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his legitimate functions." 29 Among the methods devised to accomplish this purpose, Dr. Morgan mentioned: (1) the establishment of an impartial judge for general courts-martial; (2) a mandatory requirement that an accused be represented by an attorney before a general court-martial; (3) the requirement that a commander consult with a staff judge advocate or law specialist both before and after trial by general court-martial; and (4) the injunction contained in the proposed Article 37 prohibiting a military superior from censuring, reprimanding, or admonishing members of a court-martial.30 In the final analysis, the Chairman of the drafting committee characterized the committee's efforts as an attempt to establish "a system which resembles the independent civilian court placed. . . within the framework of military operations . . .' The ultimate decision with respect to the participation of commanders in the administration of military law under the proposed UCMJ was, of course, left to Congress. However, extensive and varied testimony received during congressional hearings clearly established the extremities of the controversy. The views presented ranged all the way from those who sponsored complete military control of the administration of justice within the armed services, to those who advocated a total absence of military participation. That Congress experienced considerable difficulty in reaching a decision is revealed pointedly through the following legislative observation:

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Able and sincere witnesses urged our committee to remove the authority to convene courts martial from "command" and place that authority in judge advocates or legal officers, or at least in a superior command. We fully agreed that such a provision might be desirable if it were practicable, but we are of the opinion that it is not practicable. We cannot escape the fact that the law which we are now writing will be as applicable and must be as workable in time of war as in time of peace, and, regardless of any desires which may stem from an idealistic conception of justice, we must avoid the enactment of provisions which will unduly restrict those who are responsible for the conduct of our military operations. Our conclusions in this respect are contrary to the recommendations of numerous capable and respected witnesses who testified before our committee, but the responsibility for the choice was a matter which had to be resolved according to the dictates of our own conscience and judgment."

29. Ibid.

30. Ibid.

31. Ibid.

32. H.R. REP. NO. 491, 81st Cong., 1st Sess. 8 (1949).

With the enactment of the UCMJ, Congress appeared to have adopted the Morgan approach to the administration of military justice. The UCMJ, as apparently conceived by Dr. Morgan, represented a philosophy of military jurisprudence that rejects the aforementioned extremes while affirming that the true solution to the military judicial dilemma lies in the creation of a legal system characterized by a precise and equitable combination of command participation and judicial independence; essentially, a philosophy which is not so much founded upon the aphorism that command has, contrary to widespread opinion, a legitimate role in the administration of military justice, but rather that emphasizes the concurrent obligations of the superior officer and independent judicial operatives in the just and equitable application of military law to the military offender. The question of import, as envisioned by Dr. Morgan, was one of emphasis, and through a calculated distribution of judicial prerogatives the drafting committee attempted to achieve, and direct emphasis toward, a delicate balancing of the material interests of command and accused, of discipline and justice.

33

Viewed in the light of this analysis, Article 37, UCMJ, the legislative off-spring of Article of War 88, represents not a single statutory bulwark against the escalation of illegal command control, but rather an architectural admonition warning inhabitants that within this congressionally constructed jurisprudential structure maximum justice will prevail only if each deftly situated girder is permitted to bear its own weight and no more. This conclusion is fortified somewhat by the fact that Article 37, like its predecessor, is in the nature of a punitive sanction directed toward military personnel, rather than a direct remedial provision addressed to courts-martial and reviewing bodies demanding the reversal of all proceedings tainted by excessive command intervention. Indeed, in view of the fact that few, if any, military commanders have been prosecuted for having violated the provisions of Article 37,34 perhaps the most effective function of the injunction has been to provide a general expression of congressional opinion concerning command control which may be considered among other pertinent factors in determining whether the equilibrium established and envisioned by the statute has been violated by the facts.

