Air University Review, November-December 1981

Discipline and Justice in the Armed Forces

The first Uniform Code of Military Justice for United States Armed Forces came with the unification of the services in 1947. At that time, the American people were ready for an end to war. In this climate of hopefulness, the United Nations was created and the U.S. Congress abolished the War Department and created the National Military Establishment, now called the Department of Defense. The Articles of War had to yield to the Uniform Code of Military Justice (UCM).

Some of the changes made in the name of uniformity must have loomed large to the military services at the time. It must have been difficult for the Navy to give up "Captain's Mast" and the Army its "Company Punishment" in favor of something called Article 15. In hindsight, and compared with changes yet to come, these initial changes were less significant than they seemed. Mainly, they were structural rather than substantive.

At the same time, the International Law of War was developing, as it always does after a major war. The Geneva Conventions of 1949 espoused the innovative concept that neither a Declaration of War nor a formal recognition of a State of War is required to activate the international law protecting the victims of war. The law of "war" had become the law of "armed conflict."

In spite of hopeful feelings, the United States has been unable to disarm. At an interservice legal meeting in 1977, an Air Force judge advocate complained that the U.S. Marines in Okinawa were greatly increasing his work because of their constant misbehavior in the local community. The Marine Corps spokesman rose to reply and said he understood the Air Force did not approve of’ Marines’ fighting in bars, but he reminded the Air Force that someone has to know how to do that. So, it seems someone must study war.

When the Articles of War were being sanitized in 1949, one reference to war was retained or perhaps overlooked: the oath administered to court members. That oath called on members faithfully and impartially to try according to the evidence, their conscience, and the laws and regulations provided for trial by court-martial, the case of the accused now before the court, and that "if any doubt should arise not explained by the laws and regulations, then according to the best of your understanding and the custom of war in like cases." As a young judge advocate, I was most taken with that phrase, "the custom of war in like cases." It was a link to history and tradition, to a military common law, to be found in the accumulated experience of centuries of warfare. It was not a dark and apocalyptic vision of he law. "The custom of war in like cases" was a polestar, a reference point outside the context of any current hostilities—a stable and continuing view of man’s better side, visible even in the worst of circumstances—enduring and certain to survive.

In my expectation of survivability for this glorious concept, I had overlooked the possibility of revision from within; I had failed to recognize how many of my military colleagues were pining to reinvent the civilian criminal justice system. They were embarrassed by charges that military justice was second-rate. When they heard that "military justice is to justice as military music is to music" they did not accept that as a statement of fact, a recognition of the necessary differences between the two systems. Rather, they sought to change military justice to meet the criticisms of people who saw no reason to have a separate system. There were also those of us who wanted to be called "Judge." That has a good ring to it. We military lawyers wanted to don those robes and breathe that air. And, in our zeal to civilianize the Uniform Code of Military Justice, we changed the oath of the court members. The authors of the 1969 manual attached so little significance to "the custom of war in like cases" that it was abolished. Now, the manual merely requires court members to take an oath to perform their duties faithfully. No one forced these changes on us. "We have met the enemy and they are us."

In the early ‘60s not everyone was pursuing the goal of civilianization in the military justice system. Indeed, it was largely a military phenomenon. As a practical matter, only a small cognoscenti know or care anything about military justice in peacetime. Attention such as was given by the civilian community grew from the new practice during peacetime of stationing large forces abroad. Reid v. Covert, and the line of cases following after, terminated military jurisdiction over civilians. It is a basic premise of that line of cases that military courts are and ought to be fundamentally different from Article III courts. Consequently, military courts should not try civilians.

In 1962, Chief Justice Earl Warren, presenting the James Madison lecture at New York University Law Center, addressed himself to "The Bill of Rights and the Military." His remarks were published in the New York University Review. Although nearly twenty years old, they are less dated than the later opinion of Associate Justice William O. Douglas in the O’Callahan case. Chief Justice Warren recognized the need for a separate and different system of military discipline, operating under the Congressional Article of the Constitution, not subject to the legal limitations constitutionally required of judicial bodies established by Article III. He noted that the authors of the Bill of Rights were also authors of the constitutional authority for Congress to raise an Army and to make rules for its governance, and the authority of the Chief Executive to act as the Commander in Chief of the Army. Chief Justice Warren saw no essential conflict between the Bill of Rights and the court-martial system as it existed in 1962. He spoke favorably of the Court of Military Appeals as a specialized appellate court having the necessary expertise in the area of military discipline to deal routinely with questions that would be unfamiliar and therefore difficult for civilian courts.

