This Week’s Foolishness in Military Justice
In military justice Bizarroland, Rep Duncan Hunter intentionally commits "reverse UCI."
In this week’s episode of backwards military justice practice, Representative Duncan Hunter Jr., has continued his pattern of interfering with the administration of justice in the court-martial case of accused war criminal US Navy SEAL Chief Petty Officer Eddie Gallagher. If being a federally-indicted vaping Congressman weren’t enough to solidify his place on the list of most clueless and corrupt in Congress, Hunter has set about to sabotage the government’s case against a sailor charged with some relatively heinous crimes. Hunter would be well advised to leave this alone and stop prejudicing the government’s case, for the same reason the Uniform Code of Military Justice and the military courts require commanders to keep their hands off pending cases to the detriment of an accused (“defendant” in civilian legal parlance).
Gallagher is charged with killing an injured ISIS fighter in Iraq in 2017, then engaging in a movie-script worthy pattern of witness intimidation and obstruction of justice. Despite the military judge’s specific findings in a January ruling that Gallagher engaged in a pattern of witness intimidation and threats to kill anyone who reported his alleged crimes, which led to Gallagher’s pretrial confinement (denial of bail) in the Miramar brig, President Trump intervened personally and directed, via some unknown medium — no Presidential memorandum has been disclosed, so it may have been a verbal order — to lower Chief Gallagher’s pretrial restraint to ordinary pretrial restriction — i.e. not confinement, but specific conditions placed by military authority — the Naval Special Warfare Group Commodore — on his freedom of movement and activity. Gallagher’s lawyers, predictably, are coloring the pretrial restriction as defiant of the President’s orders, which is difficult to ascertain given the President’s orders were not obviously written down.
There is a concept in military justice called Unlawful Command Influence which prevents senior officers, usually commanders, from taking actions to influence the outcome of courts-martial. The most frequent form is public statements by commanders regarding the guilt or innocence of a military accused, which either actually or apparently are calculated or intended, or have the actual or apparent effect of, influencing court-martial panel members (the “jury”, in civilian legal parlance). UCI, and the courts’ regulation of it, are related to due process rights and the right to a fair trial by a neutral and impartial magistrate or panel.
UCI is a fairly straightforward concept — a commander must not get wed to the idea of a conviction in any particular case such that his actions actually or apparently place a thumb on the scale on the side of the government. Rather, commanders properly exercising their authority act in a quasi-judicial, neutral role in referring the case for trial, selecting panel members (jury members), and taking action on production of witnesses, etc. UCI usually is committed by commanders, but occasionally can be committed by staff officers acting with the commander’s express or implied imprimatur. And in one recent, particularly egregious case, U.S. v. Barry, a 3-star service JAG was found to have committed actual unlawful command influence in a court-martial case when he was a 2-star, a fact pattern which, if there were any justice at all, should have seen him retire as a one-star. UCI, to this author, is particularly offensive because most courts-martial find the full weight of the government, with all its resources, stacked against a junior enlisted member and a relatively inexperienced military lawyer defending him. Even with this disproportionate advantage, many commanders, like the JAG in the Barry case, feel the need to stack the deck in favor of the government even more. People who believe in due process know better than this.
Which brings us back to the crazed conduct of Representative Duncan Hunter, Jr. Hunter has embarked on a one man Congressional question to shape the case against Chief Gallagher to the government’s disadvantage. In so doing, he is committing the mirror image of the UCI usually seen in military cases, in that he is disadvantaging the government’s ability to present its case without passion or prejudice. Hunter has made disingenuous statements, recasting the alleged murder of an injured fighter with a knife as he lay helpless on the ground with “compassionate combat” when in fact, such conduct, if proven would constitute a breach of the law of war and murder. Hunter recently asked “for this whole case to be dropped. It’s time we stop persecuting our warriors who go overseas and do what we ask them to do. Maybe if we persecuted them less, we wouldn’t be in Afghanistan 18 years later, still with no end in sight.” Yes, Congressman, it’s the persecution of alleged war criminals that’s at fault, not the absence of coherent strategy, the unreliability of Afghan military and political partners, own-goals like the Kunduz CIVCAS strike, and the diversion of resources from Afghanistan to Iraq to fight a needless war in 2003.
Hunter isn’t alone in his crusade to interfere with the legal process; 39 other Congressmen have weighed in on the issue as well.