U.S.

Military Justice: Present at the Creation

The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. Preamble to the U.S. Manual for Courts-Martial

By Martin Edwin Andersen In 1914, at the beginning of the 20th centurys wars of unprecedented reach, devastation and death around the globe, a retired West Point law professor, Asa Bird Gardiner, wrote a slender volume called Martial Law during the Revolution. Coming to the end of a long and controversial career, Gardiner plumbed the effects that the War of Independence had on subsequent military jurisprudence, particularly that of the Civil War in which he himself had taken part (winning a Congressional Medal of Honor, later revoked by the Army, for putative bravery during the Battle of Gettysburg). Examining the example set by General George Washington and the Continental Army, Gardiner found thatfaced with as cruel an infraction of the law of nations as then recognizedthe proto-United States had set an example of moderation in this respect which has since been generally imitated by Continental powers.1 The provocation Gardiner referred to was the execution without trial by the British Army of the American patriot Captain Nathan Hale, who had been captured behind enemy lines spying for Washington on Long Island. (Hales legendary example of courage and self-abnegation while facing death is taught even today in schools throughout the United States.) A month earlier, in August 21, 1776, the Continental Congress had adopted a resolution that stated that all persons not owing allegiance to the revolutionaries cause, found lurking as spies in or about the fortifications or encampments of the armies of the United States, shall suffer punishment or even death by means of a courts martial. Thus, despite the British adhered to the law of nations as they were at the time, Gardiner found that, The manuscript order books of the American Army during the Revolutionary war are full of instances of the trials, with due solemnity and regularity, by courts-martial or military commissions, as the case might be, of spies and other offenders against the laws and usages of war. Thus, even before the creation of the new nation, he observed, did a Court of regular officers show its respect for constituted authority and for the great fundamental rights of Englishmen in settled or discovered colonies, for which they were then contending, not the least of which were the rights which every civilian claimed to possess when charged with a Common Law crime: of presentment or indictment by a grand jury, assistance of counsel for his defence, and trial by an impartial jury of peers of the vicinage by due process of law. The break with past practice was particularly noteworthy by the fact that the rebelling colonists struggling for national existence, had to contend not only against invasions from abroad but against civil war, making all the more grave commission of the crime of being a guerilla-marauder or spy under international law or treason under municipal law. The example set by the Continental Army, Gardiner found, also extended far beyond the 13 colonies, or even the 48 states that comprised the United States at the time he was writing:
To the American Army is largely due the credit of formulating and reducing to definite rules the Code of Martial Lawa code that, as we have seen, received considerable development during the Revolution. The service of the allied French army under General Washington brought to its notice the humane and improved manner in which military authority was exercised by the Americans under this Code, and the knowledge thus acquired undoubtedly contributed towards the ameliorations exhibited in subsequent European wars.2

1 2

Gardiner, Martial Law during the Revolution (publisher unknown), p. 5. 5 Journals of the Continental Congress, p. 693; Gardiner, op. cit., pp. 5, 7, 10, 13.