I believe that the military forces require a distinctly different system of criminal justice. Therefore, there are limits we should not exceed in "civilianizing" military law. Before examining why a different system is required, let us look for a moment at how Americans normally go about revising their military criminal law.

Obviously, the civilian community has an interest in any effort to revise military criminal law. Unfortunately, the different perspectives of military and civilian lawyers engaged in revision efforts often lead to misunderstanding or noncommunication. Typically, the civilian view is that the military justice system should be proceeding on a path toward total congruence with the civilian system. Failure to reach the final goal of civilianization may be tolerated as a temporary measure. On the other hand, there are always some judge advocates who feel that any change in the existing law will bring fearful consequences. This is the "burning bush" view of the Uniform Code. There is also institutional inertia. Some of us are like the lady from Boston who asked, "Why should I travel? I’m already here."

When the ‘49 Code was being examined in the Senate, the Chairman of the Committee that drafted the code, Dr. Edmund M. Morgan, Jr., of the Harvard Law School, testified that the new uniform code

That seems to be the standard way to go about it. Specific complaints are identified, solutions are proposed, and the military declares them impractical. Here comes the Harvard Law School, and there go the JAG5 into a defensive crouch.

A popular pastime of military forces between wars is to determine how to win the last one. Military lawyers do this, too. Since the end of the Vietnam War, there has been much introspection and concern—many attempts to come to grips with the criticisms we incurred during the war. In each recent Congress, there have been one or more major proposals for revision of the Uniform Code of Military Justice, usually aimed at making changes just to increase conformity with civilian practice. Many of these proposals are already dated because they relate to a political context that no longer exists.

Besides this phenomenon of reacting to old news, there are other common threads in revision attempts that we can identify. In fact, we can create a small list of how not to do it. A common defect of all reform is overkill. Closely related to that is our tendency to solve the same problem many times. If it is discovered that small cars have defective gasoline tanks, it seems to be doctrine in the consumer business these days that small cars should be recalled and modified or repaired. Not so in the military justice business. If we discover the military justice equivalent of a dangerous gas tank, we recall all the automobiles in the world and take off their gas tanks before returning them to their owners,

For example, cases of abuse of prisoners arise from time to time in any system of justice. We are all shocked to hear of people being brought into a courtroom in a cage, or in irons, or in dirty clothes. There are procedures for redress in both military and civi1ian jurisdictions. The military, though, has gone beyond solving particular cases of abusive treatment and virtually eliminated pretrial confinement. The Court of Military Appeals (COMA) now requires objective, documentable evidence that the accused intends to flee jurisdiction and that lesser forms of restriction have been tried and found wanting. The statutory criteria, "as circumstances require," have been considerably narrowed. In the fishbowl atmosphere of the military installation, it is difficult for the law-abiding majority to understand why apparently dangerous people must be released into the community to await trial. More important, the unique responsibilities of the military commander were not taken into account in the construction of the civilian rules concerning pretrial release.

About 50 miles north of New York City, there is a closed Air Force base, now called Stewart Airport. Twenty years ago, when the base was in operation, there was a road around the end of the runway to the back gate. There were no obstructions to visibility and no side roads or buildings, and the speed limit was 45 mph. A young lieutenant in a new red sports car ran down that road at speeds estimated at 75 mph. He ran off the road, turned over, and was killed: the next day the speed limit was lowered from 45 to 25 mph. No doubt the students of logic have a cubbyhole for that kind of logical error, for it is extremely common, especially in institutional decision-making.

Consider the sentencing procedure we use in lie court-martial. Since the members of the court adjudge the sentence, evidence in extenuation and mitigation is presented in the second-half of the trial. As a result of the Williams case, the defense has a right to call witnesses from anywhere to give mitigation testimony, and the government is obliged to pay for their travel. Often the "most essential" defense mitigation witnesses, who will testify as to their shock and chagrin that the accused has been found guilty of a crime, are located at the farthest points of the earth. I am convinced that the Air Force Military Personnel Center should review the computer program used to make assignments, for all potential mitigation witnesses are mysteriously being assigned to Korea!

