The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed.

No

compensation can be paid for articles accepted and published.

The issuance of this publication approved by the Secretary of the Navy on 6 April 1961.

REAR ADMIRAL WILLIAM C. MOTT, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT D. POWERS, JR., USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER FRANK J. FLYNN, USN

Editor

For sale by the Superintendent of Documents U.S. Government Printing Ofice, Washington 25, D.C. (Monthly). Price 15 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing.

ASSISTANT JUDGE ADVOCATE GENERAL (International and Administrative Law)

CAPTAIN EDWARD T. KENNY, USN

On 27 November 1961 Captain Edward T. Kenny, U.S. Navy, assumed the position of the Assistant Judge Advocate General for International and Administrative Law. He brings to his office a background of varied assignments which have helped in preparation for this new responsibility. Captain Kenny's first duties in the

Judge Advocate General's Office as a Navy law specialist were in the International Law Division. Then, during the Korean hostilities, he was Pacific Fleet Legal Officer at a time when practical fleet problems involving international law demanded daily practical solutions.

A few years later, when the Joint Staff of the Commander-in-Chief, Pacific, became a separate Unified Command-and the world's largest-Captain Kenny headed up the first joint legal office, staffed by law specialists of the Army, Navy and Air Force.

Upon his assignment as the Staff Legal Officer, Commander U.S. Naval Activities Italy, Captain Kenny became involved in a change of problems-from those of SEATO to those of CENTO and NATO. In addition to the experience inherent in a Naval District-type operation in a foreign country, this duty entailed active participation in international relations problems with most of the European and Mediterranean sovereignties.

Captain Kenny has also served in Naval Districts stateside, in courts-martial trial and review, and in the Administrative Law Division of the Judge Advocate General's Office, more recently as the Director. He was also the Assistant Judge Advocate General for Personnel, Reserve and Planning.

During World War II Captain Kenny was a line officer in the Amphibious Force and participated in combat operations for three years in the Mediterranean and the Pacific areas.

He holds the A.B. and LL.B. degrees from Fordham University. A New Yorker, he engaged in private law practice in that city and was a special agent for the Federal Bureau of Investigation.

He is a member of the New York and District of Columbia bars and of numerous Federal bars including the Court of Military Appeals and the U.S. Supreme Court. (Continued on page 12)

T

HE LEGISLATIVE BACKGROUND of the Uniform Code of Military Justice makes clear beyond doubt the intent of the Congress to cast the law officer of a general court-martial in the image of a judge to all material intents and purposes. Professor E. M. Morgan, Chairman of the Secretary of Defense's Committee, whose efforts resulted in the passage of the Code, stated in response to Congressional Committee inquiry into the place of the law officer: "Well, the fundamental notion was that the law officer ought to be as near like a civilian judge as it was possible under the circumstances." 1 Similar expressions may be found throughout House and Senate hearings and reports on the Uniform Code of Military Justice.2 Repeated reference is made in these sources to the necessity for professional legal training on the part of the law officer: this requirement was adopted." The necessity for strengthening the law officer's power and position in order that he might be able to make independent decisions on legal issues free from possible influence by court members senior to or more influentially placed than he was emphasized time and again. can be no doubt of the nature of Congressional intent as to the function and authority of the law officer within the organization and operation of a court-martial. The position of the law officer under the Code with respect to a court-martial is closely analogous to that of the

There

'Captain Edmund J. Bodziak, U.S. Navy, is currently the Chairman of Board of Review Number One in the Office of the Judge Advocate General, where earlier he was Director of the Military Justice Division. Among his assignments have been District Legal Officer for the Eighth and Tenth Naval Districts. Captain Bodziak holds the A.B. degree from Temple University. He was awarded the LL.B. degree umma cum laude from Temple University Law School where he was an editor of the law review. Captain Bodziak is a member of the Pennsylvania Bar and of several Federal bars, including the Court of Military Appeals. He is a member of the Judge Advocates' Association, the Federal Bar Association and the American Bar Association.

1. Index and Legislative History, Uniform Code of Military Justice, Judge Advocate General, U.S. Navy, U.S. Government Printing Office, Washington: 1950 at p. 607. [House Hearings, Committee on Armed Services]

2. Index and Legislative History, Op. cit. supra, p. 1153 [House Hearings]; pp. 40, 57, 287, 295 [Senate Hearings]; p. 6 Senate Report.

3. Article 26, UCMJ; Title 10, USC Sec. 826.

4. Index and Legislative History, Op. cit. supra, pp. 671-3 [House Hearings].

judge in the criminal law administration of the civilian community. He is the final arbiter at the trial level as to questions of law, and the court's advisor and director in affairs having to do with legal rules or standards and their application.

Numerous articles have been published by the three services dealing with various aspects of the law officer's duties and responsibilities. And not a few have appeared in the JAG Journal. The purpose of this article is not to deal with any specific area of responsibility of the law officer but rather to point up and re-emphasize the "judge" concept of the law officer, which concept was conceived by Congress in enacting the Uniform Code of Military Justice and the unremitting and assiduous determination of the United States Court of Military Appeals to nurture and develop this concept at every opportunity.

The Code itself does not give us much assistance in our effort to define or present the "law officer" as an entity. Article I of the Code defines a "law officer" as an official of a general court-martial detailed in accordance with Article 26. The latter Article prescribes certain qualifications for a law officer and prescribes for his disqualification to act as a law officer under certain circumstances. Article 51 in broad terms requires the law officer to instruct the court on the elements of the offense and to charge the court as to the presumption of innocence, reasonable doubt, degree of guilt, and burden of proof. The Manual for CourtsMartial, 1951, more specifically attempts to outline the various duties and responsibilities of the law officer." Article 51 of the Code also provides that the law officer of a general courtmartial shall rule upon interlocutory questions, other than challenge, arising during the proceedings; and further, that any such ruling made by the law officer of a general court-martial upon any interlocutory question other than a motion for a finding of not guilty, or the question of accused's sanity, shall be final and shall constitute the ruling of the court. The area of authority would appear to be stated in very

5. U.S. v. Berry, 1 USCMA 235, 2 CMR 141.

6. JAG JOURNAL INDEX, 1947-1956, pp. 11, 13.

7. MCM, 1951, para. 39.

8. 10 USC Sec. 851.