Unlawful Command InfluenceApril 6, 2020
Unlawful Command Influence is when a Commander utilizes their authority to interfere with a Servicemember’s Court-Martial in an unfair manner. The appellate courts describe it as the mortal enemy of the military justice system. Unlawful Command Influence can be carried out by a Commander at any level. There are several different types. This article addresses some of the more common examples.
Unlawful Command Influence occurs when a higher-level Commander influences the judgment of a lower Commander to either prefer charges or to make a certain recommend on charges against a Servicemember. For example, if a Servicemember’s Brigade Commander orders his/her Company Commander to prefer charges, Unlawful Command Influence has occurred. In this example, even if the Brigade Commander doesn’t directly order a Company Commander to prefer charges, he still commits it if he uses words that imply that he wants the Company Commander to prefer charges. Every level of Commander is supposed to exercise independent judgment with regards to military justice charging decisions and recommendations. If higher-level Commanders, and/or their staff, interfere with this independent judgment, Unlawful Command Influence has occurred.
Another way that it can occur is when Commanders, and/or their subordinate leaders, use their authority to influence witnesses. Unfortunately, this type of Unlawful Command Influence is common. Leaders often tell Servicemembers who are considering testifying on behalf of an accused Servicemember that they shouldn’t because it will ruin their career, affect their status in the unit, etc. Sometimes, Commanders take even more direct action to influence witness testimony (i.e. reprimand witnesses, negatively counsel them, publicly accost them, assigning them to undesirable duty, etc.). Servicemembers should feel free to offer their support to other Servicemembers accused of crimes. If Commanders and/or their leaders use their authority to make Servicemembers feel otherwise, Unlawful Command Influence has occurred.
Another example of Unlawful Command Influence is when Commanders utilize their authority to influence jury members. This is less common; however, it does still occur. This can occur during the selection of the jury by the Commanding General or during the Court-Martial itself. An example of this would be a Brigade Commander talking to jury member about a trial they are currently a juror for, and telling that jury member that they should vote guilty to “support the Command.”
Unlawful Command Influence is more common than most people think. However, just because it has occurred doesn’t mean that a case against a Servicemember is dismissed. Military Judges are supposed to explore any other possible remedy besides dismissal. For example, a Military Judge at Fort Campbell recently found that the Commanding General committed Unlawful Command Influence by attempting to influence the testimony of two witnesses. The Military Judge fashioned a remedy where the prosecution was not allowed to cross examine the two witnesses at trial or attack their credibility in any manner. This was an extreme remedy, and just short of dismissing the case altogether (case explained in more detail at this link).
This article was written by Attorney Matthew Barry