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scribe maximum punishments for crimes. Commanders would continue to review court-martial convictions and sentences, but could not review sentences upwards or return an acquittal to the court for reconsideration. The reviewing authority (the commander) would have to refer the records of general courts-martial to his staff judge advocate for review prior to taking final action, but he would not be bound to accept the judge advocate's advice.

Thus, the authority of the commander was left intact. This event is significant as there would be no further revisions of the code until after World War II.

UNIFICATION OF THE ARMED FORCES: 1920-1950

World War II was to change American military law and touch the lives of everyone in or out of uniform.

Over 16.1 million men served in the US Armed Forces during World War II and some of them came home with complaints concerning military justice. Undue severity of sentences and unfairness and arbitrariness in the military constituted the gist of their gripes. As a result, on March 18, 1946, the Secretary of War appointed the Board on OfficerEnlisted Men's Relationships, headed by General James Doolittle, to investigate these charges. This board recommended a "review of the machinery for administering military justice. . . ." Later in 1946, the Vanderbilt committee announced its particular findings:

the command frequently dominated the courts in the rendition of their judgment; defense counsel were often ineffective because of (a) lack 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 courtmartial.

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 assess. 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.

THE SUPREME COURT AND MILITARY LAW

In 1969, at about the same time the Military Justice Act of 1968 was to become effective, the United States Supreme Court decided O'Callahan v. Parker, 395 U.S. 258 (1969) limiting the scope of military courtmartial jurisdiction. In O'Callahan the Court held that a serviceman could not be tried by court-martial unless the offenses for which he was charged were service-connected. The effect of this decision was to change significantly the law in the military as it related to the exercise of military jurisdiction over offenses committed off-post.

The Court's ruling in O'Callahan was consistent with the trend of Supreme Court decisions which had limited the scope of the exercise of military jurisdiction. The trend of those decisions reflected the court's disenchantment with Article I courts as they then existed in the military. Justice Black, writing in 1955 in Toth v. Quarles, 350 US 11, 17 (1955), has best expressed the Court's attitude toward military justice prior to the Military Justice Act of 1968. In the Toth decision Justice Black stated:

We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.

Justice Black also stated that:

There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article 3 of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. Even as late as the Seventeenth Century standing armies and courts-martial were not established institutions in England . . . .

Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to "the least possible power adequate to the end proposed."

It is this attitude that has caused the Court to restrict "military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among the troops in active service" (Toth v. Quarles, 350 U.S. 11, 22 (1955)). The continued significance and validity of Justice Black's criticism should be considered and evaluated as the remaining materials are read and discussed.

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 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

THE PLACE OF LAW IN SOCIETY

Society has an interest in maintaining order and in discouraging undesirable conduct. Humans make up society and their misconduct can vary from the nearly socially acceptable to the totally socially unacceptable. These gradations of misconduct historically have elicited graduated responses from society; the seriousness of the response dependent upon the unacceptableness of the misconduct. 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, by either repairing the damage or by the payment of money damages. And, if his misconduct is such as to constitute a real danger to the members of his social group, he may become the subject of criminal prosecution.

If a person is criminally prosecuted by society, there must be some reason to believe that he has committed a crime; a crime being an act which is a violation of a public law. In Anglo-American society, it is the legislature which is empowered to define crimes and to regulate private conduct. However, the legislature can exercise its power to prescribe rules for society only after it is able to demonstrate that there is a compelling reason for the legislation proposed. In deciding if a compelling reason exists, the legislature must balance the personal freedoms guaranteed to citizens in the Bill of Rights against the need for the preservation of order in society and the protection of the persons who make up the society.

Once the legislature has passed a law, it is the function of judiciary to interpret and resolve disputes arising under the law. In reviewing a public law, around which a case or controversy has arisen, the judiciary should determine whether the legislature was empowered to enact the particular statute. In order to find that the statute is constitutional and enforceable, the judiciary must be satisfied that the legislature had a compelling reason for enacting the public law. After determining the constitutionality of the statute, the judiciary should ensure that the accused has been accorded his constitutional protections. The judiciary then must resolve whether the government has proven beyond a reasonable doubt that the person brought before the court violated the law.

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