The latest volume of the Military Law Review (Volume 227, Issue 1) includes an article authored by the Army JAG School’s Criminal Law Chair, Colonel John Kiel, Jr., entitled, “’So You’re Telling Me There’s A Chance’: Why Congress Should Seize the Opportunity to Reform Article 37 (UCI) of the UCMJ.

Colonel Kiel insists that Congress needs to revise the language of Article 37(a). That statute, presently reads, in relevant 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.

The first change that Colonel Kiel recommends is to add the words “attempt to” as follows (addition underlined):

No person subject to this chapter may attempt to coerce or, by any unauthorized means, attempt to influence . . .

This is a direct response to the majority’s holding in United States v. Barry (CAAFlog case page), 78 M.J. 70 (CAAF 2018). As discussed in detail on this blog, in Barry, the majority held that, as Article 37(a) is presently written, “an ‘attempt to coerce’ necessarily requires intent, [but] influencing an action via unauthorized means violates the statute, regardless of intent.” 78 M.J. at 78. Accordingly, adding the words “attempt to,” as recommended by Colonel Kiel, would limit the application of Article 37(a) in “influence cases” to only those circumstances where the person acting in an unauthorized manner both influenced a judicial or adjudicative action, and intended to have that effect. Any other intent might still run afoul of some other statute, but it would not constitute unlawful command influence.

The second change that Colonel Kiel recommends is to add the words “acting with the mantle of command authority” as follows (addition underlined):

No person subject to this chapter and acting with the mantle of command authority, may attempt to coerce or, by any unauthorized means, attempt to influence . . .

This suggestion, too, is a direct response to the majority’s holding in Barry that “the plain language of Article 37(a), UCMJ, does not require one to operate with the imprimatur of command, and we decline to read a supposedly implied condition into congressional silence.” 78 M.J. at 76. Colonel Kiel offers no policy rationale for adding such language to the statute other than a desire to see Congress act “before UCI jurisprudence gets any more confusing that it already is.” He does not address what confusion supposedly is derived from CAAF’s rather unambiguous conclusion that no imprimatur of command is necessary to establish a violation of Article 37.

The third change Colonel Kiel recommends is that Congress should add a new paragraph (c) to Article 37. That new paragraph would substantially just regurgitate the language already codified in Article 59(a), tailoring it for the purposes of Article 37, to state: “the finding or sentence of a court-martial may not be held incorrect on the ground of an error of law, including error involving actual unlawful command influence or the appearance of unlawful command influence, unless the error materially prejudices the substantial rights of the accused.” This recommendation is in response to CAAF’s decision in United States v. Boyce (CAAFlog case page), 76 MJ 242 (CAAF 2017). Boyce held that prejudice is not required to establish a meritorious claim of an appearance of unlawful command influence because “the prejudice involved in [such cases] is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.” 76 MJ at 249.

It is unclear why Colonel Kiel believes creating redundancy in the Code, by replicating substantially identical language in both Article 59(a) and Article 37, will resolve this supposed problem. It is usually a bad idea to intentionally bake redundancy into statutes when one unambiguous provision will do. Further, it is apparent that what Colonel Kiel actually desires is not the enactment of yet another statutory provision, but instead for the statute that exists to be enforced. But, in that desire, Colonel Kiel’s piece fails to grapple with the rationale CAAF gave in Boyce for why Article 59(a) did not bind the Court. Specifically, the Court explained:

[I]n the military justice system both the right to a trial that is fair, and the right to a trial that is objectively seen to be fair, have constitutional dimensions sounding in due process.

76 MJ at 249, fn 8.

A statutory provision – even two of them – cannot overcome a constitutional imperative. The Fifth Amendment enjoys supremacy here.

