Professor James Joyner and retired Marine Lt. Col. James W. Weirick have written a sharp critique of the military justice system (“Time to End Unlawful Command Influence Catch-22”) that deserves close examination. In it they highlight the challenges of what is called unlawful command influence. They believe that the prohibitions against such impropriety allowed sex offenders to escape justice in what they term a “spate” of cases, and because of that, a systemic change in the military justice system is needed. While concern about unlawful command influence is a worthy endeavor, the solution they propose — handing over all serious cases to civilian prosecutors — is simply the wrong one, and will end up hurting victims, those accused, and the armed forces themselves.
A little context: Military law’s prohibition against “unlawful command influence” is sourced in Article 37 of the Uniform Code of Military Justice (10 U.S.C. §837), which says in part that:
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.
Over time, judicial decisions have rightly called unlawful command influence the “mortal enemy of the military justice system” and have, arguably, broadened the prohibition’s reach, especially with respect to situations that merely raise the appearance of command influence, even when it is not shown to really exist.
Joyner and Weirick’s concern seems to be triggered by a recent mid-level military appeals court decision that concluded that “portions” of a prosecutor’s argument improperly cited “Army policy objectives, at least in part, as the basis for convicting appellant.” Importantly, however, the court decried the appearance of command influence but did not conclude that it actually occurred. In reality, it is an illustration of just how far the military justice system will go to root out even untoward appearances of unfairness. This self-correcting feature is in stark contrast to the civilian systems Joyner and Weirick favor, which have no equivalent of a protective Article 37.
But Joyner and Weirick seem to object to the prohibitions on command influence as inhibiting convictions for sexual assault in military courts. They allege that civilian “prosecutors often implore jurors to ‘send a message’ about the unacceptability of rape, drunk driving, or what-have-you.” Parenthetically, this is not necessarily intrinsically “unlawful command influence” in the military setting because general deterrence, that is, arguing that a purpose of punishment is to “dissuade others who might engage in similar criminal conduct,” has always been permissible during the sentencing phase of courts-martial.
What is not permissible is to try to use a “message” about the unacceptability of sexual assault or any other crime to attempt to gain a conviction. The reason is simple: however unacceptable a given crime may be, the only thing that is relevant during the guilt/innocence phase is whether the admitted evidence shows that a particular individual is guilty of the specific charged offense. That decision needs to be made independently, free of any improper influences from superiors or anyone else. Simply because a crime is viewed as “unacceptable” in anyone’s mind — as most crime is — doesn’t mean its vileness is itself evidence of a particular individual having committed it.
Keep in mind that the civilian system that Joyner and Weirick tout has its own prohibitions on outside influences that can cause prosecutions to be derailed. In the famous 1966 case of Sheppard v. Maxwell (on which the television program “The Fugitive” was based), the Supreme Court overturned a conviction because massive pretrial publicity outside the courtroom operated to deny the accused the due process guaranteed by the 14th Amendment. The Court cited an earlier case for the proposition that the “theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”
Importantly, the prohibition on outside influences in civilian courts is not all about “judge-made” law. Though civilian jurisprudence does not have an exact doppelganger for Article 37, it does criminalize “jury tampering.” Typically, that refers to any attempt to influence a jury through any means beyond properly admitted evidence and appropriate argument. Outside pressure on jurors to come to a particular result would be a classic example of this offense. In short, it is a mistake to think that civilian prosecutors can lawfully attempt to influence a juror’s decision by using the “unacceptability” of any offense as evidence of a particular accused’s guilt in a given case.
This is not however, the only objection raised by Joyner and Weirick. They also suggest that sexual assault courts-martial are tainted because senior civilian and military leaders have generally sent to the armed forces “a message that sexual assault will not be tolerated.” Joyner and Weirick align that with the fact that the “culture” of the military “instills obedience for lawful orders” to conclude, in their minds anyway, that the “merest expressed wish of those higher in the chain of command is treated as an order enjoying a presumption of lawfulness.” This suggests an assumption that courts-martial would robotically make judgments in sexual assault cases because of the statements by superiors, regardless of the facts.
