WITHIN

ITHIN THE MILITARY community, the maintenance and preservation of discipline among men traditionally has enjoyed a position of primacy in the hierarchy of values subscribed to by the society of soldiers. Within the civilian sphere, however, the term "discipline" attracts little allegiance as a societal aspiration and only in the most sterile sense is it considered in any wise a meaningful estimate of the degree of maturity attributable to a modern state. Indeed, in some quarters a concept of civilian social order which is founded upon mere "discipline" invites an image of a society antithetically opposed to the Anglo-Saxon vision of liberty and human dignity in perpetuity. Compatible with these lofty objectives, however, is the principle, constitutionally woven into the fabric of American society, that order is best achieved through justice equally administered under law. Thus, a fundamental dichotomy of ancient origin exists between two mutually suspicious factions of modern government. Although the precise line of demarcation is frequently undiscernible to the naked eye, one is constantly aware of a juxtaposition formed by the military and civilian minds with respect to the methods of creating and preserving order within the respective social structures: the former espousing the proposition that emphasis must be placed primarily upon discipline as a precursor of military order, while the latter embraces the principle that societal security is only possible where sole and uncompromising allegiance is sworn to equal justice under law.

Over the years the development of military law, in large measure, may be viewed as a reflection of the inevitable friction occurring between the aforementioned principles of governance. Curiously enough, however, it was not until the advent of the Twentieth Century that civilian advocates initially sought to impose upon the military a more liberal standard of internal management. In response, the uniformed serv*Lieutenant Johnson is presently assigned to the Military Justice Division, Office of the Judge Advocate General. Lieutenant Johnson received an A.B. degree from the University of Michigan and an LL.B. degree from the University of Virginia. He has been admitted to practice before the courts of Virginia and Michigan and the U.S. Court of Military Appeals.

ices offered consistent and vigorous opposition from the inception of civilian intrusion until the arrival of the Uniform Code of Military Justice and beyond. It is the purpose of the ensuing discussion to consider a single aspect of this frequently painful struggle-ie., the role of the military commander in the administration of military criminal law. In a very real sense, the limited question of the degree of permissible participation by command in the administration of military jurisprudence forms a most appropriate crucible within which the more basic dilemma created by the confrontation between discipline and justice may be examined. The consideration of command control and the controversy arising therefrom will be accomplished through an examination of the problem as it has been debated within two prominent governmental forums, the Congress and the Court, concluding with a brief assessment of the future course of military law as revealed through recent developments concerning the question of command influence. In so doing, it is predicted that credence will once again be afforded the philosophy that opines that all history, including the hoary friction between military and civilian societies, may be viewed as a tension between heritage and heresy which the laws seeks, in groping fashion, to mediate.

I

THE CONGRESS

Prior to the First World War, military law was embodied principally within two legislative vehicles the origins of which may be traced to the earliest years of the American union 1i.e., The Articles for the Government of the Navy 2 and the Articles of War. As noted previously, little criticism was leveled at these codifications until the first great citizen's army was drafted into the service of the United States.

1. See Morgan, The Background of the Uniform Code of Military Justice, 6 Vand. L. Rev. 169 (1953).

2. Act of March 2, 1799, Ch. 24, 1 Stat. 709, as amended. 3. Act of Sept. 29, 1789, Ch. 27, 1 Stat. 95, as amended.

Following the close of the World War I, cases of tyrannical oppression, arrant miscarriages of justice, and frivolous appellate consideration were revealed by returning Doughboys. Not only was public opinion significantly aroused, but a bitter schism developed in the ranks of the military with each side having its advocates on the floor of the United States Senate.* Forces led by Senator George E. Chamberlain of Oregon demanded a radical revision of the Articles of War while the then Secretary of War, Newton D. Baker, defended the Army's methods of administering military law.5

In 1919, the so-called Chamberlain Bill was introduced in the Senate seeking (1) to provide adequate legal representation for an accused confronted with the possibility of courtmartial; (2) to insure the impartiality of military tribunals by removing the control of commanders; (3) to permit enlisted men to become members of courts-martial; and (4) to establish an adequate system of appellate review. This initial attempt to discourage the participation of military superiors in the functions of courts-martial was smothered in congressional committee and never received the benefit of an exhaustive debate.

