Introduction: Fiftieth Anniversary of the Uniform Code of Military Justice Symposium Edition

• Author: Brigadier General (retired) John S. Cooke
• Pages: 02

MILITARY LAW REVIEW

Volume 165 Symposium Issue September 2000

INTRODUCTION:

FIFTIETH ANNIVERSARY OF THE UNIFORM CODE OF MILITARY JUSTICE SYMPOSIUM EDITION

BRIGADIER GENERAL (RETIRED) JOHN S. COOKE1

This introductory article to the symposium issue of the Military Law Review, which celebrates the Fiftieth Anniversary of the Uniform Code of Military Justice, discusses the history of military justice, why we have the Uniform Code of Military Justice (UCMJ), and how the UCMJ has developed. Finally, this article discusses some of the issues and challenges ahead.

It is appropriate and important to commemorate the enactment of the Uniform Code of Military Justice, the most important development in military justice since our country's founding. The UCMJ's Fiftieth Anniversary should serve as an occasion to remind ourselves of the essential

contribution the Code has made to military justice, and the value of military justice to the effectiveness of our armed forces. It should be a time to consider how and why the system has developed as it has and, for judge advocates, military justice's central place in their mission.

Military justice is judge advocates' historical reason for beingit is why William Tudor was appointed the first Judge Advocate on 29 July 1775, and from Tudor to Major General Walter B. Huffman it has been judge advocates' core mission. For most of the time it is been the predominant mission and, even today, with so many other missions and tasks for judge advocates, none is more important than military justice. That is because military justice is vital to morale and discipline in the armed forces and to public confidence in the armed forces. These are essential to winning in war and to success in any mission-that is not going to change.

As we look at the Code and the military justice system, it is worth remembering the important role judge advocates have played in their evolution. While Congress, the President, civilians in the executive branch, and others have played pivotal roles, judge advocates can be proud of the role they have played in the development of the military justice system. Judge advocates have sometimes been the identifiers and initiators of needed change. At other times they have resisted suggested changes. More often they have refined and revised proposed changes and made them more workable. But always, they have been the implementers of change, whatever the source, and the faithful stewards of the system prescribed by the people's representatives. With rare exceptions, they have served that role with distinction.

1. Before the Uniform Code of Military Justice

   To understand the UCMJ and why we have it, one must understand what preceded it. The Code both built upon and broke with the past. What was retained, and why? What was discarded, and why? A brief look at the longer history of military justice is needed.

   The 225-year history of military justice can be divided into two parts, which are defined by the operation under the Articles of War and the UCMJ. The Army operated under the Articles of War for the first 175-plus years, from 30 June 1775, when they were adopted by the Second Continental Congress, until 31 May 1951, when the UCMJ went into effect. The Navy, during this period, operated under the Articles for the

   Government of the Navy.2 For the last fifty years the military justice system in all the armed services has operated under the UCMJ.

   Under the Articles of War military justice was a command-dominated system. The system was designed to secure obedience to the commander, and to serve the commander's will. Courts-martial were not viewed as independent, but as tools to serve the commander.3 They did a form of justice, but it was a different justice than that afforded in civilian criminal trials. Military justice had few of the procedures and protections of civilian criminal justice, and protecting the rights of the individual was not a primary purpose of the system.4

   The original Articles of War were directly derived from the British Articles of War.5 Over their 175-year history, the American Articles of War changed relatively little. For most of that time, up until World War I, little impetus for change existed. In the nineteenth century, military justice exalted deterrence and punishment and relied heavily on the honor and character of the commander for justice. Unfortunately for many soldiers, the quality of their leaders varied widely. Well into the Nineteenth Century, officers frequently obtained their positions through patronage rather than martial or leadership skills,6 and throughout the Nineteenth Century, enlisted soldiers were drawn from the poor, uneducated, and newly immigrated.7 Punishment, or the threat of it, was seen as the only way to motivate such men.8 Except for the Civil War, during the nineteenth century

   the Army and Navy were tiny.9 Operating on the frontiers and the high seas as they did, they were out of sight and mind as far as the American public was concerned. Few questioned, or even cared about, the military justice system.