It would be unrealistic to accept the proposi

33. UCMJ, art. 37, 10 USC 837.

34. See United States v. Wood, 13 USCMA 217, 231, 32 CMR 217, 231 (1962) (Ferguson, J. dissenting).

tion unequivocally that Congress expressly intended to adopt the philosophy of Dr. Morgan and his fellow drafters in full detail. In fact, the legislative history accompanying the UCMJ reveals quite clearly that the passage of the Uniform Code was occasioned as much by pragmatic considerations as by any firm commitment to philosophical principle.35 Nonetheless, there can be little doubt that the lawmakers were aware of the moderation inherent in the Morgan approach to military justice and found such a cautious solution to the post-war dilemma extremely attractive when compared to the more radical alternatives.

Even though Congress sanctioned a system of military jurisprudence calculated by its designers to meld harmoniously the necessities of militarism and the experience of Anglo-Saxon judicial institutions, such modifying efforts would have proven neither practical nor effective without the direction and judgment of the United States Court of Military Appeals, itself a creature of the UCMJ 37 and one of the most significant elements comprising the judicial equation revealed through the Uniform Code.

II

THE COURT

Congress did not provide specifically that a military accused is entitled to be tried, if at all, by a court-martial the proceedings of which, from inception to conclusion, are characterized by a freedom from improper official advances. However, the USCMA, upon commencing its deliberations, served notice to the military community that it conceived of the UCMJ as an expression of a general legislative desire to guarantee the uniformed citizen a system of military jurisprudence notorious for fair-play and the realization of substantial justice.38 Furthermore, the Court tacitly exhibited an appreciation of the fact that Dr. Morgan and the drafters attempted to create an apparatus of complimenting judicial functions from the unabused operation of which an essential fairness, later denominated as military due process of law, might emerge. In United States v. Littrice, 39 Judge Latimer clearly expressed the fundamental construction of the UCMJ with respect to command control to which the high court has subscribed:

35. See H.R. REP. NO. 491, 81st Cong., 1st Sess. 8 (1949). 36. The United States Court of Military Appeals hereinafter will be referred to as either "the USCMA" or "the Court."

37. UCMJ, art 67, 10 USC § 867.

38. See United States v. Littrice, 3 USCMA 487, 13 CMR 43 (1953). 39. Id. at 491, 13 CMR at 47.

Thus, confronted with the necessity of maintaining a delicate balance between justice and discipline, Congress liberalized the military judicial system but also permitted commanding officers to retain many of the powers held by them under prior laws. While it struck a compromise, Congress expressed an intent to free courts-martial members from any improper and undue influence by commanders which might affect an honest and conscientious consideration of the guilt or innocence of an accused. Consequently, from the inception of the era of the Uniform Code, the USCMA attributed to Congress an express intent to (1) so distribute the judicial responsibilities established by the Code between command and inferior personnel as to create a precisely balanced system of legal administration; and (2) "free courts-martial members from any improper and undue influence by commanders." While the first objective had been accomplished by Congress with the adoption of the UCMJ, the second created a continuing policing obligation that the Code had not precisely assigned. By interpreting Article 37 as a congressional invitation to determine whether the Uniform Code's contemplated distribution of judicial obligations has been violated in a given controversy, the Court adroitly annointed itself as the ultimate arbitrator in a struggle originating in the aftermath of World War I, a conflict which, in a larger sense, illuminates and measures the existing proximity of discipline and abstract justice in military jurisprudence at any given time.

The question of illegal command interference with the operation of the military judicial system may arise in a variety of circumstances and, as a result, the decisions of the USCMA in this area are, in most cases, tailored to the particular type of command influence that is currently being challenged as improper. For want of a more accurate classification, the Court's opinions pertaining to command control have been categorized for purposes of the ensuing analysis as follows: (1) Command interference with court members prior to trial; (2) Command interference with court members during trial; and (3) Command interference with judicial personnel other than court members either before or after trial.

