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A HISTORY OF COMMAND
INFLUENCE ON THE MILITARY
JUDICIAL SYSTEM
Luther C. West*
INTRODUCTION
A court-martial is tried, not by a jury of the defendant's peers

which must decide unanimously, but by a panel of officers empowered
to act by a two-thirds vote. The presiding officer at a court-martial is
not a judge whose objectivity and independence are protected by tenure
and undiminishable salary and nurtured by the judicial tradition, but
is a military law officer. Substantially different rules of evidence and
procedure apply in military trials. Apart from those differences, the
suggestion of the possibility of influence on the actions of the court-
martial by the officer who convenes it, selects its members and the
counsel on both sides, and who usually has direct command authority
over its members is a pervasive1 one in military law, despite strenuous
efforts to eliminate the danger.
Historically, the American military commander has been re-

sponsible for the administration of military justice within his
command. If a soldier commits an offense, if he refuses to fight
in battle, steals from another soldier, goes absent without leave
or commits a murder, his immediate commander must decide
whether he is to be punished for this infraction of military dis-
cipline. If theoffense is serious, the commander may well elect
to resolve the matter upon trial by court-martial. The commander
either refers the case to a court-martial on his own initiative, or
refers the case to a higher commander with his recommendation
for court-martial. In either event, the officer who refers the case
to trial by court-martial appoints counsel for both sides as well
as the court members who are to try the case, generally from the
membership of his own command. The "convening authority" thus
* A.B., Birmingham Southern College, 1948; LL.B., George Washington Univer-

sity, 1950. Mr. West is a former member of the Judge Advocate General's Corps of
the United States Army, having served almost eighteen years in the grades of
Lieutenant through Lieutenant Colonel as a judge advocate. Upon retirement from
the Army in 1968 Mr. West was employed as an Assistant State's Attorney in Balti-
more, Maryland, a job from which he recently resigned as Chief Prosecutor. He is
engaged in the private practice of law in Baltimore, as a partner in the law firm of
Harris, Huddles, Rosenblatt and West. Mr. West has acted and currently acts in an
informal advisory capacity to defense counsel in military trials.
1 O'Callahan v. Parker, 395 U.S. 258, 263-64 (1969) (Douglas, J.).
UCLA LAW REVIEW [Vol. 18:1
not only decides what cases to refer to his courts, but more often
than not is responsible for the military future of every officer or
enlisted member appointed to the court, and in the case of general
courts-martial, that of the counsel themselves.
If the commander concerned is fair, he will permit his courts
to judge cases on their individual merit. If the commander con-
cerned is not "fair," he may usurp the functions of the courts,
and influence them to render verdicts or sentences designed to
effect his own wishes, regardless of the merits of the individual
case. The- commander may feel it necessary to effect a particular
verdict or sentence in any case to protect what he considers the
vital interests of his command or career, whether "fair" or not.
He may interfere through direct communication with his court
members, he may direct his staff judge advocate to give "instruc-
tions" to his court membership, or he may elect to interfere through
more subtle means. As an effective commander, responsible for
the discipline and welfare of his command, he can and usually will
get his viewpoint across to his court members in this regard.
For many years the discretion of military commanders to
control verdicts and sentences of military courts was viewed as
a military matter, to be resolved by the military departments,
or if necessary, by the Congress through corrective legislation.
The military, in turn, accepted their prerogatives in this regard
as absolutely moral, and as vital to the maintenance of military
discipline. Whether fact or fiction, armies were considered genuinely
effective only if tightly disciplined. If the commander was ex-
pected to win wars, he reasoned that he must be solely responsible
for the discipline of his command. National survival depended
upon it. Hence, the philosophy of absolute military command con-
trol over every phase of the military court-martial was instilled in
our early practice and in many respects has been carried forth to
this day.
This philosophy is expressed thusly:
The power to command must remain with the military forces if we
expect to have an efficient and well-disciplined military. The power to
command depends upon discipline, discipline depends upon the power
to punish. If we take the power to punish away from the military we
will destroy discipline, and eventually the power to command. 2
But there are others who, while recognizing military neces-
2 See Hearings on S. 857 & H.R. 4080 Before a Subcomm. of the Senate Comm.
on Armed Services, 81st Cong., 1st Sess. 228 (1949) (statement of William J. Hughes,
Jr., President of the Judge Advocate Association).
1970] COMMAND INFLUENCE
sity as a worthwhile social value, would temper it with a conflicting

social value---justice under the law-in making an overall value
judgment in the area. As Mr. Chief Justice Warren once wrote,
we cannot afford to condone too much "lest in our desire to be
secure we lose our ability to be free."13 The conflicting social value
of justice under the law might thus deny the military commander
the right to rig a court-martial verdict, in exactly the same fashion
as federal law denies this privilege to a James Hoffa in civilian
criminal trials.
Those who favor military necessity as a paramount social
value might reply that if the military commander is denied the
right to utilize all the tools of his profession, including the right
to control the court-martial process, we may be placing too great
a value upon justice under the law, and too little value upon military
necessity, and as a result may well lose all that we value, including
national survival. Hence, they rationalize, we should sacrifice the
soldier (i.e., the minority) and his right to justice under the law
if necessary for a much greater social value, that of the survival
of the nation (i.e., the majority).
Under the foregoing rationalization, it is persuasively argued
that we must be prepared to let our military leaders make judicial
sacrifices of American soldiers if necessary to further our overall
effort to make war. Lieutenant General J. Lawton Collins, in testify-
ing before the House Committee on Armed Services in 1947, said:
I am convinced that, in justice to other men, soldiers who go to sleep
on post, who go absent for an unreasonable time during combat, who
shirk in battle, should be executed; and that Army Commanders or
Corps Commanders should have the authority to approve the death
sentence. It is utterly stupid to say that General Officers, as a result
of whose orders thousands of gallant and brave men have been killed,
are not capable of knowing how to remove the life of one miserable
poltroon. 4
In short, military leaders who make such speeches urge absolute
military control of the military judicial system. This is the ultimate
end, the furthermost logical extension of the argument that the
military commander is responsible for the discipline of his soldiers,
and as such, must be permitted to punish them in order to instill
a sense of obedience in them.5
3 Warren, The Bill of Rights and the Military, 37 N.Y.U.L. RLV. 182, 203
(1962).
4 Hearings on H.R. 2575 Before the Legal Subcomm. of the House Comm. on
Armed Services, 80th Cong., 1st Sess. 2153 (1947), cited in Walistein, The Revision
of the Army Court-Martial System, 48 CoLuM. L. Rxv. 219, 224 (1948).
5 Military commanders have found it necessary to court-martial thousands of
UCLA LAW REVIEW [Vol. 18: 1
It is the purpose of the present study to inquire into the area

of command control of our nation's military judicial processes,
and to ascertain whether such control, if it in fact exists, is in
truth necessary for our national survival, or whether the necessity
for such control is only a myth advanced under the cloak of
"military necessity." The study will trace the history of command
influence practices in military law, evaluate the opposing social
interests involved in this vital area of government to ascertain if
our present law is adequate to assure American servicemen a fair
trial in a command dominated judicial procedure, and lastly, to
determine whether the United States Court of Military Appeals
is an appropriate court to sit in final judgment over military cases.
I. THE DOCTRINE OF COMMAND CONTROL:

1776 TO WORLD WAR I
A study of command control of American military courts-mar-
tial involves an inquiry into the conflicting social values inherent
in the maintenance of a standing army in a democratic nation.
While the dictates of freedom require a careful check upon military
authority in the conduct of military courts-martial, the need for
order, viewed both nationally and internationally, requires the pres-
ence of an effective military establishment whose discipline is not
unnecessarily weakened by the often "cumbersome" concepts of
civilian jurisprudence. Preferably, a balance should be struck be-
tween the competing interests involved, and a reasonable compro-
mise effected. That such was the intent of the current legislation
providing for the enforcement of military justice in the American
armed forces (the Uniform Code of Military Justice), is not dis-
puted.1
American servicemen annually to maintain discipline within the military establish-

ment. For example, in 1918 Army commanders court-martialed over 239,000 soldiers,
and in 1944, over a half million American fighting men were court-martialed by the
Army. In 1948 the figure had dropped to 128,326, and in 1966, the Army reported
that it court-martialed only 38,613 soldiers. The 1969 figure was slightly in excess of
110,000.
1 The Uniform Code of Military Justice was enacted by Congress in the Act
of May 5, 1950, ch. 169, § 1, 64 Stat. 108 (codified at 50 U.S.C. (chap. 22) §§ 551-
736), effective May 31, 1951 (now 10 U.S.C. §§ 801-940 (1964)); and hereinafter
cited as the Uniform Code of Military Justice, with article number (1-140) as, e.g.,
article 31, Uniform Code of Military Justice, or as Article 121 of the Uniform Code,
or U.C.M.J. (i.e., 10 U.S.C. §§ 831 and 921 (1964), respectively). The thrust of the
Uniform Code was one of reform, but it was a reform balanced with compromise
between the interests of justice on the one hand, and those of the military commander
on the other. The military commander retained his right to prefer charges, to investi-
A. The Separate Society and its Court of Honor

Prior to the enactment of the Uniform Code, the major social
interest emphasized in both American and British military practice
was military discipline, and as a result, the development of military
law in both nations was entrusted almost solely to the military
commander.2 Accordingly, a military society composed of service-
men and possessed of second-class legal rights was permitted to
develop within the larger body politic of free citizens in both En-
gland and America. The given justification for this "separate so-
ciety" of second-rate citizens, governed not by justice under the
law but by the dictates of military command, was of course, the
' As a legal concept in an
practical basis of military "necessity."
age of formalism, it was tolerated on the convenient theory that
the serviceman had bargained away many of his inherent rights as
a free citizen by his voluntary contract of enlistment. For the more
romantic in an otherwise unfeeling society, it was justified on an
even crueler basis-the "court of honor" concept. Under this con-
cept a court-martial dispensed not law according to a criminal code,
but a type of justice dictated by a "higher" code termed "honor."
This court of honor concept, as recognized by many writers,'
members,
gate them, to dispose of them by trial or otherwise, to appoint court-martial
and ultimately,
the prosecutor and defense counsel, as well as the judge (law officer),
reform, important
to pass upon the completed record of trial. But in the interests of
qualified
new provisions were added for the first time to military law-namely,
and judges were required in all general court-martial trials,
lawyer defense counsel
of a desig-
and more importantly, all special and general court-martial convictions
created Supreme
nated severity would be subject to final appellate review by a newly
of the military, a three man civilian court, to be known as the United States
Court
Court of Military Appeals.
2 As to American practice see, e.g., W. WINTHROP, MILITARY LAW AND PRECE-
Courts-Martial
DENTS (2d ed. 1920 reprint) [hereinafter cited as WINTHROP]; Wiener,
Rights: The Original Practice 1, 72 HARv. L. REv. 1 (1958); Wiener,
and the Bill of
HARv. L. REv.
Courts-Martial and the Bill of Rights: The Original Practice I1,72
of Courts-
266 (1958); Keeffe, Universal Military Training With or Without Reform
33 CORNELL L.Q. 465 (1948). For a brief description of the development
Martial?
Nature of British
and current nature of British military law, see O'Connor, The
of British mili-
Military Law, 19 Mm. L. REv. 141 (1963). For a historical account
(2d ed. 1825)
tary legal practice, see W. HOUGH, THE PRACTICE OF COURTS-MARTIAL
[hereinafter cited as HOUGH].
346 U.S.
8 Mr. Chief Justice Vinson, writing for the Court in Burns v. Wilson,
in the following
137 (1953), rationalized the concept of the "separate society"
separate and
language: "Military law, like state law, is a jurisprudence which exists
governs in our federal judicial establishment. This Court
apart from the law which
power over
has played no part in its development; we have exerted no supervisory
must perforce be
the courts which enforce it; the rights of men in the armed forces
and the civil
conditioned to meet certain overriding demands of discipline and duty,
to be struck
courts are not the agencies which must determine the precise balance
346 U.S.
in this adjustment. The Framers expressly entrusted that task to Congress."
at 140.
4 See, e.g., G. DAvis, A TREATISE oN THE MILITARY LAW OF TH= UNITEn STATES
was based on the fact that a military officer was considered a gen-
tleman as well as an officer, and hence subject to court-martial
for "ungentlemanly conduct."5 Officers were accordingly court-mar-
tialed for such offenses as criticizing a superior on a point of mili-
tary conduct; 0 refusing to fire a salute as ordered; 7 scandalous
conduct with a woman; 8 striking another officer when his face was
turned;' challenging another officer to fight a duel (but seldom for
fighting a duel);" and for disobeying an order not to "invade the
interior of Arabia.""
While the code of honor was no doubt fitting for the trial of
officers for ungentlemanly offenses of the foregoing nature, its ra-
tionale wore thin in the trial of enlisted men. Enlisted men, as op-
posed to officers, were more often than not charged with capital
offenses. They could be hanged for stealing two regimental stan-
dards; 2 or have their tongues burned through with a red hot iron
for blasphemy;'" or receive 1000 lashes on their bare backs with
a cat of nine tails for stealing "some brass articles from a native
hut." 4 Yet the court of honor concept-with its lack of protection
for the rights of the accused-prevailed in the trials of officers and
enlisted men alike, despite the great disparity in the nature of the
cases involved. Blackstone referred to the British system of mili-
tary justice as non-legal in nature: "[It] is built upon no settled
16 (2d ed. 1904) [hereinafter cited as DAVIS]; WINTHROP, supra note 2,

at 54; Ansell,
Military Justice, 5 CORNELL L.Q. 1, 7-8 (1919).
5 For a listing of cases involving ungentlemanly conduct in British practice,
see
HoucH, supra note 2, at 496-549. For modern American cases on this subject,
see topic
"Conduct Unbecoming an Officer and Gentleman," indices to the
Courts-Martial
Reports, Vols. 1-40.
0 See Houcii, supra note 2, Case No. 25 at 671-73.
7 Id., Case No. 1 at 645-46.
8 Id., Case No. 9 at 528.
9 See S. BENET, A TREATISE ON MILITARY LAW AND THE PRACTICE
OF COURTS-
MARTIAL 221-23 (3d ed. 1863) [hereinafter cited as BENET].
10 Id. at 209-10. Even the challenge was delivered in gentlemanly
language:
"Sir: As more than twenty-four hours have passed, since my note to you
of yester-
day, I have a right to presume that you do not intend to answer it;
I have there-
fore to invite you to leave this city with me tomorrow morning, to go
to any place
you may designate. I send this note privately to avoid comitting any friend
as long
as possible. An early answer is requested." Id. at 209.
11 HOUGH, supra note 2, Case No. 7 at 354.
12 Id., Case No. 2 at 870.
13 See DAVIS, supra note 4, at 569.
14 HouGu, supra note 2, Case No. 33 at 678. Winthrop
also lists some interesting
"obsolete" British punishments, including "decimation,"
"beheading," "to be drowned
or buried, bound to the person killed," "loss of right hand," "loss of an
ear," "run-
ning the Gatelope," and to be "beaten through the quarters." WINTHROP,
supra
note 2, at 437-38,
principles, but is entirely arbitrary in its decisions [and] is . . .

something indulged rather than allowed as law."'"
B. The Agency Theory of Military Law

American authors, equally frank in their appraisal of military
justice, have recognized that the traditional military court-martial
is not a court of law, but simply an instrumentality or agency of
the military commander for the enforcement of discipline.1" The
military in both England and America, far from disputing these
observations, have been the first to admit them and to insist upon
their correctness.17 The military view is that the court-martial is
not a part of the judiciary and is governed not by principles of
law, but by the order of the military commander who appointed
the court-martial. The most respected of all American military
writers, and the most conservative defender of all things military,
Colonel Winthrop, wrote of the system:
15 W. BLACKSTONE, COMMENTARIES OF THE LAWS OF ENGLAND 413-14 (10th ed.

1787).
16 See, e.g., Bruce, Double Jeopardy and the Power of Review in Court-Martial
Proceedings, 3 MmN. L. REV. 484, 489 (1918), wherein the military system is de-
scribed as follows: "[A] court-martial is merely an agency 'appointed' by the com-
manding officer for the training of the soldiers in discipline, and though one is
sentenced by such a tribunal to death or to a long term of imprisonment, he is
not deprived of life or liberty or in fact punished at all, but merely trained and
educated and disciplined. A criminal sentence in the army, in short, serves the same
purpose as the manual of arms or the setting up exercises .... "
Professor Morgan of Harvard Law School, the foremost authority on military
law of his time, in Morgan, The Existing Court-Martial System and the Ansell
Army Articles, 29 YALE L.J. 52, 60 (1920) [hereinafter cited as Morgan] described
the system: "The control of the appointing officer over the court and its findings
is to the civilian the most astounding characteristic of military law."
Text Number 4 of the Judge Advocate General's School, Ann Arbor, Michigan,
entitled WAR POWERS AND MrrARY JURISDICTION 17 (1943), described the system:
"Strictly speaking, a court-martial is not a court at all in the full sense of the term
but is simply an instrumentality of the executive power of the President for the
enforcement of discipline in the armed forces ... "
Professor Karen described the system in Karen, The Personal Factor in Military
Justice, 1946 Wis. L. REV. 394, 402-03, as follows: "The system is so flexible that
it is almost entirely up to the commanders to determine not only who shall be tried,
for what offense, and by what court . . . but also what the result shall be in each
case."
17 O'Connell, The Nature of British Military Law, 19 MI. L. REv. 141, 148
(1963), reports that this view was strongly supported by the line officers of the
British Army. American military officials support the view just as strongly: see
the testimony of Major General Enoch H. Crowder, the Judge Advocate General of
the Army during World War I, before a Senate Committee in 1919 where he de-
fended the practice of reversing acquittals as a procedural device, designed to secure
"due application of the law." Hearings on S. 5320 Before the Senate Comm. on
Military Affairs, 65th Cong., 3d Sess. at 248-66 (1919) (testimony of Major General
Crowder). See also notes 41-50 & accompanying text, Ch. II infra.
Courts-martial are not courts, but are, in fact, simply instrumental-

ities of the executive power . . . to aid him in properly commanding
the army and enforcing discipline therein, and utilized under his orders
or those of his authorized military representative; they are indeed,
creatures of orders and except insofar as an independent discretion
may be given them by statute, they are as much subject to the orders
of a competent superior as is any military body of persons. 18
An 1813 English court-martial exemplifies both the agency

theory and the court of honor concept. The case involved a German
sergeant, who had originally deserted from the French, and had
entered the British service by voluntary enlistment during the ad-
vance of Wellington into Spain against the forces of Napoleon.
Unfortunately, the sergeant was again taken prisoner by the French,
and in order to save his life, "voluntarily" enlisted in the corps des
Etrangers, set aside specifically in the French service, so it seemed,
for such men as an "inducement" to them to return to the French
cause. At the battle of Vittoria, however, the sergeant was recap-
tured by the English, and forthwith ordered to stand trial by gen-
eral court-martial for desertion, a capital offense in the British
service."0
The accused sergeant was brought to trial by a so-called court
of honor, and was duly acquitted upon what the court-martial ac-
cepted as a reasonable and legal defense under law, viz., compulsion.
The result of the court-martial, however, was not acceptable to
the military commander. In his opinion the verdict of acquittal
was detrimental to the discipline of his army, and unless checked
18 W. WINTHROP, MILITARY LAW AND PRECEDENTS 54 (1886). Winthrop wrote

the above passage several years after the American Civil War. With slight modifica-
tion the passage is reprinted in the 1920 War Department reprint of Winthrop's book,
see WINTHROP, supra note 2, at 49, and the substance of the passage is found in
numerous cases and other works thereafter. See authorities cited in note 16 supra.
See also the following World War II cases wherein the War Department, Theater
Commander, or general court-martial convening authority attempted to control the
sentences of the court by formally instructing the members of the court-martial prior
to trial, or during the trial itself, to impose sentences of a designated severity:
Hillgrove, 47 B.R. (Army) 55 (1944) (C.M. 264,276); Davis, 34 B.R. (Army) 297
(1944) (C.M. 253,209); Walter, 1912-40 Dig. Op. JAG, § 395 at 54; Hoffman, 32
B.R. (Army) 381 (1944) (C.M. 250,472); Forbes, 29 B.R. (Army) 73 (1943) (C.M.
244,946); Hester, 9 B.R. (Army) 145 (1941) (C.M. 216,707).
19 A British writer who subsequently reported the trial stated: "The first sen-
tence acquited him of the act of desertion, there being the powerful inducement to
the act, with the view of saving his life; but the sentence was revised, and it is
stated, that on revision, he was sentenced to suffer death, and was afterwards shot,
in the presence of that division of the army to which he belonged.
"I also understand that it was intimated to the above court, that the excuse
pleaded by the prisoner was inadmissible; as he should have preferred death rather
than have entered the service of the enemy." HouoH, supra note 2, at 364-65. For a
modem application of this exact principle of military law, see Gale v. United States,
17 U.S.C.MA. 40, 37 C.M.R. 304 (1967).
could ultimately lead to its defeat in battle. He therefore directed

the court-martial to hold proceedings in "revision" and to recon-
sider its verdict of acquittal. 20 The court-martial, as Winthrop
reports, being a creature of orders, and as much subject to the or-
ders of a competent superior as any other military body of persons,
in true agency fashion revoked its finding of not guilty, convicted
the accused of desertion as requested by the commander, and sen-
tenced him to be shot to death, in keeping of course with the
honorable concept that he should have preferred death to enlist-
ment in the service of the enemy.
The action of a court-martial of this nature, as noted in turn
by both Blackstone and Winthrop, was not the action of a court
of law. Its final decision rested on no settled principle of jurispru-
dence, and as Blackstone observed, was in reality not law at all,
"but something indulged rather than allowed as law," something
that could be justified only upon
'21
the necessity of maintaining "order
and discipline in an army.
The agency theory of military law that follows from such a
case may be described as follows: the military commander informs
the court-martial, directly or indirectly, what verdict and sentence
is necessary in the particular case to maintain the discipline of
his army, and the court-martial makes the desired finding and im-
poses the desired sentence. The commander justifies such action
under this theory not on the rule of law, but upon the need to win
wars, not merely to wage them. Under the theory, the absolute
necessity of military victory in warfare demands that the military
commander and not courts of law22or principles of civilian jurispru-
dence discipline a fighting army.
20 Proceedings in revision, where acquittals have been returned to courts-

martial for "reconsideration" or for an increase in sentence, have been tacitly ap-
proved by the Supreme Court of the United States. Swaim v. United States, 165 U.S.
553 (1897); Ex parte Reed, 100 U.S. 13 (1879). For a very critical comment upon
the unconstitutionality of the practice during World War I in the American Army,
see Bruce, Double Jeopardy and the Power to Review in Courts-Martial Proceed-
ings, 3 MINN. L. REV. 484 (1918-9).
21 See note 15 supra.
22 Mr. Chief Justice Warren, writing in the New York University Law Review,
made pointed reference to the demands of "military necessity" in striking the neces-
sary balance between freedom and order in our society. He also cited the ultra
conservative viewpoint in justifying the civil courts' reluctance to assume a more
important role in the protection of our "separate society" as follows: "The most
obvious reason is that [civil] courts are ill-equipped to determine the impact upon
discipline that any particular intrusion upon military authority might have. Many
of the problems of the military society are, in a sense, alien to the problems with
which the judiciary is trained to deal." Warren, The Bill oj Rights and the Military,
37 N.Y.U.L. Rxv. 181, 187 (1962).
Chief Justice Warren, while praising the creation of the United States Court
C. The Similarity Between the Early American and British

Systems
A student of American military law will find frequent refer-
ence to English military law by American authorities. This frequent
reference is no mere happenstance or idle resort to historical anal-
ogy; there is a substantial connection between the two systems of
law, much the same as between the common law of America and
the common law of England. At the time of the War for Indepen-
dence the original American Articles of War were lifted bodily
from the British Articles and from the British Mutiny Act.2 3
American soldiers who had served in the British colonial army
were familiar with these Articles, and American officers in the
British service were also steeped in British military law and cus-
tom at the time of the break with the mother country. The English
Articles of War of 1774, in effect at the time, were enacted by the
American Continental Congress for the government of the Con-
tinental Army on June 30, 1775.24 Amendments were made in
November, 1775, and repealed in September, 1776, when new arti-
cles-also patterned after the British-were adopted. These arti-
cles, numbering 102, remained in force with but slight modification
until 1806, when Congress rearranged them into a new code of 101
articles. This code remained in force until 1874, when new articles
were enacted by Congress, which were still predominately British
in context.2 5
The similarity between American and British military law did
not stop with the written articles, but extended to procedural mat-
ter as well. An American soldier sentenced to be shot to death in
the 19th century, for example, would have found his execution
strikingly similar to the execution of the British sergeant whose
court-martial was described previously. The troops to witness the
event were formed on three sides of a square with twenty paces
between their lines. The condemned soldier was paraded in front
of Military Appeals in this same article, unfortunately did not explain why the Court
of Military Appeals, also a civilian court, could better deal with such military
problems as search and seizure, coerced confessions, jury fixing, and illegal line-ups,
or for that matter AWOL and misbehavior before the enemy situations, than could,
for example, a United States district court, or the Supreme Court of the United
States.
23 See, e.g., WiNTmRoP, supra note 2, at 21-24; R.A. IvEs, A TREATISE ON MILr-
TARY LAW 18-19 (1879) [hereinafter cited as IVEs]; Pasley, A Comparative Study of
Military Justice Reforms in Britain and America, 6 VAND. L. REV. 305 (1953);
Morgan, supra note 16, at 52; Ansell, Military Justice, 5 CORNELL L.Q. (1919).
24 DAVIS, supra note 4, at 342.
25 IVEs, supra note 23, at 17-18. Brigadier General George B. Davis, a former
judge Advocate General of the Army, in his book on American military law, makes
an excellent article by article comparison of most of the 1874 American articles
with their British counterparts. DAVIS, supra note 4, at 399-564.
of and between these lines, accompanied by the Provost Marshal,

the regimental band (playing a funeral march), the firing squad,
and the prisoner's coffin, borne by four soldiers. On arriving at the
spot of execution, the music ceased; the court-martial conviction
into
and order of execution were read and the firing squad stepped
position. After the Chaplain performed his final prayer, the Provost
to
Marshal gave the order of execution and the victim was shot
death. Following the execution, the assembled troops were marched
in slow time and in single file by the body of the deceased prior to
6
returning to their quarters.
Other procedural similarities abounded. Reversal of acquittals
and return of sentences for increase 2 of severity were practiced in
7 As in the British army, de-
the American army as in the British.
fense counsel were not mandatory by28 law in American court-martial
practice until the present century, and again as in the British
after
army, a meaningful system of review was not instituted until
were encouraged in both armies:
World War 11.29 Severe sentences
flogging and branding of prisoners existed until the middle of the
mat-
19th century,8" and mitigation and clemency were viewed as
commanding officer, and not the
ters within the discretion of the
8 ' In essence, the American army court-martial was
court-martial.
26 BENET, supra note 9, at 166-67 describes an American execution in very

execution described by HOUGH,
similar ceremonial detail with a much earlier British
supra note 2, at 959-60.
27 See Swaim v. United States, 165 U.S. 553 (1897), wherein Mr.
Justice Shiras
systems in some detail in this regard.
compared the British and American absolute exclusion
28 Wiener gives an excellent historical account of the almost
counsel from court-martial practice during the first 50 years of our
of all defense
of Rights: The Original
nation's history. See Wiener, Courts-Martial and the Bill
Winthrop describes the earliest Army direc-
Practice 1, 72 HARV. L. REV. 1 (1958).
by an accused as an 1890
tive requiring defense counsel be assigned if requested
supra note 2, at 33. Davis
General Order of the War Department. See WINTHROP,
duties in a most restrictive manner in 1904, and
described the nature of defense will not give
prescribed limits "his position
warned him that if he exceeded his
of War 17 of the 1916 Code,
him immunity." DAVIS, supra note 4, at 39 n.1. Article
1917, contained the first
and paragraph 108 of the MANUAL FOR COURTS-MARTIAL,
respectively, that provided that an accused was
statutory and Executive Order It was not until
counsel if available.
entitled to be represented by military defense
in Article of War 17 of the 1920 Code, that a military defendant was given
1920,
counsel.
the statutory right to military (non-lawyer) defense in Britain and
29 See Pasley, A Comparative Study of Military Justice Reforms
America, 6 VAND. L. REV. 305 (1952).
outlawed in the British
a0 Winthrop reports that branding and tattooing were
American Army in 1872. He notes that flogging was abol-
service in 1871, and in the
States Army by regula-
ished in the British armed forces in 1881, and in the United
note 2, at 438-40.
tion in 1861, and by statute in 1872. WINTHROP, supra System, 48
31 See, e.g., Wallstein, The Revision of the Army Court-Martial
"Strange concepts flourished. It was commonly
COLum. L. REV. 219, 225-26 (1948):
by military courts, though completely unsupported by the literature of
thought
be adjudged in every
military law, that the maximum permissible sentence should
of the reviewing authority.' This notion led
case because 'clemency is a function
thoroughly British in nature, and as such, thoroughly engrained

with the theory of control by the military commander.8 2 It was
not a court of law, and was not a part of the American judiciary,
nor were its verdicts and sentences subject to review by federal
courts except upon the narrowest of jurisdictional grounds.
A particularly gruesome example of the extent to which the
American court-martial practice under this agency theory was
patterned after the mother country is found in the 1819 case of
Peter Williamson. Williamson was tried for desertion in the year
1819, and was convicted and sentenced to a period of confinement.
On the following day, however, at the "suggestion of a member,"
the sentence was "revised" and he was given the following sentence:
"That he, the said Peter Williamson, be shot to death."8 The sen-
tence was reviewed and confirmed by the Attorney General of the
United States, who opined at the time that the court-martial "had
the power to alter the opinion they had expressed on the preceding
day, and that their opinion is regularly and legally pronounced."8 4
Peter Williamson's case, unfortunately, was not to be the last of
this ilk."'
D. The United States Supreme Court and Command Control

The British concepts, termed simply command control of the
court-martial process, could not have found their way into the
to fantastic sentences, so crushing in their initial impact on individual and family

as not to be completely rectifiable by later reduction."
The Report of the War Department Advisory Committee on Military Justice,
established to investigate the explosion of complaints of injustice following World
War II (the prestigious Vanderbilt Committee) made a similar finding in 1946,
at page 7 of its Report: "Not infrequently the members of the court were given
to understand that in the case of a conviction they should impose the maximum
sentence provided in the statute so that the general, who had no power to increase
a sentence, might fix it to suit his own ideas. Not infrequently the general repri-
manded the members of a court-martial for an acquittal or an insufficient sentence."
82 Professor Morgan reports that the same was true of the American Naval
court-martial, noting that our Articles for the Government of the Navy were largely
taken from the British Naval Articles of 1749, and, although amended half a dozen
times "continued to be in theory and substance fundamentally the British articles."
Morgan, The Background of the Uniform Code of Military Justice, 6 VAND. L. REV.
169, 170 (1952). For an historical review of the Naval Articles, see Pasley & Larkin,
The Navy Court-Martial:Proposals for its Reform, 33 CORNELL L.Q. 195 (1947).
88 BENET, supra note 9, at 143.
84 Id. at 144.
85 The practice of revision (wherein acquittals and cases of inadequate sentences
were returned to trial courts for guilty findings and increased sentences, respectively)
was first prohibited by military regulation on July 14, 1919. See General Order No. 88,
War Department (1919); Changes, Manual for Courts-Martial, No. 5, 1919. The
practice was outlawed by statute the following year. See Act of June 4, 1920, ch. 227,
art. 40, 41 Stat. 787 [hereinafter cited as 1920 Code or 1920 Articles of War].
mainstream of military law in this country, despite the eagerness

of the military community to adopt them, had it not been for the
gross indifference of the United States Supreme Court to the plight
of the military defendant. Basing its decisions on the constitu-
tional provisions relegating control of the armed forces to the Chief
Executive and to the Congress, the Supreme Court reasoned that
civil courts had no power over military courts, regardless of the
86
lack of due process afforded a defendant. This principle was first
announced in 1858 by the Supreme Court in the case of Dynes v.
Hoover.87 There the defendant, who was confined in a civilian
jail pursuant to military order, brought suit against his jailor for
assault and battery and for false imprisonment. On appeal, the
Supreme Court ruled that sentences of regularly convened courts-
martial are not "alterable" by civil courts, except in situations
where the court-martial exceeded its jurisdiction over person or
offense, or adjudged a sentence in excess of its lawful authority.
At first reading this rule does not appear unduly harsh, for it
was similar to the measure of federal review afforded state convic-
tions that were collaterally attacked via habeas corpus proceedings
in federal courts. 8 While this is true, a marked distinction existed
between the degree of initial due process and legal review furnished
by the different types of courts. State criminal convictions were
86 U.S. CONST. art. I, § 8 provides that Congress, among other powers, shall
have the power to provide for the common defense; to raise and support armies; to
provide and maintain a Navy; to make rules for the government and regulation of
the land and naval forces; to call forth the militia to execute the laws and to
suppress insurrections and repel invasions; to declare war; to provide for the orga-
nization, arming, and disciplining of the militia, and for governing such part of
them as may be employed in the service of the United States; to exercise jurisdic-
tion over all places secured for the erection of forts, magazines, arsenals, dockyards,
and other needful buildings; and to make all laws necessary and proper for carrying
into execution the foregoing powers. The President of the United States, under U.S.
CONST. art. II, § 2, shall be the Commander in Chief of the Army and Navy, and of
the militia of the several states when called into actual service of the United States.
Under U.S. CONST. art. II, § 3, the President shall faithfully execute the laws of the
United States, and shall commission all the officers of the United States. The fifth
amendment to the Constitution excepts military personnel from the protection of
civilian presentment or indictment, and otherwise the Constitution is silent as to
whether military personnel are subject to the judicial authority of the United States.
In view of the foregoing powers of the Congress and the President, the argument is
often advanced that the Framers did not intend that servicemen be subjected to con-
stitutional protection, but were to be governed exclusively by the Congress and Presi-
dent. Wiener is one of the foremost advocates of this line of thought. See generally
Wiener, supra note 2.
37 61 U.S. (20 How.) 65 (1857).
88 As noted by Mr. Justice Frankfurter, prior to 1938 "the scope of habeas
corpus in both military and civil cases was equally narrow: in both classes of cases
it was limited solely to questions going to the 'jurisdiction' of the sentencing court."
See Burns v. Wilson, rehearing denied, 346 U.S. 844, 846 (1953).
obtained initially in trial courts that observed, at least ostensibly,
the rule of law and were bound by state constitutional norms as
well as common law procedural safeguards. Such convictions were
thereafter, at least in theory, subjected to meaningful appellate
review by state supreme courts for compliance with the rule of law.
Military convictions, on the other hand, were obtained in courts
that were command controlled in their verdicts and sentences, and
were presided over by military officers untrained in the law. Mili-
tary courts followed no recognized procedural rules (for example,
it was permissible for one officer to serve as both prosecutor and
defense counsel in the same case until 1920).8 9 Once a court-mar-
tial conviction was affirmed by the military commander who ordered
the trial in the first place, no power on earth could thereafter re-
verse the conviction on the basis of an error of law occurring
during the trial of the case.4 0 For the Supreme Court, under the
circumstances that existed in 1858, to announce it would review
military convictions only for jurisdictional error was to admit a great
degree of either ignorance of, or callousness toward, the plight of
military defendants. The Supreme Court did not show early signs of
retreating from its position that court-martial convictions were
89 The practice apparently originated in 1786 when Congress

gave the prosecutor
the additional duty to "consider himself as counsel for the prisoner." DAvis,
note 4, at 37. The provision was subsequently reenacted in Article 69 of the supra
1806
Code, and as Article 90 of the Code of 1874. Article 17 of the 1916 Code recognized
the principle, but the 1920 Articles of War made no reference to the practice,
was officially outlawed in paragraph 96 of the MANuAL FOR CouRS-MARTwA,
and it
1921.
Benet described the practice in 1863 as "like a man playing a game of chess with
him-
self, he can cause either the red or the white side to win." BE=ET, supra note 9,
at 196.
Winthrop in 1886 described the practice in considerable detail, and Davis referred
the practice in 1904. See WINTHROP, supra note 2, at 196-99; DAvIs, supra to
note 4,
at 37. While the practice was legal throughout World War I there are no reported
cases which would indicate it was in vogue during this period and therefore
it
would appear that it fell into disuse shortly after the turn of the century.
40 Army appellate agencies and the President of the United States
reviewed
military convictions only for jurisdictional errors, clerical errors, and for purposes
clemency, but not for legal error prior to 1920. The practice was changed by of
in 1920, which established a limited form of appellate machinery (boards of statute
review)
in the office of the Judge Advocate General of the Army, providing for the
of court-martial convictions for legal error. See 1920 Articles of War, art. 503/. review
Prior
to the creation of these boards under Article 5 03/, there was no binding appellate
review whatsoever of Army court-martial convictions once the conviction had
been
affirmed by the appointing authority. While under Article of War 48 of the
1916
Code, a limited number of cases required confirmation of the
execution of sentence (such as general officer cases, dismissal of President prior to
officers below the
rank of general in peace-time, dismissal of cadets at any time, and a certain category
of death sentences), if errors of a legal nature were detected in a record upon
in the office of the Judge Advocate General, "recommendations" might be made review
the appointing authority, who was free to follow them or not. Otherwise, the to
Judge
Advocate General would attempt to correct any errors discovered by recommending
"clemency" to the President. This system came under grueling
fire in World War I.
See Chapter II infra.
beyond the pale of ordinary judicial safeguards. In Ex parte Val-

landingham,4 ' an 1863 decision, the Supreme Court held that it
"lack[ed] jurisdiction to review by certiorari 4the decisions of mili-
2
tary courts." In 1867, in Ex parte Milligan, Mr. Chief Justice
Chase, in dissent, issued his famous dictum that would aid the
military in denying constitutional due process to military defendants
for the next 100 years: "We think, therefore, that the power of
Congress in the Government of the land and naval forces and of the
amendment.) 4 3
militia is not at all affected by the fifth or any other
In Ex parte Reed,44 the Supreme Court formally turned its
back upon constitutional due process for servicemen. Reed was con-
victed by Navy court-martial aboard a United States Navy ship in
South American waters. The commanding officer who convened the
court-martial was not satisfied with the sentence. He therefore re-
turned the proceedings in revision to the court-martial that tried
the accused, informing the court in writing that, while the findings
were in accordance with the evidence, he was "compelled to differ
with the court as to the adequacy of the sentence." The case re-
port does not reveal the original sentence, but Mr. Justice Swayne,
in delivering the opinion of the Court, noted that the second sen-
tence handed down by the court-martial, pursuant to the written
communication of the convening authority, was more severe than
the first, and included two years of confinement and dishonorable
discharge from the Navy. In denying Reed's petition for habeas
corpus, Mr. Justice Swayne noted that as the court-martial had
jurisdiction, "its proceedings cannot be collaterally impeached for
any mere error or irregularity, if there were such, committed within
the sphere of its authority."4
Five years later, in 1883, the Supreme Court in Keyes v.
United States" struck another blow to the rule of law in courts-
martial practice. The Court, in Keyes, refused to even consider a
court-martial conviction which was attacked collaterally through
the Court of Claims in a suit for back pay. The errors complained
of were that the accused's commanding officer, who had preferred
one of the charges against him, also sat on the court-martial as a
member and participated in the voting in which the accused was
41 68 U.S. (1 Wall.) 243 (1863).

42 71 U.S. (4 Wall.) 2 (1866).
43 Id. at 138. Justice Chase dissented from the holding that civilians in the
United States could not be tried by military courts so long as the civil courts were
open and functioning.
44 100 U.S. 13 (1879).
45 Id. at 23.
46 109 U.S. 336 (1883).
found guilty and sentenced to be cashiered from the service. The

same officer also was called as a witness for the prosecution in the
case, and testified against the accused on one of the charges. The
Supreme Court, in blessing these "mere irregularities," reiterated
its test that collateral attack was limited solely to questions of
jurisdiction, and held that "whatever irregularities or errors are
alleged to have occurred in the proceedings" were not subject to
review "when . . . questioned in this collateral way.""7
In Runkle v. United States," an 1887 decision, the Supreme
Court, in a change of pace, held that the military court-martial was
really a court of law. The Court noted in this regard:
The whole proceeding from its inception is judicial. The trial, finding
and sentence are the solemn acts of a court organized and conducted
under the authority of and according to the prescribed forms of law.
It sits to pass upon the most sacred questions of human rights that are
ever placed on trial in a court of justice; rights which, in the very
nature of things, can neither be exposed to danger nor subjected to the
uncontrolled will of any man, but which must be adjudged according
49
to law. [Court's emphasis.]
The philosophy expressed in Runkel, unfortunately, did not
find its way into the structure of military law. Whatever concept of
natural justice the Court was attempting to spin in Runkel failed
to pass muster with subsequent experience. A decade after Runkel,
in 1897, the Supreme Court handed down its decision in Swaim v.
United States,0 one of the most conservative military opinions in
its history. The Judge Advocate General of the Army, Major Gen-
eral Swaim, was court-martialed for the ungentlemanly offense of
committing a wrong upon a civilian in a private financial transac-
tion, and of thereafter making a false statement relating to the
matter to the President of the United States, Chester Arthur. The
original sentence of the court-martial did not satisfy the President,
and after conferring with the Attorney General, he returned the
case to the court-martial for revision of sentence. The sentence was
duly increased by the court-martial, but once again the President
was dissatisfied, and returned the case to the court-martial for the
second time with instructions to increase the sentence. The third
sentence adjudged by the court-martial, more severe than the sec-
ond, in effect suspended the Judge Advocate General of the Army
from rank and duty for twelve years and ordered him to forfeit
one-half of his pay each month for the same period, but did not
47 Id. at 340.
48 122 U.S. 543 (1887).
49 Id. at 558.
50 165 U.S. 553 (1897).
disturb his entitlement to "allowances" for quarters and food, which

are a part of an officer's total or overall pay. President Arthur,
apparently satisfied with this sentence, affirmed it, and the Judge
Advocate General was accordingly suspended from duty. When
General Swaim attempted to collect the half of his pay and allow-
ances that was not forfeited by the third sentence of the court-mar-
tial, however, he was advised that he was indeed entitled to half of
his pay that was not forfeited by the third sentence, but that-as he
was no longer performing any duties-he was entitled to no "al-
lowances" for quarters at all.51 General Swaim, no doubt disgrunt-
led with the results under "court of honor" concepts, turned to a
judicial approach and sued the United States in the Court of Claims
for his back pay and allowances. The Court of Claims ruled that
he was entitled to no recovery whatsoever, whereupon the General
appealed to the Supreme Court. The Court, ignoring the Runkle
dicta, denied the appeal, stating:
As we have reached the conclusion that the court-martial in question
was duly convened and organized, and that the questions decided were
within its lawful scope of action, it would be out of place for us to
express any opinion on the propriety of the action of that court in its
proceedings and sentence. If, indeed, as has been strenuously urged,
the appellant was harshly dealt with, and a sentence of undue severity
was finally imposed, the remedy must be found elsewhere than in the
courts of law.52
Two years later, in 1901, the Supreme Court reiterated its
intent not to review military court-martial convictions upon their
merits. The case involved was Carter v. McClaughry,5s another
landmark case supporting the doctrine that military necessity jus-
tified command control of the military court-martial. Captain Car-
ter alleged a gross deprivation of his constitutional rights by the
court-martial that tried him, together with an allegation that the
court exceeded its jurisdiction in sentencing him. This last allega-
tion the Court was careful to examine in detail. Finding no juris-
dictional error in the sentence, however, it confirmed its desire to
avoid any non-jurisdictional review of military cases by stating:
But we must not be understood by anything we have said as intending
in the slightest degree to impair the salutary rule that the sentences of
courts-martial, when affirmed by the military tribunal of last resort,
cannot be revised by the civil courts save only when void because
of an absolute want of power, and not merely voidable because of the
defective exercise of powers possessed. 54
51 See Swaim v. United States, 28 Ct. CI. 173 (1893).

52 165 U.S. at 566.
53 183 U.S. 365 (1902).
5 Id. at 401.
Having thus firmly sanctioned the constitutionality of the

right of the military commander to dispense justice in any fashion
he desired to effect discipline within his command, provided he
stay within carefully defined jurisdictional bounds, six years later
the Supreme Court made a small crack in the dike of military
absolutism. In Grafton v. United States,55 Grafton was tried by
general court-martial in the Philippine Islands for second degree
murder of two Philippine men whom he shot to death while on
guard duty. At his court-martial, in line with current practice, he
submitted a written defense to the effect that while "on post be-
tween the hours of 2 and 4 P.M .... [a] nd in the execution of my
duty I shot two male Philippinos with a U.S. magazine rifle, caliber
30." In typical court of honor style, the accused was duly acquitted,
the court being aware, as all military courts are aware, that it is
sometimes "necessary" to shoot natives while on military guard duty.
However, the Philippine government took a more jaundiced view
of the matter and indicted Grafton for assassination. At his
subsequent civilian trial his plea of former jeopardy was overruled,
and he was convicted of homicide and sentenced to 12 years and
one day in jail.
By a divided court, the Supreme Court of the Philippines
sustained the conviction and the case went to the Supreme Court
of the United States on writ of error, where the major issue was
the fifth amendment's guaranty against double jeopardy. The Su-
preme Court reversed the conviction and set Grafton free. It ruled
that a military trial was a trial within the meaning of the constitu-
tional guaranty against double jeopardy. The Court added a straw
for constitutional due process in future military trials through the
following words:
Congress, by express constitutional provision, has the power to pre-
scribe rules for the government and regulation of the Army, but those
rules must be interpreted in connection with the prohibition against
a man's being put twice in jeopardy for the same offense.5 6
While the Supreme Court in Grafton appeared to open the door
for constitutional due process argument in military cases, there was
in fact little call for the members of the separate society to celebrate
the event. Four years later in 1911, the Supreme Court, in Reaves
v. Ainsworth,5 7 a civil case where the plaintiff sought to set aside his
administrative discharge from the army on constitutional grounds,
returned to its conservative role made plain the type of "due
55 206 U.S. 333 (1907).

