Army Courts-Martial: The Dourle Standard

by SAMUEL MORGAN

1

THE administration of military justice in the Army does not want for critics. Some complain of unconscionable convictions and sentences in individual cases; others attack the system as a whole. Both groups have committed themselves to irresponsible and ignorant charges attributable in the main to lack of information rather than any sinister motive, a circumstance not at all astounding in view of the secrecy in which the current appellate procedure is shrouded. Both groups, however, are symptomatic of the widespread dissatisfaction with military justice and the growing sentiment for immediate reform.

Constructive action would normally follow, were it not for an almost universal inability to focus criticism at the precise source of the evil apparent in numerous examples of inequitable court-martial judgments. In other words, the question is not, Is anything wrong with the court-martial system? It is, What is wrong with it?

The answer, though simple enough to be summarized in two sentences, is largely legalistic and its ramifications are exceedingly complex. In brief: —

1. There is an irreconcilable conflict between law and militarism, between the mind of the lawyer and that of the military commander. One stresses “legality” and “justice,” the other “discipline.”

2. The existing Articles of War represent a confused and confusing attempt to reconcile those irreconcilable elements.

The word “law,” as here employed, is intended to describe that body of rules for the regulation of society which has traditionally been enforced through the judicial branch of government by judges and counsel trained in, and indoctrinated with, constitutional and common law.

Military justice has an entirely different background. Historically it has been administered by the executive branch of government, and its judgments have been influenced by “policy,” “military necessity,” and at times the whims and caprices of the military commander. Whether men were tried or not tried, sentenced harshly or leniently, retained in or expelled from the service, often depended upon the exigencies of the situation rather than upon any fixed rules of conduct.

True, military justice was administered within the framework of a “legal” system usually described as the Articles of War, but the rules therein enunciated were a code unto themselves susceptible to free interpretation suitable to the needs of the occasion and wholly independent of civilian law. With one unimportant exception, appeals from the judgment of a court-martial to a Federal or state court were not permitted, for courts-martial were not “courts” in the accepted sense, but executive agencies, whose findings were final and not judicially reviewable.

Because of the tyranny to which the Articles of War lent themselves, Congress has on occasion revised them with a view to obviating their more serious intrinsic evils. In each instance an attempt was made to incorporate into the military code certain of the salient safeguards with which civilian law has surrounded the defendant in criminal prosecution. The hope, of course, was that military justice would thus be assimilated into the great body of traditional law under whose protection our civilian population has attained personal freedom and security.

The last and most radical change occurred in 1920, when Congress, as part of a general overhauling of the Articles of War, provided for the first time for an effective system for the appellate review of courtmartial sentences. Article of War 50 1/2 created a “board of review consisting of not less than three officers of the Judge Advocate General’s Department.” In the relatively few cases requiring Presidential confirmation, this new body was to examine the record of trial, to submit an opinion thereon, and, in short, to act as Staff Judge Advocate — that is, legal adviser — to the President. With respect to the great mass of cases not requiring Presidential confirmation Article 50 1/2 stated that “no authority shall order the execution of any . . . sentence of a general court-martial involving the penalty of death, dismissal not suspended, dishonorable discharge not suspended, or confinement in a penitentiary, unless and until the board of review shall, with the approval of the Judge Advocate General, have held the record of trial upon which such sentence is based legally sufficient to support the sentence. . . (Italics mine.)

The divergent and conflicting meanings given to the words italicized constitute the key to most of the inconsistencies and abuses of military justice. Standing alone, the phrase “legally sufficient” would in itself have provided ample cause for disagreement between the military mind and the legal mind. Article of War 37, however, adds fuel to the controversy by providing in substance that the judgment of a trial court shall not be set aside because of any improper ruling on evidence or any error of pleading or procedure unless the “error complained of has injuriously affected the substantial rights of the accused.”

Seizing upon this statutory sanction of “irregularities,” those adhering to the traditional and prevailing military point of view have insisted that the Articles of War constitute an independent, integrated, and complete code which guarantees to the accused summary “justice” but not all of the safeguards and legal niceties of civilian law. To a dissenting group, on the other hand, the words “legally sufficient” represent the clear and unequivocal intention of Congress to ensure to every accused all of the substantial rights which would be granted him in the event that he were tried for the same offense by a civilian court.

These, then, are the fundamental legal and historical factors involved. Let us inquire into their practical application.

2

THE principle that military justice is the prerogative of the executive branch of government is often more pointedly expressed in the well-worn phrase, “Discipline is a function of command.” But these latter words, while conveying the idea of executive control, contain certain sinister connotations.

