The Role of Criticism in the Development of Law

• Author: By The Honorable Robert E. Quinn
• Pages: 02

The Chief Judge of the United States Court of Military Appeals discusses the role of criticism in the development of the Unifom Code of Military Justice. He alsopoints out lww the different tvpes of constructive wit& cism have had, and can have, a beneficial effect on the military iustioe system.

I. INTkODUCTION

Fifteen years ago, the United States Court of Military Appeals was established by the Uniform Code of Military Justice as the first civilian tribunal for review of courts-martial.' Creation of the Court was regarded as the most "revolutionary" aspect of the Uniform Code.2 Commenting on the Court's role in the development of military law as an integral part of the American judicial system, Judge Paul W. Brosman, one of the three members of the original bench, called attention to its unique freedom in the choice of precedent "unbdrdened by . , , [those] demonstrated by the test of time and experience to be unreaiistic, ill-devised, or outmoded." 8

The Uniform Code of Militav Justice had evolved out of massive complaints as to abuses and shortcomings of the military justice system during World War 11. Less than two months after it took effect, it faced a litmus test of its practicality in time of war. Our response, at the call of the United Nations, to protect the Republic of South Korea against the North Korean Govern-ment's invasion of its territory, involved us in a major clash of arms. More than three and one-half million American military

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"Chief Judge, UnlM States Court of Military Appeals; A.B., 1815.Brown Umveraity; LL.B., 1918, Harvard University; ahnitled to practice before the courts of Rhode laland; former Judge of the sup em^ Court an6 Governor of Rhode Ialnnd.

164SUt.108,50U.S.C.D111 (now10U.S.C.B867(1964)) s H.R. REP.

NO.

491, 81et Cong., 1st Seas. 6 (1949). 'Brosman, The Court Fresr Than Moat, 6 YAFD.

m y other gov&nmentPl agency.

"Chief Judge, UnlM States Court of Military Appeals; Brown Umveraity; LL.B., 1918, Harvard University; ahnitls before the courts of Rhode laland; former Judge of the Superit Governor of Rhode Ialnnd.

164SUt.108,50U.S.C.D111 (now10U.S.C.B867(1964)) s H.R. REP.

NO.

491, 81et Cong., 1st Seas. 6 (1949).8 Brosman, The Court Fresr Than Moat, 6 YAFD.

L. Rm. 166

A.B., 1815.1 to practncr,I court anti, 168 (19Sj>

L. Rm. 166, 168 (19W

personnel were. in one way or another, committed ia the struggle. It sas obvious that there was no time far trial and error. The Court of llIilitary Appeals, and perhaps the Cnifom Code iiself, had to stand or fall on its immediate performance under wartime condit1ons.4

As Chief Judge of the Court of Military Appeals, I fully appreciated that, although all the judges had had substantial experience with militav law and the courts-martial system, the Court would need all the help it could get from the legal profession, both inside and outside the armed services, to determine the alternative8 of law open to the Court and the probable consequences of each alternative. In public appearances before military and civilian legal groups, all the judges invited critical appraisal of the Court's decisions and of the day-to-day operation of the courts-martial system under the Uniform Code. We, and a number of conscientious officials in the military establishment, urged everyone concerned with the administration of military justice to discharpe his responsibilities with B will to make the Uniform Code work. Unfortunately these efforts did not achieve sufficiently spectacular results to indicate clearly to the civilian community that the processes and purposes of the Unifam Code would receive a fair testing at the hands of the militav. As late as May 1962, the Special Committee an hlilitary Justice of the prestigious Association of the Bar of the City of Sew York reported that it was "abundantly clear that the Armed Forces hare not essentially changed their attitude toward military justice, although this attitude resulted in the abuses" which led to the adoption of the Uniform By that time, however, there had been distinct indications that the resistance to change prevailed largely among the "old-timers." who seemed to be too deeply embedded in the worn grooves of ancient, and to them irreproachable, practices; as a group, these traditionalists found it difficult to accommodate themselves to the more legally-oriented, and less command-dominated, provisions of the Uniform Code. Even a captious critic, however, could justifiably conclude, on the basis of records of trial in major cases, that "the sewices . . . [had] made excellent

'In United States r Agers. 4 US.C.M A. 220. 16 C.JIR. 220 (1964). the Court detemmd that, far pnrpoaes of the Gnijorm Code of Militand Ju6bre the Korean conflict precipnated a "time of war" within the eon-tmental Ihmlts of the rmted Sratee

'SPECIAL C O M W T ~ E ov MILITARY JUSTICE A S S O C I ~ I O ~

OF THE B*n OFTHE Crrr OF NEW YORY,

1951.1982 AXXUAI REPORT.

CRITICISM AKD THE LAW

progress in improving the caliber af courtsmartial trials and in carrying out the spirit of the Code." 0

How few or how many in the armed scvice8 remained adamantly opposed to the Code and unalterably attached to the pre-code law and practice could not, of course. be determined. However, when the judbes of the Court took the oath of office at the Pentagon in June 1950, George C. Marshall, then Secretary of Defense, assured me that he would do all he wuld to get the military establishment to cooperate, fully and imaginatively, with the Court in the administration of the Uniform Code. The Secretary's assurance of cooperation provided a solid foundation far the hope that all ranks in the armed services would eventually accept the letter and spirit of the Kniforrn Code. and expres8 its disagreements or approbations within the framework thereof.' About a year later, at a symposium on military justice at Vanderbilt Law School, I extended an invitation to the American Bar to scrutinize the work of the Court and to weigh its decisions "against the dichotomatic concept of military justice and tell the public, the services and us, the judges [of the Knited States Court of Xili'Letter by Chief Judge Qumn to Professor John V Thornton, Xea Yark University Law School, 13 Mw 1952, on file with Clerk af the Court of Miiitsrs Appeals. There wele, of COYT~S, unbelievable in~fanees I" which old Practice8 perimted. One of the most extraordinary, whleh came up far review, wae United Ststea V. Guest, 3 U.S.C.M.A. 141, 11 C X R . 141 (19531. In that case, a senior stafs judge advocate gave B copy of a board or r w e w deemion fo the president of the murt.marliai, the member. of which %ere then deliberating on the aecuwd'a guilt or...