Is There a Military Common Law of Crimes?

• Author: Captain Guy A. Zoghby
• Pages: 03

1. INTRDUCTION

   In our judgment there I" Imle lhkelthoad That these three pmerleri. burled judger ~n the Depar!menf of Defenle ~ 1 1 1 correct the vbiioiin defect9 outhned

   above'

   It IS usually stated iiith dogmatic certainty that there IE no milnary common law ai climes. Like any other proposnion of rhx sort, ruffi-eient repetition raises it to the status of a maxim The eventual UEB ofmeaning of the concept has became so extended BE to cause aurprire in many students of military I ~ i i . any time the Court of 111mentions oomman law or seeks S O U ~ C ~ P outside the le&the Cndom Code o,f Mtlitary Justzce2 The Court of Mihas been subjected to eonriderable criticlam. for its nork product? for omturning ancient mhtary law? for arerturnmg manual provis~ons,~ for causing instnbility in military Iaii.? for reading its own notions into resented to The Judge .Adioeate Gen- IS uhile the author was R member

   and C O ~ C ~ U I ~ ~ presented herem

   admitted to practice m the State of Ohlo.

   Keefe snd Morkm, Codrnrd Military l?iiudz~r 35 C~RZELL

   LQ 151. 170 (1948)

   In this early erucle the authors %ere extremely concerned rbaut the many deiecu they obmred m the Unliorm Code Then wdgrnenr BS l a the power of the United States Court 01 Mdnaw lppealD II reproduced aboie beeaure of 118 re. markable ineoeurac~. As =dl be seen the Coult has ssmmed a dammnt posmon m the field of mllllaiy lustlee

   the l h ~ , ~ for discarding its prior decisions,' and finally for abuse of

   po1\er.* One of the critics of the Court m s even kmd enough ta pomt

   Out why the fen apologists Ear the court had been ineffective, indicating that they had not come to grips with the real problem oi the Court's decisions but had merely engaged in tangential dieeusEion'O It is notthe purpore of this art& to produce an apologia iar the Court oi Mill-tar? Appeals, tangential or otherwise However, an analysis ai the

   E O U L C ~ S

   of military criminal la%, and the Court's use of rhose SOUICFP \

   In pursuit of the topic of this article, something more than B mere catalogue oi SOUIC~Sused by the Court of Xilitary Appeals is required. First, because amnion law" has not and probably never nil1 mean the same thing 10 d l men, some definition will be required, albeit narninit1 This w-111 involve an analysis of the federal concept of crimes, the extent to which it applies TO the COWL of hliiitary Appeals and the areas m which the Court oi Military Appeals can make use of the con-cept In sum, a working definition of B "militarS. common law of crime^." will be devised.

   Second, the nature of Court of Llilitary Appeals must be considered It 1s elearly B creature oi the Congrerr of the L'nited States,L2 and a re~olutianary one at thatla A considerable body ai legal writing has been direcred to B claasificatian of the Court as either legislative or eonLmr Ofie o Fdrral J-idyi' *, 1 MIL 1. Rrr 39

   'See Murphy The A mv Delenrr Co Adtoiaie. 61 C o ~ i r

   L R n 233, 246 11961'See Herbert. The Slorus 01 Snourra ne R lnrmei Briore Cou-rs-Yaitial 11

   MILITARY COMMON LAW

   stitutianal or perhaps B quasi-judicial adminisrrarire agency TThile the nominal clitssification of the court le probably necessary for eomparing the court to other federal courci, for this article, n 1s more Important to delineate as far 8s possible, not the kind of court by name, bur rather the type of court ~n terms of poaer and function This sill have great hearing on rhe L O U ~ C ~ E

   of law the Court has available to it

   Third, because the mhtaly law 1s essentially B codal syrtem. some greater reliance may be placed on sources of law not udually tbought of BE persuaaire to the common law law>-er Moreo~er,

   8. greater degree

   of interpretive freedom may rest with the ludges of this Court Therefore, it seems essential that the T B ~ O U L eo~reee of law mailable TO the court he analyzed and listed However, for the sake of presentation Itis felt that judgment on the sources that should he used be reserved for the eonelusion of the article This brings us to the fourth major point

   Fourth. because of the nature of power of the Court of llhtary Appeals, it will be seen that what the court actually doer in the nay of

   UEB and eeleetion of Y O U ~ C ~ E

   of law will determine the existence or no"-existence of a "milnary common law of c~ime~."

   Therefore, in four of the m e t fruitiul areas, the nature and the SOUICIE of law actually used by the Court of Military Appeals w111 be presented and analyzed The four areas selected 8s being the most fruitful, involve those offenses against the rniform Code of Mhtary Justice that are 8180 proscribed and punished in civil juriadietmni, it. homicides. sex crimes. crimes againat property, and crimes against persons.