In the first place, if “military justice” and “discipline” are regarded as synonymous and interchangeable terms, the decision in each court-martial case need not rest upon the individual facts presented but may be based upon the disciplinary requirements of the military unit to which the accused is attached. Thus, to take but one example, should absence without leave become too prevalent in a division, a soldier guilty of the offense may be assessed punishment that will be proportioned not to his culpability but to the deterrent effect upon such other members of his organization as may be tempted to stray.

In the second place, if military justice is a function of “command,” the primary responsibility for its administration must be vested in the military commander rather than in his professionally trained legal adviser, the Staff Judge Advocate. When the opinions of the commander and the Staff Judge Advocate clash, the latter, being inferior in the military hierarchy, must yield, despite his obviously superior qualifications to pass judgment on purely legal questions. The commanding officer has more than rank available to enforce his will, right or wrong: he determines the efficiency ratings of his subordinates. And since promotion is dependent to a considerable degree upon the “grades” one has received, a Staff Judge Advocate of strong character and uncompromising principles may find his meritorious service unrecognized and unrewarded. If the Staff Judge Advocate proves too recalcitrant, he may be transferred out of the organization to a less desirable berth.

Although dominance over the Staff Judge Advocate is vital to control of military justice, the commanding officer’s paramount authority is more directly derived from three powers specifically conferred upon him by statute. He (1) decides what cases shall be referred to trial; (2) appoints the trial court — that is, the court-martial; and (3) reviews the record of trial for the purpose of approving or disapproving it and extending or denying clemency. In the first and last of these functions he is required to act upon the advice of his Staff Judge Advocate; but woe betide the Staff Judge Advocate whose counsel does not please the commanding officer!

The court-martial can be, and often is, just as much under the thumb of the commanding officer as is the Staff Judge Advocate. Its members, of course, stand in the same awe of the commanding officer’s rank, and their efficiency ratings are also fixed by him. Some commanding officers are not content with the implied threat which these two circumstances convey. Many a court-martial has been haled before a commanding officer and specifically instructed by him that certain sentences would be “proper" and that, if they were not imposed, the members would be punished with low ratings.

In the Army Air Forces certain commanding officers even went so far as to publish and distribute directives fixing dismissal from the service as the minimum penalty in all cases involving a violation of the flying regulations. Since only Congress has the authority to establish a minimum, as distinguished from a maximum, punishment, the promulgation of these instructions was in open defiance of the most elementary and fundamental precepts of our system of jurisprudence. Yet, despite the obvious character of the coercion exercised, not a single court-martial protested or resisted, and undoubtedly scores of young officers were illegally dismissed.

In most instances the commanding officer does not need to express his desires to the court-martial, for it is understood that his reference of a matter for trial is an indication of his belief in the guilt of the accused. When, occasionally, a court acquits or imposes a trifling sentence, the commanding officer has two methods of evidencing his displeasure with the “uncooperative” attitude of his subordinates. The more drastic is the removal of a number of the offending members from the court. The other is to send every member a so-called “skin” letter — that is, an official reprimand. To the average civilian a communication of this type would be only a minor source of annoyance; to most officers it is a much tlreaded punishment, for it becomes a part of their record and may adversely affect their careers in the Army.

Sometimes, instead of instructing the court as to the “appropriate” minimum punishment to be assessed for a particular offense, the commanding officer will simply order the imposition in all cases of the maximum punishment authorized by law. The practice is in direct contravention of the provisions of the Manual for Courts-Martial, 1928, which require the members of the court to follow their own consciences in fixing the penalty to be exacted for an offense. Operating within the wide area of discretion which is granted to him by a maximum sentence, the commanding officer, in his capacity as the initial reviewing authority, can form his own opinions as to guilt or innocence, or as to the measure of culpability. and can disapprove the sentence entirely or reduce its severity as he deems fit.

Although courts-martial prior to 1920 were mere fact-finding agencies, the apparent intention of the complete revision made by Congress in that year was to endow them with certain important semi-judicial attributes. By extorting maximum sentences, commanding officers have again relegated courts-martial to the relatively inconsequential status of fact-finding bodies. Many of the exorbitant court-martial sentences which have received widespread publicity were in all probability due to this rather obvious device for the circumvention both of the Articles of War and the Manual for Courts-Martial. Subsequent mitigation of the sentences by the commanding officer as reviewing authority or by the Board of Review in Washington did not remove the bad impression which the announcement of the original sentences created among civilians.

