United States v. Hutchins

(dissenting):

INTRODUCTION

I respectfully dissent for two reasons. First, I do not agree with the majority’s conclusion that the Naval Criminal Investigation Service (NCIS) agent’s request for a permissive search authorization constitutes reinitiation of communication in violation of Appellant’s Fifth Amendment rights. Appellant initiated communication with the NCIS agents, and his statement was both voluntary and the result of a knowing waiver of his right to counsel. Therefore, the military judge did not abuse his discretion in denying the motion to suppress the statement, and the statement was properly admitted into evidence.

Second, by failing to address the allegations of unlawful command influence, the majority avoids a systemically important question and central aspect of the case, which warrants inquiry and consideration by this Court. This case raises matters of first impression involving the scope of Article 37, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 837 (2006), and the nature of a service secretary’s clemency process, as well as the general question of whether the prohibition against unlawful command influence bars policymakers from addressing matters of national and foreign policy importance where they also involve issues of military justice and executive clemency. While I would ultimately find that Appellant has not met his burden of raising “some evidence” of unlawful command influence, these matters deserve full and fair consideration.

ADMISSIBILITY OF APPELLANT’S STATEMENT

Background

On May 10, 2006, Appellant and the members of his squad were transferred to Fallu-*304jah for questioning as “suspects in a homicide.” Upon arrival, all members of his squad had their weapons confiscated and were not permitted to communicate with each other. Appellant and the other members were billeted in trailers referred to as “cans.” “The doors of the trailer rooms were locked, and the locks had to be opened with a key from both sides.” When outside the “cans,” an escort remained with them at all times.

On May 11, 2006, NCIS agents questioned Appellant at Camp Fallujah. The agents informed Appellant that he was suspected of the offenses for which he was subsequently charged. He was also properly advised of his rights. Appellant waived his rights and stated that the shooting was part of an ambush. When the agents confronted him with evidence indicative of a homicide, Appellant invoked his right to counsel. The agents terminated the interrogation and returned Appellant to custody.

For the next seven days, Appellant remained in the “can.” While Appellant spoke with the chaplain, he was not permitted to use morale, welfare, and recreation facilities, to have access to phones, computers, or mail, or to communicate with other members of the squad. Appellant was allowed to use the latrine and shower facilities. The military judge found that, during this time period, the Government “made no direct or indirect attempts to contact him ... or to persuade him to reopen discussion.” Nor did the Government provide Appellant with counsel, as requested.

On May 18, 2006, NCIS agents approached Appellant to obtain permissive authorization to search his belongings, which he granted. The military judge made findings, based on his assessment of the witnesses’ testimony, that “the agents strictly restricted their contact with the accused to the request for permissive authorization for a search of his belongings” and “the government did not seek to discuss the case with the accused further.” As they searched, Appellant asked if “the door was still open to discuss his side of the story.” An agent reminded Appellant that he had exercised his right to counsel, and told Appellant that they did not have time to talk that night, which the military judge found “directly contradicts any allegation that this visit to his can was a subterfuge to reinitiate contact.” The agent told Appellant that he was not sure what time the following day Appellant would be sent back to the United States, but said that they would speak with him if there was time.

The next day, May 19, the NCIS agents again informed Appellant of his rights. Appellant “expressly waived those rights and indicated a continued desire to reinitiate contact with the government without the benefit of counsel.” Appellant gave a lengthy, detailed statement.

Discussion

This Court reviews a military judge’s denial of a motion to suppress a confession for an abuse of discretion. A military judge’s findings of fact are reviewed for clear error. United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F.2009) (citing United States v. Pipkin, 68 M.J. 358, 360 (C.A.A.F.2003); United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F.2007)). However, voluntariness of a confession is a question of law that this Court reviews de novo. Chatfield, 67 M.J. at 437 (citing Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); United States v. Bubonics, 45 M.J. 93, 94-95 (C.A.A.F.1996)).

Appellant argues that the subsequent in-culpatory statement on May 19 was involuntary and thus erroneously admitted into evidence. First, Appellant contends, and the majority incorrectly holds, that under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), it was the agents, not Appellant, who reinitiated interrogation. Second, in the custodial context presented in Iraq, Appellant argues that the statement was not a product of voluntary choice, but that his will was overborne by seven days of custodial isolation in the “can.”

