Scholarship Saturday: The law against unlawful command influence – too restrictive on the government?
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?