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[COMMITTEE PRINT]

INVESTIGATIONS OF THE NATIONAL WAR EFFORT

\ OF THE

1 COMMITTEE ON MILITARY AFFAIRSj " HOUSE OF REPRESENTATIVES

SEVENTY-NINTH CONGRESS

SECOND SESSION

PURSUANT TO

H. Res. 20 A RESOLUTION AUTHORIZING THE COMMITTEE

ON MILITARY AFFAIRS TO STUDY THE PROG- RESS OF THE NATIONAL WAR EFFORT

EXCLUSIVELY F O R MEMBERS' USE NOT T O BE RELEASED

JUNE 1946

UNITED STATES

GOVERNMENT PRINTING OFFICP

88045 WASHINGTON : 1946 .

COMMITTEE ON MILITARY AFFAIRS

ANDREW J. MAY, Kentucky, Chairman

R. EWINQ THOMASON, Texas WALTER G . ANDREWS, New York OVERTON BROOKS, Louisiana DEWEY SHORT, Missouri JOHN J. SPARKMAN, Alabama LESLIE C. ARENDS, Illinois PAUL J. KILDAY, Texas CHARLES R. CLASON, Massachusetts CARL T. DURHAM, North Carolina J . PARNELL THOMAS, New Jersey

> JOHN EDWARD SHERIDAN, Pennsylvania PAUL W. SHAFER, Michigan ROBERT L. F. SIKES, Florida THOMAS E. MARTIN, Iowa PHILIP J. PHILBIN, Massachusetts CHARLES H. ELSTON, Ohio PAUL STEWART, Oklahoma FOREST A. HARNESS, Indiana ARTHUR WINSTEAD, Mississippi IVOR D. FENTON, Pennsylvania OHET EOLIFIELD, California J. LEROY JOHNSON, California JAMES A. ROE, New York CLARE BOOTHE LUCE, Connecticut

MELVIN PRICE, Illinois J. LINDSAY ALMOND, JR., Virginia JOSEPH R. FARRINGTON, Hawaii

EDWARD L. BARTLETT, Alaska JESUS T. PIRERO, Puerto Rico

JuLra WATTERSON, Clerk H. RALPH BURTON, General Counsel

CARL T. DURHAM, North Carolina, Chairman

ROBERT L. F. SIKES, Florida THOMAS E. MARTIN, Iowa ARTHUR WINSTEAD, Mississippi IVOR D. FENTON, Pennsylvania MELVIN PRICE, Illinois J. LEROY JOHNSON, California

C O N T E N T S

T. Present importance of the problem - _ _ _ - _ _ - - - - - - 11. Responsibility of Congress- _ _ - - _ _ _ - - _ - - - - - - - - -

111. Statistics _ - _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - IV. History of the -4rticles of War - - - - - - - - - - - - - - - - - V. The system of courts martial _____.-_-_-_------

VI. A system of justice or a system of discipline?---- VII. Punishment by ndmini5trativ~ action _ _ _ - - _ _ - - - -

VIII. Defects of the military justice svstem- - - - - _ - - - - 1. Investigation procedure- - - - - _ - - ,- - --- - 2. Composition of courts- _ _ - - _ - _ - - _ _ - _ - - 3. Court procedure _ - _ - _ - - - - - - - - - - - - - - - - 4. Defense counsel _ _ - - _ - _ _ _ _ - _ - - - - - - - - - - 5. Law member . . . . . . . . . . . . . . . . . . . . . . . . 6. Staff judge advocate _ 7. Board of Review and Military Justice Di 8. Pressure of command on the processes of 9. Position of the enlisted man- - - - _ - - - - - -

10. Secrecy and anonymity - _ - _ - _ _ _ - - - - - - - 11. Excessive and disparate sentences - - - - _ - 12. Prisons-_- - - - - -_-__-- - - - - - - - - - - - - - - -

IX. Lack of procedure to correct errors of justice---- X. Recommendations

JUDICIAL SYSTEM UNITED STATES ARMY

It is very important for American citizens to be convinced that when they serve in the United States Army they will be ruled by a system of justice which is not less scrupulous and fair than that which pre- vails in civil life. We have just finished a war in which millions of civilians were drafted into the military service, and we are confront- ing a decision as to whether there shall not be perpetuated a program of involuntary service for all young men. The good will of the former group toward the Army in which they served, and the acceptability of the universal service idea to the Nation a t large, are bound to be conditioned in part by prevailing conceptions as to what kind of treatment the citizen gets when he finds himself in the armed forces. No small part of this treatment is the discipline imposed by the Articles of War and the court-martial system which rests upon those articles as its foundation.

Ordinarily, in times of peace, very little atteqtion has been given to the whole matter. This is, in the f i s t place, because in periods of peace our military forces have been very small, and court-martial policies have affected very few people. Secondly, because enlistment in peacetime has always been voluntary, and anyone who entered the service knew he was freely accepting whatever discipline the Army imposed. Perhaps the most important point in this connection, however, in peace or in wartime, is the fact that those who might most feel themselves to have been subjected to cruelty and injustice are precisely the ones who are least in a position to say anything about it. If a man has been condemned by court martial, everything is against him. Por him to complain of unjust treatment is also to call attention to the fact that he is a condemned person. The publicity involved may bring him soci~ll degradation and Iws of livelihood; naturally he prefers oblivion. If he does speak, anything he says is discounted on the old principle that "the thief never speaks well of the judge who hangs him." If there have been miscarriages of justice in courts martial, the victims are almost necessarily inarticulate and theii4 friends and relatives can do little but mutter. This makes i t all the more imperative, morally speaking, for Congress and the War Department to seek the greatest possible assurance ihat what 'is officially called military justice be justice indeed, and that it be ad- justed, if adjustments prove necessary, to conform ns closely RS possible to the standards of individual rights which are established as part of our civil heritage in a democratic state.

It is noteworthy that the only times when serious public attention has been given to court-martial matters have been periods when we have been engaged in wars involving large umbers of men. In 1863, for example, Congress abolished flogging and branding in the

1

2 INVESTIGATIONS OF THE NATIONAL WAR EFFORT

Army. At that time flogging had actually died out, but deserters were still branded with a "Dl' on the hip. In 1916, when the United States was faced with possible war, the Articles of War were revised, though that revision was largely a matter of rearrangement without appreciable change of substance. After the First World War came to a close, there was much public discussion and congressional consideration of abuses which war conditions had brought to light, and which got extra attention because it was not a condemned victim but the Acting Judge Advocate General of the Army who led the criticisms. As a result, the Army Reorganization Act of 1920 included very considerable reforms. No substantial changes have been made since.

The present time, which concludes another period during which a considerable fraction of all American citizens have been subject to military law, is the appropriate time to inquire whether further changes are needed. The possibility that universal service may become a public policy after treaties of peace have been concluded, makes examination of the court-martial system particularly opportune.

It should be understood that Army courts martial are not courts of the United States exercising the judicial power of the United States under article I11 of the Constitution. Instead, they exist constitu- tionally under the authority of the Congress. This authority is found in article I , section 8, which declares:

The Congress shall have Power * * * to provide for the common De- fense. * * * To raise and support Armies. * * * To make Rules for the Government and Regulation of the land and naval Forces.

The Supreme Court declared in Dynes v. Hoover (20 How. 79 U. S. 1857):

These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between i t and the third article of the Constitution defining the judicial power of the United States; indeed that the two powers are entirely independent of each other.

I n the exercise of the power thus granted, Congress has enacted the Articles of War, and authorized the President, as Commander in Chief of the armed forces,. to exercise certain functions in connection with them. By the same authority, Congress has altered the Articles of War from time to time.

It is clear from the foregoing that constitutional responsibility for military justice is lodged not in the War Department nor in the President, but in the Congress of the United States.

,It may be added that Congress has a responsibilify exceeding its legal responsibility in this connection. In many other matters affecting the efficiency and welfare of the armed forces, the departments concerned may be expected to be alert to their needs, and to take the initiative in presenting to the Congress measures for expansion or improvement in their respective fields; but this cannot be expected in the field of military justice. The rights of citizens in our future forces will have to be protected by a watchful Congress or they may pot be protected.

ONS OF THE NATIONAL WAR EFFORT

flogging had actually died out, but deserters 1 a "D" on the hip. In 1916, when the United possible war, the Articles of War were revised, vas largely a matter of rearrangement without substance. After the First World War came

much public discussion and congressional con- rhich war conditions had brought to light, and ion because it was not a condemned victim but rocate General of the Army who led the criti- he Army Reorganization Act of 1920 included rms. Np substantial changes have been made

~hich concludes another period during which a of all American citizens have been subject to appropriate time to inquire whether further The possibility that universal service may

y after treaties of peace have been concluded, ;he court-martial system particularly opportune.

;ood that Army courts martial are not courts of rcising the judicial power of the United States le Constitution. Instead, they exist constitu- iority of the Congress. This authority is found which declares: Je Power * * * to provide for the common De- : and support Armies. * * * To make Rules for llation of the land and naval Forces.

,t declared in Dynes v. Hoover (20 How. 79

hat Congress has the power to provide for the trial and d naval offenses in the manner then and now practiced hat the power to do so is given without any connection rticle of the Constitution defining the judicial power of tha t the two powers are entirely independent of each

e power thus granted, Congress has enacted the ithorized the President, as Commander in Chief D exercise certain functions in connection with tuthority, Congress has altered the Articles of

foregoing that constitutional responsibility for lged not in the War Department nor in the Yongress of the United States. lat Congress has a responsibility exceeding its his connection. In many other matters affect- relfare of the armed forces, the departments con- ed to be alert to their needs, and to take the g to the Congress measures for expansion or mespective fields; but this cannot be expected in tice. The rights of citizens in our future forces ,ed by a watchful Congress or they may not be

INVESTIGATIONS OF THE NATIONAL WAR EFFORT 3

Such fundamental changes as providing that an accused man should be enhitled to counsel when tried and that a person shall not be tried any number of times for the same offense were not accepted by the Army until public protests against Army justice aftcr the First World War made it necessary. Army justice had proceeded for more than 140 years without these provisions. The Army began instituting them by regulations in 1919, and they were enacted into law by Congress in 1920.

111. STATISTICS

The full statistics of military justice during the war period have not been compiled due, it is said, to shortage of personnel; nor have the annual reports of the Judge Advocate General been made public for military reasons. The lakt annual figures to be published are those for the last full peacetime year, 1940, and pertain to the Regular Army. There were then 1,851 general court-martial trials, which resulted in 1,776 convictions and 75 acquittals. Of the 1,776 persons convicted, 1,684 received sentences of confinement. Also, in 1940, there were 4,406 special court-martial trials, with 4,185 convictions, and 10,134 summary court-martial trials, with 9,993 convictions. The average of acquittals in general courts martial was approximately 4 percent.

The only available exact figures for the years 1942, 1943, 1944, and 1945 pertain to general court-martial trials held in the United States. There were 63,876 such trials, resulting in 60,110 convictions and 3,766 acquittals. The percentage of those acquitted was 5.89. The percentage of acquittals in general court-martial cases in the First World War was 20.2.

It is estimated that overseas there have been between 25,000 and 30,000 general court-martial trials. No analysis of relative acquittals and convictions in this estimated number is available.

As of November 30, 1945, the Army held 33,741 general prisoners in confinement, including an estimated 11,000 overseas. Those in the United States were distributed as follows: 13,984 in disciplinary barracks, 5,200 in rehabilitation centers, 2,683 in Federal prisons, and 874 in guardhouses. Prior to November 30, 1945, prisoners to the number of 17,578 had been restored to the colors from rehabilitation centers and disciplinary barracks. During the period December 7, 1941, to February 22, 1946, 141 death sentences adjudged by Army courts martial were carried into execution; 71 for murder, 51 for rape, 18 for murder and rape, 1 for desertion.

IV. HISTORY OF THE ARTICLES OF WAR

Our Articles of War were taken directly from the British Articles of War at the timbof the American Revolution. The second Conti- nental Congress, on June 14, 1775, appointed a committee to "prepare rules and regulations for the government of the Army." George Washington was the f i s t chairman, but he was soon called away to, take command of the new Army and John Adams served in his stead. As Adams related in later years, the committee felt that the freedom- loving spirit of Americans would not take kindly to anything restric- tive and that whatever they might recommend would probably be thrown out anyway; so it was decided to go the limit, report the severe British code in toto, a ~ d see what would happen. The Congress was too busy just then organizing the Revolution to give any great

4 INVESTIGATIONS 02 THE N A T I O N A L W A R EFFORT

attention to the matter, and without much consideration adopted the report as presented, to the genuine astomshment of those who presented it. The result was that the British articles as they stood in 1765 were taken over bodily. Some 30 years later the British sub- ~tant~ially revised their code and have been constantly amending i t ever since. The Army Act in which they are embodied is reconsidered every year in Parliament. Our articles have remained fundamentally unchanged, although modifications were made in 1920 which will be discussed below.