In addition to this wasteful but eminently fair procedure, we have also solved the same problem by carefully restricting what the prosecutor may say in argument. Moreover, the documentary evidence of prior misconduct that may be admitted to rebut the former roommate from Korea is shrinking out of sight. We have in the Air Force truly independent defense counsel. Thus, the second-half of the bifurcated military trial provides the accused every reasonable opportunity to present his best case in mitigation of the offense of which he has been found guilty. Nonetheless, in the Hill case, COMA determined that if the commander or his representative interviews the accused after the trial to obtain further information on which to base a reduction in sentence by way of executive clemency, the interview must be regarded as an adversary procedure, and the defense counsel must be allowed to be present. Then the whole thing must be reduced to writing and included in the Staff Judge Advocate’s review, which the defense counsel is again entitled to address in his response to the review, required by U.S. v. Goode.

A senior enlisted adviser to the Commander in Chief of Military Airlift Command has stated ears from the younger MAC airmen is that discipline is inadequate or nonexistent in the Air Force. Like the little car with no gas tank, our system of discipline has become so encumbered that it can move forward only when it gets a big push. Often, it just is not worth it.

Another problem I see in the methodology of military law revision is the practice of smuggling extraneous policy into the system. In the Congress, the addition of nongermane amendments is a well-known phenomenon. It i:; said there are two things you never want to see made: a law and sausage! The military justice code carries its share of this kind of baggage, and I am not sure these policies have to be carried out, in micro, in the criminal law system of the armed forces.

For example, consider service unification. Assuming the validity of the unified Department of Defense, why did we have to have a Uniform Code of Justice in the first place? Is the disciplinary requirement of the captain of a naval vessel at sea in fact the same as that of the commander of a large Air Force training base in Texas or a U.S. Army in the field?

My first assignment in the Air Force was to a general court-martial-level legal office in the Arctic area. We dealt with disciplinary problems entirely different from those at stateside bases. Conditions at the small radar stations were grim, indeed. A group of approximately 95 men lived together for one year under conditions so severe that it was often impossible to go outside. At Saglek Air Station in Labrador one could not survive unprotected even one hour. The small buildings on the station were tied to the frozen rock cliff with cables, against the force of winds so great they could not be measured: they blew away the instruments every winter. When the wind rose outside, the drafts in the corridors connecting the buildings increased dangerously. When these interior drafts exceeded 20 knots, special fire control measures were initiated: a senior noncommissioned officer was detailed to walk the halls and a giant D-9 caterpillar was positioned with its engine running 24 hours a day. The tractor would be used to break the connecting corridors and push a burning segment of building off the cliff to save the remainder of the structure. In this environment, regulations prohibiting smoking in bed take on new meaning! I once prosecuted a man for arson—for deliberately setting fire to Saglek Air Station.

But another case that I reviewed from Saglek suggests more about the peculiar qualities of military life at remote stations. A sergeant with a previously outstanding record barged into the commander’s office, walked to his desk, dumped a butt can in the middle, saluted smartly, and retreated. To handle incidents of this kind, the commander must be judicious and flexible, and his decision, whatever it is, must almost always be upheld, or he must be relieved.

These are not isolated examples. The crew of a nuclear submarine, sailing submerged for months, has no contact with the outside world and far too much contact with fellow crew members stacked five-high in bunks. The balancing of the need for privacy and the need not to be bothered by misbehavior of others is a delicate process which goes on 24 hours a day. My emphasis is on "need" for privacy not the "right" to it, for I am describing the commander’s dilemma, not the lawyer’s. There are some things too important to be left to lawyers. It is a wonder to me that the military justice system works as well as it does under a variety of conditions. We must take care to leave suffident flexibility to accommodate the necessary differences among the different commands.

How about civilian control? A major principle of the National Security Act of 1947, and, more basically of U.S. Constitutional practice, is the principle of civilian control over the military. James Madison described it in the Fourth Federalist Paper. No one doubts it is a good thing, but must it be carried out in micro in the criminal law system of the armed forces? We must have an appellate court made up of civilians; the qualification is only that they be civilians. How far do we need to go inserting "civilians" into the system to be true to our Constitutional principles?

