Instructing subordinates not to cooperate with investigations constitutes obstruction of justice under Article 134 and potentially violates Article 92 as dereliction of duty. The key elements include specific intent to impede investigation and actual instruction discouraging cooperation. Obstruction charges don’t require successful impediment – the attempt suffices. Superior-subordinate relationships aggravate obstruction through inherent coercion when seniors discourage cooperation. Article 37 unlawful command influence charges may also apply.
Prosecution must distinguish lawful advice about rights from unlawful obstruction. Informing subordinates about Article 31(b) rights or suggesting counsel consultation remains protected. However, directing subordinates to lie, conceal evidence, or refuse lawful orders to cooperate crosses into obstruction. Group instructions at formations or through policy directives create particularly strong evidence of systematic obstruction. Written communications often provide smoking gun evidence.
Defenses focus on interpretation of instructions as lawful rights advisement versus obstruction. Context matters significantly – general reminders about rights differ from targeted instructions following specific incidents. First Amendment arguments about discussing investigations face limits when instructions aim to impede justice. Sentences reflect abuse of military authority to obstruct investigations. Pattern obstruction through subordinate manipulation demonstrates unfitness for military leadership. Commands must balance legitimate rights advisement against creating climates discouraging cooperation with lawful investigations.