The story, however, goes much further back than 1775. The British articles of that date had not Been greatly altercd during preceding centuries. They derived chiefly from the articles (published in English in 1621) of Gustavus Adolphus, King of Sweden, in whose armies many Englishmen served. These in turn were derived from Roman military laws, codified in the later days of the Empire but embodying military practice from earlier timcs. Austerities had indeed been trimmed down as the centuries advanced. Roman practices of flogging unruly soldiers to death, or beheading them, or cutting off their noses for lesser offenses disappeared in the course of time. Familiar terms, however, are to be founcl in the Roman military law- fines, reduction in rank, dishonorable dlacharge. There are familiar offenses too-fraudulent enlistment, desertion, straggling, disobedience of orders, cowardice in the face of the enemy, larceny, rape. By and large, there is truth in the staiement often made, that the Articles of War adopted in 1776 by the Continental Congress were virtually a transcript of the ancient Roman Articles of War.

This long history of the Articles of War has been gloried in by en- thusiastic military writers, some of whom seem to imply that since they "inspired a discipline that nchicved the conquest of the world" in Roman days, they can do the same thing for us. Apart from the question whether the victories of Roman generals or of Guskavus Adolphus are to be credited entirely to their military law, it might be pointled out that these rules have governed just, about as many defeated as victorious armies. Undoubtedly the Articles of War were more thoroughly enforced in the British armies of 1776 ( ~ h i c h lost the war) than by the Continentals (who won it).

The American Articles of War wcre not materially altered until the close of the First World War. By that time millions of Americans who had never before heard of it had become conscious of the system of justice practiced in the Army. Many were bitter a bout it. Possibly nothing much would have come of the discussion which then arose had not the Acting Judge Advocate General, Brig. Gen. S. T. Ansell, strikingly led the attack. A bill, thc Chambcrlain bill, was introduced in 1919, involving very consicierab!e changes in procedure. Extended hearings on this bill took place. Meanwhile, the War Department had instituted a study of its own under the Kicrnan committee.

The Chamberlain bill was described by one of its adversaries as aiming- to revolutionize our system of military justice by putting enlisted men on courts martial, separating .the administration of military justice from command in the Army, providing for a civilian appellate court with all the complicated machinery of the ordinary tribunal, and, in short, changing the Articles of War from an instrument for main ta in i~g discipline into a prize ring to display the prowess of the "guardhouse lawyer.

INVESTIGATIONS O F T H E N A T I O N A L

Controversy over the court-martial questio sometimes highly personal. I n the end the Cl passed, but the Army Reorganization Act of I< changes in the Articles of War to constitute a de a greater measure of justice and improvemc efficiency.

The most notable changes are listed herewitl (a) A "law member" is required to sit

either a military lawyer from the 3udg Department, or some othcr officer regarde (A. W. 8).

(b) Defense counsel is appointed for a courts by the convening authority, but th to counsel of his own selection, civilian col or military counsel if reasonably availab strange arrangement, the trial judge acivol cutor, was expected to advise the accusc if he did not have other counsel (A. Mr. 1'

(c) The accused is given the right of ch peremptory challenge (A. W. 18).

(d) The definition of "desertion" is bro person subject to military law who quits h of duty with intent to avoid hazm-dous dl service. This is one of the few cllanges wl as adding to thc severity oi the code. I n a of view it may be taken as a clarification o a grave military offense (A. W. 28).

( e ) More careful procedure wilh regard of thc court on challcnges, findings, and E Secret writtcn ballot is required, which M 1920 (A. W. 31).

(f) Rules governing evidence are requi as practicable to those generally recogniz~ the district courts of the United States (A.

(g) No reviewing or confkming authorit of trial for reconsidcration of an acquittal, guilty of any specification, or of a scnter creasing its severity. I t is difficult to ovl of this provision which is probably the IT the system since 1776 (A. Mi. 40).

(h) Persons convicted for an offense for alty is mandatory may be convicted only the court (previously by a two-thirds vc confinement for more than 10 years only 1[ (previously a majority vote) (A. W. 43).

(i) Penitentiary sentences in time of pec limits provided in United States statutes District of Columbia, for the same offen some exceptions penitentiary sentenccs n offenses of a civil nature so punishable District of Columbia (A. W'. 42).

( j ) The convening authority, prior to wl can be carried into execution, is required trial to his staff judge advocate or to the Ju

88045-46-2

IONS OT THE NATIONAL WAR EFFORT

er, and without much consideration adopted the to the genuine astonishment of those who pre- t was that the British articles as they stood in r bodily. Some 30 years later the British sub- :ir code and have been constantly amending it y Act in which they are embodied is reconsidwed ent. Our articles have remained fundamentally modifications were made in 1920 which will be

:r, goes much further back than 1775. The mt date had not been greatly altercd during They d~rived chiefly from the articles (pub-

621) of Gustavus Adolphus, King of Sweden, in Cnglishmen served. These in turn were clerived

laws, codified in the latcr days of the Empire ~ r y practice from earlier timcs. Austerities had down as the centuries advanced. Roman prac- y soldiers to death, or beheading them, or cutting ;ser offenses disappeared in the course of time. ver, are to be found in the Ronzan military law- nk, dishonorable discharge. There are familiar ent enlistment, desertion, straggling, disobedi- rdice in the face of the enemy, larceny, rape. is truth in the staiement often made, that the ~ted in 1776 by the Continental Congress were of the mcicnt Roman Articles of War. f the Articles of War has been gloried in by en- ~ters, some of whom seem to imply that since they : that nchieved the conquest of the world" in an do the same thing for us. Apart from the : victories of Roman generals or of Gustavus edited en'cirely to their military law. it might be rules have governed just, about aa many defeated

Undoubtedly the Articles of War were more n the British armies of 1776 (nrhich lost the war) tals (who won i-t). des of War were not materially altered until the r ld War. By that time millions of Americans heard of it had become conscious of the system

the Army. Many were bitter about it. Possibly lave come of the discussion which then arose had e Advocate General, Brig. Gen. S. T . Ansell, ck. A bill, tho Chamberlain bil!, was introduced .y considerable changes in procedure. Extended took placc. Meanwhile, the War Department y of its own under the Kiernan committee. bill was described by one of its adversaries as

:m of military justice by putting enlisted men on court? .dministration of military justice from command in the 4 ian appellate court with a,ll the complicated machinery , and, in short, changing the Articles of War from nn yg discipline into a prize ring to display the prowess of


Controversy over the court-martial question became heated, and sometimes highly personal. I n thc end the Chamberlain bill was not passed, but the Army Reorganization Act of 1920 embodied sufficient changes in the Articles of War to constitute a definite reform, involving a greater measure of justice and improvements in administrative efficiency.

The most notable changes are listed herewith: (a) A "law member" is required to sit on each general court,

either a military lawyer from the Judge Advocate General's Department, or some other officer regarded as specially qualified (A. W. 8).

(b) Defense counsel is appointed for all general and special courts by the convening authority, but the accused has the right to counsel of his own selection, civilian counsel if he so provides, or military counsel if reasonably available. Previously, by a strange arrangement, the trial judge advocate, who is the prosecutor, was expccted to advise the accused of his legal rights, if he did not have other counsel (A. W. l7),

(c) The accused is given the right of challenges, including one peremptory challenge (A. W. 18).

(d) The definition of "desertion" is broadened to include any person subject to military law who quits his organization or place of duty with intent to avoid hazardous duty or shirk important service. This is one of the few changes which might be regarded as adding to the severity of the code. I n a more reasonable point of view it may be taken as a clarification of what has always been a grave military offense (A. W. 28).

( e ) More careful procedure with regard to voting by members of the court on challenges, findings, and sentences is laid down. Secret writtcn ballot is required, which was not the case up to 1920 (A. W. 31).

Cf) Rules governing evidence are required to conform as far as practicable to those generally recognized in criminal cases in the district courts of the United States (A. W. 38).

(g) No reviewing or confirming authority may return a record of trial for reconsideration of an acquittal, or of a finding of not guilty of any specification, or of a sentence with a view to in- creasing its severity. It is difficult to overstate the importance of this provision which is probably the most drastic change in the system since 1776 (A. W. 40).

(h) Persons convicted for an offense for which the death penalty is mandatory may be convicted only by unanimous vote of the court (previously by a two-thirds vote), and sentences of confinement for more than 10 years only by a three-fourths vote (previously a majority vote) (A. W. 43).

(i) Penitentiary sen.tences in time of peace may not exceed the limits provided in United States statutes or in statutes of the District of Columbia, for the same offense (A. W. 45). With some exceptions penitentiary sentences may be given only for offenses of a civil ~ a t u r e so punishable by United States or District of Columbia (A. W. 42).

(.j) The convening authority, prior to whose action no sentence can be carried into execution, is required to refer the record of trial to his staff judge advocate or to the Judge Advocate General, 8804546-2


before approving or disapproving. This means the taking of legal opinion and constitutes a mild brake on arbitrary action by a commanding officer (A. W. 46).

(k) In the most important classes of cases, a system of automatic review is set up in the office of the Judge Advocate General. No authority may order the execution of a sentence involving death, dismissal, dishonorable discharge not suspended, or confinement in a penitentiary unless the Board of Review shall have held the record of trial legally sufficient to support the sentence. If the Board of Review, with the concurrence of the Judge Advo- cate General, finds the record legally insufficient to support the findings or sentence, or that errors of law have been committed injuriously affecting the substantial rights of the accused, the findings and sentence shall be vacated in whole or in part, and the record transmitted for a rehearing or other proper action. If the board and the Judge Advocate General disagree, both opinions are forwarded to the Secretary of War for the action of the President. When the President or any reviewing or confirming authority disapproves or vacates a sentence the execution of which has not been duly ordered, he may authorize or direct a rehearing before a court composed of officers other than those who served on the first court. The accused may not be tried again for any offense of which he was found not guilty in the first instance, nor can a more severe sentence than the original sentence be ordered.

In the less serious but more numerous cases not covered by the above, the records of trial by general court martial are to be examined by the office of the Judge Advocate General, and if found legally insac ien t are to be referred to the Board of Review for action similar to that described in the paragraph above (A. W. 50%).

(1) All &harges and specifications must be signed under oath (A; W. 70).

(m) No charges will be referred to trial until after a thorough and impartial investigation of them, and a report made by the investigating officer as to the reasonable probability of the truth of the matter, with the recommendation as to what disposition should be made of the case in the interests of justice and discipline. Pull opportunity is to be given the accused to cross- examine witn.esses against him, and to present witnesses on his own behalf. It is claimed that this provision fills the place of a grand jury in civil justice (A. W. 70).

(n) Before directing trial by general court martial, the appointing authority must refer the case to his staff judge advocate for advice (A. W. 70).

(0) Provisions are made against delay. Any officer responsible for unnecessary delay shall be punished as court martial may direct (A. W. 70).

The Manual for Courts Martial, United States Army, embodies the whole procedure of the court-martial system as built up by Executive order based on the Articles of War. It has practically the force of law. After the Army Reorganization Act of 1920, a period of practice and study was given to their operations, preparing the way for a new edition of the manual. This was issued in 1928 by order of President Coolidge. Executive orders amending it in some particulars have

INVESTIGATIONS OF THE NATIONAL 7

been issued during the war years just concluded striking changes have been those in the Table (

ments. The limitations on punishment for abse example, which formerly stood at confinement at for each day absent and forfeiture of pay for absent, have been entirely removed. Sentence offense have not been uncommon.

At this point a brief description of the systen its broad outline is opportune. What follows or all but the most important quaMcations applj ments.

There are three grades of courts martial: Thl special court, and the general court.

The summary court martial is a simple one-m detailed for the purpose, usually in addition to the regimental commander. There is no prose1 defense counsel. Charges are ordinarily broui commander of the accused. The charges and s to the accused; he pleads guilty or not guilty; wi the court-martial officer announces his finding z writes them in the form of an endorsement on th maximum of punishment which a summary court tion within limits for not more than 3 months, d of pay for not more than 1 month, confinement or a combination of these. Officers may not 1: court. Naturally, the vast majority of Army t courts martial, and these may be regarded as th disciplinary system. Under article of war 104, formalities are not necessary for disciplinary p u ~ character. Reprimand, withholding of privileg fatigue duty and restriction, or hard labor wit1 exceeding 1 week, may be imposed by a companj summary-court proceedings.

The second grade of courts martial is the s charges are of such gravity that a summary cow quate punishment, but not so grave as to requ court martial, the regimental commander may n court martial. The special court is composed of and may impose a maximum sentence of two-th pay for 6 months and confinement for 6 months. report is not kept, but a brief record of the pro containing summaries of important testimony. rank of warrant officer may be tried by special c is a trial judge advocate (i. e., prosecutor) and a in other courts martial, the findings and senten by the officer appointing it, before the trial can plete.

