Posted on November 16, 2009 in Military Law
The tragedy at Fort Hood is going to reverberate across our country for months to come. Unfortunately for the military justice system, the intense national and media attention will cause a substantial trial problem. The problem is known as "UCI" to those in the military justice system – standing for "Unlawful Command Influence." Its a problem that goes to the very roots of the military justice system – both its strength and its weakness.
Fundamentally, the Uniform Code of Military Justice (UCMJ) is a "discipline" system. It is, however, as an AMERICAN military discipline system, overlaid with the due process and fundamental guarantees of the US Constitution. So, while the military member is entitled to a jury – its not a jury of their peers. Instead, the military jury is composed of officers (and for trials of enlisted members), non-commissioned officers and enlisted members who outrank the person on trial. More than that, the "jury" (it’s called a "panel" in the military, is selected by the officer that ordered the trial to be held in teh first place – the Commanding officer (for a General Court-Martial, usually the Commanding General of the Installation). At Fort Hood, that is the Installation Commander, LTG Robert Cone – who many of us have come to know on TV over the last week.
We’ve also heard from many other Commanders in the chain of command besides LTG Cone, notably including the Commander in Chief, President Obama. The problem is that while these officers have command responsibilities that include reassuring their personnel, including military, civilian and family members, that the installation/Army/nation is safe, they also have judicial responsibilities. As a "Court-Martial Convening Authority" the commander has to wear two hats. He or she has to be a commander and they also have to function like a judge. Its when they put on the judge hat that their two roles come into fundamental conflict. When the President makes comments that assure us that MAJ Hasan will face justice, is he speaking as the Commander in Chief, or as the Chief Judge? More importantly, will the potential jurors who hear the case be able to distinguish those roles?
That is the fear about Unlawful Command Influence. Unfortunately the effect is probably the worst the closer you get to the court martial. The fear is that members of the court – presumably including the judge, the jurors, the prosecutor and even the defense counsel will be influenced to ensure a particular outcome to the trial. While the President’s comments have the most widespread publicity – it is likely that the focus on Command Influence will be on the actions of local commanders. Why is that? Simple – although the President is the Commander in Chief, his ability to influence the career or future of one juror is probably less profound than the ability of the local commander. The local commander is the officer who supervises and may, in the case of some senior jury members, actually write the officer’s or soldier’s annual fitness report. While the system does a pretty good job of isolating the judge and defense counsel from this possible influence, it is less certain for jurors and the members of the prosecution.
So what is going to happen at Fort Hood? There are a number of possibilities. First, I’ve heard nothing in the press that indicates LTG Cone has said anything that would affect his ability to be the convening authority for the case. If he, or his chief lawyer should fear that someone will successfully raise that accusation, he can transfer the case to another convening authority – presumably one that has not made any comments about the case. Since the case cannot be transferred to another military, the question will be raised by the defense that the President – the Commander in Chief – and a Convening Authority – has put his thumb down on the scale of justice and MAJ Hasan cannot receive a fair military trial. I think, however, that the military will be able to work around this issue – likely by an appeal to military discipline.
During jury selection, the defense counsel is sure to ask if the jury heard the President’s comments - likely the jurors will report they did. They will then be asked if they can put those comments aside and render a fair and impartial judgment. Many, if not all of the jurors will answer that they will! Fundamentally, they will all be telling the truth – because military members are often told to disregard their own "feelings" or emotions and respond to the orders given to them (including recall basic emotions such as fear of injury/death!). The problem will remain that there is, and will always be, the taint that lingers after resolving those stated concerns. Will the trial be fair (probably). Will the jurors apply the law and not their emotions (probably). But are we as a society satisfied with verdicts that are "probably" free from undue influence?
This brings us back to the main problem - how do you have a system that ensures discipline and justice? The system will be in for some intense scrutiny as will the participants. Ultimately the American people will have to decide if their military justice system is up to their standards.
The tragedy at Fort Hood will test the military justice system to ensure a fair and just trial for MAJ Hasan and for the Government in the light of the extensive pre-trial publicity surrounding comments by senior leaders in the military.