Any discussion pertaining to alleged efforts of superior military authorities to compromise court members in the exercise of their judicial duties prior to trial must commence with a cautionary note to the effect that certain intercourse between a commander and a courtmartial prior to trial is expressly contemplated by the UCMJ-i.e., the convening of the court

40

martial and the reference of charges thereto." The difficulty arises, however, when commanders seek to intensify their pre-trial relationship with either prospective or appointed court members beyond that degree of warmth expressly tolerated by the Code. The enterprising commanding officer is encouraged to explore beyond the precise prerogatives assigned to command by the UCMJ primarily as a result of certain language contained in a Presidential Executive Order purportedly implementing the congressional purpose expressed through the Uniform Code.41 Paragraph 38 of the Manual for Courts-Martial, 1951, provides:

A convening authority may, through his staff judge advocate or legal officer or otherwise, give general instruction to the personnel of a court-martial which he has appointed, preferably before any cases have been referred to the court for trial. When a staff judge advocate or a legal officer is present with the command such instruction should be given through that officer. 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. Except as provided in this manual, the convening authority may not, however, directly or indirectly give instruction to, or otherwise unlawfully influence, a court as to its future action in a particular case."

Needless to say, in view of the fact that the aforementioned provision extends far beyond the apparent limitations established by Congress pertinent to the role of military superiors in the administration of military justice prior to trial, the USCMA has experienced a significant division of opinion with regard to the legalty of paragraph 38, MCM, 1951.

The position with respect to paragraph 38 which has consistently commanded the allegiance of a majority of the high military court was initially expounded by the late Judge Brosman in 1953.43 Although expressing an inherent distaste for pre-trial relationships between a convening authority and tribunals of his creation, Judge Brosman observed that "on the whole, I incline to believe that seances of this nature are less necessary than dangerous." 44 Nonetheless, the Judge expressed a firm opinion to the effect that the provisions of paragraph 38, MCM, 1951, permitting pre-trial instructions to

40. UCMJ, arts. 22-24, 33, 10 USC §§ 822-24, 833.

41. MCM, 1951.

42. Id. par. 38.

43. United States v. Littrice, supra, note 38, at 496, 13 CMR at 52. 44. Ibid.

court members by superior commanders did no violence to the intent of Congress. Judge Brosman noted that prior to the enactment of the UCMJ, the Manual for Courts-Martial, 1949, interpreting and applying the Elston Act, contained a provision which was, in all material respects, identical to paragraph 38 of the present manual. Consequently, it was concluded that:

Since a well-defined administrative interpretation was extant under the prior statute, and since that statute was substantially reenacted, I find it impossible to conclude that Congress intended to invalidate the pretrial conference under the Uniform Code." The torch originally ignited by Judge Brosman has since been passed to Judge Kilday who, although expressly invited to reject the Brosman logic upon ascending to the bench, unequivocally endorsed it instead.46

Comprising a consistent and vocal minority of one with respect to the legal efficacy of paragraph 38, MCM, 1951, has been Judge Ferguson who, dissenting vigorously in United States v. Danzine, maintained that the legislative history of the UCMJ compels the conclusion that Congress intended to prohibit both the pre-trial lecture by a convening authority to an appointed court-martial, and the post-trial reprimand by the former of the latter with respect to the exercise of judicial responsibilities. In other words, Judge Ferguson has adopted a position that approaches the status of a per se prohibition of all intercourse between military superiors and courts-martial prior to trial. In reaching this conclusion, the Judge relied upon the fact that the UCMJ represented a balancing of the essential prerogatives of command with the legitimate demands imposed by Anglo-Saxon judicial experience; as a result, commanders were assigned certain specific functions under the Code and, pursuant to Article 37, UCMJ, prohibited from any further participation whatsoever in the administration of military law. The merit of this position is strengthened, in the opinion of Judge Ferguson, by the fact that prior to the arrival of the UCMJ one of the more heinous forms of command control exercised over courts-martial was the so-called "pre-trial lecture." Consequently, the Judge concluded that Congress intended its complete eradication.