One would think that convictions would, therefore, be the reflexive and inevitable outcome in sexual assault cases. The evidence, however, shows very much otherwise. As the Military Times reported last May, of “588 sexual assault cases that went to trial [in military courts], 154 alleged perpetrators were acquitted of all charges.” Frankly, if there is a concern about machinelike verdicts, it should be with the U.S. federal system that Joyner and Weirick prefer, where 97 percent of all types of cases end in guilty pleas (much, it is convincingly contended, because of unfairness and overreaching by civilian prosecutors).
The problem that Joyner and Weirick suppose is uncommon because courts-martial participants take an oath to follow the law, and that law comes from the military judge who routinely exorcises improper influences from the proceeding. In other words, the culture that instills obedience operates to produce ready adherence to the judge’s instructions, which can in turn ensure compliance with Article 37’s mandates. In fact, the remedial actions that judges, prosecutors, and even commanders and others take are a key reason why allegations of unlawful command influence so seldom succeed.
Still, do judges and prosecutors sometimes make mistakes as alleged in the case Joyner and Weirick cite (whose ruling, incidentally, has yet to be sustained by the military’s highest appellate court)? Sure; it is undeniable that mistakes do happen, but where is the empirical evidence that the problem is of such dimensions and frequency that the radical solution Joyner and Weirick offer is really necessary and worth the downside consequences (as discussed below)? Even they characterize the issue as arising only in a “spate” of cases.
Consider as well that in the aftermath of a controversial series of speeches given by the then Marine Corps commandant “aimed,” according to the Marine Corps Times, “at eradicating sex assault in the ranks,” there were numerous allegations of unlawful command influence. However, the Times also reports that only “only a handful [were] reversed or altered on appeal.” (And the commandant himself was cleared in an inspector general investigation.) In fact, unlawful command influence is the kind of allegation that is easy to make — perhaps rightly — but often fails to survive serious, independent scrutiny by the courts. A “handful” or “spate” of cases that proved problematic because of command influence issues is hardly enough of a basis for the radical change they propose.
To the extent Joyner and Weirick are concerned about the efficacy of the military’s campaign against sexual assault, the facts just don’t support the notion that the military is any less successful than the civilian process they recommend. They reference the twice-defeated proposal of Senator Kirsten Gillibrand to remove commanders from the military justice system, something that — she supposed — would enhance sexual assault prosecutions. Her plan was profoundly flawed because, among other things, evidence shows that the military is more aggressive in prosecuting sexual assault than their civilian counterparts.
The most current statistics available show that the military’s approach is getting positive results. Data reported in 2015 confirms that in the military system the “percentage of military personnel who said they were victims of sexual assault dropped dramatically over the past two years, plunging by about 27%.” Yet in a setting (colleges and universities) governed by the civilian prosecutors and their criminal justice system that Joyner and Weirick recommend, “sexual violence complaints were up 1,000 percent in five years.”
Moreover, according to the all-civilian Court of Appeals for the Armed Forces, purging the military justice system from unlawful command influence is premised on the need for “fostering public confidence in the actual and apparent fairness of our system of justice.” To be sure, the sexual assault issue has been highly politicized on Capitol Hill by some women’s groups (despite the fact that the majority of estimated military sexual assault victims, are men, not women). But it is also instructive that Senator Claire McCaskill has, for example, described those supporting Senator Gillibrand’s proposal as being “Washington-based advocacy groups with limited membership, participating in personal attacks, [and who] do not represent the views of all survivors.” Be that as it may there is almost no empirical evidence suggesting that the public in general lacks confidence in the fairness of the military justice system writ large.
