“Command influence is the mortal enemy of military justice.”
Robinson O. Everett, former chief judge of what is now the Court of Appeals for the Armed Forces, wrote those powerful words in 1986. They underscore the importance of banning the power inherent in command from military courtrooms. Congress wrote such a ban into the Uniform Code of Military Justice more than 60 year ago, recognizing that true justice requires the unbiased application of the law to the facts on scales that are not tipped by the fingers of extrajudicial forces.
Army Pfc. Bradley Manning, who is accused of leaking a trove of documents to WikiLeaks, faces serious court-martial charges, including aiding the enemy. If convicted, Manning could spend the rest of his life behind bars. Under one of the most fundamental of all rights, he is presumed innocent until legal and competent evidence overcomes that presumption beyond a reasonable doubt in a court of law.
Now a video is circulating of President Obama, the commander in chief of the armed forces, in conversation at a California fundraiser two weeks ago. “He broke the law,” Obama says of Manning. No need to secure a courtroom or endure a protracted trial; the commander in chief rendered his extrajudicial verdict. And military justice meets its mortal enemy once again.
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.
The military commissions that will try the Guantanamo detainees are not governed by the Uniform Code of Military Justice; they are governed instead by rules set down in the Military Commissions Act. I was the chief prosecutor at Guantanamo in 2006 when Congress began work on the law. I met with Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C., who led the effort, and I told them that senior government officials were trying to meddle in the commissions, particularly after Khalid Shaikh Mohammed and other “high-value detainees” were transferred to Guantanamo from CIA sites.
After five years of failed effort and not a single trial completed, and with skepticism about the fairness of the commissions growing, we needed to preserve the integrity of the project with statutory protection similar to the prohibition on command influence in courts-martial. The senators agreed, and language I drafted was included in the Military Commissions Act.
The behavior of this administration gives an inkling of why it was necessary. In November 2009, Obama defended his decision to prosecute Mohammed in federal court (a decision he subsequently abandoned), saying no one would question it “when (Mohammed is) convicted and when the death penalty is applied to him.”
Attorney General Eric H. Holder Jr. made similar remarks, telling the Senate Judiciary Committee: “Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.”
All participants in the military commissions are accountable to the commander in chief. Many, in addition to their status as uniformed military reserve officers, are career employees of the Department of Justice. When the attorney general says that only a guilty verdict is acceptable, and the commander in chief endorses the death penalty for an accused who has not been convicted, they undermine confidence in justice by injecting the appearance of undue influence.
Will the attorneys and the judges exercise independent professional judgment, or will independence bend to the express will of their superiors? Will the officers on the board at Mohammed’s military commission deliberate over the law and evidence, or will they just do what the administration expects them to do? Will we be able to tell now that the administration has made its position public?
Pandering, hubris and contempt for “quaint” legal principles are as unacceptable in the current administration as they were in the last. It is the notorious cases with unsympathetic defendants such as Manning and Mohammed where America’s example speaks loudest. These trials will say as much about us as it does about them.
When the judicial process becomes a stage for political theater ― when justice appears to be scripted rather than blind ― we have lost sight of the values we purport to be fighting to defend.
Morris Davis is a retired Air Force colonel. He was chief prosecutor for the military commissions at Guantanamo Bay from 2005 to 2007. He is the executive director of the Crimes of War Project in Washington. ― Ed.