Nearly a century later, as the United States investigated and debated atrocities allegedly committed by U.S. troops in Iraq and Afghanistan, and whether they were part of official policy, opponents of torture cited another example from the Revolutionary War. In his prize-winning book Washingtons Crossing, historian David Hackett Fischer traced how the rebellious continental leadership vowed their revolution would be marked by respect for human rights, including those of the enemy. Fischer recounted how Washington wept as he watched, through a spyglass, as the British slaughtered colonial troops taken prisoner in the Battle of New York. After the first battle of Trenton, December 26 and 27, 1776, several hundred of the Kings Hessian mercenaries were taken prisoner; Washington ordered that they be treated humanely. At risk to their own lives, American soldiers ferried their captives across the Delaware, the decency and kindness the prisoners were shown met by them with amazement. Washington, Fischer wrote, often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should extend even to their enemies. For example, Washington told the American officer in charge of 221 prisoners taken at Princeton, Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British army in their treatment of our unfortunate brethren. It was perhaps no accident that among the most vocal advocates of respect for human rights during the first important debate in the United States on military justice in the 21 st century were members of the armed forces Judge Advocate General (JAG) Corps.3 In the United States the role played by the military justice system reflects the unique institutional role of the countrys armed forces. In the Declaration of Independence issued July 4, 1776, the colonies enumerated a long train of abuses and usurpations, charged the British sovereign, King George III, with affect(ing) to render Military independent of and superior to the Civil Power, and thus set down the principle that military leaders were subordinate to legislative bodies elected by the people. This included both the requirements set down in the Articles of War, and in the convocation of military tribunals. In practice, however, the civilian judiciary over time has been markedly deferential to the armed forces own system of justice when it is called upon to review challenges to it. That deference reflects history, traditions of service, and daily practice. Even before the colonies won their independence, military law existed apart from civilian law in what became the United States, with recognition that the rights of individuals serving in uniform were not as extensive of those in mufti because duty and discipline demand a different regime for the armed forces. The appointment by the Second Continental Congress on July 29, 1775 of William Tudor as the Judge Advocate of the Army makes the office of the Judge Advocate General one of the oldest in the country, and served as early recognition of the special role to be played by military justice. That a separate body of regulations to govern the military was needed was explicitly recognized in the U.S. Constitution, in Article I, Section 8, Clause 14, empowering Congress "to make Rules for the Government and Regulation of the land and naval Forces." Legal scholar Eugene R. Fidell has noted: The received learning is that military justice is sui generis, springing from essentially different jurisprudential sources from those that gave rise to criminal and civil law. The Supreme Court has repeatedly sounded the theme that the military is of necessity a separate society with a correspondingly separate set of rules. At the same time, while in some nations subjecting uniformed personnel to military courts is seen increasingly the chances of leniency for the accused based on corporate identification and solidarity both real and imagined, it is an article of faith in the United States that, for most types of common crimes, many soldiers would rather be judged by civilian courts than by their more severe military peers.4 The Articles of War adopted in 1775 by the Continental Congress served, with amendments, as the body of law governing the U.S. military until the Civil War. In 1806 a statute comprised of 101 Articles of War was enacted that defined the procedures and punishments to be used by courts-martial. The second conflict with Britain, the War of 1812, underscored the pressing need for procedures for courts-martial to be spelled out. Then, in 1830, a conflict of interest question involving courts martial arose, when a major general not only
3

Fischer, Washingtons Crossing, New York : Oxford University Press, 2004; see, for example, Brig. Gen. (ret.) James P. Cullen, Standing Behind the Ban on Torture, Huffington Post, January 27, 2009, and Karen Greenberg, The Achilles Heel of Torture; What the JAG Memos Tell Us, Mother Jones, August 26, 2005. 4 Fidell, The Culture of Change in Military Law, in Eugene R. Fidell and Dwight H. Sullivan (eds.), Evolving Military Justice, Annapolis: Naval Institute Press, 2002, p. 163.

brought charges against a colonel, but also appeared before the court-martial as the principal witness for the prosecution and later was the officer in charge of approving the proceedings that resulted in a reprimand for the unfortunate lower-ranking officer. As a result Congress passed a law that, whenever a general officer was the accuser or prosecutor of any officer under his command, the general court-martial for the trial of such officer shall be appointed by the President of the United States. Previously, as set down in Article 65 of the 1806 statute, any general officer in command of troops could appoint general courts-martial, with the only exceptions that needed to be brought to the presidents attention for confirmation or approval were those cases where lives were lost or a commissioned officer was dismissed. 5 During the War with Mexico, General Winfield Scott ordered martial law to be applied both to U.S. soldiers and Mexican citizens, using military tribunals. Scott, worried about indiscipline and lawlessness by his own troops, feared the possible consequences, which might include a guerrilla uprising by Mexicans indignant about violations against their property rights and religious symbols. Scott said he could discover no legal punishment for any of those offences, for by the strange omission of Congress, American troops take with them beyond the limits of their own country, no law but the Constitution of the United States, and the rules and articles of war. These, he wrote, do not provide any court for the trial and punishment of murder, rape, theft, &c., &c.no matter by whom, or on whom committed. In creating the tribunals, the general claimed his order respected the jurisdictions of both the military tribunals and the courts-martial, as none of the former shall try any case clearly cognizable by any court martial. Scott also claimed that the order worked like a charm; that it conciliated Mexicans; intimidated the vicious of the several races, and being executed with impartial rigor, gave the highest moral deportment and discipline every known to an invading army. Nonetheless, some of the judicial actions taken by the U.S. military during the war were reviewed and overturned by the Supreme Court, which also limited the right of the Executive or military officers to create tribunals outside the United States.6 During the Civil War President Abraham Lincoln suspended the writ of habeas corpus and declared several regions under martial law. In response, an activist Congress passed legislation to regulate the suspension of the writs. However, it was not until after the fratricidal conflict came to an end that the Supreme Court imposedin Ex parte Milligan (1865)limits on military tribunals when civilian court were open and operating. During the period 1861-1865, when the use of the tribunals had soared, federal courts exercised little of its power to reign in either martial law or use of the military tribunals. However, a key innovation came from the Executive Branch itself when, in April 24, 1863, General Order No. 100Instructions for the Government of Armies of the United States in the Fieldwas promulgated. The 157 terse paragraphs covered topics ranging from flags of truce, martial law and treason. The "Lieber Code"named after their author Francis Lieber, a German-born veteran of the Napoleonic Wars and a professor at Columbia College in New Yorkwas revised by a board of officers, and then promulgated by Lincoln. The Code, which reflected to a great extent existing laws and customs of war, represented the first attempt to codify the laws of war and included instructions for military commanders on the treatment of prisoners of war, irregular guerrilla forces, and captured enemy property. (Article 148 of the Code presaged a debate that continues until our time: The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.) Although it was binding only on the United States military, the Lieber Code strongly influenced the further codification of the laws of war and the adoption of similar regulations by a number of countries in Europe, which had already begun to codify laws of war for future conflicts by means of binding international treaties. (In 1856 seven European countries signed the Declaration of Paris regulating the seizure of neutral ships bearing enemy goods. A year after Lincoln promulgated the Lieber Instructions, twelve nations from the Old Continent signed the Red Cross Convention covering the treatment of the wounded of armies in the field, an agreement to which the United States signed on in 1882.) Perhaps the Lieber Codes most important contribution in the international arena
5 6

