The Seamy Side of the World War I Court-Martial Controversy

• Author: by Colonel Frederick Bernays Wiener, AUS (Ret.)
• Pages: 04

1. INTRODUCTION

   Every student of American military law 1% fully aware of the dispute over the administration of the court-martial system that followed the close of the shooting phase of World War I At least two recent treatments have regarded that dispute as essentially a professional disagreement between two concededly outstanding military lawyers, Brigadier General Samuel T Ansell, Acting Judge Advocate General dunng most of the war, and his chief, Major General Enoch H. Crowder, the Judge Advocate General (JAG).'

   Unhappily, this diapute extended beyond purely legal non.concur-rence The comprehensive hearings held before the Senate Committee on Military Affairs in 1918, entitled Establishment of MiIitary Justice,' demonstrate that the controversy was marred by intense personal antagonism on the part of General Ansell, who not only leveled a sems of bitter ammations against his former chief, but similarly assailed almost every mdmdual, regardless of rank. who had disagreed with him m the two years prior to the hearings That aspect of the underlying controversy has not untd now been thoroughly recounted

   Today, seventy years after the event, it IS surely appropriate, aim-

   ply as a matter of history. to take a hard. objectne look at what occurred. The narrative that follows 1s drawn almost eaclus~velg from the printed hearings

   11. THE ISDIVIDUALS PRIMARILY ISVOLVED

   Samuel T. Ansell, a North Caroliman, was eammmmned in the infantry upon graduatmn from the U.S. Military Academy ~n 1899. and received an L L B from the University of North Carolina in 1904? He served two tours as an instructor in law at West Point. and then was assigned a6 Assistant Judge Advocate at Headquarters. Eastern Department. at Governor's Island.6 At that point, Colonel Enoch H. Crowder, about to be appointed Judge Advocate General, noticed the "very meritorious legal work performed by then Captain Ansel16 and asked whether he would like to come into the Judge Advocate General's Office (JAG01 Ansell replied that an that was his life's ambition'" Accordingly, he was asagned to JAG0 in 1912, he became a mqor,judge advocate, in March 1913. and in May 1917 hewas promoted to lieutenant ~olanel.~

   With the coming of World War I, Congress authorized remporary promotions in higher grades, then characterized as National Army commmmns.s Under that authorization. two Regular Army judge advocates became brigadier generals. One wa8 Lieutenant Colonel Walter A. Bethel, sixth in Seniority under the JAG, then aervmg as judge advocate of the Allied Expeditionary Force in France (and who later became TJAGI, the other wes Lieutenant Colonel Ansell, mnth in semority lo Inasmuch as General Crowder was simultaneously Proiost Yarshal General (PMGI during the war, which then meant not that he headed the military police, but that he directed the Selectlve Draft Act." it was Brigadier General Ansell who, from Apnl 1917 until March 1919, except far a threemonth absence in 1918 ona trip to Europe. was Acting Judge Advocate General of the Army as the senior officer on duty in the office.'*

   *Army Register 1916,p 16,

   I

   F Heifman. Hlalorlral Register and Dictionary ofthe Unired Sfatse Arm" 119031ga at 52 .

   jHWL" LO" to Captmm in 1906 (Army Register 1918. P 161 "Ro",Of'Heorcngr ai 1209'Hearings at 52. Army Register 1918. P 16BA~rof May 18, 1917,

   E 15, L 6. 40 Stat 76 61

   "Arm) Regiarer 1916, PP 15.16 Lockmiller, supra note 3 cc XI-XI11

   L"Heaiingaai 62-53 Ex 1SS,Henrmgr at 1076, 3ertlngCo April 20 cc July 16. 1918, General Ansell was absent onHeorings at 747-746, Ex 132.135, Hearing8 at 1036-1037

   nh .ciie dates From

   1 trip ro Europe

   19891 WORLD WAR I CONTROVERSY

   A few words about General Crowder need to be inserted here, cer. tainly for a generation that did not know Joseph. He was an 1881 graduate of the U S Military Academy, commissioned in the cavalry A participant m some of the final Indian campaigns, he reeelved an LL.B from the Umversity of Missouri in 1886 while serving there as a military Instructor. In 1895 he became a maJor, judge advocate, and, while serving tn the Philippines, became a general officer, U.S.V., for just ten days in 1901 In 1911 he became JAG. an office he w a ~ to hold for 12 years;" and in October 1917, he, along with all other head8 of staff departments, received a second star."

   Justice Frankfurter of the US. Supreme Court, who while serving as Law Officer of the War Department's Bureau of Insular Affairs from 1911 to 1914 worked side by side with Crowder, deemed him "one of the best professional brains I've encountered in life."'6 Newton D. Baker, Secretary of War from 1916 to 1921, regarded Crowder

   86 "one of the best lawyers I have ever been in contact with m a life of 25 years at the bar.""

