Perspective the manual for courts-martial 1984

• Author: Major General Kenneth J. Hodson
• Pages: 01

It is a great pleasure for me to have this opportunity to talk to you. When I started to make notes for my remarks, I planned to give you the distillation of my thirty years of experience in the administration of military justice, tempered somewhat by the obsewations of the sages of the law, including some critics of the system of military justice, bath military and civilian, lawyer and nonlawyer. During my first ten years in judge advocate work, I thought I knew all the answers, knew exactly what was right in every case. During my second ten years, I developed a few doubts in certain areas. During my third decade of service I discovered that I knew less and le88 and I had a great many doubts. Now that I have retired and have entered my fourth decade, I have doubts about almost everything.

We've had a lot of observations about the system of military justice from various people. Former Justice Tom C. Clark, speaking for the United States Supreme Court in Kinsella v. Krueper in 1956, made this comment about our military justice system:

In addition to the fundsmentak of due DI'OEESE, it includea proteetiom which this court hae not required B state to provide and same procedures which would compare favorably rith the most advsnced criminal eodes.'

Of course, we recognize that this comment was made prior to such landmark decisions of the Court as Gideon.' Escobedo; Mapp,' and Miranda.O In 1960, in the James Madison Lecture at the New York University Law Center, then Chief Justice Warren commented favorably upon the Uniform Code of Military Justice, saying, in part:

The Code represents a diligent effort by Congress to insure that military jmtiee is administered in accord with the demands of due process. Attesting to ita ~ueeeda is the fact that since 1851 the

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'Thia article wae sdapred from the first Kenneth J. Hodson Crimmi Law Lecture at The Judge Advocate General's School an 12 April 1812. The Views expresaed am those ai the author and de not necessarily represent the view8 of any governmental agency.

.*Chief Judge, United States Army Court of llilitarp Review. 'Kinrelia Y. Krueger, 361 V.S.

470, 416 i1856). 'Gideon V. Wainwright. 372 U.S.

335 (195s). 'Eieobedo V. Illinaia, 378 U.S. 476 (1864). 'Mapp V. Ohio, 367 U.S. 643 (1961). 'Miranda V. Arizona, 584 U.S. 436 (196s).

number of habeas corpur petitions alleg~ng B lack a i fairness I" courts.martiai has been quite insubstantial hloreover, I know of no case m c e the adoption of the Code in \which a civil court has issued the %rnt on the bails of such B claim This development IJ undoubtedly due I" good part to the supervision of mililsry justice by the Court of &l~lltary

Appeals'

To the contrary, however, is the comment of Justice Douglas in the O'Callahaii case in 1969:

[Clourts-martial as an miritution are singularly inept in deaimg wfh the nice subtleties of comtituionai lax+.. . . . A civilian trial,in orher words 1% held ~n an atmosphere eandvewe to the prorec- There are a180 many comments by permn~ other than Supreme Court Justices. In a recent imue of the Student Latcyer Jotirnal. a young woman law student concluded:

Senator Birch Bash of Indiana, in introducing lepialation which would make major changes in the Uniform Code of Military Justice, stated on the floor of the Senate on March 8, 1971:

The main thruar of this bill II an attempt toail danger of command influence, the paasappearance-that the cammandmg officer of an accused man eovid affet the outcome of his eacrt-martial . . In addition to the danger presented by command influence. the military justice pya-rem denies B defendant other rights fvndamenral to a free society.'

Subsequently, in a by-line article in Parade, the weekend mag-azine, Senator Bayh was even more harsh:

IC is B shameiui iact that this nation, ahieh prides itself on offering 'liberty and justice far all,' fails to provide B first-rate syrrern o i iist'ee far the very citizens 11 cdls upon to defend those pnn~iple~.

Wo,s than S millton Ameircani now under aims w e bezng denied rrghts iundomentoi to all membeis o i a /rei mcirty. * (Emphasis in original!

~

189 (19621.