The highest military tribunal is the general co impose dishonorable discharge of an enlisted r officer, life imprisonment, or death. After cha ferred on the sworn statement of, usually, a con comparable officer, they are presented to the regir

,NS O F THE NATIONAL WAR EFFORT

r disapproving. This means the taking of legal itutes a mild brake on arbitrary action by a r (A. W. 46). important classes of cases, a system of auto- up in the office of the Judge Advocate General.

r order the execution of a sentence involving iishonorable discharge not suspended, or con- tentiary unless the Board of Review shall have trial legally sufficient to support the sentence. view, with the concurrence of the Judge Advo- 3 the record legally insufficient to support the :e, or that errors of law have been committed zg the substantial rights of the accused, the nce shall be vacated in whole or in part, and tted for a rehearing or other proper action. If Judge Advocate General disagree, both opin-

I to the Secretary of War for the action of the the President or any reviewing or confirming

oves or vacates a sentence the execution of $11 duly ordered, he may authorize or direct a L court composed of officers other than those e first court. The accused may not be tried m e of which he was found not guilty in the can a more severe sentence than the original

id. IS but more numerous cases not covered by the s of trial by general court mailial are to be office of the Judge Advocate General, and if Ecient are to be referred to the Board of Review

to that described in the paragraph above

and specifications must be signed under oath

will be referred to trial until after a thorough estigation of them, and a report made by the 3r as to the reasonable probability of the truth ;h the recommendation as to what disposition A the case in the interests of justice and dis- ortunity is to be given the accused to cross- , against him, and to present witnesses on his claimed that this provision fills the place of'a justice (A. w. 70).

cting trial by general court martial, the ap- must refer the case to his staff judge advocate

70). ,re made against delay. Any officer responsible elay shall be punished as court martial may

lrts Martial, United States Army, embodies the . court-martial system as built up by Executive cles of War. I t has practically the force of law. anization Act of 1920, a period of practice and heir operations, preparing the way for a new

This was issued in 1928 by order of President orders amending it in some particulars have


been issued during the war years just concluded. Probably the most striking changes have been those in the Table of Maximum Punish- ments. The limitations on punishment for absence without leave, for example, which formerly stood at confinement at hard labor for 3 days for each day absent and forfeiture of pay for 2 days for each day absent, have been entirely removed. Sentences of 5 yeprs for this offense have not been uncommon.

At this point a brief description of the system of courts martial in its broad outline is opportune. What follows omits many details and all but the most important qualifications applying to general statements.

There are three grades of courts martial: The summary court, the special court, and the general court.

The summary court martial is a simple one-man tribunal, an officer detailed for the purpose, usually in addition to his other duties, by the regimental commander. There is no prosecutor and usually no defense counsel. Charges are ordinarily brought by the company commander of the accused. The charges and specifications are read to the accused; he pleads guilty or not guilty; witnesses are examined; the court-martial officer announces his finding and his sentence, and writes them in the form of an endorsement on the charge sheet. The maximum of punishment which a summary court may inflict is restriction within limits for not more than 3 months, detention or forfeiture of pay for not more than 1 month, confinement for ' l month or less, or a combination of these. Officers may not be tried by summary court. Naturally, the vast majority of Army trials are in summary courts martial, and these may be regarded as the base of the Army's disciplinary system. Under article of war 104, however, even these formalities are not necessary for disciplinary punishments of a minor character. Reprimand, withholding of privileges for 1 week, extra fatigue duty and restriction, or hard labor without confinement not exceeding 1 week, may be imposed by a company commander without summary-court proceedings.

The second grade of courts martial is the special court. If the charges are of such gravity that a summary court cannot impose adequate punishment, but not so grave as to require trial by a general court martial, the regimental commander may refer them to a special court martial. The special court is composed of three or more officers, and may impose a maximum sentence of two-thirds of the offender's pay for 6 months and confinement for 6 months. A full stenographic report is not kept, but a brief record of the proceedings is drawn up containing summaries of important testimony. No one above the rank of warrant officer may be tried by special court martial. There is a trial judge advocate (i. e., prosecutor) and a defense counsel. As in other courts martial, the findings and sentence must be approved by the officer appointing it, before the trial can be regarded as complete.

The highest military tribunal is the general court martial. It may impose dishonorable discharge of an enlisted man, dismissal of an officer, life imprisonment, or death. After charges have been preferred on the sworn statement of, usually, a company commander or comparable oacer, they are presented to the regimental commander or


comparable officer whom we will refer to hereafter as the colonel. The colonel must conduct an investigation. While he may do so in person, he ordinarily details an investigating officer whose duty it is to examine the prima facie case thoroughly and impartially. He examines witnesses, including those whom the accused asks to be called. The accused has the right to be present a t the investigation, cross-examine witnesses, make personal statements.

The investigating officer may report that the charges are in proper form, that the evidence makes out a prima facie case? and that the matter is of sufficient gravity to justify a trial by a general court martial; or he may recommend that proceedings be dropped. If the colonel does not like the findings of the investigating officer, he can order a new investigation, appointing for the purpose another investigating officer. If, however, he approves a report recommending trial, he sends the papers on to the officer having court-martial jurisdiction in that com~nnd , n division commander or conlparable officer, whom we will call the general.

The general is required to submit the records to his staff judge advocate, who is a military lawyer from the Judge Advocate General's Department, for consideration and advice. The general does not, however, have to follow the advice given.

If the general decides to proceed with the case, he appoints a general court consisting of five or more officers. The senior in rank is termed the "president." He or another is designated "law member," and is especially charged with advising the court on legal questions which may arise in the course of the trial; his rulings are final on questions of the admissibility of evidence. A trial judge advocate is appointed who serves as prosecutor, and a defense counsel, both of whom may have assistacts. The accused has the right to ask for counsel of his own choosing. The latter, however, must not only be reasonably available, but must have the consent of his superiors to serve. Accused may also have civilian counsel a t his own expense.

The seventieth article of war directs that charges be forwarded within 8 days after the accused is arrested or confined; that a copy be served upon him; and that in time of peace the accused may not be brought to trial within 5 days subsequent to such service of the charges. The trial is reported stenographically, and the accused may ask for a copy of the record of trial. Only the bare record is given him, the investigating officer's report, with other supporting papers such as documentary exhibits, which may have had an important bcaring on the outcome of the trial and which may be important in future consideration of the case, being withheld. Prosecution. and defmse may challenge for cause, and each side has one peremptory challenge. Chargcs are brought under one or more of the Articles of War. Specifications are named under each charge.

Depositions may be entered as evidence, except for the prosecution in capital cases. The rules of evidence are, in general, thosc applicable in district courts of the United States.

The court acts as both judge and jury. While the sessions are legally open to the public, the public is usually unrepresented. The court meets in closed sessions when discussing the case and voting, separate votes being taken on each specification and charge. The court can find the accused guilty-of a lesser offense within the offense charged. Voting is by secret written ballot. A unanimous vote is

INVESTIGATIONS OF THE NATIONAI

required for a conviction on the charge of sp second article of war, which is the only offen penalty is mandatory.

For all other convictions, or "findings" as two-thirds vote is required. This affords less p than the unanimous vote of a 12-man. jury i other hand, less than a two-thirds vote for coi plete acquittal.

So far as sentences, as distinct from find unanimous vote is required for a death gentenc sentenced for 10 years to life by a three-fourtl require a two-thirds vote.

Before passing upon the sentence, the cou the military record of the convicted man. It practice, though not required, for each membc on a paper the sentcnce he believes proper. by the president in inverse order of severity, each until one is reached to which a suficier agree. Most of the 43 punitive articles have upon the sentences which may be imposed 1 simply prescribing "such punishment 2s a coui a fact which givcs wide 1aLitudc to thc pow( respect, very d;fiere~i from that of civd court wide discrepancies in punislments awarded fa On the other hand, the President of the Tjnit Manual for Co~arts Martlal, prescribes niaxi offcnses, which arc said to corrcspond to thosc Criminal Coclc. Some of thesc limitations werc Second World War. Tables of maximum pun enlistccl mcn . Officcrs are'entirely unprotcctc~

The signed dccumcnts pertaining to the cas graphic record of the trial, are next forv arded required to send the papcrs to his staff judg m-ittcn recommendation, but does not have 'mendation. Except when thcre is an acquitt gardcd as complete until thc general has act( return the record for corrcction of minor or clei may approve a finding of guilty or may apprc finding of guilty as involvcs a lcsser included ofl disapprove finding of gmlty. Hc may appr whole of a sentence, or hc may reduce it. If been committed, he may order a new trial. W an acquittal nor may hc increase the severity ol

Thc general aiso designates the place oi sentenccs are usually scrvcd at the post or can1 place; those of grcater length at a rchabilitatior barracks, or a pcnitcntiary. The general fie execution of that part of a sentence which calls charge untd after cordinernent has bcen served. offender to be restored to the colors, if his cond tory during the period of confinement.

This is not the cnd of the matter. Records o which are of coursc the more numerous cases,

NS OF THE NATIONAL WAR EFFORT

m we will refer to hereafter as the colonel. ~ c t an investigation. While he may do so in ,tails an investigating officer whose duty i t is facie case thoroughly and impartially. He

:luding those whom the accused asks to be IS the right to be present a t the investigation, , make personal statements. cer may report that the charges are in proper

makes out a prima facie case, and that the gravity to justify a trial by a general court 3mmend that proceedings be dropped. If the le findings of the investigati~g officer, he can In, appointing for the purpose another investi- :ver, he approves a rcport recommending trial, to the officer having court-martial jurisdiction ision commander or comparable officer, whom

red to submit the records to his staff judge ary lawyer from the Judge Advocate General's leration and advice. The general does not, the advice given. to proceed with the case, he appoints a general )r more officers. The senior in rank is termed r another is designated "law member," and is

advising the court on legal questions which of the trial; his rulings are final on questions

vidence. A trial judge advocate is appointed )r, and a defense counsel, both of whom may ~ccused has the right to ask for counsel of his tter, however, must not only be reasonably ave the consent of his superiors to serve. civilian counsel a t his own expense. le of war directs that charges be forwarded accused is arrested or confined; that a copy be ,hat in time of peace the accused may not be 1 5 days subsequent to such service of the :ported stenographically, and the accused may word of trial. Only the bare record is given oEcerls report, with other supporting papers zhibits, which may have had an important : of the trial and which may be important in

the case, being withheld. Prosecution. and for cause, and each side has one peremptory : brought under one or more of the Articles of e named under each charge. ntered as evidence, except for the prosecution des of evidence are, in general, those applicable United States. hh judge and jury. While the sessions are lic, the public is usually unrepresented. The ,essions when discussing the case and voting, aken on each specification and charge. The ;ed guilty.of a lesser offense within the offense secret written ballot. A unanimous vote is


required for a conviction on the charge of spying, under the eighty- second article of war, which is the only offense for which the death penalty is mandatory.

For all other convictions, or "findings" as they are called, only a two-thirds vote is required. This affords less protection. to the accused than the unanimous vote of a 12-man jury in civil courts. On the other hand, less than a two-thirds vote for con.viction results in complete acquittal.

So far as sentences, as distinct from findings, are concerned, a unanimous vote is required for a death gentence. The accused can be sentenced for 10 years to life by a three-fourths vote; other sentences require a two-thirds vote.

Before passing upon the sentence, the court hears a summary of the military record of the convicted man. It is said to be a common practice, though not required, for each member of the court to write on a paper the sentence he believes proper. These are read aloud by the president in inverse order of severity, and a vote taken upon each ,until one is reached to which a s~f ic ient number of members agree. Most of the 43 punitive articles have no specific limitations upon the sentences which may b e imposed for particular offenses, simply prescribing "such punishment 2s a court martial may direct," a fact which gives wide latitudc to the power of the court in this respect, vary diii'ereci from that of civil C O U ~ ~ S , and is productive of wide discrepancies in punishments awarded for comparable offenses. On the other hand, the President of the United States, through the Manual for Courts Martial, prescribes niaximunl limits for most offenses, which arc said to correspond to those of the United States Criminal Code. Somc of these limitations were suspended during the Secorid World War. Tables of maximum punishmen.t apply only to enlisted men. Officers are'entirely unprotected in this respect.

The signed dccuments pertaining to the case, iccluding the stenographic record of the trial, are next forwarded to the general. He is required to send the papers to his staff judge advocate's office for written recommendation, but does not have to follow the recom- 'mendation. Except-whcn thcre is an acquittal, the trial is not regarded as complete until the general has acted. The general may return thc record for corrcction of minor or clerical irregularities. He may approve a finding of guilty or may approve only so much of a finding of guilty as involves a lcsser included offense. He may wholly disapprove a finding of guilty. He may approve or disapprove the whole of a sentence, or he may reduce it. If a reversible error,has been. committed, he may order a new trial. He may not disapprove an acquittal nor may hc increase the severity of a scntence.

The general also designates the place of confinement. Brief sentences are usually served a t the post or camp where the trial took place; those of greater length at a rehabilitation center, a disciplinary barracks, or a penitentiary. The general frequently suspends the execution of that part of a sentence which calls for dishororable discharge until after corkinement has been served. This may enable an offender to be restored to the colors, if his conduct has been satisfac- tory during the period of confinement.

This is not tho end of the matter. Records of the less grare cases, which are of course the more numerous cases, are now sent to the

10 INVESTIGATIONS O F T H E N A T I O N A L W A R EFFORT

Military Justice Division in the ogce of the Judge Advocate General in Washington, where they are read as though an objection had been made and an exception taken as to the admission of questionable evidence or doubtful rulings. If the case passes this final round, it is considered closed. If not, it is referred to the Board of Review in the office of the Judge Advocate General, which board submits a written report. If the Board of Review considers that the substantial rights of the accused have been adversely affected, the case goes to the Sec- r e t s y of War, whose decision is final. Graver cases are automati- cally referred to the Board of Review without previous scrutiny by the Military Justice Division. The board considers only questions of law.

A further step is required in the case of some graver sentences. Sentences of death, dismissal of an officer, any sentence respecting a general officer, must be confirmed by the President. There are important exceptions to this, however, in time of war.

Finally, there is a clemency system. Application may be made by or on behalf of a general prisoner, i. e., one whose sentence involves dismissal or dishonorable discharge. If the prisoner's offense is not considered indicative of a fixed bad character, and his prison record is good, commanding generals of service commands and the Secretary of War have authority to restore a prisoner to duty or release him on home parole.

