Book Review - Pursuing Military Justice

• Author: Major Walter M. Hudson
• Pages: 09

2000] BOOK REVIEWS 281

PURSUING MILITARY JUSTICE1

REVIEWED BY MAJOR WALTER M. HUDSON2

1. Introduction

   As we celebrate the Fiftieth Anniversary of the Uniform Code of Military Justice (UCMJ), it makes sense to look at the court most responsible for its interpretation, the United States Court of Appeals for the Armed Forces (USCAAF or simply CAAF). Fortunately, the court now has the services of its own historian, Dr. Jonathan Lurie, who has provided a second volume of his history of the CAAF, Pursuing Military Justice. This second volume deals with the important and turbulent years, from 1951 to 1980, following the creation of the Uniform Code of Military Justice (UCMJ), and the formation of the court, originally known as the United States Court of Military Appeals (USCMA). Using Lurie's book to look back at this nearly thirty-year period may help all those involved with military justice better chart a course for the future of military justice.

   Moving into a new century of military justice, important questions and concerns exist before us. Is military justice still overly "military"? Should we not continue the steady civilianization of military justice that really began with the passage of the UCMJ and the creation of the USCMA in 1951? On the other hand, is the UCMJ and its interpretations by the court symptomatic of an already over-civilianized system? Is it just another example of the kind of the "corporatizing" of the military that occurred throughout the 1950s and early 1960s (epitomized by men such as Robert MacNamara), and that had such disastrous consequences in Southeast Asia? Is it a kind of elaborate bureaucracy, an ever-widening labyrinth of rules and procedures created by and only understood by lawyers, that further and further removes the commander from the soldier? Furthermore, what about the military courts, and especially the CAAF, the entity that inteprets, and to a large extent, decides what military justice is? What is its function and its place in the military, federal, and judicial com-

   munities? Since its status will to a large degree decide its influence over military justice, what should its status be?

   These are important questions that neither huge sums of money nor the most sophisticated technology can sufficiently answer. But after readers have finished Pursuing Military Justice, they will understand that these vexing questions have been raised and debated several times among various important figures and agencies in the UCMJ's and USCMA/CAAF's history. Professor Lurie, a scholar trained at Harvard and Wisconsin, guides us with the hand of an expert historian through the years 1951-1980, and lets us see some of these disputes as well as their causes.

   Lurie is a history professor, not a lawyer, much less one with military experience. This is not necessarily a disadvantage. Unlike many lawyers, whose writing tend to be polemical and judgmental (perhaps a pernicious influence of brief writing), Lurie stands back and, for the most part, lets the details of history do the talking. For Lurie, the history of the court consists not so much in pivotal public events, much less watershed cases, but more in telephone conversations, interoffice memoranda, and sometimes even lost paperwork. As one might expect, this is not history Macauley or Gibbon-style: this is not the Roman Empire, after all, but one specialized federal court.

2. Judges v. JAGs

   Lurie's history reveals a theme of conflict between the court and the armed services. The first period of conflict extended throughout the 1950s. As Lurie points out, the first conflict "burst open" in 1954-19553 and extended throughout the decade. The UCMJ, and to a lesser extent, the USCMA, was bitterly resisted. In 1956, the Chief of Naval Personnel, Vice Admiral J.L. Holloway, testified to Congress that the UCMJ "has not only hamstrung the commanding officer with administrative minutiae, but it has weakened his historical role . . . that of a wise, just fatherly mentor, quick to punish the sinners and equally quick to help a man redeem himself and start afresh."4 The following year, the outgoing Army Judge Advocate General, Major General Eugene Caffey, stated in an annual report that some sections of the UCMJ, "while burdensome in peacetime, could ser

   ously impair the effective administration of military justice in time of war."5

   The USCMA, as then conceived, also came under criticism. Caffey's successor, Major General George Hickman Jr., joined the chorus of complaint in a 1959 annual report. In the report Hickman noted "an increasing lack of confidence in the present system of military justice because of its growing complexity and difficulty of administration."6 Another report from that year attacked the three judge composition of the court, claiming the need for more stability and consistency, and proposed a five judge court instead, but with the two additional judges selected from military officers with at least fifteen consecutive years of judge advocate experience!7

   According to Lurie, by the mid-1960s, "doctrinaire opposition" to the existence of the Court and Code seemed to have been abandoned.8 When Senator Sam Ervin proposed legislation that would result in the Military Justice Act of 1968, the most comprehensive military justice legislation other than the UCMJ itself, the Army Judge Advocate General's (JAG) Corps, instead of total resistance and rejection, came up with a series of counter-proposals to Ervin's legislation.9 Perhaps as a result, the Military Justice Act of 1968 represented something of a compromise. While it firmly established the presence of the military judge, some of the more extreme "civilianizing" proposals, such as having the USCMA review administrative discharges and abolishing the summary court-martial, never materialized.10

   Yet, near the conclusion of the...