4 Stat. 417 (1830) Johnson, Winfield Scott, pp. 166-168; 2 Memoirs of Lieut.-General Scott, (New York: Sheldon & Company, 1864), pp. 392-393, 396, 544; Jeck v. Montgomery. 13 How. (54 U.S.) 498, 515 (1852).

was its inspiration for an international convention on the laws of war presented to the 1874 Brussels Conference, as well as the adoption of the Hague Conventions on land warfare of 1899 and 1907.7 During World War I, shortly after Asa Gardiner published his chronicle of the beginnings of U.S. military justice, a controversy erupted about amendments to the Articles of War. The Ansell-Crowder Controversy, named for the difference of opinion between Judge Advocate General Enoch Crowder and his assistant, Samuel Ansell, provoked a review of courts-martial procedure and the appellate review of military cases so profound that it took the next three decades for consensus to emerge around Ansells position. Ansell was particularly motivated after 13 black soldiers were tried for mutiny at Fort Sam Houston, Texas, had their record of trial reviewed on a daily basis by the Staff Judge Advocate (the commanders lawyer) and were executed almost immediately after conviction, with the record of trial reaching Washington four months later, according to one authoritative study. The executions, one of the biggest mass applications of capital punishment without trial in U.S. military history, came after 63 enlisted men from the all-Black 24th Infantry, participating in violent protests in August 1917 against provocative police brutality and Jim Crow racial segregation laws, were arrested after the melee resulted in 18 fatalities, including 11 civilians. At bottom Ansells ideas offered a radically new concept of military law, one which would divorce the court-martial from the commanding officer and move into the vacuum thus created lawyers, civilian-like rules of procedure and evidence, and a complex system of appellate review to filter out whatever remnants of past attitudes still remained. 8 Although eventually forced from the Army, in large measure due to Crowders opposition, Ansell scored a shattering victory, his proposals eventually incorporated in a new Uniform Code of Military Justice (U.C.M.J.), the legal framework that was applied throughout the military. World War II also produced ferment among military justice theoreticians and practioners, particularly after the public outcry that followed revelations that during the conflict nearly one in eight American soldiers some two millon men and women under uniformfaced courts-martial, with more than 100 servicemen executed and 45,000 imprisoned. As a result, two important revisions took place in the three years after the conflict ended. Before the U.C.M.J was promulgated, the Articles of War regulated military justice in the Army, while in the Navy the governing code was called the Articles for the Government of the Navy. The Elston Act, in amending the Articles of War still in effect, offered military personnel better legal representation and greater protections, and was a precursor to the U.C.M.J. Not only was the Elston Act pivotal because it fueled the appetite for reform by focusing on the significant differences between the revised Articles of War and the unchanged Articles for the Government of the Navy, Andrew S. Effron has noted. It also established the balanced approach to military justice that Congress would employ thereafterrecognizing the disciplinary needs of commanders by retaining unique military offenses and procedures, while simultaneously providing servicemembers with a number of rights more expansive than those available in the civilian sector, such as the right to counsel at trial and on appeal regardless of indigence, automatic appeal of felony-type cases, expansive appellate powers, and self-incrimination rights and warnings, even for persons not in custody. 9 Created by a committee convened by the new Department of Defense in response to a congressional request for a criminal code, the U.C.M.J. was an effort to unify the distinct system of military justice of the
7

Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office, online at: http://avalon.law.yale.edu/19th_century/lieber.asp; see also, Richard Shelly Hartigan, Liebers Code and the Law of War, Edison, New Jersey: Transaction Publishers, 1985, and Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, (Cambridge: Cambridge University Press, 2005), pp. 2829. 8 1 Francis A. Gilligan and Frederic I. Lederer, Court-Martial Procedure, Vol 1, 1991, (New York: Lexis Publishing, 1993), cited in Lederer and Barbara Hundley Zeliff, Needed: An Independent Military Judiciary: A Proposal to Amend the Uniform Code of Military Justice, in Fidell and Sullivan, (eds), op. cit., pp.31-32; see also, Hayward Woody

Farrar, Identity, Patriotism, and Protest on the Wartime Home Front, 1917-19, 1941-5, in Alton Hornsby, Jr. (ed.), A Companion to African American History, (Hoboken, N.J., Wiley-Blackwell, 2005).
9

Pound, History of the Uniformed Code of Military Justice, U.S. News & World Report, December 16, 2002; Andrew S. Effron, The Fiftieth Anniversary of the UCMJ: The Legacy of the 1948 Amendments, in Fidell and Sullivan (eds.), Evolving Military Justice, op. cit, p. 172

Army, Navy and Coast Guard. Made law in March 1950 and coming into effect 15 months later, the new jurisprudence changed the military justice system in several substantial ways. Not only did it expand the jurisdiction of courts-martial, outline the procedural structure of military justice, and offer a general list of substantive criminal offenses. The Uniformed Code also provided an accused significant procedural safeguards, including the right to legal counsel, to remain silent, to be informed of the nature of the accusation (charges), as well as to be have these rights explained. Edward T. Pound, writing some thirty years after its promulgation, captured the cutting-edge innovations contained in the U.C.M.J. that transcended just the military sphere: More than 15 years before the Supreme Court's historic Miranda decision, the code gave service members the right to remain silent and to be informed that any statement could be used against them at court-martial.10 Some of its provisions address common law crimesarson, larceny, murder and rapeas they are defined in state codes. The U.C.M.J. also includes those offenses unique to the military, including absence offenses (such as absence without leave and desertion), dutiesand-orders offenses, superior-subordinate relationship offenses (such as contempt for officials and mutiny), and combat-related offenses, such as misbehavior before the enemy and misconduct as a prisoner. The U.C.M.J. operates in a three-level courts system similar to that of civilian courts. Criminal matters, handled by three types of courts-martial, are analogous to civilian trial courts. A general court-martial is employed for serious offenses, and requires the prosecutor, defense counsel, and the military judge must be lawyers. The military judge advises a court of five or more members on matters of law and makes rulings about the introduction of evidence. Any penalty that is authorized by the UCMJ as punishment for the offense may be imposed. Intermediate-level offenses are heard by a special court-martial, with three or more members. The defendant may choose to be tried by a military judge. The maximum sentence that may be imposed by this venue is six months of confinement, forfeiture of pay, reduction in rank, and a badconduct discharge. A summary court-martial, in which only one officer hears the case, is reserved for the prosecution of enlisted personnel accused of minor offenses. Upon conviction, the accused faces a maximum penalty of confinement for one month, the loss of two-thirds of a months pay, and a reduction in rank. In all cases in which the sentence involves death, imprisonment for a term of one year or more, or a punitive discharge, must be reviewed by a Court of Criminal Appeals (CCA), normally a three-judge panel made up of lawyers who may be either commissioned officers or civilians. Before a sentence can be executed, the court must also affirm any sentence imposed by a court-martial. Each armed service has its own CCA. The U.S. Court of Appeals for the Armed Forces (USCAAF), an appellate court consisting of three civilian judges appointed by the president to serve 15-year terms, is the highest civilian court responsible for reviewing the decisions of military courts. All cases where the death penalty is imposed, those forwarded by the Judge Advocate General of each service for review after CCA review, and certain discretionary appeals are heard by the USCAAF, whose decisions are appealable to the U.S. Supreme Court. Recognizing that military courts are by their nature different from civilian courts, the Supreme Court has limited the jurisdiction of the Uniformed Code. Soldiers already discharged from service cannot be court-martialed for offenses committed while in uniform. A crime committed by a member of a military service must be related to that service in order for the Code to apply. The U.C.M.J. also does not have jurisdiction over civilian employees of the armed forces overseas and civilian dependents of military personnel accompanying them overseas. Critics of the U.C.M.J. complain that under its provisions the free speech and other constitutional rights of military personnel are severely and unnecessarily restricted. For example its nonjudicial punishment clause Article 15is seen as prone to abuse, bias, and conflicts of interest. At a moment when many of the 2.7 million men and women who serve in the active-duty armed forces, Reserves, and National Guard units may be called to put their lives on the line, it is an issue of particular urgency, asked U.S. News & World Report in 2002. Why is it, critics ask, that these men and women are governed by a system of justice that provides a standard of fairness inferior to that guaranteed to even the most hardened criminals who appear each day in America's civilian courts?

