of experience and knowledge, or (b) lack of a vigorous defense attitude; the sentences originally imposed were frequently excessively severe and sometimes fantastically so; there was some discriminations between officers and enlisted men, both as to the bringing of charges and as to convictions and sentences; and investigations, before referring cases to trial, were frequently inefficient or inadequate.

Most of the stories of unfairness, arbitrariness, misuse of authority, and inadequate protection of rights could be boiled down to the criticism that commanders exercised too much control over court-martial procedures from prosecution through review. It was clear that the central issue in court-martial reform was the commander's role in the court-martial.

The military was opposed to any plan which would limit the individual commander's control over the operation of the courts-martial. Secretary of War Patterson had previously expressed the traditional argument that the military could not operate efficiently if commanders could not control the courts-martial:

Many of the critics overlook the place of military justice in the army or the navy. An army is organized to win victory in war and the organization must be one that will bring success in combat. That means singleness of command and the responsibility of the field commander for everything that goes on in the field.

With unification of the Armed Forces came a uniform code. The Uniform Code of Military Justice, 1951, left the commander essentially in control of the court-martial machinery.

EVENTS LEADING TO PASSAGE OF 1968 MILITARY JUSTICE ACT: 1950-1968

Strength of the Armed Forces during this period varied from a low of 1.46 million men in 1950 to a high of 3.55 million in 1968. Selective Service Act Violations totalled 449 in 1950 and shot up to a total of 1,192 for 1968.

The Korean War was inconclusive as far as the new code of 1951 was concerned. The testing period was too short. Throughout the relatively peaceful late 1950's and early 1960's, there was little public interest in the reform of military law. This middle period was, for the most part, a period of reduced conscription. The strength of the Army dropped from 1.55 million men in 1955 to .87 million in 1960. Defendants in Selective Service Act Violations dropped from 719 to 239 for those same years.

The Supreme Court cut back the jurisdiction of military courts by holding that former servicemen could not be returned to the military for crimes committed during prior military service. In subsequent decisions, the Court also removed jurisdiction over military dependents and Department of the Army Civilians serving overseas from military courts.

Cold War tensions continued. Berlin, Cuba, the Congo and Vietnam. all contributed their share to underscore the need for a strong military establishment. Larger and larger nuclear weapons introduced a frustration into daily living difficult to access. The failure of the adult segment of society to provide a more peaceful and meaningful existence for mankind played a major role in alienating the young people everywhere.

Mass communications made Americans the best informed people in history and, perhaps, the most despairing. Cries for freedom clashed with cries for law and order as 1968 approached.

The American Legion had proposed a bill which addressed itself particularly to the problem of command influence. It proposed, among other things, that lawyers be placed under the rating authority and command of The Judge Advocate General rather than under the commander. The net result was that the Act of 1968 forbade the commander to consider performance as a member of a court-martial or defense counsel in the preparation of efficiency reports or in recommendations for assignment. The Act also provided that the prohibition against attempting to influence the action of a court-martial would not apply to general instructional or information courses in military justice.

CONCLUSIONS

Do away with war and the threat of war and you can do away with military law and military justice. Due to the prolonged periods of violence in our history, the military has been regarded as a last line of defense for individual safety and protection both at home and abroad. The frequency with which the Army and the National Guard have been called upon to assist the civil authority in quelling riots and preventing anarchy have furnished spokesmen for the military with persuasive arguments on the necessity of maintaining well-disciplined forces. Discipline without authority is an empty shell. How to balance the need for this authority against the need to protect individual civil rights will continue to challenge every thoughtful citizen.

DISCUSSION PROBLEMS CHAPTER 1

1. In 1863 military commanders were given jurisdiction over common law civilian type crimes, such as larceny, murder, rape, and assault and battery, provided that they try such crimes only "in time of war, insurrection or rebellion." Why, based on your previous studies of military history and American history, would you think it was necessary to give commanders this power?

2. Based on your analysis of chapter 1, how did military justice as we know it today, arrive at that point? Was it the result of forward thinking, creative analysis on the part of law makers; did military justice evolve after the fact to fulfill a need of command; did it merely

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mirror changes in civilian law? In each case, state your reasoning for your answer.