56 Id. at 392.
57 219 U.S. 296 (1911).
process" available to members of the military. Mr. Justice Mc-

Kenna, disregarding the Court's opinion in Grafton, stated:
[W]hat is due process of law must be determined by circumstances.
To those in the military or naval service of the United States the
military law is due process. The decision, therefore, of a military tri-
bunal acting within the scope of its lawful powers cannot be reviewed
or set aside by the courts. 58
E. The Approaching War and Military Justice

The state of military justice in the American armed forces
as World War I loomed over the European horizon was one of
entrenched conservatism. While most of the cruel and unusual
punishments formerly inflicted upon military accused had been
prohibited in, the latter part of the 19th century by military orders,
and in some instances by Congress, not one reform had come about
as a result of a decision of a federal court. The military hierarchy
itself had instituted only minimal procedural reforms. Specifically,
defense counsel, while not yet required by law, was tolerated in
court-martial practice and permitted as a matter of privilege; 1
subpoena process was extended to the accused; 60 and the prosecutor
was prohibited by statute from deliberating with the court-martial
on the findings of guilt or innocence and the sentence, 6 ' although
he still served as the legal advisor to the court-martial on questions
of law. There was still no appeal from the military commander's
approval of a court-martial sentence, and the court-martial was
not viewed by either the federal courts or the military as a court
of law, nor as a part of the federal judiciary system of the United
States-Runkel and Grafton notwithstanding. Courts-martial judge-
ments were not subject to either direct or collateral attack in the
federal courts, except upon the narrowest of jurisdictional grounds,
despite obvious and compelling departures from constitutional due
process requirements that may have taken place in the trial of the
case before the court-martial.
On the eve of the United States entry into World War I the
58 Id. at 304.
60 Wiener reports that the accused was given subpoena power in the Army in
1860, and in the Navy in 1909. He also notes that Congress first authorized subpoena
process for federal defendants in 1846. Wiener, Courts-Martialand the Bill of Rights:
The Original Practice I, 72 HARv. L. REv. 266, 283-84 (1958).
61 Winthrop reports that the unfairness of the practice of permitting the prose-
cutor to advise the court-martial in closed session "evoked serious criticism" and
was changed by statute in 1892, which provided in part that the judge advocate
"shall withdraw" from closed sessions, and if his advice is requested, "it shall be
obtained in open court." WINTHaOP, supra note 2, at 195.
screws were tightened even further. In 1916 Major General Enoch

Crowder, the Judge Advocate General of the Army, effected a stat-
utory modification in the Articles of War that gave the military
even greater control over the court-martial process. The modifica-
tion permitted the military commander, through the device of the
Presidential Executive Order, to prescribe the rules of evidence and
procedure to be followed in courts-martial practice. 2 Prior to the
modification, military courts followed the common law rules of evi-
dence applied in the federal courts. The 1916 modification eliminated
one of the few major substantive procedural protections still enjoyed
by the military accused.0 3 Hence, as the United States prepared to
enter World War I, its system of military justice lagged several
hundred years behind its civilian counterpart; and neither its
military administrators nor the Supreme Court of the United States
had recognized any necessity for substantive change.
II. THE ANSELL-CROWDER DISPUTE:

WORLD WAR I
A. The Carnage of World War I

The slaughter and destruction of the "Great War" led ideal-
ists the world over to attempt, for the first time in history, to
"outlaw" war. The League of Nations was born amid
the rubble,
and with it came a strong desire for peace. A definition of "illegal"
war was loosely fashioned and thrust upon the world, and the
theretofore unrestricted right of nations to make war was at least
theoretically limited. By Article 12 of the Covenant of the League
62 See Act of August 29, 1916, ch. 418, art. 38, 39 Stat.
650-70 [hereinafter cited
as 1916 Code or 1916 Articles of War].
63 The Assistant Judge Advocate General of the Army during World War
I,
Brigadier General S. T. Ansell, an arch-champion of reform of military
law, de-
scribed the Article in question thusly: "One of these [the 38th Article] authorized
the President to prescribe the procedure, including the modes of proof,
in cases
before courts-martial. This was enacted at the request of the military authorities
and
in deference to the military view which insists that military command should
con-
trol the trial. It must also be remembered that while the statute in terms
confers
the power upon the President, as an administrative fact it is not the President
who
will exercise it, but the Chief of Staff and the Judge Advocate General of the
Army,
-ultra-military men. . . . Formerly, by the unwritten law military, courts-martial
recognized, so far as they recognized any law, that they should apply the
rules of
evidence applied in the Federal criminal courts . . . . But the "revision
of 1916"
changed that and conferred the power to prescribe rules of evidence upon the
Presi-
dent. This has operated as a license to courts-martial to follow their own views,
or
inquisitiveness, as to what evidence ought to be produced." Ansell, Military
Justice,
5 CoRNau. L.Q. 1, 12 (1919).
of Nations, the member states agreed to submit disputes among

themselves that were likely to lead to war to inquiry by the Council
of the League of Nations, or to a commission appointed by the
Council, and not to go to war until three months after the report
of the Council or commission. If a nation resorted to war without
first submitting its dispute to the Council, or against the report
of the Council or commission, or if it resorted to war prior to the
completion of the report of the Council or commission, or within
three months following the submission of the report, the remaining
members of the League of Nations, within certain limitations, were
obliged to impose collective economic and military sanctions against
the offending nation.
While the Covenant of the League of Nations was only a
straw in the wind in the outlawing of aggressive war, the Covenant
did mark a change in the legal status of war. The unrestricted
legal right of states (and military leaders) to resort to war as an
instrument of national policy was abridged. For, the first time in
history, the people of the world, through the creation of the League
of Nations, attempted to say "No" to those who might otherwise
seek a military solution to international problems. The message
may well have been weak and ultimately ineffectual, but it was
anti-military in substance. The American people would refuse to
join this envisionary organization to preserve world peace, but
they too were to question the infallibility of the military class.
Part of the protest of the American people would be to inquire
into several hundred judicial outrages that had been approved by
military commanders during World War I. Thus, for the first time
in our history, the American military judicial process was to be
examined in the cold, clear light of day.
The reaction of the military was classic. First, there was a
refusal to believe the public would seriously concern itself with
military judicial misconduct. We had won the War; and the Con-
stitution itself gave control of the armed forces and all its depart-
ments to the President and Congress-not to the judiciary.' Matters
of injustice were thus matters of discipline, to be resolved by mili-
tary commanders pursuant to orders from the President. The
purpose of a military organization was, after all, victory and not
judicial trials. Failing to stem the criticism, the military shifted
gears. Outright denials were issued, and then lengthy and detailed
justifications were written and published by the thousands. But
the criticism continued to mount; it was to center upon controlled
I See notes 36-37 & accompanying text, Ch. I supra.

verdicts and sentences, and upon outrageous procedural and ap-
pellate practices. It was also to focusupon a battle for legal reform
of military law between an Assistant Judge Advocate General of
the Army, Brigadier General S. T. Ansell, and the Judge Advocate
General of the Army, Major General E. H. Crowder, the arch-
champion of the status quo.
One of the most important cases that brought the situation
between Generals Ansell and Crowder to a near boil occurred in
early 1917. Several noncommissioned officers were shooting craps
in a company street at Fort Bliss, Texas, in violation of a camp
order.2 The men were duly arrested for this violation and were
placed in arrest of quarters. The following day when orders were
issued to meet usual drill formations, the noncommissioned officers
refused to drill on the basis that Army regulations provided that
noncommissioned officers in arrest status would perform no duty
whatever. The men were nonetheless ordered to drill, and upon
their outright refusal, were charged with mutiny. They were sub-
sequently tried for this offense by general court-martial, convicted
and sentenced to dishonorable discharge and to periods of confine-
ment ranging from ten to twenty-five years in prison.8 Despite the
known illegality of the orders involved, wherein the noncommis-
sioned officers were ordered to drill while in arrest status, the cases
were duly approved by the local commanding officer who had ap-
pointed the court-martial, and forwarded to Washington, D.C.,
for appellate review.
For many years, military appellate authorities had followed
the view that no matter how "gross and prejudicial the errors
committed were, no matter how lawless the proceedings ... if the
court had jurisdiction the sentence must stand" once approved by
the local appointing authority.' Hence, despite the fact that the
2 Army court-martial cases Nos. 106, 663 (1917). For a discussion

of these
cases, see Hearings on S. 5320 on Trials by Courts-Martial Before the Senate Comm.
on Military Affairs, 65th Cong., 3d Sess., 9-22 (1919) (testimony of Brigadier General
S. T. Ansell) [hereinafter cited as Hearings on S. 5320]. See generally Hearings on
S. 64 on the Establishment of Military Justice Before a Subcomm. of the Senate
Comm. on Military Affairs, 66th Cong., 1st Sess., (1919) [hereinafter cited as Hearings
on S. 64].
3 Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T.
Ansell, 35 MNiL. L. REv. 1 (1967). General Ansell reported that sentences ranged from
three to seven years in severity, and General Crowder, from ten to twenty-five years
in length. See Hearings on S. 5320 (testimony of General Ansell and General Crowder
respectively).
4 General Ansell explained applicable procedures in this regard in Hearings
on S.
5320 at 8-9: "When we entered upon this war this was the state of law. The War
Department had no power, according to practice, to revise any judgment of a court-
martial, however erroneous and however prejudicial, when measured by established
position of the noncommissioned officers in the Fort Bliss mutiny

cases was eminently correct from the point of view of military
law, inasmuch as the cases had been approved by the local com-
the
mander at Fort Bliss-the individual who ordered the trials in
first place-there was no legal remedy available in the Office of
the Judge Advocate General or even the President of the United
States to set aside the convictions on the basis of legal error. The
position of the Office of the Judge Advocate General of the Army
was, thus, that convictions once approved by the local commander
were forevermore beyond legal correction, despite the fact that
they were improper convictions as a matter of military law-
provided, of course, that the sentencing court-martial possessed
jurisdiction over the offender and the sentence adjudged was within
legal bounds.
B. General Ansell Advances a Solution

General Ansell, then acting Judge Advocate General of the
Army, was of a different mind. He called a meeting "to discover
if he could find some method of establishing legal control over
5
such court-martial judgments." His office prepared a memorandum
to the Secretary of War, the Honorable Newton Baker, concerning
the Fort Bliss mutiny cases. Secretary Baker was informed that
under existing law, specifically section 1199 of the Revised Stat-
utes, the Judge Advocate General was authorized to "receive,
revise, and cause to be recorded the proceedings of all courts-
martial."6 Accordingly, Ansell recommended to the Secretary that
the word "revise" be broadly construed7 to include the power to
correct errors of law in courts-martial. General Ansell noted in
his memorandum, however, that prior Judge Advocates had for
over 50 years construed the word "revise" to mean only that the
Judge Advocate General could correct clerical errors, and that
he knew of no expert on military law aside from his staff who
would
standards of law, that judgment might be to the accused. The War Department
was with-
see that a sentence was not carried out if it was awarded by a court that
and
out jurisdiction, but according to the department view, no matter how gross
when
prejudicial the errors committed were, no matter how lawless the proceedings,
error, if the
judged by established principles of law, no matter how shocking the
the settled
court had jurisdiction the sentence must stand. . . . That is, it had been
of the War Department and its law officers to regard as
construction and practice
final and beyond all appellate and corrective action the judgment of courts-martial
where the
when approved by the authority appointing the court, excepting in cases
proceedings were clearly coram non judice."
5 Hearings on S. 5320 at 10.
0 Act of June 23, 1874, ch. 458, § 2, 18 Stat. 244.
7 General Ansell's lengthy memorandum to Secretary of War Baker is found in
Hearings on S. 5320 at 10-21.
agreed with him, nor any court decision favoring his broad con-
struction of the statute.8 Nonetheless, Ansell argued that the es-
tablished policy had in numberless cases resulted in denial of
justice, where concededly illegal convictions were affirmed by the
appointing authority and had passed beyond all corrective power
of the Judge Advocate General. They could be remedied only
through the exercise of executive clemency, a remedy which ac-
cording to Ansell was "utterly inadequate . . . in that it must
proceed upon the predicate of legality, can operate only on un-
executed punishment and, besides, has no restorative powers." 9
Ansell's memorandum blasted the immorality of the "office
policy" in regard to the construction of section 1199. It stated:
My entire service during all of which I have been keenly sensible and
morally certain that the office practice was wrong, my six years' service
in this office, during which time I have borne witness of conceded and
uncorrected injustice-all of this has never served to impress me with
the full sense of the wrong done to the individual and to the service
so much as has the experience of my present brief incumbency of this
office during this war. What is true in my case is true, so they advise
me, of my associates. During the past three months, in scores, if not
hundreds of cases carrying sentences of dishonorable expulsion from
the Army with the usual imprisonment, this office has emphatically
remarked the most prejudicial error of law in the proceedings leading
to the judgment of conviction, but impelled by the long-established
practice has been able to do no more than point out the error and
recommend executive clemency. 10
Without waiting for permission to act, or for concurrence
with his views, Ansell's memorandum informed the Secretary that
Ansell was acting in the Fort Bliss cases in keeping with his own
views of the statute in question, and, accordingly, he had set aside
the convictions and sentences in each case, and had directed that
necessary orders be issued restoring each of the prisoners involved
to active duty." General Ansell concluded his memorandum to
the Secretary by justifying his actions in the Fort Bliss cases as
necessary to assure justice to the first truly "democratic and popu-
lar Army in our history.' 2
8 Id. at 13.
9 Id. at 11.
10 Id. at 11-12.
11 Id. at 11. The action is set forth verbatim as follows: "In the exercise of the
power of revision conferred upon me by section 1199, Revised Statutes of the United
States, I hereby set aside the judgment of conviction and the sentence in the case of
each of these several defendants and recommend that the necessary orders be issued
restoring each of them to duty."
12 Hearings on S. 5320 at 20-21.
19701 COMMAND INFLUENCE
General Ansell's tour of duty as acting Judge Advocate General

was terminated almost immediately upon the submission of the
memorandum.' 3 After much bickering on the subject between
Ansell and the Judge Advocate General of the Army, Major General
Crowder, 14 the Secretary of War sided with the latter and Ansell's
actions in the Fort Bliss cases were set aside. Executive clemency
was granted, however, and the prisoners duly restored 5 to duty;
but their convictions were to stand as legally correct. But the
battle between Ansell and Crowder was to rage throughout the
War.
C. The Grist-Mill Begins to Turn

More case-fodder for the dispute was not long in coming,
cases which Ansell brought before the Congressional eye in an
attempt to promote reform. Early in the War, a military police-
man, Trapalina, was accused of burglary at Fort Gordon, Geor-
gia' 6 He was duly arraigned before a United States Army general
court-martial, tried and acquitted. The court-martial apparently
accepted his story that while on duty as a military policeman during
his midnight patrol of the town of Augusta, he found a shop open
and entered, suspecting burglars might be inside. As he was ap-
prehended in the shop, his story was not unbelievable. But his
commanding general, for reasons of his own, was not convinced.
Feeling that the discipline of his command was at stake, he returned
the case to the court-martial to "reconsider" its findings of not
guilty. The court-martial, finding Trapalina's story a bit far-fetched
this time, convicted him of burglary and sentenced him to be dis-
honorably discharged from the service, to forfeit all pay 7and al-
five years.'
lowances, and to be confined at hard labor for
13 Id. at 22.
14 General Crowder's answering memorandum is quoted in Hearings on S. 5320
at 22-29, wherein Crowder hotly maintains that the Revised Statutes permit the
Judge Advocate General of the Army to review for clerical corrections only. General
Crowder also cited In re Mason, C.C.N.D.N.Y., Oct. 1882, wherein the United States
Circuit Court of Appeals, in an unreported case, held exactly to the contrary of
General Ansell's position on the matter of the construction of section 1199, Revised
Statutes. General Crowder quoted that Court as holding that the word "revise" did
that
not confer reversal powers upon the Judge Advocate General of the Army, and
the word as employed was "more appropriate to indicate the discharge of clerical
duties." Hearings on S. 5320 at 28.
15 Hearings on S. 5320 at 30; Hearings on S. 64 at 90-91.
16 See Army court-martial No. 110, 595, tried Jan. 24, 1918, at Fort Gordon,
Georgia. Jus-
17 Id. See also Morgan, The Background of the Uniform Code of Military
tice, 6 VAN'. L. REV. 169 (1953); Letter from General Crowder to Secretary of War
Baker, Mar. 10, 1919i,in U.S. WAR DEPT., MsuTARY JusTicE DuRnqo THE WAR (1919).
In another instance, David Cortesini, a young Italian-American

recruit, was to make a few waves for General Crowder when he re-
fused to sign an enlistment and assignment card at Camp Upton,
New York. He was charged with refusing to obey the lawful com-
mand of a commissioned officer; but at his general court-martial he
was, for unknown reasons, promptly acquitted.'" The commanding
general at Camp Upton, however, was not so easily defeated, nor
was he inclined to accept "foolish" verdicts from an Army court-
martial. He returned the case to the court-martial and directed it
to reconsider its verdict of not guilty. After disposing of his feel-
ings concerning guilt, the general felt compelled to say a few words
about the sentence, and proceeded to advise the court-martial with
the following no-nonsense direction:
The reviewing authority does not intend to give the impression that
he personally believes that the accused must be required to serve a
long period of confinement for this act, but rather he desires the court
to understand that the commission of this act should be met by severe
punishment, and then, if in this case there are reasons why the sentence
should be reduced, such reduction should be ordered on the action of
the reviewing authority rather than in the inadequate sentence awarded
by a court appointed as an executive agency in the administration of
19
discipline.
The court reconsidered its findings of not guilty, convicted the
accused and sentenced him to be dishonorably discharged from
the service, to forfeit all pay and allowances, and to be confined
at hard labor for five years.
Trouble brewed in many quarters. The case of Private Ernest
Dean was tried at Fort Riley, Kansas. He was convicted of stealing
a shirt and a pair of shoes and was sentenced to forfeit two-thirds
of his pay per month for six months. The convening authority
returned the record of trial to the court-martial with the comment
that he considered the sentence both inadequate and improper,
and that the court upon reconsideration would impose an adequate
sentence to include dishonorable discharge. The "court revoked
its former sentence, and sentenced the accused to be dishonorably
discharged and confined for six months.20 The case of Private
Alexander Kahn, Company B, 55th Infantry, furnishes another
18 The Cortesini case is listed in Hearings on S. 5320 at 246-47. It is also dis-

cussed by Bruce, Double Jeopardy and the Power of Review in Court-Martial Pro-
ceedings, 3 MiiN. L. REv. 484, 488, 507 (1919).
19 The action is set forth verbatim in Hearings on S. 5320 at 247 (emphasis
added).
20 General Crowder listed this case and fifty examples of a similar nature (cases
wherein sentences were returned to trial courts for increase in severity). Crowder's
complete list and summarization of the cases involved is found in Hearings on S.
5320 at 255.
typical example of this phase of wartime justice. Kahn was con-

victed of stealing a $5.00 gold piece. He was sentenced to be con-
fined at hard labor for six months and to forfeit two-thirds of his
pay for a like period of time. The commanding general returned
the record to the court-martial because the accused, while con-
victed of larceny, was not eliminated from the service in accordance
with War Department policy. The court-martial revoked its former
sentence and sentenced the accused to be dishonorably discharged
from the service, to forfeit all pay2 and allowances, and to be
confined at hard labor for two years.
1
The trial of thirteen Black soldiers for mutiny and murder

at Fort Sam Houston, Texas, in 1917, cut an even more grisly
notch in military justice history. On a dark night in Texas, a
company or more of Black soldiers stole 50,000 rounds of am-
munition, took their rifles and marched into Houston in company
formation. On the way, the soldiers fired into the air and into
everything that moved. A man drove by in his automobile and both
he and his car were riddled with bullets. A homeward-bound worker
got off the street car and was shot down in a hail of gunfire. Other
people, hearing the noise, ran out of their homes and were killed
in the streets or shot down in the gutters. Almost all the homes in
the area of the march were peppered with bullets. In all, some
seventeen or eighteen were killed before the rioters were brought
under control by federal troops almost four hours later.
Sixty-three Black soldiers were tried in connection with the
riot; fifty-five were convicted and thirteen sentenced to be executed.
During the course of the trial, each day's transcript was typed
and reviewed by the commanding general, so that upon the con-
viction of the accused, he was able to approve the sentences almost
immediately. The thirteen condemned soldiers were executed only
two days after their convictions, and some four months before
their records of trial were received in Washington for "appellate
review." 2 2 Despite the best efforts of General Crowder to assure 23
the American people that these executions were perfectly legal,
their summary nature shocked the nation's conscience.
With the onslaught of World War I, when the military ser-

22 A complete discussion of thesecases is found in Hearings on S. 5320 at 194-97,
and Hearings on S. 64 at 38-39, 94-95. See also Ansell, Injustice in Military Trials-
Why Judicial Protection is Imperative, 62 THE FORuM 447, 449-50 (1919).
23 Under the 1916 Articles of War the commanding general of a territorial
department in time of war was authorized to carry into execution death sentences
involving convictions of murder, rape, mutiny, desertion or spying. All other death
of
sentences were subject to Presidential confirmation prior to execution. 1916 Articles
War, art. 48(d).
vices were inundated with four million drafted young Americans,

the separate society theory-that soldiers had contracted away
constitutional rights to due process of law by their voluntary act
of enlistment-went off its tracks. A young recruit on kitchen
police who refused to surrender his cigarettes upon the order of
his equally young officer might formerly have received a twenty-
year sentence in a military prison without a ripple of protest. But
transfer the case to Fort Dix in the year 1917, and suddenly
United States Senators opine that the case is "absolutely un-Ameri-
can," and that nobody "but a damned fool" would have ordered
him to surrender his cigarettes in the first place.2 4
Much to General Crowder's displeasure, it was this type of
case that Ansell delighted in bringing to the attention of Congress.
An unlawful pass case resulted in ten years imprisonment; 2 5 a
twenty-seven day absence without leave and escape from confine-
ment at Fort Dix warranted forty years imprisonment; 26 a soldier
who refused to drill and who later escaped from confinement was
sentenced to thirty years confinement.
The cases from France were still worse. The most famous
of these involved two rear-line soldiers who refused to drill, and
two soldiers at the front who were discovered asleep while on
guard duty in the trenches. The two soldiers who refused to drill
contended they were sick, and the two men who had gone to sleep
at the front while on guard duty maintained they had gone without
sleep for days in the trenches, and thus went to sleep on guard
duty from sheer exhaustion. All four soldiers were defended by
young second lieutenants, none of whom were lawyers nor possessed
of legal training or experience, and none of whom made any de-
fense whatsoever for their clients in an effort to avoid the imposition
of the supreme penalty. All four soldiers were tried by general
court-martial, all were convicted, and all were sentenced to be
put to death.28
Under the law in effect during World War I, the type of
offense involved required prior approval by the President of the
United States before execution was legally permissible. After the
sentences were duly approved by local commanders in France and
forwarded to Washington for Judge Advocate review and Presi-

25 Id. at 79-81.
26 Id.
27 Id.
28 See Hearings on S. 5320 at 91-93 (testimony of General Ansell concerning the
cases of Privates Ledoven, Fishbach, Sebastian, and Cook).
dential approval, General of the Army Pershing personally made

repeated demands to Washington via transatlantic cable, insisting
that the discipline of his Army demanded the immediate, local
execution of all four soldiers involved. He specifically requested
that he be advised by cablegram of the confirmation of the sen-
tences in order that he might expedite the executions. General
Crowder was impressed by Pershing's views, but he vacillated and
delayed his final recommendations on the cases. His erstwhile
assistant, General Ansell, was not as indecisive, and was less im-
pressed by General Pershing's interference in the review of the
cases. Outraged by the cruelty of the sentences and convinced the
War Department would give no consideration to his views, Ansell
leaked word to the press and took the cases, through a congress-
man, directly to the President of the United States, who commuted
the death sentences, and ultimately restored the soldiers to duty.29
D. The Ansell-Crowder Dispute Gains Intensity

The dispute between General Crowder and his chief assistant
General Ansell brewed into a battle of magnificent dimensions,
spilling over from the confines of the War Department into the
nation's press, and eventually into the halls of Congress.3 General
Ansell's efforts at reform did not stop with the Fort Bliss mutiny
cases, nor with the four French death cases.3 1
29 Id.
80 See, e.g., The Thing That is Called Military Justice, N. Y. WORLD, Jan. 19,
1919; Post, The Injustice of Military Justice, LITERARY DIGEST, Apr. 12, 1919 at 19;
What is a Crime, INDEPENDENT & WEEKLY REV., Apr. 5, 1919 at 13. See also A. B. A.
REP. (filed with the Secretary of the Executive Comm., July, 1919); WAR DEPT. BD.,
REPORT ON COURTS-MARTIAL AND THEIR PROCEDURE (the Kernan Board), July 17,
1919. The following legal articles are listed in Mott, Hartnett & Morton, A Survey of
the Literature of Military Law-a Selective Bibliography, 6 VAND. L. REV. 333, 364
(1953), as relating to the Answell-Crowder dispute: Ansell, Military Justice, 5
CORNELL L.Q. 1 (1919); Ansell, Is There a Difference Between Civil and Military
Justice? 1920 OHIO B. ASs'N J. 134; Ansell, Some Reform in Our System of Mil-
itary Justice? 32 YALE L.J. 146 (1922); Morgan, The Existing Court-Martial
System and the Ansell Army Articles, 29 YALE L.J. 52 (1919) ; Wigmore, Lessons
from Military Justice, 4 J. Am. JUD. SoC'Y 151 (1921), 24 LAw NOTES 227 (1921);
Bogert, Courts-Martial, 5 CORNELL L.Q. 18 (1919); Rigby, Military Penal Law, 12
J. CRim. L. & CRmIINOLOGY 84 (1921); Peterson, Review of General Crowder's
Letter on Military Justice, 89 CENT. L.J. 44, 64 OHIO L. BULL. 289 (1919); Bauer,
Court-Martial Controversy and the New Articles of War, 6 MASS. L.Q. No. 3, 61
(1921). Congressional interest in the controversy, of course, is found in great abun-
dance in Hearings on S. 5320, and in the voluminous Hearings on S. 64.
31 Ansell diligently reported outrageous cases to Congress throughout World
War I. He fought bitter battles throughout the War with the Judge Advocate General
of the Army and the Secretary of War for a meaningful appellate system for military
law, but was constantly blocked in this endeavor by them. He exposed makeshift
reforms instituted and designed by them to stem the tide of rising criticism against
the wartime administration of military justice. An example of Ansell's maneuvering
The pressure which his criticisms put on Secretary Baker and

General Crowder-and their reaction to the pressure-is highlighted
by two letters which the two exchanged. 2 Who initiated the corre-
spondence is unknown, but for record purposes it is clear that Sec-
retary Baker wrote to General Crowder on March 1, 1919, request-
in this regard is found in the publication of General Order No. 169, Dec. 29, 1917,
and General Order No. 7, Jan. 17, 1918, published by the War Department to stem
the criticism of the execution of the thirteen Black soldiers in Houston, Texas, before
their records of trial were "reviewed" in Washington, D.C., for legal sufficiency. Both
orders stipulated that no death sentence be executed in the United States until the
Judge Advocate General of the Army had reviewed the record and certified there
was no legal objection to the execution of the death sentence. Ansell, in a biting
memorandum to General Crowder dated January 9, 1918, first assailed General Order
No. 169 as falling far short of effecting true legal review. He pointed out that the
order applied in the United States only, and did not extend to cases involving dis-
missal or dishonorable discharge. He also specifically objected to the fact that the
order did not apply in France. General Order No. 7, dated January 17, was thus
published by the War Department. It extended to dismissal and dishonorable discharge
cases, and was made applicable in France. Ansell, however, was far from satisfied. He
subsequently reported to Congress that General Order No. 7, so far as it applied
to France was advisory only and that because of this fact he had recommended that
it not be published by the Army. Ansell further testified that while he was in France
in 1918 he found that military commanders there refused to accept judge advocate
rulings under General Order No. 7, and accordingly, continued to exercise "full power
in court-martial cases." Hearings on S. 5320 at 31-33, 68-69, 209-11.
Ansell also created appellate boards of review in the office of the Judge Advocate
General on his own initiative, and dared the Judge Advocate General and Secretary
of War to lessen what powers they did have. Upon Ansell's return from Europe in
1918, he found that a clause in General Order No. 7, supra, prohibited boards of
review (which Ansell had previously established in the office of the Judge Advocate
General) from expressing their opinion to commanders on the severity of sentences
in affirming cases under General Order No. 7. General Ansell, on his own authority,
cancelled that restriction and ordered the boards of review to express their opinions
to military commanders on matters of clemency and excessive sentences. Hearings on
S. 5320 at 143.
Without the approval or knowledge of the War Department, he also created a
board of review in France that would have further limited General Pershing's power
to order sentences into execution. While acting Judge Advocate General of the Army
in September, 1918, General Ansell without the concurrence of the Secretary of War,
or General Crowder, and apparently without their knowledge, directed that General
Order No. 84 be published, giving the acting Judge Advocate General for France
authority to direct corrective action in cases tried in France. According to General
Crowder, Ansell "connived" the publication of this "radical change" and did not call
it to the attention of himself or the Secretary of War, but pushed it through unno-
ticed on September 11, 1918, "amidst the mass of other printed orders" that the
War Department routinely printed. See Letter from General Crowder to Secretary of
War Baker, Mar. 10, 1919, in U.S. WAR DEPT., MIITARY JusTIcE DURNo TE WAR,
57 (1919).
Ansell advanced a series of legislative reforms to the 1920 Congress that were at
least thirty years ahead of their time, the most significant of which was the creation
of a civilian court of last resort for military cases, a court which Ansell prophetically
named the United States Court of Military Appeals. For a discussion of Ansell's
proposed Articles of War, see Morgan, The Existing Court-MartialSystem and the
Ansell Army Articles, 29 YALE L.J. 52 (1919); Brown, The Crowder-Ansell Dispute:
The Emergence of General Samuel T. Ansell, 35 Mir. L. Rv. 1 (1967).
82 The two letters are printed in U.S. WAR DEPT., M1ITARY JusTIcE DURINo THE
WAR (1919) [hereinafter cited as MILITARY JusTicE DURNo THE WAR].
ing that the General set the record straight on the question of the
wartime administration of military justice in the American Army.3"
In his letter, the Secretary stated that during the years 1917 and
1918 there was no criticism of the system (a gross misstatement of
fact), that only "recently" had the outburst of criticism reached
him (another gross misstatement of fact), and additionally, it came
as a "surprise and sorrow." 34 The Secretary continued that the com-
plainants were alleging that justice was not done during the War
years. While he himself, from close personal contact and involve-
ment, knew this was not true, it was important that the public
should receive adequate reassurance on the subject, and the "highly
colored press reports" and congressional speeches placing on record
certain supposed instances of harsh and illegal treatment, should
be counteracted. Since the facts were in the possession of the Judge
Advocate General, he was requested to make a concise survey of
the entire field and thereby put the public at ease on this contro-
versial subject.
83 Letter from Secretary of War Baker to General Crowder, Mar. 1, 1919, in

MILITARY JUSTICE DURING THE WAR, supra note 32, at 3.
84 The assertion of the Secretary of War that there was no criticism of the
system in 1917 and 1918, and that only "recently" had the outburst of criticism
reached him (i.e., March, 1919), was, in view of the public record to the contrary,
almost beyond relief. The criticism began with General Ansell's initial memorandum
to the Secretary on the Fort Bliss mutiny cases, concerning in particular the absence
of true appellate power in the office of the Judge Advocate General. This memo-
randum was dated November 10, 1917. General Crowder's memorandum in opposition
to the remedy which Ansell proposed, was addressed to the Secretary on November
27, 1917. Secretary Baker's first formal opinion on the matter was dated November
27, 1917. Ansell's second brief to the Secretary on the same subject was dated Decem-
ber 10, 1917 and Crowder's second brief to the Secretary was dated December
17, 1917. Secretary Baker's final ruling, affirming Crowder's position (and the
legality of the convictions despite the fact that all concerned conceded there was no
basis in law to affirm the convictions) was dated December 28, 1917. General Order
No. 169, published to stem the criticism of the execution of the 13 Black soldiers in
Houston, Texas, was published by the War Department on December 29, 1917. See
note 31 supra. General Ansell's criticism of this order was forwarded to the
Secretary on January 9, 1918. On January 17, 1918, General Order No. 7 was pub-
lished to placate Ansell. See note 31 supra. On January 19, 1918, Secretary Baker,
pursuant to Crowder's urging, recommended to Congress that section 1199, Revised
Statutes, be amended to give the President of the United States legal review power
over court-martial convictions. (The proposal also would have given military com-
manders the statutory right to return acquittals to courts-martial for reconsideration,
as well as to increase inadequate sentences. Hearings on S. 5320 at 149-51). The
famous "French Death Cases" were hotly contested and debated in the War Depart-
ment during the period February through May, 1918, and the death sentences were
set aside by the President on May 4, 1918. Ansell established boards of review in
the office of the Judge Advocate General on August 6, 1918, and ordered them to
review court-martial convictions, against the will of the Judge Advocate General and
the Secretary of War. Lastly, Ansell's "surreptitious" General Order No. 84, see
note 31 supra, was dated September 11, 1918. That Secretary Baker was unaware of
these events is fantastic. Not only was he aware of them, he was a central actor 'in
them.
The letter from the Secretary of War was answered by the

Judge Advocate General only nine days later, in a "concise" fifty-
nine page letter, assuring the Secretary that all was well with
World War I military justice, and that the fault of most of the
criticism lay with a disgruntled Assistant Judge Advocate General
(General Ansell) who had usurped General Crowder's functions
for several days while the latter was absent from his office attend-
ing to very important duties as the Provost Marshal General. 85
General Crowder first directed his attention to the particular
cases that had been cited for criticism, and thereby "allay[ed] the
apprehensions that [had] been excited by the public allusion to
these cases." In advancing the army's position on the case of the
young military policeman (Trapalina) at Fort Gordon, who had
first been acquitted of burglary, and subsequently convicted and
sentenced to five years in jail pursuant to the direction of his com-
manding general, General Crowder wrote that when the record of
conviction was reviewed at his office, "though there was sufficient
evidence to sustain the finding, the evidence did not go so far as to
show ... guilt beyond a reasonable doubt."3 6 General Crowder felt
this was an important point, and noted that most civilian courts
would have stopped the review right there. Nonetheless, Crowder
asserted, his office wrote to the commanding general at Fort Gordon
and recommended that he reconsider the verdict in view of the fact
that Crowder's office had determined the record did not prove guilt
beyond a reasonable doubt. General Crowder reported that the
commanding general at Fort Gordon consented to reconsider the
question of the guilt of the accused a second time, and thus con-
ferred with his staff judge advocate prior to announcing his second
determination. Thereafter, the Fort Gordon commander announced
his second verdict, and, in Crowder's words, "adhered to the find-
ing." This act of judicial arrogance on the part of the Fort Gordon
commander was not condemned by Crowder, but was in fact praised.
Crowder wrote:
This case, therefore, instead of being ... an illustration of the "control
which the military commander exercises over the administration of
civil justice," illustrates exactly the opposite .... The case is a good
illustration of a feature in which the system of military justice some-
times does even more for the accused than the system of civil justice. 87
To General Crowder, the real importance of the case lay in the fact
85 See Letter from General Crowder to Secretary of War Baker, Mar. 10, 1919,
in MILITARY JUSTIcE DUR G THE WAR, supra note 32, at S.
8e MLTARY Jusnca DURno THE WAR, supra note 32, at 9.
87 Id.
that Trapalina's commander twice considered the evidence of guilt

before the conviction was ultimately confirmed by the Army, rather
than in the commanding officer's direction to the court-martial, fol-
lowing Trapalina's acquittal, to consider the question of guilt for a
second time.
In justifying the four French death cases, Crowder got straight
to the point. Despite the extremely severe sentences involved, de-
8
spite the compelling mitigation involved," and despite the fact that
the four accused were represented by non-lawyer second lieutenant
defense counsel who offered no defense whatever for their clients,
circumstances dictated that the death sentences be executed, and
for General Crowder military necessity was justification enough.
Writing of these cases he stated:
[I]t is enough here to say that General Pershing especially urged
the importance of adopting this policy [the execution of the soldiers]
for the protection of his Army's welfare, and his chief law officers con-
curred in this message; and that under the circumstances no one could
have been criticized for acceding to this urgent request and adhering 89
to the principle handed down by all fixed traditions of military law.
Crowder moved on to more troubled waters. In regard to the

application of the rule of law in the actual trial of military cases
by young second lieutenant defense counsel who were assigned to
capital cases without prior training in the law or legal experience,
General Crowder observed that criticism of the Army on this point
was unjustified. He assured the Secretary of War that the "auto-
matic appeal" system found in military law more than offset the
('consequences of such inadequate defenses as may from time to
time be found."" The beneficial effects of this system were ex-
plained in the following detail:
Virtually this appellate review performs over again the functions of
counsel for the defense, and not only in technical duty but in actual
spirit, this appellate review seeks to make good those deficiencies of
defense counsel which may become obvious to the experienced scrutiny
88 General Ansell reported that the two soldiers who were convicted of refusing
to drill had alleged that they were too sick to drill, and that the two men accused
of sleeping on post at the front had asserted that they had gone without sleep for
five days prior to their offense, and thus went to sleep from sheer exhaustion. Ansell
testified that the courts involved made no effort to prove or disprove these matters
of extenuation, hut convicted all four soldiers as charged, and sentenced all of them
to be put to death. They were defended by inexperienced non-lawyer defense counsel,
all of whom were second lieutenants. Hearings on S. 5320 at 91-92.
89 MILITARY JUSTIcE DURINO THE WAR,supra note 32, at 10. Ansell, on the other
hand, described General Pershing's interference in the cases as uncalled for, and stated
it was put forward with "great insistence." Hearings on S. 5320 at 92.
40 MILITARY JusTic, DURINO mTiWAR, supra note 32, at 30.
of the appellate officer. It is in this appellate review that I find the most
satisfactory assurance that such deficiencies as may have from time to
time occurred through 4the 1 inexperience of officers for the defense have
been adequately cured.
General Crowder was frank to admit, however, that some of
the sentences of over twenty-five years "are open to criticism as
excessively severe." 42 He counterbalanced this remark with the
observation that the scrutiny of the "automatic appeal" section of
his office "may be relied upon to detect cases of excessive severity
before any excessive portion of such sentence has been served." But
the General further added that the trend of military cases "has been
one of relatively moderate penalties instead of the severest one per-
missible under the law." The General then observed, somewhat con-
trarily, that in many cases involving sentences of ten to twenty-five
years confinement, "the sentence is merely nominal, in that the
offender may be, and in practice frequently is, restored to duty at an
early period of a few months or more, totally regardless of the long
period named in the sentence." 4
The right of the commanding general of a general court-martial
jurisdiction to return cases of acquittal to the court-martial for re-
consideration, a procedure that was not sanctioned by statute or
executive order, but was sanctioned through military regulation and
custom only, was described by General Crowder as a mere proce-
dural device designed to secure "due application of the law." Crow-
der stated that intrinsically "nothing more is here implied than the
court is to reconvene and reconsider its judgment freely and inde-
pendently." "It is," he added, "in no sense a measure which subjects
the court-martial to the command of the reviewing authority in
framing the tenor of its judgment. . . ."" Drawing from his own
experience, General Crowder stated that he could "recall more than
one case in which the verdict of acquittal was notoriously unsound,
and in which the action of the commanding general in returning the
41 Id.
42 Id. at 36.
43 Id. at 37, 40. Continuing with his contradiction that military sentences were
relatively moderate, General Crowder asked why "was it necessary or wise to name
such long maximum terms in the sentence?" The General informed the Secretary that
the answer "must be sought in the necessities of discipline while our Army was being
raised, and in just apprehensions of responsible officers over the fulfillment of their
huge task." General Crowder frankly admitted that "probably none of these officers
supposed for a moment that these long terms would actually be served." It was their
business and duty, he stated, to impose "a compelling sense of discipline, and they
chose those terms which, in their judgment, would do so." Id. at 41.
44 Id. at 33.
case )furnished a needed opportunity for doing full justice in the

45
case."
General Crowder admitted, however, that despite the foregoing

salutary effects, the system was radically different from that fol-
lowed in civilian jurisdictions, and that he was prepared to recom-
mend a change in the military practice prohibiting the return of not
guilty findings to trial courts, as well as the power of a reviewing
authority to return a 4case
6
to a court-martial for the purpose of in-
creasing the sentence.
General Crowder reserved most of his fire for the criticism that
appellate action taken in his office was ineffective in that his rulings
47
were not backed by force of law, but were mere recommendations
-the basis of Ansell's action in the Fort Bliss mutiny cases. General
Crowder stated that he took immediate steps to countermand An-
sell's action on the basis that once a military conviction, whether
legally correct or not, had been affirmed by the reviewing authority
who appointed the court-martial and ordered the trial in the first
con-
place, no power on earth could thereafter legally set aside the
viction.48 General Crowder reiterated the arguments he had previ-
45 Id. General Crowder further stated that out of 1000 World War I cases picked
involved acquittals
at random from their order of file in his office, only ninety-five
proceedings in revision.
that were returned to trial courts by military commanders for
the remaining fifty-six
Thirty-nine of those were returned for clerical corrections, and
of the verdict of acquittal. In thirty-eight of these cases, the
for reconsideration
to its original verdict, and in only eighteen
General noted, the court-martial adhered
accused found guilty
cases was the judgment of acquittal actually reversed and the
number, and
of an offense. Crowder felt that this was certainly not an appreciable
any natural presumption would permit us, if we were
"it would be going further than
Id. See also
to infer that those changes involved substantial injustice to the accused."
at 248-54. Crowder
General Crowder's testimony on this matter, Hearings on S. 5320
guilty verdicts which were set aside in World War I, and
testified that of all not
as finally approved
wherein guilty verdicts were imposed, that the average sentence
and executed was only 1.5 months confinement. Id. at 248.
46 MILITARY JusTIcE DURING THE WAR, supra note 32, at 34. General Crowder's
to the
letter to the Secretary of War did not mention his previous recommendation
the military
Secretary in January, 1918, that the practice of "revision" as practiced in
by General
be enacted into positive legislation, a recommendation that was made
after the practice of revision had been under fire by an outraged citi-
Crowder long
in this regard, Hearings on S. 5320 at 149.
zenry. See Crowder's proposed legislation
4T General Crowder defended the "recommendatory" system of review. Utilizing
trial were returned
his own statistics, he said out of 491 cases in which the records of
to convening authorities, wherein the Judge Advocate General recommended that
were not
the case of conviction be reversed, only thirteen of their recommendations
followed. MinTARY JusTIcE Duagmi I= WAR, supra note 32, at 49.
48 Article of War 35, 1916 Articles of War, provided that after records of trial
General of
had been "finally" acted upon, they be forwarded to the Judge Advocate
of a court-
the Army. Article 46, 1916 Articles of War, provided that no sentence
appoint-
martial would be carried into execution until it was approved by the officer
ously made to the Secretary of War to the effect that over fifty
years of administrative precedent sustained his version of the mat-
ter, and that substantial justice was accorded to the individual in
such cases by the Judge Advocate General recommending to the
appropriate subordinate general court-martial reviewing authority
that sentences in cases of this nature be reduced as a matter of exec-
49
utive clemency.
General Crowder concluded his letter to the Secretary with an
accusation against General Ansell, accusing him of double-dealing
and surreptitiously attempting to effect "radical" changes in his
office (i.e., a meaningful system of appellate review), 50 and openly
accusing him of being dishonest in taking the four French death
cases to the President." Crowder also accused Ansell of bungling,
of leading him into error on the facts of the French death cases,
and-perhaps the wildest accusation of all-accused Ansell of hav-
ing failed to suggest general improvements in military justice during
the War years, despite having had ample opportunity to do so.52
Crowder concluded his fifty-nine page letter to the Secretary with
the sterile observation that military justice was not a perfect system,
but added that "neither does anyone maintain that civilian justice
is perfect."1 3
Crowder did condescend to admit, however, that sec-
tion 1199 of the Revised Statutes be amended to permit the Presi-
dent, or his appropriate military subordinate "to correct, change,
reverse, or set aside any sentence of a court-martial found by him
to be in error of law or fact." 54
E. General Ansell's Reply: A Demand for Change

It has been reported that approximately 90,000 copies of Gen-
eral Crowder's letter to Secretary of War Baker were distributed
ing the court, subject to certain exceptions listed in Article 48 wherein confirmation
of the sentence was required by the President (notably, certain death cases
and general
officer cases, see note 44, Ch. I supra). Significantly lacking, of course, was
any pro-
vision for legal review of the record of conviction, by either the Judge
Advocate
General, the President of the United States, or any other appellate agency.
49 General Crowder was not disturbed at the lack
of substantive review of
military convictions: "The lawyer's mind is not particularly shocked by the
fact that
there exists in military jurisprudence no court of appeal. The Supreme Court
of the
United States has held too often, and too clearly to require citation of
authorities
that it is no objection to a grant of jurisdiction that the grant is original
and also
final; also that there is no constitutional or necessary right of appeal." Hearings
on
S. 5320 at 64.
50 MILITARY JusTIcE DUPING THE WAR, supra note 32, at 57.
51 Id. at 58.
52 Id. at 62.
53 Id. at 73.
54 Id.
5
throughout the United States. The state of military justice being
what it was, it came as little surprise that not all the copies fell
into sympathetic hands. General Ansell's reply was denied publica-
tion by the Secretary on the basis that since both Ansell and
Crowder agreed that changes were necessary, it was not appropriate
6
to publish General Ansell's reply. Ansell personally was not so
57
reticent. One of the classic denunciations of military law, certainly
the most succinct, was written by Ansell in the Cornell Law Quar-
terly of 1919-20. He described the legal antics of World War I
court-martial practice as follows:
Errors committed in such trials by men ignorant of law are not likely
to be untenable and idle. ... There are likely to be, indeed there are,
ridiculous blunders with tragic consequences .... Frequently they are
wrong from beginning to end; wrong in fact; wrong in law; wrong in
the conduct of the inquiry; wrong in the findings; wrong in the "ad-
vice" given by compliant and impotent law officers, who recommend
the approval of such proceedings; wrong in the ignorant confirmation
of such proceedings; wrong in everything. And yet of such errors there
can be no review.
The system may well be said to be a lawless system. It is not a
code of law; it is not buttressed in law, nor are correct legal conclu-
sions its objective. The agencies applying it are not courts, their pro-
ceedings are not regulated by law. . . . The system sets up and
recognizes no legal standard, and has no place for lawyers or judges.
Whatever is done with the final approval of the convening commander
is done finally beyond all earthly power of correction. Setting up no
legal standard-in a word, being a system of autocracy and not law-it
contemplates no errors of law and makes no provision for the detection
and correction of errors that under the system can never occur. Ac-
cordingly, questions of law as such cannot arise, and such questions as
do arise are presented to the commander for determination, not as
questions of law to which he is bound to defer, but as questions to be
disposed of by him finally and in accordance with his ideas, first, as to
the requirements of discipline, and secondly, of right and justice. The
system, which is one of absolute penal government of every person
subjected to military law, and which results in an almost incompre-
hensible number of courts-martial annually, is perhaps most remarkable
in that it has no place for a lawyer. The military commander governs
the trial from the moment of accusation to the execution of the sen-
tence, and such law adviser as he may have on his staff is without au-
thority or right to interpose. . . . At every point the decision of the
commanding general is final and beyond all review. All the legal re-
viewing machinery designed to "advise" commanders in the admin-
istration of justice is extra legal, is not established by law.... 58
55 Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T.