Reinitiation of Communication

The majority’s assertion that a request for a permissive search authorization constitutes reinitiation of communication in violation of Appellant’s Fifth Amendment rights both *305misapprehends the Edwards doctrine and directly contradicts the jurisprudence of this Court and every federal court of appeals to have addressed this issue.

Under Edwards, when an accused invokes his right to counsel during custodial interrogation, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880.1 On one side of the equation, the authorities are barred from interrogation, which has been broadly interpreted to include “express questioning or its functional equivalent” of “any words or actions ... that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). This Court has defined “reinitiation of interrogation” in violation of Edwards to include a confrontation having “the natural tendency to induce the making of a statement by” Appellant. United States v. Brabant, 29 M.J. 259, 262-63 (C.M.A.1989) (internal quotation marks omitted). On the other side, the accused may initiate further communication, exchanges, or conversations by making inquiries or statements that can “be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).

In summary, while the authorities must halt the interrogation after invocation of the right to counsel, “[i]f a defendant makes a statement in response to words or actions by the police that do not constitute interrogation or if the defendant himself initiates further communications, the police are not prohibited from ‘merely listening’ to his voluntary statement.” United States v. Jones, 600 F.3d 847, 855 (7th Cir.2010); see also Alvarez v. McNeil, 346 Fed.Appx. 562 (11th Cir.2009); Clayton v. Gibson, 199 F.3d 1162 (10th Cir.1999); United States v. Gonzalez, No. 97-4541, 1998 U.S.App. LEXIS 14891, 1998 WL 377901 (4th Cir. July 1, 1998) (unpublished table decision); United States v. Colon, 835 F.2d 27 (2d Cir.1987). “Volunteered statements of any kind are not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).2 As the majority acknowledges, *306this Court has already determined that, “[a] request for a consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement.” United States v. Frazier, 34 M.J. 135, 137 (C.M.A.1992).3 Moreover, the military judge found that “the agents strictly restricted their contact with the accused to the request for permissive authorization for a search of his belongings” and “the government did not seek to discuss the ease with the accused further.” In other words, it was not a circumstance where the agents baited their words to encourage or elicit a response, which is further evidenced by the fact that the agents did not follow-up Appellant’s question by taking an immediate statement, but waiting until the next day. As the military judge found, this “directly contradicts any allegation that this visit to his can was a subterfuge to reinitiate contact.”

Federal courts of appeals that have considered this issue “unanimously agree that consenting to a search is not an incriminating statement under the Fifth Amendment because the consent is not evidence of a testimonial or communicative nature,” United States v. Cooney, 26 Fed.Appx. 513, 523 (6th Cir.2002), and Fifth Amendment protections only apply to incriminating evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 760-61, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).4

The majority fails to address, however, this Court’s prior holdings that, since a request for consent to search does not constitute an interrogation, Edwards does not bar police authorities from requesting the suspect’s consent to a search before he or she has consulted with counsel. United States v. Burns, 33 M.J. 316 (C.M.A.1991); United States v. Roa, 24 M.J. 297 (C.M.A.1987). In Bums, this Court rejected the appellant’s claim that his Fifth Amendment and Article 31, UCMJ, 10 U.S.C. § 831 (2000), rights were violated by a request for consent to search after he invoked his right to counsel, holding that the argument was “plagued by a faulty premise, for it seems to ignore the significant distinctions outlined by us in Roa. ” 33 M.J. at 320. The Court explained:

[Interrogation is for the purpose of eliciting from a suspect communications about the matter under investigation. However, a consent to search does not of itself communicate any information about the investigated crime; and it is not a statement regarding an offense. Therefore, requesting consent to search property in which a suspect has an interest is not prohibited by *307his prior request for counsel, because Edwards provides protection only as to interrogation.

Id. (quoting Roa, 24 M.J. at 301 (Everett, C.J., concurring in the result)). Since consent “is not a statement” and a request for consent is not an “interrogation,” consent to search is “a neutral fact which has no tendency to show that the suspect is guilty of any crime” and is not in itself incriminating. Id. (citations omitted) (internal quotation marks omitted). Therefore, the Edwards doctrine does not prevent authorities from making a search request after a suspect invokes the right to counsel. Id.