" P.Wm (19111

'Warren, The Bill o i Rishti and the .Military, 37 N.Y.U.L. Rm. 181. 188,

O'Callahan V. Parker 395 C.S 258 (1969).

' 17 SrLnEh-r LAWYER JOURNAL 12, 15 (March 1972).* 117 CONC. RE.

S 2161 (March 8, 1971).

MCM, 1984

Charles Morgan, Jr., of the American Civil Liberties Union would agree. He is quoted as saying, "The Uniform Code of Military Justice is uniform, is a code and is military-and therefore has nothing to do with justice."

This is a suprising commentary, coming so soon after President Johnson's commendatory remarks when he signed the Military Justice Act of 1968:

The man who dons the uniform of his country today daei not discard his right to Pam tresimenf under law . . . We have d m y ~ prided ourselves on giving our men and women in uniform ex-cellent medical ~erviee, superb trsimng, the best equipment. Now.aith thii bill, we are going IO give them first cia86 legal serviceas \veli.

Within the military, we likewise find conflicting views of military justice. Caesar is credited with saying, "Arms and the law cannot flourish together." One of our present day military critics, General Howze, a distinguished Army officer who is now retired, expresses views similar to those of Caesar:

The effect of B wakened system of military justice has been apparent for some time Now It is simply getting !vorse, due to the turbulence which is shaking our society and, in turn, inevitably affectimp military discipline. The requirements of military la- are no\%' so ponderous and obtuse that a unit commander cannot possibly have the time 07 the means to apply the system. . . ."

On the other hand, some of our younger commanders disagree with General Howze:

What It ail bods doun to is that military command is more difficult today because onr society is mare heavily ~ t r e ~ ~ i n g freedoms and rights. Leaders unwilling or unable to adjust to this trend wiil fail. Commanders who resoit to military instice as a substitute for their oiln inadequacies are barking up the wrong tree. . , .

We cannot afford rhe smoke eree en of 'easy' justice behind uhieh poor leadership has ever

About a year ago, the Chief of Staff, General Westmareland, became so concerned by the criticism of his subordinate commanders about the inadequacies of military justice that he ap-pointed General Matheson to conduct a survey of the system. General Matheson found that the system was a reasonably goodone and was working well, but that the small unit commanders .

'I Juatice on Tnal, NEWSWEEK.

(March 8, 1971).

" Howze, Militand Dzaripline end RaLional Semnty, ARMY M~cazrx~. "Graf, Only o Leader Can Command a Company, ARMY MADAZING (Ne(January 19711.

"ember 1971).

and the senior noncommissioned officers were grossly ignorant of how its procedures were to be applied.

In my awn view this lack of knowledge of the commander and the NCO came about almost entirely because of the way we fought the war in Vietnam. Man>-, if not most, of our small unit commanders were two-year-tour officers who came and went before they could learn anything about the system. The short tour of a commander in Vietnam itself, where an officer rarely remained in command of a company or a battalion longer than six months, was, obviously, an inadequate time to learn what a commander's responsibilities were ~n the administration of military justice So, although it is advisable to try to educate commanders in the basics of military justice at this time, I feel that our problems, the ignorant commander and the ignorant NCO, are, hopefully, disappearing. The better solution to this problem is to eliminate the rapid turnover of commanders. Hon-ever, these commanders should be given standardized courses of military justice instruction in their basic and advanced courses, as well as at the Command and General Staff and Army Wal Colleges. (But see footnote 17). As soon as our SCO's begin to be NCO's with more than two years' experience, they will learn the system through on-the-job experience

Throiighout history there has been criticism of the justice system by the commanders of many Armies. For example, the Roman historians record Roman commanders who, from 40 B. C. to 400 A. D., urged a return to the good old fashioned discipline of their fathers. Mind you, this was in an Army where the commander had the power of summary execution over members of his command. A goad example of the harshness of Roman discipline involves the execution of Titos Manlius by his father because Titus became involved in a duel with a member of the enemy forces.

Earls in the Revolutionary War, General Washington...