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Any Last Words? The Evolution Of The Court-martial

Throughout most of its two-hundred-year history, the court-martial was the ogre of U.S. law. Modeled on sixteenth-century European ideas about discipline and punishment, courts-martial worked smoothly. Commanders ran them, defendants had few rights, and punishments were ARBITRARY: disobedient soldiers were fined, jailed, or discharged, and deserters flogged or hanged. CONSTITUTIONAL LAW rarely got in the way. Between 1775 and 1950, the U.S. military scarcely altered its methods. It was not until the VIETNAM WAR era that reform came at the hands of federal lawmakers and judges. Today, the military tribunal resembles the average federal court.

Historically, the military justice system has always been distinct from the civilian court system. It formally began in 1775 when the CONTINENTAL CONGRESS enacted the first American Articles of War, closely modeled on the British Articles of War, which had their roots in sixteenth-century Europe. Under the articles, military justice had a simple two-sided goal: to promote good behavior and punish bad behavior. It specified civilian offenses such as murder and LARCENY, and military offenses such as disobedience, disrespect to officers, and desertion. To try defendants for violations, it established a simple tribunal made up of officers under the control of their commander. Accused parties had few if any of the DUE PROCESS and appeal rights enjoyed by defendants in civilian courts. No standard rules for punishment existed; as with all matters in a court-martial, punishment was decided completely at the discretion of the commander.

Free from the constraints of civilian courts, early courts-martial produced stark results. General GEORGE WASHINGTON, like other commanders, understood the court-martial's potential for keeping order in the ranks. During the Revolutionary War, he ordered his troops to watch the execution of fellow soldiers who had been convicted of desertion. Discipline—often severe—remained the hallmark of the court-martial for the next century. Few citizens or politicians objected because military culture was highly esteemed. Soldiers who brought shame on the service were thought to deserve whatever they got.

Despite earnest efforts, few early critics of the court-martial achieved much. By the mid-1800s, scholarly calls for reform began with the work of John O'Brien, an Army lieutenant who wrote A Treatise on American Military Laws, and the Practice of Courts Martial: with Suggestions for Their Improvements in 1846. O'Brien argued for lessening the influence of commanders, enacting more uniform rules, and clearly establishing specific punishments. But neither lawmakers nor the courts were very impressed. Congress had always accepted the distinction between civilian and military justice, and in a number of decisions, the U.S. Supreme Court consistently upheld the constitutionality of the court-martial system.

The onset of WORLD WAR I brought changes in the form of new Articles of War (Act of August 29, 1916, ch. 418, §§ 3–4, 39 Stat. 619, 650). Defense counsel was guaranteed "if such counsel be reasonably available," but there was no provision for appealing convictions. The author of the revision, Judge Advocate General Enoch H. Crowder, had scoffed at the latter idea in testimony before the U.S. Senate:

In a military code there can be, of course, no provision for courts of appeal. Military discipline and the purposes which it is expected to [serve] will not permit of the vexatious delays…. However, we safe guard the rights of an accused, and I think we effectively safeguard them, by requiring every case to be appealed in [the] sense [that commanding generals must approve every sentence, and sentences of death or dismissal require additional confirmation by the president] (S. Rep. No. 130, 64th Cong., 1st Sess. 34–35).

As a startling example soon showed, these protections had little if any value. In November 1917, a court-martial tried sixty-three members of the all-black Twenty-fourth Infantry Division of the U.S. Army who were charged with a variety of offenses, including mutiny and murder, stemming from a race riot in Houston in which over a dozen people had died. The court-martial convicted fifty-eight men. Thirteen were sentenced to death and hanged the following morning. Despite General Crowder's assurances, neither the president nor even the military authorities in Washington, D.C., had been informed. According to regulations, the authority of a department commander was sufficient in time of war to confirm death sentences and the commander's order needed no further confirmation because he was the convening authority who had started the court-martial.

The Houston hangings prompted an immediate tightening of the rules for death sentences, but the experience of drafted men in World War I and WORLD WAR II brought about greater change. Called up to fight in the millions—and also court-martialed in the millions—civilians disliked their taste of military justice. As a result of public outcry, Senate hearings in 1917 led to a 1920 revision of the Articles of War. This revision provided for preliminary investigations, defense counsel, the presence of a legally trained member at every court-martial, and higher review of all sentences of death, dismissal, or dishonorable discharge. The right to defense counsel for soldiers was ahead of its time; civilians would not have this right universally recognized by the U.S. Supreme Court for several more decades. The new Articles of War also provided for automatic appellate review of convictions.

In practice, not all the provisions of the new articles were followed. Resources for carrying them out were limited, and commanders could not always be counted on to depart from tradition. The aftermath of World War II, in which some 2 million soldiers faced court-martial, brought even greater calls for reform.

Major reform began in 1950. Congress passed the UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C.A. §§ 801–940), a sweeping reform of the military justice system applying to all branches of the service. This code created the Court of Military Appeals, a three-judge civilian body designed to review certain convictions. The code also extended greater protections to defendants: lawyers had to be assigned to defend them, and they now enjoyed significant due process rights. On the other hand, the military retained all other authority over the administration of military justice. The code kept the traditional hierarchy of three courts convened by commanders at increasingly higher command levels with escalating punishments—summary, special, and general courts-martial. It established "law officers" who functioned like judges, but it retained much of the traditional model of command control, which gave to commanders the power to appoint the investigating officer, counsel, and court members (with the enlisted accused having the right to request that one-third be enlisted members). And it extended court-martial jurisdiction over both service members and certain classes of civilians.

Further reform came through the courts and Congress. In 1955, the U.S. Supreme Court held that discharged service members could not be court-martialed for crimes committed while they were on active duty (United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8). In 1969 the Court held that a case could be tried at court-martial only if the offense was connected to the defendant's military service in O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291. In 1970, the Court of Military Appeals held that civilian employees of the military overseas could not be subjected to court-martial (United States v. Averette, 19 U.S.C.M.A 363).

Congress brought reform with the Military Justice Act of 1968 (Pub. L. 90-632, Oct. 24, 1968, 82 Stat. 1335), which revamped the Uniform Code of Military Justice. It accomplished several key changes: (1) court-martial procedures were made to resemble more closely those of U.S. district courts; (2) the law officer was changed to a military judge, with functions and powers like those of a federal district judge; (3) the military judge was protected from influence by military authorities; (4) new intermediate appellate courts of military review were created in each service; and (5) defendants were given the choice of trial by judge or by jury. Additional reform came in the Military Justice Act of 1983 (Pub. L. 98-209, Dec. 6, 1983, 97 Stat. 1393), which specifically provided for review of Court of Military Appeals decisions by the U.S. Supreme Court. By 1987, military justice had improved to the point that the U.S. Supreme Court overturned O'Callahan and returned to the military greater authority to conduct courts-martial (Solorio v. United States, 483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364).

Today the court-martial functions smoothly as a system governed by law. In every significant way, the modern court-martial is at least the equivalent of a federal criminal trial.

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