Although the Articles of War were subsequently successfully amended in 1920, it is apparent that no provisions were either introduced or passed directly pertaining to the elimination of command control. In addition, the Articles for the Government of the Navy, never having contained an injunction proscribing the injection of precedence into courts-martial proceedings, were unaltered by Congress during the legislative upheaval following World War I. Nonetheless, perhaps the first official, albeit non-legislative, injunction against command interference with the functions of a military court was fashioned by the Navy through a publication supplementing the Articles for the Government of the Navy. While referring to the potential liability of court members for misconduct in the performance of judicial duties, paragraph 374 of Naval Courts and Boards, 1937, stated: "The members of a duly constituted and organized court martial can not be interfered with in their proceedings by naval authority." It would be folly to contend that this brief observation in a secondary source of

4. See 58 CONG. REC. 5384-85 (1919).

5. See 58 CONG. REC. 3938-48, 6494-6503 (1919).

6. S. 64, 66th Cong., 1st Sess. (1919).

7. Act of June 4, 1920, Ch. 227, 41 Stat. 787.

8. Naval Courts and Boards (1937).

9. Id. at 207.

naval law pertaining to an unrelated topic could be extrapolated legitimately into a direct departmental prohibition against illicit liaisons with courts-martial. However, it does indicate a passing judgment by naval officials upon the then debatable proposition that attempts to interfere with "a duly constituted and organized court martial" were improper if not expressly unlawful.

Notwithstanding the liberality of this departmental pronouncement, the basic Articles of War and Articles for the Government of the Navy remained essentially unchanged from 1920 until the aftermath of World War II when once again it was the returning soldiers and sailors of a predominately civilian armed force that gave voice to the abuses and injustices all too frequently characterizing wartime military jurisprudence. While the old Articles seemed to function satisfactorily-at least no complaint of significance was heard concerning their adequacy-in time of peace when the regular soldier was the sole object of military discipline, the civilian outcry arising at the end of World War II was such as to compel the urgent attention of the War Department. The excesses of the military judicial system were first afforded official recognition by the then Secretary of War Robert P. Patterson, on 9 June 1945, when a clemency board was appointed to review all cases tried by general court-martial in which an accused was still in confinement.10 After V-J Day Secretary Patterson appointed the War Department Advisory Committee on Military Justice, more commonly denominated as the Vanderbilt Committee, the membership of which was nominated by the American Bar Association. In addition, the Navy appointed a similar board charged with the duty to review all cases tried by general court-martial and to return recommendations concerning the administration of military justice.11

Congress, as well as the Executive, was concerned with the reported injustices associated with the application of military law by returning combatants. Consequently, on 1 August 1946, the so-called Durham Report 12 was received by the House of Representatives within

10. This Board, more familiarly known as the "Roberts Board," reported in 1946 that it had reviewed more than 27,500 cases and had reduced or remitted the sentence in 85 percent thereof. See Hearings on S. 857 and H.R. 4080 before a Senate Subcommittee on the Committtee on Armed Services, 81st Cong., 1st Sess. 63 (1949).

11. This Board was more familiarly denominated the "Keeffe Board." For the findings and recommendations of this body regarding command control see Rep., Gen. Court-Martial Sentence Rev. Bd. 62 (1945).