Ansell, 36 Mm. L. REv. 1, 11 (1967) [hereinafter cited as Brown].
5T See Brown, supra note 55, at 11-13 & authorities cited therein.
58 Ansell, Military Justice, 5 CoRNELL L.Q. 1, 14 (1919-20). ,
In the event there was any doubt as to who was right and who
was wrong in the Ansell-Crowder dispute, shortly after the
con-
clusion of World War I Ansell was "administratively" reduced
to
the grade of lieutenant colonel, and shortly thereafter, retired. 59
Major General F. J. Kernan, a line officer, was duly requested
to
convene a board of officers and make a "study" of wartime military
justice, and to submit recommendations for modifications if appro-
priate. 0° Not surprisingly, the Kernan Report was entirely pro-
military. The Report emphatically found that the system of justice
during the War was a good system: it maintained discipline for
a
successful, fighting Army. In Kernan's words:
This board believes that military punishments mainly exist as
aids to
the creation and maintenance of military discipline; that military
dis-
cipline is inherently a part of military command and inseparable
there-
from; that under our Constitution the command of our Army and
every
part thereof is vested in the President; that other military commanders
are his subordinates and assistants, and are so indicated in the
Consti-
tution, and as such share in lesser degrees the rights and duties
0
incident
to command. '
Despite the military's assertion in the report that all was right
with military justice, Ansell did not fold his tent and fade away.
His dispute with Crowder was thoroughly aired in Congress, with
Senator Chamberlain taking the lead to support Ansell and
the
forces of reform which he represented. The dispute was also aired
in the nation's press and legal journals.0 2 Professor Morgan
of
Harvard University, formerly a subordinate officer on Ansell's
war-
time staff, supported Ansell, while Professor Wigmore, also a former
wartime Judge Advocate officer, supported Crowder.03 Lesser
legal
authorities took sides; the American Bar Association's formal report
split three to two in favor of General Crowder,6 4 with the minority
submitting a stinging condemnation of military justice."'
59 Hearings on S. 64 at 160-64.
60 See WAR DEPT. BD. REPORT ON COURTS-MARTIAL AND
THEIR PROCEDURE (the
Kernan Board), July 17, 1919.
61 Id. at 13.
63 See Morgan, The Existing Court-Martial System and the
Ansell Army
Articles, 29 YALE L.J. 52 (1919). See also Address by Colonel
John H. Wigmore
to the Maryland Bar Association, June 28, 1919 in 24 MD. STATE BAR
Ass'N
TRANSACTIONS 183 (1919).
64 See Bruce, Double Jeopardy and the Power oj Review in
Court-Martial
Proceedings, 3 MINN. L. REV. 484 (1918-19) (supporting reform);Bogert, Courts-
Martial: Criticisms and Proposed Reforms, 5 CORNELL L.Q. 18 (1919-20)
the Army); Rigby, Military Penal Law: A Brief Survey of the (supporting
the Articles of War, 12 J. Calm. L. & CRIMINOLOGY 84 (1921) 1920 Revision of
(supporting the
Army); Bauer, The Court-Martial Controversy and the New
Articles of War,
6 MAss. L.Q. No. 3, 61 (1921) (supporting the Army).
See also
ON MILITARY LAW, REPORT OF MAJORITY, July, 1919 (supporting A.B.A. Comm.
65 The minority reported: "At this point we are met the Army).
with the suggestion,
F. The 1920 Articles of War

The end result of the Ansell-Crowder dispute was the submis-
sion of Ansell's proposed bill to overhaul the 1916 Articles of War,
a proposal that was sweeping and revolutionary, but unfortunately
at least thirty years ahead of its time. The bill was submitted by
Senator Chamberlain in the Senate and became known technically
as the Chamberlain Bill, or more simply as S. 64. The bill was intro-
duced in the House by Representative Johnson of North Dakota as
House Resolution 367. Professor Morgan, writing of the bill, stated:
[T]he basic principle of the bill is the very antithesis of that of the
existing court-martial system. The theory upon which this bill is framed
is that the tribunal erected by Congress for the determination of guilt
or innocence of a person subject to military law is a court, that its
proceedings from beginning to end are judicial, and that questions
properly submitted to it are to be judicially determined. As the civil
judiciary is free from the control of the executive, so the military
judiciary must be untrarmelled and uncontrolled in the exercise of its
functions by the power of military command. .... 66
Ansell's bill was detailed and complete. Basically Ansell's major

improvements (none of which were enacted) were: (1) That the
rules of evidence for courts-martial be as prescribed for use in the
Federal courts; 67 (2) that a civilian Court of Military Appeals be
6" (3)
created to serve as the court of last resort for the military;
that a qualified civilian lawyer be furnished each accused tried by
general court-martial;" (4) that maximum punishments be pre-
scribed by statute rather than left to the whim of the court-martial;
and (5) that a legally-trained military judge be made available for
70
every general court-martial.
After a prolonged hearing, Chamberlain's subcommittee failed
to report the bill,7 but did ultimately report a revision of the
that
which seems to have profoundly impressed some of my learned associates,
the administration of justice in the Army is a matter altogether of military dis-
cipline, and that wherever it is necessary, justice must be sacrificed to this end.
This means dearly that the question to be determined in a trial by court-martial
of a
is not guilt or innocence of the accused but rather whether the infliction
penalty upon him, guilty or innocent, will tend to promote Army discipline."
A.B.A. CoMMti. ON MILiTARY LAW, REPORT OF MiNORITY, July, 1919, at with 54.
66 Professor Morgan, who strongly supported Ansell in his struggle the
War Department in World War I, was Chairman of the Forrestal Committee that
drafted the Uniform Code of Military Justice after World War II. As Chairman
a
he personally inserted many of Ansell's proposals into the Uniform Code. For
comparison of Ansell's proposed bill and the Uniform Code of Military Justice,
Code
which was enacted in 1950, see Morgan, The Background oj the Uniform
of Military Justice, 6 VAD. L. REv. 169 (1953).
67 Brown, supra note 55, at 27.
68 Id. at 29-30.
69 Id. at 19-20.
70 Id. at 16.
71 Id. at 14.
Articles of War, changes that were drafted by the Judge Advocate

General's office and which were ultimately enacted, a rather sorry
ending to Ansell's effort. None of Ansell's "radical" changes were in-
corporated into the new Articles of War (the so-called Chamberlain
Articles), but the new Articles did make a concession to reform. 72
Primarily, the 1920 Articles of War retained the right of the Presi-
dent to prescribe the rules of evidence and procedure in court-
martial practice, and while they did not prescribe that a civilian
lawyer be furnished the accused, they did at least require that non-
lawyer military defense counsel be furnished. 73 While Ansell pro-
posed that each general court-martial include a military lawyer as
judge, the new articles prescribed that a military lawyer, if avail-
able, be appointed as "law member" of each general court-martial. 74
Ansell's recommendation for a civilian Court of Military Appeals
was flatly rejected, but his efforts during World War I to create a
legal review of court-martial convictions were partially rewarded.
The new articles, in place of review by a civilian court, provided
that boards of review, consisting of military lawyers in the office of
the Judge Advocate General of the Army, would have full power to
review court-martial convictions and sentences on questions of
law. 75 The decisions of the boards were final, provided they were
concurred in by the Judge Advocate General, and constituted the
final judgment in the case. If the Judge Advocate General did not
concur in the decision, the case was then to be referred to the Presi-
dent for final action. 7 Most significantly from the point of view of
reform, the 1920 Articles forever abolished the right of the military
commander to return an acquittal to a court-martial for reconsidera-
tion of the verdict, or to return a sentence to a court-martial for
"revision" upward.77
While the original Ansell proposals were badly mutilated, and
slight concession to reform was made by the military, substantive
command control of the judicial process was left firmly in the hands
of the military. The agency theory of military justice and the "sepa-
rate society" that spawned it were badly rocked, but weathered the
storm intact, at least for the time being. As early as 1922, General
Ansell was sage enough to note that the military was not administer-
ing the new code in the spirit of its limited reform. He wrote that
72 Id. at 14-15. See also Ansell, Some Reforms in Our System

of Military
Justice?, 32 YALE L.J. 146 (1923).
73 1920 Articles of War, art. 17.
74 Id. arts. 10, 31.
75 Id. art. 5032.
76 Id.
77 Id. art. 40.
"available facts" show that military lawyers were most often utilized
when available as prosecutors, while the law members were fur-
nished from non-legal branches of the Army, and had not "the
slightest" legal qualifications. The military usually saw fit to find a
8 Ansell closed
lawyer "available" as prosecutor but not as judge."
his great campaign with a word of warning for what he must have
recognized as a failing statute. He pleaded in his elegant style that
these "laches" in the statute's administration be corrected adminis-
tratively, rather than be made to await the "exigency that necessi-
tates legislative action."7 9 How well the military heeded Ansell's last
plea for a fair administration of military justice under the 1920
Articles of War is found in the administration of World War II
military justice, and the torpedo-like explosion of public indignation
that followed that War.
III. WORLD WAR II MILITARY JUSTICE
A. The Survival of the Agency Theory

At the outset of World War II military justice was couched in
traditional conservative garb: the agency theory of military law
was still very much alive, and was openly advocated by the Army.
The controlling law was essentially the 1920 Articles of War, which
had been redrafted in the 1928 Manual for Courts-Martial.' Bal-
2 were
anced against the minor reforms included in this legislation
the age old concepts that the court-martial was the agent of the
military commander for the enforcement of discipline within the
particular command. The military commander still selected the
court-martial members, controlled their promotion prospects, and
78 Ansell, Some Reforms in Our System of Military Justice?, 32 YALE L.J.

146, 155 (1922).
79 Id.
1 See Exec. Order No. 4773, November 29, 1927, reprinted in U.S. ARMY, MAN-
UAL FOR COITs-MARTIAL, 1928, at IX.
2 See text accompanying notes 66-67, Ch. II supra. See also Walker & Niebank,
The Court of Military Appeals-Its History, Organization and Operation, 6 VAND.
L. REv. 228, 230 (1953): "Unfortunately, the 1920 changes even with minor amend-
ments made between then and the inception of World War II, did not remove all,
or even most, of the system's deficiencies."
Keeffe, Uniform Military Training with or without Reform of Courts-Martial?,
33 CORNELL L.Q. 465, 467-68 (1948), states: "In 1920, after the first World War, the
Chamberlain Bill proposed real reforms in the Army court-martial system. It was
defeated over the bitter protest of such able lawyers as Edmund M. Morgan and
Samuel T. Ansell. Some slight changes were made in the Army system, but none at
all were made in the Navy court-martial system, which has remained substantially
without change since its creation." (Footnotes omitted.)
advised them if he were displeased with their verdicts or sentences.

If for any reason clemency was to be rendered to an accused, the
commander usually let it be known that he was the one to render
it. Arthur John Keeffe, chairman of a World War II investigating
committee of naval court-martial practices, gives a graphic descrip-
tion of this particular aspect of the agency concept in action:
[I]n a series of thirty-seven courts martial trying desertion cases
at Norfolk, the general court imposed a sentence of fifteen years in
each. Then the Admiral at Norfolk who acted as the Convening Au-
thority reduced each of the thirty-seven cases mentioned from fifteen
to three years.3
Under this system of justice, the accused is not sentenced by the
court that tried him, but is sentenced by the Convening Authority
"who not only does not hear the evidence but does not even read
the record." Under this system a court is "encouraged to give every
man who comes before it a long sentence . . and let the 'old man'
reduce it to what he wants." 4 As Keeffe points out, this system is in
line with the agency concept. It is not a system that is fundamen-
tally fair to an accused, nor, of course, is it a system that affords
an accused the right to trial before an "impartial jury."
B. A Half Step Forward-The World War 1I Board of Review

At the outbreak of World War II the Judge Advocate General's
Department of the United States Army was thinly manned, but
its strength rose in much the same proportion as that of the mili-
tary services generally. Large scale induction and direct commis-
sioning of civilian lawyers soon took care of the understrength.
Branch offices of the Judge Advocate General's office, including
boards of review,5 were established in England on May 22, 1942,
and in the Southwest Pacific Theater on July 11, 1942. Concur-
rently with the establishment of these offices, the Secretary of War,
by direction of the President, vested in the commanders of these
Theaters final confirming authority under Articles of War 48, 49
and 50.1 Similar branch offices and boards of review were estab-
lished in the Mediterranean Theater of Operations and in the India-
Burma Theater, and existing boards of review in Washington, D.C.,
serving the continental United States, were greatly expanded. The
8 Keeffe, Uniform Military Training With or Without Reform of Courts-Mar-

tial, 33 CORNELL L.Q. 465, 471-72 (1948).
4 Id. at 472.
5 See text accompanying note 75, Ch. II supra.
6 See the respective forewards to volume 1 of the Board of Review Reports for
the Southwest Pacific Theater of Operations, and for the European Theater of
Operations (1942-43).
boards of review established in the branch offices were patterned

after the Washington boards; that is, they were composed of three
officers, usually a lieutenant colonel and two full colonels, or pos-
sibly a brigadier general, all of whom were lawyers and all of
whom were assigned to the Judge Advocate General's Department.
There was a mixture of reserve officers and regular officers serving
on these boards, and their jurisdiction covered all general court-
martial sentences extending to punitive discharge or to over a year
in prison. In these cases, once the recommendation of the board
was approved by the Judge Advocate General or his assistant in
overseas theaters final appellate action was completed, and com-
manders of designated commands were authorized to execute the
7
sentences immediately, including the sentence of death.
Under the foregoing system, the dispute between General Ansell
and General Crowder concerning the execution of the four soldiers
involved in the famous French death cases of World War I, where
General Pershing was thwarted in his efforts to execute the soldiers
by the intercession of Ansell,8 could not recur in World War II.
But while the Army, in apparent reform guise, had bowed to the
principle of legal review of court-martial convictions, it had done
so with tongue in cheek. The 1920 Articles carefully gave the over-
seas military commander more authority than he had in World War
I to order the execution of death sentences without undergoing the
time-consuming and politically dangerous prerequisite of securing
Presidential approval in each case.9
The 1920 statute also provided that in the event there was a
disagreement between the board of review and the supervising
Judge Advocate General in any particular case, the decision was
then deferred to a designated military commander, who would de-
1
cide the outcome of the case on any premise that he saw fit. Any
7 An interesting discussion of the effect of military appellate action under Article

of War 5'02 is found in Colonel Connor's 1945 article in the Virginia Law Review,
which pointed out that such decisions were binding only in the specific case involved
and had no effect whatsoever upon future cases, either at the trial level or at the
board of review level. The viewpoint is interesting only in that it is an example of
the military intent to forever downgrade appellate control over the military judicial
system. Had Colonel Connor read World War II board of review decisions more
closely, he would have found that his rule was marked primarily in its breach by
boards of review, who were quite mindful of past board of review precedent. For
the military viewpoint on the matter, however, see Connor, The Judgmental Review
in General Court-Martial Proceedings, 32 VA. L. REv. 39, 79 (1945).
8 See generally Ch. II supra.
0 1920 Articles of War, arts. 48, 49, 50, and 50/Y.
10 Under Article of War 902, in time of peace such nonconcurring decisions
would be submitted to the Secretary of War, who in turn would submit them to the
President for final resolution, with an added provision that the Presidential functions
system of legal review that thus depended upon the good faith
concurrence of a military-minded Judge Advocate General or his
overseas designee, and upon the final determination of a Theater
Commander, was indeed a system that would permit the "goats to
guard the cheese." The only real concession made to reform was
in the situation where the boards of review and their supervising
Judge Advocate agreed to reverse a conviction. In this event, even
if the decision was unsatisfactory to the commanding general (an
unlikely possibility), the reversal was legally binding, and the only
alternative the commander had in such cases was to replace the
board of review, his Judge Advocate, or both, or to let his disagree-
ment in the case be known to the officials concerned in the expecta-
tion that their decisions in future cases would be more in line with
his thinking on the subject. In any event, the mere existence of such
a statute, which permitted legal officers of the Army to overrule a
military commander on a matter of military justice, was at least
a half-step forward. It was, moreover, a moral victory for the phi-
losophy of reform, a penetration of a theretofore impregnable for-
tress of military command that could serve as a precedent for
further, more meaningful legislative inroads into the system.
C. The Art of Sentence Fixing-A Commander's Prerogative

The expected explosion of wartime cases was not long in com-
ing following the outbreak of World War II.11 While there is little
evidence of outright rigging of convictions in World War II courts-
martial, and a reading of cases convinces the reader that only the
guilty were convicted, the very harshness of the sentences imposed
leaves the entire system subject to great doubt. The true depth of
command influence in regard to sentence fixing will never be known,
"may be performed by the Secretary of War." The Article further provided that in
the event a branch office of the office of the Judge Advocate General were estab-
lished in a distant command, the Presidential functions could be "performed by
the commanding general of such distant command." As seen previously, branch offices
of the Judge Advocate General's office were established in the European and Pacific
Theaters as well as in the Mediterranean and India-Burma Theaters almost imme-
diately following the American entry into World War II. Accordingly, the various
military boards of review, theater judge advocates and theater commanders in these
theaters exercised life and death judicial control over military personnel in World
War II.
11 The Washington, D.C., boards of review were to grind out some fifty volumes
of wartime opinions, each approximately four hundred pages in length and containing
between fifty and seventy separate decisions. The European Theater of Operations
produced some thirty-four volumes of approximately the same size. The Mediter-
ranean Theater of Operations was to produce seven volumes and the Asiatic-Pacific
Theater the surprisingly low number of only four volumes. Only the United States
cases were indexed, leaving the decisions from the various overseas commands most
difficult to study.
simply because the issue was not raised in every case where it
should have been raised, or proven in every case where it was
raised because of the difficult nature of proof required. But the
sentences themselves are a matter of record, and as such are damn-
ing per se, particularly in overseas commands where the sentences
were outrageously severe. For example in a random volume of opin-
ions, 1 2 out of a total of forty-one cases, eighteen of the adjudged
sentences were for life imprisonment and two were for death."
In addition to the conclusions to be drawn from the number
of extreme sentences that were imposed during World War II, com-
mand control of the court-martial sentencing process was raised
and proved in a sufficient number of cases to indicate a serious and
widespread acceptance of this principle by military commanders.
In the 1941 Hester case, direct command manipulation was proved.
4
The convening authority in this case had written a letter to every

member of his general court-martial, which read in part as follows:
Therefore, when a case is referred to a general court, it may be con-
the
sidered as a fixed policy that should the accused be found guilty
court will, in the absence of unusual circumstances, sentence the ac-
cused to be dishonorably discharged from the service, to forfeit all pay
and allowances due or to become due, and to 15 be confined at hard labor
... for a fixed period in excess of six months.
The same letter cautioned the court members against the applica-
tion of undue leniency in favor of military defendants in the fol-
lowing language:
the
Attention is invited to the fact that the division commander as
reviewing authority can reduce, remit or suspend all or any part of
a sentence but cannot in any instance increase a sentence. Thus, where
a sentence is excessive or the accused is entitled to special consideration
because of mitigating circumstances, the reviewing authority may take
appropriate action; but where an inadequate or inappropriate sentence
is adjudged, no remedial action can be taken and the end sought to be 5
obtained in the administration of military justice has been thwarted.'
12 European Theater of Operations Bd. of Review Vol. No. 13, 1944-45.

18 In regard to the execution of death sentences during World War
II, Keeffe
II, and
and Moskin report that the Army executed over 100 men in World War Codified
that the Navy had not executed a man since 1842. See Keeffe & Moskin,
Military Injustice, 35 CORNELL L.Q. 151, 152 n.6 (1949). Only one soldier during
World War II was executed for committing a military offense (and none in World D.
War I). The World War II offender executed for desertion was Private Eddie
by
Slovik, of the 109th Infantry, 28th Infantry Division, who was ordered executed1945.
the Commanding General, European Theater of Operations, on January 23,
See Slovik, 15 B.R. (Army) 151 (1944-45) (C.M. ETO 5555).
14 9 B.R. (Army) 145 (1941) (C.M. 216,707).
15 Id. at 158.
16 Id.
Here was an excellent example of bad faith compliance with

the 1920 revision of the Articles of War, wherein a commander's
right to return a case involving an inadequate sentence to a court-
martial for increase in severity was outlawed. Military command-
ers neatly circumvented the prohibition simply by announcing a
policy of minimum acceptable sentences in advance of trial, plus
a strong admonition to all court members to adjudge harsh sen-
tences in order to permit the convening authority to cut them to
whatever size he felt necessary to maintain discipline within his
command. The agency theory of military law thus survived the
intended "reforms" of 1920 with hardly a ripple of protest. The
Board of Review reversed the Hester case because of the mandatory
nature of the directive to the court members, but it did not condemn
the widespread practice of sentence fixing which the letter obviously
represented, nor did its decision in Hester deter other commanders
from utilizing similar letters, nor did it even cause subsequent
boards of review to issue like decisions in identical fact situations.
Hester's only real message to commanders was "don't put your
directives in such plain language, but use your intelligence and
experience to accomplish the same result by more subtle means."
That Hester, at least in practical meaning, resulted in such a
message is beyond dispute. Not only did the outlawed practice in
Hester continue, it was officially blessed by subsequent boards of
review and the Judge Advocate General of the Army. In Hoffman,17
a 1944 case, an accused Army pilot was found guilty of an inten-
tional flight violation (buzzing Long Island, New York, at an al-
titude of less than 1000 feet) and sentenced to dismissal from the
service. Upon review of the conviction, the accused objected to a
letter of the convening authority which was read to the court mem-
bers immediately prior to the court retiring to vote on its findings
and sentence. The letter in question stated that there was a vast
amount of intentional, hazardous flying in the Army Air Corps
which appeared to be on the increase, and that such flying caused
accidents, loss of life and property damage, and resentment against
the Air Corps. The letter continued that this practice "must be
stopped and stopped now." The letter further stated that dismissal
from the service was considered an appropriate punishment for in-
tentional flight violations. In affirming the conviction and sentence
to dismissal the Board of Review stated the following rule of law:
It is fundamental that courts-martial have the right and duty to take
into consideration, in arriving at proper sentences, general policies
announced by the War Department and commanding officers relative to
17 32 B.R. (Army) 381 (1944) (C.M. 250,472).

enforcement of discipline and uniform sentences. An important con-

sideration in determining the punishment to be imposed in a given
case is "its effect upon military discipline" (Winthrop's Military Law
and Precedents (Reprint), p. 397). Indeed it is fundamental that
courts-martial are "instrumentalities of the executive power to aid
him in properly commanding the Army and enforcing discipline therein"
(Winthrop's Military Law and Precedents (Reprint), p. 49). While the
functions of a court-martial and the reviewing authority should remain
separate and distinct, it is equally essential to the enforcement of mili-
tary discipline that members of courts-martial be made aware of the
gravity of certain offenses and the need of drastic punishment to deter
commission thereof. For a commanding officer to inform his court-
martial of offenses that are impairing the efficiency and discipline of
his command and to suggest to them his opinion of appropriate sen-
tences, the ultimate decision in each specific case being left, of course,
to the wisdom and judgment of the court is consistent with all our
principles of military justice. This letter (which was read to the court-
martial) indicated to the court the commanding general's opinion of
the gravity of the offense as it related to the maintenance of the effi-
ciency and discipline of the organization, and, accordingly, it was proper
for the court to have knowledge of it to determine the type and extent
of punishment warranted by the offense. In the enforcement of mili-
tary discipline, the imposition of insufficient punishment for serious
military offenses is as8 great an evil as the imposition of excessive and
extreme punishment.'
In view of the foregoing apologia, the Board of Review felt
called upon to distinguish the instant case from Hester. In Hester,
the Board noted, the offending letter called for "mandatory" mini-
mum punishments, whereas in the instant case, the offending letter
only gave the commander's opinion of what was an appropriate
sentence for an intentional flight violation. The hypocrisy of the
"distinction" lies in the fact that the Board of Review would con-
tend that a military commander's doleful complaint against the
recurrence of certain types of offenses, and his blunt directive to
an assembled court-martial that the recurrence of such offenses
was to be "stopped and stopped now," plus his opinion of an ap-
propriate punishment in such cases could be anything less than a
direct order to the court-martial that the defendant was to be con-
victed as charged, and subjected to the imposition of the recom-
mended sentence upon conviction. It must be borne in mind that
the philosophy of the Hoffman case permeated the entire operation
of military justice during World War II. It was a system that
openly permitted a commanding officer to inform a court-martial,
appointed by himself and subject to his command, immediately
prior to its closing to deliberate upon the guilt or innocence of an
accused, of (1) the fact that the offense charged against the ac-
Is Id. at 388-89.
cused was considered highly detrimental to the discipline of his

command, (2) that the commander expected the court-martial to
stop the recurrence of this type of offense, and to "stop it now,"
and (3) the minimum sentence considered by the commander to
be "appropriate" in this type of case.
The hypocrisy of the Hoffman distinction is further demon-
strated in that eight of the ten members of the court-martial that
sentenced the accused in Hoffman subsequently addressed a letter
of clemency to the convening authority, citing the excellent record
of the accused and requesting that his sentence to dismissal be com-
muted to a forfeiture of $50.00 per month for four months. Yet
the Board of Review recommended that the sentence to dismissal
be executed on the basis that the court-martial's sentencing dis-
cretion had in no way been infringed by the convening authority.
The Judge Advocate General of the Army recommended that the
sentence be executed, and backed up his recommendation with a
similar recommendation from General H. H. Arnold, Commanding
General of the Army Air Force. With this array of military com-
mand lined up solidly against him, Lieutenant Hoffman's cause
was doomed to failure, despite the best efforts of eight of the ten
members of his court-martial. His sentence to dismissal was accord-
ingly executed on May 30, 1944." °
In Davis,"° a 1944 Board of Review decision, Lieutenant Davis
was convicted of an intentional flight violation (buzzing Clearwater
Beach, Florida) and sentenced to be dismissed from the service.
Upon completion of the sentence phase of the case, each member
of the court-martial signed a recommendation for clemency, which
stated in part:
The court in accordance and pursuant to the policy set forth by the
Commanding General, Army Air Forces, and the Commanding General,
Third Air Force, that dismissal is the appropriate sentence for an
intentional violation of flying regulations, today sentenced the accused
to be dismissed from the service. It is felt that this is a case which
justifies a recommendation from the court that the sentence be com-
muted to forfeiture of pay and restriction at whatever base the officer
21
may be serving.
The Board of Review held that the unanimous recommendation
for clemency led to the "inescapable conclusion" that the entire
court was of the opinion that restriction and forfeiture was an ap-
propriate sentence, and that it abdicated its responsibility in this
19 See War Dept., General Court-Martial Order No. 246, May 30, 1944.
20 34 B.R. (Army) 297 (1944) (C.M. 253,209).
21 Id. at 301.
regard when it adhered to the policy of the commanding generals

involved and adjudged dismissal.
The Board of Review further opined that it was clearly con-
templated that courts-martial "exercise distinctively judicial func-
tions in a manner which will guarantee independence of judgment"
in both the findings and sentence phases of the case. The Board
accordingly recommended that the record of trial be held legally
insufficient to support either the findings or the sentence. By first
indorsement to the Board's decision, the Judge Advocate General
of the Army addressed himself to the Secretary of War, as follows:
I do not agree with the conclusion of the Board of Review that by
reason of fundamental unfairness of his trial the accused has been
deprived of his constitutional right to due process of law. The court
was legally constituted and had jurisdiction of the offense and of the
person of the accused, the findings of guilty are supported by the evi-
dence and the sentence is within the power of the court to impose for
the offense involved. I cannot subscribe to the doctrine that under
such circumstances the sentence becomes a nullity merely because it
appears that the court in fixing the punishment took into consideration
and voluntarily deferred to a general declaration of policy of a military
commander as to what he considered an "appropriate" sentence upon
conviction of an offense the prevalence of which 22
he regarded as a
serious threat to the discipline of his command.
In accordance with acceptable Army practice, the Judge Advocate
General had requested the views of the Deputy Commander, Army
Air Forces, as to the appropriateness of the sentence and attached
the latter's views to his own opinion. The Deputy Commander,
Army Air Forces, recommended that the conviction be approved,
but that the sentence be commuted to a forfeiture of $75.00 per
month for six months. The Judge Advocate General concurred in
this recommendation, and the Secretary of War accepted the rec-
ommendation, approved the conviction and commuted the sentence
accordingly. The settlement of this affront to justice was thus ef-
fected through the doctrine of command recommendation, and not
through the operation of the rule of law. The opinion of the Board
of Review that the command control over the court-martial in-
volved was illegal was not only rejected, but was contradicted by
the Judge Advocate General of the Army, whose decision, reflect-
ing the dictates of discipline, was to become the "law" of the case.
Any improvement in this system of justice over that which pre-
vailed during World War I was an improvement in name only.
In Johnson,28 another 1944 decision of the Board of Review,
22 Id. at 310.
28 3S B.R. (Army) 1S5 (1944) (CM. 254,026).
the practice of command control of the court-martial sentence was

even more clearly defined. In Johnson, an accused Lieutenant was
convicted of drunk and disorderly conduct in a hotel room in the
presence of enlisted men and civilians. Lieutenant Johnson shared
a hotel room with three other male occupants, each of whom had a
cot. At about 2:00 a.m. the other occupants awoke to find Johnson
in bed with a young lady, both of whom were nude. Johnson was
reported to the military police for this breach of decorum, and was
subsequently taken into custody, along with the young lady in ques-
tion, much to his protest. He purportedly used foul language to the
arresting military policemen as well as to the officials of the hotel
who had called the police. Upon his conviction of the offense of
drunk and disorderly conduct, he was sentenced to be dismissed
from military service. Subsequent to the findings of guilt, but
prior to the sentence, the court requested counsel for the prosecu-
tion and the defense to furnish it with a copy of a "confidential"
War Department letter, dated March 5, 1943, subject: "Unifor-
mity of Sentences Adjudged by General Courts-Martial." The letter
was furnished to the court and remained with it until the court
sentenced the defendant to be dismissed from the service. The
letter was not attached to the record, nor was it further described
by the Board of Review. The Board held:
The action of the court in examining the letter of 5 March 1943 on the
subject of uniformity of sentences did not injuriously affect the sub-
stantial rights of the accused. . . The publication of this letter is
therefore not to be construed as a directive but merely as a guide [as
to what] ... the War Department considers adequate and appropriate
sentences. Courts-martial have the right and duty to take into con-
sideration, in arriving at proper sentences, general policies announced
by the War Department relative to the enforcement of discipline and
uniform sentences .... 24
With open admissions of this nature by military boards of review,
freely admitting that court-martial sentences were subject to con-
trol by the Army, and properly so, little else need be said, nor for
that matter can be said, for the impartial administration of military
justice by the War Department during World War II.
D. Boards of Review and Constitutional Due Process

While the official policy of the War Department was that
court-martial sentencing was properly subject to War Department
control, not all boards of review were rubber stamps for the mili-
24 Id. at 157.
tary. In Woods,2 5 a 1945 case on the application of constitutional

due process to military trials, the Board of Review for the Euro-
pean Theater of Operations recommended that an accused's con-
viction be reversed because his defense counsel had been given in-
sufficient time to prepare for trial. The facts of the case, in brief,
show that within a three hour period on the morning of October
17, 1944, the Division staff judge advocate recommended that the
accused be tried by general court-martial for the capital offense
of shamefully abandoning his unit under fire, that the case was
referred to trial, defense counsel was appointed, the charges were
served on the accused, he was brought to trial, convicted and re-
ceived a ten year sentence.
When the case was reviewed by the European Theater's Board
of Review, the Board cited three lower federal court decisions to 26
the effect that constitutional due process applied to military trials
without discussing or referring to the more than 150 years of con-
trary precedent. The Board thus found that a reasonable "oppor-
tunity to prepare for trial is a fundamental right secured to accused
by the guarantee of the Fifth Amendment to the Federal Constitu-
tion." The Board thereupon held "that the opportunity for prepara-
tion contemplated by the Articles of War and the Manual for
Courts-Martial and guaranteed by the due process clause of the
Fifth Amendment to the Federal Constitution was denied this
accused. 27
25 Woods, 13 B.R. (Army) 37 (1945) (C.M. ETO 4564).

26 United States ex rel. Innes v. Hiatt, 141 F.2d 664 (3d Cir. 1944); Schita v.
(5th Cir.
King, 133 F.2d 283 (8th Cir. 1943); Sanford v. Robbins, 115 F.2d 435
1940).
.27 13 B.R. (Army) 37, 51 (1945) (C.M. ETO 4564). The European Theater
Judge Advocate concurred in the opinion, and the findings of guilty in the case were
of Operations,
vacated. See General Court-Martial Order No. 114, European Theater
April 12, 1945.
the Board
As an interesting sidelight to the reversal of the conviction in Woods,
board decisions wherein the boards held that an accused
of Review cited previous
waived his rights
had, by express waiver stated in open court or by failing to object,
question of waiver,
to longer periods of pre-trial preparation. In regard to the general
among other cases Johnson v. Zerbst, 304 U.S. 458 (1938), as au-
the Board cited
appellate courts "indulge every reasonable presumption
thority for the principle that
today's major issue
against waiver of fundamental constitutional rights. . . ." While
a trial court's initial
in military law is whether the Johnson v. Zerbst holding that
for purposes of collateral attack evaporate due to due process
"jurisdiction" may
to military convic-
failure in the constitutional sense at the trial level is applicable
of review, in a non-
tions, it is most interesting to note that a World War II board
due process
indexed and largely uncited opinion, after finding that constitutional
constitutional
applied across the board in military trials, applied Zerbst for a related
v. Zerbst in
principle as early as 1945. For a more complete discussion of Johnson
this regard, see text accompanying note 1, Ch. IV infra.
As noted in Woods, earlier board of review decisions by boards
sitting in Washington, D.C., had twice ruled that denying
an ac-
cused sufficient time to consult with counsel was unconstitutional
and in violation of the sixth amendment. The Judge
Advocate
General of the Army, in both of the cases concerned, concurred
in the board's recommendations, and the findings of guilty
and
sentences involved in both cases were disapproved.2"
There were other instances in which the boards recognized
constitutional principles both before and after the War,
but un-
fortunately, despite these rather infrequent decisions that
would
appear to give a constitutional ring to military law, the
practice was far removed from constitutional concepts. The actual
prin-
ciple of command control-the agency theory-marched
parallel
with any constitutional theory that was advanced, and
as such
grounded any real advantage that the latter line of cases
had to
offer.
The isolated military case that appeared to temper the more
outrageous practices of World War II has meaning today
only in
the historic sense. The various wartime holdings of the boards
review and the Judge Advocate General of the Army to the of
effect
that constitutional due process applied to military law were
pletely overwhelmed and crushed by contrary practice at com-
the work-
ing level.29 It was this practice that the public fastened
upon
following the War, and that the Congress set about to correct.
IV. THE FEDERAL COURTS: MILITARY JUSTICE

DURING AND AFTER WORLD WAR II
A. The Johnson v. Zerbst Doctrine of CollateralReview

Federal court collateral review of military cases during
and
after World War II could have found considerable thrust
in the
28 See Schuman, 29 B.R. (Army) 225 (1944)
(C.M. 245,664); Lockwood, 18
B.R. (Army) 139 (1943) (C.M. 231,119).
29 Unfortunately, the great issue of the applicability
of constitutional due pro-
cess to military law that was to be fought out in federal
and military courts follow-
ing World War II, did not concern itself or even refer
to the many cases wherein
both the boards of review and the Judge Advocate
General of the Army during
World War II accepted the principle that constitutional
due process applied to mili-
tary law. Rather, the post-war history of the constitutional
issue reflects simply an
acceptance on the part of bench and bar that constitutional
due process did not
apply to military law during World War II.
1938 Supreme Court decision of Johnson v. Zerbst,l wherein the

Court was faced with the scope of collateral review of federal crim-
Zerbst
inal convictions arising in United States district courts. The
decision, however, was not to be a general jail delivery of military
and
defendants, though it was a ray of liberalism, faintly visible
indicative of better things to come.
dis-
In Zerbst the defendant was convicted in a United States
counterfeit
trict court of the offense of possessing and uttering
money. The trial court sentenced the accused and a co-defendant
tried and
to four and one-half years in jail. Both defendants were
without assistance of counsel, but neither
convicted and sentenced
to the absence of counsel at their trials.
had specifically objected
was denied because it was filed
The defendant's regular appeal
thereafter brought habeas
several days too late, and the defendant
legal concep-
corpus in a United States district court. True to
writ, observing that the peti-
tualism, the district court denied the
may well have been dis-
tioner's constitutional right to counsel
error that could only be
regarded at trial, but that this was an which
collateral attack,
corrected on "appeal" and not through
dealt only with questions of jurisdiction.
The Supreme Court reversed and remanded the decision. The
with a
Court held that the sixth amendment entitles one charged
and that compliance with this
crime to the assistance of counsel,
to a federal court's
requirement was a jurisdictional prerequisite
court's
authority to proceed further in the trial of the case. The trial
thus be lost in the
jurisdiction at the beginning of a trial could
the sixth amendment's
proceedings due to a failure to comply with
"jurisdic-
requirement to provide counsel and, such error being
corpus collateral
tional," could be properly raised in a habeas
to perfect his
attack on the verdict, despite the defendant's failure
added to col-
rights via timely appeal. A new dimension was thus
Court ad-
lateral review of federal criminal cases. The Supreme
to questions
hered to traditional concepts limiting collateral review
the dictates
of "jurisdiction," but created a fiction to accommodate
exist-
of justice in the individual case-namely, that "jurisdiction"
the trial
ing at the beginning of a trial could well evaporate during
Johnson v.
of the case itself due to a due process failure. In short,
errors
Zerbst opened the door for collateral review of due process
corpus proceeding
1 304 U.S. 458, rev'g, 92 F.2d 748 (5th Cir. 1937). The habeas for
was originally brought by the co-defendants in the United States District Court
the writ. Bridwell v. Ader-
the Northern District of Georgia. The district court denied
hold, 13 F. Supp. 253, 256 (N.D. Ga. 1935).
occurring during the trial of civilian federal criminal cases, a scope
of review which had in times past been routinely denied in both
military and civilian cases. The vital question for military law, of
course, was the effect of Johnson v. Zerbst on federal court review
of military cases through habeas corpus. If the rule were in fact
to be applied to military cases, constitutional due process could
be enforced in military trials, a striking proposition when contrasted
with the agency theory of court-martial practice so long sanctioned
by the Supreme Court. Consequently, with the advent of World
War II, it would not have been unreasonable to expect a Supreme
Court decision on the application of Johnson v. Zerbst in military
court-martial practice. This pronouncement, however, has proved
long in coming.
B. The Speedy Trial of Lieutenant Shapiro

Had federal courts followed the Johnson v. Zerbst doctrine of
diminishing jurisdiction in the collateral review of military cases,
the entire post-World War II development of military law would
have been significantly different. What could have been military
law is found in the Court of Claims' review of the wartime court-
martial conviction of Lieutenant Shapiro. In Shapiro,2 a 1943 Army
Board of Review decision, the facts reveal that Second Lieutenant
Shapiro, a lawyer in uniform, was assigned to defend in a trial by
general court-martial a Mexican-American accused of sexually as-
saulting a young lady. The major issue involved in the trial was the
question of identification of the accused as her assailant. Shapiro
met this challenge by substituting another Mexican-American at
the defense table throughout the entire presentation of the prosecu-
tion's case. The victim of the assault readily identified the imposter
as her assailant. Other prosecution witnesses followed suit and iden-
tified the imposter, while still others failed to identify him. In
presenting the defense case, Lieutenant Shapiro for the first time
made known his trial tactic, and stated that his motive was to
prove that the victim and her witnesses would identify any person
of Mexican extraction as the assailant. Following this announce-
ment, the court-martial was immediately adjourned and sometime
thereafter the real accused was brought to trial, convicted and given
five years imprisonment, at much "confusion and embarrassment
to the Court."
Shapiro himself was subsequently tried for this deception,
and was convicted and sentenced to dismissal from the service.
2 26 B.R. (Army) 107 (1943) (C1M1. 240, 753).

The Board of Review held his actions were dishonest and intended
to mislead the court and designed to bring the entire system of
a "pro-
justice into disrepute. The Board of Review glossed over
cedural" defect that took place during the trial of the case, with
the following comment:
At the beginning of the trial the defense made a motion for a continu-
ance for at least seven days in order to prepare for trial. The motion
was denied. Although it appeared that the charge sheet was served on
accused only a short time before the trial, it also appeared that
accused had, for several days, known the general nature of the charge
on which he would be tried. There was no substantial confict as to the
facts, and accused was the only witness for the defense. Under these
circumstances, the Board of Review is of the opinion that the action of
the court in denying8 the request for a continuance was within the dis-
cretion of the court.
The Board of Review therefore affirmed the sentence, the Judge
Advocate General of the Army concurred, and the sentence was
executed pursuant to the direction of the President on January 6,
1944.
Two years after the War was over Shapiro brought suit in
the Court of Claims. He alleged that the court-martial that tried
4
him was without jurisdiction, and therefore its verdict of dismissal

was illegal. He sued for his salary as a lieutenant from the date of
his dismissal as an officer to the date of his subsequent discharge
from the Army, less the amount received by him as a private
during the period in question. The facts supporting his allegation
of no jurisdiction were as follows: Some several days following the
conviction of his Mexican-American client, Shapiro was himself
later, at
arrested. He was served with charges one or two days
12:40 p.m. on the 3rd day of September, and was notified at that
court-martial that same
time that he was to be tried by general
to forty miles away. He
afternoon at 2:00 p.m., some thirty-five
location of the court-
was told to obtain counsel and journey to the
martial, all within one hour and twenty minutes. The first counsel
to serve
selected by Shapiro was denied on the basis that he was
as the prosecutor. Shapiro thereafter selected two non-lawyers,
and he and his counsel then drove to the scene of the court-martial.
At his trial, his counsel promptly moved for a seven day continuance,
was
and this was denied. Shapiro thus stood trial at 2:00 p.m.; it
completed by 5:30 p.m. on the same day. He was convicted.
In its classic opinion of this case, the Court of Claims held:
3 Id.at 112.
4 Shapiro v. United States, 69 F. Supp. 205 (Ct. Cl. 1947).
A more flagrant case of military despotism would be hard to imagine.
It was the verdict of a supposedly impartial judicial tribunal; but it
was evidently rendered in spite against a junior officer who had dared
to demonstrate the fallibility of the judgment of his superior officers on
the court-who had, indeed, made them look ridiculous. It was a case
of almost complete denial of plaintiff's constitutional rights. It brings
great discredit upon the administration of military justice. 5
The Court of Claims made short shrift of the ancient legal argu-
ment that civil courts had no jurisdiction to review court-martial
convictions upon collateral attack, or that constitutional due pro-
cess did not apply to military law. On the question of constitu-
tional rights the Court stated that it goes "without saying that
these Amendments apply.., to military tribunals.... Why they
should not, we cannot conceive." As to the right of the Court of
Claims to entertain a "collateral attack" upon a court-martial con-
viction, a question which the Supreme Court of the United States
had long held sacrosanct, the Court stated:
The court-martial, of course, had jurisdiction of the case and, ordinar-
ily, it would follow that any judgment rendered by it, however erro-
neous, would not be void; but the Supreme Court in Johnson v. Zerbst,
304 U.S. 458 . . . held that while jurisdiction of the court may be
complete in the beginning, it "may be lost 'in the course of the pro-
ceedings' due to failure to complete the court-as the Sixth Amendment
requires-by providing counsel for an accused who is unable to obtain
counsel, who has not intelligently waived this constitutional guaranty,
and whose life or liberty is at stake. If this requirement of the Sixth
Amendment is not complied with, the court no longer has jurisdiction
to proceed. The judgment of conviction pronounced by a court with-
out jurisdiction is void. .... ,,7
The Court of Claims thereupon held that the court-martial con-
viction was void and that the dismissal based upon it was illegal.
The Government, in an abundance of caution no doubt, did not
appeal the decision, and the decision of the Court of Claims be-
came final. The question of the application of constitutional due
process to military trials, and specifically the application of John-
son v. Zerbst and its famous doctrine of diminishing jurisdiction
to military law, however, was not so easily resolved. While the
Government retired from the field in Shapiro, the issue was far from
dead.
C. The Reaction of the Lower Courts

Lower federal courts reacted in a variety of ways to the legal
practices of military courts during World War II. The primary
5 Id. at 207.
o Id.
7 Id. at 207-08.
issue was whether the failure of military courts to render constitu-

tional due process to servicemen rendered their verdicts void. The
federal courts' decisions were not always consistent and, unfor-
tunately, not very helpful to the wartime military defendant. How-
ever, the cases are noteworthy because of their descriptions of
World War II court-martial practice.
United States ex rel. Innes v. Hiatt," a 1944 case, is one of
the first federal court decisions opining that court-martial convic-
tions were fully reviewable by federal courts via application for
habeas corpus. The court specifically noted on this point:
We conclude that it is open for a civil court in a habeas corpus pro-
ceeding to consider whether the circumstances of a court-martial
proceeding and the manner in which it was conducted ran afoul of
the basic standard of fairness which is involved in the constitutional
concept of due process of law, and, if it so finds, to declare that the
relator has been deprived of his liberty in 9violation of the fifth amend-
ment and to discharge him from custody.
The holding of the court in the specific case, however, was against
the defendant, who had alleged, basically, that after his court-mar-
tial officially closed to vote on the findings of guilt or innocence,
it conferred with the prosecutor and asked him to produce more
evidence of guilt; that failing in the production of such evidence,
it recessed for eight days, and upon reconvening convicted the ac-
cused. The court of appeals stated that these were mere procedural
irregularities that did not seriously affect the fundamental fairness
of the trial "as to deprive the court under the fifth amendment of
its jurisdiction."'
In Hicks v. Hiatt,1 a 1946 case, the district court ruled that
the "totality of errors" that occurred during the court-martial and
the pre-trial investigation were so "numerous and of such effect as
12
to deprive Hicks of the substance of a fair trial.1 The court fur-
ther noted that the procedures of military law were not applied
to Hicks in a fundamentally fair way. The petitioner was ordered
discharged from custody, one of the very few military prisoners to
win his freedom via habeas corpus proceedings or by order of a
federal court in the history of this country. The "totality of error"
complained of revealed that the accused, who was suspected and
subsequently convicted of rape, was not warned of his right not
to make a pre-trial statement, and was in fact induced to make a
8 141 F.2d 664 (3d Cir. 1944).