   Crowder's eatimate of his senior assistant was equally high to the end, despite the latter's subsequent personal attacks "I do not know of a more acute legal mind than Gen. Ansell has.""

   111. THE POWER PLAY

   The first step in the ensuing drama was taken by General Ansell, in order that he might place himself ~n a position where he could become head of JAG0 dejure. instead of simply being the most senior officer on duty there and a8 such subject to existing policies and to the approval of JAG."

   "F.He~tman,supr.nafeI.D Lockmiller svpmnote3,~c I-X "USV"isanabbre-v1atlon for U S Volunteer%.

   8 temporaw 88 dintingwahed from Regvlar Army rank, m both the Civil War and the Saaniih War aeriods It was available for bath Reevlarsand non-Rswlarb

   'The Army Almanac 56 (1959)

   "Act of Oct 6. 1917 c 106, b 3. 40 Srat 398, 411L'Fslix Frankfurter Reminiaces 68 (€I

   B Phdlipi, ed 19601 '.Hearings at 1342'BHeorinas at 1210

   le During the greater pan af Lhe ~ a r

   I was Acting Judge Adrocate General, mtheienoe Lhaf IwasseniarofficerandutyInthedepanment Thafdaeb not mean rhar 1 ~ a a rsaponsible for the policies of the office, sme a man aucieeding by mere vinue of seniority can not be In order to be rebponai. ble far the ~oliciei of the office a man must be appointed under sectmn 1132 of the Revised Statures BI amng chief of bureau I wa8 nor ~ncharge oirhe policies of the office I made no appointments to office dunng the warTestimony of Mr S T hnbsil, Heonngs ai 62-63

   On November 3, 1917, General Ansell suggested to General Crowder that. since the latter was normally absent on PMG busmess. he, Ansell should be named Acting JAG under the pronsions of Revmd Statutes Section 1132 This section provided "Dunng the absence 01 the chiefof any military bureau ofthe War Department, the President is authorized to empower some officer of the department or corps whose chief 1s absent. to take charge thereof, and to perform the duties of dunng such absence '''' General Crowder agreed the next day, subject to havlng General Ansell "take up directly and in your own way with the Secretary of War the aubjecr matter of your letter of yesterday ''21

   General Crowder imposed that condition, because about sixty per cent of the JAG'S business with the Secretary of War dealt wth C I V ~

   matters and did not go through the Chief of Staff at

   Instead, General Ansell never discussed the matter with the Secretary. but dealt directly with the Acting Chief of Smff, Afqor General John Biddle, sending him a draft War Department General Order under Revised Statutes Section 1132, with B covering letter Stating that this step had the concurrence of the JAG.Z3 Such an order was accordingly issued on November 8th, but was suspended from publication m printed

   Meanwhile, on October 30th, General Ansell commenced work on a memorandum ~n whlch, as Acting Judge Advocate General. he undertook to set aside the conviction of certain enlisted men of Battery A. 16th Field Artillery, "in the exercise of the power of revision con. ferred upon me by B 1199, R S."" But notwithstanding the October 30, 1917, date on that paper. It was held in JAG0 and was not re-ceived by The Adjutant General, its addressee. until the very date. Xovember 8th. that. "By direction of the President," General Ansell was appointed Acting JAG under Revised Statutes section 1132 I"

   War Department General Orders

   Briefly. the fourteen soldiers in question had been placed in arrest by an inexperienced officer, and then ordered the next day to perform duty. They refused because. under existing Army Regulanons. no person under arrest could be ordered to perform duty. In view of them

   the chief of the department or corps

   19891 WORLD WAR I CONTROVERSY

   concerted refusal to obey, which took place in the presence of the en-tire battery, they were charged with mutiny. In fact. four of the fourteen were acquitted, while sentences for the ten convicted involved executed dishonorable dtscharges and terms of confinement ranging from three to seven years?'

   General Ansell followed his October 30th paper on the Texas mutiny case to The Adjutant General with one to the Secretary of War, dated November loth, setting forth his reasons why section 1199 conferred such a power on humz6 The views expressed in that later dowment were indorsed by thirteen other judge advocates," some of whom subsequently withdrew their Only three of the thirteen were Regulars; the rest were individuals newly commissioned from civil life

   Section 1199 of the Revised Statutes, drawn from an Act of 1866 but actually reflecting two earlier measures, authorized the JAG of the Army "to receive, rev~se, and cause to be recorded the proceedings of all courts-martial, courte of mqmry, and military commissions, and perform such other duties as have been performed heretofore by" that

   General Ansell argued that the JAG'S power to set aside cmv~c-tions under section 1199 was Supported by the meaning of the word "revise" in numerous other conte~ts.'~

   And he asserted that his conclusion rested on the legislative history ofthe provision in question ''

   officer 31

4. HALF A CENTURY OF CONTRARY PRACTICE: THE POWER PLAY THWARTED

   Later, a few days after receiving that memorandum, the Secretary of War Bent for...