There is no provision in the system for completely reversing a conviction later found to be entirely wrong. A Presidential pardon can sometimes be invoked, but this does not restore the status, quo ante, nor does it remove the stain of an unjust conviction.

VI. A SYSTEM OF JUSTICE OR A SYSTEM OF DISCIPLINE? 1

Neither the theoretical nor the practical problems which arise in connection with courts martial can be understood unless it is realized that there is an unresolved question underlying the whole system. Is it the purpose of the system to administer true and exact justice or to secure by punishment or the threat of punishment the rela- tionship of command and obedience which is essential for a military organization? Is military justice something parallel in the military environment to civil justice in civil environment, or is it a function of command and an instrument for enforcing discipline? There is apt to be a fundamental difference in point of view here, between the citizen and the professional Army officer.

Historically, the professional Army officer is on solid ground. The Articles of War, in all their long descent from ancient Roman days, cxisted to make sure that soldiers were orderly and obedient, and that the right of command was protected and sanctioned a t every step. An undisciplined army is an ineffective army. Commands must be obeyed. "Their's not to reason why, their's but to do and die," as the poet Tennyson wrote, even though they "knew someone had blundered." In England, from which our fundamental military law and customs were derived, the Army was "The King's men."

Forasmuch as within all his majesty's realms and domains, the sole supreme power, government, command, and deposition of the militia, and of all forces both by sea and land, and of strength, is and by the laws of England ever was, the undoubted right of his majesty and his predecessors kings and queens of England; and that both or either of the houses of parliament ought not to pretend the same * * * (Statute of 13 and 14 Carolus 2).

INVESTIGATIONS O F T H E N A T I O N A I

, This conception, unmodified in England till included the complete jurisdiction of all matte] latter were the King's rules for his menlBanc compel obedience in terrorem. This correspc economic facts of those and preceding period the gentry class; the men from the lower or armed forces were made up of the personal ret King and his officers. On the Continent, arm] as the Hessians were in our Revolution, by their conduct could be laid down and military c obedience. It is notable that all the earlier c "military" offenses arising out of military si express mention of "civil" offenses such as bl Articles of War. This is true of the earliest of Richard I (A. D. 1 lgO), Richard I1 (A. D. 13t (A. D. 1621), and the British Articles of 176 were originally taken in 1775 and 1776. A11 "house regulations" for the military establishm were neither legal nor judicial systems per se.

It is reasonably clear that the framers of our a difference from the historic British system. the President powers over military justice pan British King enjoyed, the Constitution express Congress, in spite of the fact that the Presidf mander in Chief. Plainly, the Constitution ir dent (which means, for practical purposes, should not be the fountain of justice; Congres to make "rules for the government and regulatic forces." This power was carefully vested in 1

executive, branch of the Government. In our Army, however, the British traditior

to this day. The court-martial system is reg sional officers as a means of enforcing disciplir that officers are not interested in justice, but si of command and obedience is paramount. Ma regard a court martial as essentially a commi quisition for the information of thc commanc may properly enforce discipline in his comm according to the Articles of War, a court marti tive judgment. Its verdict is not a verdict 1

officer has approved it. Prior to 1920, the con send back an acquittal for retrial; the present re are, privately perhaps, regarded as unreasonablc of command, and some commanders seek ways c as we shall see later. One commanding officcr ( the point of view quite succinctly when rebuk .quittal by informing them that they were "app agency in the administration of discipline." I have becn claimed that "judicial power ceases independently and fearless1 y exercised, the verg tation in the power of any man--military comn a doctrine would mect with little concurrence and the present system of military justice still It of a real judicial system.

NS O F THE N A T I O N A L W A R EFFORT

)n in the office of the Judge Advocate General hev are read as though an objection had been n taken as to the admission of questionable lings. If the case passes this final round, i t is lot, it is referred to the Board of Review in the ocate General, which board submits a written f Review considers that the substantial rights In adversely affected, the case goes to the Sec- lecision is final. Graver cases are automati- &rd of Review without previous scrutiny by the ion. The board considers only questions of

quired in the case of some graver sentences. missal of an officer, any sentence respecting a : confirmed by the President. There are im- ;his, however, in time of war. 3mency system. Application may be made by .a1 prisoner, i. e., one whose sentence involves ~ l e discharge. If the prisoner's offense is not f a fixed bad character, and his prison record enerals of service commands and the Secretary

to restore a prisoner to duty or release him

m in the system for completely reversing a to be entirely wrong. A Presidential pardon ked, but this does not restore the status, quo re the stain of an unjust conviction.

I

~cal nor the practical problems which arise in martial can be understood unless it is realized

solved question underlying the whole system. le system to administer true and exact justice hment or the threat of punishment the rela- and obedience which is essential for a military tary justice something parallel in the military ustice in civil environment, or is it a function strument for enforcing discipline? There is apt difference in point of view here, between the iional Army officer. ,fessiond Army officer is on solid ground. The I their long descent from ancient Roman days, hat soldiers were orderly and obedient, and that L was protected and sanctioned a t every step. y is an ineffective army. Commands must be , to reason why, their's but to do and die," as {rote, even though they "knew someone had and, from which our fundamental military law ived, the Army was "The King's men." ,I1 his majesty's realms and domains, the sole supreme mand, and deposition of the militia, and of all forces d of strength, is and by the laws of England ever was, his majesty and his predecessors kings and queens of r cither of the houses of parliament ought not to pretend ,tute of 13 and 14 Carolus 2 ) .

INVESTIGATIONS O F THE N A T I O N A L W A R EFFORT 11 This conception, unmodified in England till the nineteenth century,

included the complete jurisdiction of all matters of military law. The latter were the King's rules for his men; and the courts existed to compel obedience in terrorem. This corresponded to the social and economic facts of those and preceding periods. Officers came from the gentry class; the men from the lower orders. In feudal times armed forces were made up of the personal retainers and levies of the King and his officers. On the Continent, armies could be rented out, as the Hessians were in our Revolution, by their kings. Rules for their conduct could be laid down and military courts existed to compel obedience. I t is notable that all the earlier codes dealt with purely "military" offenses arising out of military situations. There is no express mention of "civil" offenses such as bull< considerably in our Articles of War. This is true of the earliest surviving codes-those of Richard I (A. D. 1190), Richard I1 (A. D. 1385), Gustavus Adolphus (A. D. 1621), and the British Articles of 1765 from which our own were originally taken in 1775 and 1776. All of them were a sort of "house regulations" for the military establishments concerned. They were neither legal ndr judicial systems per se.

It is reasonably clear that the framers of our Constitution intended a difference from the historic British system. Instead of vesting in the President powers over military justice parallel to those which the British King enjoyed, the Constitution expressly vested tbis power in Congress, in spite of the fact that the President is designated Com- mander in Chief. Plainly, the Constitution intended that the Presi-

, dent (which means, for practical purposes, the War Department) should not be the fountain of justice; Congress, not the President, is to make '(rules for the government and regulation of the land and naval forces." This power was carefully vested in the legislative, not the executive, branch of the Government.

In our Army, however, the British tradition has largely remained to this day. The court-martial system is regarded by most professional officers as a means of enforcing discipline. This is not to say that officers are not interested in justice, but simply that the thought of command and obedience is paramount. Many professional officers regard a court martial as essentially a committee to conduct an inquisition for the information of the commanding officer so that he may properly enforce discipline in his command. Indeed, legally, according to the Articles of War, a court martial cannot render effective judgment. I ts verdict is not a verdict until the commanding officer has approved it. Prior to 1920, the commanding officer could send back an acquittal for retrial; the present restrictions on his action are, privately perhaps, regarded as unreasonablc trammels on the right of command, and some commanders seek ways of circumventing them, as we shall see later. One commanding officer (before 1920) expressed the point of view quite succinctly when rebuking a court for an ac- ,quittal by informing them that they were "appointed as an executive agency in the administration of discipline." However justly i t may have been claimed that "judicial power ceases to be judicial powtr, independently and fearless1 y exercised, the very moment it finds limitation in the power of any man--military commander or other," such a doctrine would meet with little concurrence in the military mird, and the present system of military justice still lacks essential elements of a real judicial system.

12 INVESTIGATIONS O F T H E N A T I O N A L W A R EFFORT

The characteristic Army point of view finds ample support in the writings of W. W. Winthrop, the "Blackstone of Military Law," whose famous work, Militdry Law, was published in 1886. He states (p. 52):

Not belonging to thc judicial brznch of the Government it follows tha t courts martial must pertain to the esecutive department: and they are in fact simply instrumental i l ies o j the execulaz~e power provided by Congress for the President as Commander in Chief, t o aid him in properly commanding the Army and Navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives. [Italics original.]

Prom this doctrine, for all the non sequitur of its first clause, unfortunate deductions have been widely accepted, the most important and lingering one being that Army courts are rightfully subject to thA power of command.

The Supreme Court has damaged this whole point of view by decisions which recognize courts martial not as executive agencies but as courts of justice. Perhaps the most important utterance is that in the case of Bunkle v. The United States, which quoted with approval an opinion furnished to President Lincoln by his Attorney General:

The whole proceeding from its inception is judicial. The t r id , findins, a,nd sentencc. are the solemn acts of a court organized and conducted under the a,u- thority of and according to the prescribed forms of law. I t sits to pass upon the most sacred questions of human rights that are ever placed upon trial in a court or justice; rights which in the very nat,ure 'of things, can neither be esposed $0 danger or subject to the uncontrolled v;i!l of any man, but which must be adjudged according to law (122 U. S. 568, 0ctober.Term 1886).

Changes made by Congress in 1920, under the influence of an aroused public opinion and tlle impact of Suprernc Court decisions, have undoubtedly modified, in a wholesome manner, not only the practice but probably to some extent also, the thinking of responsible military men, although the first scntence of the Army's Technical Manual an Military Justice Procedure reads:

Military justice is thc System for enforcing discipline and administering criminaI lam in the Army.

Actual attitudes revealed in many court-martial cases known to the committee show that the old concept is dying hard among professional military men, and thcsc attitudes are sometimes imitated by officers coming out of civilian life, perhaps because the latter consider themselves commendably military in doing so. Many lawyers and others entering the Army from civil life with ideas of justice based on the ancient Anglo-Saxon respect for the rights of the individual, find themselves shocked by disregard for these rights in the Army's military justice, and hundreds of tl~ousands, probably millions, of plain soldiers are contemptuous or bitter about it, even when they have not themselves been enmeshed in what is widely referred to as ('the mill." What should be a system of impartial justice is tied in with the chain of command-from the investigating officer, the trial judge advocate, the defense counsel, and the members of a court, who may all feel the heavy hand of their commanding officer upon them, up to thc Judge Advocate General who reports to the General Staff.

Our armies are not maqe up of feudal levies of foreign mercenaries, or the brow-beaten underlings of an undemocratic social system. They are made up of American citizens used to the protections of the Bill of Rights and the freedoms of our American way of life. They did not fight with such discipline and loyalty over the world because

/

INVESTIGATIONS O F T H E N A T I O N A L

they were subject to such practices as will be ci the contrary, the discipline even among thosc always to be found, might have been better hz assured of justice in Army courts. Even GI father, or grandfather, of our Articles of War,

Very requisite i t is, tha t good justice be holden a well as amoungst other our Subjects (a.rt. 135 of articl

VII. PUNISHMENT RP ADMINISTRAT

It should not be supposecl that the Articles of courts martial by any means exhaust the Arr ing offenders and eliminating them with ignor There are administrative processes which can pose, the mere threat of which serves as a detc

Enlisted mcn, for example, can bc given a ' is said to be "neither honorable nor dishono much of the practical effect of a dishono~ discharges are discussed at length in another re

OEcers have always been subjected to "re While not supposed, accorcling to the rcgulatic reclassification procedures unquestionably liav and are sometimes resorted to for punitive purp bond ac!ion is iiltclldcd to npply to off-cers whc for whicl; they are not fittcd, or Lold a comini~ than that for which they are professionally cr to possess habits and traits of character which affect their efficiency, or arc not qua1ific.d to Reclassification boards may reassign officers, (

rate thcm from the service entirely. In the officer may receive an "honorablc discharge" 01

which is a separation from the service "withc character" corresponding to the blne discharge

In a case which recently came to tllc att Affairs Committee, a lieutenant colonel WI

ninety-sixth article of war for causing, or cc ntion of the physical rccortls of certain en to prevent their being transferred from 1 Ground Forces, these enlistcd men being tr t,ions deemcd vital to the functioning of making falsc statcments concerning the m ing officer. The lieutenant coloilel was ad. and an official reprimand. The charges 1 such a way that a finding of guilty could ha the ninety-fifth article of war, which would able dismissal from the scrvicc mandatory sixth articlc of war, which would pcrrnit Aamy. The court selected the latter, in vi rccorrl whidi this officcr had madc in thc n Reserve officer before the war with an a1 ice for 8 years, during which hc had beci licntenant to lieutenant colonel and had rating lower than "cxccllent" (the sccod his ratings were "superior" (the highest , manding officers aslred for his assignment t

INS OF THE NATIONAL WAR EFFORT

rmy point of view finds ample support in the 'intlirop, the "Blackstone of Military Law," ilita'ry Law, was published in 1886. He state,s

%cia1 branch of the Government it follows that courts le esccntive department: and thcy are in fact simply five pourer providcd by C o ~ l g r e ~ s for thc l'rcsident. as :id him in properly commai~ding the -Army and hiavy herein, and utilized under his orders or those of his ntatives. [Italics original.]

