Who Made the Law Officer a Federal Judge

• Author: BY Major Robert E. Miller
• Pages: 02

Since the enactment of the Uniform Code of Military Justice (UCMJ),' the law officer of a court-martial has been referred to as the counterpart of "a civilian judge of the Federal system."a This cornpariaon has conferred upon the law officer more than a descriptive label; it has 'been used as the basis for the award of powers and, concommitantiy, imposition of limitations, not ex-pressly preacrihed in the Uniform Code,

Who WBS it that made the law officer B Federal judge?

1. WAS IT CONGRESS?

The legislative history of the UCMJ is contained in some 1400 pages of congresaionai committee hearinma reports,' and debate.' It was drafted by a special committee appointed for that purpose. One objective was to establish a code of military justice 6 which, for the first time in our history, would provide a single SyStm? of militarv iustice for all our armed forces.7 Another aim was to

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*This artiele 881 adapted from Chapters 111 and IV of B thesis presented to The Judge Advocate General's School, U. S. Amy, Charlottes6lie. Virginia, while the author was B member of the Sixth Advanced Class.The opinione and conelusions exprwed herein are those of the author and do not neces88riiy reflect the view*.. of The Judge Advocate General's School or m y other governmental agency.

** Assistant Chief, Opinions Branch, Office of The Judge Advocate General; msmbsr of the Illinois State Bar; naduate of the University of Chicago Law Schml.

1 Act of 6 May 1950, 64 Stat. 108, codified into positive law, 10 U.S.C.

801-940 (1962 ed.. Supp. VI. %US. 7. Biesak, 3 USCMA 714, 722, 14 CXR 182. 140 (1954).

8Heating8 Baiars a Subcbmmittse of the Cmmittea en Amsd Swvicaa,

Hmue at Rwreemtatiws. 0% HR.

665-1307

(7 Mar ta 4 Apr 1949), heminafter referred ta BLI How* Subcmm

Scnete SubCmmittee Hearings. H.R. 4080 wan P "cleaned up" veinion

hereinafter referred to as How$ Full Cmmittaa Hsdllis: H.R. Rep. No. 491. 81at Cmg., 1st Sean. 1-110 (28 Apr leas), herdmiter referred to 88 H.R.

Rep. No. 491; S. Rep. No. 486, Elat Cong., 1st Seas. 140(10 Jun 1949). hereinafter referred to s% 8. Ben. No. 486.

I E.g., 95 Cong. Ree. 5718-6744 (1949) ; 96 C& Ree. 1p9%1810, 141%6E.g.. Enacting Clause of UCMJ; H.R. Rep. No. 491 at 2; S. Rep. No.

1417, 143C-1647 (1950).

486 at 1.7 H.R. Rep. Ne. 491 at 2; S. Rep. No. 488 at 2I C 0 3PnB 39

098, 81st Cow., 1st SBSB.

insure the maximum amount of justice within the framework of Bmilitary organization.B The hearings and debates on the UCMJ are filled with comments an and critioisms of excess- of command in-fluence over courts-martial in World War 11. This was the third time that command control was one of the moat troublesome problems confronting Congress in its efforts to revise our military justice s~stem.'~

Despite Congress' desire to limit command influence," the legislators did realize that commanders must retain some command control in military justice matters.12

Many who were familiar with the proposed UCMJ conceived of the law officer as a major deterrent to excessive command influ-ence.13 He was referred to as the person who would insure a fair trial." But these cancepts were ancillary to the frequently re-curing comment that the law officer would be similar to a civilian judge.

Although the law officer is mentioned in 11 UCMJ articlea,li the "law officer as B judge" concept is rooted in the texts and

8 Remarks of then Seerstmy of Defense Jamez Foriestal before the House

Subcommittee Zlvmber 1 of the House of Representatives Armed Sew-ices Committee. House Sub$arnmtlea Hsclrinas 581.9 E.& references cited in nates 3 and 5 ~tipra, partieulariy 96 Cang. Ree.

6721, 5723, 5726, E723 and 6727 (18481. l0Hoiras Full Cornniittes Hearings 1332; H.R.

Rep. No. 481 at 1; 85 Cone.

R e . 6721 (1949). See U.S. \'. Littrice, 3 USCMA 487, 480, 13 CYR 43, 65 (1953).

I1E.g.. " . . , , we have included numemu3 iestiietims on command."

Howe Full Committee Hsrringa 1332; H.R. Rep. No. 481 at 7 : "We have iried to prevent courts martial from being an instrumentality and agency to expre,a the will of the commander." Senate Suboammittee Hearinm 38; "And we want the eerviiees to be on notice that we are watching ta see whether there is going to be undue mfluence." Seaate Suboornmittse Haadnm 301; "Among some of the p~ovisims designed to prevent interference with the due administration of justice are , . . . '' 93 Cong. Rec. 1356 (1860). See 95 Cong. Rec. 1431 (1948) for critical comments on mior command abuses.l*E.g., "We hare pr'eaemed these elements of command in this bill," H.R.