The other federal courts also agree that a defendant’s consent to search is not an incriminating response, and therefore a request for consent is not “interrogation” and does not violate Edwards. See United States v. Knope, 655 F.3d 647, 654 (7th Cir.2011) (“Knope’s argument [that his consent to search was invalid under Edwards because he signed after invoking his right to counsel] is foreclosed, however, by this court’s holding that ‘a consent to search is not an interrogation within the meaning of Miranda.’”); United States v. Bustamante, 493 F.3d 879, 892 (7th Cir.2007) (“Though all interrogation must cease once a defendant in custody has invoked his right to counsel, a request to search a vehicle or home is not likely to elicit an incriminating response and is therefore not interrogation.”); United States v. Taylor, No. 99-4373, 2000 U.S.App. LEXIS 106 at *4, 2000 WL 6146 at *2 (4th Cir. Jan. 6, 2000) (unpublished table decision) (“There was no Miranda violation when, after Taylor informed investigators that he was not responding to any more questions, investigators asked him to consent to a search of his financial records. Asking for and receiving consent was not part of the interrogation because giving consent is not a self-incriminating statement.”); United States v. Gonzalez, 1998 U.S.App. LEXIS 14891, at *3-*4, 1998 WL 377901, at *1 (“Gonzalez’ consent to search, however, is not an interrogation that triggers his previously invoked right to counsel [under Edwards].”); United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir.1996) (“Even though Shlater stated that he wished to have counsel present for any interrogation regarding the specific events of the evening, the law provides that request for counsel during the interrogation does not apply to the subsequent request for a consent to search.”); Tubes v. Dugger, 911 F.2d 508 (11th Cir.1990) (denying habeas corpus claim based on consent to search obtained after defendant had invoked right to counsel); Dunn v. Pliler, 2008 U.S. Dist. LEXIS 32633, at *35-*39, 2008 WL 1701904, at *13-*15 (N.D.Cal.2008) (consent to search was voluntary after defendant had invoked right to counsel); State v. Crannell, 170 Vt. 387, 750 A.2d 1002, 1009 (2000), overruled in part on other grounds by State v. Brillon, 2008 VT 35 ¶ 41, 183 Vt. 475, 497, 955 A.2d 1108, 1123 (“The federal courts of appeal agree that a defendant’s consent to search is not an incriminating response and therefore a request for consent is not “interrogation” subject to limitation by Edwards.”). In United States v. Harmon, for example, the defendant invoked her right to counsel, but then made statements about what was in her work area after an officer requested her consent to search the area. 2006 U.S. Dist. LEXIS 390, at *18, 2006 WL 42083, at *6 (D.Kan.2006). The court found that since a request to search does not amount to interrogation, the defendant voluntarily initiated the statements and they should not be suppressed. Id.

In the present case, when Appellant invoked his right to counsel, the NCIS agents properly terminated the interrogation. Thus, when the agents requested Appellant’s consent to search and provided him with a permissive search authorization, Appellant was not subject to interrogation in the form of “express questioning or its functional equivalent.” Innis, 446 U.S. at 300-01, 100 S.Ct. 1682. As this Court and every federal court of appeals that has considered the issue have found, a request for consent to search does not constitute an interrogation. A defendant’s consent to search is neither of a testimonial or communicative nature, nor an incriminating response, and therefore a request for consent is not “interrogation” subject to limitation by Edwards. Furthermore, a request for consent to search, even if ae-*308companied by a reminder on a form that the accused is under investigation, is not “for the purpose of eliciting from a suspect communications about the matter under investigation.” Bums, 33 M.J. at 320 (internal quotation marks and citation omitted). Therefore, even under the standard proposed by the majority, the request cannot be said to “open up a more generalized discussion relating directly or indirectly to the investigation.” Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2830.

Rather, in asking whether “the door was still open to discuss his side of the story,” Appellant himself initiated “further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. The military judge’s finding on this point, based on his assessment of the witnesses’ testimony, is not clearly erroneous. Further, as a matter of law, Appellant’s inquiry “evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship.” Bradshaw, 462 U.S. at 1045-46, 103 S.Ct. 2830. That the agents understood the question in this manner is apparent from the fact that they immediately reminded the accused that he had exercised his right to counsel, and did not continue questioning until the following day after Appellant had expressly waived his rights. See id. at 1046, 103 S.Ct. 2830.