'or all the non sequitur of its first clause, unfor- re been widely accepted, the nost important ~g that Army courts are rightfully subjcct to 1 1.

t has damaged t,his whole point of view by ize courts martial not as executive agencies but Perhaps the most important utterance is that The United States, which quoted with approval

) President Lincoln by his Attorney General: rom it,s iuccption is judicial. The trial, finding, a.nd cts of a court organized and conducted under the a.u- ) the prescrihcd forms of law. I t sit,s to pass upon t h e uman righis that ere ever placed upon trial in a court thc very nat,ure of t,hings, can neither be exposed to

coutrolled ~ i ! l of any man, but which must be adjudged j. 558, October ,Term 1886).

Congress in 1920, under the influence of an L and the impact of Supreme Court decisions, dified, in a wholesonle manner, not only the to some extent also, the thinking of responsible h the first sentence of the Army's Technical lstice Proceclure reads: stem for enlorcing discipline and administering criminal

realed in many court-martial cases known to hat the old concept is dying hard among pro- ancl these attitudes are sometimes imitated by

:ivilian life, perhaps because the latter consider bly military in doing so. Many lawyers and ny from civil lifc with ideas of justice based on m respect for the rights of the individual, find

disregard for these rights in the Army's mili- [reds of thousands, probably millions, of plain ous or bitter about it, even when they have not ;lied in what is widely referred to as "the mill." em of impartial justice is tied in with the chain : investigating officer, the trial judge advocate, ,d the members of a court, who may all feel the m~ma;nding officer upon them, up to the Judge I reports to the Gencral Staff. nade up of feudal levies of foreign mercenaries, mderlings of an undemocratic social system. Lmerican citizens used to the protections of the freedoms of our American way of life. They

1 disci~line and loyalty over the world because


they were subject to such practices as will be cited in this report. On the contrary, the discipline even among those recalcitrants who are always to be found, might have been better had the latter felt better assured of justice in Army courts. Even Gustavus Adolphua, the father, or grandfather, of our Articles of War, said in his:

Very requisite i t is, that qood justice be holden amoungst our Souldicrs, as n ~ l l as amoungst other our Subjects (art. 135 of articles published in 1621).

VII. PUNISHMENT BY ADMINISTRATIVE ACTION

I t should not be supposed that the Articlcs of War and the system of courts martial by any means exhaust the Army's power of disciplin- ing offenders and eliminating them with ignominy from the service. Tliero are administrative processes which can be used for this purpose, thc mcrc threat of which serves as a deterrent.

Enlisted men, for example, can be given a "bluc discharge" which is said to be "neither honorable nor dishonorable," but which has much of the practical effect of a dishonorable discharge. Blue discharges are discussed at length in another report of this committee.

Oficers have always been subjected to "reclassification boards." While not supposed, according to the regulations, to be disciplinary, reclassification proccdures unquestionably have a disciplinary effect and are sometimes resorted to for punitive purposes. Reclassification board action is intended to apply to offxers who are assigned to duties lor which thcy are not fitted, or hold a commission in a grade higher thail that for which they arc profossionally capable, or are deemed to possess habits and traits of character wliich actually or potentially affect their efficiency, or arc not qualified to hold any commission. Reclassification boards may reassign officers, demote them, or separate them from the servicc entircly. In the last-named case, the officer may ~ c c i v e an "honorable discharge" or simply a "discharge," which is a separation from the service "without specification as to character" corresponding to the blue discharge of enlisted men.

In n case which rcccritly came to the attention of the Military Affairs Committee, a lieutenant colonel was convicted under the ninety-sixth article of war for causing, or consentirlg to, the alteration of the pliysical records of certain ei~listed men at his post to prevent their being transferred from the Air Forces to the Ground Forces, tliese enlistcd men being trained men in Bey posi- tions deemed vital to the functioning of the post, and also for '

making false statements concerning the matter to an investigating officer. The lieutenant colonel was ad judged a fine of $2,400 ancl an official reprimand. The charges had been drawn up in such a way that a finding of guilty could have been brought under the ninety-fifth article of war, which would have made a dishonorable dismissal from the service mandatory, or under the ninety- sixth article of war, which would permit him to remain in the Anmy. The court selected the latter, in view perhaps of the fine record which this officer had made in thc Army. He had been n Reserve officer before the war with an almost continuous scrv- ice for 8 years, during which llc had been promoted from first lieutenant to lieutenant colonel and had ncver had an official rating lower than "excellent" (the second grade), while most of his ratings were "superior" (the highest grade). Several commanding officers asked for his assignment to them after the court 88045-46--3


martial had convicted him. Nevertheless, the verdict of the court, after judicial proceedings, must have bcen deemed iasuffi- cient. The lieutenant colonel was brought before a rcclassifica- tion board and given a "discharge without specification" (officers' blue discharge) on the ground of "habits and traits of character." It is inconceivable how one offense can constitute a habit or a trait of character, yct absolutely nothing was alleged against this officer but the action for which he had been tried in the court martial. The proceedings were in effect a retrial on the old charges with an increment addecl to the sentence. It was an illustration of double jeopardy for the same offensc, with an increase in the severity of the sentence: purely a puliitive action.

Reclassification procedure has been described as somethmg parallel to court-martial proceedings but lacking elementary safeguards elsewhere customary in either judicial or administrative law. T h c committee has evidence that the subject of this procedure is often sent to a reclassification center remote from h's previous scene of action, with the result that i t is difficult for him to get witnesses, not only by reason of distance and inconvenience but because he has to pay their expenses, so that he may have no witnesses a t all; that decisions are made largely on documentary evidence; that if the subject sees the allegations a t all prior to the hearing, it has frequently been on the very day of the hearing, with too short a time allowed him to examine them adequately; that the Government's allegations are briefed to the board in an informal session prior to the formal session, when the subject of the proceedings is not present and his side has not been heard, so that the members of the board may have their minds made up before the defense has had a chance; that the president of the board, who is always the officer senior in rank, often uses his weight and influence to dominate without even a pretense of impartiality; that even when votes are taken in inverse order of rank, the junior officers are perfectly well aware whether they are voting in accordance with his wishes; that x.~otes are taken orally; that no record of the proceedings is given the person most concerned.

Even the reclassification action w: s, in the early period of the war, deemed by the Army to be too cumbsrsome to eliminate dead- n ood with needed celerity, so a t the request of the Army the Sevcnty- seventh Congress psssed, in 1941, Public Law 190. This provides that during the emergency the Sevret~ry of 'Cli'ar may remove from the active list of the Rcgulsr Army any officer "for good and sufficient reasons appearing to the sat~sfaction of thc Secretary of War." Action is taken by the Secretary upon the recommcn$ation of a board of not less than five qeneral officers, and hls action is "final and conclusive." Serious criticism of the working of Public Law 190 has arisen in Congress and bills are now pending 'in both Houses for its amendment. It has been in force throughout the war, however, and has been fairly widely used to eliminate from the Army Regular officers of considerable rank, some of whom have had ratings of "excellent" or "superior" ovcr many years of service, and had even been promoted shortly prior to their forced retirement. A similar procedure existed in the First World War, but PO percent of the officers who came before such boards were reassigned and served capably and even with distinction, while in the Second World W'ar 100 percent of recommenclations of the boards were for immediate removal from the

I N V E S T I G A T I O N S O F THE N A T I O N A I

service, and there is no known case in which did not concur in the recon>.mendation.

Action separating officers from the service b: and boards convened under Public Law 19 records." I n spite of the impressive nature of possible that the records may not present a tr and there is truth and relevance in statement! recent case before the discharge review board was a retired general officer with a vast baclq Army legal and administrative procedure.

We know, of course, tha t a separation, with its cha statements upon the record. Wc need hardly remind statement has bccome embalmed in a military record i Too frequently those facts merit the designation only Ir record; they are not tested or established facts; they in more or less authority, carelessly or hast,ilg or inji too often they are only what somebody reported or sai they are but statements of a commanding oEcer w unfair, or has been misled; sometimes they are but 11 shaded to place himself in a better light; son~etimes the: unworthy design or through servility to some superior 1 nothing better than the groundless report of some psw they rest on nothing better than common ramp gosslp

During this war there has been a tendency to force r the service in lien of court martial by means of recor pendabilitp would have been developed h : ~ court-marl policy gives abundant opportunity for injui,ice. Suc timcs the rcsult of n species of compnlsion. Resides, t e ~ when advised by superiors, can easily be subjected to rary officers are in a p~s i t ion to apprehmd that a resig service has many of the stigmatizing consequences of dishonorable discharge by general court martial, consec of many military benefits, blotch their reputations thrc them in obtaining employment. In experience officer? into such ill-advised action b:r the threat of the court-m wit,h time t o consider, such an officer may seek to withd i t becomes effective and stand court martial, only Lo f ment refuses the request. (Quoted in the Army and 1945.)

VIII. DEFECTS OF THE MILITARY JUE

Among the criticisms of the system of mili existed during the Second World War are bhos headings below. While some are more fundan have importance. Each represents more than a,l points to something wrong with the system itseU All have arisen out of statements made by loyal are substantiated by information in the possess As illustrative of the points raised, a few caz detail.

1. Investigation procedure.-The enactment Articles of War in 1920 was int,ended to corrl injustices. Among its other provisions the nrti

No charge mill be referred to trial until after a thorou gation thereof shall have been made. This investigatio to the truth of the m a t h set forth in such charges, form position of the case shall be made in the interests of just

This provision is hailed as the equivdent of a tion, and the thoroughness with which th2se inve

N S OF T H E NATIONAL WAR EFFORT

cted him. Nevertheless, the verdict of the 1 proceedings, must have been deemed ineuffi- ant colonel was brought before a rcclassifica- :n a "discharge without specification" (officers' the ground of "habits and traits of charactcr." how one offense can constitute a habit or a

yet absolutely nothing was allcgcd against this ion for which he had been triecl in thc court ceedings werc in effect a retrial on the old lcrement eddecl to the sentence. I t was an lble jeopardy for the same ofl'ensc, with an :rity of the sentence: purely a puni!ive action. ? d u e has been described as somethmg parallel dings but lacking elementary safeguards else- her judicial or administrative law. Thc com- at the subject of this procedure is often sent ~ t e r remote from h s previous scene of action, is difficult for him to gct witnesses, not only incl inconvenience but because he has to pay he may have no witnesscs at all; that decisions documentary evidence; that if the subject all prior to the hearing, it has frequently been hearing, with too short a time allowed him to tely; that the Government's allegations are an informal session prior to the formal session, proceedifigs is not present and his side has not

? members of the board may have their minds fense has had a chance; that the president of s the officer senior in rank, often uses his weight nate without even a pretense of impartiality; are taken in inverse order of rank, the junior 511 aware whether they are voting in accordance votes are taken orally; that no record of the e person most concerned. tion action w: s, in the early period of the war,

to be too cumbwsome to eliminate dead- -ity, so at the request of the Army the Seventy- ;ed, in 1941, Public Law 190. This provides ency the Secret~ry of war may remove from Regulctr Army m y officer "for good and suffi- 5 to the satisfaction of the Secretary of War." he Secretary upon the recommendation of a 1 five general offic~rs, and his action is "final ous criticism of the working of Public Law 190 and bills are now pending in both Houses for

ts been in force throughout the war, however, dely used to eliminate from the Army Regular e rank, some of whom have had ratings of or" over many years of service, and had even y prior to their forced retirement. A similar e First TIC'orld War, but eo percent of the officers boards were reassigned and served capably and while in the Second World W'ar 100 percent of le boards were for immediate removal from the


service, and there is no known case in which the Secretary. of War did not concur in the recominendation.

Action separating officers from the service by reclassification boards and boards convened under Public Law 190 is based "upon the records." In spite of the impressive nature of this phrase, it is always possible that the records may not present a true picture of t,he facts, and there is truth and relevance in statements made by counsel in a recent case before the discharge review board. Counsel in this case was a retired general officer with a vast background of experience in Army lega.1 and administrative procedure.

We know, of course, tha t a separation, with its characterization, is backed by statements upon the record. We necd hardly remind you that merely because a statement has become embalmed in a military record is no assurance of its truth. 'Too frequently those facts merit the designation only because they appear on the record; they are not tested or established facts; they are only what somel~ody, in more or less authority, carelessly or hastily or injudicially accepted as facts; too often they are only what somebody reported or said or thought. Sometimes they are but statements of a commanding oficer who is inexperienced, or is unfair, or has been misled; sometimes they are but his own conclusions made or shaded to place himself in a better light; sonletimes they are statements made with unworthy design or through servility t o some superior view. Sometimes they arc nothing bet,ter than the groundless report of some pseudopsychiatrist; sometimes they rest on nothing better than common camp gossip. * * *

During this wa,r there has been a tendency to force resignations for the good of the service in lieu of court martial by means of record statements whose unde- pendability would have been developed by court-martial investigat,ion. Such a p,olicy gives abundant opportunity for injustice. Such resignations are sometimes the rcsult of n species of compnlsion. Resides, temporary officers, especially when advised by superiors, can easily be subjected to imposition. Few temporary officers are in a position to apprehend that a resignation for the good of the service has many of the stigmatizing consequences of a sentence of dismissal or dishonorable discharge by genera.1 court martial, consequences that deprive them of many military benefits, blotch their reputations throughout life, and prejudice them in obtaining employment. I n experience officers can easily be stampeded into such ill-advised action b.7 the threat of the court-martial alternative. Later, wit,h time to consider, such an officer may seek to withdraw his resignation before i t becomes effective and stand court martial, only to find that the War Depait- ment refuses the request. (Quoted in the Army and Navy Journal, December 1945.)

