think SJA’s, CoJ’s, and TC’s should also be forewarned that sending a case to a GCM, so “the victim can have her day in Court,” the accused can be acquitted, and the CA can CYA is equally as bad, particularly now where nothing can be done at action, even if the CA had the courage to do something about it.  How many CA’s have been advised to just send it to a GCM, where a CA confronted an SJA with the lack of evidence and the PHO’s report, because otherwise, it would be detrimental to their career?  How many SJA’s have been given a lower rating on their OER because they had the courage to advise the CA to dismiss charges and not refer them to a GCM?  How many MJ’s have been passed over for promotion or have been removed from the bench because they had the courage to make rulings on evidence that rendered a conviction at a GCM unattainable?
     
    Perhaps Congress should pass a law that makes a CA’s decisions and mental processes regarding past UCMJ cases privileged when they are being confirmed for promotion.  Otherwise, the appearance is that UCMJ is rotten to it’s core.

  13. Abe Froman says:

    Interesting article.  One fact that I guess I had overlooked from the BARRY filings:  is it true that the SJA for Lorge reached out directly to DJAG on more than one occasion?  If true:  Is that common in the Navy for an 0-5 to be able to call an 0-8 like that?  Were there any other local stops along the chain of command?

  14. J.M. says:

    On Denim Day, 2014, I stood in formation and listened to the RSS, 11th ACR, Squadron commander say “If you’re accused of sexual assault, we WILL court martial you. I don’t play around.”
    I immediately walked across the street to TDS and offered a sworn statement of that event, while the details were still fresh. I was not taken up on that offer. 

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