   In the late Nineteenth Century, a few efforts to reform the military justice system arose. Some changes in procedure, such as allowing an accused to have counsel present in the court-martial (and, later, allowing counsel to speak!) developed in the late nineteenth century.10

   For the most part, however, reformers sought not so much to change the system as to establish military justice as a system of jurisprudence. The aim was to codify and explain existing practice, rather than to create new procedures. Modest though this goal may seem, it would eventually have the effect of standardizing of procedures and defining limits (albeit very broad ones) to commander's powers, and of providing a more solid platform for Twentieth Century reforms. William Winthrop's epic, Military Law and Precedents, in 1886 was the leading example of such efforts; Winthrop's treatise remains today a treasure of history and Nineteenth Century practice. The precursors to the Manual for Courts-Martial also appeared during this period.11

   World War I generated greater interest in changing the system. In 1917, thirteen black soldiers were hanged for mutiny in a mass execution conducted one day after their trial ended. The case drew national attention, and in January 1918 the Army established the first system of appellate review in the military. Henceforth, capital and certain other sentences and

   could not be executed until after review in the Office of the Judge Advocate General.12

   The War brought other pressures on the military justice system. The modern Selective Service System was adopted.13 This system eliminated many of the inefficiencies and inequities of the Civil War draft and ensured that the large force assembled for the war would more closely resemble a cross-section of America.14 Because a broader cross-section of America was subject to military justice led to more criticism of it.

   The most important critic was Brigadier General Samuel T. Ansell, Acting The Judge Advocate General. Ansell called for a number of reforms, including expanded appellate review and procedures more closely paralleling those in civilian criminal trials. Unfortunately for Ansell, his boss, Major General Enoch Crowder, The Judge Advocate General (but detailed as Provost Marshal General during the war), opposed most of Ansell's suggestions.15 Given Crowder's opposition, and that of others,16 Ansell made little headway. With the United States' rapid demo-bilization and retreat into isolationism after the war, interest in reforming military justice subsided.

   World War II rekindled such interest. Over sixteen million men and women served in the armed forces during World War II-nearly one in eight Americans. There were over two million courts-martial.17 Many people, from all walks of life, were exposed to the military justice system, and many did not like what they saw. The system appeared harsh and arbi-

   trary, with too few protections for the individual and too much power for the commander. To Americans who were drafted or who enlisted to defend their own freedoms and protect those of others around the world, this was unacceptable and complaints and criticisms became widespread. Even before the war was over, the Secretary of War and the Secretary of the Navy each commissioned studies of the system, and those studies recommended significant, if not fundamental change.18

   After the war, interest in reforming the system continued, and Congress became involved. In 1948, Congress passed the Elston Act,19

   amending the Articles of War.20 These amendments were based on studies and recommendations made by the Army and foreshadowed some of the changes that would be contained in the UCMJ, including an increased role for lawyers in courts-martial. However, other dynamics led immediately to efforts for further change.

   By 1948, it was clear the United States would have to act as guardian of freedom in the world, and that the peacetime size and roles of the armed forces would be unprecedented. The defense infrastructure itself had just been reorganized, with the creation of a separate Air Force, and the establishment of the Department of Defense. This led to a perceived need for greater protections for men and women who would serve in the armed forces, and to a desire for a common system for all the services.

   Thus, no sooner had the Elston Act been enacted than Secretary of Defense Forrestal appointed a committee, in the summer of 1948, to draft a uniform code of military justice. As chair of the committee, Secretary Forrestal appointed Harvard Law professor, Edmund Morgan. Professor Morgan had served as a major in the Army's Judge Advocate General's Corps in World War I. He served on the staff of the General Samuel Ansell, whose proposals to reform the military justice system had been rejected. Now, in 1948, General Ansell's protégé, Professor Morgan, would dust off many of...