Notwithstanding the persuasiveness of Judge Ferguson's position with respect to pre-trial communications between command and a courtmartial the rather legalistic position fashioned

45. Ibid.

46. See United States v. Davis, 12 USCMA 576, 580, 31 CMR 162, 166 (1961) (Kilday, J.)

47. 12 USCMA 350, 354, 30 CMR 350, 354 (1961).

by Judge Brosman and adopted by Judge Kilday and Chief Judge Quinn represents the opinion of the Court at the present time. This is not to say, however, that the USCMA will tolerate all communications with court members prior to a trial by court-martial. Quite to the contrary, lectures, directives and policy communiques slanted toward actual or potential court members by military authorities have frequently been cited as constituting an unlawful interference with the judicial prerogatives of the offended court members.48 Furthermore, in evaluating the propriety of a contested pre-trial communication, the Court has maintained emphatically that primary significance is given to a consideration of the subject matter of the controversial lecture or directive rather than to other circumstances of the case. Thus, in Danzine, Judge Latimer instructed that:

We have on prior occasions considered cases involving allegations of improper command influence and, when consideration is given to our holdings in this area, it is obvious that the subject matter of lectures dealing with military justice is the important consideration, and not whether they are delivered personally by the commanding officer nor whether they are given to court members only."

Consequently, any attempt to distinguish between permissible and improper pre-trial utterances must bottom itself upon a meaningful analysis of the subject matter of previously litigated pre-trial dialogues between command and court members.

Viewed solely in the light of subject matter, the peculiarities of permissible pre-trial communications are imprecise and, therefore, extremely difficult to enumerate. Nonetheless, an examination of pertinent opinions fashioned by the USCMA and of the subject matter represented within each contested communication suggests that at least two general categories of unobjectionable pre-trial intercourse can be isolated on the basis of substance with a reasonable degree of certainty: (1) Discussions which may be comfortably described as advancing broad and general instructions to court members pertaining to evidentiary matters or military judicial procedure, and which in no wise may be deemed coercive or directed toward a particular case or class of cases; and

48. See, e.g., United States v. Johnson, 14 USCMA 548, 34 CMR 328 (1964); United States v. Kitchens, 12 USCMA 589, 31 CMR 175 (1961); United States v. Olson, 11 USCMA 286, 29 CMR 102 (1960). The Court has held, however, that prejudicial error arising from improper command influence does not deprive the trial court of jurisdiction. United States v. Ferguson, 5 USCMA 68, 17 CMR 68 (1954) (see concurring opinion of Brosman, J., for several interesting theories supporting the Court's determination in this regard).

49. United States v. Danzine, supra note 47 at 351, 30 CMR at 351.

(2) Discussions which may be considered prophylactic in nature due to unusual conditions of widespread notoriety existing within the command.

With respect to the initial category of favvored command discourse, it will be noted that the language herein employed closely parallels that of paragraph 38, MCM, 1951. In view of the majority position of the Court with respect to paragraph 38, there can be no contesting its legal effect. Curiously enough, however, very few cases involving pre-trial command communications have been sustained solely because the substance thereof related broadly and generally to the areas outlined in the Manual. In one of the isolated instances where the USCMA did declare a contested document substantively harmless, a majority of the Court determined that a controversial Seventh Army Circular fell within the spirit, if not the letter, of paragraph 38 in that it urged court members to assume a stance of impartiality with respect to deliberations on findings and sentence, and to arrive at a decision without recourse to sentimentality.50

Contrary to the paucity of decisions pertaining to the first suggested category of permissible pre-trial command control, a number of opinions have been drawn rejecting allegations of illegality with regard to communications that have been prompted by extenuating local conditions. For instance, in United States V Carter, 1 a pre-trial statement by the Commander-in-Chief of the United States' forces in Europe pertaining to methods of improving American-German relations was was considered substantively innocuous even though uttered a mere two weeks after the accused allegedly had raped a German girl of tender years. With respect to the contested communication, the Court concluded: "From its tenor, it is apparent the document was a prophylactic memorandum and not a court interference scheme." 52 Similarly, in United States v. Navarre, 53 the Court gave judicial approval to the pre-trial remarks of a command representative who had mentioned the fact that a court member's fitness report would be affected by the performance of his judicial duties. The decision in Navarre is even more impressive in view of the fact that previous cases had concluded that references to fitness reports in pre-trial lectures could be con(Continued on page 110)

50. United States v. Littrice, supra note 38. 51. 9 USCMA 108, 25 CMR 370 (1958). Accord, United States v. Hurt, 9 USCMA 735, 27 CMR 3 (1958). 52. Id. at 113, 25 CMR at 375.