More plausible is that the public likely misperceives military tribunals as more draconian than is actually the case. This may be why a recent poll shows it overwhelmingly preferred military commissions over civilian courts in a recent terrorist case (which are different from but related to courts-martial). Consider also that not long ago as august a figure as Supreme Court Chief Justice John Roberts cited with approval language from an earlier case that described military justice system as “a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the rank.” However, what is closer to reality is that the system has evolved away from anything that could be dismissed as mere “rough justice.” The public ought to be comfortable with the fairness of the now sophisticated system where courts-martial rights and procedures virtually always meet or exceed those of civilian courts.
Furthermore, as shown in a June 2015 Gallup poll, the public has vastly more confidence in the military as an institution than it does in the civilian criminal law system or, for that matter, the Supreme Court itself. Equally interesting is a 2013 Harris Poll where military officers were rated far higher than civilian judges in honesty and ethics — despite being proceeded by an avalanche of negative publicity about senior officers. Most importantly, however, a just released poll shows that “Americans’ trust in the judicial branch of the federal government has fallen significantly in the past year, and [is] now [at] a record-low. …” Yes, the trust the public has in the very branch that Joyner and Weirick want to take over the military’s criminal justice system is at a record low.
Joyner and Weirick also claim the federal justice system is “well equipped” to handle crimes arising in war zones, and point to the Blackwater prosecution as an example. That is the case where four civilian security contractors were sentenced in federal court earlier this year for killing 17 Iraqis in a 2007 incident (the defendants insist they were acting in self-defense).
However, the 10-week Blackwater trial is hardly a model of prosecutorial efficiency. Not only did the full case take eight years to resolve, it may not survive appeal. As Amy Davidson wrote in The New Yorker last April:
The verdict and the sentence will be appealed, a process that may be complicated; the charges were dismissed once, due to the U.S. government’s messy handling of the case in the early days, when there was something approaching insouciance, on all sides, toward the possibility that anyone would be held accountable in a court of law.
Davidson, though supportive of such trials, also admits that the “verdict was possible only because many Iraqis agreed to come to the United States to testify about what they saw that day.” Can reliance on a civilian justice system that does not conduct trials overseas (as the military does) really be built upon the expectation that essential foreign witnesses will always voluntarily come to the United States to testify? (Remember, foreigners cannot be compelled to travel.)
Perhaps most importantly, the case was not free of political influence. Davidson and The New York Times detail the political machinations, but it is clear that there was “political pressure, from within the D.O.J. itself” involved in the case (another matter which may manifest itself in appeals). Let’s be clear about the influence of politics on civilian prosecutors. U.S. attorney positions are patronage jobs that go principally to applicants with the same party affiliations as the president, and this can be quite problematic. State prosecutors are also mainly creatures of the partisan political process, something increasingly seen as troubling. The military, on the other hand, is relentlessly apolitical, and has Article 37 as something of a shield against illicit influences.
In truth, the complications of the Blackwater case may be why civilian prosecutors have not shown much appetite for prosecuting war zone cases, despite the fact that hundreds of thousands of contractors served in Iraq and Afghanistan and were, theoretically, subject to the Military Extraterritorial Jurisdiction Act. According to the results of a Freedom of Information Act request I filed in 2014 (and finally answered in June), the Department of Justice had only 20 such cases since 2000. Think about it: 15 years, hundreds of thousands of contractors, and just 20 cases. It strains credulity to suggest that there was not a higher rate of criminal activity than that.
Moreover, many civilian cases are wracked not only by politics, but also prosecutorial misconduct. This past August, in an unprecedented move, 20 former Justice Department officials joined in a brief to the Supreme Court alleging wrongdoing by federal prosecutors. This comes on the heels of an article (ominously entitled “Why Innocent People Plead Guilty”) by the Hon. Jed Rakoff, a federal judge. He argues that in the federal system prosecutors have legal authorities that have become “weapons to bludgeon defendants into effectively coerced plea bargains.” Really, is this system so much better than the military’s, even taking into account what Joyner and Weirick call a “spate” of cases involving unlawful command influence?