The General Accounting Office (GAO) has suggested that regional military courts, manned by civil servants, hear cases from all military departments in a particular part of the country. Why not refer more cases to existing civilian courts, including appellate courts, as has also been suggested? There is disagreement as to whether these moves would conserve manpower, but that is not the real issue. The issue is whether such changes would further Constitutional goals by improving civilian control, or whether they would harm the constitutionally protected responsibility of the Congress and the President to govern the military. The essential difference between the military criminal law system and the civilian system that it complements is the need of the commander to command and the derived need for the commander to play a role in the military justice system. This fact must be heeded when looking at proposals to insert more civilians into the justice system.

What exactly is to be achieved by the requirement for a civilian Court of Military Appeals? Are they supposed to bring Article III with them? I think not. A State Department official has suggested that perhaps the U.S. Commander in Chief, Pacific, should be a foreign service officer rather than a military officer because he writes so many messages to diplomatic posts in the Far East. I could recommend a Court of Military Appeals consisting of military officers, perhaps the judge Advocate Generals sitting en banc. All such proposals miss the mark. We need appellate judges to be their own men, not responsible to nor beholden to anyone in the management of the Department of Defense. But it stops there. We do not need another Article III court unable or unwilling to understand the needs of the military discipline they are supposed to be preserving.

It is a more subtle problem than the question of using civilians, but we also may invite difficulty when we borrow legal conclusions uncritically from civilian jurisprudence. Federal appellate decisions are authoritative, and when they provide answers to constitutional questions, we in the military pay attention. The difficult thing is to determine whether we have a military question to relate to the numerous civilian answers that are released by the courts. Consider, for example, the various exclusionary rules. For years, we had a statutory rule of strict exclusion of statements taken without the cautionary advice prescribed by Article 31. The fact that the military procedure was disadvantageous to the military police—substantially more so than civilian police rules at the time—was not considered significant. The Congress in the Uniform Code of Military Justice, the President in the Manual, and the Article I Military Appellate Courts in their implementing decisions had determined that there was a particular risk of involuntariness in the military service because of the workings of the system of rank and command.

Although I do not agree with the logic of every decision made in this area, I regard Article 31 and the decisions interpreting it as a good example of the evolutionary growth of military criminal law, carried on with close attention to the peculiar character of the military environment. The importation of Fourth Amendment "answers" into military law has sometimes been less well considered, less carefully tailored to the military situation. Chief Judge Fletcher has said, and I agree, that the court must rely on the briefs presented in particular cases. If counsel reach for the federal reporters, count up circuits, and argue mainly federal constitutional law issues as they are perceived in the civilian community, then, for sure, we cannot expect the Court of Military Appeals to take into account any peculiar military circumstances.

Thus, in the first Jordan case, the Air Force assumed too much and COMA’s first decision threatened considerable damage to status of forces agreements. On reconsideration, information about the peculiarities of the military context was added to the briefs, and the second Jordan decision is more precise. Like the federal courts in New York, in the series of narcotics cases including Tasconnino, Tujan, and Lyra, COMA saw that it is no part of our business to attempt to regulate the police of other countries. It will be sufficient to keep a close watch on our own.

In my opinion, the most successful revisions of military law are those that proceed from the premise that the system should be fine tuned, even changed, but always within the framework of a distinctly different legal system. Affirmative action is perhaps the best recent example wherein direct concern about the working of the military justice system was brought to bear and created changes in the system that appear to be useful and appropriate.

In 1971, concern over the apparently disproportionate number of disciplinary actions being taken against minority members in the U.S. Armed Forces brought about the creation of the DOD task force on military justice. The task force included the Judge Advocates General and prominent members of the civilian community, not all of them convinced of the need for a separate system of military justice. The task force traveled to many bases in the United States and overseas and prepared a comprehensive report, which dealt not only with justice but with the perception of justice by minority members in the armed forces. Specific recommendations were made by the task force, most of which were immediately carried out in the Air Force. Subsequently, Congress changed the code to require implementation of certain changes in all services. With the help of the DOD task force, we have today in the Air Force an independent defense counsel corps, an independent judiciary, and a statistical analysis system, the Automated Military Justice Analysis and Management System, which permits identification of bases and units that may be experiencing problems with minority cases. The detailed figures also enable us to refute inaccurate perceptions or rumors that may arise among our minority members.

All these changes augment existing military procedures that make the lot of the military accused so much better than that of his civilian counterpart. Have you heard that catalog lately? Maybe we should review that briefly.

