“[D]ue to the patent and intolerable efforts to manipulate the
member selection process, contra every requirement of the law, the
failures of the military judge, the [post-trial hearing] military judge,
and the [lower appellate court], to investigate, recognize or
ameliorate the clear court stacking in this case, and the actual
prejudice to the Appellant of being tried by a panel cherry-picked for
the Government, dismissal with prejudice is the only remedy that can
eradicate the unlawful command influence and ensure the public
perception of fairness in the military justice system.”
–U.S. Court of Appeals for the Armed Forces, reversing a forcible
rape conviction and dismissing with prejudice.

In the seventeen-month period from May 2017-September 2018, military appellate courts reversed five sexual assault convictions based on the legal doctrine of Unlawful Command Influence (UCI). This doctrine is designed to protect accused military members who are facing court-martial by ensuring that the decision-maker involved in a court-martial decides the case based on its merits rather than based on the desires of commanding officers. Two recent sexual assault cases have been significantly influenced by concerns of UCI, including the high-profile court-martial of Brigadier General Jeff Sinclair. Of particular note is the court-martial of United States v. Riesbeck, where the civilian Court of Appeals for the Armed Forces (CAAF) reversed a forcible rape conviction with prejudice for “court-stacking” (specifically, intentionally selecting female panel members (e.g., jurors) with the objective of increasing the chances of conviction in a sexual assault case) using the very strong language noted in the preamble to this article.

Additionally, a recent Department of Defense report on the prosecution of sexual assault cases raised concerns that the political fight over the military handling of sexual assault prosecutions is bleeding over and potentially affecting the fairness of the trial process itself. All of these cases are tied to the military’s efforts to retain jurisdiction over court-martial prosecutions after congressional threats to remove jurisdiction due to the military’s mishandling of sexual assault prosecutions. This article will examine whether the five cases profiled in this article are in effect the “dead canary in the mineshaft” indicating that serious problems exist with the fundamental integrity of the court-martial process.

The doctrine of UCI addresses the fundamental tension of the military justice system—the tension between enforcing discipline and ensuring due process. Members of the military are drilled in the requirement for obedience to a superior’s orders. Given this emphasis on obedience, one may question how a military legal proceeding can ever provide impartial due process—should not the military jury simply defer to what the commander wants? During World War II, commanders adopted this approach by taking advantage of their broad power over the court-martial process to direct the desired outcome at trial. This approach resulted in a strong cry for reform after World War II, resulting in Congress codifying the prohibition of commanders interference in the court-martial process as part of the Uniform Code of Military Justice (UCMJ) in 1950. Since then, military appellate courts have deemed UCI to be the “mortal enemy of military justice,” and for good reason. One cannot trust the integrity of the court-martial process if there are indicators that the decision-makers are being influenced by their commanding officers, explicitly or implicitly, to reach a particular outcome. Such finders of fact are not deciding the case based on the merits and evidence, and the integrity of the process is justly called into question.

In the past several years, the problem of UCI has again come into focus, this time in the political controversy surrounding the military’s handling of sexual assault prosecutions. Congress has taken a strong interest in the military’s handling of sexual assault prosecutions after criticism that the military was not taking these cases seriously. The political maneuvering that has taken place as a result of this heightened focus has resulted in UCI becoming an issue once again. Military leadership has reacted strongly to congressional criticism of its handling of sexual assault cases, motivated in significant part by their desire to retain commander jurisdiction over the court-martial process and not cede the process to either civilian or JAG control (which has been proposed). The military commanders view the court-martial power as an instrument of command, essential to ensuring discipline in the unit, so that the commander is able to achieve the mission—ultimately victory at war. This desire to retain jurisdiction then creates a situation in which military leaders respond to Congressional criticism and attempts to remove jurisdiction by demonstrating that they are taking strong action against sexual assault in order to obtain a desired political outcome (e.g., retention of court-martial jurisdiction). In addition,  congressional oversight has moved beyond legislative reforms. More recently, Congress has injected itself into ongoing or recently-completed sexual assault courts-martial and has taken unfavorable action against commanders for their decisions in specific courts-martial.

The conflict between Congress and military leadership over commander jurisdiction has created a climate where these political considerations create the potential to substantively influence legal decisions in specific courts-martial. First, military members feel pressure to fall in line with their leadership’s “get tough” attitude and thereby preserve commander jurisdiction. In response to threats to remove jurisdiction, military leaders fight to retain jurisdiction by cracking down on sexual assault. This message is transmitted to military members who sit on the military panels (akin to civilian juries). This political fight then creates very real pressures on members of a court-martial (who are well-aware of the political stakes and of their commander’s position) to convict an accused defendant regardless of the strength of the evidence and sentence harshly.

Second, military members may be concerned about ramifications to their personal careers from congressional action as a result of decisions they make in sexual assault cases. This concern arises because Congress has approval authority over military promotions and nominations to key leadership positions. While UCI is prohibited by the UCMJ, this prohibition by its terms only applies to military members and does not address potential interference by Congress.

Consider the following hypothetical case to demonstrate the problem: a Colonel, who has been selected for promotion to General but whose promotion is pending Senate confirmation, is the ranking officer presiding over a military panel (jury) for a high-profile sexual assault court-martial. This court-martial has garnered national media and congressional scrutiny. During the panel’s deliberations, she is inclined to vote for acquittal, as she is not personally convinced by the evidence beyond a reasonable doubt that the accused defendant committed the sexual assault. However, she is concerned about whether her promotion will be held up in the Senate if the panel acquits. In addition, she is concerned that a not-guilty verdict in this case might prompt Congress to remove UCMJ jurisdiction from commanders, something she knows her chain of command opposes. She considers whether she should change her vote to “guilty” and pressure lower-ranking members of the panel to also vote for guilt. Ultimately, she votes her conscience and the accused is acquitted. But in response to this verdict, a Senator puts a hold on her promotion, effectively killing her chances of promotion to General.

If this hypothetical Colonel had been removed from the promotion list by her military superiors based on the outcome of the court-martial, she would be a victim of UCI because this action is explicitly prohibited by Article 37(a) of the UCMJ.25 She would likely be able to pursue legal recourse. Despite this fact, there is nothing preventing Congress from engaging in similar behavior by rejecting her selection for promotion. Such an act by Congress would not be command influence because the “command influence” came from congressional sources and Article 37 only extends to persons subject to the UCMJ (in fact, Congress has significant constitutional prerogatives over the confirmation process). Despite this fact, “congressional command influence” along these lines has the same potential to undermine fairness and due process by bringing outside pressures into judicial decisions on the merits of particular cases. The consequences of “congressional command influence” are no different than Article 37 command influence—Congress has significant power to influence the career path of military officers, particularly through their confirmation to high-ranking positions and their approval of all military promotions for officers.

This article will examine the five sexual assault cases mentioned above and the greater context in which they were decided. The article will begin by examining the origins of the doctrine of unlawful command influence in the aftermath of World War II, which originated in direct response to commanders’ attempts to actively direct the outcome of specific courts-martial. It will then turn to the congressional effort to remove court-martial jurisdiction from commanders, with a focus on decisions made by Air Force Lieutenant General Franklin in two sexual assault courts-martial and the repercussions he faced as a result. Finally, the article will review the JPP report findings as well as the recent appellate court decisions and conclude with observations for addressing these concerns.