Waiver

Absent an Edwards violation, the question becomes:

whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.

Id. (quoting Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880); see also M.R.E. 305(g)(1) (“The waiver must be made freely, knowingly, and intelligently.”). Such assessment is based on the totality of the circumstances, including: “the condition of the accused, his health, age, education, and intelligence; the character of the detention, including the conditions of the questioning and rights warning; and the manner of the interrogation, including the length of the interrogation and the use of force, threats, promises, or deceptions.” United States v. Ellis, 57 M.J. 375, 379 (C.A.A.F.2002).5

The record reflects that Appellant first invoked his right to counsel, immediately terminating the interrogation. Appellant spent seven days in confinement, and then reinitiat-ed conversation. The agents did not bait him into doing so with threats, promises, or inducements, but merely asked Appellant for a permissive search authorization. Appellant then had a further night to consider his waiver. The next day, Appellant received a cleansing warning and waived his rights.

Appellant does not contest that, after communicating with the agents during the search process on the evening of May 18, he was again orally advised of his right to counsel and that reinterrogation did not commence until the following day. He further does not contest that at that time and prior to questioning he received a cleansing warning orally and in writing. Ordinarily such circumstances are persuasive indication that a statement is voluntary. However, Appellant argues that the circumstances of his custodial detention in a combat zone should alter the analysis.

I would conclude that Appellant’s detention conditions and lack of access to counsel for seven days did not vitiate what was otherwise his knowing and voluntary waiver. This conclusion is based on three factors. First, civilian courts have consistently found that solitary confinement, which also creates an inherent incentive to seek release by making a statement, alone does not render a waiver of rights involuntary. Appellant has not cited contrary authority. Custodial detention in the “can” no doubt creates its own pressure and incentive to obtain release, but Appellant has not made the case that as a matter of law his detention should be treated *309differently for Edwards purposes than solitary confinement, where there is a subsequent knowing and voluntary waiver of rights. See, e.g., United States v. Webb, 311 Fed.Appx. 582, 584 (4th Cir.2009) (Webb initiated contact and knowingly and voluntarily waived his rights after being held in isolation for four days without access to counsel); United States v. Odeh {In re Terrorist Bombings of U.S. Embassies in E. Afr.), 552 F.3d 177, 214 (2d Cir.2008) (“Taking into account the totality of the circumstances, as we must, we cannot conclude that, because Al-’Owhali was detained incommunicado for fourteen days, the statements he made after waiving his Miranda rights were involuntary.”); Clark v. Solem, 693 F.2d 59, 61-62 (8th Cir.1982) (sixty days of solitary confinement did not render plea involuntary); United States v. Kiendra, 663 F.2d 349, 351 (1st Cir.1981) (Nineteen year-old’s solitary confinement for thirty days “cannot be presumed to have weakened his will to such an extent that he was incompetent to exercise his rights.”); Brown v. United States, 356 F.2d 230, 232 (10th Cir.1966) (placement in disciplinary segregation for several days did not render confession involuntary).

Second, while the combat context in the present case may have added to the pressure Appellant may have felt in isolation, Appellant was also aware the he was returning to the United States on an imminent basis — in fact, the same day that Appellant made the statement. In other words, Appellant was not facing the prospect of an unknown and indeterminate period of custodial detention in the “can,” the escape from which he might have concluded might only come from waiving his right to counsel and making a statement.

Finally, Appellant did not waive his rights immediately after reinitiating communication with the agents. Nor was he tricked, lured, or baited into doing so. Having opened the door to making a statement, Appellant was given the opportunity to reflect upon his decision overnight. This was not a snap decision or the product of a personality overborne.