As examples of countries whose armed forces adopted their proposals, Joyner and Weirick cite Canada, Australia, and Britain. Even assuming that is accurate, the fact remains that none of those relatively small militaries have the global responsibilities of the U.S. armed forces. More to the point, their systems have become so burdensome and complex that none has managed to conduct a complete court-martial in a combat zone since 9/11 (Canada conducted part of one court-martial for murder in Afghanistan). Since trials — if they occur at all — must take place in their home countries, misconduct becomes a ticket out of a combat zone. This is the worst kind of incentive for a fighting force.
Furthermore, with respect to sexual assault cases, the Response Systems for Adult Sexual Assault Crimes Panel established by Congress concluded that the “evidence does not indicate that the removal of the commander from the decision making process in non-U.S. military justice systems has affected the reporting of sexual assaults,” adding that “[i]n fact, despite fundamental changes to their military justice systems … our Allies still face many of the same issues in preventing and responding to sexual assaults as the United States military.” Consequently, the experience of foreign militaries simply doesn’t support the solution Joyner and Weirick offer.
Most fundamentally, Joyner and Weirick’s proposal does not seem to appreciate fully the rationale for the military’s separate system, and why the Supreme Court has repeatedly recognized that the military is “governed by a separate discipline from that of the civilian.” Unlike what civilian society does, the Supreme Court acknowledges that “it is the primary business of [the armed forces] to fight or be ready to fight wars should the occasion arise.” This very different function is why the Manual for Courts-Martial distinguishes military from civilian law because the former explicitly intends “to promote efficiency and effectiveness” in the armed forces in order “to strengthen the national security of the United States.” Civilian criminal jurisprudence has no such responsibility.
Dumping all cases involving “felonies” (a term military law doesn’t use) into civilian courts would no doubt be puzzling not just to civilian prosecutors, but judges and juries as well. With no orientation as to what the Supreme Court calls the “very significant differences between military law and civilian law and between the military community and the civilian community,” what would they make of the many serious but uniquely military offenses (e.g., disrespect, desertion, dereliction of duty, cowardice, and more) found in the UCMJ?
Consider that the Supreme Court has observed (albeit in a different context) that the “complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments” adding a key reflection: “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Yet these are the very areas in which military discipline is so important.
Separate out “military” offenses from “civilian” offenses? Been there, done that. The Supreme Court finally gave up in 1987, finding that the military justice system had jurisdiction over all offenses committed by those in uniform. This could be an implicit recognition that in the extraordinarily complex task of preparing people to kill other human beings in the name of the state, the disposition of “civilian” misconduct cannot be separated from overall troop development and combat readiness. Savvy military leaders keenly understand the holistic nature of their leadership responsibilities, along with the imprudence of outsourcing discipline to civilians not equipped to deal with it appropriately and who do not bear the responsibility for battlefield success that is so intrinsically linked to a well-disciplined force.
Even regarding crimes with direct civilian analogues, it is quite likely that civilians called upon to judge them would still feel inadequate where the allegations arise in a military context. Indeed, that’s exactly what appears to have happened with a federal jury in a 2008 case. In acquitting a former Marine of killing four Iraqi prisoners, The Los Angeles Times reported that the jurors “did not feel qualified to judge a Marine’s actions in the midst of a battle.” Plainly, it doesn’t appear that they considered themselves a suitable jury of peers of those who served. Given that less than 8 percent of Americans have any military experience, Joyner and Weirick’s proposal invites repetition of that same conundrum.
None of this is to suggest that unlawful command influence is not a continuing challenge in the armed forces, or that Joyner and Weirick were wrong to focus attention upon it. But suggesting that the solution is to have civilians handle all serious military misconduct is a dangerous contradiction to the hard experience of more than 5,000 years of military history.
Charles Dunlap is currently a Professor of the Practice and Executive Director of the Center on Law, Ethics and National Security at Duke Law School. He retired from the Air Force in 2010 as a major general, and over his 34-year career he served as a military judge, prosecutor, and defense counsel, as well as the Chief of the Military Justice Division at the Air Force Judge Advocate General School.