Daniel Ellsberg and Eugene Fidell on “unlawful command influence”

The suspicion that Barack Obama may have prejudiced the legal process against Bradley Manning is not going away. “Unlawful command influence” is, essentially, the misuse of the military chain of command to influence a legal process that not only needs to be independent, but needs to be seen to be so. Here’s how UCI is defined under the Uniform Code of Military Justice, the rules that govern how Bradley’s case will proceed:

ART. 37. UNLAWFULLY INFLUENCING ACTION OF COURT
No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings.
No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

The logic of how command influence works in practice was well described by Daniel Ellsberg on Democracy Now yesterday (Tuesday). A transcription of what he said follows below:

Nearly everything the President has said represents a confusion about the state of the law and the extent of his responsibilities.

Everyone has focused on the fact that this commander-in-chief has virtually given a directed verdict to his subsequent jurors who will all be his subordinates in deciding guilt in the trial of Bradley Manning.

He has told them already that their commander, on whom their whole career depends, believes him as guilty and they can disagree with that only at their peril. In career terms it’s clearly enough grounds for a dismissal of the charges, as in my trial, which was dismissed eventually for government misconduct.

Elsewhere, NBC’s Jim Miklaszewski (who broke this hugely important story back in January) reported on the “unlawful command authority” issue this morning. His piece breaks the following new ground:

Eugene Fidell, president of the National Institute of Military Justice, a nonprofit group that promotes the fair administration of justice in the military system, told NBC News that the president’s remark “is unlawful command influence,” which includes an assumption of guilt.

“The president shouldn’t have said it. He should have been more circumspect,” Fidell said.

Eugene Fidell was also cited in the Politico piece last week, but this statement goes further in confirming that – in the opinion of an expert in military law – Obama’s words do indeed constitute unlawful command influence. Fidell goes on to remark that this is not necessarily a problem for the trial, provided that “potential jurors could be screened to ensure they are not aware of the remark.” Presumably, therefore, if there did prove to be difficulties finding jurors who were ignorant of what Obama said on Friday, then that could have serious implications for the viability of any prosecution. A high profile piece on NBC/MSNBC, needless to say, contributes towards that possibility, as does the continuing online coverage of what seems to be, in the eyes of just about everyone, a seriously misjudged Presidential remark.

Update

Morris Davis, the former chief prosecutor for the military commissions at Guantánamo (he resigned in 2007 amid allegations of political interference in the process) has written an Op-Ed piece for the Los Angeles Times on this subject in which he assesses the likely impact of Obama’s words to be rather serious:

In 1949, Gerald Ford, then a congressman from Michigan, described his firsthand experience with command influence when he served as a Navy officer in World War II. He said: “Too often a court-martial board does not determine the guilt or innocence of the accused.” Instead, he recalled military jurors retiring to the deliberation room to ponder, “What does the Old Man [the commander] want us to do?”

When the jurors retire to the deliberation room at the Manning court-martial, they will not have to speculate on the answer; arguably the most important “Old Man” of them all has spoken, and he said Manning is guilty.

He also concludes strongly, warning of the danger for America’s moral integrity and external reputation when “the judicial process becomes a stage for political theater — when justice appears to be scripted rather than blind.”  The idea of a predetermined judicial process as a vehicle for “political theater” is one that should raise uncomfortable comparisons in anyone with a more than glancing knowledge of 20th century history.

Update II

A new MSNBC article has appeared this evening with a much more conservative spin (“Obama Comment Unlikely to Affect Outcome of Bradley Manning Trial”) and a new quote from Eugene Fidell:

“It will generate motions by the defense and will require some care in selecting the military members of the jury, a process already complicated by the extensive press coverage of this case,” Fidell said. “It was going to have to be a very careful questioning process for potential jurors, to ask if they have seen reports or read about the case. Now they’ll also have to be asked whether they heard the president’s comment and if that would make any difference to them. But that will be the extent of it, and they’ll get on with the trial.”

Update III

Glenn Greenwald, speaking on Democracy Now, has described Obama as exerting “an amazing amount of improper influence over the military process.”

One of the cardinal rules about being a President is that you don’t decree private citizens guilty of crimes before they’ve been adjudicated of having been convicted of a crime. Amazingly, John Mitchell – the most corrupt Attorney General in American history – knew that, because Richard Nixon once stood up in the middle of the Charles Manson trial, who everyone thought was guilty while the jurors were sequestered and said, “he’s killed eight people.” John Mitchell knew that that was inappropriate, that you can’t do that and forced Nixon toretract it.

Here it’s much worse for Obama do to that because Bradley Manning is a member of the military under his command. The people who will decide his guilt are inferior officers to Obama as Commander in Chief. It’s an amazing amount of over- and improper influence over the military process.

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One response to “Daniel Ellsberg and Eugene Fidell on “unlawful command influence”

  1. Yes – once the defendant is mentioned in the media by a major actor in the case as being Guilty, then the case becomes invalid……

    Free Bradley Manning!….

    Alex Weir, London and Harare

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