3. You have just read a historical introduction to military law. What is your impression of military law based on your experience or knowledge? What is wrong with it? What can be done to improve it?

CHAPTER 2

PHILOSOPHY AND STRUCTURE OF THE
MILITARY JUSTICE SYSTEM

GENERAL CONSIDERATIONS

The Place of Law in Society-Society has an interest in preventing certain undesirable conduct. Human misconduct can, of course, vary anywhere from the nearly socially acceptable to the totally socially unacceptable. These gradations of misconduct historically have elicited graduated responses from society, based on how close to being totally socially unacceptable the conduct is. For example, if a man is habitually intoxicated, he might be "punished" by exclusion from his social group. If he damages property while drunk, he is likely also to be required to restore the injured party to his original state, as far as possible. And, if his misconduct is such as to constitute a real danger to the members of his social group, he may become subject to criminal prosecution.

A crime, then, is an act which violates a law passed by a society (through its legislature). Under Anglo-American legal tenets, a legislature is empowered so to regulate private conduct only when it is fully demonstrated that there is a "compelling reason" to do so. When deciding if such a "compelling reason" exists, a legislature balances the personal right to individual freedom-exemplified in the United States by the specific freedoms enumerated in the Constitution's Bill of Rights against the societal need for preservation of order and protection of its members.

After the passage of a law, a society's judicial system comes into play. Its purpose is first to ascertain if the legislature was empowered to enact a particular law-that is, if a "compelling reason" for that law in fact exists. In the United States this is known as determining a law's constitutionality. Second, the judicial system determines if in a specific case an accused person has violated the law. In making this latter determination the courts also ascertain that there has been no infringement of the constitutional rights of the person accused of the crime.

The Place of Law in American Military Society-The same concept of balancing personal and societal considerations governs in applying the law within a military society. The societal considerations in the military system, however, are somewhat different, given the unique purpose of the military force: to protect society from external

threats and domestic violence. In order properly to succeed in this mission, history has shown that some degree of discipline and sacrifice-which necessarily carries with it some loss of individual freedom-is required of military personnel. This fact comes into play when balancing to determine if there is a "compelling reason" to impinge on the rights of individual persons in the military. The courts of the United States have recognized this limitation. For example, in the 1954 Supreme Court case of Burns v. Wilson, 346 U.S. 137, Mr. Justice Vinson said that "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty."

While a serviceman's right to individual freedom might be more limited in some areas than that of civilians, this in no way means that he will be summarily denied this right. Centuries ago in England it was recognized that armies were composed not of professional fighters, but of average citizens:

No man should take up arms, but with a view to defend his country and its laws; he puts not off the citizen, when he enters the camp. Blackstone's Commentaries on the Law 173 (gavit ed 1941).

Similarly, American military courts have recognized that citizens do not lose constitutional rights by entering the military. In the case of United States v. Tempia, 37 CMR 249, 16 USCMA 629 (1967), for example, Judge Ferguson of the Court of Military Appeals said, "The time is long since past... when this court will lend an attentive ear to the argument that members of the armed services are, by reason of their status, ipso facto deprived of all protections of the Bill of Rights." It is clear, then, that the serviceman is indeed a "citizen-soldier," and that his specific freedoms are modified only to that degree made necessary by his status as a soldier. This idea is recognized as well by the executive branch of the government. As he signed the Military Justice Act of 1968, President Lyndon B. Johnson said, "The man who dons the uniform of his country today does not discard his right to fair treatment under law." More recently, President Richard M. Nixon, in a commencement address at the Air Force Academy, said, "I believe that every man in uniform is a citizen first and a serviceman second, and that we must resist any attempt to isolate or separate the defenders from the defended."

TODAY'S MILITARY JUDICIAL SYSTEM

Sources of Military Law-The system of military law in the United States exists separate and distinct from the systems of state law and federal law. The Supreme Court, in the case of Burns v. Wilson, supra, recognized this fact:

Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs our federal juridical estabment.