In the military, Article ‘31 warnings preceded the evolution of the Miranda doctrine concerning the right to counsel in the civilian jurisdictions, and we continue to strengthen those requirements.

In the military, counsel is provided free of charge at all stages. Of particular significance is the separation of defense counsel from command in the Air Force. Not only is he independent, but he is a part of a very large worldwide organization with capability for investigative services, computer research, extensive library facilities, regular advisory services, and senior partners on call at the other end of the telephone.

The Article 32 investigation is clearly more favorable to the defense than is the civilian grand jury. In this military pretrial procedure, we allow nearly complete discovery of the government’s evidence prior to trial and permit full defense participation. We also allow the accused to be present at the investigation with counsel to confront and cross-examine government witnesses and even to present the defense evidence and arguments in mitigation for the investigator, who may be persuaded to recommend abatement of the prosecution at that stage.

Recent decisions of the Court of Military Appeals have greatly strengthened the right of the defendant to bring witnesses at government expense, even mitigation witnesses to give insubstantial testimony about prior good conduct of the accused. The court in other cases has greatly limited pretrial confinement in the military. The court has also imposed strict time limits on pretrial confinement and on posttrial review, thereby making already speedier justice in the military much speedier than in civilian jurisdictions. We have adopted the American Law Institute (ALI) insanity test. In the Air Force, plea bargains are used to a very limited degree, and the accused must initiate negotiations. The courts’ inquiry into the providence of guilty pleas and plea bargains is more exhaustive than even the federal practice under Rule 11 of the Federal Rules of Criminal Procedure.

The military member has a free record of trial, verbatim, in serious cases. His case is appealed automatically. Under Article 69 he may appeal to TJAG those minor punishments that are not automatically appealed. Sentencing procedure in the military court today gives the accused two bites at the apple of mitigation. In the second part of the trial, the sentencing hearing, the accused presents evidence and argument in extenuation and mitigation to the members of the court. Following the trial, he may reiterate this evidence to the convening authority requesting clemency. Conditions of military confinement are excellent and are characterized by elaborate and expensive rehabilitation programs having a very positive effect.

So where do we go from here? I doubt that we have finished changing the code. It will continue to evolve and modernize, but one hopes it will not shrink away to nothing. At all times and places, communication is a problem. Understanding what someone else is trying to do is extremely important if you are going to tell him how to do it. A former Judge Advocate General of the Army remarked a couple of years ago that unlike the Vietnam War period, we now actually have some judge advocates in the Army who have seen a soldier. He thought that was great. I believe there is also a need for spokesmen of the civilian bar making proposals about the military justice system to have some understanding of the context in which their suggestions will have to take root and hold. If the proposals do not relate to things as they are in the military today, they are unlikely to be of any use to us. The Court of Military Appeals regularly refers to American Bar Association (ABA) standards to resolve issues coming before the court. I think they should be aware of the ABA standards and consider them when they are applicable. But it is important to remember that the ABA standards were written for civilian criminal justice systems. The federal government has also published useful studies prepared by the National Advisory Commission on Criminal Justice Standards and Goals. The states have their own advisory commissions because we allow state criminal systems to be distinctive and responsive to their own conditions. The Department of Defense deserves no less.

It is very important to try to foresee the context in which military justice will function. It is a point of doctrine in the military that was practice in peacetime as we will fight. It is said the next war will be a "come as you are party." There will not be time to invent weapons, tactics, or discipline. We are often guilty of overconcentration on the lessons learned from the last war. Concern about military justice during the Vietnam War was peculiar to the political context in which that war was fought. The Levy trial, for example, was litigated more extensively than any military criminal case in U.S. history. (See Appendix 1.) Professor Joe Bishop says it is the Jarndyce v. Jarndyce of U.S. military law. He also notes that Captain Levy was nearly overwhelmed by volunteer lawyers, so many that they got in each others' way—his petition for a writ was signed by eight of them!

Many lawyers and members of the judiciary lost some of their respect for the manner in which the war was conducted by the government. They no longer hesitated to challenge military actions and orders. Individual soldiers sought and obtained court orders forbidding their reassignment to the war zone. On appeal, these cases percolated on up to the Supreme Court, and a few were upheld. The perception of national interest and urgency that guided the Supreme Court to approve the excesses of the government in the Japanese relocation cases during World War II, had become a perception during the later years of the Vietnam War that government was most likely wrong, generally overreacting, that national interest had been overstated or had changed, and that the military was incapable of noticing or reacting to these changes without judicial assistance.