9 Id. at 666.
10 Id. at 667.
11 64 F. Supp. 238 (M.D. Pa. 1946).
12 Id. at 250.
statement on the promise that what he said would not be used

against him. Hicks was also denied the opportunity to cross-ex-
amine certain witnesses at the pre-trial investigation. Although
there was evidence uncovered during the investigation to the effect
that the complaining witness was of unchaste character, this fact
was not commented upon by the investigator in his report. During
the trial of the case, the defendant's pre-trial statement was used
as evidence against him, and a prosecution witness was permitted
to testify that Hicks "was evasive and reluctant" as a witness at
the pre-trial investigation. No evidence was introduced as to the un-
chaste character of the complaining witness, although the evidence
was in possession of the prosecutor, and a prosecution witness was
permitted, upon mere supposition, to state that in his opinion the
walls separating his apartment from the victim's were of a certain
thickness, thus accounting for his failure to hear screams. Addi-
tionally, some six days following the conviction of Hicks, the
president of the court-martial that convicted him wrote a letter to
the staff judge advocate recommending clemency on the basis that
"there is doubt . . . that Mrs. Murray [took] all normal precau-
tions necessary to avoid the act."'" The staff judge advocate who
recommended that the conviction be affirmed did not report the
receipt of the letter from the president of the court-martial.
Not all lower courts were as expansive in their pronouncement
as to the scope of review in military cases. In United States ex rel.
Innes v. Crystal,'14 one of the errors assigned was that counsel for the
defense was transferred elsewhere for military duties during the
course of the accused's trial and that, thereafter, the accused was
forced to assume his own defense. The Second Circuit, reverting
to the narrow grounds of "jurisdictional" review, ruled against the
accused:
Even assuming that this question could be said to be "jurisdictional,"
there is no substance in appellant's position since, when asked whether
he objected to going to trial in the absence of the regularly appointed
defense counsel, appellant stated that he had no objection. 15
The vagaries of the district courts were matched by the var-
ious circuits. In Romero v. Squier,'6 the Ninth Circuit recognized
the possible application of Johnson v. Zerbst to military law, but
declined to apply it in the case involved, wherein a West Point
officer had been convicted of selling military secrets to the Japanese
13 Id. at 247.
14 131 F.2d 576 (2d Cir. 1943), cert. denied, 319 U.S. 755 (1943).
15 131 F.2d at 577.
16 133 F.2d 528 (9th Cir. 1943), cert. denied, 318 U.S. 785 (1943).
shortly before World War II. At the trial of the case, the accused's
civilian defense counsel, a duly certified lawyer, was required to
leave the court room during certain portions of the case where
secret matters were discussed. During this portion of the trial the
accused was represented by his appointed military defense counsel,
a non-lawyer. The court held specifically on this matter:
We do not agree that Johmon v Zerbst ...gives to any officer tried
by a court-martial of his brother officers and defended by a brother
officer of his choice, a constitutional right to have also a civilian asso-
ciate lawyer
17
for the portion of the trial in which military secrets are
revealed.
The Fifth Circuit in Altmayer v. Sanford,18 a 1945 decision,
engaged in both the narrow and broad grounds of federal review of
court-martial convictions. In this case the appellant was convicted
by general court-martial and sought release on the grounds that he
had been denied constitutional due process in his military trial. His
allegations related to the following: (1) His civilian defense counsel
was denied access to part of the trial; (2) the accused was not per-
mitted to talk to his defense counsel during the evening of the first
day of trial; (3) his appointed military defense counsel was not
a lawyer; (4) the commanding officer of the complaining witness
was permited to confront the witness during his testimony for the
prosecution; and (5) the findings and sentence were not announced
in open court. The court of appeals discussed and eliminated each
of these errors, and specifically found "no merit in these conten-
tions."'1 9 The court then shifted gears, and recognized the conserva-
tive rule of federal review of court-martial convictions, and noted:
Finally, courts-martial are not a part of the federal judicial system,
and the procedure in such courts is regulated by the Articles of War,
20
Army Regulations, orders of the President, and military custom.
In De War v. Hunter,2' a 1948 decision of the Tenth Circuit,
yet another rule regulating the scope of federal review of military
cases was announced. In this case the accused petitioned for habeas
corpus on the ground that he was not permitted to cross-examine
the complaining witness and her husband, whose testimony was
introduced via deposition for the prosecution. The court denied the
writ but in so doing discussed the overall fairness of the defendant's
trial and, in conclusion, announced the following rule:
17 133 F.2d at 532.

18 148 F.2d 161 (5th Cir. 1945).
'9 Id. at 162.
20 Id.
21 170 F.2d 993 (10th Cir. 1948).
A soldier is subject to military law and what constitutes due process
in a trial by a military tribunal is gauged by the principles of military
law enacted by the Congress, provided the accused is given due notice
of the charge against him, a fair opportunity to prepare his defense,
and his guilt is adjudicated by a competent tribunal. 22
A federal district court in Kansas announced a much more

meaningful rule in the review of constitutional questions in military
convictions. Beets v. Hunter28 reviewed a rape case conviction by
wartime court-martial in Germany in June, 1945, under a petition for
habeas corpus filed while Beets was in military prison in Kansas in
1947. After reviewing the merits of the petition, the district judge
held that court-martial trials were subject to the same standards of
due process as civilian trials, and specifically that a soldier fighting
for his country in Germany during World War II was entitled to
due process of law, "the same as if he were walking the streets of
Kansas City, Kansas."24 ' In
reciting the facts of the case the district
court noted that the accused's appointed military defense counsel,
Captain Morgan, who was a non-lawyer, was told by the accused
on his first interview that the accused wished another officer to
defend him. The officer requested by the defendant, however, never
called upon him and the day before the trial Captain Morgan was
given a copy of the charges and directed to defend the accused.
Captain Morgan testified at the habeas corpus hearing that he "was
wholly incompetent to represent him," and he also made it "mani-
festly plain, too plain for mistake, that he did so only on orders." 25
Beets was accordingly tried and convicted of rape and sentenced
to life imprisonment. The United States district court graphically
denounced the court martial:
The Court has no difficulty in finding that the court which tried this
man was saturated with tyranny; the compliance with the Articles of
War and with military justice was an empty and farcical compliance
only,2 and the Court so finds from the facts and so holds as a matter of
law. 6
The district court proceeded to condemn the Beets verdict:

He could not have received due proces of law in a trial on a court
before men whose judgments did not belong to them, who had not the
will nor the power to pass freely upon the guilt or innocence of this
petitioner's offense, the offense for which he was charged .... It may
have been prompted by the exigencies of war, but it can't stand in the
22 Id. at 997.
23 75 F. Supp. 825 (D. Kan. 1948).
24 Id. at 826.
25 Id.
28 Id.
light of cold reason and justice as we love2 7it and for which this peti-
tioner was fighting when he was arrested.
Unfortunately, the district court did not spell out the facts sub-
stantiating the above quotation relating to the issue of trying a
defendant before men "whose judgments did not belong to them."
The exact nature of this observation is not readily apparent, but
probably refers to evidence which was introduced during the habeas
corpus hearing which established some degree of command control
over the court-martial involved.
The petitioner was forthwith ordered released by the district
court, but his freedom was short-lived. The government appealed
the decision, and the Court of Appeals for the Tenth Circuit reversed
the judgment and remanded the accused to the custody of the gov-
ernment. 28 It did not, however, discuss the issues involved. Reversal
was based on the procedural grounds that subsequent to the granting
of the writ in question, and the discharge of the prisoner, the Articles
of War were amended, and provided the petitioner with an adminis-
trative appeal to the Judge Advocate General of the Army, wherein
he could, within specified time limits, petition for a new trial or other
relief as deemed pertinent under the circumstances. The court of
appeals, much to its discredit, avoided the constitutional issue in-
volved in the district court's decision by ruling that the accused
must exhaust his "administrative remedies" as a prerequisite to
29
bringing habeas corpus proceedings.
Beets, who had long since been returned to prison, duly filed
his application for a new trial and further relief under the amended
Articles of War; his application was formally denied by the Judge
Advocate General of the Army in August, 1950.80 The formal
opinion denying his application in this matter revealed his major
complaints of due process failure at his general court-martial in
Germany in 1945 to be as follows: (1) Irregularity in his pretrial
investigation, based upon an alleged partiality of the investigating
officer; (2) a failure to produce requested defense witnesses; (3)
a denial of his right to effective counsel; and (4) that all courts-
martial within his division were under the influence and domination
of the commanding general of the division, and were thus incapable
of independent judicial judgment.
27 Id.
28 Hunter v. Beets, 180 F.2d 101 (10th Cir. 1950).
29 A petition for certiorari to the Supreme Court was denied in May 1950, 339
U.S. 963 (1950).
30 See Memorandum of Opinions of the Judge Advocate General of the
Army,
392
When Acting Upon Application for Relief Under Article of War 53, 1949-50,
[hereinafter cited as MOJAGA].
The formal Judge Advocate General (MOJAGA) opinion, de-
nying relief to Beets, dealt with most of his allegations in summary
fashion. His allegation of denial of counsel was dismissed with an
observation that Captain Morgan, despite his non-lawyer status,
measured up to "and exceeded" expected legal standards in the trial
of the case. Beets' claim that the pretrial investigating officer was
not impartial was dismissed with equal aplomb. The alleged par-
tiality of the investigating officer dealt with the question of the
identification of the accused as the assailant, whereas during the
trial of the case itself the accused's major defense (albeit by
a non-lawyer defense counsel) was not the identification of the ac-
cused as the assailant, but whether the victim consented to sexual
advances by the defendant. The MOJAGA opinion noted that the
failure to call defense witnesses by the court was not necessarily
prejudicial to the fair trial of the defendant, inasmuch as the pre-
trial affidavits of these witnesses (as taken by the "impartial" in-
vestigating officer) reflected that their testimony would have been
of no value whatsoever to the accused had they been called as
witnesses. After passing up these rather "easy" issues, the writer of
the opinion, an opinion which was eventually published over the
signature of the acting Judge Advocate General of the Army, turned
to the issue of command control.
In regard to Beets' allegation that his trial court was controlled
and dominated by his division commander, the writer of the
MOJAGA opinion called forth his very best prose, and for five and
one-half pages quoted letters from former members of the division
refuting Beets' claim in this regard."' All of the quoted letters were
from former staff officers of senior rank, and all contained a certain
eloquence of certitude that could hardly fail to impress the reader
with their sincerity. ("I categorically deny that any commander
under which [sic] I served throughout the war ever attempted such
a transgression or that they were overzealous in the performance of
their judicial functions," etc.)1 2
In summarizing his conclusions and denying application for
relief under Article of War 53, the acting Judge Advocate General
of the Army concluded that "due process of law" was duly accorded
to Beets. 8 The rather sad ending to this case highlights the diverg-
31 MOJAGA at 398-403.
32 Id. at 399.
83 As recently noted by a legal writer in relation to this unusual case,
the federal
indices contain no further reference to Beets, and it must therefore
be assumed that
he either received clemency from the Army and was discharged from
jail, or receiving
no clemency, that he was "exhausted" by his "administrative remedies"
and thus
served the remainder of his prison term without further legal protest.
Bishop, Civilian
ence between military justice and justice as it is known in civilian

tribunals. What was ultimately determined by the highest legal au-
thority in the Army to be "due process of law" was the same pro-
cess that was found to be "saturated with tyranny" by a federal
judge who heard the same case on its merits in a collateral attack
upon the conviction.
D. The Supreme Court and World, War II: Constitutional Due

Process
No improvement in the degree of constitutional protection
afforded the American serviceman in World War II habeas corpus
cases can be found on the Supreme Court level. If the final decision
in Beets v. Hunter 4 represented a harsh treatment of military cases
by the lower federal courts, the Supreme Court decision in Wade
v. Hunter,3 5 handed down in 1949, gave little more than a ray of
hope to the military defendant. Mr. Justice Black wrote the opin-
ion of the Court, which sustained the conviction of Wade for rape
of a German woman during wartime .The facts involved show that
American troops were entering Krov, Germany, on March 13, 1945;
on the following day two German women were raped by two Amer-
ican soldiers.3 Wade and another American soldier were arrested
for the offenses several days later. Two weeks later, in the town
of Pfalzfeld, some twenty-two miles from the scene of the rape in
Krov, the accused and his companion were placed on trial before
a general court-martial convened by the Commanding General of
the 76th Infantry Division. After both the prosecution and the de-
fense presented their evidence and rested, both sides stated that
they had nothing further to offer. The court stated that it did not
desire any witnesses called or recalled, counsel made closing argu-
ments, and the court-martial closed to vote on the findings of guilt
or innocence. The court opened later, however, announced that it
until
desired to hear additional witnesses and continued the case
a subsequent date to be announced by the trial counsel.
Seven days thereafter, and before the court-martial had taken
any further action in the case, the convening authority withdrew
di-
the charges from the particular court that tried the case, and
Convictions, 61
Judges and Military Justice: Collateral Review of Court-Martial
Mr. Bishop was not aware of the results of the
COLum. L. REv. 40, 45 (1961).
MOJAGA decision at the time of his publication.
84 See text accompanying notes 23-26 supra.
85 336 U.S. 684 (1949).
from the Board
36 The factual discussion contained in the text is taken largely
87, 89 (1945) (C.M.
of Review opinion in the Wade case. See Wade, 29 B.R. (Army)
ETO 15320).
rected that it take no further action. The convening authority on

the same day forwarded the case to the Commanding General,
Third United States Army, recommending trial by general court-
martial by that commander, stating that the initial convening au-
thority had withdrawn the case from consideration by the original
court-martial because of the unavailability of two witnesses due to
illness, and that the "tactical situation" precluded further disposi-
tion of the case at that level. The Commanding General, Third
Army, transferred the charges and allied papers to the Commanding
General, Fifteenth United States Army, requesting that he assume
jurisdiction in the case as most of the civilian witnesses involved
were within his geographic area of control. The Commanding Gen-
eral, Fifteenth Army, did assume jurisdiction and the retrial of
the accused was directed by that commander all within a month
of the date of Wade's original trial. Upon retrial, Wade's co-defen-
dant was acquitted, but Wade, despite his defense of former jeop-
ardy, was convicted and sentenced to life imprisonment. Upon
review by the European Theater of Operations Board of Review,
the Board found that the provision of the fifth amendment to the
Constitution that "nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb," was applicable
to military trials.8 7 The Board further found that the doctrine of
"imperious necessity," which permits the withdrawal of a criminal
charge from one court and its referral to another without affording
a defendant the right to plead former jeopardy, is "based on a sud-
den and uncontrollable emergency, unforeseen by either the prose-
cution or the court-a real emergency which by diligence and care
could not have been averted.""8 After reviewing federal and state
precedent, the board concluded that the "rule in the Federal courts,
and in most state courts, is that the absence of witnesses or the
unavailability of evidence is not ground for the termination of the
trial by a discharge of the jury under the doctrine of imperious
necessity. . . ."9 The Board further found that the provisions of
the Manual for Courts-Martial, 1928, which gave the convening
authority the power to withdraw any specification or charge at any
time unless the court had reached a final verdict in the case, was
to be construed in "sympathy with the Fifth Amendment and Ar-
ticle of War 40, which are not limitations on the power of the ap-
pointing authority to direct the entry of a nolle prosequi or to
withdraw charges, but are limitations on the power to again try
87 29 B.R. at 90.
88 Id. at 92.
89 Id.
1970]. COMMAND INFLUENCE
an accused after jeopardy has attached. '40 The Board then con-
cluded that neither the Manual nor the Articles of War themselves
"could confer power inconsistent with the Constitution," and accord-
ingly recommended that the record of trial be held legally insuffi-
cient to support the findings of guilty and the sentence.
In a First Indorsement to the Board of Review opinion, Brig-
adier General E. C. McNeil, an Assistant Judge Advocate General
and European Judge Advocate, dissented, and recommended that
the findings and sentence be approved. But in doing so, General
McNeil subscribed fully to the doctrine expressed in the Board's
opinion that the fifth amendment's doctrine of former jeopardy
applied to military law. His only disagreement with the Board of
Review was in the application of the doctrine of "imperious neces-
sity ... to the facts in this case."'" In his view of the facts, General
McNeil was of the opinion that the commander concerned was fully
justified as a matter of combat necessity in withdrawing the charges
in this case, and because of the unavailability of the witnesses in-
42
volved, in referring the charges to another command for trial.
The Second Indorsement to the Board of Review opinion noted
that the Commanding General of the European Theater of Opera-
tions had agreed with the dissenting opinion of General McNeil,
and had affirmed the case. 8 The Wade sentence was thus confirmed4
by Army authorities and ordered executed on January 10, 1946."
Following military execution and review of his sentence, Wade
brought suit in the District Court of Kansas for habeas corpus."
40 Id. at 96-97.
41 Id. at 98. The General stated in his opinion: "I am in accord with the Board
of Review in its analysis of the principles of law applicable to the plea of former
jeopardy and subscribe to the doctrine expressed in the opinion that in the trial of
cases before general courts-martial, jeopardy within the meaning of the relevant provi-
sion of the Fifth Amendment to the Federal Constitution may attach prior to findings
by the court and approval of the sentence by the reviewing authority. I further agree
with the Board of Review that the 40th Article of War must be read in the light of
the Fifth Amendment and the adjudication of the Federal Courts with respect to the
'double jeopardy' clause thereof." Id. at 98.
42 Id.
43 The Second Indorsement, in part, read as follows: "Under the provisions of
Article of War 50 and /2, the Commanding General, United States Forces, European
Theater, took action in this case in conformity with the dissenting opinion of the
Assistant Judge Advocate General, contained in the 1st Indorsement to the Board of
Review's holding, confirmed the sentence as approved and designated in the United
States Penitentiary, Lewisberg, Pennsylvania, or elsewhere as the Secretary of War
may direct, as the place of confinement." Id. at 106.
44 See General Court-Martial Order No. 2, European Theater of Operations,
dated January 10, 1946.
45 Wade v. Hunter, 72 F. Supp. 755 (D. Kan. 1947).
That court ordered him released from military prison on the ground
that his plea in bar of trial because of former jeopardy should have
been granted. The Government appealed and the Court of Appeals
for the Tenth Circuit reversed, one judge dissenting." The Supreme
Court, with three Justices dissenting, affirmed the Court of Appeals'
decision, and Wade's bid for freedom was finally answered in the
negative.47 Mr. Justice Black, writing for the majority, noted that
the fifth amendment's double jeopardy provision "does not mean
that every time a defendant is put to trial before a competent
tribunal he is entitled to go free if the trial fails to end in a final
judgment. ' 48 Justice Black stated the instant record was sufficient
to show that the "tactical situation brought about by a rapidly ad-
vancing army was responsible for withdrawal of the charges from
the first court-martial," and that in the absence of a charge of bad
faith on the part of the Commanding General, his decision in this
regard should be accepted by the courts without further review. 9
The dissenting Justices were not so easily convinced. Writing
for the minority, Mr. Justice Murphy stated:
There is no doubt that Wade was placed in jeopardy by his first trial.
This Court now holds that the decision of his Commanding Officer,
assessing the tactical military situation, is sufficient to deprive him of
his right under the Constitution to be free from being twice subjected
to trial for the same offense. With this reading of the Constitution I
cannot agree. The harassment to the defendant from being repeatedly
tried is not less because the army is advancing. The guarantee of the
Constitution against double jeopardy is not to be eroded away by a
tide of plausible-appearing exceptions. The command of the Fifth
Amendment does not allow temporizing with the basic rights it declares.
Adaptations of military justice to the exigencies of tactical situations
is the prerogative of the commander in the field, but the price of such
expediency is compliance with the Constitution. I would reverse the
judgment below. 50
It would appear at least that both the majority and minority of
the Court accepted the principle that the double jeopardy provision
of the fifth amendment applied to military law, and, most sig-
nificantly, that it was a provision that could be raised in collateral
attack upon a military conviction, within the spirit of Johnson v.
Zerbst, despite the Court's past decisions to the contrary. In this
respect, if this were the substantial impact of Wade v. Hunter, the
decision would have had substantial constitutional meaning, and
48 Hunter v. Wade, 169 F.2d 973 (10th Cir. 1948).

47 Wade v. Hunter, 336 U.S. 684 (1949).
48 Id. at 688.
49 Id. at 691-92.
50 Id. at 694 (dissenting opinion).
would have represented a breakthrough to that point unequaled

in the history of military law. Unfortunately, Wade was not so
destined. Mr. Justice Black cautiously inserted a footnote into his
decision which specified that the Court's holding in Wade, to the
effect that the fifth amendment did not bar retrial of Wade, made
it unnecessary for the Court to consider "[t] o what extent a court-
martial's overruling of a plea of former jeopardy is subject to col-
lateral attack in habeas corpus proceedings."" Mr. Justice Black
cited, among other cases, the Court's ultra-conservative opinion in
Carter v. McClaughry 2 as authority for his reservation in this
regard. Thus, despite the constitutional ring of the decision, Wade
v. Hunter at best reflected only a willingness on the part of the
Supreme Court to review its restrictive decisions in this area of
military law, if a proper case were to come before the Court.
One year later, in 1950, the Supreme Court found itself face
to face with Hiatt v. Brown,58 a genuinely "proper" case. Unlike
Wade, the problems presented in Hiatt v. Brown were not sus-
ceptible to facile legal solution. After his conviction had been
affirmed by military authorities, Brown successfully brought a writ
of habeas corpus in the District Court for the Northern District of
Georgia.5 4 Upon the Government's appeal to the Court of Appeals
5
for the Fifth Circuit, Brown was again successful. The Govern-
ment thereupon appealed to the Supreme Court, and that Court
reversed the decisions of the two lower courts, and affirmed the
court-martial conviction of Brown, thereby sanctioning one of the
most infamous of all World War II miscarriages of military justice.
Brown was tried and convicted of a murder committed while on
sentry duty, and sentenced to life imprisonment by a general court-
martial sitting in Mannheim, Germany, in January, 1947. Upon
recommendation of Army appellate agencies, the sentence was re-
duced to 20 years. At issue in the court of appeals were the fol-
lowing questions: (1) Did the court-martial have jurisdiction over
the offense; and (2) assuming there was proper jurisdiction in the
trial court, was there otherwise such a denial of due process "as
would require us to invalidate his conviction and sentence.""
51 Id. at 688 n.4.

52 183 U.S. 365 (1902). See text accompanying note 52, Ch. I supra. See also
Bishop, Court-Martial Jurisdiction Over Military-CivilianHybrids: Retired Regulars,
Reservists, and Discharged Prisoners, 112 U. PA. L. REv. 317, 370 (1964), wherein
Professor Bishop relates the 40 year effort of Captain Carter to reverse his general
court-martial conviction through recourse to federal litigation, all of which was in
vain.
53 339 U.S. 103 (1950).
54 Brown v. Hiatt, 81 F. Supp. 647 (N.D. Ga. 1948).
55 Hiatt v. Brown, 175 F.2d 273 (5th Cir. 1949).
56 Id. at 275.
The facts of the case were succinctly stated in the decision of

the court of appeals. The applicable Article of War, as noted by
the court of appeals, provided essentially that, in appointing mem-
bers to a general court-martial, an appointing officer shall appoint
as law member of the court a member of the Judge Advocate Gen-
eral's Department, unless a member of that Department is not
available, and in such situations the appointing authority may
appoint as law member of the court-martial an officer of some
other branch of the service. Brown's record of trial revealed that
the law member of his general court-martial was not a member of
the Judge Advocate General's Department, but was a non-lawyer
Colonel of the Field Artillery. The court of appeals also noted that
the record of trial revealed that two members of the Judge Advo-
cate General's Department were in fact "available" in the com-
mand concerned, and further noted that the court-martial order
appointing the court-martial listed these two officers, both of whom
were lawyers, as assistant prosecutors in the Brown case. The
court of appeals observed that "[n]o authority, explanation, or
reason whatever is offered in justification or excuse of this action."'5 7
The court further opined that the Article of War in question was
designed to secure the "protection of fundamental and constitu-
tional safeguards to members of our armed forces,"" s particularly
in time of peace, and that under the mandate of the applicable
Article, in those situations where a judge advocate was available,
his presence as law member of the court-martial was a "jurisdic-
tional prerequisite to the validity of such court-martial proceed-
ing[s]."9 The court of appeals continued:
And where, as here, it conclusively appears that although two of the
required law members were actually "available" at the time of their
court-martial appointment for the position of law member, and the
appointing authority has arbitrarily, and without apparent justification
or excuse, appointed both of them to serve as assistant prosecutors of
the accused, it leaves the entire proceeding in some sort analogous
to a jury trial without a judge present.
The arbitrary action of organizing this court-martial in complete

disregard of the plain requirements of the 8th Article of War is mani-
festly reviewable, both as an abuse of discretion, and as a fatal organi-
zational defect which effectually divests the court-martial of juris-
diction. 60
The court of appeals did not cite Johnson v. Zerbst as au-
57 Id.
58 Id. at 276.
59 Id.
60 Id.
thority for its finding of no jurisdiction, as it apparently proceeded

on the more direct theory that the failure to comply with the 8th
Article of War in the appointment of the court-martial rendered its
proceedings void. The court, however, did not rest its decision on
jurisdictional grounds alone, but proceeded to consider other "errors"
appearing in the record of trial. These errors were outlined by the
court as follows: (1) the accused was convicted of murder upon
the theory that it was "incumbent upon him to retreat," despite
the fact that he was on duty as a sentry; (2) the evidence of malice,
premeditation, or deliberation was lacking (the entire affray lasted
only two minutes); (3) the appointed law member of the court-
martial was grossly incompetent at the trial; (4) the only pre-trial
investigation of the charges in the case related to the then-charged
to
offense of manslaughter, which was subsequently increased
investigation; (5) the
murder without benefit of a new pre-trial
in his
trial defense counsel, who was a non-lawyer, was inadequate
(6) the review of
defense and submitted only a token defense; and
a "total mis-
the record by Army appellate 1 authorities revealed
conception" of applicable law."
The court of appeals held that each of the above errors may
not constitute jurisdictional error, but when considered in their
cumulative effect, pointed unerringly to the fact that this accused
the
did not receive a fair trial, "even under military law." Again
v. Zerbst in aid of its find-
court of appeals did not cite Johnson
similar
ing in this regard, but proceeded to carve out a somewhat
before a military tri-
theory of law to the effect that an accused,
a fair trial." The court
bunal, must be afforded "some semblance of
due
of appeals noted that otherwise the constitutional guaranty of
process of law under the fifth amendment "as applied to habeas
corpus applications from court-martial convictions" would be mean-
ingless in federal courts. The court of appeals thereupon expressly
ruled that the conviction and sentence were invalid "both because
his court-martial was without jurisdiction and because he has not
62
of law."
been afforded due process
Upon the Government's appeal of the Fifth Circuit decision, the
Supreme Court found that the record disclosed no "disregard of the
8th Article of War in the appointment of the tribunal which con-
victed respondent." The Court, speaking through Mr. Justice
8
Clark, held "that the availability of an officer as law member was

intended by Congress to be a matter within the sound discretion
61 Id. at 277.
62 Id.
63 339 U.S. at 107.
of the appointing authority", and was reviewable by the courts
only if a "gross abuse" of discretion was proved.6 4 The Court
con-
tinued that "no abuse is disclosed by the appointment of an
officer
from the Judge Advocate General's Department to a capacity
other
than law member" O5 despite the fact that the appointed law member
was a non-lawyer, and that the member of the Judge Advocate
General's Department who was assigned to the case as an assistant
prosecutor was removed from the case prior to its trial.
Had the Court stopped at this point, the case at least would not
have reached the nadir that it achieved in military law. Mr. Justice
Clark was not to stop, however, and turned his attention
to the
court of appeals' treatment of the nonjurisdictional aspects
of the
conviction. In this regard he noted:
The Court of Appeals also concluded that certain errors committed
by the military tribunal and reviewing authorities had deprived respon-
dent of due process. We think the court was in error in extending its
review, for the purpose of determining compliance with the due process
clause, to such matters as the propositions of law set forth in the staff
judge advocate's report, the sufficiency of the evidence to sustain
respondent's conviction, the adequacy of the pretrial investigation, and
the competence of the law member and defense counsel .... It is
well
settled
that "by habeas corpus the civil courts exercise no
or correcting power over the proceedings of a court-martial supervisory
single inquiry, the test, is jurisdiction." In re Grimley . . ..... The
. In this
case the court-martial had jurisdiction of the person accused and the
offense charged, and acted within its lawful powers. The correction
of any errors it may have committed is for the military authorities
which are alone authorized to review its decision.6
Mr. Justice Douglas took no part in the consideration of the
case
or the decision. Mr. Justice Burton concurred generally on
the
ground there had been no abuse of Article of War 8. Otherwise,
Mr. Justice Clark's opinion represented a unanimous Court.
The
decision, at face value, would have ended the fight for judicial
re-
form of military law by the federal judiciary. Fortunately,
such
has not been the fate of military law.
Following Hiatt v. Brown in point of time and importance, the
Supreme Court again dealt with the issue of collateral review
of
constitutional irregularities in court-martial convictions in the
con-
troversial case of Burns v. Wilson, 7 a 1953 decision, in which
Mr.
Chief Justice Vinson, writing for a "majority" of only four Justices,
64 Id. at 108.
65 Id. at 110.
66 Id. at 110-11.
67 340 U.S. 137 (1953).
discussed both the ultra-conservative and liberal approaches to col-

lateral review of military convictions. Without citing Johnson v.
Zerbst, or indicating which view was controlling, he proceeded to
review each and every allegation of injustice raised by the petition-
ers, and ruled against them on every point, on the basis that the
military courts had given fair consideration to each of the claims.8
While there was a vigorous dissent by Justices Douglas and Black,"
69 this was the
and a separate opinion by Mr. Justice Frankfurter,
last significant ruling by the Supreme Court on this vital point of
law.
The conservatism expressed in Hiatt v. Brown was a throw-
back to another age; its ruling ignored too much to be meaningful
in constitutional law. Burns v. Wilson was, for another reason, al-
most meaningless in the legal sense: It contained too much for both
sides, resulting in hopeless self-contradiction. For the military
oriented, it stood for the fact that constitutional due process did not
apply to servicemen; for the reformer, it stood for exactly the oppo-
site. And for the individual petitioners in the case, it stood for yet
another result, for their petitions were denied and they were
hanged.70 Otherwise, both Hiatt v. Brown and Burns v. Wilson,
standing as the only pronouncements by the Supreme Court in the
past twenty years on the subject of the applicability of constitutional
due process to military law, were meaningful only in a negative
sense- i.e., as directives to the lower federal courts to keep their
hands off military law while the newly created Court of Military
Appeals set about its task of placing the military's house in order for
the first time in history. The directives have been effective.
Following these decisions, lower federal court review of military
convictions via collateral attack has been reduced to a trickle. Only
two defendants have been freed from military prison in the 16 years
since Burns v. Wilson on nonjurisdictional grounds; what few deci-
sions of record that are available, however, reveal a liberal reading
7
of Burns v. Wilson by most lower federal courts in this regard.
id. at 150.
68
69 Id. at 148.
70 Mr. Wiener, a retired U.S. Army Reserve Colonel and member
of the District
Bar, testifying before a Senate Subcommittee in 1962, reported that
of Columbia
by the Army in
the defendants in the case of Burns v. Wilson were finally executed
the
1954. Hearings on S. Res. 260 Before the Subcomm. on Constitutional Rights of
Senate Comm. on the Judiciary, 87th Cong., 2d Sess., at 790 (1962). Mr. Wiener's
statement is presumed by the author to be correct in this regard.
7' See, e.g., Gallagher v. Quinn, 363 F.2d 301 (D.C. Cir. 1966), cert. denied 385
v.
U.S. 881 (1966); McCurdy v. Zuckert, 359 F.2d 491 (5th Cir. 1966); Swisher
(8th Cir. 1966); Gibbs v. Blackwell, 354 F.2d 469 (5th
United States, 354 F.2d 472 297
Cir. 1965); Burns v. Harris, 340 F.2d 383 (8th Cir. 1965); Reed v. Franke,
In 1969 the Supreme Court in United States v. Augenblick, 72
reversed the very liberal holding of the Court of Claims in Augen-
blick v. United States,78 on the narrow grounds that the error com-
plained of in that case did not present a constitutional question (the
Court of Claims had treated an alleged violation of the Jencks Act74
by the military trial court involved as a violation of constitutional
due process, and thus ordered the plaintiff's back salary restored).
The recent ruling by the Supreme Court in O'Callahan v. Parker75
was a jurisdictional ruling, limiting court-martial jurisdiction to
crimes that were "service connected," and was not addressed to the
more pressing problem of constitutional rights of servicemen gen-
erally, or to their right to seek review of their convictions on non-
jurisdictional grounds via writ of habeas corpus in the federal courts.
Also, in a slightly different direction, but bearing on the problem, the
United States Court of Military Appeals finally ruled in United
States v. Jacoby78 and United States v. Tempia77 that Burns v. Wil-
son extended the protection of the Constitution to servicemen, ex-
cept in situations that are expressly, or by necessary implication,
beyond the coverage of the Constitution.
But in sum, the federal courts have been at best only lukewarm
in safeguarding the constitutional rights of servicemen. The lower
federal courts have been less solicitous of the military than the Su-
preme Court, and have trusted the "good faith" of the military
commander far less than their brethren on the high court, resisting
the ironclad jurisdictional test announced in Hiatt v. Brown. But
few military defendants have realized their freedom from military
prison as a result of this burst of independence in the lower federal
courts. 7' The rash of habeas corpus petitions immediately following
World War II, as well as the declining number of such petitions in
the decade of the fifties and sixties, has served little real purpose in
the final analysis other than in exposing the brutalities of the sys-
F.2d 17 (4th Cir. 1961); Kasey v. Goodwyn, 291 F.2d 174 (4th Cir. 1961);
Rushin
v. Wilkinson, 272 F.2d 633 (5th Cir. 1959); DeCoster v. Madigan, 223 F.2d
906 (7th
Cir. 1955); In re Stapley, 246 F. Supp. 316 (D. Utah 1965); Augenblick
v. United
States, 377 F.2d 586 (Ct. Cl. 1967); and Begalke v. United States, 286 F.2d
606 (Ct.
Cl. 1960). For a more conservative approach to the question of federal
court review
of constitutional questions raised in military trials via collateral attack
in federal
court, see Fowler v. Wilkinson, 353 U.S. 583 (1957); Jackson v. Taylor,
353 U.S. 569
(1957); LeBallister v. Warden, 247 F. Supp. 349 (D. Kan. 1965).
12 393 U.S. 348 (1969).
73 377 F.2d 586 (Ct. Cl. 1967).
74 18 U.S.C. § 3500 (1964).
75 395 U.S. 258 (1969).
76 I1 U.S.C.M.A.. 428, 29 C.M.R. 244 (1960).
77 16 U.S.C.MA. 629, 37 C.M.R. 249 (1967).
78 See Bishop, supra note 33, at 45-46.
tern, and to a slight degree in whetting the appetite of the American

people and Congress to legislate reform into military law. The real
demand for reform following World War II was not to come from
the federal bench, but from a much more basic and direct source,
the former civilian soldiers and sailors who had been drafted by the
millions into the World War II military. Formal court decisions
tend to water down the true viciousness of all criminal judicial
procedure. The real thrust at military despotism following World
War II was to come from the people, from the press, from legal
journals and committees, and from the Congress of the United
States.
V. THE REACTION OF THE AMERICAN PEOPLE
A. The Disaffected and the Demand for Reform

The demand of the American people for reform of military law
was not a slow, smoldering thing so much as it was an explosion of
anger. It dealt little with judicial niceties or constitutional fictions
and conceptualisms. It did not go to the root of the problem insofar
as a general condemnation of militarism was concerned, but dealt
with the effects of militarism upon judicial procedures. It was both
a praise of military victory and an emotional outburst at the indigni-
ties condoned in military justice, reaching the boiling point shortly
after the War. The tone of the demand was one for reform of a judi-
cial system-not for a reorientation of military philosophy. The
criticism was to deal basically and simply with justice for the "GI"
in the judicial sense, as reflected in popular magazine titles of the
day, such as "Khaki Justice," "Courts-Martial Come to Justice,"
and "Justice on a Drumhead."* Legal writers were to condemn the
military judicial system, newspaper editors were to tear it apart,
and various governmental committees and bar associations were to
take up the fight for dramatic reform of military law-both during
and after the War.
In the forefront of reform was the voluminous report of the
Vanderbilt Committee, appointed by the American Bar Association
at the request of the War Department.' Smarting under heavy criti-
* Compton, Khaki Justice, ATLAxTc MONTHLY, June 1944, at 45; Simpson,

Courts-Martial Come to Justice, 193 HARPER'S MAGAZINE 457 (1946); Rosenblatt,
Justice on a Drumhead, 162 NATION 501-03 (1946).
I The Committee of nine distinguished judges and lawyers was appointed by
Secretary of War Patterson on March 25, 1946, from a membership which had been
recommended by the American Bar Association. The Committee was known as the
War Department Advisory Committee on Military Justice.
UCLA LAW REVIEW [Vol.. 18:1I
cism, and no doubt mindful of the World War I support it received

from the American Bar Association, the War Department called upon
the A.B.A.'s committee to hold nation-wide hearings and receive
evidence from as wide a base as possible to determine the degree of
injustice, if any, involved in the actual operation of wartime admin-
istration of military law. The actual scope of the inquiry, as defined
by the War Department, was as follows:
The function of the Committee will be to study the administration
of military justice within the Army and the Army's court-martial
system, and to make recommendations to the Secretary of War as to
changes in existing laws, regulations, and practices which the Com-
mittee considers necessary or appropriate to improve the adminis-
2
tration of military justice in the Army.
The War Department's confident move in defining the parameters

of inquiry as broadly as it did was to cost the Army dearly, for the
Vanderbilt Committee was not to prove as favorable to the War De-
partment in the evaluation of military justice as did its World War I
predecessor.
The Vanderbilt Committee was headed by Mr. Arthur T. Van-
derbilt, Dean of the New York University School of Law. Among
other distinguished members of this Committee were Judge Morris
A. Soper, currently of the United States Court of Appeals for the
Fourth Circuit, and Judge Alexander Holtzoff, United States Dis-
trict Judge for the District of Columbia.' The Committee held
numerous hearings across the United States from March until De-
cember, 1946, wherein hundreds of witnesses were heard, and some
2,519 pages of recorded testimony were taken.4 The Committee also
held hearings in Washington, D.C., taking testimony from the Secre-
tary of War, the Under-Secretary of War, the Chief of Staff of the
Army, the Commander of the Army Ground Forces, the Judge Advo-
cate General of the Army, and many other general officers and
colonels as well as representatives from five veterans' organizations.
The Committee also had numerous interviews with enlisted men, and
digested hundreds of letters and answers to questionnaires.'
After reviewing their collective evidence, the Committee paid
2 See War Department Memorandum No. 25-46, Mar. 25, 1946, II 2 (the docu-
ment which created the Committee).
3 The remaining members of the Committee were the Honorable Frederick E.
Crane, New York, N.Y.; Joseph W. Henderson, Philadelphia, Pa.; William T. Joyner,
Raleigh, N.C.; Jacob M. Lashly, St. Louis, Mo.; Walter P. Armstrong, Memphis,
Tenn.; and Floyd E. Thompson, Chicago, Ill.
4 WAR DEPARTMENT, REPORT OF THE ADVISORY COMM. ON MILTARY JUSTICE 2
[hereinafter cited as COMMITTE REPORT].
5 Id.
due homage to the victory so recently achieved by the American mili-

tary fighting command,' acknowledged that the American court-
martial system as written on the books was "[elxcellent in theory
and designed to secure swift and sure justice."7 The Committee also
noted that the innocent "were almost never convicted and the guilty
seldom acquitted."' The Committee nonetheless found that a "break-
down" in the administration of wartime military justice had definitely
occurred.9
The Committee found that there were two major causes for the
breakdown. The first cause was that commanding officers frequently
"dominated" the independent judgment of the courts, and simply did
not follow the system that was laid down in the Manual for Courts-
Martial,but adjudged it their duty to interfere with the court-martial
process for "disciplinary purposes."' 1 The second major factor in the
breakdown of wartime military justice was that sentences imposed by
wartime courts were "frequently excessively severe and sometimes
fantastically so."''"The Committee reported that in "many instances
the commanding officer who selected the members of the courts made
a deliberate attempt to influence their decisions. ' 12 The Committee
stated that not all commanders adopted this practice, but noted that
"its prevalence was not denied and indeed in some instances was
freely admitted."' The close association between the commanding
general, his staff judge advocate, and the members of his command
who served on his courts made it quite easy for the court members
"to acquaint themselves" with the desires of their commander in
specific cases, and in an expression of "loyalty" to their chief, to re-
flect his desires in their judicial decisions, on either the findings of
guilt or the sentence or both.1 4 In regard to the imposition of exces-
sive sentences, the Committee found it to be common policy through-
out the court-martial system, and that in "due course" members of
general courts-martial were given to understand that they were to
impose maximum sentences in order to permit the "old man" to fix
6 After announcing the fact that the Committee was formed at the request of
the Army itself, and was thus not on a witch-hunt of its own initiation, the Com-
mittee let it be known that "we join our countrymen" in general praise of the
Army's great victory in World War II, and "express our profound obligation to the
brilliant generalship and to the successful outcome." COMMITTEE REPORT, supra note
4, at 2.
7 COMMITTEE REPORT, supra note 4, at 2-3.
8 Id.
9 Id. at 3.
10 Id.
11 Id. at 5.
12 Id. at 6.
13 Id. at 7.
14 Id.
the penalty to suit his own ideas.' 5 Hence, while the practice of per-
mitting the convening authority to return inadequate sentences to
courts-martial for "revision" of sentence upward was outlawed in
1920,6 the military effectively grounded the reform by calling upon
their court members to impose maximum sentences, or sentences of
prescribed severity for specified offenses, thereby leaving the ultimate
sentence to be imposed still squarely in the hands of the military
commander, who could decrease sentences but, on his own authority,
could not increase them. 17 The existence of sentence-fixing in
military trials was not an isolated practice,' but was engaged in by
the War Department itself, who saw fit to publish classified docu-
ments setting forth approved minimum sentences for designated
offenses.' 9 The Vanderbilt Committee also noted that court-martial
members who did not follow prescribed sentence procedures, and
adjudged inadequate sentences, or who improperly acquitted
individuals who were scheduled to be convicted, found themselves in
receipt of either oral or written reprimands from their command-
ing generals for their gross dereliction of judicial duties in this
regard. The Committee cited an example of this wide-spread practice,
involving a lieutenant-general who voluntarily testified that he once
wrote a "stinging" letter of reprimand to the members of a general
court-martial who imposed a five-year sentence in a case of desertion
while training in the United States. The General stated that he was
particularly incensed because the sentence was not twenty-five years,
and considered it his duty to chastise the court members for their
"extreme leniency."2 0
15 Id.
16 See 1920 Articles of War, art. 40.
17 See Ch. III supra.
18 Id.
19 See, e.g., United States v. Johnson, 35 B.R. (Army) 156 (1944) (C.M.
254,026); note 23 & accompanying text, Ch. III supra.
20 COMWMTTEE REPORT, supra note 4, at 7. A more up-to-date skin letter, in-
troduced in the Joint Hearings on S. 745-62, 2906-07 Before the Subcomm. on Con-
stitutional Rights of the Senate Comm. on the Judiciary and a Special Subcomm. of
the Senate Comm. on Armed Services, 89th Cong., 2d Sess., pt. 2, at 761-62 (1966), is
partially set forth below:
Tactical Air Command, U. S. Air Force
Langley Air Force Base, Va., January 11, 1963
Maj. Vincent J. Sherry, Jr.
Staff Judge Advocate, 839th Combat Support Group, Sewart AFB, Tenn.
Dear Vince: As you probably know, I am very much disappointed in the sen-
tence adjudged in the case of Captain Gavlick. After reading the record of trial, I
am convinced that had the members of the court been briefed on their duties and
responsibilities and had the trial counsel taken more aggressive action that the sen-
tence in the case would have included a dismissal ...
In order to assist you in briefing officers who may be potential members of
courts-martial, I have written a letter to Colonel Tamberg expressing my concern
The Committee also noted there were instances in which ap-

pointed prosecutors were fully qualified lawyers, while in the same
cases, counsel appointed to represent the defense had little if any le-
gal qualifications. The Committee found that this incompetency on
the part of defense counsel was not unintended by the military, but
was part of an overall plan to implant in members of a command the
realization that a "competent and vigorous defense was not de-
sired."'" Instances of intimidation were cited where the well-known
anti-defense attitude of the military commander "minimized the in-
dependence and vigor of the defense." The Committee further
reported that no steps had been taken by the Army to check the
illegal control of court-martial functions, but that, on the other hand,
the entire illegal process was condoned by the War Department on
2 The Vander-
the basis "that discipline is a function of command.1
bilt Committee concluded its voluminous study of command influence
with the following recommendation:
Undoubtedly there was in many instances an honest conviction that
since the appointing authority was responsible for the welfare and
lives of his men, he also had the power to punish them, and conse-
quently the courts appointed by him should carry out his will. We
think this attitude is completely wrong and subversive of morale; and
that it is necessary to take definite steps to guard against the break-
down of the system at this point by making such action contrary to
the Articles of War or regulations and by protecting the courts from
the influence of the officers who authorize and conduct the prose-
cution.28
While the Vanderbilt Report was in the forefront of the reform

movement, it was not, standing alone, the motivating factor of re-
over the inadequate punishment in this case and in those of Lt. Col. Howard Wilson
and Airman Ronald J. Ross.
I lay most of the blame for the inadequate results in these cases to the failure
of our officers to fully understand and appreciate their responsibilities to the Air
Force, which deficiency can be corrected only by instruction. There is an ever-in-
creasing need to obtain and retain only the most qualified personnel whose conduct
adds to rather than detracts from the prestige of the Air Force. ...
The above letter, written by the Staff Judge Advocate (full colonel) of the Tactical
Air Command, was also accompanied by a second letter to the Commander of Sewart
Air Force Base, where the Staff Judge Advocate of the Tactical Air Command (a
superior command to Sewart) stated that the three court-martial cases involved were
completely unacceptable to the Air Force, and directed that administrative elimination
action be initiated in each of the cases concerned. The Staff Judge Advocate was care-
ful to point out that one must use care not to exercise command control over the
findings and sentence stages of the court-martial proceedings, but nonetheless added
that all Sewart officers should be instructed on their duties and responsibilities as
members of courts-martial. Joint Hearings, supra, at 762-63.
21 Comzrrm REPoaT, supra note 4, at 7.
22 Id.
28 Id.
form. Rather, it was an indicator of the opinion of the American

people. At the same time the Vanderbilt Committee was reporting
the dire state of justice in the nation's senior military service, other
committees were in the process of submitting or had already sub-
mitted reports on the same subject, most of which were as critical of
24
the military.
The substance of the indictment that was raised against the
administration of military justice during World War II quite natu-
rally led to a demand for reform legislation. The task of drafting a
new Code of Military Justice accordingly was begun in August, 1948,
and completed in February, 1949.25 As a result of the concurrent
movement for the unification of the entire armed forces, Secretary of
Defense Forrestal was initially asked to submit a uniform Code for
the consideration of Congress that would apply to all military ser-
vices alike. Mr. Forrestal selected a committee, comprised of Under
and Assistant Secretaries of the three military Departments, to draft
such uniform legislation. Upon the advice of an Assistant Secretary
of Defense, however, he also selected Professor Edmund M. Morgan
of Vanderbilt Law School and formerly of Harvard Law School to
be Chairman of the Committee.2" Professor Morgan was, of course,
the same Lieutenant Colonel Morgan who had served on General
Ansell's staff during World War I, and who had ardently supported
Ansell in his valiant but unsuccessful fight to reform military law
following World War I.
The forces of reform scored a great victory at the outset in the
appointment of Professor Morgan as Chairman of the Forrestal
Committee, and there is little surprise that the finished Code embod-
ied many of the reforms that were first championed by Ansell in his
bitter struggle with the military establishment some thirty years
before. The proposed Code included such Ansell "firsts" as a United
24 REPORT OF THE Ass'N OF THE BAR OF THE CITY OF

NEw YORK, SPECIAL
Comr. ox
MILITARy JUSTICE (1948) (highly critical of World War II military
justice);REPORT OF THE SPECIAL COMM. ON THE ADMINISTRATION
OF MILITARY
JUSTICE OF THE NEW YORK STATE BAR Ass'N (1948)
(quite favorable to the war-
time control of military justice); REPORT OF GENERAL COURT-MARTIAL SENTENCE
REVIEW BOARD TO THE SECRETARY OF THE NAVY (1947) (a bitter denunciation of
wartime Naval justice); REPORT OF TE McGuIRE CoMM. TO
THE SECRETARY OF THE
NAVY (1945) (critical of wartime Naval justice); REPORT OF
THE BALLENTiNE Comm.
TO THE SECRETARY OF TIE NAVY (1943 and 1946) (critical of
the wartime administra-
tion of Naval justice); and FATHER WHITE, A STUDY OF 500
NAVAL PRISONERS AND
NAVAL JUSTICE (1947) (critical of wartime Naval justice).
25 See, e.g., Larkin, Professor Edmund M. Morgan and the Drafting of the
Uniform Code, 28 ML. L. REv. 7 (1965). At the time of the drafting of the
form Code, Mr. Larkin was General Counsel of the Department of Defense, Uni-
and was
the executive secretary of the Forrestal Committee.
20 Id.
States Court of Military Appeals, comprised of civilian judges, as

the court of last resort for military defendants; qualified legal de-
fense counsel for every general court-martial; and a certified law
officer, fully qualified in the law, as military judge on every general
court-martial.2" Additionally the new Code contained, as Article 37,
a proposal that outlawed military commanders from taking action
against any member of their command for their conduct while serving
as a member of a court-martial, either as a member of the court, or
as counsel or judge. While a host of Ansell's lesser proposals were
embodied in the proposed Code by the Forrestal Committee, the
above changes were the major reforms embodied in the proposed
legislation, and, with the exception of Article 3 7, these changes served
as the major points of contention during the legislative hearing over
28
the desirability of the new code. There was, of course, another group
who felt that the reforms contained in the new code did not go far
enough, and even if enacted would effect no substantive reform in
military law at all. This group believed that Ansell's reforms were
already outdated and that a new and more forceful change was
required, one that would subject, for example, military commanders
who would tamper with military justice, or influence court verdicts,
to federal indictment and prosecution in United States district
courts. 29
B. The Senate Hearings and the New Uniform Code

The Senate hearings on the proposed Uniform Code of Military
Justice were hotly contested by the advocates of reform and the sup-
porters of the status quo, with the Vanderbilt Committee Report at
the center of much of the controversy. The New York State Bar As-
sociation was one of the few non-military organizations appearing
before the Senate Subcommittee that disagreed with the Vanderbilt
Report, and its disagreement was not one of fact, but of philoso-
phy: 80 its position was ultra-conservative on the issue of command
27 See Morgan, The Background of the Uniform Code of Military Justice, 6

VMAD. L. Rxv. 169 (1953), reprinted in 28 Mx.. L. R v. 17 (1965) [hereinafter cited
as Morgan].
28See Hearings to Enact a Uniform Code of Military Justice (S. 857 and H.R.
4080) Before a Subcomm. of the Senate Comm. on Armed Services, 81st Cong., 1st
Sess. (1949) [hereinafter cited as Hearings on S. 857].
29 See, e.g., testimony of Brigadier General Franklin Riter, a World
War II
reserve judge advocate officer, in text accompanying note 46 infra.
30 The New York State Bar Association favored strict command control of the
military judicial process. Quoting from the testimony of its representative before the
subcommittee: "On the question of separation of courts-martial from command we
know that separation will be pressed for by its advocates, as it has been by the
Vanderbilt Committee, the American and other bar associations. We urge the con-
trary view, as we have said from the beginning." Hearings on S. 857, supra note 28,
at 294.
control of the military judicial process. In its letter to the subcom-

mittee, the association spelled out its belief "from first to last...
the judicial system of the armed services should not be removed
from command control,"' s noting specifically:
The success of an army depends upon its commander. His is the re-
sponsibility to maintain discipline in the command. So also must he
bear the responsibility for the proper administration of the system
of justice within his command. 32
There were other authorities on military law who opposed re-
form. One of the most notable of these was Mr. Frederick B. Wiener,
one of the post-War period's foremost authorities on military juris-
prudence, and a staunch advocate of command control of the court-
martial system. 8 Mr. Wiener at the start of World War II, as a
young Harvard Law School graduate, was brought into the Judge
Advocate General's Department and quickly rose to the rank of full
colonel. As a staff judge advocate of a large wartime command, Mr.
Wiener saw the system through rose-colored glasses; it was, after
all, at least in part administered by himself. Mr. Wiener recognized
the existence of complaints against the system, however:
I know there are a lot of complaints of improper convictions.
I have no doubt there are a few such. There are a few such in every
system, but I also would like to call attention to one fundamental
truth that Alexander Pope phrased more than two centuries ago: "No
rogue e'er felt the halter draw with good opinion of the law."3 4
Mr. Wiener personally felt that military justice was weakly
administered in World War II, and that its defendants were shown
"too much sympathy at the expense of discipline of the Army.""3 He
cited Swain v. United States"6 for the noteworthy proposition that
it was unconstitutional to limit the power of the President of the
United States in the appointment or control of courts-martial. Tak-
ing the law member off the court and not permitting him to vote, he
81 Hearings on S. 857, supra note 28, at 294.