Certainly, seven days in the “can” without access to counsel is anything but a model in light of Edwards. Generally, this Court expects “assignment of counsel for representational purposes at the earliest possible moment in the process of military justice.” United States v. Jackson, 5 M.J. 223, 226 (C.M.A.1978).6 But see Miranda, 384 U.S. at 474, 86 S.Ct. 1602 (“If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.”). At the same time, we are not charged in this case with determining best practice, but rather with determining whether Appellant’s constitutional rights as described by Edwards were violated. In the absence of a per se rule that a delay in providing counsel invalidates an otherwise knowing and voluntary waiver, I would conclude that Appellant’s rights were not violated. Appellant’s waiver occurred following his reinitiating communication. A substantial delay occurred before the subsequent interrogation, in which Appellant could contemplate and consider his options. And, a cleansing warning was provided in both oral and written form. Thus, for the purpose of Edwards and M.R.E. 305, Appellant’s statements were voluntary and the result of a knowing waiver under the totality of the circumstances. Therefore, I would hold that the military judge did not abuse his discretion in denying the motion to suppress the statement, and the statement was properly admitted into evidence.

UNLAWFUL COMMAND INFLUENCE

Background

The offenses at issue in this case received national and international press attention, as did the ensuing court-martial of Appellant. The United States Navy-Marine Corps *310Court of Criminal Appeals (CCA) summarized the facts of the offenses as follows:

The appellant was assigned as squad leader for 1st Squad, 2nd Platoon, Kilo Company, 3rd Battalion, 5th Marines, assigned to Task Force Chromite, conducting counterinsurgency operations in the Hamdaniyah area of Iraq in April 2006. In the evening hours of 25 April 2006, the appellant led a combat patrol to conduct a deliberate ambush aimed at interdicting insurgent emplacement of improvised explosive devices (IEDs). The court-martial received testimony from several members of the squad that indicated the intended ambush mission morphed into a conspiracy to deliberately capture and kill a high value individual (HVI), believed to be a leader of the insurgency. The witnesses gave varying testimony as to the depth of their understanding of alternative targets, such as family members of the HVI or another random military-aged Iraqi male.

Considerable effort and preparation went into the execution of this conspiracy. Tasks were accomplished by various Marines and their corpsman, including the theft of a shovel and AK-47 from an Iraqi dwelling to be used as props to manufacture a scene where it appeared that an armed insurgent was digging to emplace an IED. Some squad members advanced to the ambush site while others captured an unknown Iraqi man, bound and gagged him, and brought him to the would-be IED emplacement.

The stage set, the squad informed higher headquarters by radio that they had come upon an insurgent planting an IED and received approval to engage. The squad opened fire, mortally wounding the man. The appellant approached the victim and fired multiple rifle rounds into the man’s face at point blank range.

The scene was then manipulated to appear consistent with the insurgent/IE D story. The squad removed the bindings from the victim’s hands and feet and positioned the victim’s body with the shovel and AK-47 rifle they had stolen from local Iraqis. To simulate that the victim fired on the squad, the Marines fired the AK-47 rifle into the air and collected the discharged casings. When questioned about the action, the appellant, like other members of the squad, made false official statements, describing the situation as a legitimate ambush and a “good shoot.” The death was brought to the appellant’s battalion commander’s attention by a local sheikh and the ensuing investigation led to the case before us.

United States v. Hutchins, No. NMCCA 200800393, 2012 CCA LEXIS 93, at *4-*6, 2012 WL 933067, at *2 (N.-M.Ct.Crim.App. Mar. 20, 2012) (unpublished) (paragraph breaks added). As cited by Appellant, the events in Hamdaniyah were alternatively portrayed in the media as one of the most significant war crimes cases to emerge from the Iraq war, or as an unfortunate collateral consequence in the fog of war. The case drew the attention of members of Congress, who both publicly condemned what had occurred, as well as questioned in public and in correspondence directed to senior defense officials the prosecution of Appellant and other members of his squad.7 In 2007, Appellant was tried and convicted of conspiracy, making a false official statement, unpremeditated murder, and larceny, in violation of Articles 81, 107, 118, and 121, UCMJ, 10 U.S.C. §§ 881, 907, 918, 921 (2006).

In November 2009, while Appellant’s case was pending before the CCA on direct appeal, the Secretary of the Navy (SECNAV) issued a press release and gave interviews discussing the case.8 For example, of Appel*311lant and his squad, the Secretary of the Navy stated:

None of their actions lived up to the core values of the Marine Corps and the Navy_ This was not a “fog of war” case occurring in the heat of battle. This was carefully planned and executed, as was the cover-up. The plan was carried out exactly as it had been conceived.