Although it does not explore it, Colonel Kiel’s article begs a question that is fundamental to how Congress executes its responsibility under Article I of the Constitution to provide for the government and regulation of the armed forces: Congress has permitted our military justice system to operate independent (mostly) of the Judicial Branch of our government. Congress has also relieved the Executive Branch of the obligation to afford military accused a jury trial, and has even relieved the prosecution of the burden of having to obtain unanimous verdicts from the government’s hand-picked panels. Why then, having placed so much un-tethered power in the hands of the Executive Branch, should Congress not hold that Branch strictly liable to adequately insulate its judicial and adjudicative officers from unauthorized influence? Spider-Man would say “. . . with great power there must also come – great responsibility!” Why not also great consequences?

13 Responses to “Scholarship Saturday: The law against unlawful command influence – too restrictive on the government?”

  1. Zachary D Spilman says:

    I can’t help but wonder – in the midst of a growing list of cases finding general intent adequate to protect an accused – why mere general intent to, by unauthorized means, influence the action of a court-martial is not enough to protect our big Government from itself.

    I also can’t help but wonder how a specific intent to attempt to influence looks any different from what a majority of CAAF found occurred in Barry. Judge Stucky’s majority opinion thrice highlighted that the convening authority (RADM Lorge) believed that he received legal advice from the Deputy JAG (RADM Crawford), writing:

    RADM Lorge left their meeting believing he received legal advice from RADM Crawford and that approving the findings and sentence was the appropriate course of action in Appellant’s case.

    78 M.J. at 75. And:

    As a result, RADM Lorge believed he received legal advice during the course of the phone call.

    78 M.J. at 75. And:

    [W]hile the DuBay military judge made no finding as to whether RADM Lorge believed he received legal advice from VADM DeRenzi, he determined that RADM Lorge believed he received legal advice from RADM Crawford during their discussions, and RADM Lorge relied on this advice when taking action in this case.

    78 M.J. at 75-76. The impropriety of that advice was explained in a footnote:

    We reject any suggestion that the provision of such advice was authorized, for the DJAG was not entitled to provide RADM Lorge with legal guidance concerning the merits of a particular military justice case. While SJAs are statutorily required to do so pursuant to Articles 6(b) and 60(d), UCMJ, 10 U.S.C. §§ 806(b), 860(d) (2012), no such authority extends to senior JAGC leadership.

    78 M.J. at 77 n.6.

    If – at the time Barry was decided – Article 37 required an intent to influence by unauthorized means, RADM Crawford’s unauthorized provision of legal advice that exceeded his statutory authority seems to satisfy that requirement.

    Of course, Chief Judge Stucky did write:

    Such an “improper manipulation of the criminal justice process,” Boyce, 76 M.J. at 247, even if effectuated unintentionally, will not be countenanced by this Court. While we do not question RADM Crawford’s motives or believe he acted intentionally, the plain language of Article 37(a), UMCJ, does not require intentional action.

    78 M.J. at 78 (emphasis added). But it’s a little hard to understand what that passage means. Did the majority believe that RADM Crawford unintentionally mentioned the case, or that he had a mistake of fact belief that the discussion was about a hypothetical case (not a real one), or that he was suffering from a bout of automatism? Or was the majority just avoiding an indelicate discussion of Crawford’s motives (and perhaps motivations) at a time of peak crisis? If Article 37 required CAAF to go further and to look for some intent by Crawford, the majority likely would have found that intent in Crawford’s provision of legal advice in excess of his authority.

  2. anonymous says:

    Regarding the ‘legal advice’ aspect… Is there anything the government can do to salvage it’s existing prophylactic measures during JAG meetings with GCMCA?  They already reduced to writing that GCMCA’s cannot receive legal advice from anyone but their assigned independent SJA on military justice matters (in the OJAG/CNIC MOA) and they provide all Flag officers training on this topic.  Presumably, most GCMCA SJA’s ensure JAG/Flag meeting talking points avoid specific cases and/or advise GCMCA before, during and after JAG visits that JAG chain of command cannot provide legal advice on military justice cases (although it is not clear this happened in Barry, particularly when Deputy SJA was acting).