A supine Staff Judge Advocate and a “cooperative” court-martial are sufficient in themselves to guide the course of military justice into the channels desired by the commanding officer. Since, however, nothing must be left to chance, extreme care is also exercised by the commanding officer in the selection of trial personnel. The general rule is that the Trial Judge Advocate, who is the prosecutor, must be an able and experienced lawyer, and the Defense Counsel either not a lawyer at all or, at best, an inexperienced or unskilled one. The exception arises in cases which have attracted or may attract public interest and newspaper comment. In these cases able counsel is usually appointed for each side. Of course no accused is under any compulsion to accept the Defense Counsel chosen by the commanding officer, but normally the accused, being poor and far from home and friends, can see no alternative.

From what has been said up to this point it. is patent that every step of the prosecution and trial can be effectively dominated by the commanding officer. If, as is usually the case, he is fair-minded and realizes his own limitations, he will forgo the exercise of his powers and will permit his courtsmartial, Trial Judge Advocates, Defense Counsel, and Staff Judge Advocate sufficient independence and discretion to guarantee an impartial and efficient administration of military justice.

If, on the other hand, as occasionally happens, the commanding officer is narrow-minded, tyrannical, and unscrupulous, the law has wittingly or unwittingly delegated to him tremendous authority which he can abuse to satisfy his own whims, prejudices, and personal animosities. lie is grand jury, prosecuting attorney, trial court, and intermediate appellate court all in one. He is a monarch in the ancient sense, and his word is law. As an administrator of so-called “justice,” he is a complete anomaly on the American scene. His autocratic hold upon all stages of the prosecution, trial, and initial review is the principal weakness of the system and accounts for most of the “evils” so often decried by enlightened critics.

3

THE vast number of relatively unimportant cases tried before “summary” and “special” courtsmartial — tribunals possessing only restricted punitive powers and comparable in civilian life to our justice of the peace and municipal courts — do not go beyond the commanding officer. He is the authority of last resort, the final hope, the ultimate appeal. The more important cases adjudicated by “general” courts-martial—tribunals endowed with almost unlimited criminal jurisdiction — must be transmitted to higher authority for further review.

Disregarding for the moment the procedure followed in the foreign operational areas in which Boards of Review were temporarily established during the war, general court-martial records, after leaving the commanding officer, are classified and disposed of as follows: —

Status of Accused Sentence Involving Final Review by

1. Enlisted in an

Dishonorable discharge not suspended, or confinement in a penitentiary

Board of Review and the Judge Advocate General

2. Officer

Dismissal not suspended, alone or coupled with any Other punishment

Board of Review, the Judge Advocate General, the Secretary of War, and the President

3. Officer with rank of General

Any punishment Same

4. Cadet

Suspension or dismissal, alone or coupled with any other punishment

Same

5. Officer or enlisted man

Death Same

6. Officer below rank of General, or enlisted man

Any punishment other than death, dismissal not suspended, discharge not suspended, or confinement in a penitentiary

Military Justice Section of the Judge Advocate General’s Office

Matters falling within the last group generally receive only perfunctory examination, for the Military Justice Section is without real authority to enforce its decisions. If it determines that substantial error has been committed, it cannot itself reverse the judgment but must transmit its recommendations to the Board of Review for further action.

Cases assigned to the latter body, whether directly from commanding officers or from the Military Justice Section, are more carefully and judicially scrutinized. As already pointed out, the Board of Review was created by statute in 1920 to appease a popular demand for the reform of the court-martial system. Unquestionably the establishment of this new appellate tribunal, which can be loosely described as the Supreme Court of the Army, represented a great step forward in the administration of military justice. It is also true that members of the Board were from the first chosen on the basis of merit and were accorded a degree of independence and freedom of expression which is unique in the military order. The historic military point of view, however, was not eradicated, but merely driven underground. By circumvention and illiberal interpretation the statute was so administered as to defeat in considerable measure the purposes for which it had been created.

One example of evasion of the law was simply to withhold from public knowledge the right of defense counsel to appear and argue before the Board of Review. The few who did avail themselves of this last chance to present their versions of the law and the facts were almost all civilians. Military counsel found it difficult, for one reason or another, to obtain leave to visit Washington on behalf of their clients.