82 Id. at 295.
83 Mr. Wiener has been appellate counsel in a number of significant military
cases before the Supreme Court of the United States and lower federal courts since
World War II. He has testified before numerous congressional hearings on military
law, and has written extensively on military law. See, e.g., Mr. Wiener's articles on
the application of constitutional due process to servicemen in the Harvard Law Re-
view, note 2, Ch. I supra. See also his ultra-conservative slam at the newly enacted
Code of Military Justice, in F. W=NER, Tnm UNiFORM CODE Or MrriTARy JUsTICE
(1951).
85 Id. at 135.
8 165 U.S. 553 (1897). For a discussion of this case, see text accompanying
note 50, Ch. I supra.
opined, 8was
7
a "retrograde step" and would not work in either peace
or war.
Mr. Wiener also objected to the creation of the Court of Mili-

tary Appeals on the basis first, that it won't "work in time of war"
and secondly, it would be "a heaven for ...lame ducks."" He was,
on the other hand, much more impressed with the idea of having the
nation's top military court comprised of military officers. Wiener
further believed that the imposition of sentence in the military sy-
stem should not be compared with civilian precedents in 3this regard
9
"because their objects are so diametrically opposed." To Mr.
Wiener the civil law aimed at restoration of the offender to civilian
status, while the object of military sentencing was to "act as a deter-
rent, to give the first offenders such a slug that others will profit by
40
that example and not do likewise." Mr. Wiener gave an example
of how his theory worked in regard to the offense of "jeep stealing":
This offense can be endemic if it is charged under A. W. 96 and sent
to a special court. But lay the offense under A. W. 94 as the mis-
appropriation of military property, refer it to a general court, and
hand out sentences of 3, 4, and 5 years, and you stop it. That kind
of a slug will shortly teach even the most obtuse GI not to go joy-
41
riding.

88 Id. at 132, 137.
39 Id. at 140.
40 Id.
41 Id. An interesting insight into the military mind may be illustrated at this point,
utilizing the testimony and attitudes of Mr. Wiener toward military justice in 1949.
At that time he could see no fault with the system, for indeed he had been a part
of it as a full colonel. Thus, in part, it was "his" system, and he still strongly iden-
tified with it as late as 1949, despite the overwhelming evidence of its fraudulent
nature which was then available. But compare his testimony before a Senate Subcom-
mittee in 1962, after Mr. Wiener had fought the military system through the federal
appellate courts for 12 years, not as a full colonel in the Army, but as a prac-
ticing attorney and as an advocate, and thus managed to get a somewhat more
objective view of military justice. Due to the harshness of the system, Mr. Wiener
was to testify in 1962, "these people are just not equipped to carry on a general
criminal jurisdiction." Hearings Pursuant to S. Res. 260 Before the Subcomm. on
Constitutional Rights of the Senate Comm. on the Judiciary, 87th Cong., 2d Sess.,
at 779 (1962) [hereinafter cited as Hearings Pursuant to S. Res. 260]. He further
opined that military boards of review (made up of military judge advocates) offered
no help whatsoever to an accused. "I no longer take retainers before Boards of Re-
view because it is a waste of my time and of my client's money." Id. at 782. He
further testified in 1962 that the law officer program initiated by the Army in the
late 1950's, wherein only highly qualified individuals experienced in military justice
were appointed as law officers, was the single greatest improvement under the Uni-
form Code; and he further opined that the military services themselves would never
"stamp out the endemic existence of command influence" without the supervision of
the United States Court of Military Appeals. Id. at 780. See generally id. at 778-82.
UCLA LAW REVIEW [Vol. 18: I
Mr. Arthur E. Farmer, Chairman of the Committee on Military

Law of the War Veterans' Bar Association,42 was of a different
frame
of mind than Mr. Wiener. Mr. Farmer felt that most World
War II
military courts believed that anyone who appeared before
them was
guilty. He testified that he had heard officers comment
that an ac-
cused would not be brought to trial unless he were guilty.
He also
stated that during his wartime experience as a lawyer involved
in
the trial of military cases it was common knowledge that
military
commanders urged their courts to impose maximum sentences.43
In referring to Article 37 of the Uniform Code of Military
Justice, which was intended to outlaw command influence in
military
trials, Mr. Farmer was of the opinion that the proposed
Article was
not nearly strong enough to do the job for which it was intended.
He
also stated that there was "absolutely no way of proving
an officer
guilty of a violation of Article 37 unless he is a hopeless
idiot."44 As
pointed out by Mr. Farmer, the commander more often
than not
will discuss the court-martial situation in the privacy of
a dinner
table conversation, with only a few select officers present,
and he
need not then discuss the case in great detail. He generally
need only
mention the prevalence of the type offense charged against
the ac-
cused, and that it is a matter of concern to him, and follow
it up
perhaps with a knowing look, a gesture of the head or hand,
or any
other mannerism to emphasize his point.
Subordinate military officers choose to listen very carefully
to
their general's dinner table conversation, and they quickly
attune
themselves to his message wherever it is delivered. The
following
day when these same officers are sitting upon the court-martial
duti-
fully sworn to try the case of the accused in accordance with
the law,
the evidence and their own good conscience, they are, of
course, at
their judicial best. Out of loyalty to their commander, however,
they
can usually find their way clear to convict and, as Mr. Wiener
sug-
gested, to "slug" the defendant with a severe sentence
in order to
deter others and in order to permit the commander leeway
to reduce
the sentence if he should so desire.45 This is not the most
compelling
42 Prior to World War II, Mr. Farmer had practiced
law in New York for 15
years. He was drafted in World War II and served
as an enlisted assistant prosecutor
in a judge advocate office in New Guinea. He was co-author
with Mr. Richard H.
Wels of a highly detailed and critical analysis of
the wartime administration of
military justice in the Army. See Farmer & Weis,
Command Control--or Military
Justice?, 24 N.Y.U.L.Q. REv. 263 (1949), inserted in
Hearings on S. 857, supra note
28, at 63.
43 Hearings on S. 857, supra note 28,
at 87.
44 Id. at 90.
45 Id. at 140.
evidence upon which to convict a military commander of the offense

of jury fixing.
Brigadier General Franklin Riter, a judge advocate reserve
officer, gave the Subcommittee a keen insight into the administration
of World War II military justice.4" At the time of his testimony,
General Riter had engaged in the private practice of law for thirty-
five years, and had served as a judge advocate reserve officer for
twenty-six years. During the War years General Riter served as
senior judge advocate on the European Theater of Operations'
Board of Review in London, England, and as such sat on hundreds
of court-martial appeals. He testified that there was indeed a need
to review the age old concept that an American soldier contracts
away his constitutional rights upon entry into his nation's armed
services.47 General Riter felt that substantial reform was necessary,
and he favored the creation of a civilian court of last resort for mili-
tary cases to effect this reform. He further opined that the court
should be termed a "Court of Military Appeals" as opposed to
a "Judicial Council" (as preferred by the military), in order to
convince the public that military courts are not "drumhead" ar-
rangements, but true judicial organs "and not mere convenient
administrative creatures of a commanding officer." 48
General Riter's most farsighted criticism of the system, how-
ever, pertained to the proposed Article of the new Code outlawing
command influence, Article 37. As Mr. Farmer before him, General
Riter was well enough aware of the needs of the system to realize
that this Article, even if considered with other reforms contained in
the proposed Code, was insufficient to accomplish true reform. He
recommended that teeth be put into the Article:
I proposed before the House committee that there be written into
that [Article] a penal provision making a violation of that indictable
in the United States District Court, and I have had no occasion since
that time, upon further reflections, to change my opinion on that one
49
bit.
General Riter was thus stating what Mr. Farmer and others of his
46 General Riter graduated from law school in June, 1910, and was a member
of the bars of New York, Oregon, California, Utah, and Texas. He was commis-
sioned in the JAGR in 1923 and called to active duty in 1941 in the grade of
lieutenant colonel. He was promoted to brigadier general on August 28, 1947, and
relieved from active duty on August 31, 1947. At the time of his testimony before
the Senate Subcommittee he was engaged in the private practice of law in Salt Lake
City.
48 Id. at 187.
49 Id. at 173.
time and since have recognized as a glaring loophole in the post-War

effort to reform military justice. While command influence was to
be technically outlawed in Article 37, there was no real hurdle placed
in the path of a commander who wished to ignore the Article, for the
truth was that, as Farmer suggested, it was almost impossible to
prove, and secondly, since its violation was punishable only by
trial by court-martial, it was in fact not punishable at all. No mili-
tary commander would, for example, court-martial another com-
mander for the offense of maintaining discipline within his
command, even if proof of the offense were literally hanging from
the walls. Riter and Farmer realized that if Congress wanted to
legislate meaningful reform, and truly intended to eradicate the
practice of command control of the military judicial process, it would
have to make the offense triable in federal district court.
Mr. William J. Hughes, Jr., President of the Judge Advocate
Association, appeared before the Subcommittee as a staunch advo-
cate of command control.o Mr. Hughes had sent out almost 3,000
questionnaires to former judge advocates, and out of the 645
responses, the great majority were against civilian control of the
Army's judicial processes. On the basis of the questionnaires Mr.
Hughes testified that the American people had gone just about far
enough "in protecting the basic rights of an accused,"'" and if we
did not retain military authority over this phase of military disci-
pline, we might lose all. According to Mr. Hughes, if we take the
power to punish away from the military, "we will destroy discipline,
and eventually the power to command. 6' 2 The judge advocates polled
were disturbed over other aspects of the Uniform Code. There was
so much civilian control, for example, "that it [was] a misnomer to
call it a code of military justice,""5 and the proposed Code was writ-
ten "by some fuddy-duddy who never saw a day in the field with
troops and certainly no combat. 6' 4 In Mr. Hughes' view the pro-
posed Uniform Code was a dangerous instrument, and should it be
enacted into law, every judge advocate should resign. 5'
Major General Thomas H. Green, the Judge Advocate General
50 Mr. Hughes had been a member of the Regular Army Judge Advocate
Gen-
eral's Department in World War I, and resigned his commission in
1922. He reen-
tered military service in 1941, and subsequently became Assistant Chief
of Military
Justice in the office of the Judge Advocate General. Still later he became staff
judge
advocate in various camps in the United States and in the Pacific.
52 Id. at 228.
5 Id.
54 d.
55 id. at 233.
of the Army, was another witness who favored molding military

56 He observed
justice to further the mission of the military services.
in mili-
that the Vanderbilt Committee Report did find some defects
and
tary justice, but that these defects were cured by the Elston
by
Kem bills of 1948," a hastily written military Code sponsored
7
noted
the military and enacted by Congress in 1948. General Green
legislation, commanders were expressly
that under the Elston-Kem
influence
forbidden to censure, reprimand, admonish, or unlawfully
with respect to their judicial func-
a court or any member thereof
8 He specifically objected to the Uniform Code's requirement
tions."
of last
for lawyer defense counsel, the creation of a civilian court
of power to military boards
resort for military cases, and the granting
facts as well as on the law.
of review to reverse verdicts on the
as established under
General Green believed that a Judicial Council,
and
the Elston-Kem bills, comprised of "experienced" general officers
should continue as the court of last
men of "mature judgment" 59
resort for military cases.
Professor Morgan has noted that the military service's attempt
the
to forestall real reform of military law by the enactment of
almost absolute control of military law
Elston-Kem legislation left
in the hands of the military. Professor Morgan stated that the Uni-
6°
the
form Code, which was enacted substantially in the form before
Subcommittee in 1950, effected real reform, far beyond that con-
one
tained in the Elston Act. It was clearly reform, but it was
of the system of
blended with compromise. The actual operation
was left com-
military justice, much to the dismay of reformers,
pletely in the hands of the military commander. Legislative checks,
however, were built into the system. Command influence was theo-
as
retically outlawed,6 and accused soldiers 2were to have lawyers
defense counsel in general courts-martial. They were to be tried
before courts with a legally qualified judge,' and a civilian Court
of Military Appeals was to exercise final appellate authority over
the system.6 4 Morgan noted, however, that under the Uniform Code
the military commander still retained many powers that could in-
on
6 General Green was appointed Judge Advocate General of the Army
served in that capacity until November 30, 1949.
December 1, 1945, and
57 1948 Amendments to the Articles of War, Act of June 24, 1948, ch. 625, 62
Stat. 627.
58 Hearings on S. 857, supra note 28, at 255-S6.
59 Id. at 258-59.
60 Morgan, supra note 27, at 181.
61 Uniform Code of Military Justice, art. 37.
62 Id. art. 27.
6 Id. art. 26.
64 Id. art. 67.
fluence the administration of military justice within his command,

and, specifically, that he appointed the court members, the judge
and the counsel, and that he retained command over the members
of the court-martial, who in their ordinary professional activities
were still subject to his authority and control. Morgan then issued
a clear warning to the military:
If experience under the Code shows that the influence of command
control has not been eliminated, it may well be that a new
system
will have to be established in which the military will have
control
only over the processes of prosecution, and the defense, trial
and
review be under the exclusive control of civilians. The services
have
the opportunity of demonstrating to Congress that the concessions
made in the Code to the demands for effective discipline do not
im-
pair the essentials of a fair, impartial trial and effective appellate
65
review.
The Uniform Code of Military Justice which became effective

on May 31, 1951, was a compromise between the demands for jus-
tice on the one hand, and the demand for an efficient, well-disci-
plined and fighting Army on the other. The military once more
survived the "war," badly shaken this time, but still in control
of
military justice. But it was a control that was begrudgingly granted
by a suspicious American people and Congress, and a control that
could and would be taken from the military if experience dictated
that it was not being exercised in good faith.
C. The Flexible Manual for Courts-Martial

Apparently unknown to Professor Morgan and other reformers
of the day, military advocates had already laid the groundwork
to
short-circuit the major thrust of the new Code's provision to outlaw
command control of the military judicial process. Military lawyers
realized that the new Code would undoubtedly strike at command
control, and thus steps were taken by the military establishment in
the late forties to legalize control of the court-martial's judicial
functions through the authorization of "pre-trial orientation" of
court-martial members by military commanders and staff judge ad-
vocates.
The basic law prohibiting "command influence" under the Uni-
form Code of Military Justice was to be Article 37. Until 1969 Ar-
ticle 37 provided as follows:
No authority convening a general, special, or summary court-martial,
nor any other commanding officer, shall censure, reprimand, or ad-
monish such court or any member, law officer, or counsel thereof,
e8Morgan, supra note 27, at 184.

with respect to the findings or sentence adjudged by the court, or

with respect to any other exercise of its or his functions in the con-
duct of the proceedings. No person subject to this code shall attempt
to coerce or, by any other unauthorized means, influence the action
of a court-martial or any other military tribunal or any member
thereof, in reaching the findings or sentence in any case, or the action
of any convening, 66 approving, or reviewing authority with respect to
his judicial actions.
The foregoing Article represented the extent of the express con-

demnation of illegal command influence of any type in the Uniform
Code of Military Justice. Both Article 37 and its forerunner, Ar-
ticle of War 88, were products of military draftsmanship, and
neither was written with the purpose of true reform in mind. Under
Article of War 88, only "unlawful" command influence was out-
lawed, and under Article 37 of the Uniform Code, only command
influence accomplished by "unauthorized means" was outlawed.
The history of these Articles, of course, was based in the de-
mand for reform of military law following World War II. The
military saw the necessity for a counterthrust, and under the guise
of reform came Army sponsorship of the Elston Act in 1948,7
which contained what the Army advanced as sufficient reform to
cure all the ills of World War II injustice. The provisions for re-
form of the Elston Act were only skin deep, but in the frenzy of
reform movements then extant, the Act was slipped through Con-
gress as an amendment to the Selective Service Act of 1948,68 and
was to remain on the books until the Uniform Code of Military
Justice became effective in May, 1951.
One of the most misleading sections in the Elston Act, Article
of War 88, on its face "outlawed" command influence. It specifically
prohibited the command censure of court members or counsel for
the performance of their judicial duties, and prohibited commanders
from unlawfully influencing the actions of a court-martial, or any
member thereof, in regard to future cases. The emphasis, however,
66 Uniform Code of Military Justice, art. 37. As to the 1968 legislative change
in Article 37, see note 51, Ch. VIII infra; note 50 & accompanying text, Ch. IX infra.
67 1948 Amendments to the Articles of War, Act of June 24, 1948, ch. 625, 62
Stat. 627.
68 Professor Morgan wrote that there was an understanding among the military
services and the Forrestal Committee that no proposed legislation to amend the
Articles of War would be submitted to the 80th Congress, but that the Elston Bill
was "unexpectedly" offered as an amendment to the National Defense Act and was
enacted by both Houses. See Morgan, Background of the Uniform Code, 6 VAND. L.
R . 169, 175 (1953). In a prepared written statement submitted by Farmer and
Wels to a Senate Subcommittee in 1949, the authors noted that the House but not
the Senate held hearings on the Elston Bill, and that the Senate passed the Bill as
a rider to the Selective Service Act of 1948. See Hearings on S. 857, supra note 28,
at 215.
on the word "unlawfully" was to thwart the entire meaning of the

statute. As noted previously, the President of the United States was
first authorized in 1916 to draft rules of evidence and procedure
for military courts, and this provision was dutifully carried forward
in all subsequent military codes.6 Military officers were to draft
the rules and the President of the United States was only to
promulgate them by executive order, thereby rendering them bind-
ing on all agencies of government. Accordingly, as Article of War
88 prohibited only the "unlawful" influencing of courts in regard
to their actions in pending cases, as distinguished from the outright
prohibition against all influence of any kind in regard to such cases,
the military authors of the Manual for Courts-Martial, U.S. Army,
1949,0 which was to be published as an executive order implement-
ing the Elston Act, seized upon the loophole and thereupon set
about to define areas in which military commanders could "lawfully"
influence actions of courts-martial.
Paragraph 87b of the Manual for Courts-Martial, U.S. Army,
1949, specified that a military commander could lawfully influence
court members and courts-martial in regard to pending cases, in
the following specifics:
A commanding officer may, through his staff judge advocate or
otherwise, give general instruction to a court-martial, preferably be-
fore 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 appro-
priate sentences for designated classes of offenses. The commander
may not, however, directly or indirectly give instruction to or other-
wise unlawfully influence a court as to its future action in a particular
case.
Commanding officers are expressly forbidden to censure, repri-
mand, or admonish a court-martial or any member thereof with
respect to its findings, a sentence adjudged by it, or the exercise of
any judicial responsibility. 71
With one breath, the Army sponsors of the Elston Act seemed
to blow very coldly upon the command control of courts-martial,
and appeared to outlaw it altogether in Article of War 88 of that
69 See 1916 Articles of War, art. 38; 1920 Articles of War, art. 38; 1948 Articles
of War, art. 38; Uniform Code of Military Justice, art. 36.
70 Published pursuant to Exec. Order No. 10,020, 3 C.F.R. 841 (Comp. 1943-48),
reprinted at UNrra STATES ARmy, MANUAL FOR COURTS-MARTIAL (1949) ix.
71 UNnmr STATES ARMY, MANUAL FOR COURTS-MART.AL (1949) II 87(b).
197o] COMMAND INFLUENCE
Act. But with their next breath, the same Army sponsors drafted
the provisions of paragraph 87b of the 1949 Manual which paved
the way for continued pre-trial command orientation of courts-mar-
tial. The reformers who were in the midst of creating the Uniform
Code of Military Justice hardly noticed the Manual provision at
all. The right of the President to prescribe rules, procedure and
modes of proof in court-martial practice, was also duly enacted
into the new law as Article 36 of the Uniform Code of Military
Justice, and thus the stage was set for the military departments to
continue to march on most matters of command influence. Article
37 of the Uniform Code, like its forebearer, Article of War 88, did
not prohibit command elements from influencing courts-martial out-
right. It only prohibited the use of "unauthorized means" to in-
fluence courts-martial. Hence, the drafters of the Manual for
Courts-Martial,United States, 1951,12 prepared a provision whereby
military commanders were authorized to instruct courts on the rules
of evidence, burden of proof, and presumption of innocence, "and
may include information as to the state of discipline in the com-
mand, as to the prevalence of offenses which have impaired efficiency
and discipline, and of command measures which have been taken
to prevent offenses."" The Manual pointed out that except as pro-
vided therein, a convening authority shall not directly or indirectly
"unlawfully influence ... a court as to its future action in a partic-
ular case." 74 The major distinction between the 1951 and 1949
Manual provisions in this regard was that the convening authority
was no longer expressly authorized to inform the court-martial
members of departmental sentence policies.
Thus, despite the best efforts of reform advocates, the bench and
bar and Congress itself to outlaw command control of the military
judicial system following World War II, military advocates were
able to carry the day, at least in part. While a civilian court of last
resort was to be placed over the military departments, and while
legal counsel and judges were made mandatory for all general courts,
the advocates of command control of the military judiciary scored
an even victory in the loose wording of Article 37 of the Uniform
Code, and in the very precise language of paragraph 38 of the 1951
Manual. Under the latter two provisions, command pre-trial orienta-
tion of court members was to continue as a major controversy for
another twenty years in military law, despite the reform intent of
the Uniform Code.
72 Promulgated by Exec. Order No. 10,214, 3 C.F.R. 408, 438 (Comp. 1949-53),
reprinted at MANUAL FOR COURTS-MARTIAL, UNITED STATES (1951) ix.
7'8M.N.UAL Pos COURTS-MARTIAL, UNITED STATzs (1951) g 38.
74 Id.
UCLA LAW REVIEW [Vol.. 18:4
VI. THE COURT OF MILITARY APPEALS-THE BEGINNING
A. The Makeup of the Court of Military Appeals

Mr. Chief Justice Warren, writing in the New York University
Law Review, observed that "some people conclude" that cases ad-
vanced in the name of military necessity override "the strictures of
due process."' The Chief Justice cited such cases as Hirabayashiv.
United States2 and Korematsu v. United States3 as examples of
military necessity in this regard. He noted that in these cases the
Court sustained a program under which some 100,000 or more
Japanese nationals and United States citizens of that nationality,
shortly after the Japanese attack on Pearl Harbor, were forceably
moved from their West Coast homes pursuant to an executive or-
der to areas some seven hundred and fifty miles from the coast,
and placed in isolated camps for the duration of the War. Chief
Justice Warren asserted that in cases of this magnitude the asserted
claim of military necessity by the Chief Executive (or his military
advisers) could never be rejected. Although the United States Su-
preme Court ruled that the removal program was constitutional,
Mr. Chief Justice Warren noted that this "does not necessarily
answer the question whether, in a broader sense, it actually is." 4
The Chief Justice expounded further that if judicial review is to
constitute a meaningful restraint upon unwarranted due process
encroachments in the future in the name of military necessity,
"situations in which the judiciary refrains from examining the
merits of the claim of necessity must be kept to an absolute min-
imum."' The Chief Justice pointed out that cases involving military
defendants were far less likely to receive full review by the Supreme
Court, as opposed to situations in which the military was attempting
to extend its jurisdiction over civilians not theretofore subject to
military law, upon the basis of claimed military necessity. The
Chief Justice was not attempting to state that soldiers were entitled
to second-class constitutional rights, being careful to point out that
soldiers were not "stripped of basic rights simply because they have
doffed their civilian clothes." 6 A factor of utmost importance in
this regard was, in Mr. Chief Justice Warren's words, the creation
1 Warren, The Bill of Rights and the Military, 37 N.Y.U.L. REV. 181, 192 (1962)
[hereinafter cited as Warren].
2 320 U.S. 81 (1943).
3 323 U.S. 214 (1944).
4 Warren, supra note 1, at 193.
5 Id.
0 Id. at 188.
of the Court of Military Appeals to "insure that military justice is

administered in accord with the demands of due process." 7
The Court of Military Appeals, as created by Congress, was
and is a three-judge civilian court of last resort for military cases,
whose members are appointed by the President with the advice and
consent of the Senate, for staggered fifteen year terms of office.
The court exercises statutory appellate jurisdiction over matters of
law in the most serious military convictions and sentences-a juris-
diction amounting to roughly eight percent of all military cases9-
7 Id. The Chief Justice also cited Chief Judge Quinn's opinion on constitutional
law as expressed in United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244
(1960), wherein Chief Judge Quinn opined that servicemen were entitled to the
full protection of the Constitution. Mr. Chief Justice Warren, in further support of
his belief that all was right with military law, cited a 1959 statement of the Army's
Chief of Staff, General Lemnitzer, to the effect that the Army, under the Uniform
Code of Military Justice, had "achieved the highest state of discipline and good
order in its history." Warren, supra note 1, at 189. With regard to the unfortunate
timing of General Lemnitzer's comment on the state of Army discipline, and its lack
of meaning, see Ch. IX inira, relative to the so-called Powell Report, which was
rendered on the same subject and at approximately the same time that General
Lemnitzer made his observation. Mr. Chief Justice Warren apparently had no knowl-
edge whatever of the completely contradictory Powell Report.
8 See Uniform Code of Military Justice, art. 67.
9 Using the year 1966 as a mean, approximately eight percent of all military
convictions were subject to review by the Court of Military Appeals. Out of a total
number of 69,174 military convictions in 1966, only 4,750 cases were subject to pos-
sible review by the Court, and some 64,424 convictions were not. During the same
year, only slightly over one percent of all military convictions (i.e., 796) were in
fact docketed with the United States Court of Military Appeals for review. See 1966
U.S.C.M.A. & J.A.G. Ann. Rep. at 4. Of parallel interest in this regard, early in the
existence of the Uniform Code of Military Justice, the Army moved to separate its
special court-martial jurisdiction (the bulk of its court-martial jurisdiction), from
the supervision of the Court of Military Appeals. Under Uniform Code of Military
Justice, art. 67(b)(3), the Court of Military Appeals may review all cases reviewed
by a board of review, which upon petition of the accused to that Court, and upon
good cause shown, the Court accepts for review. Under Uniform Code of Military
Justice, art. 66(b), the Judge Advocate General "shall refer" all cases involving a
punitive discharge, among certain other cases, to a board of review for review. A
special court-martial may not adjudge a dishonorable discharge at all, and may
adjudge a bad-conduct discharge only if "a complete record of the proceedings and
testimony before the court has been made." Id. art. 19. Early in the existence of
the Uniform Code, the Secretary of the Army directed that no court reporter be sworn
to transcribe a verbatim record of trial in an Army special court-martial. Hence, in
the recollection of the author who was on active duty with the Judge Advocate Gen-
eral's Corps at the time, no Army special court-martial has ever adjudged a bad-
conduct discharge, and thus in turn, no Army special court-martial has ever been
reviewed by either an Army board of review or by the United States Court of
Military Appeals. A contrary practice was followed by both the Air Force and the
Navy, and special courts-martial from these services have frequently adjudged bad
conduct discharges, and convictions from these courts-martial have been reviewed
by both service boards of review as well as by the Court of Military Appeals. The
Army thus successfully divorced its special court-martial jurisdiction from the super-
vision of the Court of Military Appeals, as well as from its own boards of review.
UCLA LAW REVIEW [Vol. 18: 1
and according to its decisional law, extraordinary writ jurisdiction

over the remaining ninety-two percent of military convictions."
Those cases falling under the statutory appellate jurisdiction
of the court include all cases in which a court-martial sentence (1)
affects a general or admiral, or extends to death, or (2) dismisses
an officer or cadet or midshipman, or (3) imposes a dishonorable
or bad conduct discharge of enlisted personnel, or (4) orders con-
finement for one year or more of anyone." Review by the court
is mandatory in all cases involving generals and admirals, or where
a death sentence has been affirmed by a board of review. 12 Review
is discretionary in other cases, upon good cause shown, wherein
boards of review have affirmed sentences extending to punitive
discharge or confinement for one year or more. 3 In a third situa-
tion, as yet of limited application, the court is obliged to review any
board of review decision certified by the judge advocate general
of the service concerned for review by that court. 4
The court's efforts to "insure that military justice is admin-
istered in accord with the demands of due process" 5 have not been
remarkably consistent, nor effective. The first major constitutional
decision of the Court of Military Appeals in this regard came early
in its existence. In the fall of 1951, in United States v. Clay, 6 the
court unanimously announced a holding in keeping with Hiatt v.
Brown's mandate that constitutional due process did not apply to
military law. While the decision was no doubt intended by the Court
to sooth the fears of the Pentagon that a new millennium had arrived
10 See, e.g., United States v. Bevilacqua, 18 U.S.C.M.A. 10, 39 C.M.R. 10 (1968);

Gale v. United States, 17 U.S.C.M.A. 40, 37 C.M.R. 304 (1967); United States v.
Board of Review Numbers 1, 2, 4, 17 U.S.C.M.A. 150, 37 C.M.R. 414 (1967).
In Bevilacqua the Court of Military Appeals ruled it could entertain extraordinary
writs from court-martial convictions not meeting the sentence requirements of
U.C.M.J. art. 67. See also Noyd v. Bond, 395 U.S. 683 (1969), wherein the Supreme
Court based its lack of jurisdiction to review Noyd's post-conviction attack on the
execution of his court-martial sentence by the military (until his case had been
affirmed by a board of review), on the basis that Noyd had not exhausted his
extraordinary writ remedy before the Court of Military Appeals. But see United
States v. Snyder, 18 U.S.C.M.A. 480, 40 C.M.R. 192 (1969), wherein the Court of
Military Appeals, contrary to its express holding in Bevilacqua, ruled it could not, via
extraordinary writ, review a special court-martial conviction which did not meet the
sentence requirement of U.C.M.J. art. 67 for formal court review. The Court noted,
"resort to extraordinary remedies such as those available under the All Writs Act,
supra, cannot serve to enlarge our power to review cases but only to aid us in the
exercise of the authority we already have." 18 U.S.C.M.A. at 483, 40 C.M.R. at 195.
11 See Uniform Code of Military Justice, arts. 66(b), 67(b)(1), (3).
12 Id. art. 67(b)(1).
13 Id. art. 67(b)(3).
14 Id. art. 67(b)(2).
15 See Warren, supra note 1,at 188; text accompanying note 7 supra.
16 1 U.S.C.M.A. 74, 1 C.M.R. 74 (1951).
in the administration of military law, the decision was to have exactly

the opposite effect upon the military. The cause for alarm was that
Judge Latimer, while observing that the serviceman was not pro-
tected by the United States Constitution, held he was protected in
similar manner by the Uniform Code of Military Justice. Judge
Latimer further held that both Congress, in enacting the Uniform
Code of Military Justice, and the Court of Military Appeals, "in so
far as reasonably possible, [intended] to place military justice on
the same plane as civilian justice, and to free those accused by the
military from certain vices which infested the old system."' 7
This was indeed strong medicine for the military, and the re-
action was vigorous disapproval.' But the Court of Military Appeals
apparently meant to carry out its reform. Judge Latimer spelled out
some of the rights which the Uniform Code of Military Justice
granted to servicemen, rights which he termed "military due
process,"' 9 and rights whose violation would, he asserted, serve as
substantial error and grounds for setting aside a court-martial con-
viction. The rights enumerated as constituting the newly created
soul of military due process were the right of an accused: to be
informed of charges against him; to be confronted by witnesses
testifying against him; to challenge court members; to have a speci-
fied number of members compose general and special courts-martial;
17 Id. at 77, 1 C.M.R. at 77.

18 An example of this disapproval was expressed eight years after the Clay
decision in a letter from Major General Stanley W. Jones, the Assistant Judge Ad-
vocate General of the Army, to Hon. Paul J. Kilday, who was at the time the
Chairman of the Special Subcommittee on Military Justice. The Letter of October 8,
1959 noted, among other complaints against the Court of Military Appeals, that "a
number of decisions of the United States Court of Military Appeals have made it
unduly difficult to collect evidence and prosecute military offenders." The General
proceeded to point out in this regard that the stated object of the Court of Military
Appeals is "to place military justice on the same plane as civilian justice," and he
cited United States v. Clay as authority for this quotation. The General then opined
that the "vexing ramifications of this approach on military order and discipline" were
seen in a number of cases wherein the Court sought to apply civilian standards of
criminal process to military situations. The foremost "vexing ramification" was in
limiting a commander's authority to order searches and seizures of property from
individuals suspected of committing offenses to situations where there was probable
cause for the search and seizure. Other vexing ramifications of the Clay case were
cited as pertaining to the warning requirements of U.C.M.J. art. 31, which require
a suspect to be advised of his rights to remain silent before he is requested to make a
statement relating to a suspected offense. General Jones demanded to know "just how
far is Article 31 intended to reach?" Was it to extend to body fluids, for example?
Was it to extend to independent evidence discovered as a result of an illegally ob-
tained statement? The thrust of General Jones' letter thus boiled down to one basic
question: namely, could a "military force . . . perform its mission by applying
standard rules of civilian criminal process" as advocated in United States v. Clay?
The letter is reprinted in 1960 U.S.C.M.A. & J.A.G. ANN. REP, at 181.
19 1 U.S.C.M.A. at 77, 1 C.M.R. at 77.
to be represented by legally qualified defense counsel in all general

courts-martial; not to be compelled to incriminate himself; to have
involuntary confessions excluded from the evidence; to have the
court instructed on the elements of the offense charged, and upon his
presumption of innocence and the burden of proof; to be found guilty
of an offense only when a designated number of court members con-
cur in the finding; to be sentenced only when a designated number
of members vote to adjudge that sentence; and to have a meaningful
appellate review.20
Thus, the court unanimously voted to reverse the Clay convic-
tion where a Navy special court-martial president failed to instruct
the members on the elements of the offense (to which the accused
had pleaded not guilty), the presumption of innocence and the
burden of proof, as required by Article 51 (c) of the Uniform Code
of Military Justice. Judge Latimer noted:
[W]e find the trial of the accused far short of what is deemed es-
sential military justice. In the final analysis, the record as a whole
convinces us that the accused was denied those necessary elements
of military due process by which Congress sought to protect him.2 '
If the treatment that the court afforded the military in United

States v. Clay proved disturbing to the military community, as in-
deed it did,22 its next decision on the same subject, i.e., fair trials in
28
the military, went yet further. At issue in United States v. Lee
was the right of the Court of Military Appeals to reverse a court-
martial conviction where the error complained of was not a "sub-
stantial" error within the meaning of Article 59(a) of the Uniform
Code of Military Justice. This Article, which was readily admitted
to be the governing statute for military appeals, provided that a
court-martial conviction shall not be reversed on an error of law
unless the error prejudices the substantial rights of the accused in
a material way. As noted by the court, the Article stemmed from
the United States Supreme Court's decision in Kotteakos v. United
States,2 4 generally known in American law as the "harmless error
rule." As noted by the court, the popular acceptance of the Kotteakos
rule, and its subsequent enactment into legislation by many states
and the federal government, "grew out of a widespread and deep con-
viction concerning the general course of [appellate] review in Amer-
ican criminal cases, and the fear that our appellate courts in criminal
20 Id. at 77-78, 1 C.M.R. at 77-78.

21 Id. at 82, 1 C.M.R. at 82.
22 See, e.g., note 18 supra.
23 1 U.S.C.M.A. 212, 2 C.M.R. 118 (1952).
24 328 U.S. 750 (1946).
cases had become in truth 'impregnable citadels of technicality.' "25

Under the purview of these statutes, "harmless error" was not to
serve as the basis of reversal action by an appellate court. Only
error which materially prejudiced the substantial rights of an ac-
cused would be recognized by appellate courts as grounds for
reversal.
The question presented, of course, was: What is material error
under the statute? The drafters of the Manual for Courts Martial,
United States, 1951,2 6 which was published with the Uniform Code
of Military Justice for the purpose of implementing the Code, had
conveniently answered the question. 27 The authors of the Manual
dutifully described what constituted "material prejudice" under the
statute in question as follows:
An error prejudicial to the rights of the accused must be held to re-
quire the disapproval of a finding of guilty of an offense, or the part
thereof, to which it relates unless the competent evidence of record
is of such quantity and quality that a court of reasonable and con-
scientious men would have made the same finding had the error not
28
been committed.
Under this restrictive definition of material prejudice, the

military commander was afforded a comfortable buffer zone against
"harmless error" interfering in the administration of military jus-
tice within his command. The showing of "harmless error" is made
most difficult, of course, if the Manual rule is applied, wherein a
court of reasonable and conscientious men would have to agree that
the same finding of guilty would not have resulted had the "error"
not been committed. Especially comfortable to the military com-
mander was the fact that the construction of the "harmless error"
rule foreclosed the Court of Military Appeals from escalating com-
mand influence errors into material (reversable) error in the great
25 1 U.S.C.M.A. at 216, 2 C.M.R. at 122.

26 Promulgated by Exec. Order No. 10,214, 3 C.F.R. 408, 438 (Comp. 1949-53),
reprinted at MAI UAL FOR COURTS-MARTIAL, UNITED STATES, 1951, ix.
27 General Crowder of World War I fame was instrumental in 1916 in first
inserting into military law a provision that would permit the President (and through
him, of course, his military chieftains) to draft rules of evidence and procedure for
military courts-martial. This same statute was faithfully handed down through the
years, and eventually found its way into the Uniform Code of Military Justice. See
1916 Articles of War, art. 38; 1920 Articles of War, art. 38; 1948 Articles of War, art.
38; Uniform Code of Military Justice, art. 36.
28 MANUAL FOR COURTs-MARTAL, UNITED STATES, 1951 87c. Captain Larkin,
USN, in his article When is an Error Harmless?, 22 JAG J. 65 (1968), states that
paragraph 87c was intended by the drafters of the Manual "to have the effect of
incorporating into military law the language of Mr. Justice Rutledge in the majority
opinion of the United States Supreme Court in Kotteakos v. United States, which
discussed and construed the federal harmless error rule then in effect."
majority of cases, for it would be exceedingly difficult in most situa-

tions to prove material prejudice in such cases. For example, it
would be difficult for defense counsel to prove that a dinner table
conversation between his commanding general and his court mem-
bers immediately prior to the trial of the accused resulted in
"material prejudice" to the accused, where the only evidence in the
case revealed that the general told the court members he wanted to
see full justice done in the case, and followed his statement in this
regard, with a long, searching stare at all the court members.
It was this comfortable buffer zone that Judge Brosman and
Chief Judge Quinn rejected in the Lee case. At issue in Lee was the
authority of a Navy special court-martial prosecutor to serve as
such after he had conducted an "informal" investigation of the
charges "in order to sign the charges as the accuser."29 Article 27 (a)
of the Uniform Code of Military Justice specifically provides that
the person who served as the investigating officer shall not thereafter
serve in the same case as the prosecutor. While most authorities
would conclude that Article 27(a)'s ban in this regard only applied
to formal investigating officers under the provisions of Article 32
of the Code, wherein more serious charges are formally investigated
prior to their referral to trial by general court-martial, defense
counsel in the instant case alleged that the ban applied equally to
informal investigations leading to the preparation of special court-
martial charges.
Judge Brosman, writing for the majority, held that if the de-
fense counsel- was correct in his interpretation of Article 27(a)'s
proscription, the error involved under the Kotteakos rule, would
at best be only "harmless error" not requiring the reversal of the
case, for the remaining evidence of guilt in the case was most com-
pelling. But Judge Brosman proceeded to note that Kotteakos al-
ready had two recognized exceptions: First, where the error involved
was a "recognized departure from a constitutional precept, and
second, where the error constituted a departure from an express
command of a statute."8 0 Even as worthwhile as the Kotteakos
rule was, Judge Brosman stated he felt that yet a third exception
was in order, an exception which military spokesmen were to
denounce for the next decade as completely destroying the meaning
of the Kotteakos rule, as well as Article 59 (a) of the Uniform Code.
Judge Brosman defined his third exception as follows:
We have in mind here a situation in which the error consists not in
a violation of constitutional or legislative provisions, but involves
29 United States v. Lee, 1 U.S.C.M.A. 212, 214, 2 C.M.R. 1189 120 (1952).
80 Id. at 216, 2 CM.R. at 122.
instead an overt departure from some "creative and indwelling prin-

ciple"--some critical and basic norm operative in the area under
consideration. Such a compelling criterion we find within the sphere
of this Court's effort in the sound content of opposition to command
control of the military judicial process to be derived with assurance
8a
from all four corners of the Uniform Code of Military Justice.
Thus, in the stroke of a pen, Judge Brosman, and Chief Judge

Quinn, who concurred in the opinion, greatly enlarged the restrictive
scope of Article 59(a) in the review of command influence errors,
and in effect nullified the definition of "prejudicial" error as drafted
in the Manual. The decision also was a step toward eliminating the
distinction between military due process as outlined in United
States v. Clay, and constitutional due process as defined by federal
courts. While Clay limited the type of due process accorded service-
men to that which was enacted specifically for their benefit by
Congress, Lee would enlarge the scope of inquiry to include "creative
and indwelling" principles, an enlargement 3 which in effect could
2
reach constitutional due process proportions.
Returning to the Lee facts, Judge Brosman and Chief Judge
Quinn quickly found that "creative and indwelling principles" were
not violated under the circumstances of that case: illegal control
of the military judicial process by command elements was not in-
volved, but rather a pre-trial control that was within the lawful
discretion of military commanders. Judge Latimer concurred in the
preju-
result only, and was never to accept the principle of general 88
by Judge Brosman in Lee.
dice as announced and defined
Experience subsequent to the decisions of the court in Clay and
Lee has shown that the pronouncements by the court were not
declarations of war against the military on the part of the court, as
they were interpreted by the military hierarchy. The decisions were,
on the other hand, restrained, balanced decisions, more of an appeal
to the military for a fair and good faith administration of military
justice than a threat to enforce such an administration by the court.
4
In United States v. Berry8 the Court reiterated the instructional
message of Lee. In Berry the law member of the court-martial
permitted the president of the court to usurp his functions by
81 Id. at 217, 2 C.M.R. at 123.