  3. Isaac Kennen says:

    anonymous asked:
     

    Is there anything the government can do to salvage it’s existing prophylactic measures during JAG meetings with GCMCA? 
     

    I think there is one additional thing that could be done. And, Barry serves as a good case to illustrate the point.
     
    The post-trial hearing officer in Barry found (discussed here) that RADM Lorge was warned by VADM Crawford (the Navy DJAG) that he would have “a target on his back” in political circles if he granted relief to Barry. That, according to RADM Lorge’s affidavit, is why he didn’t grant Barry relief. Further, VADM DeRenzi (the Navy TJAG) had previously, and generally, warned RADM Lorge that convening authorities like himself were “facing difficult times” in Congress over the handling of sexual assault, and that “a good deal of her time was being taken up with testimony and visits to both Capitol Hill and the White House” over the issue.
     
    Clearly, RADM Lorge was encouraged by those judge advocates to fear that his action in Barry could affect his own career – which is just another way of saying that it could adversely affect his own financial interests.
    A good and ethical government lawyer, having just put the fear of Congress in RADM Lorge, would have at least followed that up with sound advice regarding every federal employee’s obligation under 5 CFR 2635.501(a) to recuse themselves from any “particular matter involving specific parties which he knows is likely to affect the financial interests of a member of his household . . . if he determines that a reasonable person with knowledge of the relevant facts would question his impartiality in the matter.”
     

  4. Vulture says:

    Hasn’t intent been a regular topic of consternation throughout?  Intent in sex crimes.  Intent in violent crimes.  I’m not sure if I could trust Congress to adequately spell out conditions of intent at this point.
     
    That being said, for Col. Keil, I’d say “Sure!”  If a full hearing on intent was made available.  If the full spectrum of questions available to intent where applied to the threshold to bring some evidence of UCI it would be damn near impossible to have a court-martial.  At virtually every instance that a court-martial takes place the command desires a particular outcome.  Let’s litigate a Command policy on UCMJ.  Let’s bring some of those retired General’s back on active duty to speak to their intent with the SJAG right beside them.
     
    The UCMJ would grind to halt. 

  5. Anonymous says:

    You want change? Start court martialing those JAG’s and Commanders who have been caught trying to circumvent the UCMJ: Vargas, Barry, original trial counsel in Gallagher, etc. Last time I checked they were subject to the UCMJ themselves. While one’s at it, state bar complaints can be filed. Before the circle the wagon crowd here shows up with the standard “state bars won’t care..”” mantra, let the individual state bars determine that. No one likes a back seat driver. As someone who was involved in military aviation for decades I can tell you that if I did something stupid in a jet, not into would the USAF come after my qualifications, but so would the FAA, depending on the infraction.
    The JAG Corps needs to be held be held to a standard. What are laws and rules if there’s no enforcement?

  6. Region Defense Counsel says:

    To Anonymous 1 – The Deputy SJA was not Acting SJA when Admiral Crawford met with Admiral Lorge or when Admiral Lorge called Admiral Crawford to discuss the case for a second time.  Submit a FOIA request for the Barry DuBay hearing transcript, get your facts straight, and THEN post your exposition of the facts. 

  7. anonymous says:

    To Region Defense Counsel:
    I believe government counsel have adequate tools available to keep the government on the right path and provide advice to avoid UCI when they are vigilant and acting in good faith.  For example, SJA can 1) advise CA that JAG cannot and did not provide legal advice on military justice per JAG MOU, 2) advise CA to recuse themselves, 3) advice CA to kick case up for senior/clean CA, or 4) work with senior SJA’s and use the chain of command to cure the UCI such as through a TJAG/CNO curative letter to CA that no particular outcome is desired and CA has full discretion.  I was interested if others had more thoughts on this.
     To address your carefully worded concern about the role of the acting SJA I have linked documents below.  In short, deputy SJA appears to have brought this issue to court instead of providing curative legal advice as government counsel.  Then, after successfully bolstering his 100% memory testimony before judge Spath to make this an issue at the Dubay hearing, he walked his testimony back before CAAF to something more generic. 
    DuBay: https://media.washtimes.com/media/misc/2017/10/25/US_v_Barry_-_FINDINGS_OF_FACT_Final.pdf
    At the Dubay hearing, LCDR Dowling presented the only evidence that the egregious comments regarding a ‘target’ on someone’s back ever occurred, even though he was not present for the conversation and the only two people who were present (Lorge and TJAG) denied those comments being made.   LCDR Dowling testified that he remembered the precise words. “[W]hat I do remember 100 percent was the ‘target on my back’ comment[.]” RADM Lorge’s decision to approve the findings after the meeting surprised LCDR Dowling, as did “the content of the discussion, which is why the comments were so memorable for him.” [quote from government brief].
    Judge Spath probably found LCDR Dowling’s version more credible because LCDR Dowling bolstered his own testimony by stating that he clearly remembered the exact words because they were so shocking to him.
    CAAF: https://www.armfor.uscourts.gov/newcaaf/opinions/2017OctTerm/170162.pdf
    Then, after the Dubay hearing, LCDR Dowling subsequently walked back his self-bolstering and claimed that he did not actually remember the exact words but they were probably something to that effect or feeling.
    Deputy SJA Amicus brief: http://www.caaflog.com/wp-content/uploads/USvBarry-No.-17-0162-NA-Amicus-Curiae-brief.pdf  
    In his Amicus brief, LCDR Dowling, he claimed responsibility for raising this UCI as a issue/case.  He did not mention providing any curative advice regarding UCI.  He now appears to change his testimony and no longer remembers the exact words to Lorge.  The comment “target on the back” could have been a “distillation of a more nuanced and carefully-phrased conversation” between RADM Lorge and then RADM Crawford (J.A. 405, 957).  Notably though, the “target on the back” comment is reminiscent of RADM Lorge’s “feeling” from his meeting with then RADM Crawford that “folks are going to be looking over your shoulder like – everywhere[.]” (J.A. 1038). And even VADM Crawford testified “[t]he most specific advice [he] gave [RADM Lorge] was ‘work with your lawyers, let them help you figure this out.’” (J.A. 1038).
    I wonder if this nuance, if presented earlier at the Dubay hearing, might have impacted judge Spath’s findings and assessment of the weight to give each witnesses testimony?  