   Finally, ~on~lu~ionewill be drsiin 88 to the murces of I&% the court

   should consult and what E O U ~ C ~ E ,

   11 any, should hind the court Further, consideraion will be giwn to the existence of B '.urniring principle" which may act B lai like B "common law" in that selection and use of sources by the Court of Mlaary Appeals can. to some extent. be predicted

   11. XlILIThRY COYMOE; LATT OF CRIXIE%DEFINITIOE;

   I1 we are to make ~n adequate pxmre of a m g e mi l e d de\elopmenr. rhe picture muif be taken alter the period has definitely come to an end 80 that Ke

   may j i e ~ rti phenomena. as LI rere. under the arpeot of eternity It 16, there- lore. B rash underiekmg to essa) exen a snapshot photograph oi the 3raKe a1 le& deielopmeni inlo uhich %e ere paamg But airhout some such attempt

   ~e &all fail .o iindeirtrnd m e of the rlOndl mRIerlslJ ai 0°F legal r,a:em *re made aiailable fa] r changed and changrn

   The piahlems poced by a rhangnp roeiery and m e~~luationof the

   legal system of tiin ioeiery BIP eipeciall>- present ~n the field of military laii. The Code represents B dynamic change and the unifieatiaii and

   he usdi-md LI,P

   MILITARY COMMON LAW

   an extension of this rule to say that ahere a statute makes certain eon-duct criminal and prorides for B penalty. that resort may not be had to various murees of 181, ewn common Ian. to assist in the interpretation of the statute Thereiore. although there are no common 18.11.

   crimes against the rnited States. the common Ian, is looked to for the definition of the crime m 811 eases where the Congress merely designates an offense by its common lax name2z

   Colonel Xinrhrop in his treatise on milirary Ian has apoken of an unwritten im of the military. derived from common law principles

   La* [ml has denied from rhe Common La* [mc] mile- and doctrines illuifrated m this eade, lt hsn also a lri mfen common la- of 1x3 OUD Thli unrntfen la- me, be

   The 'curtoma of the ~ ~ ~ v I P P ' , 80 railed: 2 the unuriften

   1018 and ~usioms oi NRL *

   The "milnary eommon law'' that TVinthrop reiers to KBS alm noted 8s such by the United States Supreme Court in In i e P~rnoshtto.~~

   This

   19 not the ~oinrnon law that this nriter eeeks to analyze and claieiiy. In the former Articles of aarZs no attempt was made m the legislation to define the crimes proscribed. The ciime~of murder, rape, manslaughter, mayhem. areon, burglary, housebreaking. robbery, ]arcen)-, perjury, iargery. sodomy. assault and assault airh a dangerous weapon. were lumped into two micles2ato be punished BE B court-martial may direct. As the legiilarl~e history of the Code ihaii-s. an attempt w s made to reconcile the difering blanual interpretations gnen to the above In construing and applying this ma Code, the Court oi >lilitary Appeals must reek murces of law to help define these crimes further and apply them to partieulsr fact situations. presumably as Congress intended. It ee our codal system nas drafted by Conpreei; in oums of lax, itnd interpreration oi the Court of I be accomplished by reierrlng to thore sources and others that are available.2' It IE those murm of law. outside of the

   rt~eies

   andsfe. 1s 80 broad ai to allow the oi aovreer of law Emineat aufhoritr

   T*CO ,0388 79

   DI u-er a2 a3

   Code. and consisting of rules or norme that the Court of hlhtary Ap-peals uses to decide eases, that mnititute B norking definition of B'military common law of crimes'

   The purpose of this article. then, IS to isolate, examine and clsssify those so~rcei, in order to see if indeed there is anything that narks likeB oommon Im of crimes The decision to examine the casee decided by the Court of Jlilitary Appeals le based on the etatua of that Court in the system of military justice and within the framework of o w federal court system The true position ai this Court is worthy of detailed examination, so that the decision to examine its cases in the search for the sources of lax that e~este B "military common 18% of crimes," ~&nbe verified

   111. THE COVRT OF \IILITART APPEAL% POSITIOX AYD POWER

   While Arncle 6; of the l'nijorm Code of .Wilttory Justice which creates the Caurr of lliIn8ry Appeals contains the "moat revolutionary changes which have ever been incorporated into military i&w,"lo the nation of a court oi military appeals uith CIVIII~LIjudges appointed by the Presjdent is not 30 recent In fact, B bill was introduced in the Senate in the first session ai the 66th Congress 11919) to create just such a court QO The amended bill reported our of committee n&s enacted info

   1811- and became known 8s the 1920 Artlelea of Kar: however, reference

   to an appellate court made up ai CII.III~IIE P - ~ S deleteda1 The idea of aueh a court lingered on, but It ilae nor until the adoption of the Cntforni Code of .Wilttaiy Jusbes that such a eowt became e. realny.

   The imaue authors rhat hare tried to fit the Court, if indeed 11 la a Court, Into the legielatwe or constitutional diridion have found little difficulty in saying rhat 11 1s not a cmbtitution&l court a2 The four tests uaually cited ai deterininatlies are

   111 Ire the judger protected m tenure and compensation during

   12) Does the geographical location comport with Article III? 13) Can the judges exerc~se Article I11 jurisdiction? 14) Did Congress intend to create the...