First George S. Prugh Lecture in Military Legal History

• Pages: 07

2006/2007] FIRST GEORGE S. PRUGH LECTURE 153

FIRST GEORGE S. PRUGH LECTURE IN MILITARY

LEGAL HISTORY1

JUDGE ADVOCATES, COURTS-MARTIAL, AND

OPERATIONAL LAW ADVISORS

Lieutenant Colonel (Ret.) Gary Solis, USMC2

1. Introduction

   I am proud to be the first Major General (MG) George S. Prugh Memorial Speaker. General Prugh's leadership, scholarship, and friendship extended to all-even to Marines.

   In 1990, I had recently retired from active Marine Corps duty. I was living in London, where my wife, a U.S. Navy civilian employee, had been transferred. I was a new Ph.D. candidate in the Law Department of The London School of Economics and Political Science. My dissertation topic was an examination of whether the Uniform Code of Military Justice (UCMJ) adequately meets the 1949 Geneva Convention requirement to seek out and try those who commit grave breaches of the law of armed conflict.

   Separated from my Marine Corps support group, and not yet familiar with the few local Navy judge advocates (JAs), I wanted someone familiar with American military law to talk to about my direction and sources. Among other resources, I was working with articles and a book written by General Prugh. Having just written my own book on military law in Vietnam, his was a familiar name. In 1991, gathering my nerve, I cold-called General Prugh at his California home. On both personal and substantive levels, he could not have been more helpful. I knew how competent he was. What I didn't know, or expect, was how personable

   and kind he would be to an unknown Marine. What I didn't initially appreciate was his deep and broad legal scholarship.

   Throughout the next two years, as I wrote my dissertation I phoned him several times, each call received with graciousness. I mailed him my most troublesome chapter, which he returned with perceptive and helpful comments. When I finally defended my dissertation before five glowering British law professors gathered from throughout the Kingdom, they told me that my dissertation was screwed up in significant ways- but none of them involved the guidance or advice of George Prugh! (After some sanding and polishing I squeaked through my second exam.)

   I was privileged to know General Prugh. I hope that somewhere today he's smiling, pleased to see one of his acolytes honoring his memory by discussing legal history.

   I'm going to talk about one Marine JA's case in Iraq, and about other instances in which military lawyers have been court-martialed. Some of my historical trial examples relate directly to the JA's performance of duty, some to unrelated misconduct. Each case is instructive and cautionary. Santyana urged us to understand history lest we repeat it. I suspect that we repeat history, regardless, but these cases have an import and resonance beyond their sometimes tawdry facts. Perhaps our understanding them will prevent their repetition. They provide a chart by which we can navigate the shoals of military lawyering. Not often do we encounter misconduct, criminality, or culpable negligence in our ranks. But the cases that I recount are reminders that professional and personal disaster can be one misjudgment away.

   Marine Corps Captain (Capt) Randy W. Stone stands accused of dereliction of duty for events in Haditha, Iraq. We know the broad outline of what happened in Haditha. But how did Capt Stone, the battalion's operational law advisor, become an accused? What does his charging suggest for those of you who may soon find yourselves in a combat zone? Is there something you should be doing, right now, to ensure that his fate isn't yours? Is there some law or regulation that you should re-read? UCMJ, Article 31(b), for instance?

2. The Judge Advocate General of the Army on Trial

   Before considering Capt Stone's case, let's recall that his is far from the first case to come before the military bar. Through the years many military lawyers, American and foreign, have run afoul of the law, domestically and internationally.

   General Prugh was the twenty-eighth Judge Advocate General (JAG) of the Army and, needless to say, he was never the subject of a court-martial. Brigadier General (BG) David G. Swaim, the eighth JAG of the Army, was court-martialed in November 1884.

   Appointed JAG of the Army in 1881, when he was but a major, General Swaim negotiated a personal promissory note receivable with civilian bankers, knowing the promissory note was not actually due him. Four specifications of conduct unbecoming an officer was the charge, in violation of the sixty-first Article of War. A second charge of neglect of duty (Article 62) related to Swaim's allegedly having obligated Army pay accounts as security for a loan to a friend, one Lieutenant Colonel Narrow. The impressive court-martial panel included MG John M. Schofield as president; BG Alfred Terry, who was Custer's commander at the Little Big Horn; BG Nelson Miles who, four years later would be Commanding General of the Army; and BG Samuel Holabird. The panel of thirteen was rounded out by another three BGs and six colonels.