82 The term "due process" in the constitutional sense includes "creative and
indwelling principles." See, e.g., Cooper v. California, 386 U.S. 58 (1967) ; Pointer v.
Texas, 380 U.S. 400 (1965); Ker v. California, 374 U.S. 23 (1963); Mapp v. Ohio,
v.
367 U.S. 643 (1961); Offutt v. United States, 348 U.S. 11 (1954); Adamson
California, 332 U.S. 46 (1947); Palko v. Connecticut, 302 U.S. 319 (1937); Murray's
Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272 (1856).
83 1 U.S.M.C.A. at 218, 2 C.M.R. at 124.
84 1 U.S.C.MA. 235, 2 C.M.R. 141 (1952).
UCLA LAW REVIEW [Vol. 18:1.
making rulings on evidentiary matters and upon certain defense

motions, in plain contradiction to the provisions of the 1949 Manual.
Judge Brosman, writing for the court, again took pains to review the
doctrine of general prejudice as announced in Lee, and proceeded to
hold that the interference of command or rank with the judicial
duties of a law member under the 1949 Manual, or a law officer
under the Uniform Code of Military Justice, constituted "an overt
departure from some 'creative and indwelling principle' " and ac-
cordingly, reversal was required. 5 The court made no effort at all
to weigh the error under the specific prejudice doctrine of the
Kotteakos rule, but based its reversal strictly upon the criterion
announced in Lee.8 6 Chief Judge Quinn concurred in the reversal
without comment, and Judge Latimer with reservations.
The meaning of Berry was clear. While Clay and Lee were
decisions of liberal jurisprudence, engrafted to otherwise innocuous
factual situations, asking for voluntary reform by the military,
Berry was more of a direct message coupled with a reversal. Berry
was two-pronged: First, it was a warning against continued dis-
regard of statutory norms, wherein military courts tended to take
their judicial functions with slight regard, and tended to place the
law member in roles of secondary importance. Secondly, more in-
directly than directly, Berry was aimed at the elimination of com-
mand control of the military judicial process. But the primary effect
of the decision was to add stature to the position of the military
judge, and to elevate him to equal status with a civilian judge in the
eyes of the military community. In this vein, Berry was but an
extension of Clay and Lee. It was an instructional, premise-setting
decision, one that the Court of Military Appeals felt, perhaps
naively so, the military would follow in a spirit of cooperation and
reform.
85 Id. at 240, 2 C.M.R. at 146.

36 Judge Brosman, in an instructional vein, further informed the military on this
point: "The complete independence of the law member and his unshackled freedom
from direction of any sort or nature are, we entertain no doubt, vital, integral, even
crucial, elements of the legislative effort to minimize opportunity for the exercise of
control over the court-martial process by any agency of command. It follows that
any abdication by the law member of his statutory duties and an attendant usurpa-
tion of those functions by the president-much more directly a representative of the
convening authority-must be viewed with stern suspicion. This view is abundantly
confirmed by both the Articles of War, as amended through 1948, and the Manual
for Courts-Martial, U.S. Army, 1949, and even more convincingly by the legislative
history of the Uniform Code of Military Justice and the relevant contents of the
Manual for Courts-Martial, United States, 1951." 1 U.S.M.C.A. at 240, 2 C.M.R.
at 146.
T970] COMMAND INFLUENCE
B. The Impact of the Early Decisions on TrialPractice

The acceptance of these three basic, normative decisions by the
military was less than enthusiastic. At the court-martial working
level the decisions were of almost no value. There was no re-
appraisal of policies, there was no discarding of the agency principle
of military law, and presidents of general courts were to continue
their domination of military courts simply because they understood
no other approach to their duties. In short, military commanders did
not read Court of Military Appeals decisions. Staff judge advocates
read them with little understanding, and hence were in no position to
advise their commanders to draw in their horns, so to speak, in
regard to military justice matters. Military justice experts at the
Pentagon read the decisions with disdain, and with an intent to
override the Court of Military Appeals at all costs. Hence, the opera-
tion of the court-martial process, particularly at the trial level,
continued under the early years of the Uniform Code with slight
improvement, if any, over its previous experience.
The reasons for the failure of the system to be influenced by
the Court of Military Appeals are many. First and foremost was the
failure of the court to make itself heard. Decisions like Clay, Lee,
and Berry were primarily decisions of judicial temperament of a
character ill-designed to effect change in a tightly controlled military
environment. A staff judge advocate, as most peacetime military
men, was unlikely to oppose the control of his commander by in-
forming him that he could not lawfully control the judicial processes
of his command. The military commander of 1950 vintage rejected
this type of "nonsense" outright, as did his loyal staff and the entire
military command structure. Instances of isolated judicial tempera-
ment by more independent minded judge advocates at the trial were
87
likely to be met with stern reprisal. Under such circumstances,
37 Drawing from the writer's own experience, one law officer in 1952 who dared
draw the wrath of his commanding general by directing that he appear as a witness
in the trial of a general court-martial pursuant to the request of the defense counsel,
was dismissed from the general's staff that same day, and ordered out of the command
that very afternoon, together with the defense counsel who made the request. Both
of these officers reported to the Infantry Division where I was assigned as an assistant
staff judge advocate following their ouster from their former command. My division
staff judge advocate, a lieutenant colonel who served as a law officer in another
case in another command and who made decisions during the trial of that case ill-
suited to the convening authority, was not only chastised, but was ordered not to set
foot in the geographic territory of the commander concerned during the remainder
of his tour in Europe. As a first lieutenant in Heidelberg, Germany, in the fall of
1951, I was ordered to wait outside the door of the European staff judge advocate's
office for almost four hours, on the mistaken belief by that officer that I had served
as the defense counsel in a recent court-martial that had returned a finding of not
there could be little real surprise that counsel, law officers and others
connected with the administration of military justice in the early
fifties placed any real importance in the reform incantations of the
Court of Military Appeals in such cases as Clay, Lee, and Berry.
The reform decisions of the Court were first recognized and
applied by the various boards of review. Here once again, innocuous
cases were used as vehicles to announce, or at least to recognize,
theories in keeping with the liberal bent of the Court of Military
Appeals. For example, in the Air Force special court-martial case
of United States v. Robinson,8 the Air Force Board of Review
hearing the case, without discussing Judge Brosman's theory of
general prejudice, reversed a conviction wherein the president of a
special court-martial had twice adjourned court proceedings to dis-
cuss the case with the wing legal officer. The Board of Review
branded this conduct as "presumptively fatally prejudicial." 9 An
Air Force Board of Review in 1953 was perhaps the first appellate
agency to make use of the term "command influence" in modern
military law. In United States v. Burke, the Board of Review cited
Lee and Berry as standing for the proposition that the "court must
be free from command influence at all times." 40 The Board, however,
affirmed the conviction involved. In the Army court-martial case of
United States v. Phillips,41 an Army Board of Review recognized
the pronouncement of the Court of Military Appeals in Berry, but
after searching the record found no evidence of "command control
of the military judicial process. 42
It was not until 1953, however, that
a board of review first
applied the theory of general prejudice as announced in Lee and
Berry in a case of importance. In United States v. Ferguson,8 the
staff judge advocate, shortly before the court convened for the trial,
guilty. When he discovered that I was not the "culprit," his only remark was
"Send
Lieutenant Wells in here l"In more than one case in which I served as counsel in
the early 1950's, immediately prior to the trial of the case, opposing counsel,
the law
officer, every member of the court-martial and I were paraded into the office
of a
regimental commander in whose regiment the trial was to take place (usually
in a
converted mess hall) and stood at attention while the regimental commander
intoned
last minute instructions from Heidelberg, generally to the effect that the
state of
discipline within the command was exceedingly bad, and specifically, that there
was
no place in the Army for convicted thieves or other felons who had committed
offenses involving moral turpitude. Needless to say, convictions and the imposition
of maximum punishments usually followed such seances.
883 CM.R. 525 (1952).
89 Id. at 528.
40 7 C.M.R. 745, 749 (1953).
41 9 C.M.R. 186 (1952).
42 Id. at 200.
48 11 C.M.R. 251 (1953).
addressed a pre-trial conference composed of the convening author-

ity, the eight members of the court-martial that tried each defendant
involved, and the law officer. The case involved multiple accused
who were prisoners in the post stockade, and who had "mutinied"
and were so charged. Wishing to nip recurrence of such mutinies
in the bud, the staff judge advocate addressed the meeting, stating
that the stockade had dissident elements who were unhappy. He
stated that this group was "dangerous within the stockade;" and
that it was necessary to handle this type of case "expeditiously
and . . . firmly." 44 Otherwise, he continued, "we aggravate the
situation" and produce a "reasonable likelihood that 4further out-
5 After the
breaks or disturbances will occur in the stockade.1
staff judge advocate had thus poisoned the well, the court-martial
proceeded to convict each accused of mutiny, and adjudged sen-
tences ranging from ten to thirty-five years imprisonment in each
case.
The Army Board of Review heard the matter and reversed the
convictions because of illegal command influence. The Board held
that the pre-trial comments of the staff judge advocate, under the
circumstances, were tantamount to comments of the convening
authority himself, and had, thus, deprived the defendants of a fair
trial as well as divested the court-martial of jurisdiction. The Board
further held:
As has been stated by the United States Court of Military Appeals
on several occasions, this appears to fall into that category of funda-
mental principles underlying the purpose and spirit of the Uniform
Code of Military Justice as enacted by4 6 Congress, and must not be
transgressed by the military authorities.
VII. THE COURT AND BOARDS OF REVIEW IN COMMAND

INFLUENCE CASES
Despite the reform spirit of the Uniform Code of Military

Justice, military commanders continued after its passage to exert
influence on both the conviction and, more often, on the sentencing
phase of courts-martial. While the former, less prevalent' practice
occurred mainly on overseas stations, the commander could influence
44 Id. at 253-54.
45 Id. at 254.
46 Id. at 260.
1 See text accompanying notes 14-35 infra. See also United States v. Gordon, 33
C.M.R. 489 (1963); United States v. Carter, 9 U.S.C.MA. 108, 25 C.M.L 370
(19 8).
.UCLA LAW REVIEW [Vol. 118:1
the severity of sentences of any court martial through pre-trial

orientation of court members as sanctioned by the Manual
for
Courts Martial. The reaction of the Court of Military Appeals
to
both types of influence was less than firm.
A. The Thrust of Command Influence Cases: Pre-Trial Orienta-

tion of Court Members
In United States v. Borner,2 the defense alleged upon appeal
that the staff judge advocate and the convening authority addressed
prospective court members prior to trial, and that the remarks
of
the staff judge advocate violated paragraph 38 of the Manual
for
Courts-Martial,United States, 1951, "by stating that his office
re-
viewed each case carefully before sending it to trial 'so that only
the
real good cases will come before you as members of the court.' "
This statement, while indicative of the current practice at the
time,
unfortunately was not raised at the trial of the case, nor was it
cor-
roborated by government affidavits, nor by those submitted by
court
members. The Court of Military Appeals, speaking through
Chief
Judge Quinn, far from treating the matter as jurisdictional, refused
to consider it, and castigated defense counsel concerned as
"wholly unworthy of belief" for not raising being
the issue at the trial of
the case inasmuch as he admittedly had knowledge of it at that
time.
The reluctance of the Court of Military Appeals to dive into
the cold water of command influence cases was beginning to appear.
The military itself was apparently not making a serious effort
to
comply with the spirit of the Uniform Code, and the Court's willing-
ness to give them "one more opportunity" to set their own house
in
order could have been misread by the firmly entrenched military
career lawyer as an invitation by the Court for the military to
con-
tinue its old ways. The failure of the Court to speculate in Borner
as to why a military defense counsel might reasonably fail,
or it
should be said, fear, to raise issues of command influence at the
level in military cases, reflects lack of insight on the part of the trial
Court
into the reality of military practice. Then as now, the fear of
mili-
tary defense counsel to raise command influence allegations
at the
trial level was and is one of the most substantial failures of the
Uni-
form Code. The fear is not unreal, and never has been. Career
officers may well be ruined if they dare raise such an issue.
The
only hope for success is to raise the issue to such a high level
of
notoriety that the military dare not take reprisal action against
2 3 U.S.C.M.A. 313, 12 C.M.R. 69 (1953).

8 Id. at 315, 12 C.M.R. at 71.
4 Id.
counsel for fear of public censure. Most career defense counsel are
not prepared to make such an effort in their cases. Others fear that
if they do, they will lose, subjecting themselves to even worse repri-
sal. Still others, perhaps the great majority, have neither the cour-
age nor the expertise to execute such a venture.
For those officers who raise an issue of command influence, and
who fail to insulate themselves from command reprisal, the ax is
sure to fall. The commander concerned may note in the counsel's
next efficiency report that he is an excellent officer, but of limited
imagination and lacking in drive. He may state that the officer con-
cerned tries very hard to produce acceptable results but generally
falls below expected standards. The criticism that a commander may
level at a military lawyer in a situation of this nature are designed
solely to punish the officer concerned for stepping out of line in
military courts. The officer concerned is thus "low rated" and may
well fail to be promoted along with his contemporaries at his next
promotion period. At no time will the true reasons for his low ratings
be listed on the reports, for it is illegal to low rate a defense counsel
for his defense of a military case. Unfortunately, it is very difficult
for a defense counsel to force his superiors to remove an offending
efficiency report on the basis that it has been rendered in spite
against him. Accordingly, many able lawyers in the military service
fall into step with the system, and rather than subject their personal
integrity to the breaking point, soon convince themselves that it is
unethical to raise matters of command influence against their
"client," i.e., their military commander who theoretically calls upon
every military lawyer within his command for legal services.
Young reserve officers, on the other hand, who are on active
duty for only three or four years, often have the desire to raise the
issue; they raise the great majority of command influence cases.
These officers, however, while dedicated to the highest of legal prin-
ciples, are often inexperienced, are not familiar with military custom
and practice, and are without the military background required to dig
out the basic facts that are necessary to prove this type of allegation.
For example, this type of officer has little contact with military units
other than his own office. He generally knows no first sergeants by
name. He knows no supply sergeants, nor tank gunners, nor company
cooks who can pass along vital information to him. He gets absolutely
no cooperation from officers at his own headquarters who view him
as disloyal and disagreeable, a misfit who would bite the hand that
feeds him. He is unable to obtain shorthand notes of commanders'
conferences, where command tongues are known to slip rather often
in regard to pending court-martial cases. In short, he gets no help
from anyone, and more often than not, finds himself assigned to dis-
UCLA LAW REVIEW [Vol. 18:l
agreeable tasks. He is bullied by his own judge advocate superiors,
and looked down upon by his contemporaries who seek to please
those superiors. While his efficiency report is usually meaningless to
him, his present job assignment is of importance. He may thus be
threatened with an assignment to Vietnam, or to Korea, or to a less
desirable post in the United States. He may be placed in job assign-
ments in his own office that greatly demean his own ability, that do
not involve trial work, or do not involve legal work at all. This is,
of course, a spirit breaking process, and only those with a high de-
gree of courage and integrity can hope to weather this storm.
Hence for the Court of Military Appeals in Borner to criticize
military defense counsel as being "wholly unworthy of belief" in
a command influence allegation for not raising that allegation at the
trial level was not perceptive criticism on the part of the court.
Contrary to the court's observation in this regard, military defense
counsel at the general court-martial trial level who raise such issues,
even for the first time on appeal, are generally officers of consider-
able character, and therefore very worthy of belief. To the credit of
the Court of Military Appeals, however, Borner was the first and
last time that the Court was to criticize military defense counsel as
being "wholly unworthy of belief" in command influence cases of
any sort. From this point onward, the Court of Military Appeals at
least gave silent recognition to the facts of life involved in the de-
fense of military cases by assigned military defense counsel.
B. The Retention of Thieves in the Military Service

A firmer stand was soon to be taken by the Court of Military
Appeals in regard to pre-trial lectures given to court members by
command agencies. United States v. Littrice,5 a 1953 case that fol-
lowed Borner, was one of these decisions. The decision concerned a
situation where the staff judge advocate read certain command
directives and made comments to the assembled court members im-
mediately prior to the trial of the case involved. A USAREUR
Directive, published by Headquarters, United States Army, Europe
was found to be highly prejudicial. It related to the undesirablity of
retaining convicted thieves or other felons in the military service.
After reading this document, the staff judge advocate remarked that
the court "should not usurp the prerogatives of the convening au-
thority." He further opined that from his own general experience he
5 3 U.S.C.M.A. 487, 13 C.M.R. 43 (193). Judge Latimer, who seldom criticized

the military establishment for going too far in the command control of the judicial
process, wrote the opinion in the case.
"had found that cases were thoroughly reviewed" by the reviewing

authority following conviction. 6
Judge Latimer found that comments such as these could not help
but lessen the court-martial members' appreciation of their own
responsibility for the findings and sentence. He observed that the
most apparent interpretation of the staff judge advocate's statement
in this regard was that the court-martial should give the maximum'
sentence to the accused, "and thus give the convening authority
plenty of latitude in exercising his powers of clemency." The Judge
was also peeved with that part of the USAREUR Directive that
stated that the "retention of thieves in the military reflects adversely
upon the good name of the military service and its self-respecting
personnel." Judge Latimer did not condemn this passage outright,
but noted that it was "one thing to announce a general policy and
yet another to use that principle to influence the finding and sentence
in a particular case.""
The most offensive part of the briefing in Judge Latimer's opin-
ion, however, was a provision in the USAREUR Directive that pro-
vided for notation to be made in officer's efficiency reports reflecting
the nature of their performance of court-martial duties. Judge Lati-
mer noted that while this may be a fine concept, it is put to "a very
questionable use." Judge Latimer also noted that immediately before
the efficiency report provision in the directive was a criticism of
lenient sentences imposed by prior courts. According to Judge Lati-
mer, this was a "veiled threat that those members of the court who
voted to convict an alleged thief and join in sentencing him to be
dishonorably discharged from the service will receive a reward in the
way of a commendation while those who do not will go unmen-
tioned."18 The defendant in Littrice was charged with larceny; Judge
Latimer added that it took little imagination to arrive at the reason
why a finding of guilty was returned and the maximum sentence
imposed.
While the Court of Military Appeals reversed the conviction in
Littrice, its efforts to combat command control of the military judi-
cial process were thereafter to wane. Cases of command control were
to multiply, and as in Littrice, the villain in many of them was the
staff judge advocate himself, who was there to furnish pre-trial orien-
tation to the court members pursuant to the provisions of paragraph
6 3 U.S.C.M.A. at 493, 13 C.M.R. at 49.

7 Id. at 494, 13 C.M.R. at 50.
S Id. at 495, 13 C.M.R. at 51.
38 of the Manual for Courts-Martial.If the fear of trial defense

counsel to raise issues of command influence was a major failure
of the Uniform Code, running a strong second must surely have been
the partisan and prosecution-bent activities of the staff judge advo-
cate.
Under the Uniform Code, the role of the staff judge advocate is
entirely neutral and judicial in effectY He is charged with reviewing
the charges against accused persons prior to trial, and preparing a
pre-trial advice to the convening authority, recommending whatever
disposition he feels is warranted in the case. At the conclusion of the
trial, he is also charged with the responsibility of reviewing the evi-
dence and preparing an objective judicial opinion advising the
convening authority upon the legality of the proceedings, the effect
of any errors in the trial, and the appropriateness of the findings and
sentence. He is not intended, under the Uniform Code of Military
Justice, to be an instrument of conviction or an advocate of the pro-
secution at any stage of the proceedings. It is his neutral character
that permits him to supervise the administration of military justice
within his jurisdiction, including the duty of furnishing advice, guid-
ance and direction to both prosecution and defense lawyers assigned
to his office.' ° If he should turn into an advocate for the prosecution,
it is readily apparent that defense personnel assigned under his
supervision will be far less likely to receive able assistance and mean-
ingful guidance than otherwise; and it is equally clear that if he
should turn into an advocate for the prosecution, one of the major
safeguards of the Uniform Code to assure the fair and evenhanded
administration of military justice at the trial level has been effec-
tively thwarted.
No other provision in the Uniform Code would have effected
true reform of the system more than the provision for an impartial
staff judge advocate at the trial level, duty bound to oversee the fair
administration of military justice. Unfortunately, no lawyer can meet
these specifications. The staff judge advocate is the commanding
general's personal lawyer. He confers with him almost daily on a
wide range of legal matters; the general looks to his staff judge advo-
cate to keep things in line insofar as military justice is concerned.
The staff judge advocate, therefore, cannot be neutral on matters of
military justice. To do otherwise than to implement the desires of his
commanding general would subject the staff judge advocate to serious
question in the eyes of his commander, as well as to questions of pro-
9 See West, Permissible Bounds of Staff Judge Advocate Pretrial Activity, 23

Mr.. L. REV. 85 (1964).
10 Id. & authorities therein cited.
fessional ethics. The staff judge advocate enjoys the complete con-
fidence of his commander. Is he now to expose the same commander
because the Uniform Code of Military Justice charges him with ad-
vising both the defense and prosecuting officers of his office? Could
any staff judge advocate be expected to feed the confidences of his
commander to his defense counsel to use against the interest of his
commander? Could any staff judge advocate be expected to convey
simple legal advice to his defense counsel, and thereby present his
commander with, say twelve acquittals in a row? Would this be even-
handed administration of military justice by the staff judge advo-
cate concerned? If so, would not this administration of justice de-
feat the state of discipline within any command?
The answer to these questions, of course, is obvious. The pro-
visions of the Uniform Code, as well as the opinions of the Court of
Military Appeals, that call for a "fair-minded" staff judge advocate,
and one who is capable of supervising both the prosecution and de-
fense of a criminal case at the same time, are utopian in logic, and
fraudulent in operation. There can never be such a system, especially
in the military, that is "fairly" administered, but this fact has never
kept the Court of Military Appeals from alluding to it as real.
In United States v. Isbell," Chief Judge Quinn was faced with
the same situation that was presented in Littrice. The USAREUR
Directive which had so incensed Judge Latimer's sense of fair play
in Littrice prompted the staff judge advocate of the Army's First
Infantry Division to publish a "Staff Judge Advocate Bulletin" to
all officers and warrant officers of the command. This bulletin pro-
ceeded to discuss various errors allegedly committed by previous
courts-martial within the command. The major "error" involved was
inadequate sentences and improper acquittals. Without referring to
cases by name, the bulletin gave examples of inadequate sentences,
and of some seventeen acquittals, stating that the evidence of record
in twelve of these cases would have sustained convictions. On voir
dire of the court members in Isbell, the president of the court-martial
admitted he had attended meetings within the past four months where
the same subjects had been discussed, and he admitted he had read
both the USAREUR Directive and the Staff Judge Advocate Bulletin
published by the staff judge advocate of the First Division. All but
one of the court members acknowledged familiarity with one or both
documents, but all members denied that they would be influenced or
prejudiced by the documents. Chief Judge Quinn, with Judge Latimer
concurring, affirmed the conviction.
11 3 U.S.C.M.A. 782, 14 C.M.R. 200 (1954).

The windmill had indeed begun to turn. Judge Brosman dis-

sented. If we were right in Littrice, he asserted, "then the view of the
majority must be wrong here."'1 2 If there was a "veiled threat" in
Littrice, he continued, there surely must be the same veiled threat in
Isbell."8 While Judge Brosman, of course, was correct, Chief Judge
Quinn was beginning his long, adventuresome ride on both sides of
the fence; and Judge Latimer was expressing a conservative philos-
ophy that was to mark his opinions for as long as he was to remain
on the bench.
C. The Injustice of the Embarrassed Commander on Foreign

Soil
The thrust of the commander's influence in the great majority
of cases was primarily directed toward the expulsion of the defendant
from the armed services in the event of conviction with a punitive
discharge and adequate imprisonment, but not toward conviction it-
self. The question of conviction was generally secured in advance by
the presence of convincing evidence of guilt. But there was, of course,
the distinct possibility of indirect influence upon the court's verdict
in this regard. In situations where commanders emphasize and re-
emphasize the necessity to deal firmly with certain types of offenses
and offenders, there can be little doubt that not all the influence will
be resolved in the sentencing phase of the case. There is always the
possibility that courts will be more prone to convict an offender who
is charged with violating one of their commander's pet peeves. In
situations of this nature, where there is reasonable doubt, courts could
easily resolve the doubt in favor of conviction, and thereby support
their commander's program to crack down on barrack's larceny, or
the high AWOL rate, or whatever it might be. But admitting to this
fallibility, there is still little evidence of cases wherein military com-
manders have deliberately, in advance of the fact, set about to secure
the conviction of a military defendant. Most commanders either do
not feel the necessity to resort to this practice, or else feel that their
courts are already sufficiently oriented toward conviction to require
little or no interference from them in this phase of the case. Hence,
the great majority of command influence cases involve situations
where commanders attempt only to control the sentence phase of the
case.
There are situations, however, where there is a necessity to con-
trol the findings stage of a case. These cases exist primarily in
overseas situations, where commanders are embarrassed by the con-
12 Id. at 789, 14 C.M.R. at 207.

18 Id.
duct of an offender before a host nation. They involve situations

where the image of the United States and its relations with a friendly
foreign power may suffer unless the offender is quickly brought to
trial, convicted and given an appropriately severe sentence. Many
American military commanders and their staff judge advocates have
been willing to fill the gap in these instances, and undertake what-
ever steps are necessary to assure conviction.
United States v. Hurt," a 1958 case, is a case in point. In this
case, a five year-old Okinawan girl, Yumiko Nagayama, was found
in an abandoned Okinawan quarry off a coastal road bordering the
China Sea at about 7:00 a.m., September 4, 1955. The little girl was
dead. She was bloody, bruised and only partly clad; there was
brutal evidence of rape.1"
Sergeant Isaac J. Hurt, a thirty-one year-old unmarried, World
War II veteran, owned a 1948 Ford sedan, unpainted on top and
green or slightly bluish in the lower part. It was unkept in appear-
ance and made a lot of noise when driven. At noontime on September
3, the day of the little girl's murder, Sergeant Hurt departed from
his unit on Okinawa in civilian dress. According to a male com-
panion, who was with him at this time, he wore a pair of blue
checked trousers and a white polo shirt with short sleeves. According
to the same male companion, he also had an extra shirt, a greyish
Hawaiian shirt, on the front seat of his car at the time of his de-
parture. The same witness testified that the car's door handles were
broken, and that it had green plaid seat covers.
During the afternoon of September 3, Sergeant Hurt drank beer
and smoked "Luckies" at the Ichiraku Cafe in Yaka. The waitress,
Yoshiko, was a prostitute who had previously engaged in professional
relations with the Sergeant, whom she knew only by nickname.
Sergeant Hurt departed from the cafe in his car at about 4 or 4:30
p.m., headed toward the town of Ishikawa, and arrived at the
New Paradise Cafe in Ishikawa between 4 and 5:00 p.m. Together
with two marines and Kiyoto, a waitress, Sergeant Hurt consumed
thirteen bottles of beer. At the time the Sergeant was ready to depart
the New Paradise Cafe, he discovered he had lost the keys to his car.
One of his marine drinking partners wired his car so Hurt could
start it without a key. The time was about 7:30 p.m.
Not too far distant from the New Paradise Cafe, that evening
Mitsuru Yamashiro, an eight year-old Okinawan boy, saw an Ameri-
14 9 U.S.C.M.A. 735, 27 C.M.R. 3 (1958).

15 Post trial review of the staff judge advocate at 15, United States v. Hurt, C.M.
389,037 (1955, unpublished).
can car stop near where he was playing. He estimated the hour to be
about 7:00 p.m. The car made a U-turn and stopped. Its driver, an
American, got out of the car and walked to where the victim Yumiko
was sitting, picked her up and carried her to his car. Although it was
dark, Mitsuru looked inside the car and noticed that the seat covers
were white, and that the fenders were green. He stated that the
American wore a white shirt and grey pants, with black vertical
stripes. The American drove away with Yumiko in his car. At Ser-
-geant Hurt's trial, Mitsuru identified his car, which was parked
outside the courtroom, as the car in which Yumiko was abducted.
At about 11:30 p.m. on the night of September 3, Sergeant Hurt
returned to Yoshiko's cafe, where he spent the night. At this time
Sergeant Hurt was wearing a long sleeve shirt of artificial silk and
the same trousers he had on earlier in the day. He appeared to be
drunk, and Yoshiko put him to bed with his clothes on. She testified
that Sergeant Hurt declined to make love to her. She noticed that the
upper parts of his pants were stained red. He arose and obtained a
second pair of trousers from his car and put those on, asking
Yoshiko's maid to launder the stained pair. Later that morning he
took a pan of water to his car and appeared to be washing the back-
seat of the car. Still later, Sergeant Hurt took Yoshiko and another
waitress for a ride in his automobile, and among other places, drove
near the quarry where Yumiko's body had been discovered.
Two days later Sergeant Hurt was questioned by agents of the
Army's Criminal Investigation Division, and executed a written state-
ment wherein he stated he was wearing a long sleeve, white dress
shirt on September 3, and blue trousers without stripe or check. He
stated that he later returned to his unit on September 3 and put on
a long sleeve, brown sport shirt, because the white shirt was dirty.
He said he then visited Yoshiko's home and had sexual relations
with her. He said he then went to Kadema, had dinner and returned
to Yoshiko's home at about 8:30 or 9:00 in the evening, had several
beers and went to bed with her, engaging in sexual intercourse before
going to sleep and again upon awakening. He reemphasized that he
did not change his shirt since putting on the brown sport shirt
slightly after noon on September 3. On the morning of September 7,
Hurt orally admitted to the CID that "when he read the papers
about the little girl's murder, he had the feeling that it could have
been him," but, according to the CID, "evaded" further conversa-
tion on the topic.
Sergeant Hurt's car was searched and bloodstains were found
on a door handle and upon a twenty-yen note found in the car. Hair
strands were also found, which when analysed were discovered to be
of the "same source" as hair from Yumiko's head. Approximately a

week later, on September 13, a pair of bloodstained men's shorts
were found on the beach not too far distant from where Yumiko's
body was discovered. The waistband was 31 inches, one inch in excess
of Sergeant Hurt's waist. Close by the underpants was an empty
Lucky Strike cigarette package.
Because of the public outrage that followed the discovery of
Yumiko's body, and because of three other rape cases involving
Okinawan child victims and American servicemen, General Moore,
the Deputy Governor of the Ryukyuan Islands and the Commanding
General of American military forces on the Islands, on September 16,
long after the finger of guilt had been firmly pointed at Sergeant
Hurt, called a meeting of the hastily formed "Ryukyuan-American
Community Relations Advisory Council." Among the Okinawans
present were the Chief Executive of the Islands, the President of the
Ryukyuan University, the Speaker of the Ryukyuan Legislature,
the Chief Justice of the Ryukyuan Islands, and the editors of several
newspapers located on Okinawa. General Moore, of course, was the
principal speaker at the meeting. He advised the Okinawans that Ser-
geant Hurt was going to be tried by the Americans, and that he would
be given a fair and impartial trial.
General Moore also advised the Council of his abhorrence of
the recent rape cases. He further assured the Okinawans that Ameri-
can moral standards were certainly as high as those of the Ryu-
kyuans, and that acts of this nature were not condoned by Americans.
He explained military trial procedure to the group, emphasizing that
the men involved in the four rape cases would be given a fair trial,
but also noting that "no commander can maintain discipline in his
organization if he countenances violations of the law at any time."'"
General Moore further assured the Islanders that American military
commanders "are very much upset about the situation which exists
on Okinawa right now." he noted:
We . . . are talking this over with our men, explaining the situation
and the feeling of the local populace. We are pointing out that if a
serviceman is charged with committing any offense against a Ryukyuan
at this time, it will be whipped up out of all proportion. The military
police patrols are being increased and we have asked the local council
of post commanders and mayors to get together and talk this 17matter
over to determine how things can be improved in their areas.
Immediately prior to the meeting, the staff judge advocate held

a press conference on the Hurt case and explained military justice
16 9 U.S.C.M.A. at 759, 27 C.M.R. at 27.

17 Id. at 760, 27 C.M.R. at 28.
procedures to the news editors who attended the General's con-

ference. The same staff judge advocate also gave an orientation
speech to the members of the court that was to try Sergeant Hurt,
and assured the court members that no command influence of any
sort would be exerted against them by General Moore. Five days
after the Council meeting, General Moore addressed a staff con-
ference of military officers on the subject of the Hurt case. At this
meeting the General stated that the "righteous indignation" of the
Okinawans had carried them away to the extent of mixing up the
rape cases with such subjects as "civil rights," "human liberties," and
"reversion to Japan." He warned his subordinates
to get their sol-
diers to understand this situation. "Let them know," he stated, that
the offenders in the rape "have done a thing that hurts us," and
"apprise your men of the situation, what the
situation is."' 8
At the trial of Sergeant Hurt for rape and murder, which took
place on Okinawa shortly after the above meetings, defense motions
for a change of venue were denied. Sergeant Hurt, who did not take
the stand in his own behalf, was convicted, substantially on the
evidence as related above, and sentenced to death. Upon post-trial
review of his case, the same staff judge advocate who had held a
press conference on the case, and who had attended General Moore's
speech to the Ryukyuan-American Community Relations Advisory
Council, concluded that the court was "fully justified in finding that
guilt of the accused was established beyond a reasonable doubt."' 9
Upon review by the board of review in the Office of the Judge
Advocate General of the Army, the conviction was affirmed by a
majority of the board, with one member dissenting on the basis that
the evidence was as a matter of law insufficient to establish the guilt
of the accused beyond a reasonable doubt. The sentence was ap-
proved by the majority, and the case was automatically certified to
the Court of Military Appeals under the provisions of Article 67 (b)
(1) of the Uniform Code of Military Justice.2"
Chief Judge Quinn writing for the majority took a lenient view
of the command action in this case, and affirmed the conviction. A
reading of the record, he asserted, "leaves the conviction that General
Moore was not panicked by the civilian community's outrage at
the crimes."'" The Chief Judge stated that the record of command
influence by General Moore was not calculated "to influence the
18 Id at 761, 27 C.M.R. at 29.

19 Id. at 784, 27 C.M.R. at 52.
20 Under the provisions of Article 67(b)(1), the Court of Military
Appeals shall
review all cases "in which the sentence . . . extends to death."
21 9 U.S.C.M.A. at 761, 27 C.M.R. at 29.
court-martial which would try the accused," and accordingly, he

asserted, "there is no basis to support accused's contention that
General Moore asserted command influence upon the court-mar-
tial."22 In similar fashion, Chief Judge Quinn concluded that there
was no basis to assert the staff judge advocate had overstepped the
bounds of judicial fairness in conducting a press conference on the
case (or in orienting the court-martial prior to trial), and that the
accused's trial request for a change of venue was properly denied
by the law officer.
The Chief Judge analysed the evidence presented against the
accused, and concluded that the controlling factors against him were
(1) the identification of the accused by means of his car and clothing,
(2) his calculated lies about the clothing he wore and his asserted
sexual relations with the Okinawan prostitute and (3) the unex-
plained presence of human blood on his car door handle and his
clothing.2 According to the majority, consisting of the Chief Judge
and Judge Latimer, his request for a new trial, based on newly dis-
covered evidence, was without merit. (A subsequently produced
expert for the defense concluded from his examination of the head
hairs of the victim and those found in Sargeant Hurt's car, that it
was not "even possible" that the hairs were from the same person.)
Judge Latimer, usually inclined to support command positions,
was less enthusiastic in his concurring opinion affirming Hurt's con-
viction and sentence to death. He was careful to point out that it was
not his function to weigh the evidence except to state there was a
basis in law
24
to support the verdict, and accordingly, "we can require
no more.
Judge Ferguson in dissent, whose distrust of military com-
manders is classic, failed to assail the more obvious flaws in this
case with his usual vigor. He correctly gauged the effect of the com-
mand influence in the case, and held it to be error. The action of
the command in this case, he stated, "indicates the attitude of the
military in relation to the question involved." He continued:
22 Id. at 762, 27 C.M.R. at 30.

23 See Chief Judge Quinn's summary of evidence, 9 U.S.C.M.A. at 763-74, 27
C.M.R. at 31-42. Aside from the identification o the accused's car by the eight
year-old Mitsuru, a second witness near the scene of abduction at the time involved
testified he heard a child cry out from a passing car. The car was "old" and its
motor sounded "like it was an old car." Its top was grayish in color. Two guards
near the beach where the victim's body was discovered testified they saw a car on
the beach near the place where the victim's body was found, but that the car did
not make a loud noise. A third guard stated he saw an "old" car on the beach,
with a "rounded back." The driver was an American who wore a white short sleeve
shirt. Id. at 770, 27 C.M.R. at 38.
24 Id. at 788, 27 C.M.R. at 56.
Anyone who has served in these important
capacities in foreign lands
realizes the importance which is placed upon
people. . . . There can be no doubt the attitude of the native
from the record that the press
reports of the local papers were conveyed
to the military authorities.
Indeed they reflect that the convening authority,
General Moore, was
fully aware of the situation and its danger. 25
Judge Ferguson commented upon the hair
testimony as being highly
relevant as to whether the accused committed
he was of the opinion that the newly discovered the crime. Therefore,
relevant and might well raise a reasonable evidence was most
doubt should a new trial
be granted, and was of the opinion that
the motion for a new trial
should have 'been granted.
It is most unfortunate that Judge Ferguson
understate his views on the evils of command chose this case to
that the motives of the commanders influence. It is true
in this case were no doubt
pure-to the extent of placating an irate
Okinawan
But whether or not the commanders concerned people and press.
under-cautious in permitting their feelings were intentionally
to overflow and inundate
the defense of this case is not quite as
clear. If one is to proceed on
the assumption that even the appearance
of evil in command influ-
ence cases is to be avoided,2" the Hurt case
is
From an evidentiary point of view, the case overwhelmingly illegal.
is unusually weak. What
is worse, it is reasonably possible that
Sergeant Hurt was innocent
of the charge brought against him, as
he indeed maintained in his
post-trial interview with the staff judge
advocate. As a professional
soldier of extremely low IQ, Sergeant Hurt
could have been panicked
into lying in his pre-trial statement to the
CID, wherein he perhaps
lied about the clothes he wore, when he
changed them, and whether
or not he had sexual intercourse with
the Okinawan prostitute in-
volved in the case. Without these minor
contradictions provided in
his pre-trial statement, however, it would
have been virtually im-
possible to have convicted him on the remaining
testified in his case, as he later did to the testimony. Had he
staff judge advocate during
the post-trial review, the incriminating
red stains on his pants, and
blood stain on his car door handle perhaps
could have been ex-
plained. Even his inconsequential lies to
the CID could have been
logically explained had his counsel seen
fit to place him on the witness
25 Id. at 787. 27 C.M.R. at 57.

28 A host of authority supports
the proposition that the appearance
influence is as much of command
an evil as its actual existence. See, e.g.,
14 U.S.C.M.A. 548, 551, 34 C.M.R. United States v. Johnson,
328, 331 (1964), wherein Chief Judge
citing a series of prior cases, ruled that Quinn,
the "apparent existence of 'command
through the medium of pretrial communication control'
be condemned as its actual existence" with court members, is as much to
and that any doubt in the matter
resolved in favor of the accused. must be
1970] COMMAND INFLUENCE 113
major
stand. Inexperienced military defense counsel might be the
the witness stand. If this were not the
reason why he was kept off
why an experienced defense
reason, then it is difficult to ascertain
in this
counsel, who elected to keep his client off the witness stand
client to converse with and be
most weak case, permitted the same
following the conviction
cross-examined by the staff judge advocate
upon the merits of the case. In any event, absent the veil of suspicion
entirely
concerning minor evidentiary matters, the case of guilt rests
of the defendant's
upon the circumstantial evidence of identification
stated it
car by the eight-year-old Okinawan boy, who incorrectly
had white seat covers (as opposed to dark green plaid seat covers),
even one
and upon the controverted human hair evidence. Indeed,
of trial testi-
member of the Board of Review felt, without benefit
beyond a
mony by the accused, that the case had not 'been proven
reasonable doubt.
It is in this context that civilian standards of justice are badly
evi-
out of tune with the conviction. It is in this delicately balanced
the guilt or innocence of a near simple-
dentiary situation, where
to
minded defendant hung by a thread, that the government chose
injecting command emphasis into the
tip the scales of justice by
case prior to trial. What would have been the verdict had General
Moore failed to broadcast his grave concern for Okinawan-American
to the
relations to the members of his command, or by his appealing
let the Americans handle the
assembled intelligentia of Okinawa to
would be done? What would
case, and to rest assured that justice
impress
have happened had the military not chosen this moment to
Sergeant Hurt, had let
all soldiers of the command that the accused,
the command down, and in fact "hurt us"? Did General Moore's
of
abhorrence reach the court members at all? Was his program
would be forth-
correction, which he assured the Okinawan people
of
coming, effective or not? Was it intended to influence the mind
what was
the command, enlisted as well as officer? And if it wasn't,
it designed to accomplish?
Ser-
Had the court-martial returned a verdict of not guilty in
geant Hurt's case, what would the verdict have done to the Okina-
great
wan-American relationship, which General Moore took such
pains to protect? What would the verdict have done for General
of
Moore, himself? After he had personally persuaded the leaders
Okinawa to let the Americans handle the case, and to rest assured
have
that "justice would be done," what would a verdict of acquittal
done to General Moore's image in the eyes of the Okinawans? Under
the circumstances, would it be unreasonable to suggest that the
court members who tried Sergeant Hurt were aware of these possi-
ble consequences? Would it be unreasonable to suggest that the
court members felt compelled to convict Sergeant Hurt in order to
support and protect their commanding general? In fact,
under the
circumstances, could this court-martial, convened by General
Moore,
under the command of General Moore and sitting in Okinawa,
have
possibly rendered a verdict other than guilty? The question
of good
faith and honest intention in this case appears exceedingly
from the point of view of the military. On the other hand, slippery
given an
irate foreign populace and a delicately balanced case,
it is difficult
to contend that either the General or his advisors believed
pre-trial interference in the case would not effect the verdict. that his
No one
in a military situation of this great a significance would
dare leave
such an element to chance.
If there is doubt to the answers to the questions propounded
above, there is then no question that Sergeant Hurt should
have been
tried in an atmosphere removed from the element of
command in-
fluence that was involved in this case. If he was entitled
to have the
question of his guilt or innocence tried before a fair-minded
court-
martial, composed of impartial jurors, then under our
system of
government, he should be granted a new trial. As it now
stands, his
conviction and sentence to death were affirmed by
the Court of
Military Appeals. The President of the United States,
reduced the punishment to thirty-five years imprisonment however,
as an act
of executive clemency. The reduction was first offered
to Sergeant
Hurt on the basis that he agree never to petition for
parole." This
offer was refused by the Sergeant. Despite his refusal
to deal on
the question of parole, the government apparently did
not relish the
idea of executing Sergeant Hurt, and the sentence was
reduced to
thirty-five years imprisonment without his agreement,
and the case
was closed.
A somewhat different example of injustice-though
of equal
severity-appears in a case that occurred in Europe 2
which the
Court of Military Appeals declined to review.29 In
this case, an
intelligence officer, Captain Svenson, deserted his U.S.
Army mili-
tary command in West Germany in 1964 and drove
an American
jeep across the border into East Germany, where he
asked for and
received political asylum from the East German government.
Cap-
tain Svenson was a naturalized American citizen of
eastern Euro-
pean origin and, at the time of his defection, was rather
heavily in
27 This information was conveyed to the author by

the staff judge advocate
involved in the case.
28 United States v. Svenson, 35 C.M.R. 645 (1965).
29 Petition denied, 36 C.M.R. 541 (1966). An
Army Board of Review had
affirmed the court-martial decision.
debt, addicted to drink and partying, fond of women, and not too
him
highly thought of by his superiors. Yet no one thought to have had
job where he
removed from his highly sensitive intelligence
access to many of NATO's top secrets-until after his leave-taking.
His defection caused great concern to American military intelligence
officials in both Germany and the United States.
De-
Some eight months after Captain Svenson's departure, the
partment of the Army published a message that was distributed
The
throughout Europe down to and including company sized units.neces-
purpose of the message was to emphasize to commanders the
sity of denying access to classified information to drunks, perverts, The
persons heavily in debt, and other untrustworthy individuals.
Sven-
message listed three individuals by name, including Captain recent
son, whose clearance to classified information had caused
Some
concern to the Secretary of the Army and the Chief of Staff. com-
three months after the message was sent to all subordinate
grew
manders in Europe, Captain Svenson's hosts in East Germany into the
tired of his company and expelled him from the country
in Berlin. Captain Sven-
waiting arms of American Military Police
agents and
son was whisked away by American military intelligence to criminal
questioned for many days prior to surrendering him
criminal
investigative agents of the United States Army for usual was
investigative process. During the time that Captain Svenson
for defense coun-
held captive by the intelligence agents, his request
sel was expressly denied, and he was questioned at greatdivulged length,
supposedly about intelligence matters that he may have
to the East Germans. Upon his surrender to criminal investigative order:
agents, Captain Svenson was given a most strange military about
He was not to speak to anyone, including his defense counsel,nor to
the nature of his interrogation by the intelligence agents,
reveal anything that was said by either side during this interview.
At the trial of his case for desertion terminated by apprehen-
sion, and larceny of a military jeep, Captain Svenson's defense Army
counsel alleged that the message from the Secretary of the as
his client" and painted him
and the Chief of Staff "prejudiced
Board of Review made short
subversive, "indeed as traitorous." The
the Board
work of this allegation. Outside of mentioning his name, against
held that the message contained nothing really prejudicial
publicity given to Cap-
him. The Board noted that despite the wide message
of the
tain Svenson's case, and the extensive distribution re-
from the Secretary of the Army, only two of the court membersthat
called reading the message, and that only one remembered was
Svenson's name was listed in the message. The latter member was
excused forthwith by the law officer, and the former member
unsuccessfully challenged by the defense counsel. Under this setting

the Board of Review, perhaps correctly, found that there had
been
no showing of prejudice, or connection between the message and
the
trial of Captain Svenson.
In finding that no causal connection had been shown, the Board
failed to discuss another aspect of command influence case
law-
namely, the appearance of evil. If the appearance of evil is
to be
avoided in this regard, the Board's conclusion, which related
only
to specific findings of prejudice, was somewhat wide of the
mark.
Accepting this oversight by the Board as unintended, the real
evil
of the decision lies in the Board's treatment of the next assigned
error, that of ordering a military defendant not to discuss the
matter
of his secret interrogation by intelligence agents with his military
defense counsel. While this case occurred before Miranda, °
it was
well after Escobedo,8 1 which held that a defendant who is no
longer
the object of a general inquiry, but who has become the "particular
suspect", is entitled to counsel upon his request. When police
pro-
cess shifts from investigatory to accusatory, stated the Supreme
Court in Escobedo, "when its focus is on the accused and its
pur-
pose is to elicit a confession-our adversary system begins to
oper-
ate, and, under the circumstances.., the accused must be permitted
to consult with his lawyer.)8 2
But the government contended in Svenson's appeal that the
military intelligence agents were not questioning Svenson
with a
view toward taking a confession-but only to gain knowledge
as to
the degree of classified information that Svenson had divulged
to
the Russians after his defection. The Board of Review, therefore,
held that the denial of counsel during the interrogation by
intelli-
gence agents following Svenson's return from East Germany
did
not constitute a denial of his right to counsel. The Board noted:
While an accused is entitled, if he so requests, to consult
"during a police interrogation," we are not aware that this counsel
rule in the
military has been extended to intelligence interrogations,
when none
of the information secured at these interrogations, if any,
is brought
out at the accused's subsequent criminal trial on charges
having
nothing to do with classified information or matters.83
Conceding for the purposes of argument that the board concluded
80 Miranda v. Arizona, 384 U.S. 436 (1966).