VIII. DEFECTS OF THE MILITARY JUSTICE SYSTEM

Among the criticisms of the system of military justice as i t has existed during the Second World \Tar are those described under the headings below. While some are more fundamental than others, all have importance. Each represents more than an occasional abuse, and points to something wrong with the system itself or its administration. All have arisen out of statements made by loyal Army personnel. - All are substantiated by information in the possession of the committee. As illustrative of the points raised, a few cases are cited in some detail.

I. Investigation procedure.-The enactment of article 70 in the Articles of War in 1920 was intended to correct frequent previous injustices. Among its other provisions the article states:

No charge will be referred to trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the t ruth of the matt,er set forth in such charges, form of charges, and what disposition of the case shall be made in the interests of justice and discipline.

This provision is hailed as the equivalent of a grand jury investigation, and the thoroughness with which thase investigations a.re made is

16 I N V E S T I G A T I O N S O F T H E N A T I O N A L W A R E F F O R T

alleged as the reason so few trials result in acquittal (5 to 6 percent). I n 1937, article of war 70 was amended'by the omission of the words

"or special," so that investigation is no longer required before trial by special court martial.

Directions for the investigation are in some respects vague both in the article and in the Manual for Courts Martial. Some investigating officers regard themselves as intelligence officers or police detectives, seeking for evidence and setting traps for accused persons whose conviction is desired.

An officer in the Mediterranean theater was accused, on very flimsy evidence, of a homosexual offense. The investigating officer scouted around for more evidence. Among other things, he interviewed the five tentmates of the accused, not in the presence of the accused and without his knowledge (cf. A. W. 70): Getting nothing out of these tentmates, the investigating officer then broadcast the nature of the accusations, so that the charges became a matter of conversation in the area. Finally, at a party in a hotel some distance away, another officer who had reason for personal grudge against the accused, hearing the talk, came for- ward with promise of assistance in the form of testimony based on an alleged incident in the United States 6 months before. His testimony was inherently self-contradictoly and entirely unsup- ported. The accused officer was sentenced at Oran to 5 years imprisonment and dismissal.

Purthermore, if the investigating odicer is really to perform the function of a grand jury, he should not be removable by the commanding officer for making a report too favorable to an accused person whom the commanding officcr might want convicted.

An officer of field rank traveling across the country, and sitting in a club car with a gentlcman and a lady, had the misfortune to have a tumbler containing a highball spilled upon his trousers, making a wet stain. An M P coming through the train at that time saw the trousers and reported that the officer was drunk and unable to control his natural functions. The first investigating officer appointed on this case recommended against trial. His recommendation was approved by the acting commanding officer of the post, a colonel. The commanding general, ho~evc r , ordered a new investigation by a second investigating officer. The acting commanding officer of the post, too, felt the weight of the general's displeasure; he was transferred to insignificant jobs and invited to resign. The new investigating officer in bhis case recommended trial. The unforhmate field officcr was convicled (although the lady haveled 1,200 miles across the country to testify that hewas not intoxicated and that the accident really happened) ; fined $500, and given an official reprimand. A brigadier general sat as head of this court. It was felt by those in a position to know that the court itself wanted to acquit, but was afraid to brave thc commanding general's ire. A further commcntaly on this case is provided by the fact that the court's findings were approved at the headquarters of the Eastern Technical Training Command, and subsequently by the Board of Rcview at Wash- ington, before the accused had time to file a brief.

The investigating function is so important a phase of military justice that only officers of maturity and responsibility should be assigned to the duty of investigating charges.

I N V E S T I G A T I O N S O F T H E N A T I O N A L

At the Lincoln Air Base, in 1944, Sgt. ( of brutality to prisoners in thc stocka~ officer of the base (illegally) originally ordl ing any investigation of his own, at the req for the commanding general of the Scconc investigation was entrusted to a lieutcna mended trial after seeing only two prosec defensc witnesses. Counsel for the defe case and, observing the incompleteness of 1 rogated this lieutenant, m~king a record admitted be had ma& no actual investigat this to Lhe trial judge advocate, who init tion, this time by a lieutenant colonel. than 30 miincsses and confidecl to a frit could scc no real reason for bringing West 1

he found it prudent, officially, to recomme Proceedings had already been started un

the forced retirement of an officer of fie1 graduate, on grounds of irascibility, when : but different nature were brought against by general court martial. Industrious civ then employed to represent this officer befo discovered irregularities of procedure and tion of the ends of justice, and proceed1 witnesses on whose testimony the office] These were found in remote and widely country. All three voluntarily signed (

repudiating their testimony, stating that t nally because they were coerced by the th by the physical violence of an intelligence said he had never seen the accused and sight. Another had not been a t the pal where the offense was supposed to have bee1 had been a t the party but had not seen th discrcpancies between the description of tl their testimony and the actual room itself, registration, which had originally made co genuineness of these witnesses. When the by civilian counsel, the case against the of Secretary of War was moved to upset thc ceedings on the basis of Public Law 190 u fact of the court martial was mentioned part of the officer's record, though the boar of counsel, not to consider it. He was cor the Army on half pay.

Other abuses in connection with the investig arisen during the war. While it is difficult to o tion as to timcs, places, and persons, there is el files of the committee to indicate the real existe far beyond mcre crtrelessness or prejudice on t gating officer. They involve constraint practi sons prior to their trial, to force confessions or or (in the case of officers) willingness to 'lresis service" to avoid court martial. Article of u

,NS OF THE NATIONAL WAR EFFORT

1 few trials result in acquittal ( 5 to 6 percent). .r 70 was amendeSby the omission of the words vestigztion is no longer requircd before trial by

vestigation are in some rcspects vague both in Ianual for Courts Martial. Some investigating vcs as intelligence officers or police detectives, and setting traps for accused pcrsoils whose

e Mediterranean theatcr was accused, on very of a homosexual offense. The investigating ~und for more evidence. Among other things, le five tentmates of the accused, not in the :used and without his knowledge (cf. A. W. 70). ut of these tentmates, the investigating officer e nature of the accusations, so that the charges ,f conversation in the area. Finally, at a party stance away, another officcr who had reason for gainst the accused, hearing thc talk, came for- e of assistance in the form of testimony based lent in the United States 6 months before. His lerently self-contradictoly and entirely unsup- used officcr was sentcnccd at Oran to 5 years dismissal. investigating oificer is really to perform the

ury, he should not be removable by the com- king a report too favorable to an accused person g officer might want convicted. Id rank traveling across the country, and sitting a gentleman and a lady, had the misfortune to

oiitaining a highball spilled upon his trousers, ,in. A11 MP coming through the train at that sers and reported that the officer was drunk and his natural functioas. The first investigating on this case recommended against trial. His

was approved by the acting commanding officcr lonel. The commanding general, however, or- ;tigation by a second investigating officer. The ng officer of the post, too, felt the weight of the ure; he was transferred to insign;nificant jobs and . The new investigating officer in this case 11. The unforhnate field oEcer was convicted b7 Lraveled 1.200 miles across bhe country to testify toxicated and that the accident really happened) ; ven an official reprimand. A brigadier general is court. It was felt by those in a position to ~ u r t itself wanted to acquit, but was afraid to ~nding general's ire. A further commentary on lded by the fact that the court's findings were headquarters of the Eastern Technical Training ,ubsequently by the Board of Review at Wash- e accused had time to file a brief. function is so important a phase of military cers of maturity and responsibility should be f investigating clmrges.

INVESTJGATIONS OF THE NATIONAL WAR EFFORT 17

At the Lincoln Air Base, in 1944, Sgt. Odus West was accused of brutality to prisoners in thc stockade. The commanding officer of the base (illegally) originally ordered trial without making any investigation of his own, at the request of the air inspector for the commanding general of the Second Air Force. LaLer an investigation was entrusted to a lieutenant who a t first recommended trial after seeing only two prosccution witnesses and no defensc witnesses. Counsel for the defense :hen entcring the case and, observing the incompleteness of the investigation, inter- rogated this lieutenant, making a recorcl of what he said. He admittcd be had made no actual investiga.tion. Then he reported this to Ihe trial judge advocate, who iniliatcd a new investigation, Ihis time by a lieutenant colonel. The latter saw more than 30 wilncsscs and confided to a friend afterward that he could sce no real reason for bringing West to trial. Nevertheless, he found it prudent, officially, to recommend trial.

Proceedings had already been started under Public Law 190 for the forced retirement of an officer of field rank, a West Point graduate, on grounds of irascibility, when accusations of a serious

i-

but different nature were brought against him, and he was tried by general court martial. Industrious civilian counsel who were then employed to represent this officer before the Board of Review discovered irregularities of procedure and inadequate consideration of the ends of justice, and proceeded to locate the three witnesses on whose testimony the officer had been convicted. These were found in remote and widely separated parts of the country. All three voluntarily signed depositions completely repudiating their testimony, stating that they had testified origi- . nally because they were coerced by the threats and (in one case) by the physical violence of an intelligence officer. One of them said he had never seen the accused and did not know him by sight. Another had not been a t the party in the hotel room where the offense was supposed to have been committed. Another had been a t the party but had not seen the officer there. It was discrcpancies between the description of the hotel room given in their testimony and the actual room itself, and certain facts as to registration, which had originally made counsel suspicious of the genuineness of these witnesses. When the facts were brought out by civilian counsel, the case against the officer collapsed and the Secretary of War was moved to upset the conviction. The proceedings on the basis of Public Law 190 were continued and the fact of the court martial was mentioned in the board as being part of the officer's record, though the board voted, on the protest of counsel, not to consider it. He was compulsorily retired from the Army on half pay.

Other abuses in connection with the investigation of charges have arisen during the war. Wbile it is difficult to obtain precise confirmation as to times, places, and persons, there is enough testimony in the files of the committee to indicate the real existence of abuses which go far beyond mere carelessness or prejudice on the part of the investigating officer. They bvolve constraint practiced upon accused persons prior to their trial, to force confessions or damaging admissions, or (in the case of officers) willingness to "resign for the good of the service" to avoid court martial. Article of war 70, which was in-

18 INVESTIGATIONS OF T H E NATIONAL WAR EFFORT

tended to safeguerd the right of the accused, has been perverted to precisely the opposite use.

It has been common to hold persons who have not been tried incommunicado for long periods. An officer in one of the cases described below, whose substantia! innocence there is no reason to doubt, pleaded guilty, deciding that to do so would at least let him out of incommunicado confinement where he has been for weeks.

In some jurisdictions, men of unquestioned mental health have been kept in the psychiatric wards of hospitals with very undesirable companions, "to soften them up."

The accused has no right to counsel during the investigation. No matter how inadequate the investigation or how prejudiced and

unfair, or how incomplete, no matter even if there is no investigation a t all, defects of this sort may not be considerecl in thc revicw of the case by the ,Board or̂ Review in N'as'uiington, because iailurc to comply with article of war 70 is not, per se, an error injuriously affecting the substantial rights of the accused, according to the Judge Advocate General, The amazing decision that article of war 70, "though mandatory in language" is '(directory only," that failure to comply with it is not a fatal error, and hence not jurisdictional, is dated January 30, 1943. Its file number is SPJGK, CM228477. It has never been published, but has been operative since that time. This ruling, which reverses an earlier Judge Advocate General's decision that had been in effect for 15 years, vitiates the plain intent of Congress to provide a fair trial. I t is wholly unrealistic, so far as fundamental justice in Army courts is concernd, because as a matter of fact though not of theory, the report of the investigating officer, recommending trial, is actually taken by most courts as creating a presumption that the accused is guilty.

The provision made in 1920 for investigating procedure prior to trial is a wholesome one, and in the main probably has fulfilled its purpose of protecti~g soldiers from unwarrsnted charges. Weak- nesses and abuses in connection with it have, however, appeared. Attention should be given to protecting the procedure to make i t eflective for its original purpose.

2. Composition o j courts.-Although article 4 of the Articles of War directs that the appointing authority shall detail to serve on courts martial only officers who are qualified by age, training, experience, and judicial temperament, and that officers having less than 2 years' service shdl constitute no more than a minority of the membership, it is well known that these stipulations have been widely ignored during the Second World War. Nor can this be attributed only to war pressure or insufficient ~ersonnel. There is a widespread belief among intelligent soldiers that courts have been piclwd for the reverse of these qualities, and that not so much a qualified as a weak and compliant court bas beell the objective. A solclier commelltillg on 2 years' experience in the Pacific area, during part of which he han- dled court-martial records at a message center in Manila, declared:

I was all the time seeine, the names of officers whom I personally knew t o be ignorant m m and inefficient officers, appearing 011 l ~ s t s of court members.