   After fifty-two trial days, General Swaim was found guilty of charge one and sentenced to suspension of rank, duty, and pay for three years. In that era, the reviewing authority for the convictions of all officers was the President of the United States.3 Also, court-martial results that dissatisfied the convening authority could be returned to the court for revision which, in practice, meant either that "not guilty findings" be changed to "guilty," and/or an upward revision of the sentence.4 Finally, after the case was returned to the panel for revision not once but twice (!) President Chester Arthur reluctantly approved a sentence of suspension from rank, duty and half pay for twelve years. Arthur was dissatisfied

   that, despite his sending it back twice, the sentence included no kick-no dismissal. That being the case, Swaim remained the JAG of the Army, despite being unable to exercise any portion of his duties-effectively rendering the office of the JAG vacant for twelve years.

   Swaim continued to seek vindication and, nine years later, the remaining portion of his sentence was remitted and he was retired, much to the relief of Guido Norman Lieber, who had been the acting JAG for nine years-on colonel's pay. Lieber was then promoted and appointed Judge Advocate General of the Army.5 (Lieber was the son of Francis Lieber, author of Army General Orders 100, the Lieber Code.)6

3. Hell-Roarin' Jake

   Students of military history (and the law of war) are familiar with the 1902 general court-martial of Army BG Jacob H. Smith. In 1901, Smith commanded Army and Marine Corps troops on the island of Samar during the 1899-1902 U.S.-Philippine War. Samar had proven a difficult area to subdue-the insurrectos, a battle-hardened lot, not given to observing the law of war, such as it was. Smith, "a short, wizened sixty-two-year-old who had earned the nickname 'Hell-Roarin' Jake,'"7 who was seriously wounded at Shiloh and who had spent twenty-seven years in grade as a captain, was determined to succeed where his predecessors had failed and quell all enemy resistance. General Smith summoned Marine Major (Maj) Littleton Waller, who was about to initiate a patrol against the insurrectos. According to his charge sheet, before witnesses General Smith told Waller, "I want no prisoners. I wish you to kill and burn. The more you kill and burn, the better you will please me. The interior of Samar must be made a howling wilderness." He added that he wanted all persons killed who were capable of bearing arms: anyone ten years of age or older.8

   Referred to a general court-martial when his statements became public, Smith already had a record marred by not one, but two prior

   general court-martial convictions! Five years before, he had been saved from dismissal from the Army pursuant to a court-martial sentence only by the intervention of President Grover Cleveland. This time, Smith was convicted merely of conduct to the prejudice of good order and discipline and was merely ordered retired.9

   These facts are widely known, but it is usually overlooked that in 1869, as a brevet major, Smith had a four-year appointment as an acting JA.10 He was not a law school graduate. (Neither were most Supreme Court justices of that day.)11 Smith's efforts to make his appointment permanent were derailed by still other misconduct that, although recommended for court-martial, he escaped with no more than a poor efficiency report.12

   During the war in the Philippines, at least eight Army and Marine Corps officers were court-martialed for acts constituting war crimes, in most instances for subjecting prisoners to the "water cure," a variation on today's "waterboarding." Among the most notorious of the convicted officers was Army Captain (CPT) Edwin Glenn who, besides torturing prisoners, was alleged to have burned to the ground the town of Igbaras while still occupied by its 10,000 inhabitants. Glenn was the JA of the island of Panay, even while committing the war crimes of which he was convicted.13

4. Judge Advocate War Criminals

   We hardly have time to detail all the JAs, flag or otherwise, who have been court-martialed, but a few additional cases merit our attention, some of the cases far more serious than that of Generals Swaim and Smith.

   World War II's International Military Tribunals (IMTs) in Nuremberg and Tokyo were where the highest leaders of the Nazi and Japanese war-making machines were tried. Some of us are also familiar with Nuremberg's "Subsequent Proceedings."

   In the European Theater immediately following the War, the Allied powers established a "Control Council" in Berlin, essentially a government of occupation. Berlin was divided into four sectors: the American, British, French, and Russian. The arrest and trial of suspected Nazi war criminals was high among the concerns of the allies. One of the first Control Council edicts was Law No. 10, establishing procedures for the...