  8. Region Defense Counsel says:

     
    To anonymous – “You can take a horse to water, but you can’t make him [or her] drink.”
    I do not imply that you are a horse, but you can find the water with these steps:  1.  Go to https://foiaonline.gov/foiaonline/action/public/home; 2. Create an account and log in; 3. Create a FOIA request for the Navy, 4.  Type: “I request the transcripts from the DuBay hearing in the case of U.S. v. Barry.” Nonetheless, I will once again provide clarity on some of your claims.
    1.  Regarding your claim about LCDR Dowling’s alleged self-bolstering, context is king.  LCDR Dowling never testified he was “shocked” as characterized by Judge Spath in his findings of fact.  Rather, LCDR Dowling testified at the DuBay hearing as follows:
    __________
    A. During the meeting, what I recall was as we were discussing it, Admiral Lorge had indicated- -as we were talking about it, he said, “Jim said not to put a target on my back. He said I’ve got smart lawyers, let them figure it out,” or–and at this point I don’t remember if it was “Jim said ‘don’t put a target'” or “Jim said not to put a target;” what I do remember 100 percent was “the target on my back” comment, and that Jim had indicated that Admiral Lorge should not put it there, and then followed up immediately, he said I’ve got smart lawyers, let them figure it out.
    Q. Who is Jim?
    A. I asked, “Who is Jim?” because I was concerned about who was advising the Admiral about the case, and then he said, “Jim Crawford,” and I said, “Oh, Admiral Crawford,” and Admiral Lorge– well, there’s more to it, but I’ll…
    Q. No, please, Admiral Lorge said what—-
    A. Well, Admiral Lorge had indicated–I think he could tell that I was perplexed as to why he was talking to Admiral Crawford about the case, and then he indicated that they had known each other, they had gone back, you know, several years. He did mention the command that they had worked together, but at this time I don’t remember specifically what command.
    __________
    2.  As to your assertion that both Admiral Crawford and Admiral both denied the “target on your back” comment, you are incorrect.  Admiral Lorge said he did not remember specifically what Admiral Crawford told him.  Admiral Lorge testified as follows:
    __________
    Q. Instead, he was discussing with you the fact that if the convening authority disapproved findings, it would receive great scrutiny.
    A. Right.
    Q. Was that most accurate?
    A. I believe so, yes.
    Q. Did you take that as a warning to you not to put a target on your back?
    A. [Long pause.] I don’t remember him saying those words, so I can’t say that he said those words to me.
    Q. And if he did say those words, would have taken that as a joke, I believe is what you told us—
    A. Yeah.
    Q. Is that true still?
    A. Yeah. Yeah.
    Q. You would not have taken him seriously as, “Hey, you actually have a target on your back.”
    A. Well, you know, yeah, he’s …
    __________
    3. Regarding your claim that LCDR Dowling walked back his testimony in his amicus brief, you are again incorrect.  The amicus brief was quoting the Joint Appendix, which included the record before Judge Spath.  The term “feeling” was quoting Admiral Lorge’s testimony.  On this point, LCDR Dowling testified before Judge Spath as follows:
    __________
    Q. In the draft letter that you wrote to Admiral Crawford but that you never sent, which is now also in evidence, you acknowledge that this comment about target on the back could be Admiral Lorge, quote, “distillation of a more nuanced and carefully-phrased conversation;” do you remember writing that?
    A. I do.
    ___________
    It is easy to say with 20/20 hindsight what someone should have done when presented with potential UCI or UI after the Barry decision was issued.  Recall, however, that two members of CAAF found that Admiral Crawford did not violate Article 37’s prohibition against unauthorized influence. 
    Senior Chief Barry did sit through the DuBay hearing and this was his take.
     
    “In my case, had Lorge not had a guilty conscience, had there not been a whistle-blower…,” Barry paused. “It took a junior officer to come forth with the information he had. When you have admirals conducting themselves without integrity, without courage and commitment to the oaths they’ve taken, as far as I’m concerned, there’s a lot of loss of faith in that system.”
    https://americanmilitarynews.com/2019/04/vindicated-navy-seal-keith-barry-speaks-for-first-time-on-corrupt-navy-leadership-who-falsely-imprisoned-him-for-rape/  
     

     
     

  9. anonymous says:

    Regional Defense Counsel – With only the best wishes for Barry, lets please don’t cite him as our new moral compass.  Although found not guilty beyond a reasonable doubt of murder, it did still sound like several people saw him knife a detainee under his care.  This and other Seal cases recently have made me want my tax dollars to contribute to a little more oversight of our special forces.
    Similarly, I don’t agree that we should laud a whistleblower who files grievances because he did not do his own job.  This is not 20/20 hindsight but rather basic SJA work to avoid and/or cure even the potential appearance of UCI.  You are right that many people were involved and had more responsibility, but there was only one who heard the truly eggregious language denied by the speaker.
    I listened to the CAAF audio and it sounded to me like some wanted to focus on the eggregious language that only LCDR Dowling heard when deciding whether to handle the case under 1107 (corrected CA action) vs. 37 (UCI dismissal with prejudice).  Personally, I wish that the JAG attorneys had just taken some action to protect the government and engender confidence in the system (e.g. early on changed action to what CA wanted) instead of requiring the court and public to listen to their conflicting testimony.
    I can’t help but suspect that a government attorney who chooses the path of whistleblowing, grievances and reports of ethical violations over using his chain of command and advising his CA properly has more to do with the filers temperament and unrelated grievances and less to do with helping to keep the government on the right path.  After all, there was some discussion in the filings about FITREP complaints.  But I don’t believe those type of documents will be released under FOIA unless you were involved and can shed clarity.
    My original point was to ask if existing safeguards are adequate or can be strengthened to remain adequate.  If not and we are truly at the point where we need whistleblower attorneys within the military justice system, then perhaps the system does need to change and cosmetic changes to Art 37 discussed in the article above are insufficient.  In the past I might have been convinced to support the moderate changes recommended by commentators like Eugene Fidell to give independent JAGs a greater role in charging decisions and convening panels, but if the JAG attorneys are the ones causing the problems (both by committing UCI and by infighting) then I don’t think I can still get on board that train and I fear it will drive others toward more drastic changes like civilianization.  