I n the Odus West case, the court was presided over by a dental ~ f i k c r who had never participated in a trial before, and composed

INVESTIGATIONS O F T H E NATIGNA:

of four junior officers drawn, respective Corps, the Meclical Corps, the Medical and the Quartermaster Corps, not one c participated in a trial, none of whom practical problem of military police work had previous trial experience was the tri the prosecutor.

An even more searching question has bet time: Why may not enlisted men serve on where enlisted men are being tried? Not el officer may serve on a court martial. The C proposed that three soldiers serve on a genera on a special court martial. This proposal to trial by judgment of one's peers into Army ct the reforms of i920. Curiously enough, the 1

serve on courts martial has exisbed in ihe Fren and even the stern Articles of King Gusta that six sergeants and quartermasters shoulc captains, and lieutenants as mcmbers of his 1 3 It is said that a simihr practice existed in the

I n opposition to proposals that enlisted mc courts martial whcn enlisted men are being r;i that enlisted men do ~ o t desire this right, th more stern in their sentences than officers, tha to prcsswcs which would m&e them unfai sufficient education. None of these objection: because the experiment has ncver been tried. rest more on tradition than on present-day coi seem adequate to justify denying to a citizen 1- to trial by judgmcnt of his peers and requirin! judge and jury made up entirely of his supr representative of the grade to which he bclong

3. Court procedure.-If the directions of th the hlanual for Courts Martial were always c laid down in print, there would be few things actual court proceedings. That they nre oftci such aspects as bringing men to a speedy trial, admitted, publicity of proceedings, and other d that is constantly coming to light. I t is ofter the reasons. The necessary haste of militar; tlleaters is one oi the more creditable ones, but alwavs pl-evail.

The matter of obtaining the presence of wii is important. Witnesses for the prosocution CF

difficulty becnusc the trial judge advocate (pr powers extending to any part of the United Sta possessions. The dcfense counsel has no such qucst the proscrutiny officw to yoci1r.e his rr The Iatte:, it is implied in the laanuc!, will ac witnesses as he would in regard to his own; b not always do so, and the defense may be great1 by the trial judge advocate to summon wit1

INS OF T H E NATIONAL WAR EFFORT

le right of the accused, has been perverted to use. )n to hold persons who have not been tried ~ n g periods. An officcr in one of the casns ;e substantial innocence there is no reason to deciding that to do so would at least let him confinement wllcre he has been for v;ccl<s.

ns, men of ullcluestionecl mental health have liatric wards of hospitals with very undesirable 1 them up." right to couilsel during the investrigation. equate the investigation or how prejudiced and letc, no matter even if there is no investigation ort may not be consitlercd in thc review of the cviciv in i \ .us l~ing~o~i , because inil~uc to comply is not, pcr se, an error injuriously afr'ecting the ,he accused, according to the Judge Advocate g deeisioll that article of war 70, "though man- s "directory only," that failure to comply with and hence not jurisdictional, is dated January

lber is SPJGK, CM229477. I t has never bcen n operative since that time. This ruling, which ige Advocate General's decision that had been vitiates the phi11 intent of Congress to provide dly unrealistic, so far as fundamelltal justice in nrd, becnusc as a matter of fact though not of the investigating officer, rccommending trial, is )st courts as creating a presumption that the

c in 1920 for investigating procedure prior .to me, and in the main probably has fulfilled its ; soldiers from unwarrsnted charges. Weak- connection with i t have, however, appcared.

given to protecting the procedure to malre i t a1 purpose. )urts.-Although article 4 of the Articles of War inting authority shall detail to serve on c o u t s who are qualified by age, training, experience, nent, and that officers having less than 2 years' ,e no more than a minority of the membership, t these stipulations have been widcly ignored orld War. Nor can this be attributed only to hcieat personnel. There is a widespread belief iers that courts have been picked for the reverse cl that not so much a qualified as a weak and been the objective. A soldier commenting on . the Pacific area, during part of which he han- :ords a t a message center in Manila, declared: - 11% the names cf officsrs whom I persorlally knew t o be -nt officers, appearing 011 lists of court members.

est case, the court was presided over by a dental ever participated in a trial before, and composed

INVESTIGATIONS OF TEE NATIONAL WAR EFFORT 19

of four junior officers drawn, respeclively, from the Veterinary Corps, the Medical Corps, the Medical Administrative Corps, and the Quartermaster Corps, not one of whom had previously participated in a trial, none of whom was familiar with the practical problem of military police work. The only officer who had previous trial experience was the trial judge advocate, i. e., the prosecutor.

An even more searching question has been raised from time to time: Why may not enlisted men selve on courts martial in cases where enlisted men are being tnecl? Not even a noncommissioned officer may serve on a court martial. The Chamberlain bill in 1919 proposed that three soIdiers serve on a gencral court martial, and one on a special court martial. This proposal to carry the civil right of trial by judgment of one's peers into Army courts found no place in the reforms of i920. Curiously enough, the right of enlisted men to serve on courts martial has existcd in ihe French and German Armies, and evcn the stern Articles of King Gustavus Adolphus directed that six sergeants and quartcrmastera should sit with the colonels, captains, and lieutenants as members of his 13-man regimental courts. It is said that a similar practice existcd in the Confederate L4nny.

I n opposition to proposals that enlisted men be allowed to sit in courts martial when enlisted men are being tried, i t has been alleged that enlisted men do ~ o t dcsire this right, that they would be even more stern in their sentences than officers, that they would be subject to pressures which would malre them unfair, and that they lack sufficient education. None of these objections has been proved valid because the experiment has never been tried. It is possible that they rest more on tradition than on present-day conditions. They do not seem adequate to justify denying to a ci~izen his constitutional rights to trial by judgmcnt of his pecrs and requiring that he be tried by a judge and jury made up entirely of his superiors without a single representative of the grade to which he belongs.

3. Court procedure.-If the directions of the Articles ol War and the Manual for Courts Martial were always carried out as they are laid down in print, there would be few things to complain of in the actual court proceedings. Tnat they are oftcn not so carricd out, in such aspects as bringing men to a speedy trial, the nature of evidence admitted, publicity of proceedings, and other diverse matters is a fact that is constantly coming to light. It is often difficult to determine the reasons. The necessary haste of military operations in active theaters is one of the more creditable ones, but such conditions do not always prevail,

The matter ot obtaining the presence of witnesses for the defeme is im~or tan t . Witnesses for the~~rosecution can be obtained without difficdty because the trial judg; advocate (prosecutor) has subpena powers extending to any part of the United States, its Territories, and possessions. The defense counsel has no such powers, but must request the prosrcutinq officer to procure his more distant witnesses. The Iatte:, i t is implied in %he loanus!, will act in regard to defense witnesses as he would in regard to h ~ s own; but in practice he does not always do so, and the defense may be greatly hampered. Refusal by the trial judge advocate to summon witnesses wanted by the


defense may be overruled by the commanding officer, but in experience this does not seem to happen.

In the Odus West case, the prosecutor refused to send for the provost marshal and the prison officer. Both were very material witnesses in a question as to what had been happening in their own stockade. Both had been transferred during the 2)h months which intervened between Sergeant West's arrest and his trial. The commanding general sustained the refusal. Nevertheless, the prosecutor brought five witnesses from a considerable distance for his side of the case.

A still more vital matter is the presumption of guilt. Military law, like our other law, is supposed to proceed on the presumption that the accused is innocent until his guilt is proved beyond reasonable doubt. This is explicitly stated in the manual. In practice, however, the reverse is often the case. A court martial, like any other g o u p of laymen (in the legal sense), is likely to proceed on the assumption that the case would never have arisen unless the man were guilty, that the investigating officer's report recommending a trial practically proves it, and (sometimes) that the commanding oEcer's manifest zeal for a conviction clinches it. This all before the trial has even started.

A minor indication that there is an assumption of guilt rather than of innocence lies in the curious feature of Army justice, that an accused enlisted man's pay stops, not from the day of his conviction, but from the clay of his arrest. Many sentences involve the forfeiture of all payments "clue or to become duc," which in a case where the man's pay happened to be in arrears, at the time he was charged, means that the Government does not pay for service actually rendered.

Courts have often been careless about the medical or psychiatric condition of men brought before them, although the manual prescribes that where a reasonable doubt exists as to the mental responsibility of an accused for an offense charged, the accused cannot legally be convicted of that offense. It has often been customary to get a psy- . chiatric report, not before a man has been found guilty but afterward, in order to decide where to send him for confinement.

A soldier, about 36 years of age, had lived all his life in the backwoods of the Adirondacks, gaining a poor living as a wood- chopper and laborer. His mental condition was very low, border- ing on the moron. It is probable he had very little idea what the war was about or what the Army was. He had been living for years with a woman not his wife, whose children by another man he was supporting, and to whom his attitude was one of deeply emotional attachment. Legally single, he was drafted in 1942 and promptly sent to the (to him) strange environment of south- ern Mississippi. On May 3, 9 days after his induction, while working a t clcaring brush, he took an ax and chopped off the remaining two fingers of his left hand (he already had two fingers missing). Within an hour hc was examined by a psychiatrist of the station hospital who came to the conclusion that the soldier was not mentally responsible for his act. On June 18 he was examined again by a medical board of three, two of whom, both general medical men, overruled the psychiatrist who was the third member, and reported a majority finding that the man was responsible. Self-maiming to escape military duty has been from

INVESTIGATIONS OF THE NATIONA

ancient times a serious military offense, : in July under the ninety-sixth article ol presented the psychiatrist, who testified nosis, made within the hour, that the ac responsible a t the time of chopping ofl judge advocatc did not present the two they were available, and offered the reF June 18. Dcfense counsel contended th board was unsworn and that i t was heal by section 117 of the manual, not legally absence of the doctors deprived the accu; examine witnesses against him; and tha the board on June 18 did not go to either the day of the trial. Not only were t! sound, but an ordinary sense of justic required at least that the decision be u reasonable certainty as to the accused' Nevertheless, the accused was convicted : imprisonment, completc forfeiture of discharge.

Identifications present many problems to civil practice throws up safeguards against t finger and saying "This is the man." Militar careless, perhaps because unskilled, in this res of rape against American solcliers became a so portions of the populace in the European thc that numerous convictions of innocent sold] courts too amiably accepted dubious identific discipline in general or of maintaining the g among liberated or conquered people. In the n witness on entering the court has no difficu accused is. I t is apparent from the place he plainant has to do is to point out the man. work, or investigation, could safeguard the witi~ess pick out the culprit from a lard oe num not in evidence that this is often done. Iden other ways have also bcen accepted with app tary courts.

In the case mentioned under No. 1 of t Oran brought in a finding of guilty on identification by a man whose testimony individual conccrned once, a t night, in 2 ha,ll, by the light of a flashlight 20 feet aw not have lasted longer than a second or tw acquaintance with the individual. He cli said he recognized him by his physical cl was tall and rather thin.

The Shapiro case, which became some! originated in connection with the haphazar courts are apt to accept identificatior Shapiro had been a law student when in( a year later he was commissioned. Or served as defense counsel for a soldier 8

INS OF THE NATIONAL WAR EFFORT

ed by the commanding officer, but in experience lappen. :st case, the prosccutor refused to send for the nd the prison officer. Both were very material stion as to what had been happening in their 0th had been transferred during the 2j1 months between Sergeant West's arrest and his trial. general sustained the refusal. Nevertheless,

ught five witnesses from a considerable distance case. ,tter is the presumption of guilt. Military law, supposed to proceed on the presumption thht ~t until his guilt is proved beyond reasonable ily stated in the ma.nua1. In practice, however, e case. A court martial, like any other group ,I sense), is likely to proceed on the assump- uld never have arisen unless the man were t i ghng officer's report recommending a trial and (sometimes) that the commanding officer's mviction clinches it. This all before the trial

,hat there is an assumption of guilt rather than ,he curious feature of Army justice, that an I pay stops, not from the day of his conviction, , arrest. Many sentences involve the forfeiture or to becomc duc," which in a case whcre thc to be in arrears at the time he was charged, ment does not pay for service actually rendered. xen careless about the medical or psychiatric ;ht before them, although the manual prescribes 11e doubt exists as to the mental responsibility dt'ense charged, the accused cannot legally be se. It has often been customary to get a psy- 'ore a man has been found guilty but afterward, re to send him for confinement. t 36 years of age, had lived all his life in the Adirondaclis, gaining a poor living as a wood-

er. His mental condition was very low, border- It is probable he had very little idea what the

what the Army was. He had been living for an not his wife, whose children by another man ;, ancl to whom his attitude was one of deeply ment. Legally single, he was drafted in 1942 t to the (to him) strange environment of south- On May 3, 9 days after his induction, while ng brush, he took an ax and chopped off the gers of his left hand (he already had two fingers 1 an hour. he was examined by a psychiatrist of ,a1 who came to the conclusion that the soldier

responsible for his act. On June 18 he was y a medical board of three, twqof whom, both men, overruled the psychiatrist who was the d reported a majority finding that the man was -maiming to escape military duty has been from


ancient times a serious military offense, and the soldier was tried in July under the ninety-sixth article of war. Defense counsel presented the psychiatrist, who testified as an expert to his diag- nosis, made within the hour, that the accused was not mentally responsible a t the time of chopping off his fingers. The trial judge advocatc did not present thc two other doctors, although thcy were available, ancl offered the report of the board, datcd June 18. Defense counsel contcnded that (a) the report of the board was unsworn and that it was hearsay evidence as defined by section 117 of the manual, not legally admissible; that (b) the absence of the doctors deprived the accused of the right to cross- examine witnesses against him; and that (c) an examination by the board on June 18 did not go to eithcr the day of the offense or the day of the trial. Not only were these contentions legally sound, but an ordinary sense of justice would seem to have required a t least that the decision be withheld until there was reasonable certainty as to the accused's mental responsibility. Nevertheless, the accused was convicted and sentenced to 2 years imprisonment, complete forfeiture of pay, and dishonorable discharge.

