President Barack Obama this week stepped over the line of both protocol and ethics by publicly declaring Bradley Manning guilty of crimes. During a speech, Obama stated Manning “broke the law” to an audience in an act that could be challenged as undue command influence in the military system and violates a long-standing rule of presidents refraining from prejudicing trials. Manning is accused of being the source for the wikileaks material, which have shown that the Administration and prior Administrations have lied to the American people in various areas of policy.
The President’s comments came after protesters interrupted one of his speeches. He stated:
“I have to abide by certain classified information,” Obama said on a video that quickly began to circulate among media outlets Friday. “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law. … We’re a nation of laws. We don’t individually make our own decisions about how the laws operate. … He broke the law.”
Remarkably, I have not seen any corrective statement from the White House. In litigating within the military system, one of the greatest concerns is undue command influence. This was a big issue in the Dan King espionage case that I handled as lead defense counsel at Quantico. Here is Article 37:
Uniform Code of Military Justice (UCMJ)
ART. 37. UNLAWFULLY INFLUENCING ACTION OF COURT
(a) 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 foregoing provisions of the subsection shall not apply with respect to
(1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or
(2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.
(b) In the preparation of an effectiveness, fitness, or efficiency report on any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, represented any accused before a court-martial.
It is likely that a military court would reject an undue command influence challenge, but that does not take away the unfairness to the defendant. The military jurors, or members, are under the command of Obama as commander and chief. Obama is poisoning the jury pool with such statements and as a lawyer (let alone a law professor) he should be ashamed.
By the way, Obama does not seem nearly so committed to the rule of law for Bush officials, including Bush himself, who are accused of war crimes. When it came to those crimes, Obama has blocked criminal investigations, let alone prosecutions. “He broke the law” is not sufficient for Obama when the political costs of prosecution make application of the law too inconvenient.