Walker, supra note 7 (quoting statement of Secretary of the Navy Ray Mabus in telephone interview). The Secretary of the Navy noted that the sentence was “commensurate” with the offense, and that Appellant had already received sufficient clemency. The Secretary of the Navy also publicly expressed “surprise” that members of the squad had been permitted to remain on active duty. In addition, the Secretary announced his decision to direct their separation from the service.

As depicted in the following table, the Secretary of the Navy’s comments occurred nearly a year after the Navy Clemency and Parole Board (NC & PB) voted to recommend that Appellant’s sentence be reduced. After the Secretary of the Navy’s statements, the NC & PB then voted against additional clemency. Later, however, the CCA set aside the findings and sentence. The Principal Deputy Assistant Secretary for Manpower and Reserve Affairs also approved a recommendation reducing Appellant’s sentence by 251 days. Hutchins, 2012 CCA LEXIS 93, at *18 n. 6, 2012 WL 933067, at *7 n. 6.

Table 1: Timeline 9

3 Aug. 2007_Members adjudge sentence at General Courb-Martial_

15 Feb. 2008 Staff Judge Advocate’s Recommendation_

2 Apr. 2008_Addendum to Staff Judge Advocate’s Recommendation_

2 May. 2008_CA’s action granting clemency_

12 Jun. 2008 Record docketed at CCA for Article 66, UCMJ, review_

Feb. 2009_NC & PB votes to reduce sentence to five years_

17 Nov. 2009 SECNAV’s public comments about Appellant’s case_

Jan. 2010_NC & PB votes against clemency or parole_

22 Apr. 2010 CCA issues opinion setting aside findings and sentence_

7 Jun. 2010_JAG certifies case to CAAF_

14 Jun. 2010 Appellant released from confinement_

11 Jan. 2011_CAAF reverses the CCA decision and remanded to CCA_

17 Feb. 2011 CCA redocketed case for Article 66, UCMJ, review_

30 Mar. 2011 Principal Deputy Assistant Secretary approves clemency recommendation _reducing sentence by 251 days_

20 Mar. 2012 CCA issues opinion affirming the sentence

Appellant contends that the Secretary of the Navy’s comments to the media about his case constituted unlawful command influence, in light of their actual or apparent influence on his appellate review and clemency proceedings.

Discussion

In deciding this case based on the admission of Appellant’s statement, the majority avoids a systemically important question involving unlawful command influence. This is a mistake. First, the issue of unlawful command influence was litigated throughout these proceedings. It is a central aspect of the case. As a result, Appellant’s and the public’s confidence in the ultimate outcome in the handling of this case rests in part on how this issue is addressed, or not addressed.

*312Second, this Court has referred to unlawful command influence as “the mortal enemy of military justice.” United States v. Douglas, 68 M.J. 349, 355 (C.A.A.F.2010) (internal quotation marks and citation omitted). If that is the case, then the issue should warrant inquiry and consideration by the military justice system’s highest, and only, civilian court. Moreover, this case raises matters of first impression involving the scope of Article 37, UCMJ, as well as the nature of a service secretary’s clemency process. To what extent, if at all, does the prohibition against unlawful command influence bar policymakers from addressing matters of national and foreign policy importance where they also involve matters of military justice and executive clemency?

Framework of Review

The framework for addressing unlawful command influence before this Court reflects the seriousness with which the issue is considered by Congress, the President, the military, and this Court. First, the framework is intended to promote the adjudication of the facts rather than a reliance on concepts of deference and waiver. Thus, this Court reviews allegations of unlawful command influence de novo. United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F.2006); United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F.1999). Furthermore, “[w]e have never held that an issue of unlawful command influence arising during trial may be waived by a failure to object or call the matter to the trial judge’s attention.” United States v. Baldwin, 54 M.J. 308, 310 n. 2 (C.A.A.F.2001).

Second, while Appellant bears the initial burden of raising unlawful command influence, the threshold of persuasion is relatively low before the burden shifts back to the Government. United States v. Biagase,