53. 5 USCMA 32, 17 CMR 32 (1954).

FAILUR

UNITED STATES MERCHANT MARINE

POLICY EXAMINED

COMMANDER WILLIAM R. NEWSOME, USN*

AILURE OF THE U.S. Merchant fleet to meet commitments to carry surplus wheat to the Soviet Union in 1963 emphasized the condition of the U.S. Merchant Marine at that time and as a consequence planted the seeds for much of the controversy that has followed concerning the adequacy of that fleet. It will be recalled that among the conditions of the sale was one that stipulated the wheat would be carried in American bottoms when available. There was great concern that this stipulation might prevent the sale in view of the fact that American bulk cargo rates were running some $10 a ton higher than foreign ship rates. After considerable negotiations it was finally agreed on 3 November 1963, that 50% of the wheat purchased would be carried at $18 per ton, in American bottoms. Subsequent attempts to meet the commitment of transit in American bottoms failed because of the unavailability of American merchant shipping and the larger of the two shipments contracted for was moved in only 37.5% American bottoms.

I. CURRENT NATIONAL POLICY ON MERCHANT MARINE AS PROVIDED IN 46 U.S.C. 1101

A. Purposes

Any discussion of the U.S. Merchant Marine is fraught with controversy. There are advocates of expansion as opposed to those who would curtail the fleet. There are those who would extend subsidization as opposed to those who would abolish it. The advocates of extending the concept of "effective control" are confronted with those who deny there is "effective control." It is impossible to find a single area relating to the U.S. Merchant Marine where all are in agreement, save the general statement of policy which provides that there shall be a merchant fleet capable of serving the commercial and security requirements of the United States.

In order to evaluate future needs it is necessary to examine the current basis for our U.S.

*Commander Newsome is currently assigned to the Administrative Law Division, Office of the Judge Advocate General. He holds a B.A. degree from Brooklyn College and the LL.B. degree from New York University. Commander Newsome is a member of the New York bar, the bars of the Court of Military Appeals, and the United States Supreme Court. He recently participated in a Merchant Marine study group in the Department of the Navy.

merchant fleet and to decide initially whether we have the proper tools for providing for an adequate one. The many existing laws, regulations, agreements and orders which are associated with the U.S. Merchant Marine comprise the legislative and administrative basis for our present merchant fleet. Of necessity certain changes have been made through the years and the need for others will become apparent. No analysis can be complete unless the various positions of the advocates and opponents of change are examined. Consequently an historical approach to much of the legislation and administrative acts will assist in an understanding of their purposes and will enable the reader to evaluate their present degree of utility for meeting the potential requirements of national defense.

The Merchant Marine Act of 1936 has been called the Magna Carta of the American merchant marine. Primarily it realized the need for a healthy American merchant marine and breathed new life into the merchant marine fleet. It restored confidence to American shipyards and hope to seafaring trade. It actually implemented policy which had existed dormantly since it was first set forth in the earlier Merchant Marine Act of 1920 and reaffirmed in the Act of 1928. Its purposes were limited to: (1) securing a place in ocean transportation necessary to national defense and (2) properly promoting and developing foreign trade. The new tools made available in the act have, however, proved to be most effective in accomplishing these purposes.

B. Policy Statement

The current declaration of national policy with respect to the merchant marine is stated in Title 36 U.S. Code Sec. 1101. It provides:

It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the waterborne export and import foreign comerce of the United States and to provide shipping service on all routes essential for maintaining the flow of such domestic and foreign water-borne commerce at all times, (b) capable of

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