Described as the “mortal enemy of military justice” in United States v. Thomas, 22 M.J. 388 (1986), unlawful command influence is embedded in section 37 of the Uniform Code of Military Justice.
Marine Judge Advocate Captain Charles F. Whitman ’14 explains, “Under the military justice system a commander is granted an enormous amount of power and responsibility to maintain good order and discipline of their unit. Part of that power is the ability to convene court-martials and charge people with federal crimes. Anyone subject to the Uniform Code of Military Justice can commit an act of unlawful command influence by improperly influencing the proceedings.”
“In many ways it is an unforced error,” continues Whitman. “Commanders must ensure good order and discipline in their units but also ensure that court-martials are fair proceedings that uphold constitutional protections for the accused.”
Whitman has firsthand experience of unlawful command influence as he formed part of the defense team in the much-publicized case concerning the mass arrest of more than 20 Marines in front of an 800-person battalion at Camp Pendleton in 2019.
The arrests, which were captured on video, included 16 Marines accused of human smuggling and an additional eight accused of drug offenses.
Whitman, representing one of the Marines charged with drug offenses, successfully argued that the arrests amounted to unlawful command influence. The judge subsequently ruled that the mass arrests were an unlawful violation of their rights and the case collapsed.
“In the case,” says Whitman, “we were able to show that the mass arrest actually did improperly influence the upcoming court-martials, and that the mere appearance of the mass arrest ‘placed an intolerable strain on the fairness of the proceedings’—i.e., a reasonable member of the public who knew all the facts and circumstances would doubt the fairness of the proceedings.”
In particular, Whitman says his client was arrested with individuals who were accused of human smuggling when he never engaged in (nor were there any facts connecting him) to smuggling.
“As a result, the mass arrest constituted both actual and apparent unlawful command influence,” he says.
Whitman, who comes from a military family, always wanted to serve his country and at the same time become a lawyer.
“I decided to become a Marine Corps Judge Advocate because I wanted to join the most challenging branch and be trained as a military officer first and foremost,” he says.
Marine lawyers are unrestricted line officers whereas the other branches are restricted line officers in that they only serve in lawyer positions, explains Whitman. “Other branches do not undergo nearly as much ‘military’ training as Marine Judge Advocates do. Marine JAGs can ‘technically’ be placed in many non-lawyer positions.”
Whitman chose California Western primarily because of the school’s focus on its students. “It was clear to me before attending California Western that the school invested in the development of its students, more so than other schools I’d looked at,” he says.
The Marine Judge Advocate attributes much of the success he achieved in the “mass arrest” case and other cases he has litigated to his training on the Jessup International Moot Court Team at California Western.
“I learned so much as an oral advocate and writer during my time on the team,” says Whitman. “Dean Aceves and Professor Thyfault were instrumental in my professional development, along with Professor Lynch and Professor Noyes.”
Not all Whitman’s cases garner the kind of media attention that the “mass arrest” case did, but he feels that this publicity will ultimately result in commanders and their advisors more heavily scrutinizing their pre-trial conduct and actions to ensure that unlawful command influence does not occur.