Rep. Xo. 481 st 7, wherein are lilted sevsrsl of the command prerogstives whieh the UCMJ vests in commanders. See U.S. 7.. Littrice, 3 USCMA 461, 480, 13 CXR 43,48 (18E3).13 E g., H o u e Full Cmmitlea Heavings 1332; H.R Rep. No. 491 at 1;

Sennta Subommittre Hearinga 36, "To make the action of oourts martial and the proeedum far review free from his [the eommandei'al influence. we have eet up en impartial judge for the court martial . . . . "; 80 Cong. Res. 1360 (1860!, "Among some ai the provisions designed to prevent interfereme with the due administration of justice are the foi. lowing . . . the law omcer, , , . "

I(XOWIB FVII comittse HWWW~ me-1329.1jArtieles l(12). Ne), 15(i), 26, 28(b1, 37, 38, 4l(ai. 41(b!, 42(a), 51.

40 A 0 0 ?no

and 54, UCMJ.

legislative history of Articles 2618 and 61.17 Despite lengthy testimony and spirited debate concerning the status and duties of the proposed law officer who would replace the law member, Articles 26 and 51 were enacted without any change in the draft articles originally submitted to Congress.

A. Ezplanations bg Professor ,llWgan end Mr. Larkin Professor Edmund Morgan was the most persistent and vocal adva'ate of the law officer as a judge concept. He was chairman of the committee which prepared the original draft bill; he discussed salient aspects of the proposed bill at House of Representatives and Senate subcommittee hearings; and he was present in an advisory capacity during part of the congressional debate. He, more than any person, sought to interpret and give substance to Articles 26 and 61. His remarks .%re the one@ usually cited by the Court of Military Appeals when that Court refers to the congressional intent to make the law officer comparable to a civilian judge. His views certainly were not the only views though, and the writer ia of the conviction that other opinions concerning the proposed

26 Article 28 reads 88 foilowFB:

"(a) The authority convening a general court-martial shall deiaii as law officer thereof e, eommidaioned officer who iii B member of the bar of B Federal court or of the highest court of a State and who 15

certified to be qualified far ouch duty by the Judge Advocate General of the armed force of which he is e. member. No person is eligible to act as law offieer in a caie if he is the B C C Y S ~ ~ or a witnew for the proseeutim or has acted 8s investigating officer or as ~oun~elin the Bame care."(b) The law officer may not consult wlth the member8 of the court, other than on the form of the findings 88 provided in section 889 of this titie (article s9), ereept in the p~esence of the accused, trial c~uneel, and defense cmnsei, nor may he vote with the members of the eou~t."li Artiele 61 reads in part 88 follows:

....

"(b) The 1%- officer of a. general eaurf-martial and the president of

B bpeciai murtmartid shall rule upon interiocurary questions, other than challenge, srieing during the proceedings. Any iueh ruling made by the law officer of a general c0urtmmtial upon any interlocutwy question other than a motion for a finding of not guilty, or the question ai aceueed's sanity, ie final and emititutes the ruling of the court. How-ever, the law officer may change his ruling at m y time during the trial. Uniess the ding is final, if any member obieetr thereto, the eavrt shall be cleared and closed and the question decided by B voice vote as provided in seetion 852 of this title (article 621, beginning with the junior in rank.

"(e) Before B vote i~ takenan the findings, the law officer of B general court-martial and the president of B apDoid Court-martial shall. in the presenee of the accused and counsel, instruct the emrt as to the elements Ofthpoffenseandchargethecourt ...."

Article SO (eonsuitation with court in absence of accused and coun~el) and Article 41 (challenges) are perhaps the next two most importam Artieien with respect to the judge concept of the law officer, but they did not figure prominently in the legislative history.

A00 aens 11

status for the law officer were given short shrift by the Court of Military Appeals when that Court sought and found what it thought wm congressional intent with respect to the law officer.

The Morgan committee was split dawn the middle or the problem of the law officer's St8tUs. Amy and Air Force representatives wanted to retain the law officer &3 a court member who would retire, deliberate, and vote with the court. These two services had had experience with the law member required by the Articles of War. On the other hand, the Navy representative thought the legal arbiter of general courts-martial should be more like a civilian judge who does not act as judge and juryman." Profemor Morgan shared this view. Secretary of Defense Forrestal resolved the dispute by adopting the phraseology advocated by Professor Morgan and the Navy. The draft Articles 26 and 61 came to Congress in their present form by this unilateral determination made by the Secretary of Defense.19

The split on the law officer was one of three imues on which the Morgan committee could not agree.* This split, and the way in which it was resolved, was explained to Congress by Secretary of Defense Forreata1,al Mr. Elstnn,Pa Mr. Larkin," Professor Morgan/' and Senator Kefauver.8' It would seem from the foregoing that Congress' passage of Articles 26 and 51 of the UCMJ without amendment was an informed decision based upon a clear intent to separate the law officer...