Another more affirmative circumvention was effected by the shysterish employment of a supertechnicality. As already noted, the Board of Review acquired jurisdiction only when the sentence involved (1) the death penalty, (2) dishonorable discharge not suspended, (3) dismissal not suspended, or (4) confinement in a penitentiary. Since confinement in a disciplinary barracks did not fall within this last class of punishments, and could extend for any length of time, — including life, — and since a dishonorable discharge could be suspended temporarily, commanding officers who feared that a particular record might not pass the scrutiny of the Board of Review could and often did designate the disciplinary barracks as the place of incarceration, suspend the dishonorable discharge for a day or two, and then order it executed. All the statutory grounds for the assumption of jurisdiction by the Board of Review being absent as of the date on which the record was first approved by the commanding officer, the case would be forwarded to the Military Justice Section and would there receive the usual overspeedy and superficial examination.

The branch Boards of Review temporarily created in various foreign theaters during the war provide a, flagrant instance of illiberal interpretation. As can be seen from an examination of the outline at the beginning of this section, judgments falling within categories 2 through 5 do not in ordinary times become final until approved by the President, as the “confirming authority.” After our entry into World War II, however, the President, in order lo facilitate the administration of military justice in operational areas, divested himself of many of his powers as confirming authority and delegated them to “commanding general[s] of the Army in the field.”

Within their respective zones, and with certain noteworthy exceptions, supreme commanders stood in the shoes of the President, as confirming authority, but the manner in which they exercised their jurisdiction was quite different. Back in the States no case was ever presented to the President until after it had been examined by the Board of Review, whose members, consequently, were able to act without fear of pressure from “above.” In the foreign theaters, on the other hand, Article of War 50 1/2 was so construed as to require that records be approved by the confirming authority before being submitted to the branch Boards of Review. 'Idle latter were, as a result, constantly faced with a dilemma: they could in close cases attempt to compromise with their consciences to win or retain the favor of the supreme authority; or they could refuse to deviate even slightly from their principles and “buck” his wishes, with all the risks which such an “affront ” to his eminence involved. Barring a full investigation, no one will ever know which alternative was more frequently chosen; but most certainly a number of extremely doubtful convictions were sustained.

4

NARROW construction of the Articles of War reached its pinnacle in the artificial and unnecessary distinction drawn, for the purpose of review, between cases under Article of War 50 1/2 and those under Article of War 48. In the first group were included all convictions finally considered by the Board of Review and the Judge Advocate General; in the second were all convictions finally considered by the Secretary of War and the President. Under the arbitrary rule which it adopted and blindly followed, the Board of Review was authorized to examine “50 1/2” cases only for pure errors of law and it was at all times precluded from reweighing the evidence.

Indeed, in the absence of any substantial legal error, if there was any evidence tending to support the conviction, the Board of Review was duty bound to sustain the judgment rendered below. To this proposition a correlat ive practice was added: if the conviction was affirmed, the Board, generally speaking, was under no compulsion to state the reasons for its action. If the sentence was upset, an opinion in writing justifying the reversal was required.

When passing on Article of War 48 cases, on the other hand, the Board was expected to reweigh all the evidence and, in effect, to grant a new trial in which its findings were substituted for those of the trial court. In performing this function the Boartl, regardless of whether it reversed or sustained, was obliged to submit opinions in writing, setting forth its conclusions both as to the law and the facts.

Since “50 1/2” cases involved only enlisted men, and “48” cases covered all important sentences affecting officers and cadets and applied to enlisted men only when ihe death penalty was imposed, the result was caste discrimination at. its worst. Much ado has been made in the press over some of the privileges enjoyed by officers and denied to enlisted personnel. This, to my mind, is the most flagrant and most obnoxious example. We who pride ourselves upon our democratic institutions have, in this instance, deliberately and cold-bloodedly abandoned the fundamental principle of equality before the law. We have created a legal system which metes out one brand of justice to the officer and another to the enlisted m:m. Nothing could be more foreign and repugnant to our traditions.

One of the principal defects of the Articles of War lies in the authority granted to the Judge Advocate General to dissent from the opinions and holdings of the Board of Review. If he were limited to findings of a lesser offense than that approved by the Board, there could be no serious objection to the exercise of the power, but his dissent is not so circumscribed. If the Board believes that the record shows the commission of only a lesser included offense, — that is. an offense of the same nature but involv ing a lesser degree of culpability, — he may hold that the original offense, or its equivalent for purposes of punishment, has been proved. If the Board favors an acquittal, he may find that the offense as charged, or its equivalent, or a lesser included offense has been satisfactorily established.

