The new Secretary of Defense, Lloyd Austin, after only days in office, wasted no time in requesting the information he needed to make wholesale changes to how the Pentagon handles sexual misconduct in military.
He may have gotten more than he bargained for.
Just before Austin’s first press briefing, he learned of a TikTok video made by a female Marine who said she had been sexually harassed by a fellow Marine. The Marine complained that the perpetrator would receive a “non-judicial punishment” ― a penalty usually reserved for minor offenses.
It’s a developing story, but the story of the TikTok video lands in the middle of a burgeoning debate over who gets to decide who gets prosecuted in the Armed Forces, and for what.
It also comes as President Joe Biden has vowed to tackle what he called the “scourge” of sexual assault in the military. In a speech this week to mark International Women’s Day, Biden said he was determined to ensure that all women are fully supported and respected in their careers within the US military, from fair promotions, to making sure women’s careers do not suffer when they have children, to ensuring that the military supplies “body armor that fits women properly.”
But how will military service members actually be protected from the “scourge” of assault?
Right now, Convening Authorities (most often the first general in the chain of command) have exclusive power to decide disciplinary matters, including whether a service member will be charged under the Uniform Code of Military Justice (UCMJ), a setup that allows a host of factors — and people — to influence the criminal justice process in the military.
It’s the equivalent of a corporate CEO having the authority to decide which of his employees’ complaints are serious enough to go to trial — and who can be held accountable.
Unlawful command influence, or UCI for short, has been called the “mortal enemy of military justice.” It refers to attempts by senior military personnel to influence decisions or outcomes in the justice system.
That influence can take a number of forms. It includes, for example, shifting higher level offenses to non-judicial punishment; outright threats and orders issued to decisionmakers; open opinions on accused defendants’ culpability; interfering with witnesses; or even casual jokes in front of potential witnesses and jurors.
Military tribunals recognized UCI almost 70 years ago, when the perception of unfairness in military justice was already spreading.
In a 1952 case involving a sailor charged with sodomy, the Commandant of the Eleventh Naval District San Diego wrote to the court martial judge and opposed the defendant’s continuance request. The Commandant had no authority to weigh in on a perfunctory matter like trial schedules, so the Appellate court vacated the conviction, saying the UCI was “vivid enough…to require reversal.”
Protecting the Integrity of Military Justice
The prohibition of unlawful command influence in Article 37 is one of the UCMJ’s better points. There’s no analog in civilian criminal proceedings. It’s a liberal doctrine designed to prevent extrajudicial effects on people charged, and to protect the public integrity of the branch.
But there’s actual UCI and apparent UCI.
Actual UCI happens when one senior military member tries to directly influence the legal process. Apparent UCI happens when something occurs that would cause the public to question the integrity of the process.
Despite these broad prohibitions, UCI persists, even in this developing story of the Marine in the TikTok video. From public reports, we know only that she alleges “image-based abuse” — which has been a crime under the UCMJ since 2017.
A spokesperson for the Marine Corps says they are in the middle of the separation process, so the status of the situation isn’t publicly known.
But if, as the accuser reports, a convening authority decided to downgrade a punishment when a more severe penalty was warranted, then this is a case of unlawful command influence.
Legislative changes to reduce UCI may be on the horizon.
On Jan. 19, at Secretary Austin’s confirmation hearing, Sen. Kirsten Gillibrand (D-NY), asked him about his willingness to overhaul the military justice system by taking prosecutorial power away from commanders, and giving it instead to trained prosecutors.
That proposal is more contentious than it might appear.
During the 2020 presidential campaign, then-candidate Biden expressed support, but noted that the Joint Chiefs of Staff disagrees. This resistance, according to Eugene R. Fidell, Senior Research Scholar in Law at Yale Law School and an expert on military justice, is an artifact of the distant past, with admirals and generals continuing “to cling to our [King] George III system.”
Beyond Don’t Ask, Don’t Tell
“We have until now been unwilling to bite the bullet on this,” Fidell wrote in an email.
“No White House in recent history has been willing to take on the Pentagon, other than Don’t Ask Don’t Tell. That may be changing. The pity is that the armed forces have not seen this as an opportunity, but as something to be fought tooth-and-nail.”
Sen. Gillibrand believes we can weed out troops who engage in sexual violence by letting different charging authorities review cases. This idea has been the centerpiece of the Military Justice Improvement Act she’s sponsored in every Congress since 2013.
In 2020, she introduced it as an amendment to the National Defense Authorization Act. Nevertheless, it wasn’t included in the final bill passed on Jan. 1 by overriding former President Donald Trump’s veto.