The Supreme Court spared the military the embarrassment of a conclusive defeat when it reviewed the issue of the alleged vagueness of Articles 133 and 134 in the Levy case. But in this political context, the Supreme Court lashed out at the military in O’Callahan v. Parker, not only striking down conventional wisdom about the scope of military jurisdiction but invalidating 200 years of congressional enactments, releasing a rapist from jail, and castigating military lawyers and the horses they rode in on. The O’Callahan case got our attention. (See Appendix 2.)

The O’Callahan decision was and is extremely disruptive. Clearly, it was intended to be. But even those who are not particularly offended by its basic rule of priority for civil jury trials could have desired greater clarity and a less disruptive manner of effecting basic change. I am reminded of the instance in 1956 when the Illinois state legislature passed a one-line statute abolishing the rule in Shelly’s case. The enactment was a model of simplicity, but property rights in Illinois were greatly confused for years. Similarly, O’Callahan brought about basic change without direction.

The Court’s message to the military was simply "What you are doing is no good—you must stop it." Justice William O. Douglas’s extended dictum is polemic. It is an indictment, a lofty pronouncement of mismanagement. Its effect seems to have been very great on those military and civilian lawyers who already wished for a military justice system more like the Article III courts. The message they received was: "We must intensify our efforts to model the military justice system on the Article III courts. We will not only do everything they do we will try to stay ahead of them. At the same time, we will retain all of the extraordinary protections built up over 200 years to protect the military accused from unfairness in proceedings managed by his commander." We are left with a court-martial system in which it is devilishly hard to determine who we can try and who we cannot; in which some people who clearly should be tried are not; and in which technicalities have grown unreasonably. We must be concerned whether, over a period of time, these changes will have an adverse effect on the discipline of American military forces and their readiness to defend the United States.

These are heavy charges. Consider the situation of the officer who is guilty of conduct unbecoming an officer in violation of Article 133, and who is able, through one means or another, to terminate civilian prosecution. Suppose an officer rapes an enlisted person; suppose an officer gets so drunk that he frightens people he does not even know and nearly destroys their house in the nighttime. In both cases the typical reluctance of the civilian courts to take cases involving military members may combine with aggressive efforts to compensate or threaten the aggrieved parties, with the result that the civilian prosecutions abate. Under O’Callahan, the abatement of civilian prosecution is often the end of such cases. However, I believe the maintenance of discipline in the Armed Forces requires that we take action in such cases as nonconsensual sodomy perpetrated by an officer on an enlisted man. To be sure, we can discharge the officer administratively, but that may be an inappropriate outcome for a number of reasons, some of which involve the rights of the accused. Therefore, we must continue in cases of this sort to attempt to assert traditional military jurisdiction under Articles 133 and 134, to deal with serious breaches of discipline. The most recent decisions of the Court of Military Appeals are encouraging.

A case I reviewed recently confirms that airmen are well aware of the limitations imposed by COMA to supplement those mandated by the Supreme Court in O’Callahan and Relford v. Commandant. (See Appendix 2.) Two airmen at Dover AFB, Delaware, contacted each other by telephone at their duty stations and arranged a sale of drugs to be concluded that evening at an off-base location, the Blue Hen Mall. When asked why they went to the Blue Hen Mall, the answer was: to get out of Office of Special Investigation jurisdiction! The GI can be depended on to know how far he can go; the commander is entitled to no less.

Another example of O’Callahan gone wrong occurred when the Court of Military Appeals decided the Lazarro case. Most observers of Justice Douglas and O’Callahan felt what the Justice meant was a preference for U.S. Article III courts over U.S. military courts. Therefore, the decision should have little or no application outside the United States because most crimes committed by Americans outside the United States cannot be tried in American civil courts. However, in Lazarro, the Court of Military Appeals held that since the offense in that particular case was one proscribed by Title 18 and it theoretically could be tried in the United States, the military court had no jurisdiction.

