Much of the histay of military jvgtice in the last two &cedes has been wvitten in the decisions of the United States Court of Militery Appeals. The author ezamims the creation and early gem8 of "the Supreme Court of the Militaq." Particular eonsideretion is given to the Court's efforts to define its vowem of review throuoh such ahif& t e r n as ''nzil$t&y due pGoceas," "hnrml&s emov," and "general pveludzce.'
Over 16,000,000 men and women served in the armed forces of the United States during the Second World War.' Upon their return home from the war the American public demanded the reform of military justice after hearing numerous stories, factual and fictitious, about injustices committed by Americans on other Americans in the name of military necessity, good order, and discipline." Over 2,000,000 courts-martial were convened during the war '--me court-martial for every eight servicemen. By the end of the war one hundred and forty-one persons had been
*The opinions and eoneluaiona preiented herein are those of the author and do not neeeasarilv remelent the views of The J u d e Advocate General's Sehmi or any governmental ageney.
**JAGC, U.S. Army; U.S. Army Judiciary. A.B., 1868, Bvckneli University; J.D., 1811, Hsrvard taw Sehwl.
ABS-CT OP TBE UNITED STATIS,
US Dep't. of Commerce, table No. 885, at 256 (1810) [hereinafter cited 8s STARSRCAL ABsnucTl.
' For P eolleotion of newlipaper editorial8 refleeting the demand for the reform of military justice see Hiamnia 0% H.R. 3575 Befove the Suboamm. of the House Camm. ott Military Affai7s. 80th Cong., lit Seas., at 21662115
'This statistic represents an addition of available Army and Navy data for the period 1942 through 1846. A m y flares were taken from the Report to Hon. Wilbur M. Brueker, Secretary of the Army, by the Committee on the Uniform Code of Military Justice, Gmd Order and Discipline in the ' Army, 251 (Jan. 18, 1860) [hereinafter cited a~ P O W ~ L
REFORT]. Naw fi%ures were taken from information Drovided by Coi. John E. Curry. USMC. fir Felix E. Larkin, Aes't, General &umel, Sic, of Defense, Oet.~ll, 1848, in Ill Papers of Professor Morgan on the Uniform Code of Military Juatiee, an file in Treasury Room. Harvsrd Lap Sehooi Libraw rhereinaftei cited
88 MOWAN P*P&s]. The foilsving table haa been cimiiled from thew U)YIcel.
executed pursuant to courts-martial sentences.' Over 45,000 sew. icemen were imprisuried under sentences adjudged bv caurts- ~.
Courta-Ma7tlal 1942 184s 1944 1045 Tot& NAVY~~.
Generei 4,262 8,388 19,562 21,500 53,712 Summary 25,725 69,526 93,700 70,337 259,286 Deck 29,947 75,429 118,742 90,971 310,089 Totals 69,932 153,3411 227.w( 182,808 623,087
General 3,725 14,782 22,815 25,671 66,993 Special 38,418 117,697 204,123 175,661 535,820 Summary 65,919 190,670 292,172 279,146 627,907 Totals 108,994 323,149 519.110 480.408
167,994 476,(92 T46,11p 683,118 2.053,816Even the% R g u r e s d o t i n d r t h e G K G m s p n i t m eourtl-mariial Brieing out of World War 11. The above data does not inelude Nary figures for the last three months of 1945 and many miicemen were trxd ~n later yeam for offenses committed during ths hontllities. The mat-war eoure martid statiit~es af the Army indieatea the eontmwng effects of World War I1 and Provides one rea~on why the issue of milirsw juncee was kept befare the American public.
1948 1947 1848 Totola
General 36,977 9,977 9,561 55,615 Special 50,402 44,130 36,971 131,505 Sumsry 101,625 97,104 81,794 280523 Totals 188,004 151 211 128,326 467.541
It ahauld be noted that some comment; on World Way I1 courts-martla1 may only refer to the 120.705 general eourte-martial BQ ody those courta could impee P sentence greater than six months' confmement. â‚¬01 comment on the magnitude of eourte.martial in eomparmn wth eivilmn mimind trials, bee Karlen and Peppr, The Scope ot Wilibnd Jmtice. 43 J. CRIM. L.C. dr P.S. 3 (1952). For an BnaIysis and understandmg of the mditary ~ ~ ~ ~ ~ ~ ~ ~ ~
Naval O l a n d ~ s , Ww and Poat-Ww 38 J. &IM. L.C.'a P.S. 342 (1947). MaoCarmiek and Evjen, Slatbiicai Siudy o i E4,GoG .?4iiibw Pnamra, â‚¬Ed
P!QBATION, Apr.-Jun. 1946 at 6.
95 COXC. ReC. 6724 i1949) (remarks of Congressman Vmmn). The number of exeoutions admini8tered by the mhtary is uswily elted BQ over 100. However, newspaper aeeounte in Aprd 1946 indicate that B repart of P liubeommittee on the National War Effort of the novae Mzlitary Affairs Committee, intended for sole Ye* of the full committee, was leaked t~ the press and revealed 142 exeeutiona we~ecarried out by the miilrary durlngWorld War I1 mqm note 2. STATI~TICAL ABBTRICI. table no. 238, st 158 dileioaes that i48 execvtiana were camied out by th; military between 194; and 1950. One hundred and six were hanged for murder: the rest executed for rape except for the desertion of Plivate Eddle D. Slovik. For a dealled Bemunt of the first execution for desertion since 1864 and an insight into the background of Eddie Slovik, nee W.