81 Escobedo v. Illinois, 378 U.S. 478 (1964).
82 Id. at 492. Escobedo was effective only in trials which commenced
on and
after June 22, 1964. See Johnson v. New Jersey, 384 U.S. 719
(1966). Captain Sven-
son's sentence was adjudged on July 9, 1964.
88 35 C.M.R. at 657.
inter-
correctly that Escobedo did not require counsel at intelligence is
sought or divulged
rogations where none of the information
defendant on totally unre-
brought out at a subsequent trial of the
in Svenson's
lated charges, we are still somewhat short of first base
are in fact related, and if
trial. The plot thickens if the charges
is indeed transferred
information furnished to the intelligence agents
doubt that
to prosecution agencies. In this situation, there is little
generally, would
Escobedo, as well as constitutional due process an intelli-
at
require counsel be furnished to a military defendant
defendant. What
gence interrogation especially if requested by the
question:
remains, then, in Svenson's case is the rather important to
way related
Was his interrogation by intelligence agents in any deser-
him for
the charges that were subsequently brought against
jeep? Granted, the government assures
tion and larceny of a military
stumbling block
that there was no connection whatsoever. But the
on this
is the fact that while we have heard from the government
as to whether
issue, we have not as yet heard from Captain Svenson
his secret interrogation by intel-
there was any connection between
against him at his criminal
ligence agents and the charges brought will
told that Captain Svenson
trial. We are stunned when we are has
case, and in fact, that he
not be heard from on this aspect of his
aspect of the case even
been specifically ordered not to discuss this
with his defense counsel!
the
Indeed, there appears to be a clear connection between
agents and
secret interrogation of Captain Svenson by intelligence
in his criminal
the charges that were ultimately brought against him
tried was
trial. For example, one of the charges upon which he was
desertion, the
that of desertion. In proving the military offense of an
element of
prosecution must prove, among other elements, the
In most
intent not to return to military control by the defendant.
evidence.
desertion cases, this element is proved by circumstantial
evidence of
In Captain Svenson's case, what better circumstantial
that,
his intent not to return to military service could be found than
military secrets to a cold war enemy
during his absence, he revealed
jeep with classified
of the United States? Or that he stole a military
of his departure? Or that he was
equipment upon it at the time
trouble, or in need of money
having a drinking problem, or woman to the
intelligence agent assigned
at the time of his departure? Any this
depth on these matters. In
Svenson case would question him in
to assume that American
near post-Vietnam age it is decidedly naive
military intelligence agents would not resort to torture, if necessary, agents
in order to secure information, or to pass it to prosecutorial
if need be,
of government once it was obtained, or to lie in court,
trial.
when questioned on the matter during a criminal
Under the circumstances, to maintain, as did the Board of

Review, that the "simple fact is that this record does not disclose
that this [order not to discuss the intelligence interrogation with
his defense counsel] hampered the accused's defense in any way) 3 4
is to engage in the utmost of judicial speculation and conjecture.
The Board of Review could not possibly find a specific showing of
prejudice under these circumstances, where the defendant was not
permitted to discuss the matter with his defense counsel, much less
make a showing upon the record. Yet this is the very situation that
was sanctioned when the United States Court of Military Appeals
refused to review the conviction upon appeal. Justice Brandeis'
words in Olmstead v. United States3" speak to the failure of
the
Court of Military Appeals as well as to the argument of those who
would advance military necessity as the basis for the affirmance of
this case:
Our Government is the potent, the omnipresent teacher. For good
or
for ill, it teaches the whole people by its example. Crime is contagious.
If the Government becomes a law breaker, it breeds contempt
law; it invites every man to become a law until himself; it invites for
anarchy. To declare that the ends justify the means .. .would
bring
terrible retribution. 86
....
VIII. THE JUDICIAL FAILURE TO CURB COMMAND

INFLUENCE: THE LAST DECADE
Without serious challenge from the Court of Military Appeals,

or from any other agency, the military continued to march through-
out the decade of the fifties with military commanders engaged
deeply in the art of sentence fixing. The cases note an unbroken
refusal of the military commander and staff judge advocate to
comply with the reform spirit of the Uniform Code. Commanding
generals were especially sacrosanct. They engaged openly in plain
violation of the letter of the law, without fear of reprimand or
punishment.' The Department of the Navy engaged in jury pack-
ing ventures; 2 marginal soldiers were funneled out of the Army
via general court-martial conviction in times of lean appropriation
84 Id. at 6S8.
85 277 U.S. 438 (1928).
36 Id. at 485 (Brandeis, J., dissenting).
1 See, e.g., United States v. Bourchier, 5 U.S.C.M.A. 15,

17 C.M.R. 15 (1954);
United States v. Lane, 14 C.M.R. 303 (1954).
2 United States v. Deain, S U.S.C.MA. 44, 17 C.M.R. 44
(1954).
for trivial offenses; 3 secret letters were circulated among court-

martial members critical of light sentences; 4 and general officers
instructed their assembled court-martial members to adjudge ap-
propriate sentences "and get that through your heads."' The De-
partment of Air Force's bad check policy was found to involve
illegal practices, particularly where the "bad check monitor" was
appointed president of the general court-martial that was to try
bad check offenders; 6 and court-martial members were frequently
told and believed that defendants were to be convicted and that
matters of clemency were for the convening authority to decide,
and not for court members. 7 It was painfully apparent that of all
the judges on the Court of Military Appeals, only Judge Ferguson
was to be consistent in his denouncement of the vice of command
influence.
A. Judge Latimer's Swan Song in Command Influence Cases

Judge Latimer wrote his last command influence opinion in
1961. His initial appointment to the bench was soon to expire and
he was not to be reappointed. The case involved was United States
v. Danzine.8 Judge Latimer, writing for himself and Chief Judge
Quinn, sanctioned the pre-trial orientation of court members by a
commanding general and his staff judge advocate that took place
ten days prior to the particular court hearing its first case. Judge
Latimer ruled that the comments of the commanding general and
his staff judge advocate, which were directed at the sentence phase
of the court-martial process, constituted general guidelines to assist
the court in performing its duty, and hence were legal. "The
proscription against improper [military] command control," he
stated, "is not intended to bar responsible officers from appropri-
ately enlightening those who may serve or are serving on military
courts."9 He further stated that he saw no good reason why officers
"should not personally participate in improving the administration
3 United States v. Harthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956); United

States v. Wise, 6 U.S.C.M.A. 472, 20 C.M.R. 188 (1955).
4 United States v. Bast, 24 C.M.R. 405 (1957).
5 United States v. Olivas, 26 C.M.R. 686, 688 (1958). See also United States v.
Navarre, 5 U.S.C.M.A. 32, 17 C.M.R. 32 (1954).
6 United States v. Olson, 11 U.S.C.M.A. 286, 29 C.M.R. 102 (1960).
' United States v. McCann, 8 U.S.C.M.A. 675, 25 C.M.R. 179 (1958); United
States v. Zagar, 5 U.S.C.M.A. 410, 18 C.M.R. 34 (1955); United States v. Daminger,
30 C.M.R. 826 (1960); United States v. Pierce, 29 C.M.R. 849 (1960); United States
v. Jones, 26 C.M.R. 911 (1958); United States v. Coates, 25 C.M.R. 559 (1958);
United States v. Roden, 24 C.M.R. 451 (1957).
8 12 U.S.C.M.A. 350, 30 C.M.R. 350 (1961).
9 Id. at 352, 30 C.M.R. at 352.
of military justice."'" Judge Ferguson's dissent in Danzine for the

first time condemned all pre-trial orientation of court members by
command agencies where court members were instructed as to the
principle of law they were to apply or to the sentence they were to
impose."
Handed down the same day as Danzine was United States v.
Jones, 2 which contained the same split of opinion among the
judges, and involved the same pre-trial orientation as found in
Danzine. An Army board of review affirmed the same orientation
in United States v. Padilla,13
citing Danzine as authority. In a con-
curring opinion, however, one board member, Colonel Crook, la-
mented the sad fact that convening authorities and staff judge
advocates saw fit to give such instruction as was involved in Dan-
zine. Colonel Crook noted that, when this practice was indulged in,
appellate tribunals and appellate counsel spent a great deal of time
and effort in reviewing the matter, sometimes to the great embar-
rassment to all concerned, with resulting harm to the administration
of military justice. He also pointed out that the value of such brief-
ings was indeed slight when compared to the risks involved in
giving them. 14 He did not, of course, refer to the great harm that
such briefings could wreak upon the defendants involved.
10 Id. The remarks of the commanding general in this case, which were re-
produced and attached to the record, covered three pages of legal size, single spaced,
sheets of paper. While many of the comments covered harmless material and out of
focus assurances by the commander that he did not intend to impinge upon the
independence of the court members, there were lengthy passages, as noted by Judge
Ferguson in dissent, to the opposite effect, concerning such subjects as the breakdown
of discipline caused by the imposition of inadequate sentences. Id. at 355, 30 C.M.R.
at 355. The staff judge advocate also made pointed references to the need for the
imposition of stern sentences. This official cautioned the court members against the
imposition of lenient sentences, among other grounds, on the basis of family hardship
to the defendant. "If this idea were widely accepted," stated the staff judge advocate,
"the principle of equal justice for all accused would perish." The staff judge advocate
furthermore, likened mercy for defendants based upon their family responsibilities to
a plea of a seventeen year old youth, convicted of murdering his parents, who would
ask for mercy on the basis that he was an orphan. Id. at 352, 30 C.M.R. at 356-57.
11 He wrote in this regard: "I am of the view that a convening authority may
not lawfully address members of a court-martial with respect to the principles of
law which they are to apply or the sentences which they should impose. Such action
was taken in this case, and it directly violates the mandate of Congress as laid
down in Uniform Code of Military Justice, Article 37, 10 USC § 837. Any attempt
to influence the course of justice before military courts runs afoul of that statute
regardless of the commanding general's motivation, and I fear that our decision
today, ignoring the pervasive influence that any commander's views have on the
independence of his subordinates, simply makes the prohibition against command
control depend upon the cleverness with which he is able to convey his meaning to
them." 12 U.S.C.M.A. at 354, 30 C.M.R. at 354 (emphasis added).
12 12 U.S.C.M.A. 373, 30 C.M.R. 373 (1961).
13 30 C.M.R. 481 (1960).
14 Id. at 485-86.
Judge Paul J. Kilday, a long-time Congressman from Texas

and a member of the House Armed Services Committee that assisted
in the drafting of the Uniform Code of Military Justice, was ap-
pointed in 1961 to the Court of Military Appeals upon the expira-
5
tion of Judge Latimer's term of office. United States v. Davis,'
involving the same pre-trial orientation that was given in Danzine
and Jones was brought before the court soon after Judge Kilday's
appointment. Judge Kilday, who during his few years on the bench
proved to be a lackluster judge who seldom found himself dissent-
ing in any case, wrote the majority opinion in Davis, siding with
Chief Judge Quinn in affirming the conviction. Judge Kilday con-
cluded that the Congress had expressly opted in favor of pre-trial
conferences between commanders and court members. Judge Kil-
day came to this conclusion in the best of legal tradition. Despite
the loud protest that was voiced against the military and the com-
mand control of the court-martial system following World War II,
inasmuch as Article 37 of the Uniform Code of Military Justice
which outlawed command influence was substantially patterned
after existing Article of War 88 without major change, Judge Kil-
day concluded that Congress must have intended to adopt the well-
defined military administrative interpretation of the prior Article,
which unquestionably sanctioned pre-trial conferences of the nature
involved in Davis, Jones and Danzine. As the matter of command
influence was fully aired before Congress at the time of the passage
of the Uniform Code of Military Justice, had Congress wished to
change the administrative interpretation of the old Article, it could
have done so. As it did not do so, and altered Article of War 88 in
"rather unimportant detail" in enacting Article 37, Judge Kilday
reasoned that Congress intended to bless the existing conditions,
and therefore voted to affirm the Davis case.' 6 Judge Ferguson,
singularly unimpressed with Judge Kilday's logic, dissented.
B. The Kitchens Case

The ink was hardly dry on the Danzine, Jones and Davis opin-
ions before, United States v. Kitchens'7 was handed down by the
Court of Military Appeals. Kitchens was strictly anti-military in
content, with Chief Judge Quinn writing the opinion for a unani-
mous Court. The facts of the case reveal that Kitchens and several
of his soldier buddies did some drinking on the night of December
14, 1960, in the town of Columbia, South Carolina, near the Army's
15 12 U.S.C.M.A. 576, 31 C.M.R. 162 (1961).

I Id. at 580, 31 C.M.R. at 166.
17 12 U.S.C.M.A. 589, 31 C.M.R. 175 (1961).
sprawling Fort Jackson training center. Kitchens and his group

shortly fell in with an older man, Billy Stiltner, some ten years
their senior, who had a criminal record dating back to 1951. At
about two o'clock that morning Stiltner suggested that the group
rob a filling station. The entire group went to Stiltner's home to
obtain a crowbar, and eventually five of the group, including
Kitchens and Stiltner, broke into a furniture store. A large safe
was removed from the store, placed in the back of a truck found in
the rear of the store, and was transported from the scene in the
stolen truck. Pursuant to Stiltner's instructions, the group even-
tually dumped the safe in a clump of bushes near the railroad
tracks; but in leaving the area, Stiltner, who was driving the truck,
managed to run into a parked police car. Stiltner then bolted from
the truck and ran away on foot, but the rest of the men, including
Kitchens, were arrested. Stiltner was eventually arrested also.
Kitchens and four of his soldier companions were arraigned before
the Court of General Sessions, Richland County, South Carolina,
on charges of housebreaking and larceny of the safe and truck. The
servicemen were duly convicted and sentenced to three years' con-
finement, but the sentences were suspended and the men were
placed on probation for five years. 8
Kitchens' commanding officer, Captain McCullers, was of the
opinion that Kitchens should be administratively separated from
the service because of the civilian conviction. But he received a
telephone call from the Fort Jackson staff judge advocate who in-
formed him that higher authorities felt that the civilian court sen-
tence was "not adequate." The staff judge advocate pointed out to
Captain McCullers that the defense of former jeopardy would not
bar military court-martial for Kitchens for the offenses of which
he had previously been tried and convicted by the State of South
Carolina. Captain McCullers, true to the agency concept of military
law, studied the accused's case in further detail and decided that
charges should be preferred and then investigated by an Article 32
investigating officer. 9
The Article 32 investigating officer made a thorough investi-
gation and recommended that the ends of justice had already been
met by the civilian prosecution; he formally recommended that the
accused not be tried by court-martial, but rather that he be admin-
istratively separated from the service. 20 These recommendations
were not concurred in by the staff judge advocate who recommended
18 Id. at 590, 31 C.M.R. at 176.

19 Id. at 591, 31 C.M.R. at 177.
20 Id.
trial by general court-martial. The convening authority followed

his staff judge advocate's advice and directed trial by general court-
martial.
About the same time that Captain McCullers received his tele-
phone call from the staff judge advocate, a letter dated January 20,
1961, was circulated to all officers in the grades of Captain through
Colonel stationed at Fort Jackson. The letter was on official Fort
Jackson stationery, bearing the heading: "Office of the Staff Judge
Advocate." It was signed by Robert N. DuRant, Lieutenant
Colonel, JAGC, Assistant Staff Judge Advocate, who was Chief of
Military Justice at Fort Jackson at the time. Chief Judge Quinn
described the letter thusly:
[The letter] set out the charges and the sentences imposed in four
general court-martial cases tried at Fort Jackson since September 1,
1960, and the charges and the sentences adjudged in six cases in the
three-month period before September 1, 1960. Although not indicated
in the letter, the cases were selected from among those tried in both
periods. Also, while the offenses in both sets of examples were not the
same, the letter represented that the cases showed "a considerable
difference in the sentences adjudged since September 1 as compared
with those adjudged prior to that date." Special attention was called
to the fact that a punitive discharge . . . was imposed in only one of
the cases tried after the critical date. But, no mention was made of
the fact, as stipulated at trial, that "in three of the cases . . . the
Article 32 officer recommended trial by special court-martial." Com-
ment was invited on "the reason for this apparent change in the ap-
proach to general court-martial cases within this command." The '21
addressees were assured their replies would "remain anonymous."
Kitchens went to trial on February 24, 1961, and his case was
adjourned until March 2. Upon reconvening, the panel was voir
dired about Colonel DuRant's letter. Each of the six court members
stated he had received a copy of the letter. It was also revealed
that Colonel DuRant during the period the court-martial was ad-
journed had handed each of the court members a second letter, also
carrying the letterhead of the "Office of the Staff Judge Advocate."
This letter was again signed by Lieutenant Colonel DuRant. 22 In
this letter Colonel DuRant stated he had received many replies and
"helpful comments" to his initial letter, and that these replies were
appreciated. He further noted that while none of the addressees of
his first letter had indicated any misunderstanding over the content
of it, the defense counsel had contested the letter in every subse-
quent general court-martial tried at Fort Jackson as unlawful com-
21 Id. at 591-92, 31 C.M.R. at 177-78.

22 Id. at 392, 31 C.M.R. at 178.
UCLA LAW REVIEW [Vol. -18:1
mand influence. To "eliminate any confusion" on this point, Colonel

DuRant stated his letter was only a "personal request for informa-
tion" which had not been directed or approved by the commanding
28
general or the staff judge advocate at Fort Jackson, South Carolina,
a very strange circumstance under the facts of the case.
Three of the six members of the court-martial, when ques-
tioned on voir dire, felt that Colonel DuRant's first letter expressed
an opinion on the "adequacy of sentences adjudged" in previous
cases.2 4 The remaining three members did not understand it in this
light. The "helpful comments" which Colonel DuRant stated he
received from his first letter were requested by trial defense counsel,
but were not surrendered by Colonel DuRant. In a footnote, Chief
Judge Quinn noted that Colonel DuRant subsequently called the
trial defense counsel before him and officially berated him for his
refusal "to live in peace in the office." Following the conviction of
Kitchens, the defense counsel received an efficiency report sub-
stantially lower than he had previously received from Colonel Du-
25
Rant.
In regard to the reprisal action taken against the trial defense
counsel, Chief Judge Quinn, as close to admitting the scope of com-
mand influence as he was ever to come, wrote: "The circumstances
may indeed call for vigorous investigation, and if the allegation is
established, may justify punitive proceedings. 26 Unfortunately, the
"vigorous investigation" called for by Chief Judge Quinn was not
further defined by him. Had he gone one step further and specified
that an investigation be conducted, for example, by the Grievance
Section of the American Bar Association, there might have been
relevance to his remark. But as the comment permitted the Army
to conduct the investigation, it had no significance. There was no
punitive action taken against anyone in the case. In its appeal, the
government had contended that DuRant's original letter was merely
a personal request for information which did not reflect any com-
mand interest at all. Chief Judge Quinn noted that the letter did
purport to be a personal request, but further noted that the letter
itself expressly stated it would be used for instructional purposes
in the administration of military justice. Chief Judge Quinn stated
in this regard: "[I]n our opinion, anyone reading the letter would
conclude it was not simply individual interest that prompted
it ... .,,27 According to the Chief Judge, the letter conveyed "the
23 Id.
24 Id.
25 Id. at 592 & n.3, 31 C.M.R. at 178 & n.3.
26 Id.
2T Id. at 593, 31 C.M.R. at 179.
idea that there is great official disquietude because some accused

convicted of . . . offenses by general court-martial have not had a
punitive discharge imposed upon them.1 28 The Chief Judge added
that the second letter that Colonel DuRant passed out to the court
members during the trial of the case "aggravated, rather than alle-
viated, the import of the original letter."2 9 He stated that the sec-
ond letter attempted to undermine, before the trial of the case, any
defense effort "to challenge the import and influence of the [first]
letter."8 0 The fact that Kitchens and each of his co-defendants
received punitive discharges in their court-martial trials was not
overlooked by the Chief Judge. He noted in closing that the punish-
ments meted out in these cases exactly met the criticism of general
court-martial proceedings leveled in DuRant's letter. 1
C. The Aftermath of the Kitchens Case

While Kitchens did not bring an end to command influence in
the trial of military cases, it did tend to off-set the sharp edge of
Danzine and related cases. Unfortunately, while well-read by mili-
tary commanders, Kitchens was not accepted by the military as a
controlling decision in the command influence area. By the time of
the decision, the waters of command influence law were too murky,
and the messages too mixed for Kitchens to have much meaning
except, perhaps, as an ad hoc warning to the military, coupled with
a direct threat from the Court of Military Appeals, that if the
scales of justice were tipped too far, dire things might happen.
Kitchens also had meaning in another context: it was of course an
excellent example of the bad faith administration of military justice
by the military.
The Court of Military Appeals reversed two additional cases
from Fort Jackson which involved the same command influence
error raised in Kitchens.12 Otherwise, the effect of Kitchens was not
permanent. It was quickly followed by United States v. Wood,"a
28 id.
29 Id. at 594, 31 C.M.R. at 180.
30 Id.
3' Id. at 593, 31 C.M.R. at 179.
32 United States v. Barrett, 12 U.S.C.M.A. 598, 31 C.M.R. 184 (1961); United
States v. Smith, 12 U.S.C.M.A. 594, 31 C.M.R. 180 (1961). The government conceded
error in a third case before the court, in view of the Kitchens case, and asked that
the case be reversed. The court obliged. See United States v. Luis Yordan-Ortiz, 13
U.S.C.M.A. 29, 32 C.M.R. 29 (1962). It is also reported that Army hoards of review
reversed, or adjusted sentences downward, in approximately 20 additional unreported
cases because of the Kitchens error. This information is taken from personal notes
made by the author at the time involved, while he was assigned as Chief of Military
Justice, Third Army Headquarters, Fort McPherson, Georgia.
UCLA LAW REVIEW [Vol 18:1
a 1962 case, in which Judge Kilday and Chief Judge Quinn muddied
the waters a bit more. In the Wood case, Air Force Master Ser-
geant Wood received six months confinement and a dishonorable
discharge for AWOL and numerous bad check offenses. The facts
revealed that one court member had received a command letter
some twenty-one months prior to trial, plus a revised edition some
three weeks prior to trial, both of which were signed by the same
staff judge advocate. At the trial, the court member denied recol-
lection of the contents of the old letter, and as the new letter con-
tained no offensive material, Judge Kilday and Chief Judge Quinn
affirmed the conviction.
Judge Ferguson, dissenting, set forth the original letter ver-
batim. It contained much illegal comment, and was entitled:
"Duties and Responsibilities of Members of Courts-Martial." The
letter clearly set forth the fact that a case was referred to the
lowest tribunal competent to adjudge an appropriate sentence, and
that "if a conviction results, a sentence of the type not authorized
for a lesser court is appropriate." 4 In plain language, Judge Fer-
guson stated, this directed the members of a general court-martial,
regardless of mitigating factors, to adjudge a dishonorable dis-
charge and six months or more confinement in every conviction. If
the court were to adjudge less, it would be invading the sentence
domain of a lesser tribunal, the Air Force special court-martial.
The letter also called attention to the fact that sympathy and re-
habilitation of offenders were matters for the commander "and
should not be determined in the courtroom.""5 The letter also spe-
cifically warned against a "misguided sense of sympathy for an
6
accused or his family.M
Judge Ferguson pointed out in his well-reasoned dissent that
a second court member attended a military justice lecture three
weeks prior to the trial of the defendant, given by the same staff
judge advocate who signed the letters involved, and on voir dire
stated that the staff judge advocate "certainly covered several
points in this letter in detail. '1 7 Judge Ferguson also noted that the
Air Force bad check policy was referred to in testimony at trial,
and that reference was made to the establishment of "control
rosters" composed of marginal non-commissioned officers; that a
large percentage of bad checks were written by non-commissioned
83 13 U.S.C.M.A. 217, 32 C.M.R. 217 (1962).

84 Id. at 225, 32 C.M.R. at 225.
85 Id. at 226, 32 C.M.R. at 226.
86 Id.
87 Id. at 227, 32 C.M.R. at 227.
officers; and that commanders were not to tolerate "financial in-

competence among NCOs." 8 Two court members testified they
would take these policies into account in both the findings and sen-
tence stages of the case, and both members were unsuccessfully
challenged for cause at the trial of the case by trial defense counsel.
Judge Ferguson concluded that the defendant did not receive
a fair trial under the circumstances. He reminded his brothers,
rather forcefully, that:
[O]nly such summary action [as reversal] will serve to require ob-
servance of the Congressional mandate contained in Code, supra,
Article 37, for though this Court has sat for eleven years, and re-
viewed numerous records involving the issue [command influence],
we have yet to see a single person brought to trial for violation of an
accused's right to an impartial hearing. Reversal, therefore, remains
the only shield to which an accused may look for protection against
arbitrary interference.8 9
The issue was again before the Court of Military Appeals in

1964, where the court condemned a pre-trial orientation of court
members that had been accomplished via a pamphlet distributed
by a staff legal officer.4 ° Judge Quinn, who wrote the decision, in-
creased the gap between military practice and common sense,
despite his reversal, by his observation that pre-trial orientation of
court-martial members "has a worthwhile place in the court-martial
system," and, if kept within bounds, even improper matter injected
into a case by a convening authority does not "disqualify the court
members eo instanti and deprive the court-martial of power to pro-
ceed further with the case."'" The Chief Judge then proceeded to
weigh the instant proceedings for specific prejudice and found that
specific prejudice was present. Due to the fact that the adjudged
sentence exceeded by three times that agreed upon by the conven-
ing authority prior to trial in return for a guilty plea, the Chief
Judge ruled "that the adjudged sentence is hardly compassionate."
He therefore concluded his balancing of interests and voted to re-
verse the conviction. The application of the doctrine of general
prejudice, as advanced by Judge Brosman many years before, or
Judge Ferguson's more direct approach of automatic reversal in
such cases, would have been a far more meaningful method of deal-
ing with the problem and would also have served as a preventive
in future cases.
88 Id.
89 Id. at 231, 32 C.M.R. at 231 (emphasis added).
40 United States v. Johnson, 14 U.S.C.M.A. 548, 34 C.M.R. 328 (1964).
41 Id. at 551, 34 C.M.R. at 331.
Chief Judge Quinn's search for specific prejudice was con-

tinued in a 1966 case,42 wherein a staff judge advocate had given
a detailed pre-trial lecture to members of the command, including
five of the seven court members that convicted the accused. The
text of the lecture was included in the opinion, and involved a
lengthy discourse by the staff judge advocate on the administrative
difficulties forced upon the government when courts-martial did not
include all the usual military punishments upon an accused in sen-
tencing him-such as the failure to include a punitive discharge
when an accused was sentenced to three years in prison, or the
failure to adjudge total forfeiture of pay in such cases, etc. The
staff judge advocate, though frequently advising his audience that
he did not wish to "influence" them, proceeded to spell out the
administrative burdens placed upon the government in cases of this
nature. Chief Judge Quinn and Judge Kilday found no specific
prejudice involved, and affirmed the conviction. Judge Ferguson
dissented and noted that staff judge advocates in giving pre-trial
instruction to court members and other members of the command
never discussed "the awful and very real consequences to an indi-
vidual of a punitive discharge," or pointed out the impact of con-
finement upon a defendant's innocent family.48 The silence of lec-
turers on these points of mercy generated in Judge Ferguson's mind
the conclusion that something was seriously amiss in the objectivity
of the lectures, and that all sentences to be adjudged were tested
solely on the basis "of whether inconvenience to the United States
would result." Judge Ferguson, despite the express disclaimers of in-
nocence by the staff judge advocate involved, thus leveled a "charge
of deliberate command control at his head," 4 the first such charge
expressly "hurled" by any member of the Court.
If the patience of the Court of Military Appeals in dealing with
command influence issues had any effect upon the military, it was
not evidenced by even-handed administration of military justice at
the trial level. In United States v. Wright,45 a 1967 case, the Court
of Military Appeals was faced with a pre-trial lecture that was de-
livered by the staff judge advocate in the court room, only minutes
before the court was to convene for the trial of the defendant, to
the court members, the law officer, counsel, and the accused. The
staff judge advocate lectured the court members on many points of
trial procedure, reasonable doubt, and the necessity to adjudge
adequate sentences. The Chief Judge, writing for the court, con-
42 United States v. Albert, 16 U.S.C.M.A. 111, 36 C.M.R. 267 (1966).

48 Id. at 117, 36 C.M.R. at 273.
4 Id. at 116, 36 C.M.R. at 272.
45 17 U.S.C.MA. 110, 37 C.M.R. 374 (1967).
demned the staff judge advocate for his conduct in this case, and
concluded that a lecture delivered at this stage of the proceedings
was illegal regardless of the nature of his remarks." Judge Fer-
guson, concurring in the decision, observed that the staff judge
advocate involved was engaged in nothing less than common jury
fixing.47 He also adhered to his former position that all such cases
required reversal.
In 1968 the military figuratively threw in the sponge on formal
pre-trial orientation of court members. Not only was Judge Ferguson
leveling charges of jury fixing at military commanders and staff
judge advocates, but some ninety-three general court-martial cases
from one commander alone were discovered in 1967 and 1968 to be
contaminated with command influence and required reversal or
readjustment of sentence. In this series of almost unbelievable cases,
the Commanding General at Fort Leavenworth, Kansas, attempted
to downgrade the role of the law officer in general court-martial
trials at Fort Leavenworth. At the same time there was a noticeable
increase in the severity of sentences at Fort Leavenworth. When
the local staff judge advocate protested this illegal action, he was
promptly fired. The Judge Advocate General of the Army attempted
to thwart the review of the issues involved, but was unsuccessful,
and the entire sordid matter was brought to the scrutiny of appel-
late review.4
Concomitant with the Fort Leavenworth cases, the military
was concerned with the threat of reform legislation by Senator Sam
Ervin of North Carolina who had for years been attempting 4to
outlaw pre-trial orientation of court members by express legislation
46 Id. at 112, 37 C.M.R. at 376.

4" Id. at 114, 37 C.M.R. at 378.
48 See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967);
United States v. Jacobson, 39 C.M.R. 516 (1968); United States v. Berry, 39 C.M.R.
541 (1968). See also Reply Brief Under Rule 41, United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967) (unpublished); Final Brief Under Rule 41, United States
v. Moore, No. 20,179 (U.S.C.M.A. 1967) (C.M. 414,897) (unpublished).
49 Senator Ervin first introduced legislation to outlaw the pre-trial lecturing of
Rac. 14,139
court members, among other matters, on August 6, 1963, 109 CoNG. of Military
(1963). See Hearings Pursuant to S. Res. 260, on Constitutional Rights
Comm. on
Personnel, Before the Subcomm. on Constitutional Rights of the Senate bills on
the Judiciary, 87th Cong., 2d Sess. (1962). He reintroduced the variousSee Joint
January 26, 1965, and extensive hearings were held on his bills in 1966.
Before the Subcomm. on Constitutional Rights of
Hearings on S. 745-62 and 2906-07 on
the Senate Comm. on the Judiciary and a Special Subcomm. of the Senate Comm. Bill to
Armed Services, 89th Cong., 2d Sess. (1966). In regard to Senator Ervin's
of court members (S. 749, to amend Article 37 of the
outlaw the pre-trial lecturing legisla-
Uniform Code of Military Justice), see Joint Hearings, supra, at 508-18. The See
tion was reintroduced by Senator Ervin on June 26, 1967, and again in 1968.
Ervin, Military Justice Act: Time for Revision, TRAL, Feb./Mar., 1968, at 16.
UCLA LAW REVIEW. [Vol., 18:1
Federal courts were still inquiring into constitutional due process

in military trials, and even the Supreme Court was indicating an
interest in the problemYo While Senator Ervin's bill to outlaw pre-
trial lecturing of court members was not enacted, the Congress did
enact the Military Justice Act of 1968"' which contained a provision
that came uncomfortably close to that result. This provision, as it
related to Article 37, prohibited the "unauthorized" influencing of
court members, as provided in the original Act, but added two ex-
press exceptions to the proscription: (1) general instruction given
in information courses "in the substantive and procedural aspects
of courts-martial" and (2) instructions given by military judges
at criminal trials. It could thus appear that the new legislation ex-
cluded instruction given by military staff judge advocates or com-
manders to court-martial members on the subject of the state of
discipline within the command as well as upon inadequate sentences,
subjects that were exceedingly popular in past years.
Faced with this handwriting on the wall, the military, when
drafting the Manual for Courts-Martial,United States, 196952 (to
implement the many changes that had occurred in military law
since the promulgation of the 1951 Manual), outlawed a military
commander's right to give formal pre-trial orientation to court mem-
bers by the simple expedient of an administrative change to para-
graph 38 of the Manual for Courts-Martial.The new paragraph 38
did not expressly give the military commander the right to lecture
his command on the state of discipline, a right which was expressly
provided in the former Manual. This mere omission is a far cry
from the express prohibition contained in Senator Ervin's proposed
Bill to outlaw pre-trial orientation of court members, but in view of
the changes in Article 37 of the Military Justice Act of 1968, the
negative provision of the new paragraph 38 will probably sufficiently
curtail the formal pre-trial orientation of court members by military
commanders and staff judge advocates; unfortunately, it probably
will not curtail "off the record" orientations in the slightest degree.
D. The Failure of the Court of Military Appeals

From a study of the foregoing cases, it is obvious that the
Court of Military Appeals has not established meaningful restraints
50 See Ch. IV supra.

51 Pub. L. No. 90-632, 82 Stat. 1335, amending 10 U.S.C. §§ 801, 806,
816,
818-20, 825-27, 829, 835, 837-42, 845, 849, 851-52, 854, 857, 865-71, 873,
936 (1964).
52 Exec. Order No. 11476, signed by the President
on June 19, 1969, specified
that the Manual jor Courts-Martial, United States, 1969, "shall be in force
and effect
in the armed forces of the United States on and after August 1, 1969." The
Executive
Order is reprinted at page iii of the new Manual. See also 3 CF.R. at' 132 (1969
Comp.).
in the area of command influence law. The reasons for the failure,
however, are not as clear. The intent of the military to override
juris-
reform is clear, and the effect of the limited, formal appellate 53 What is
diction of the Court of Military Appeals is also clear.
extraordinary
not clear, given the fact that the court maintains an 54
remainder of military cases, is why the
writ jurisdiction over the
in the
Court of Military Appeals has not given a better accounting
than has been rendered to date. The
area of command influence law
extraordinary writs thus bears closer
court's alleged jurisdiction over
examination.
The court has through its case law insisted that it exercises
a federal
extraordinary writ jurisdiction55as an inherent power of
time to time
court under the All Writs Act. The author has from writs
participated in command influence cases where extraordinary
significant lack of success. In these
were filed with the court with
instances of command in-
cases, where extremely well documented
Military Appeals turned its back on
fluence were noted, the Court of the
These cases were, briefly,
the plight of each defendant involved.
56 Georgia, in
case of United States v. Wells, at Fort5 7 McPherson, 5 mat-
1963, the case of United States v. Cooks, and the McGuire
ter at Fort Meade, Maryland, in 1968.
by the Court
53 Relative to the limited scope of appellate jurisdiction exercised
under the Uniform Code of Military Justice, see notes 9-10 &
of Military Appeals
accompanying text, Ch. VI supra.
54 See, e.g., Gale v. United States, 17 U.S.C.M.A. 40,
37 C.M.R. 304 (1967).
55 The All Writs Act, 28 U.S.C. § 1651 (1964). See also notes
9-10 & accompany-
ing text, Ch. VI supra.
were tried at Fort Bragg,
56 Private Thomas L. Wells, U.S. Army, and others
court-martial, pursuant to Headquarters, Fort Bragg,
North Carolina, by general
No. 3, dated April 28, 1964. The defendants were
Court-Martial Appointing Order
with intent to inflict grievous
identically charged with premeditated murder, assault
to commit grievous bodily
bodily harm, conspiracy to commit murder, and conspiracy
on April 29, and convictions were returned of second
harm. The trial commenced
bodily harm on May 16,
degree murder and assault with intent to inflict grievous
fourth defendant was convicted
1964, against Wells and two of his co-defendants. A
of second degree murder and simple assault and battery.
57 Specialist Cooks was charged with possession of marijuana after
a small
in a search of his
amount of the substance had been discovered in his belor.gings to trial by special
referred
military quarters by military authorities. The charges were
Fort Meade, Maryland, in
court-martial in the 6th Armored Cavalry Regiment,
July, 1968.
Specialist Cooks, but
58 Lieutenant McGuire was originally assigned to prosecute
and reprimanded by his regimental com-
was summarily dismissed as prosecutor
of Cooks' quarters was
mander when he reported to that official that the search
rendered a crippling
probably illegal under military law. McGuire was subsequently "untrustworthy"
described as a "disloyal" and
efficiency report, wherein he was
subsequently ordered to
officer by his company and battalion commanders, and
in McGuire's performance
Vietnam as a tank platoon commander. The major defect
in his efficiency report, was the fact that he
of duty, as reported by his commanders of his dismissal as prosecutor
informed First Army legal officers of the circumstances
in the Cooks case by his regimental commander.
In regard to the Wells case, Lieutenant Wayne Loudermilch,

the defense counsel involved, had aggressively defended a black
client in a racial murder at Fort Bragg, North Carolina.5 9 Following
the case and upon his return to Fort McPherson, his assigned place
of duty, Loudermilch was castigated by his staff judge advocate for
his actions in the defense of the case. He was subsequently threat-
ened with possible disbarment and slandered at a "critique" of the
case before the assembled personnel of his office by the same staff
judge advocate, then relieved of his job as defense counsel at Fort
McPherson, given an extremely low efficiency report by his staff
judge advocate, and almost immediately transferred to non-trial
duties at Fort Sheridan, Illinois. Extraordinary writs were duly filed
by Lieutenant Loudermilch while the foregoing reprisals were in
progress, but his writs were denied by the Court of Military Appeals
and no action was taken. The murder conviction of his client, how-
ever, was internally reversed by the Army, and the charges were
dismissed, thereby effectively precluding the litigation of Louder-
milch's allegations of command influence on formal appellate review
of the case.
The command influence charges raised in the Cooks and
McGuire cases at Fort Meade, Maryland in 1968, were far more
involved, and far more serious. In these cases, military defense coun-
sel were actively pursuing evidence of wholesale illegal command
influence practices by a particular regimental commander at Fort
Meade when they were ordered by the First Army Commander to
remove themselves physically from the regiment concerned and to
cease taking or soliciting statements relative to command influence
from the personnel of the regiment. An extraordinary writ was im-
mediately filed with the United States Court of Military Appeals to
restrain this command restriction of counsel in the defense of a
pending court-martial case from the regiment in question. Full
factual disclosure was made to the court in the writ involved. How-
ever, the writ was denied by the Court of Military Appeals; and
the Army saw the wisdom of dismissing charges before a second
writ was acted upon, thereby mooting the issues. 60
59 The facts of this case are reported in detail in two documents entitled
"Defense Brief and Affidavit" submitted in behalf of Private Wells, dated July 27,
1964 and October 23, 1964, to the Secretary of the Army; and in a Writ of Habeas
Corpus in the matter of Private Thomas L. Wells, to the United States Court of
Military Appeals, dated November 23, 1964; and a Writ of Mandamus in the matter
of Private Thomas L. Wells, to the United States Court of Military Appeals, dated
December 7, 1964.
60 The facts of the Cooks case, and matters relating to the command restriction
of defense counsel in that case, are reported in detail in defense counsel's petition
for Writ of Mandamus and/or Writ of Prohibition, addressed to the United States
Following this action, the regiment concerned gave an ex-

tremely low efficiency report to the regimental counsel involved
(Lieutenant Thomas McGuire, who had first brought the entire mat-
ter to light), as an "untrustworthy" and "disloyal" officer, and
ordered him transferred to Vietnam. An extraordinary writ to the
Court of Military Appeals to strike the illegal efficiency report was
61
counsel involved was duly transferred to Vietnam.
denied, and the
The failure of the Court of Military Appeals to grant extraordi-
nary relief in these cases is underscored by the fact that the Court
of Military Appeals, during its almost twenty years of existence, has
relief in any command influence case.6 2
never granted extraordinary
The Court's unwillingness to grant extraordinary relief protection
to military defendants and assigned military defense lawyers in
cases of this nature, when coupled with the extremely narrow for-
mal appellate jurisdiction granted to the court under the Code spells
Class Thaddeus B. Cooks

Court of Military Appeals, in the case of Specialist Fourth
v. United States, dated July 26, 1968, and in a second Writ to the Court of Military
Cooks were dismissed
Appeals, dated August 10, 1968. The charges against Specialist
13, 1968, by the Commanding Officer, Fort Meade, Maryland. For the facts
on August
Meade Colonel Accused. Army Trial 'Influence' Probed,
of the case, see Lippman, Fort
Wash. Post, July 31, 1968.
in the
61 See Petition for Writ of Mandamus and/or Writ of Prohibition,
M. McGuire v. United States, to the United
matter of First Lieutenant Thomas
January 27, 1969.
States Court of Military Appeals, filed in propria persona, dated
1969, § E, at 1,
See also the facts of this case reported in the Wash. Post, Jan. 25,
1969, § E, at 9, col. 6; Niles Daily Star (Niles, Mich.),
col. 1; Wash. Post, Jan. 30,
Harbor, Mich.),
Jan. 29, 1969, at 1; Benton Harbor News Palladium (Benton
Niles' Officer for Defense
Jan. 29, 1969, at 1 (headlined as "Army Taking it Out on
but Destined to Lead Troops"). Following the denial of his
of GI? 'Untrustworthy' that the
and follo'ring the wide publicity
Writ by the Court of Military Appeals,
was administratively
case received, Lieutenant McGuire's offending efficiency report
Army to reassure the
removed from his files by the Army, thereby permitting the
and "disloyal" officers were not in fact sent
American public that "untrustworthy"
to Viet Nam to lead American soldiers in battle.
62 Gale v. United States, 17 U.S.C.M.A. 40, 37 C.M.R. 304
(1967), a case
Maryland, while the author was assigned as Chief
which originated at Fort Meade,
lawyer, Cypert 0.
of Military Justice at that installation, and defended by a civilian
knowledge of the
Whitfill of Bel Air, Maryland, is the only case in which I have
Appeals conducting a hearing in an extraordinary writ situation.
Court of Military
his counsel sought a
The trial of the case against Gale was held in abeyance while
the convening authority
hearing before the Court of Military Appeals on the right of
a ruling of the law officer dismissing the charges against Gale at the
to overrule
on a matter of law, pursuant to the provisions of Article
original trial of the case,
67f of the 1051
62(a) of the Uniform Code of Military Justice, and paragraph
authority this
Manual for Courts-Martial, which purport to give the convening
was denied in Gale, but the Court once again affirmed its power to
power. The writ
the All Writs Act, 28 U.S.C. § 1651 (1964). Gale
review extraordinary writs under
he had formerly
was accordingly retried in the year 1967, on charges upon which
law officer, a ruling
been brought to trial, and which were ordered dismissed by the
by the convening authority, and affirmed by the
which was subsequently overruled
trial, acquitted.
United States Court of Military Appeals, and was, upon his second
UCLA LAW REVIEW [Vol. 18:1.
out the real cause of the failure of the Uniform Code of Military
Justice to effect true reform in military courts-martial practice.
Thus, when the Army ordered Captain Brandon Sullivan to
Vietnam in May, 1969-only one day before he would have been
ineligible to serve in the war zone-because of his aggressive de-
fense of two of the twenty-seven young military prisoners who
staged a sit-down strike in the Army's stockade at the Presidio of
San Francisco, had the United States Court of Military Appeals
assumed its proper role in military law in the course of its nearly
twenty years of existence, it would not have been necessary to re-
solve the case in the nation's press following a cry of outrage by two
United States Senators. The orders were ultimately cancelled by the
Army.6 8 The case would have been resolved in the Court of Military
Appeals through the medium of an extraordinary writ to restrain
the illegal action of the Army in ordering Captain Sullivan to Viet-
nam, in plain violation of Article 37 of the Uniform Code of Mili-
tary Justice.
But the Court of Military Appeals is not a strong court. It has
limited its actions in command influence cases to the consideration
of only those matters which are brought before it upon formal ap-
peal. Hence, in the great majority of command influence situations
-where there is an insufficient sentence upon which to base an
appeal to that Court, or the parties concerned cannot afford to wait
the year or more before the case finally reaches the Court upon
formal appeal, or where the military ultimately dismisses charges to
thwart appellate review-there is no judicial remedy at all available,
as federal courts generally defer to the Court of Military Appeals
before acting, and the Court of Military Appeals apparently denies
all extraordinary writs in command influence cases.64 It is painfully
apparent that the Court of Military Appeals is not equipped to
handle the likes of Captain Sullivan's case, or the cases of Lieu-
tenant McGuire or Lieutenant Loudermilch or Specialist Cooks.
For better or worse, with its judicial blinders firmly in place, it
63 See N.Y. Times, June 15, 1969, § 1, at 5, col. 1; Wash. Post, July 4,
1969,
§ A, at 3, col. 4. The New York Times, supra, in a detailed article by Wallace
Turner, quoted Captain Sullivan as follows: "We have in the courts in this country
the principle that we have the adversary system, with one lawyer fighting another,
using every tool within his possession, bounded only by ethical considerations to help
his client . ...
"Do we have that in the military? I say we do not because the defense attorneys
do not have the power, or the will, or the freedom, to go ahead and use every
legitimate tool on behalf of their client. You're a Captain, you're not a lawyer
in
there."
64 See note 10, Ch. VI supra.
cautiously awaits formal appeals from the approximately eight per-

cent of military cases that constitute its formal appellate jurisdic-
tion.
IX. THE MILITARY'S LEGISLATIVE EFFORTS To CHANGE

THE UNIFORM CODE OF MILITARY JUSTICE
A. Recommendations for Change: The Decade of the Fifties

In addition to the cases that have been discussed in the area of
command influence, the intent of the military to comply with or to
override true reform of the military judicial system is graphically
reflected in a series of legislative efforts. Under the provisions of
Article 67 (g) of the Uniform Code of Military Justice,' the Judges
of the Court of Military Appeals, the Judge Advocates General of
the Army, Navy, and Air Force, and the General Counsel of the
Department of Treasury (representing the Coast Guard), are to
meet annually to survey the operation of the Uniform Code and to
prepare a report to both houses of Congress with regard to the
number of cases tried and pending, the status of military justice,
and the recommended legislative changes, if any, that they may
have.
In practice, the aforementioned officials, the Code Committee,
file an annual report which includes a Joint Report of the Code
Committee and separate additional reports from each of the various
services. The first report filed by the Code Committee did little
more than recognize major problem areas, and contained no recom-
mendations for specific legislative change by any of the various
parties.2 The following report, however, covering the period June 1,
1952 to December 31, 1953, 3 reflected a marked degree of mutual
undertaking by all members of the Code Committee. The Code
Committee unanimously recommended seventeen specific legislative
changes to the Uniform Code, most of which were procedural in
nature, and none of which would have effected substantial changes
in the operation of the Code.4 The immediate significance of these
recommended changes was in their indication that major improve-
ments in the Code might be accomplished legislatively through the
1 10 U.S.C. § 867(g) (1964).