This raises extreme practical problems. If the only American court having jurisdiction is a U.S. civilian court, how will the accused be brought before that court? Will he be transported there by the military without benefit of extradition procedures? What would be the constitutional basis for such a procedure? I believe there is none. What about the host government whose law has been broken. They generally agree that U.S. military courts may try certain concurrent jurisdiction cases in-country. But as one who has negotiated these agreements with a number of countries, I can assure you there will be little enthusiasm abroad for the departure of unpunished American military lawbreakers for the United States. Would a U.S. district court even be willing to take the case? Would the U.S. attorney welcome a long distance call from a judge advocate overseas telling him that the defendant is on the way, that he should be charged with stealing government property under Title 18 and, by the way, all the witnesses are in Japan! Can the U.S. attorney in fact enforce military standards of discipline? That is the basic issue.

After the questionable exportation of O‘Callahan in the Lazarro case, COMA has now reimported the dubious philosophy of nonprosecution into New Mexico in a case called U.S. v. Randy B. Carr. In a summary disposition, the court dismissed a specification for using marijuana in Alamagordo, New Mexico. There is no opinion published, but Judge Cook, in dissent, tells us in the Daily Journal of 28 August 1978 that neither federal criminal law nor the law of the state prohibits the use of marijuana in Alamagordo, New Mexico. The only legal prohibition against the use of the drug is in military law. He is, therefore, convinced that O‘Callahan does not require a preference for civil jurisdiction. And so we watched for the fall of the other shoe. Was it to be the rule that any offense which could have been but was not proscribed by state law may not be tried by court-martial? Fortunately, subsequent decisions have confirmed the military commander’s jurisdiction over off-base drug offenses having an impact on base. This was a close call.

Carr was a pot-smoking case. Not everyone likes the strong position taken by the Department of Defense against drug use in the Armed Forces. It is, I believe, well known that the policy differs from the enforcement policy of federal civilian law, enforcement agencies and the enforcement policies followed in many communities where military forces are stationed. But it is important to remember that decisions taken in marijuana cases pass into the jurisprudence and become part of U.S. military law for all cases.

Marijuana cases seem to provide a share of new law disproportionate to their significance. I believe it is beyond question that the Congress, the Commander in Chief, and the military commanders have the constitutional responsibility and power to determine that the maintenance of discipline and effectiveness in the armed forces requires a different policy with regard to prosecution of those who break the laws against selling and using marijuana. If that be so, who shall judge the need for the policy actually adopted and pursued in the Armed Forces?

Changes to military law, however they are brought about, should not only be consistent with standards of basic fairness to the accused, but they should recognize the separate nature of the military justice system and the reasons for it: the need of commanders to command, the requirements of the International Law of Armed Conflict, the need of individual service members for a structured and ordered environment in which to carry out the difficult and risky business of fighting wars. Take politics out and away from this deliberation altogether. The purpose of the military justice system is to preserve military discipline, not to break it down. If the war is unpopular, write to your congressman, or the President, or the general. Don’t pick on the GI! Don’t take away the reference points he needs to fight.

The Law of Armed Conflict is often under-recognized as a decision factor in this area. It is, in my opinion, the principal factor requiring a separate system of military justice.

Let us look for a moment with 20-20 hindsight at the Calley case. Some thoughtful things have been said about My Lai. While I was on leave in Hong Kong in 1971, I happened to overhear a two-hour British Broadcasting Corporation (BBC) documentary on the Calley case. After examining every aspect of the case, as only the BBC can do, the announcer formally concluded that the Calley case occurred because, in the rapid increase of U.S. forces during Vietnam, it had been necessary to take untrained young men who had not been to the military academies and make them officers. Clearly, the announcer said, if Calley had been a graduate of the U.S. Military Academy, he would have done no such thing. I listened in wonderment. I was unaware of the curriculum at Sandhurst, but I knew the United States service schools at that time taught the law of armed conflict mainly in the context of prisoner of war issues. Again, at the American Bar Association meeting in Montreal, in 1973, I heard serious discussion of the Calley case. Major General George Prugh, Judge Advocate General of the Army, discussed the need for improved training in the law of armed conflict. But General Prugh also noted that if a man does not know that you do not bomb hospitals by the time he is 18 years old, there may be very little the Army can do to teach him. We, therefore, cannot rely entirely on training and logic. We must rely on discipline.

Obviously, anything as big as the Calley case has many moving parts. The primary need in the Armed Forces today is not for a criminal law system to react after the fact to crimes, derelictions, or atrocities.

Rather, we in the military need a system of military law perceived by the soldier and the American public as essentially fair and designed to contribute to a sense of discipline sufficient that United States forces are ready to fight when they are needed, and to fight effectively and in a disciplined manner, fully subject to the limitations of the law and the directions of command.