It sounds as if the senator is anxious to revisit it, based on her comments at Austin’s hearing.
To be clear, Sen. Gillibrand and others are concerned with UCI because they want more prosecutions, not fewer―specifically for sexual misconduct. But that doesn’t mean that changes to the military justice system won’t benefit military criminal defense.
UCI gnaws at the defense of the so-called “MARSOC 3” — two Marine special operations gunnery sergeants Daniel A. Draher and Joshua S. Negron, and one Navy special amphibious reconnaissance corpsman, Eric S. Gilmet.
The three are charged in connection with an incident that occurred on New Year’s Eve 2018. A contractor, a U.S. citizen, fell backwards after punching one of the Marines twice in the face, and died days later.
Now Draher, Gilmet and Negron face involuntary manslaughter, negligent homicide and obstruction of justice charges.
On the record, there are multiple problems with the case.
For one, at their preliminary hearing under Article 31, trial counsel lacked evidence whether the decedent’s injuries were survivable or not and the cause of death was debated. The Hearing Officer who heard the evidence recommended that the Convening Authority/commanding general drop the obstruction of justice charges but their former general overruled that decision– on the advice of a JAG two ranks junior to the Hearing Officer―and reinstated them.
Those are just the problems on the record. Off the record, it appears that multiple service members have tried to influence who will testify. One of the MARSOC 3 defendants, GySgt Negron, sought to bring this on the record and dismiss the charges because of it, but his motion was denied.
I know that various people have tried to influence other military staff about this case because I’ve spent 110 hours interviewing almost 60 active duty and veteran servicemembers associated with MARSOC.
But witnesses to this misconduct fear repercussions by reporting them. Some refuse to go on the record for journalistic purposes; they’re much less likely to testify in court where their identity can’t be protected.
That witnesses hesitate to come forward to report UCI should surprise no one. They’d have to jeopardize their careers to do so which is why UCI compounds itself; the very power that allows it to happen in the first place also aids it’s concealment.
UCI is a crime itself. Notably, no one has ever been prosecuted for it. But we know it happens. Sometimes commanders don’t even try to hide it.
While addressing a room full of military lawyers after 17 sailors died in two different ship collisions in 2017, then-chief of naval operations, Adm. John Richardson, publicly concluded that the accused, the ships’ captains and select crew members, were culpable, causing the case to be dismissed.
The number of comments and exhortations that happen in private spaces is unknown.
Air Force Lt. Gen. Craig A. Franklin had declined to charge Airman 1st Class Brandon T. Wright III with sexual assault. When a new secretary of the Air Force was appointed, Franklin underwent undue pressure to reinstate the charges, which he did, and then retired. Airman Wright was eventually acquitted.
Unless someone else comes forward who’s willing to take the stand for the MARSOC 3, the defendants can’t prove UCI. The way UCI perpetuates itself hamstrings their lawyers; it keeps an effective defense just beyond their reach.
Because it harms potentially innocent defendants and enables guilty ones, UCI is a scourge on the armed forces; by definition it brings the military into disrepute.
It’s important to note that the MARSOC 3 bear an additional burden in how Congress has made it more likely that UCI can permanently affect a case.
Right before the MARSOC 3 were charged, The Sexual Trauma Ongoing Protections Act was introduced in the House of Representatives and included a change to the rules surrounding UCI. The bill got no traction, which would explain why there was no debate on it.
However, also without public discussion, the bill’s provisions were added to the FY 20 National Defense Reauthorization Act and became law on Dec. 20, 2019.
Burden of Proof
Since then, it’s not enough just to be a victim of UCI. Defendants must also prove that the outcome of their case would have been different were witnesses and jurors not unlawfully influenced. In the past, the burden fell on prosecutors to prove that the defendants weren’t prejudiced.
It sounds like a minor distinction; but it’s not. It’s virtually impossible to prove the existence of an event that never occurred under normal circumstances; it becomes even harder when the people who could testify to it are — still — actively discouraged from doing so. This change to the UCI law tilts the balance of power even further in convening authorities’ direction.
It’s long been known that the public opposes defendants getting off on technicalities, but UCI doesn’t necessarily fall into that category. Many events that aren’t crimes are labeled as such because of UCI. Many crimes, like the one alleged in the Marine’s TikTok video, remain unsolved or unresolved because of it, too.
UCI is far from a technicality.
Rather, it confounds military justice in general. Secretary Austin and Congress should act sooner rather than later to eliminate it by restructuring military justice as a whole.
Kelsey Baker is a veteran Marine officer and served on active duty for six years. She is now a freelance journalist.