OF PRIVATE Srnvlv
(1954). See oleo Wiener Lament io? a Situiker 4 COMBAT
â‚¬ORCES J. 33 (1954). Ail the executi0.s were by the Army. Th; Naiy has not exmuted man PYrlUant to a eourtmartiai sentence ljlnce the hanging of 18-year-old Midshipmen Philip Spencer and two eompsnions for m alieged mntiny aboard the WSS Somera in 1842. E. BYRm MILITARY bw,
A A*h-oaoou FORTm
NAW A m
MARINE Cows, 1P1T (19Td),
martial a8 the Second World War ended., The conviction rate was close to 91% in Army courts-martial.' The statistics, while striking in themselves, only convey part of the meaning of "drumhead justice."' In 1946, hearings were held by the War Department Advisory Committee on Military Justice in eleven major cities revealing that the complaints about military justice centered on the abuses of command control and excessive courts-martial sentences.l Although the Committee found that the innocent were rarely convicted, a significant number of commanding officers were found to have 80 influenced the court-martial proceeding that the capacity for a fair and impartial trial was lost.' Regarding the sentencing practices of courts-martial the Vanderbilt Committee reported: "In fact, some sentences border on the fantastic. A 75 year sentence is not unknown, and 60 or 25 year sentences for infractions of discipline are not unknown," The wartime experiences of the former Governor of Vermont, Ernest W. Gibson, provide a glimpse into the operation of the military justice system of World War 11:
[W]e were advised, not once but many times an the Courts that I sat on, that if we adjudged a person guilty we should inflict the maximum sentence and leave It to the Commanding General to make any reduction. . . . I was dismissed 86 a. Law Offlcer and Member of a General Court-Martial bmause our General Court scqvitted a colored man an a morals charge when the Commanding General ranted him convicted-yet the evidence didn't warrant it. I wm called dawn and told that If I didn't emviet in B greater number of casea I would be marked down
'This figure is the moat often cited by commentatom on military justice. However, it too is misleading. The White Report, m p m note 3, at 2, Itate6 that 15.000 naval personnel were I" eanhnement on January 1, 1946. Moo. Connick and Evjen, mpa note 3, at 7, ehow 34,168 men confined as the remit of A m y general muitS-m&rtid in October 1945. In addition of these two figures yields approximately 49,OOW aemieemen in confinement at the end of the war ezcluding those Army persannel confined pwiuant to the far more n~mero~aspecial and snmmary coum.ma~tiQi* POWELL REPORT at 251.'Keefe, Dmmhsod Juatios: O w Mditary Courta, R~aoms' DICEST, Aug. 1951, at 57. Rasenbiatt, Juetioe on a Dwmhed, 162 NATION 501 (1946).
'Report of War Dep't Advisory Camm. on Military Justice to the Secretary af War (1946) [hereinafter cited as VANDERBILT
COMM. REPORTI, Secretaryof War Patterson appointed this committee, composed of member8 of the American Bar Asnoelation, on March 25, 1946. After extensive hearings Ita 2618 page report wa8 riubmitted om December 13, 1846. For comment on the work of the Vanderbilt Committee see 33 A.B.LI. 40 (1941); Hoitzoff, Adm%n-istration a/ Juaticr in the US
Army, Pmpoasd bv the We7 Department, 33 VIR. L. RN. 269 (1941) ; Wailstein, The Revinon a/ lhc Amy Cowt-Mcrtiol Sptsm, 48 COLCM. L. REV, 219 (1948).
VnJoERslLT COMM. REPORT at RI.
"Id., at 3.
in my Efleieney Rating; and I aquared right ofl and asid that wasn't my eoneeption of iustiee and that they had better remove me, rhieh was done forthwith."
The American experiences of the First World War had produced similar outcry and outrage about military justice but Congress enacted little reform.'* However, the post World War I1 Congress was eventually moved to unprecedented reform by the pressure generated by the American public. Congressman Rivers noted:
[Elvery Member of this House, during the yeam has been deluged with complaints of svtoeraey in the handling of these eOUTtS-martisl throughout the Anned Forcer. Everybody has had cornl plaints and they were just complsmtn."
The feelings of many Congressmen were expressed by Senator Wayne Morse:
I do not like this idea ~n this new ers in which xve are living of building up m e juetiee Bystem here for men in uniform and another me for eo-called free citizens You cannot keep B civilian.
The court-martial system of the Second World War was strikingly similar to the rules and regulations which governed the conduct of the Colonial Army. Early American military justice was not, surprisingly, adopted from the British Articles of War and the British Naval Articles." With minor revision the Continental Congress adopted the British Articles of War on June
"Letter from Ernest W. Gibaan to Edmvnd hl Morgan. Nov. 18, 1948, IV MORCAF PAPERS.
See generally Hearings on S. SSEO Beiore the Sennie Camn. on Military Affairs, 61th Cong., 3d...