10

Pound, History of the Uniformed Code, op. cit.

Commanding officers, known as convening authorities, wield far more power than any prosecutor in any of America's civilian courts. They decide whether to prosecute a service member. They handpick jury members. They decide whether to approve, disapprove, or amend guilty verdicts and sentences issued by juries and military judges. Critics say the power to pick jurors is the Achilles heel of the system, likening it to allowing a prosecutor alone to pick the jury in a civilian case. Military appeals courts have criticized commanders for "unlawful command influence," or manipulating the process to convict an accused member. Despite those warnings, legal experts say, military lawyers have prosecuted only one command-influence case--and that was nearly 50 years ago. The system heavily favors prosecutors. Trial by court-martial almost always results in a guilty verdict. All the armed services have a real, if unwritten, double standard for criminal prosecutions. Military prosecutors can throw the book at enlisted men and women, but the services tread lightly when it comes to generals and admirals. Some have been disciplined and forced to retire, but the military has courtmartialed only three general officers--two Army generals and an admiral--in the past 50 years11

Fifty years after the Japanese attack on Pearl Harbor, another act of warfor the first time the work of a non-state actorthe attack on the World Trade Center and the Pentagon on September 11, 2001, saw President George W. Bush sign a military order authorizing military tribunals to be used for trying noncitizens suspected of terrorist planning and attacks. As a result, a form of military tribunalcalled military commissionswas created that closely track(ed) the model established by President Franklin D. Roosevelt for a military tribunal appointed in 1942 to try eight German saboteurs, the jurisdiction for which was unanimously upheld that same year by the Supreme Court in Ex parte Quirin. (Interestingly, in Quirin the high court, whose justices were aware that Roosevelt had violated several Articles of War, took three months to draft a decision that was able to achieve unanimity.) 12 Under the rules and instructions issued by the Pentagon in 2002 and 2003, the commissions operated out of Guantanamo Bay, Cuba. However, a Supreme Court ruling in Hamdam v. Rumsfeld called into question the legality of the commissions, as they were constituted at the time. In response, Congress passed the Military Commissions Act of 2006, establishing a new set of procedures for trying suspected alien unlawful enemy combatants using commissions, the current status of which came under review with President Barack Obama assumed the presidency in 2009.13 Understanding the U.S. experience in military justice is imperative for a number of reasons. As an important institution in the oldest democracy in the world, both its progressive development and the old and new controversies that surround it point to the evolving nature of justice more generally, common to other democracies. The very eruption of American democracy on the world scene brought with it sea changes in conceptions and practices of military justice on distant shores, from the example of George Washington and the bedraggled patriots at Valley Forge, through the Civil War, and then up to and including the latest Iraq campaign. What Winston Churchill once said about democracythat it is the worst system, except for all the others that have been tried and found even more wantingis true about this important democratic underpinning. The unprecedented nature and velocity of the challenges the world faces today suggest understanding of the U.S. experience remains both vital and necessarily incomplete. By sharing that experience and its strengths while learning from criticism from both at home and abroad, and by making a real attempt to understand the jurisprudence of other countries, those concerned with human rights and national security might hope to find the more perfect common ground Martin Luther King referred to when he wished for all Mankind the riches of freedom and the security of justice. 14

11

Edward T. Pound (et. al.), "Unequal Justice. Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine " U.S. News & World Report, December 16, 2002; see also, Kevin J. Barry, "A Face Lift (and Much More) for an Aging Beauty: The Cox Commission Recommendations to Rejuvenate the Uniform Code of Military Justice," Law Review of Michigan State University-Detroit College of Law (Spring 2002). 12 Louis Fisher, Summary, Military Tribunals: Historical Patterns and Lessons, Congressional Research Service, July 9, 2004. 13 Louis Fisher, Nazi Saboteurs on Trial; A Military Tribunal and American Law, (Lawrence: University Press of Kansas, 2003), pp. 109-121. 14 Martin Luther King, Jr., I Have a Dream, Washington, D.C., August 28, 1963.