The Twenty-Sixth Annual Kenneth J. Hodson Lecture: Manual for Courts-Martial 20X

AuthorBrigadier General John S. Cooke
Pages01

MILITARY LAW REVIEW

Volume 156 June 1998

THE TWENTY-SIXTH ANNUAL KENNETH J. HODSON LECTURE:

MANUAL FOR COURTS-MARTIAL 20X1

BRIGADIER GENERAL JOHN S. COOKE2

I. Introduction

It is truly a privilege to be here today. Major General Hodson was a real giant in our business, and a great gentleman. No one played a more important role than he did in shaping the military justice system we enjoy today, and few have equaled him in leadership and vision. I commend to you Major General Nardotti's superb exposition of General Hodson's career, given at this lecture two years ago, and published in volume 151 of the Military Law Review.3 I view the opportunity to speak as the Hodson lecturer as one of the high points in my career.

Almost twenty-six years ago, on 12 April 1972, General Hodson delivered the first Hodson lecture. I arrived in Charlottesville three days later to begin Phase II of the sixty-fourth Basic Course. At the time, I did not appreciate, or even know, what I missed, but I have since come to regret that I was not present for that address which is published in volume

57 of the Military Law Review.4 I commend it to you as well. The title of that address was "The Manual for Courts-Martial, 1984."

Remember that this was 1972. The 1969 Manual-which to the majority of people on active duty today is as ancient as the Dead Sea Scrolls-was less than three years old at that point. That Manual implemented the Military Justice Act of 1968, and included changes at least as far reaching as those instituted by the Uniform Code of Military Justice (UCMJ) in 1951. General Hodson was a prime mover in bringing about the 1968 changes. Nevertheless, he was already talking about additional changes.

Many of the changes General Hodson suggested that day have since come into effect: a separate chain of supervision for defense counsel; eliminating the requirement for the convening authority to detail military judges; reducing the convening authority's post-trial role to one of clemency; authority for interlocutory appeals by the Government; and direct review by the Supreme Court of decisions of the Court of Military Appeals, just to mention a few. Some others have not been adopted, such as: selecting court-martial panels by jury wheel; judge alone sentencing; and a system of standing courts-martial, known as "Magistrates Courts" and "District Courts." Many of these suggestions are still worth considering today.

In his article, General Hodson discussed how he came up with the name for his speech:

When I started to prepare these remarks, the title of my talk was to be, "The Manual for Courts-Martial-2001." After reading Alvin Toffler's Future Shock, I decided that I could not predict what is going to be here in 2001. I was encouraged to shorten my sights by a recent address by the Commanding General of the Combat Developments Command, entitled "The Army of the Seventies." I concluded that if the command that is charged with planning the Army of the future can't go any further than the Army of the 70's, which is now, it would be ridiculous for me to try to go out to 2001. So I settled for 1984.5

By incredible prescience or a remarkable coincidence, when the 1969 Manual was replaced, it was with the Manual for Courts-Martial, 1984. Today, I am not going to try to compete with that. I chose the somewhat cryptic title "Manual for Courts-Martial, 20X" in order to avoid pinning myself to a specific date. The Army has used "Force XXI" and the Joint Chiefs have used "Joint Vision 2010" to describe the forces of the future. The abbreviation "20X" is a hybrid of those, with enough ambiguity that I cannot be wrong.

As General Hodson did a quarter century ago, I do want to talk about how military justice might change over the next decade or so. The only unqualified prediction I will make is that military justice will change. As Thomas Jefferson said:

[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.6

These words of Mr. Jefferson, which appear prominently on a wall at The Judge Advocate General's School, express more eloquently than I can, the necessity for military justice to change if it is to survive and thrive. The only question is how.

To address that question, I would like to do four things. First, I want to remind us of those basic principles which we must always keep in mind when addressing military justice. Second, I will briefly recount the history of military justice; I think it is essential to know where you have been and how you got where you are before setting off in new directions. Third, I will examine some of the trends and forces at work that will affect the military justice system. Fourth, and finally, I will discuss several specific changes I would make in our system, and some other areas that warrant careful study.

II. Basic Principles

As with most legal questions, a good place to begin is the Constitution. I know you are all familiar with the powers of Congress7 and the President8 over the armed forces and military justice, but I would like to begin with an even more fundamental point, the Preamble:

We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.9

It is important to recall two things when you consider those words. First, as lawyers and as military officers, we have as large a role as any members of our society in helping to meet those goals that the Framers adopted. That is something of which we can be proud.

Second, those words remind us that all power flows from the people and that, through the genius of our constitutional structure, there is a direct bond between the people and the men and women in the armed forces. Every soldier, sailor, airman, and marine takes the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.10

That oath is not to the President, the Congress, the Government, or to the fatherland or motherland; it's to the Constitution, and thereby to the people. At the same time, the people, through Congress and the President, assume responsibility for the men and women of the armed forces, and a

primary means by which they have exercised that responsibility is mentioned in that oath-the UCMJ.

As those charged with the administration of the UCMJ, we must bear in mind our responsibility and accountability to the people and their elected representatives. This is our system; but in a greater sense it is theirs. We are simply the trustees.

The American people care very much about their soldiers, sailors, airmen, and marines. Although we can express concern that a preoccupation with casualties sometimes limits our country's freedom to act on the world stage, we can hardly deem it unhealthy that the people value highly the lives of their men and women in uniform. Think how sad it would be if they did not. At the same time, the people care greatly about how the military performs its missions. They expect it to fight and win our nation's wars, and to execute other missions flawlessly, and to do so in accordance with our country's values. They expect it to protect noncombatants, to treat the enemy humanely, and, above all, to take care of its own. Thus, they care very much how servicemembers are treated by our justice system-just witness the number of articles in the news about military justice in recent years. The American people want and expect an effective, disciplined force in which the rights of each servicemember are protected.

This concern for soldiers, sailors, airmen, and marines reflects another fundamental truth-what I call the eternal truth. Success in any military mission depends on many things: the equipment, the doctrine, the plan, the supplies, the weather, and so on. Such factors have varied greatly through history, but ultimately the success of every military mission depends on a group of relatively young men and women doing their jobs well under difficult, demanding, often dangerous circumstances. That success, their success, does not just happen; it is the product of a system of individual and group development which builds competence, confidence, cohesion, morale, and discipline. George Washington stated it best: "Discipline is the soul of an Army."11

By discipline I mean not fear of punishment for doing something wrong, but faith in the value of doing something right. This aspect of military justice is often misunderstood. When we say we want a disciplined force, we do not mean we want people cringing in fear of the lash. This is not to deny the coercive power of the law or to suggest that it is unimpor-

tant; clearly it is. After all, at George Washington's request, in 1776 the Continental Congress increased the maximum number of lashes from 39 to 100.12 But the coercive power of the law requires only the minimum, the lowest common denominator: it impels the lazy, the indifferent, and the cowardly to do what is specifically required of them on the battlefield, in order to avoid defeat and disaster. It does not, by itself, provide the motivation, the morale, to do the utmost necessary to encourage valor and to ensure victory. General George Marshall stated, "[i]t is not enough to fight. It is the...

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