A service member facing court-martial often works closely with detailed or retained defense counsel, mapping out theories of the case, deciding which witnesses to call, and weighing whether to testify. Because the military operates within a chain of command, an accused may worry that a commander could demand to know what was discussed or otherwise peer into the defense’s planning. The clear answer is no. Confidential discussions about trial strategy between an accused and defense counsel are protected by the lawyer-client privilege under the Military Rules of Evidence, and a commander has no authority to review them. Any attempt by command to intrude on those communications raises serious legal problems, including unlawful command influence.
The privilege that protects strategy discussions
Military Rule of Evidence (MRE) 502 establishes the lawyer-client privilege in the military justice system. The privilege protects confidential communications made for the purpose of obtaining or providing legal advice between a client and the client’s lawyer, including the lawyer’s representatives. Discussions of trial strategy sit at the heart of what the privilege exists to protect, because effective representation depends on the client being able to speak candidly and on counsel being able to plan without fear that the planning will be exposed to the opposing side or to the command. The client holds the privilege, which means the protection belongs to the accused and is not the command’s to waive.
A related professional obligation reinforces the privilege. Defense counsel, like other attorneys, are bound by duties of confidentiality modeled on the rules of professional conduct, and counsel generally may not reveal information relating to the representation without the client’s informed consent. So even apart from the evidentiary privilege, the defense attorney is ethically forbidden from disclosing strategy to a commander absent the client’s consent or a recognized exception.
A commander has no review authority over the defense
Nothing in the military justice system gives a commander a right to sit in on, demand transcripts of, or otherwise review confidential attorney-client strategy sessions. The defense function is structurally independent for exactly this reason. Defense counsel represent the accused, not the command, and their loyalty and confidentiality run to the client. A commander who attempted to compel disclosure of privileged strategy, or who tried to monitor defense communications, would be acting outside any lawful authority and would be interfering with the accused’s right to counsel and to a fair trial.
Unlawful command influence
The military has a specific doctrine aimed at preventing command interference with the justice process. Unlawful command influence concerns improper attempts by those in authority to affect the outcome or fairness of a court-martial. Efforts to access or interfere with the defense’s privileged communications fall squarely within the kinds of conduct this doctrine forbids, because they strike at the independence of the defense and the integrity of the adversarial process. When the government breaches the attorney-client relationship between an accused and defense counsel, the intrusion can warrant reversal of a conviction if it affected counsel’s performance or resulted in disclosure of privileged information. That potential remedy underscores how seriously the system treats command intrusion into the defense camp.
How the privilege can be lost or limited
The privilege is robust, but it is not unconditional, and understanding its limits helps an accused protect it. Confidentiality is the foundation. If a strategy discussion takes place in the presence of a third person who is not part of the legal team, the privilege may be waived as to that communication. A friend, a family member who is not assisting the representation, or a roommate sitting in on a planning session can defeat confidentiality. Service members should be careful about where and with whom they discuss their case, because the protection depends on keeping the communication private to the lawyer-client relationship.
There is also a narrow crime-fraud exception. The privilege does not protect communications made to enable or aid the future commission of a crime or fraud. Ordinary trial strategy, deciding how to cross-examine a witness or whether to present a particular defense, has nothing to do with this exception. The exception targets the misuse of legal services to further wrongdoing, not the legitimate planning of a defense.
What an accused should and should not do
Because the privilege belongs to the accused, the accused controls it and can inadvertently undermine it. Several practical habits preserve the protection. Discuss strategy only with counsel and members of the defense team. Avoid repeating the substance of attorney-client conversations to others in the unit, in writing, by text, or over monitored systems. Be cautious with electronic communications that may not be private. And if a commander, investigator, or anyone in the chain asks about what the defense is planning, decline to discuss it and notify defense counsel immediately.
If command does attempt to obtain or interfere with privileged strategy, counsel can raise the issue with the military judge. Remedies for government intrusion into the attorney-client relationship can be significant, and documenting any such attempt promptly is important so that the defense can seek appropriate relief.
Conclusion
Commanders are not permitted to review trial strategy discussions between defense counsel and the accused. Those communications are protected by the lawyer-client privilege under MRE 502, reinforced by counsel’s ethical duty of confidentiality, and any command attempt to access or interfere with them implicates unlawful command influence and can lead to reversal of a conviction. The privilege does have boundaries, most notably the need to keep communications confidential and the narrow crime-fraud exception, but it fully shields legitimate trial planning. A service member protects this safeguard by confining strategy discussions to the defense team, guarding against inadvertent disclosure, and alerting counsel at once if anyone in the command tries to intrude.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.