  10. Region Defense Counsel says:

    Anonymous – Again, file a FOIA request if you want you to have an opinion that is fully informed by the record.    If you do, you will see that LCDR Dowling did utilize his chain of command. 
     
    First, LCDR Dowling brought the matter to the SJA as soon as he returned.  LCDR Dowling reported what Admiral Lorge had said about his conversation with Admiral Crawford.  The SJA’s conclusion was the same as Judge Ryan’s dissent – there was no violation of Article 37 violation.  Thus, the SJA determined no curative action was needed. 
     
     
    Second, after discussing the issue with another senior CAPT, LCDR Dowling later raised to Appellate Government the issue as to whether it was an abuse of discretion for Admiral Crawford to advise on a case when he supervised both prosecution and defense offices.  Appellate Government initially characterized it as UCI before taking the opposite position in their appellate briefs.  Appellate Government duties include the following:  “In coordination with Navy and Marine Corps Trial Counsel Assistance Programs, advises and instructs trial counsel and other government attorneys on military justice matters having appellate implications.” See https://www.jag.navy.mil/library/instructions/JAG_NLSCINST_5400-1C.pdf (see enclosure 1, page 10).  In other words, LCDR Dowling did utilize the chain of command.  A whistleblower is someone who reports information about potential government misconduct to higher authority.  The only way LCDR Dowling would not be a whistleblower is if he kept his mouth shut, which appears what you would have preferred.
     
    LCDR Dowling discussed in his testimony as to how he was subject to reprisal AFTER he made the report to Appellate Government.  That is all releasable under FOIA.  
     
    Also, assuming you are not confusing the two cases, I would not equate Gallagher with Barry.  They are completely different cases.  

  11. anonymous says:

    Region Defense Counsel – You are correct, I was thinking of Ghallager not Barry. Sorry, completely different.
    Regarding how the deputy staffed the adverse information, I obviously don’t have all the info so it is pretty fruitless for me to discuss as I will probably never get to know the answers.  Suffice it to say that I am a fan of working within the system and the methods I mentioned in my first post.  Also, by chain of command I meant regular reporting senior (RLSO CO and COS) vice reserve mentor.  And when discussing potential TJAG actual UCI with TCAP it probably merits talking to Director/Head vice peer.
    Please have the final word if you like and thank you for the discussion.

  12. SJA by trade says:

    Chain of command for Navy Region GCMCA SJA’s is as follows: 
    – OPCON: RLSO to NLSC to JAG to CNO
    – ADCON: RLSO to NLSC to JAG to CNO
    – ADDU: Region to CNIC to CNO (each of whom have their own judge advocates to coordinate with)
     
    Trial Counsel Assistance Program (TCAP) and civilians (or reservists not on active duty and not assigned to a superior command in the active duty chain of command above) are NOT part of the military chain of command.  
    OPNAVINST 5400.45 STANDARD NAVY DISTRIBUTION LIST SHORE CHAIN OF COMMAND: 
    https://www.secnav.navy.mil/doni/SECNAV%20Manuals/Shore%20Activities%20and%20Detachments%20Under%20the%20Command%20of%20Secretary%20of%20Navy%20and%20Chief%20of%20Naval%20Operations.pdf