12. See H.R. REP. NO. 2722, 79th Cong., 2d Sess. (1946).

which it was strongly recommended that three Articles of War be amended to prohibit the censure, reprimand, or admonishing of military personnel with respect to the discharge of military judicial responsibilities. Following upon the heels of the Durham Report was a document containing a recitation of the findings of the Vanderbilt Committee.13 After conducting extensive hearings covering the entire spectrum of military jurisprudence, it is significant to note that the primary recommendation advanced by the Vanderbilt Report advised "The Checking of Command Control." Among other recommendations designed to achieve the elimination of excessive command participation in the military legal system, the Report suggested that (1) the Manual for Courts-Martial contain a provision proscribing as unlawful attempts by any person to influence the action of an appointing or reviewing authority or a court-martial in the exercise of its judicial duties; (2) the Manual for Courts-Martial include a provision prohibiting reprimands against any court or member thereof; (3) the Manual for Courts-Martial should contain a statement to the effect that members of courts-martial must exercise their own judgment in imposing sentences; and (4) the law member of a court-martial and defense counsel should be required, as a jurisdictional prerequisite, to be trained lawyers.14

Quite predictably, following the release of the Vanderbilt Report a number of proposals were placed in the legislative hopper with a view toward a revision of military justice. Only two proposals, however, are worthy of extended attention. On 7 January 1947, Representative Carl T. Durham presented to the body of which he was a member a measure designed to eradicate many of the evils reported by returning servicemen with respect to the administration of military justice.15 Included within the so-called Durham Bill was a provision to amend the Articles of War so as to provide: The authority appointing a general, special, or summary court-martial shall not censure, reprimand, or admonish such court, or any member thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise, by such court or any member thereof, of its or his judicial responsibility.18

13. See WAR DEPT., REPORT OF ADVISORY COMMITTEE ON MILITARY JUSTICE (1946).

14. Id. at 6.

15. See H.R. 576, 80th Cong., 1st Sess. (1947).

16. Id. § 8.

It will be noted that this amendment incorporates without deviation the previous recommendations advanced by Representative Durham's investigating committee.

Subsequently, on 17 March 1947, an act was introduced in the lower house by Representative Charles H. Elston of Ohio 17 proposing to amend the Articles of War and, in particular, Article 88 thereof, as follows:

Any person subject to military law who attempts to coerce or unlawfully influence the action of a courtmartial or any military court or commission, or any member thereof, in reaching the findings or sentence in any case, or the action of an appointing or reviewing or confirming authority with respect to his judicial acts, shall be punished as a court-martial may direct.18

After holding lengthy hearings on the proposed legislation, including the Durham Bill, Mr. Elston reported a measure to the full Armed Services Committee which, in essence, combined in a proposed amendment to Article of War 88 the provisions of both bills pertaining to command influence.19

The so-called Elston Act was then presented to Congress and enjoyed a stormy history which degenerated into a power struggle between the Secretary and Under Secretary of War on the one hand, and on the other, various bar associations and veterans' organizations whose membership had experienced the inequities of military law during the Second World War. Since the Elston Act by no means proposed to exile military commanders from all participation in the affairs of military law, the controversy surrounding the measure centered upon the more limited question of whether, as suggested from certain quarters, an independent corps of legal officers should be established in the Army. Such an interrogative, however, indirectly raised the more basic point of contention-i.e., the degree of independence that the administration of military law would enjoy with respect to command pursuant to the proposed legislation. The protesting civilian organizations argued that the provisions of the proposed Elston Act did not sufficiently guarantee the sanctity of military justice. Nonetheless, the controversy was resolved in favor of the military with the House Armed Services Committee observing: "We consider these provisions (the combined sections of the Durham and Elston Bills pertaining to command control)

17. See H.R. 2575, 80th Cong., 1st Sess. (1947).

18. Id. § 33.

19. See Hearings on H.R. 2575 before the House Committee on Armed Services, 80th Cong., 1st Sess. 4163-64 (1947).

adequate to stop this phase of 'command influence.'" 20

The Elston Act was ultimately enacted as a rider 21 to the Selective Service Act of 1948, and represents the initial legislative injunction pertaining to command influence in the administration of military jurisprudence. It should be noted in passing that while proposals were made during this period suggesting amendments to the Articles for the Government of the Navy, 22 no legislation was enacted revising this codification until the adoption of the Uniform Code of Military Justice in 1951.