In all cases of dissent, the President, or more commonly the Secretary of War, upon the advice of the Under Secretary of War, renders the final and binding decision. Now obviously neither the President, the Secretary of War, nor the Under Secretary can spare enough time from his other onerous and pressing duties to study court-martial records upon which he may have to pass. Matters requiring confirmation by the President are usually presented to him for his signature by his military aide, who, unfortunately, rarely has any legal training. In almost all cases the recommendations of the Secretary of War are followed; when the aide does differ with the Secretary, the reasons, more often than not, are extralegal.

The recommendations or final action of the Secretary of War are usually the end products of short conferences between the Judge Advocate General and the Under Secretary of War. Cases upon which the Board of Review may have deliberated for days and. even weeks are disposed of in a few minutes by the Under Secretary. By some remarkable coincidence his decision and that of the Judge Advocate General are almost invariably the same. Since the Board of Review is a human institution, it is far from infallible, but to believe that, in all differences between the Judge Advocate General and the Board of Review, the Judge Advocate General is always right is to strain one’s credulity to the breaking point. The instances in which Mr. Patterson, as Under Secretary of War, exposed himself to justifiable criticism in the administration of military justice were mostly those in which his views clashed with those of the Board of Review,

The last weakness in the appellate procedure is also the most reprehensible and the most inexcusable: namely, the susceptibility of the offices of the Secretary of War and the military aide to the President to political pressure. In the age of Francis Bacon public opinion still, in large measure, condoned the exertion of political influence upon judicial officers. The subsequent development of an independent and incorruptible judiciary was slow and frequently interrupted, but eventually, though perfection was never attained, the public and its judicial officers adopted and generally abided by a moral standard which excluded political favor, at least in its more obvious forms, from our legal processes. Although our courts have thus been delivered from evil, the same evolution has not occurred in all branches of our executive departments.

Politicians of all kinds, in and out of office, still consider it their prerogative to cajole or browbeat administrators of executive law into giving special treatment to “ friends.” This type of extralegal interference is all too prevalent in military justice at the appellate level. In a fairly recent case the accused was shown to have committed a planned and particularly brutal murder with robbery as the motive, to have hidden the body in a wood, and to have fled in panic from his organization to a temporary haven where he was finally apprehended. The trial court brought in a sentence of death, and the commanding officer affirmed. When the record was received in Washington, five Southern Congressmen appeared before the Board of Review and vociferously argued 1 hat the accused had acted in self-defense. The Board rejected the contention as being unworthy of serious consideration, but the five gentlemen were not dismayed. They carried their fight to the Secretary of War and to the President and finally emerged victorious with a commutation of sentence from death to life imprisonment.

Others more worthy of clemency than this particular man died on the gallows or before a firing squad. Their relatives and loved ones have a right to ask why the extreme penalty has been so capriciously exacted. They have a right to demand that “equal justice under the law be construed to mean equal justice for every man and woman in the Army, including the “friends” of Congressmen.

No system of law is better than the men charged with its enforcement. On the other hand, a legal system which offers to unscrupulous men obvious temptations for abuse can never be equitable or just.

Although countless proposals, some sound, some dubious, and some fantastic, have been advanced for the reform of military justice, only four fundamental changes are really necessary. These are: —

1. The establishment of a truly independent system of courts and justice within the Army. The Staff Judge Advocate, the Law Member of the courtmartial, the Trial Judge Advocate, and the Defense Counsel should always be members of the Judge Advocate General’s Department and should receive their ratings and promotions from the Judge Advocate General and not from the commanding officers of the organizations in which they may be serving. The Judge Advocate General should be endowed with supreme authority in all legal matters affecting the Army. To avoid the possibility of his deference to superior military rank, he should be given appointment as a civilian.

2. The distinction on review between Article of War 50 1/2 and Article of War 48 should be abolished. The evidence in every general court-martial case involving a penalty of death, confinement anywhere for a period of a year or more, dismissal not suspended, or a dishonorable discharge not suspended should be completely reweighed by the Board of Review.

3. The Secretary of War, the President, and the commanding generals of armies in the field should be replaced as the confirming authority by a board of three qualified civilians, who will be able to give adequate time to the consideration of differences between the Board of Review and the Judge Advocate General.

4. All political interference with the administration of military justice should be outlawed and made punishable in the same manner and to the same degree as contempt of court.

If some of these suggestions meet with objection because their adoption would entail an increase in the personnel and the expenditures of the Judge Advocate General’s Department, the answer should be that justice is not too expensive at any price. This country, rich as it is, can well afford to expand the pitifully small Judge Advocate General’s Department of the Army to workable proportions.