It has not been shown that any armed force can function without an effective system of military discipline. Rather than try to prove it is possible to do so, let us continue our long and thus far successful effort to prove that we can protect the fundamental rights of American military personnel within a distinctly different and effective legal and constitutional framework.

Editor's note: Colonel Thorpe presented these ideas to the Military Law Committees of the Associate of the Bar of New York City and the New York County Lawyers Associate to assists those committees to understand the impact of proposals for major revisions in the Uniform Code of Military Justice which they were sponsoring.

Appendix 1. Parker v. Levy, 417 US 733,--S. Ct _41 L. Ed. 2d 439 (1974)

In Parker v. Levy, 417 US 733,__S. Ct __41 L. Ed. 2d 439 (1974), the United States Supreme Court upheld the court-martial conviction of Captain Howard B. Levy, United States Army, for the specific offense of willfully disobeying the order of a superior officer and violating two "General Articles" of the Uniform Code of Military Justice (i.e., Art. 133, conduct unbecoming an officer and a gentleman, and Art. 134, conduct prejudicial to good order and discipline).

The charges against Levy, a physician, arose from his actions while stationed at the Fort Jackson, South Carolina, hospital. Part of his duties as Chief of the Dermatological Service included dermatology training of Special Forces medics. Levy refused to perform this duty even after a direct order from his commander, The charges of violating Articles 133 and 134 arose from his public utterances to enlisted men in which he accused Special Forces personnel of being "…liars and thieves and killers of peasants and murders of women and children," and in which he stated that if he were a black soldier, he "would refuse to go to Vietnam," and if sent "would refuse to fight."

Second Lieutenant James L. Conrad, USAF
Legal Intern
Air University Law Center

Appendix 2. O’Callahan v. Parker, 395 US 258, 895 S. Ct 1683_____L. Ed. 2d__(1969)

Sergeant James F. O’Callahan was stationed at Fort Shafter, Oahu, Hawaii, in 1956. While on pass to Honolulu and dressed in civilian clothes, he broke into the room of a young girl and attempted to rape her. He was apprehended by civilian authorities and turned over to the military police; he confessed and was tried and convicted by court-martial.

In a habeas corpus proceeding years later, during the Vietnam War, O’Callahan claimed that the U.S. District Court for the Territory of Hawaii should have had sole jurisdiction to prosecute him because there was no link between the Army and his offense other than his status as a soldier. The Supreme Court, per Justice Douglas, agreed. The Court reasoned that while a person’s status, military or nonmilitary, was a key issue in the question of jurisdiction, it was not solely dispositive. Justice Douglas found that the only crimes to be under the jurisdiction of the military were those which were "service-connected." The Court distinguished the Constitutional powers of Congress to make regulations governing "the land and naval forces" arising under one section of the Constitution from the judiciary powers arising under another. The authority for court-martial arises under the former; the civilian courts from the latter. The authority of Congress to set the jurisdiction of the military courts was given a very narrow scope by the Court’s interpretation and conclusion that O’Callahan was entitled to a trial by the civilian courts. Hence, implicit in the Court’s decision is the availability of a US, civilian court to try the case.

In Relford v. Commandant, 40l USS 355, 91 S. Ct 649, 28 L. Ed. 2d 102 (1970), the Supreme Court greatly broadened military jurisdiction by setting out twelve criteria to use in determining whether an offense is "service-connected." Re/ford is now considered the primary case authority on military jurisdiction in this area.

For a general indictment of the O’Callahan decision and a discussion of Relford, see Homer E. Moyer, Jr., Justice and the Military, Section 1, pp. 400-20 (1972).

Second Lieutenant Timothy A. Hickey, Jr., USAF
Legal Intern
Air University Law Center

Colonel Norman R. Thorpe (B.A., University of Illinois; LL.D., George Washington University; J.D., University of Illinois) is Staff Judge Advocate, Hq United States Air Forces in Europe (USAFE). His previous assignments have been in Hq TUSLOG, Turkey; Office of the Judge Advocate General, Hq USAF; and as legal advisor to the U.S. Ambassador in the Philippines. He has written and lectured extensively on military-legal matters. Colonel Thorpe attended the Hague Academy of International Law and is a graduate of Squadron Officer School.

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.

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