2 See 1952 U.S.C.M.A. & J.A.G. ANN. REP.
3 See 1953 U.S.C.M.A. & J.A.G. ANN. RE,.
4 Id. at 3-11.
cooperative efforts of the Court of Military Appeals and the various

military services in the years to come.
This prospect was extremely short-lived. While the seventeen
specific recommendations were dutifully repeated each year until
1960 by the Code Committee,' the recommendations were largely
meaningless. As early as 1954, the Army revealed its colors in regard
to true reform and improvement of military law, separately recom-
mending to Congress that the law officer be reestablished as a vot-
ing member of the general court-martial, as he was during World
War I. To have done so would have largely neutralized the ad-
vancements that were made in the enactment of the Uniform Code.
Such a provision would have negatived the law officer's obligation
to instruct the court members on the law of the case in open court,
as he is required to do under the Uniform Code,7 for contrary in-
structions could be given by the law officer in closed session, where
no written record of the proceedings is kept, while the court was
deliberating on the guilt or innocence of the defendant. Such a
provision would also have marked the end of the effort to equate the
court-martial with civilian courts, wherein the judge does not vote
with the jury on such important matters as the guilt or innocence of
the defendant. More than anything else, a provision of this nature
would have furnished the services a direct channel of command con-
trol over the court-martial process: the closed-door maneuvering
of the law officer during the private sessions of the court-martial
would enable his opinion as to the verdict to greatly overbalance
that of the remaining lay members.
The Judge Advocate General of the Army repeated this recom-
mendation to Congress in his 1955 report.' It was not, however, re-
peated in subsequent years, nor was it enacted by Congress. Thus,
the need for what the Judge Advocate General of the Army (who
was speaking for the Army) believed to be absolutely essential for
the maintenance of the Army's disciplinary powers during the years
1954 and 1955 is questionable; the Army has managed disciplinary
matters quite well in the ensuing years without benefit of this legis-
lative change. Apparently, the Army's bid in 1954 and again in 1955
for greater control over the military judicial process was not founded
5 See U.S.C.M.A. & J.A.G. ANN. REPS. for the years 1954-60, wherein substan-
tially the same recommendations were jointly recommended by the Code Committee
each year.
6 See REPORT OF THE JUDGE ADVOCATE GENERAL Or T AiRmy in 1954 U.S.C.M.A.
& J.A.G. ANN. REP. 21.
7 Uniform Code of Military Justice, art. 91(c).
8 See REPORT OF THE JUDOE ADVOCATE GENERn op THE ARMY in 1955 US.C.MA.
& JA.G. ANN. REP. 17.
190o] COMMAND INFLUENCE
in fact on military necessity, as the Congress was led to believe, but

was founded either in error or in an attempt to mislead.
The Judge Advocate General of the Air Force submitted rather
startling recommendations of his own in 1955. He reported to Con-
gress that he would make no further recommendations for changes
in the Uniform Code of Military Justice until changes were effected
"which would improve the administration of military justice" and
make it workable "in the event of a global war." 9 He spelled out
exactly what he had in mind when testifying before a senate sub-
committee a few years later. At this time the General opined that
the Uniform Code was grossly inefficient as interpreted by the Court
of Military Appeals. He further specified:
My testimony before this subcommittee would not be complete if I
did not express my recommendation as to what I think should be
done to correct the inefficiencies of which I speak. I recommend the
repeal of the Uniform Code of Military Justice in its entirety and the
reenactment of the Elston Act with the provision that it apply to the
Navy as well as to the other services.' 0
The Judge Advocate General of the Army picked up the Air
Force theme in 1956 and, in a similar vein, reported to Congress
that the Uniform Code was burdensome enough in peacetime, and
"could seriously impair the effective administration of military jus-
tice in time of war." The General wrote that any system of justice
"requiring nearly a year to complete appellate review is of doubtful
utility in effecting prompt punishment in time of war." The General
specified that prompt punishment was necessary to effect discipline
in wartime." In order to assure speedy convictions and rapid appel-
late action, he therefore recommended to Congress that military
boards of review be decentralized in wartime as they were in World
War II, and that the boards be granted power to order wartime
sentences into execution, including the death sentence, with a pro-
vision to withhold execution in doubtful cases until affirmed by the
Court of Military Appeals.12 This procedure would not only have
9 See REPORT OF T=E J-n-GE ADVOCATE GENERAL. or TE Am FORCz in 1955

U.S.C.M.A. &J.A.G. ANN. REP. 31.
10 See Hearings Pursuant to S. Res. 260 Before the Subcomm. on Constitutional
Rights of the Senate Comm. on the Judiciary, 87 Cong., 2d Sess., at 167 (1962)
(statement of Major General Reginald C. Harmon, USAF Ret.).
11 REPORT OF TE JUDGE ADVOCATE GENERAL or TEm ARmY in 1956 U.S.C.M.A. &
J.A.G. ANN. REP. 33.
12 Id. at 34. The Judge Advocate General of the Army noted in this regard:
"Such decentralization would obivate the need for forwarding records of trial in gen-
eral court-martial cases to Washington for board of review action before commanding
generals can order sentences into execution. An amendment to the Code permitting
convening authorities to order into execution sentences approved by boards of review
located in the field should reduce considerably the time expended in appellate review.
effected a return to World War II appellate practices, but it would

have, in the large part, removed the Court of Military Appeals from
the wartime administration of military justice.
Fortunately, Congress did not enact the Army's 1956 recom-
mendation. In view of the successful operation of the Uniform Code
during the Vietnam War, complete with its "excessive and time
consuming delays" for appellate review by the Court of Military
Appeals, it must be concluded that both the Army and the Air Force
Judge Advocates General were exceedingly wide of the mark as to
the actual needs of wartime discipline, as well as to the workabil-
ity of the Code during wartime. It might also be assumed that the
plaint of the military throughout our history that military convic-
tions must be promptly executed to effect wartime discipline has
little foundation in reality. In fact, failure of our leaders to affect
a military victory in the Vietnam War seriously questions the
necessity for command responsibility for the court-martial function
at all. Without the burdens of military justice administration, the
military commander in both peacetime and wartime might be more
effective in dealing with more pressing problems in other areas of
endeavor.
In his 1957 report to Congress, the Army's Judge Advocate
General, faced with an ever increasing technical body of substan-
tive military law due to basic changes effected by the decisions
of the Court of Military Appeals, took a half step forward. He
junked the Army's former system of law officer selection (captains
and upward) and resolved upon a more professional basis of selec-
tion. Henceforth, the law officer was to be personally nominated by
the Judge Advocate General on the basis of professional qualifica-
tion. He was to be assigned to the newly created office of the "Field
Judiciary" within the office of the Judge Advocate General, at De-
partment of Army level, and would belong to a very small and select
group of highly qualified military justice experts. Former law officers
were to be de-certified, and all future Army general courts-martial
were to be staffed with law officers from the Field Judiciary."3
This action by the Judge Advocate General of the Army, while
originally designed to lessen the likelihood of reversible error in
Provision could be made that death sentences, approved by a board of review sit-
ting in the field, could be ordered into execution by a theater, Army, or expeditionary
force commander. Included within such a plan would, of necessity, be a provision
whereby the Judge Advocate General would certify to the United States Court of
Military Appeals for decision cases in which the boards of review are in disagreement
as to points of law."
13 Id. at 34. REPORT OF THE JUDGE ADvocATE GExERAL OF THE ARMy in 1957 U.S.
C.M.A. & J.A.G. ANN. REP. 41-42.
Army records of trial by inexperienced law officers faced with an

ever-growing, complex field of military law, has worked to the credit
of the system. While born of necessity, it has tended to create a
semblance of an independent law officer program for the Army, as
it did remove a participant at the trial level from the immediate
command jurisdiction of the court-martial convening authority for
the first time in the history of military justice. As a result, the
Army's law officer is not only far more competent in the professional
sense than formerly, but also far more independent in judicial action
-a highly desirable qualification in any judicial system. Were he
given tenure of office for a period of ten to fifteen years upon his
assignment to the Field Judiciary, which he wasn't, the improvement
would be significant. 4
In his 1958 report to Congress, the Army's Judge Advocate
General was concerned more than ever with the "basic changes" in
military law that had forced him to establish the Army's Field
Judiciary program the preceding year. While the Code Committee
was again reporting, as it had done every year since 1953, that the
seventeen amendments proposed in that year be enacted into law,
the Army Judge Advocate General, in his individual report, listed
individual cases in which the Court of Military Appeals had effected
"sharp departures from previous military legal practice," and in
which the Court had created "difficult problems for military law
enforcement authorities."'" The Judge Advocate General then stated
14 The Army's Field Judiciary Program was ultimately adopted by the Navy,
but stoutly resisted by the Air Force as not designed to fit its needs. Undoubtedly,
the program far exceeded the limited boundaries originally intended by the Army,
in that it tends to create, insofar as possible within the military, not only a better
qualified judge who can rule on the complex points of law handed down by the
Court of Military Appeals, but also a semblance of an independent trial judge. The
latter feature has been especially warmly received by the Court of Military Appeals,
and other critics of the system, and was ultimately enacted into law as Article 26(c)
of the Uniform Code of Military Justice in the Military Justice Act of 1968, and is
currently applicable to all branches of military service, Air Force included. The per-
tinent provisions of the amendment provide:
The military judge of a general court-martial shall be designated by the
Judge Advocate General, or his designee, of the armed force of Which the
military judge is a member for detail by the convening authority, and, unless
the court-martial was convened by the President or the Secretary con-
cerned, neither the convening authority nor any member of his staff shall
prepare or review any report concerning the effectiveness, fitness, or efficiency
of the military judge so detailed, which relates to his performance of duty
as a military judge. 10 U.S.C. § 826(c) (Supp. V, 1970).
15 The Judge Advocate General of the Army listed the cases which had posed
"difficult problems" for the Army. The first case was that of United States v. Kras-
kouskas, 9 U.S.C.M.A. 607, 26 C.M.R. 387 (1958), where the Court of Military
Appeals held that it was prejudicial error to permit an accused "even at his own
request and with full advice as to his right to be represented by qualified counsel"
to be represented by non-lawyer counsel before a general court-martial. Other "sharp
departures" from established law that caused "problems" to military law enforce-
that "remedial legislation" was under study by the Department of

the Army.1 6 In 1959, the Army Judge Advocate General continued
his onslaught into the case rulings of the Court of Military Appeals.
Several pages of bad case law were cited in that report.' The Judge
Advocate General bemoaned the lack of confidence that Army field
commanders had in "the present system of military justice because
of its growing complexity and difficulty of administration"' 8 and,
more importantly, noted the appointment of a board of general
officers by the Secretary of the Army to study the problem.
While the Judge Advocate General of the Army was taking such
pains in his annual reports to Congress to paint a black picture of
the administration of military justice, an event was to take place
that should have moved him to caution. The Chief of Staff of the
Army, four-star General L. L. Lemnitzer, apparently unaware or
unconcerned that his Judge Advocate General was attacking the
Court of Military Appeals, made an official comment in the fall of
1959, highly praising the administration of military justice within
the Army establishment. 19 This comment was unearthed by the
Court of Military Appeals and included within its separate report
to Congress for the year 1959, as follows:
I believe that the Army and American people can take pride in the
positive strides that have been made in the administration and ap-
plication of military law under the Uniform Code of Military Justice.
The Army today has achieved the highest state of discipline and good
order in its history.20
ment authorities, ranged from decisions outlawing a military commander's right to

order a suspected soldier to submit to a blood test, or a urine test, or to furnish
samples of his handwriting, to a decision ruling that nonpayment of a gambling
debt by a serviceman does not constitute conduct punishable under Article 134 of
the Uniform Code of Military Justice. REPORT OF THE JUDGE ADvocATE GENERAL OF
THE ARmy in 1958 U.S.C-M.A. & J.A.G. ANN. REP. 43-44.
10 Id. at 44.
17 See REPORT OF THE JUDGE ADVOCATE GENERAL OF TrE AR Y in 1959 U.S.
C.M.A. & J.A.G. ANN. REP. 43-45.
18 Id. at 43. The necessity that dictated the appointment of such a board was
described as follows: "Many commanders are of the opinion that the system would
be inadequate to maintain the necessary degree of disciplinary control over members
of the Army in the event of a serious emergency or under conditions of modern war-
fare. Complaints from the field and reports of inspecting officers indicate a growing
concern over lack of stability in the law, burdensome and duplicative procedures,
multiplicity of adversary proceedings, and lack of authority on the part of com-
manders to dispose of minor offenses without resort to courts-martial." Id.
19 Gen. Lemnitzer's comment was originally published in U.S. DEP'T OF DEFENsE,
DEP'T OF THE ARMY, Pm.No. 27-101-18 (1959).
20 See REPORT OF THE UNITED STATES COURT OF MILITARY APPEALs in 1959 U.S.
C.M.A. & JA.G. ANN. REP. 34.
B. The Report of the Powell Committee

In spite of the opinion of General Lemnitzer that the adminis-
tration of military justice within the Army was excellent and the
state of Army discipline was the highest in its history, the appoint-
ment of a board of general officers to study the "problem" referred
to by the Judge Advocate General of the Army in his 1959 report to
Congress had already been accomplished. The Board, composed of
nine general officers and chaired by Lieutenant General Herbert B.
Powell, from whom it received its name, convened on October 7,
1959.21 Among its members were the Judge Advocate General of the
Army and his Assistant for Military Justice, as well as Major Gen-
eral William C. Westmoreland, the Commanding General of the
101st Airborne Division.2 2 Apparently the Board was in session from
October 7, 1959 until January 15, 1960, but actual meetings were
2 3 The Board also
conducted during only 14 days of this period
attended the trial of a general court-martial at Fort Meade, Mary-
land, and attended the argument of cases before the Court of
Military Appeals and a board of review in Washington, D.C. Each
member of the Board also conducted a personal study of military
justice material that was presented to the Board during their plenary
sessions; certain inquiries of military commanders were conducted
at the 101st Airborne Division by General Westmoreland; and, the
Assistant Judge Advocate General for Military Justice, Brigadier
General Charles L. Decker, spent four days in Ottawa, Canada,4
studying the operation of the Canadian military justice system.
The necessary ingredients were thus all present; the Powell
Report, which was ultimately to be enclosed in the Army's 1960
military justice report to Congress, contained some two hundred
eighty-seven pages of factual data, conclusions and recommenda-
tions. The report was backed up with appropriate appendices, tables,
charts, graphs and statistics, and, most importantly, with an addi-
tional sixty-nine page "legislative supplement," which included a
detailed bill to amend the Uniform Code of Military Justice (de-
signed to cure all the military justice ills incurred under the reign
of the Court of Military Appeals). The Report, above all, reflected
a tone of restrained, scholarly research. In short, it was intended to
be the foremost general officer report in the field of military justice,
21 U.S. DEP'T oF DFXENSE, DEP'T OF THE ARMY, REPORT OF THE COMMITTEE ON

TIM UNIFORM CODE OF MILITARY JUSTICE, GOOD ORDER AND DisciPLINE IN
ARMY at 245 (1960) [hereinafter cited as POWELL REPORT].
22 Id. at iii, 249-50.
28 id. at 245.
24 Id.
and, of course, was to represent the very best that the Army's legal
staff could put together.
It is apparent that the Powell Report was written in part to
convince the reader, the Congress and the general public that all
was indeed well with the military concept of justice and that the
military intended to enforce its criminal laws fairly in a court-
martial system that was divorced from command control. Thus, the
Board early in its report noted that "discipline is a function of com-
mand," but was careful to point out that the command function
stopped short of the actual court-martial trial itself.25 To avoid any
confusion caused by what had gone before, the Powell Board stated
that the "truism" that discipline was a function of command had
caused some concern to civilians who might feel that, in the military,
"discipline is synonymous with punishment."2
It was to dispel such misconceptions, no doubt, that the Powell
Board took it upon itself to blunt the biting edge of the Army's old
and time-honored concepts. Discipline was thus defined as a function
of command only in its "broadest" sense. "It means an attitude of
respect for authority developed by precept and by training . . . a
willingness to obey an order no matter how unpleasant or dan-
gerous .... ,,27 Development of this "state of mind" is a command
responsibility. The Board proceeded to state that "correction and
discipline" are thus command functions only in the generic sense,
and that some types of "corrective action" are so severe that they
are not "entrusted solely to the discretion of a commander."2 At
this point in the proceedings, the Board stated, the commander
must call for the assistance of the judicial process, and once he has
done this, "it is not intended that he be able to influence judicial
decisions, for this would be nothing more than action by the com-
mander himself."2 Once the court-martial has convened, so stated
the Board, the sole concern of the court-martial was not the accom-
plishment of both discipline and justice, but only that of justice
25 Id. at 11.
26 Id. The Powell Board was absolutely correct in assuming that many civilians
were so concerned. In fact, one writer following World War I compared court-martial
"discipline" with other military training functions, such as setting-up exercises, volley
ball games and field maneuvers, and opined that a soldier sentenced to death or to a
long sentence in a military prison by court-martial, should accept the sentence in the
same constructive spirit as he would any other military training designed to improve
his military bearing or physical or mental faculties. Bruce, Double Jeopardy and the
Power of Review in Courts-MartialProceedings, 3 MIN. L. REV. 484, 489 (1920).
27 PowEL. REPORT, supra note 21, at 11.
28 Id.
29 Id.
COMMAND INFLUENCE 145
1970]
under the law, and in "fulfilling this function it will (automatic-

3
ally) promote discipline."
principles
There can be no doubt that these were indeed high
military intended
being announced by the Powell Board, and had the
Appeals could
to comply with these principles, the Court of Military
assurance that
have been disbanded then and there, with every
hands. But an analysis of the proposed
military justice was in good
Code which were made by the
legislative changes to the Uniform
feeling that committee entertained
Powell Board reveals the true
for the rule of law in court-martial practice. Article 36 of the Uni-
8 l provides essentially that the Presi-
form Code of Military Justice
courts-martial,
dent shall make rules of evidence and procedure for
shall not be contrary to the
but that the rules which he announces
be seen shortly, the
Uniform Code of Military Justice. As will
made considerable
Court of Military Appeals in the late 1950's
authority and
inroad into this former domain of military judicial
of the Manual for
frequently ruled that designated provisions
by the Presi-
Courts-Martial (provisions which were promulgated
dent pursuant to Article 36 of the Code) were illegal in that they
Code of Mili-
conflicted with designated provisions of the Uniform
were time-
tary Justice.3 As many of these concepts involved
2
in this regard
honored military concepts, the Court's interference
The Powell
was viewed by the military as an unstable influence.
to Article 36 of the Code to end this
Board recommended a change
interference.
that rules
Under the Powell Board proposal, the requirement
President be consistent with the
and regulations announced by the
presently provided in Article
Uniform Code of Military Justice,3 as
its place, the Powell Board
36 of the Code, was to be deleted. In
so announced by the
proposed simply that rules and regulations
expiration of ninety days
President would not take effect until the
sooner overruled
after their report to Congress, at which time, unless
tribunals and appellate
by Congress, "they shall be binding on all
for example, if the
bodies." 4
Under this recommended change,
the Court of Military
military were dissatisfied with a decision of
30 Id. at 12.
inserted into military law
31 The forerunner of this Article was originally
1916. See notes 65-66 & accompanying
through the efforts of General Crowder in
text, Ch. I supra.
32 See note 40 infra.
at 196.
83 See the Committee's proposed Article 36, PowELL RFPORT
34 Id.
Appeals in regard to confessions or to search and seizure
application of the Jencks Act85 to military law, the or to the
Court decision
could be "overruled" by formal amendment to
the Manual for
Courts-Martial,a readily available remedy which
is accomplished
by an Executive Order that is drafted by a military-minded
Judge
Advocate General and hand-carried by an understanding
Chief of
Staff to the President for signature. Without the
unlikely event of
congressional disapproval within the first ninety
days of its sub-
mission to Congress, the Executive Order, and not
the rule of law
announced by the Court of Military Appeals, would
be the law of
the land. Had this proposition been enacted into
law, despite the
Powell Board's concern for the rule of law in court-martial
practice
as announced in its formal report, the rule of law
in military trials
would have been largely neutralized.
Another example of the Powell Board's regard
law is found in its recommendation to amend Article for the rule of
59 of the Code
to outlaw the doctrine of general prejudice as defined
by the Court
of Military Appeals in United States v. Lee88 and
subsequent de-
cisions. Under the Powell Board recommendation,
reversible error
would have been defined to include only that error
which if corrected
and not repeated, would so effect the case as to result
in a materially
more favorable verdict for the defendant at a rehearing
in the case.87
This would eliminate most command influence reversals
in future
cases, which were usually reversed on the doctrine
of general preju-
dice. An example would be found in a case where
an aggressive
commander lectures his assembled officers on the
desirability of
eliminating thieves and homosexuals from the Army.
The following
week, his general court-martial, composed entirely
of officers who
attended the lectures, convicts two such defendants
and sentences
them to maximum confinement and to dishonorable
discharge from
the service. Under the circumstances, it would be
difficult to con-
vince an appellate court, particularly in cases where
there was abun-
dant evidence of guilt, that if the defendants were
granted a new
trial in a jurisdiction where no command lectures
of the type
involved here were given, that a materially more
favorable verdict
would be obtained in favor of the defendants. However,
doctrine of general prejudice as announced in the under the
Lee case, specific
prejudice to the particular defendant need not be shown.
Under the
doctrine of general prejudice, all that is required
for reversible
85 18 U.S.C. § 3500 (1964).

86 1 U.S.C.M.A. 212, 2 C.M.R. 118 (1952). See note 20 & accompanying text,
Ch. VI supra.
87 See the Committee's proposed Article 59, PowauL
REPORT at 197.
the lectures
error is a finding by the Court of Military Appeals that
involved struck at the very heart of a fair trial, and violated an
doctrine
"indwelling principle of justice." It was this doctrine-the
Powell and his co-
of general prejudice-that Lieutenant General
to outlaw.
horts, after only fourteen days of meetings, decided
As if the foregoing amendments were not sufficient to safeguard
generals
the interests of military necessity, Powell's committee of itself
and of
came forth with yet another proposal that, if enacted, in
the Court of Military Ap-
would have destroyed the effectiveness of
of the Uniform Code of
peals. The Board proposed that Article 67
five judges on the Court
Military Justice be amended to provide for 8 generals
of Military Appeals, rather than the present three." The
be appointed from
further recommended that two of the five judges
forces, who
the ranks of retired commissioned officers of the armed
service on active
had served a minimum of fifteen consecutive years
or as a legal
duty as a judge advocate of the Army or Air Force
further
specialist of the Navy. The Powell Board recommendation years
two
specified that these military judges be appointed within
their terms
following their retirement from the armed forces, that
be ineligible
of office be for only four years, and that such officers 9 It is
for reappointment upon completion of their original terms. such
difficult to imagine how a judicial system could have survived
40
a blow.
the
While the foregoing amendments and those mentioned in
88 Id. at 198.
89 Id.
specific holdings
40 As previously noted, the Powell Board objected to numerous
the committee felt jeopardized established
by the Court of Military Appeals, which
precedent or encroached upon the lawful authority of the President to
military
military judicial system in con-
prescribe procedural rules and regulations for the Justice. The Powell com-
Uniform Code of Military
travention of Article 36 of the remedial legislation
cases, recommended
mittee, in an item by item account of these
or offset each of them. The cases which the Powell committee would
to overrule
Brown, 10 U.S.C.M.A. 482, 28
have reversed legislatively were: United States v.
10 U.S.C.M.A. 152, 27 C.M.R. 227 (1959);
C.M.R. 48 (1959); United States v. Smith,
350 (1959); United States v.
United States v. Jobe, 10 U.S.C.M.A. 276, 27 C.M.R.
States v. Cecil, 10 U.S.C.M.A.
May, 10 U.S.C.M.A. 358, 27 C.M.R. 432 (1959); United
United States v. Ochoa, 10 U.S.C.M.A. 602, 28 C.M.R.
371, 27 C.M.R. 445 (1959);
9 U.S.C.M.A. 67, 25 C.M.R. 329 (1958);
168 (1959); United States v. Musguire,
v. Nowling, 9 U.S.C.M.A. 100, 25 C.M.R. 362 (1958); United States
United States
(1958); United States v. Curtin, 9
v. Varnadore, 9 U.S.C.M.A. 471, 26 C.M.R. 251
United States v. Osborne, 9 U.S.C.M.A. 455,
U.S.C.M.A. 427, 26 C.M.R. 207 (1958);
235 (1958); United States v. Crowell, 9 U.S.C.M.A. 43, 25 C.M.R. 305
26 C.M.R.
26 C.M.R. 16 (1958); United
(1958); United States v. Smith, 9 U.S.C.M.A. 236,
23 C.M.R. 382 (1957); United States v. Aron-
States v. Cothern, 8 U.S.C.M.A. 158,
States v. Jordon, 7 U.S.C.M.A.
son, 8 U.S.C.M.A. 525, 25 C.M.R. 29 (1957); United
7 U.S.C.M.A. 261, 22 C.M.R.
452, 22 C.M.R. 242 (1956); United States v. Jenkins,
2 U.S.C.M.A. 505, 10 C.M.R. 3 (1952).
51 (1956); United States v. Davis,
146 UCLA LAW REVIEW [Vol. 18:1
margin were by no means the total number of
changes recommended
by Lieutenant General Powell and his group
of general officers, the
listed amendments do represent the core of
his report, and they
represent the major thrust of the Department
"reform" the Uniform Code of Military of Army's effort to
Justice. 4 Powell and his
committee concluded that the Uniform Code
of Military Justice, as
written, was ineffective to support good order
and discipline even
under then existing conditions. The generals
found that military
commanders were opposed to the Code's "cumbersome"
and were concerned because the results were procedures,
"uncertain. ' 2
The Judge Advocate General of the Army included
Report in his 1960 report to Congress. He the Powell
too agreed that most
commanders were unable to maintain discipline
under the Uniform
Code, with the major complaint being "that
legal technicalities
require too much of the court members' time. 43
The Judge Advo-
cate General thereupon recommended that
the seventeen amend-
ments put forward each year by the Code Committee
shelved, and that the Powell Board recommendations since 1953 be
4 be enacted by
Congress. 1
The recommendations thus went to Congress;

generals the Army could produce recommended the very best
that dire changes
41 "Unless some simplification can

be achieved, there is a serious possibility
the general court-martial, under the stresses that
of war, would be unable to fulfill the
need for a court of record for serious
criminal cases. Cumbersome trial procedures
are a principal reason why the majority
of commanders at all levels feel that our
military justice system would be inadequate
in time of war." POWELL REPORT, supra
note 21, at 107. "Many of the past issues
litigated on review had no direct bearing
the guilt or innocence of an accused or on
whether he had received a fair trial." Id.
163-64. "The United States Court of Military at
Appeals has interpreted the Uniform
Code of Military Justice to invalidate traditional
modes of proof approved by the
Presideht as Commander in Chief." Id. at
42 Id. at 107-08. The Army's objection 179.
to the "uncertain" features of the Uni-
form Code, and to its interpretation by
"cumbersome" procedures, occasioned the Court of Military Appeals, lay in
principally by the "pronounced tendency" its
the Court of Military Appeals "to import of
civilian rules" into the system, and the
court's tendency to invalidate provisions
of the Manual for Courts-Martial, which
diluted the Code's "efficiency to support
military operations." Letter from the Assis-
tant Judge Advocate General of the Army,
Major General Stanley W. Jones, to the
Honorable Paul J. Kilday, Chairman of
the House Committee on Armed Services,
Oct. 8, 1959 in POWELL REPORT at 181-83.
In this letter General Jones set forth his
conclusions, as follows: "After working
with the Code for more than eight years,
it is my conclusion that there is a very
real necessity for certain changes if proper
discipline is to be maintained in the
military establishment. These changes
urgently needed even under the relatively are
peaceful conditions obtaining in the world
today; the need is more acute, if the statute
is to operate practically and effectively
under combat conditions." Id. at 181 (emphasis
43 REPORT OF THE JUDGE ADVOCATE added).
GENERAL OF THE Apmr in 1960 U.S.C.MA.
& J.A.G. ANN. REP. 5.
44 Id. at 6-7.
were necessary to put the Army back on an even keel. Military

necessity was advanced as the reason for the recommended changes,
and if generals could be believed on anything, their cry of military
necessity could not be taken too lightly. But the Powell Report was
not accepted as graciously as it was rendered. The first indication
re-
of trouble had already bloomed-namely General Lemnitzer's
time the Powell Committee was
mark in the fall of 1959 (at the
appointed) to the effect that the United States Court of Military
Appeals had done a tremendous job in improving the administration
of military justice within the military and that the state of discipline
in the Army was at its highest point in history45-was completely
ignored by the Powell committee. This obviously was a startling
Lem-
oversight on the part of the Board considering that General
than Chief
nitzer, at the time he made his statement, was none other
trouble in
of Staff of the United States Army. The next point of
did not
selling the report to Congress was that the sister services
endorse
adopt the report. Not only did the Air Force and Navy not
in
the Powell Report, but their respective Judge Advocates General,
inroads
their 1960 reports to Congress, failed to even mention the
Appeals
into established military precedent by the Court of Military
The Navy Judge Advocate General
that so terrified the Army.
involved merely as "landmark deci-
referred to the trend of cases
the effect of the decisions "demon-
sions" and further opined that
of military
strate even further that today's demands in the field
the professional experience of the full-time practicing
justice require
46
lawyer. ))
in
Thus, it began to appear that the Army had erred tactically
the submission of the Powell Report. The Court of Military Appeals,
the Powell
in its separate report to Congress in 1960, referred to
4 7 The court informed the Congress that the
Report as "appalling.1
return to
adoption of the Board recommendations would "mark a
the Uniform Code"
the conditions which compelled the enactment of
of
45 See notes 19-20 & accompanying text supra. Gen. Lemnitzer's statement
of Military Appeals in its 1959 Report
Oct. 7, 1959, which was quoted by the Court
Report. The court also quoted
(see note 20 supra) was repeated in the court's 1960
statement of the incoming Chief of Staff of the Army, General G.
a September 1960
who declared: "Today our Army has the highest
H. Decker, on the same subject,
We have never had better
state of discipline and of personal conduct in our history. No.
within the Army." U.S. DEP'T OF DEFENSE, DEP'T OF THE ARMY, PAM.
morale
in OF THE UNITED STATES COURT OF MILITARY
27-101-49 (1960) reprinted REPORT
APPEALS in 1960 U.S.C.M.A. & J.A.G. ANN. REP.
4.
NAVY in 1960 U.S.C.M.A. &
46 REPORT OF THE JUDGE ADVOCATE GENERAL OF THE
J.A.G. AsN. REP. 4.
47 In referring to the Powell Report the court stated: "This Court is appalled
U11TED STATES COURT OF MILITARY
by the proposals therein contained." REPORT OF TE
APPEALS in 1960 U.S.C.M.A. & JA.G. ANN. REP. 4.
in the first place. 4 Congress thus chose to ignore the Powell Report
and not a single recommendation of this report as reviewed herein
was or has been enacted into law. 9 As all has indeed gone well with
the Army since its Powell Board proposals were turned down,
and
it is a matter of record that the Army has managed to struggle
through both peace and war with its state of discipline in reasonable
repair, it would appear that the changes recommended by Lieutenant
General Powell and his associates in the name of military necessity
were not as necessary as they were reported to be. If the generals
themselves really believed the changes they recommended
were
necessary to maintain Army discipline, the experience of the past
ten
years has proved them guilty of the utmost miscalculation. If,
on
the other hand, the generals did not believe these changes were
in
fact absolutely necessary to restore or maintain discipline within
the Army, their attempt to thwart the democratic reforms, which
had been enacted into the Uniform Code of Military Justice
by
Congress in 1950, takes on far more serious and dangerous
pro-
portions. By the time the smoke settled, however, the Army
took
its defeat in good graces, and the Powell fiasco was quietly shelved,
not to be repeated by any of the military services.5 °
CONCLUSION
Despite the direct outlawing of formal pre-trial orientation

of court members by military commanders, as provided for in para-
48 Id. at 4.
49 Other innocuous sections of the Powell Report
have been enacted, such as a
new "bad check" statute (U.C.M.J., art. 123(a)), and increased Article
(U.C.M.J., art. 15). But the "guts" of the Report were completely 15 jurisdiction
rejected and to
this date have not been enacted.
50 Subsequent proposed legislation on the part of the Army has
been designed
primarily to present detailed legislative packages to Congress of a
content. For example, see the so-called Bennett Bill, H.R. 16115, 89th much more bland
(1966), introduced by Rep. Charles E. Bennett of Florida; the ArmyCong., Ist Sess.
legislation primarily to divert attention from the far more meaningful sponsored the
proposed by Senator Ervin in 1965, 1967 and again in 1968. See legislation
note 49, Ch. VIII
supra.
Since writing this paper, the author has been advised by former
Fort Meade that the new Military Justice Act of 1968, amending the associates at
Military Justice, particularly Articles 16, 26, and 27 (see note 51, Uniform Code of
whereby the convening authorities of special courts-martial may Ch. VIII supra)
judges (the term "law officer" has been amended to read "militarydetail military
legally qualified military defense counsel (if available) to special judge") and
courts and whereby
accused and counsel may elect trial before a judge alone, has effected
ment in the quality of special court-martial justice at Fort Meade, some improve-
the new legislation has been fully implemented. The Military Justice Maryland, where
signed by the President on October 24, 1968, and insofar as ArticlesAct of 1968 was
are concerned, became effective on August 1, 1969. Army special 16, 26, and 27
courts-martial, how-
ever, which may impose sentences of up to six months imprisonment,
are still without
the appellate review jurisdiction of the United States Court of Military
Appeals, for
the reasons stated in notes 9-10, Ch. VI supra.
graph 38 of the Manual for Courts-Martial, United States, 1969,

and the amendment of Article 37 of the Uniform Code of Military
Justice as accomplished in the Military Justice Act of 1968, and
despite other improvements in the Military Justice Act of 1968,
whereby legally qualified defense counsel and judges may partici-
pate in special court-martial trials, the control of the military judi-
cial process remains firmly within the hands of the military. Certain
effects of the disease of command influence have been treated
once again, and more than likely will be tempered in the future by
the introduction of these improvements. The real cause of the dis-
ease itself, however, remains uninhibited by these changes. The
military judicial setting is still dominated by military commanders,
from the inception of charges to the completion of appellate review,
with the exception of the handful of cases each year that are subject
to review by the United States Court of Military Appeals, and in
these cases only a semblance of constitutional protection against
command control is afforded the military defendant.
The major threat of command influence in military trials at
the present time lies in the very fact that military commanders
have operational control of the military judicial system itself. Mili-
tary commanders still determine whether to sign charges in the
first place, which cases to refer to trial, and what court members
shall sit in judgment of the case. The military commander retains
the authority to select counsel, and in some situations, the trial
judge. Most importantly, the military future of every member of
the court-martial is still within the absolute discretion of the mili-
tary commander who convenes the court-martial.
Given these controls, most military commanders will experi-
ence little real difficulty in controlling future court-martial verdicts
and sentences in particular cases in which they have strong feelings.
The fact that formal pre-trial orientation of court-martial members
has at last been outlawed may simply cause the entire practice to
go underground (or further underground as the situation may be)
and, thereby, to become more difficult if not impossible to prove.
Thus, the most effective reform might well be the most logical: In
the absence of true necessity to control the court-martial process,
the entire system should be removed from the operational control
of the military altogether.
An objection to this suggestion immediately arises, but may be
answered just as quickly. It now seems clear that it is unnecessary
for military commanders to rig court-martial verdicts or sentences
in time of peace or war for the purpose of maintaining discipline
within our fighting forces. Discipline and obedience stem from
moral foundations and to a lesser degree from custom, but bear
very little correlation if any to either rigged or honest court-martial

convictions, in wartime or peacetime, past or future. The
threat of
court-martial bears as little correlation to good order and
discipline
in the military community as the threat of criminal prosecution
bears to good order within the civilian community. The willingness
to obey the law in both areas relates primarily to the ingrained,
in-
herent desire of the individual concerned, whether he is
a civilian
or a soldier, to do what is right and to do what is expected
of him,
and to refrain from doing what is wrong and unacceptable
to the
society in which he finds himself. The good citizen, whether
in uni-
form or not, tends to obey the law; when he does not
have this
tendency, there is very little that can be done, either in a
military
or civilian setting, that can force him to do so. Unprecedented
in-
stances of mass refusal to obey the law, in either the military
or
civilian community, can well destroy the community involved.
No correlation has ever been demonstrated between our mili-

tary victory in World War II and the court-martial of Private
John
Doe, whether that court-martial verdict was completely honest
or
whether it was fraudulently obtained through command
pressure.
The only necessity to court-martial Doe at all stems from
the same
reasons that would prompt his prosecution in civilian life if
he com-
mitted a civilian crime-and that is the social value or the
social
good that society seeks to obtain from the criminal prosecution
of
its lawbreakers generally. The soldier who commits an
offense is
and must be punished, not to maintain fear in the hearts
of his
fellow soldiers or to deter the criminally minded, but for
the pur-
pose of vindicating respect for law and order among the law
abid-
ing members of the military community. The command-influenced
or the command-rigged verdict or sentence lessens respect
for mili-
tary authority among all soldiers, law abiding or not. It
breed obedience, but breeds contempt does not
for the entire military estab-
lishment, and thus lowers the prospects for law and order
in the
unit concerned as well as its effectiveness as a military organization.
This is not a proposition that is unknown in military circles,

despite protestations to the contrary. Consider, for example,
the
current practice of the United States Army in dealing with
the in-
creasing problem of "anti-war" soldiers, soldiers who question
moral basis of our military involvement in the Vietnam the
War.
Thousands of these soldiers have indirectly refused combat
service
in that War through the simple expedient of committing
frequent
minor military offenses while still assigned in this country,
thereby
rendering their effective utilization as soldiers impossible.
These
young Americans who refuse military service in this fashion,
and
who crowd our military stockades to the breaking point, undergo

only token (special or summary) court-martial prosecution, their
immediately suspended (due to a "shortage"
sentences are almost
of stockade space), or they undergo no court-martial punishment
their
at all, but are routinely discharged prior to the expiration of
terms of service with administrative discharges. These soldiers
could be tried by general court-martial and given severe sentences.
Yet the Army has given up on them, not because the Uniform Code
of Military Justice does not provide ample provision for their effec-
tive prosecution, but simply because their unprecedented moral
objection to this war cannot be corrected by a fairly (or unfairly)
administered court-martial process.
Once the myth is laid to rest that the court-martial process is
an effective disciplinary tool, or that the commander should be al-
lowed to wield that tool in whatever fashion he alone thinks best to
achieve military discipline, despite constitutional due process safe-
guards that might bar his path, and once the conclusion is reached
that the serviceman is entitled to a fair trial uninfluenced by com-
mand pressures, the question as to whether the military commander
or
should continue to oversee the operation of military trials,
whether this responsibility should be exercised by civilian officials,
is much more easily answered.
In the past Congress has granted operational control of the
system of military justice completely to the military, and only in
the last two decades has it provided for a limited review power in
a civilian court, the Court of Military Appeals, which was created
in 1951. Experience has shown, however, that the Court of Military
Appeals is a decidedly weak court in eliminating command influence
in military trials. Military commanders have openly overridden the
law in this regard, and there is no assurance that they will not do
so in the future. The longstanding refusal of military commanders
to submit to the rule of law established by Congress for the opera-
tion of military courts reflects a serious loss of control over military
leaders by Congress. There can be little doubt that this is an im-
portant factor that also bears heavily upon the question of whether
the court-martial process should remain in overall military control.
To correct the inequities .in military trial practice, to assure a
fair balance of the conflicting interests of justice and discipline in
the military community, and to limit the growth of militarism in
this country generally, it is pressingly necessary to enforce a rule
of law in military trials. With only minor exceptions, the system
of military justice in this country must be completely removed from
the operational control of the military departments, and placed in
the hands of civilian administrators, preferably under the control

of the Attorney General of the United States.
Civilian trial lawyers, judges and legal administrators should
fill the roles presently filled by military legal officers in every
branch of military justice, both in this country and abroad; and
military commanders who in the future insist upon tampering with
military juries or any other phase of the operation ofmilitary law
should be indicted in United States District Courts, whether they
are engaging in "foreign relations" in overseas commands, or ef-
fecting "discipline" at domestic posts. Our lesson from history is
that lesser reforms, designed to leave the military judicial system
in the operational control of military commanders, or to leave the
punishment of military commanders who overreach the system in
military hands, are reforms in name only.
The only concession that seems to be necessary to protect the
interest of military discipline, the only concession necessary or de-
sirable to effect discipline within the entire military judicial
process, is that of signing charges against offenders of military law.
The military commander should, thus, continue to sign charges
against recalcitrant soldiers. All remaining functions within the
court-martial process, however, should be civilian operated and
civilian controlled. The decision to refer signed charges to trial by
court-martial, for example, should be solely that of a civilian ad-
ministrator; the trial should be conducted by civilian judge and
counsel, and all appellate procedures should be before civilian
judges and advocated by civilian counsel. Yet a further safeguard
should.be added to the above procedures. Specifically, both civilian
and military authorities should be granted the right to sign charges
against military offenders. This safeguard hopefully would elimi-
nate a longstanding tendency of military commanders to decline to
sign court-martial charges in embarrassing cases, or to cover-up
situations such as a My Lai massacre or a Green Beret assassina-
tion that could be embarrassing to the military establishment gen-
erally if prosecuted.
The trial of military cases should continue to be held before
military juries. This recommendation, however, is not made from
the viewpoint of furthering military, discipline. The military com-
mander's right to sign court-martial charges against military of-
fenders should be his only disciplinary tool, in the military-judicial
arsenal. The recommendation to utilize military jurors in court-
martial trials stems from more practical considerations. For exam-
ple, it would hardly be realistic to urge that south Alabama farmers
serve -on military jury .duty at: Fort Rucker, Alabama, or that the
so-called "computerized" juries of the inner-cities of the industrial

The ob-
northeast sit in military cases at Fort Dix, New Jersey.
jectivity of such jurors could be impaired for or against the de-
Thus, military jurors are more
fendant by a host of prejudices.
accomplished by impartial civilian
feasible, and if their selection is
if cur-
administrative methods as opposed to military channels, and
(one to each side)
rent military peremptory challenge procedures
civilian standards, the
are significantly enlarged to meet minimum
likelihood of bias is further reduced.
if
Additional improvement in this regard can be accomplished
to severing command ties.
juror panels are selected with a view
are re-
Once military jurors are free from command loyalties and
they will be capable
lieved of the millstone of command obedience,
writer's
of fair verdicts and sentences-at least, this has been the
military trial practice.
experience in over seventeen years of active
as
Thus, Congress should continue to utilize military personnel
that juror panels for
jurors in military trials, but provide by statute
un-
contested military cases be selected from distant commands,
as from
related to the defendant or defendants to be tried, such
another
separate Divisions, distant installations, or even from
criteria
branch of the service altogether. Panels selected on this
unit
should sit on area courts, as opposed to organizational or
be no division or corps courts-martial, and
courts. There should
convening authority at all, but only
there should be no military
ad-
area courts-martial under the control of a civilian judicial
ministrator.
To expedite trials in this setting, the current two-thirds vote,
for
or concurrence of two-thirds of the court-martial members
While the defendant loses the
guilty findings, should be continued.
of
safeguard of a unanimous vote on a guilty finding, a finding
guilty of less than two-thirds of the court members is an automatic
the
acquittal. Hence, there is at the present time, and should in
trials. The edge of the court-
future, be no "hung" jury in military
one
martial's verdict must remain sharp for it cuts two ways, only
This is a highly desirable
of which is favorable to the government.
feature of military law and should not be changed.
Once the taint of command control is circumvented in this
fashion, and the court-martial process is lifted from the shoulders
at
of the military commander, the Court of Military Appeals could
last set about its task of assuring a more meaningful and constitu-
im-
tional military jurisprudence within this country with a very
portant, final statutory protection, namely, that the various United
States courts of appeal be made available to entertain any extraor-
156 UCLA LAW REVIEW
dinary writs brought by military personnel that were denied by the

Court of Military Appeals. As such, our federal courts would ulti-
mately decide whether the interests of national security or military
necessity should override due process rights of servicemen, and if
so, to what degree. Only when procedural protections of this mag-
nitude come to pass will the conflicting interests of military neces-
sity and justice under the rule of law (if there is indeed any conflict
between these values) be fairly administered and balanced in our
nation's military courts.

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

A court-martial is tried, not by a jury of the defendant's peers

Historically, the American military commander has been re-

* A.B., Birmingham Southern College, 1948; LL.B., George Washington Univer-

But there are others who, while recognizing military neces-

sity as a worthwhile social value, would temper it with a conflicting

It is the purpose of the present study to inquire into the area

I. THE DOCTRINE OF COMMAND CONTROL:

American servicemen annually to maintain discipline within the military establish-

A. The Separate Society and its Court of Honor

16 (2d ed. 1904) [hereinafter cited as DAVIS]; WINTHROP, supra note 2,

principles, but is entirely arbitrary in its decisions [and] is . . .

B. The Agency Theory of Military Law

15 W. BLACKSTONE, COMMENTARIES OF THE LAWS OF ENGLAND 413-14 (10th ed.

Courts-martial are not courts, but are, in fact, simply instrumental-

An 1813 English court-martial exemplifies both the agency

18 W. WINTHROP, MILITARY LAW AND PRECEDENTS 54 (1886). Winthrop wrote

could ultimately lead to its defeat in battle. He therefore directed

20 Proceedings in revision, where acquittals have been returned to courts-

C. The Similarity Between the Early American and British

of and between these lines, accompanied by the Provost Marshal,

26 BENET, supra note 9, at 166-67 describes an American execution in very

thoroughly British in nature, and as such, thoroughly engrained

D. The United States Supreme Court and Command Control

to fantastic sentences, so crushing in their initial impact on individual and family

mainstream of military law in this country, despite the eagerness

89 The practice apparently originated in 1786 when Congress

beyond the pale of ordinary judicial safeguards. In Ex parte Val-

41 68 U.S. (1 Wall.) 243 (1863).

found guilty and sentenced to be cashiered from the service. The

disturb his entitlement to "allowances" for quarters and food, which

51 See Swaim v. United States, 28 Ct. CI. 173 (1893).

Having thus firmly sanctioned the constitutionality of the

55 206 U.S. 333 (1907).

process" available to members of the military. Mr. Justice Mc-

E. The Approaching War and Military Justice

screws were tightened even further. In 1916 Major General Enoch

II. THE ANSELL-CROWDER DISPUTE:

A. The Carnage of World War I

of Nations, the member states agreed to submit disputes among

I See notes 36-37 & accompanying text, Ch. I supra.

2 Army court-martial cases Nos. 106, 663 (1917). For a discussion

position of the noncommissioned officers in the Fort Bliss mutiny

B. General Ansell Advances a Solution

General Ansell's tour of duty as acting Judge Advocate General

C. The Grist-Mill Begins to Turn

In another instance, David Cortesini, a young Italian-American

18 The Cortesini case is listed in Hearings on S. 5320 at 246-47. It is also dis-

typical example of this phase of wartime justice. Kahn was con-

The trial of thirteen Black soldiers for mutiny and murder

21 Hearings on S. 5320 at 259.

vices were inundated with four million drafted young Americans,

24 Hearings on S. 5320 at 38.

dential approval, General of the Army Pershing personally made