The Elston Act had no sooner received presidential approval before a supplemental volume was issued by executive order in the form of the Manual for Courts-Martial, 1949. The provisions of the Manual designed to interpret the legislative judgment concerning command influence offered an extended discussion of the intended impact of Article 88 observing:

A commanding officer may, through his staff judge advocate or otherwise, give general instruction to a court-martial which he has appointed, preferably before any cases have been referred to it for trial. Such instruction may relate to the rules of evidence, burden of proof, and presumption of innocence, and may include information as to the state of discipline in the command, as to the prevalence of offenses which have impaired efficiency and discipline, and of command measures which have been taken to prevent offenses. Such instruction may also present the views of the Department of the Army as to what are regarded as appropriate sentences for designated classes of offenses. The commander may not, however, directly or indirectly give instructions to or otherwise unlawfully influence a court as to its future action in a particular case."

Notwithstanding the passage of the Elston Act, Congress practically concurrently found itself involved in the business of developing a new code pertinent to military justice. However, on this occasion emphasis was placed upon fashioning a body of law uniformly applicable to all the armed services. Charged with the duty of providing leadership in the drafting of a uniform code was Dr. Edmund M. Morgan, Jr., of the Harvard Law School whose experience in the struggle to revise the military judicial system dated from the visionary efforts following the First World War. When Dr. Morgan and his

20. H.R. REP. NO. 1034, 80th Cong., 1st Sess. 8 (1947). 21. See 94 CONG. REC. 7510 (1948) where Senator James Kem proposed that the two measures be combined.

22. On 22 May 1947, a proposed bill concerning naval justice was transmitted by Acting Secretary of the Navy John L. Sullivan to the Speaker of the House. However, no provisions were contained therein pertaining directly to the question of command influence.

23. MCM, 1949, para. 87b.

committee presented their proposed Uniform Code of Military Justice to Congress 24 an instantaneous reaction similar to that accompanying the introduction of the Elston Act occurred within the bar associations and veterans' organizations across the nation. Once again civilian groups attempted to persuade Congress to remove from command the last vestiges of control over courts-martial by prohibiting the former to convene tribunals and appoint the membership thereof, and vesting that power in an independent judge advocate or legal officer.25 In essence, although the civilian opponents of the UCMJ recognized the laudable purpose behind the bill's counterpart to Article of War 88-i.e., Article 37, UCMJ-the belief was widespread that such an injunction was ineffective to achieve the ultimate elimination of all improper command interference with respect to courtsmartial in the performance of their judicial functions.26

In response to critics, Dr. Morgan, testifying before a congressional subcommittee, noted:

We were aware of the criticisms which had been made against the court-martial system and the defenses that have been put forward in its behalf.

We were convinced that a Code of Military Justice cannot ignore the military circumstances under which it must operate but we were equally determined that it must be designed to administer justice. We, therefore, aimed at providing functions for command and appropriate procedures for the administration of justice. We have done our best to strike a fair balance, and believe that we have given appropriate recognition of each factor."

What were these functions of command to which appropriate recognition was allegedly afforded by the proposed UCMJ? Dr. Morgan listed the following as legitimate areas of activity in legal affairs for commanding officers: (1) the convening of courts-martial; (2) the reference of charges to courts-martial; (3) the appointment of court members; and (4) the initial review of the findings and sentence adjudged by the courtmartial.28 In an attempt to assure that the contemplated judicial system would operate in a manner consistent with the realization of maximum justice the drafting committee "examined ways and means of restricting the commander to

24. H.R. 4080 and S. 857, 81st Cong., 1st Sess. (1949). 25. See H.R. REP. NO. 491, 81st Cong., 1st Sess. 8 (1949). 26. See Hearings on H.R. 2498 before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess. 644 (1949). 27. See Hearings on S. 857 and H.R. 4080 before a Senate Subcommittee of the Committee on Armed Services, 81st Cong., 1st Sess. 37 (1949).

28. See Hearings on S. 857 and H.R. 4080 before a Senate Subcommittee of the Committee on Armed Services, 81st Cong., 1st Sess. 38 (1949).