Identifications present many problems to courts of justice, and civil practice throws up safeguards against too easy pointing of the I

finger and saying "This is the man." Military courts have been very careless, perhaps because unskilled, in this respect. Bringing charges of rape against American soldiers became a sort of racket among some portions of the populace in the European theater, and it is believed that numerous conviclions of innocent soldiers took place because courts too amiably accepted dubious identifications in the interest of discipline in general or of maintaining the good name of the Army among liberated or conquered people. In the ordinary court martial, a witness on entering the court has no difficulty in knowing who the accused is. I t is apparent from the place he occupies. 4 1 the complainant has to do is to point out the man. Proper previous police work, or investigation, could safeguard the matter by making the witness pick out the culprit from a large number of persons; but it is not in evidence that this is often done. Identifications precarious in other ways have also been accepted with apparent readiness by military courts.

In the case mentioned under No. 1 of this section, the court a t Oran brought in a finding of guilty on the basis of a personal identification by a man whose testimony shows that he saw the individual concerned once, a t night, in a completely dark mess hall, by the light of a flashlight 20 feet away. The glimpse could not have lasted longer than a second or two. He had no previous acquaintance with the individual. He did not see his face. He said he recognized him by his physical characteristics in that he was tall and rather thin.

The Shapiro case, which became somewhat of a cause celebre, originated in connection with the haphazard way in which military . courts are apt to accept identification. Second Lt. Sidney Shapiro had been a law student when inducted in 1942. About a year later he was commissioned. On August 27, 1943, he served as defense counsel for a soldier accused of assault with

88045-46-4


intent to rape. Convinced that his client was innocent and that his identification with the assailant was wrong, but would be readily accepted by the court, Lieutenant Shapiro resorted to an unconventional method of convincing the latter. At the opening of the trial, hc detained the accused outside the room, and sub- stituted in his place another soldier who had no connection with the case. The imposter was arraigned. The prosecutrix solemn- ly identified him under oath, and so did two other Government witnesses. Not until the prosecution had finished its case did Lieutenant Shapiro tell the court of his strategem. A mistrial was declared. When the second trial came on, with the true defendant in the dock, the same prosecutrix and witnesses who a few days before had identified the other man, now swore to this one. The confidence of the court in their accuracy, however, remained unshalcen and the man was convicted and sentenced to 5 years imprisonment.

There was another element in this identification. The prosecutrix had in her original complaint said that she bit her assailant in the hand. Later the military police picked up on the street a soldier with a bandage over a laceration on his hand; i t was on this basis that they arrested him. It is said that a human bite can be readily identified by experts. That the lesions on this man's hand were caused by human teeth, was accepted by the court not on testimony by experts or even by medical men, but by military police. What happened to Lieutenant Shapiro will be described later in connection with another point.

4. Defense counsel.-While the accused has the right to counsel of his own selection, an enlisted man often docs not know where to turn to find an officer of sufficient rank to secure respect, who is both willing and competent to serve. The enlisted man usually Imows few officers in any personal way. Usually he "hears" that so-and-so might be willing to servc, and asks for him. The offke in question, even though willing and competent: may not be pcrmitted to serve.

In the Oran casc, thc accused discovered an officer willing to serve as counsel, but the latter found himself denied permission by the commanding officer. I ie had to tell the accused that he had been forbidden to act as counsel "for military reasons" which he could not explain.

In this case defense was practically nonexistent at the trial. One of the two counsel did not turn up a t all. The other failed to point out the most obvious defects in the prosecution. There were no witnesses for the defense and no argument was made. Defense counsel had refused to advise accused, before trial, whether to take the stand in his own defense.

When the court-martial authority appoints counsel not selected by the accused, the selection seems often to be unfortunate, so far as competent defense is concerned. Very young and inexpcrienced officers, or officers not very capable anyway who can readily be spared from other duties, or off~ccrs who mhatcvcr their abilities are purely perfunctory in discharging their responsibilities as counsel, or officers who febr bringing the ill will of higher authorities upon themselves by too energetic a defense-all these types appear in the story of court- martial cases.

At best, a defense counsel labors under disadvantages. He is often appointed a very short time before the trial and does not have

INVESTIGATIONS OF THE NATIONA

opportunity to get a thorough understandii his adversary is usually more fully informed, backing of the staff judge advocate a t headqu: can secure the attendance of distant witnesses the permission of the prosecution. Witnesse interfered with by the authorities by threats times are, while counsel for the defense has nc practices even if he wanted to do so. En have often been told they are obstructing wonder afterward why their expected promotic

Counsel for the accused have the right tc sidered when the case comes up to the revicv Board of Revicw at T5Tashington. 111 practice avail themselves of this right. They seem to thcir whole duty whcn the original hearing hands of responsibility completely a t that tim it is routine for the defense counsel to send u in mitigation," with the record of trial; in fact invited to do so by the court.

The court at the Army air base, Gra which Lieutenant Shapiro foisted the apparently more interestxd in its dignit? authorities went out afl;er Lieutenant 5 issued against him under tile ninety-sixtl I-day investigation. The specificstion "wrongfully and willfully present and tc martial, Pvt. Manuel Rosas for arraignn said Pvt. Pacsto Agredano + * * artifices did wrongfully aad wilif ally eff el the orderly administration of justice bef martial, to the prcjudicc of good order ant

The report of the illvcstigntion was ha September 3, 1943. Charges were served a t 12:40 p. m. the same day. The trial bc day, and concluded at 5:30 p. m. the sam Lieutenant Shapiro was charged, arrnigne sentenced to dishonorable disnlissal from quently he was drafted, served as an c honorably discharged )

In the 1 hour and 20 minutrs al1owc.d trial, Shapiro requested one Captain M this officer was ordered to servc as trial second lieutenants represented Shapiro a1 inexpericnccd but did know enough to as 7 days to prepare thcir defense. The l a ~ i this motion and was sustained by the ct put in no brief whcn the case went to t in thc field or the Bonrd of Revicw at Wa

Ti3 h o n civil~arl cout:scl took up thc case that dhapiro had been deprived of due Supreme Court of the Unitccl States (don courts) has spccificnlly rnlcd that the right includes the right to be accorded a rcason: investjgate its facts and prepare for trial parent merits of the case. The dcfcnse

NS OF THE NATIONAL WAR EFFORT

3onvinced that his client was innocent and on with the assailant was wrong, but would be

the court, Lieutenant Shapiro resorted to an thod of convincing the latter. At the opening ained the accused outside the room, and sub- e another soldier who had no connection with )aster was arraigned. The prosecutrix solemn- nder oath, and so did two other Government ltil the prosecution had finished its case did 1 tell the court of his strategem. A mistrial len the second trial came on, with the true ock, the same prosecutrix and witnesses who a ,d identified the other man, now swore to this we of the court in their accuracy, however, I and Lhe niail wbs conricted and scntcnced ~ment. ler element in this jdenlification. The prose- -iginal complaint said that she bit her assailant 3r the military police picked up on the street ndage over a laceration on his hand; i t was on y arrested him. It is daid that a human bite ntified by experts. That the lesions on this :aused by human teeth, was accepted by the cony by experts or cven by medical men, but

What happened to Lieutenant Shapiro will in conuection with another point. While the accused has the right to counsel of llisted man often does not know where to turn oient rank to secure respect, who is both willing . The enlisted man us~~a l ly Bnows few officers Usually he "hears" that so-and-so might be

~ s k s for him. The oEcer in question, even ~petent, may not be permitted to serve. e, the accuscd discovered an officer williag to lut the latter found himself denied permission g ofiicer. IFe had to tell the accused that he :n to act as counsel "for military reasons" , explain. ense was practically nonexistent at the trial. msel did not turn up a t all. The other failed ost obvious defects in the prosecution. There for the defense and no argument was made. lad refused to advise accused, before trial, e stand in his own defense. ,ial authority appoints counsel not selected by ion seems often to bc unfortunate, so far as concerned. Very young and inexperienced cry capable anyway who can readily be spared fficers who whatever their abilities are purely ,ing their responsibilities as counsel, or officers 1 will of higher authorities upon themselves by -all these types appear in the story of court-

counsel labors under disadvantages. He is short time before the trial and does not have

opportunity to get a thorough understanding of the case, whereas his adversary is usually more fully informed, and has, moreover, the backing of the staff judge advocate at headquarters. Defense counsel can secure the attendance of distant witnesses only by the aid and with the permission of the prosecution. Witnesses for the defense can be interfered with by the authorities by threats or promises, and sometimes are, while counsel for the defense has no power to resort to such practices even if he wanted to do so. Energetic defense counsel have often been told they are obstructing justice, and sometimes wonder afterward why their expected promotions fail to come through.

Counsel for the accused have the right to file a brief to be considered when the case comes up to the reviewing authority or to the Board of Review at Washington. I n practice, defense counsel seldom avail themselves of this right. They seem to assume they have done their yhole duty when the original hearing is over, and wash thew hands of responsibility completely a t that time. In the British Army it is routine for the defense counsel to send up a brief, called a "plea in mitigation," with the record of trial; in fact he is always specifically invited to do so by the court.

The court a t the Army air base, Grand Islsmd, Webr., upon which Lieutenant Shapiro foisted the wrong defend ant, was apparerltly more inlere~t~ed in its dignity than in justice. The authorities went out after Lieutenant Shnpiro. Charges were issued against him under the ninety-sixth article of war, after a I-day investigation. The specification reads that Shapiro did "wrongfully and willfully present and tender to the said court martial, Pvt. Manuel Rosas for arraignment in the stead of the said Pvt. Pausto Agredano * * * and hy the aforesaid artifices did wrongfully and wilifully effect a delay and obstruct the orderly administration of justice before the aforesaid court martial, to the prejud~ce of good order and military discipline."

The report of the investigation was handed in at 11 a. m. on September 3, 1943. Charges were served oll Lieutenant Shapiro at 12.40 p. m. the same day. The trial began at 2 p. m. the same day, and concluded at 5:30 p. m. the same day ViTithin 5 hours Lieutenant Shapiro was charged, arraigned, tried, convicted, and sentenced to dishonorable dismissal from the service. (Subse- quently he was drafted, served as an eidistcd man. and was honorably discharged.)

In the 1 hour and 20 minut,es allowed hirrl to prepnre for this trial, Shapiro requested one Captain Mayfield as counsel, but this officer was ordered to serve as trial judge aclvocate. TWO second lieutenants represented Shapiro a t the trial. They were inexperienced but did know enough to ask for a continuance for 7 days to prepare their defense. The law member ruled against this motion and was sustained by the court. Defense counsel put in no brief when the case went to the reviewing authority in the field or the Board of Review at Washington.

When c?vilia:l coumel took up the case lattr, thcy pointed out ,

that dhapjro had been deprived of due process of law. The Supreme Court of the United States (along with numerous State courts) has specifically ruled that the right to assistance of counsel includes the right to be accorded a reasonable time for counsel to investigate its facts and prepare for trial, regardless of the apparent merits of the case. The deiense had good reason for

needing this time, particularly in view of the fact that the uincty-sixth article of war is a "wastebaslret" or catch-all a r t i c l~ naming no particular offense and leaving the punishment entirely to the discretion of the court. While Shapiro's action was admittedly ill-adviscd, there was room in both law and justice for a careful argument as to the justice of any conviction and as to the nature of the appropriate punishment if a conviction should take place.

The Judge Advocate General and other authorities a t the War Department did not coilcur with the Supreme Court as to the rights of the accused in such a case. The Adjutant General wrote civilian counsel that he had conferred with the Judge Advocate Gcneral and the latter had concluded that "the rights of the accused had not been substantially prejudiced." The Judee Advocate General himself wrote: "It is not possible to conkive in what manner the defense could have been strength- ened in any respect had the additional time requested been granted." The decisio~l was riveted by action of the highest authorities. "The appropriatencss of the sentence of dismissal has been carefully collsidered not only by the trial court but by the reviewing authority, and, aftcr the receipt of the Judge Advocate General's recommendation and the recommeaclation of the Secretary of War, by the President "(signed) Acting The Judge Advocate General."

Here the matter rested, and would have restccl forever, had not a newspaper reporter happened to hear reference to the case in a District of Columbia courtroom. A Washington newspaper published a series of editorial comments with some scathing references to military justice. After the matter became public in this way, but not before, the U d e r Secretary of War interested himself in the matter and declared that justice must be done. Shapiro was given a Presidential pardon and restoration of his civil rights. H6 was not, of course, restored to his previous rank in the service.

Pcrhaps i t is to be regretted that undcr prcscnt regulations chaplains are not available to serve as counsel for the accused. In older days in ihe Army, the chaplain was the aclrnowledged "Tribune of the People" in many respects, and if he were respected and sltillful, as he usually was, became a very important factor in the morale and general welfare of any command. For a chaplain to act as defense counsel was almost routine. Although the regulation against this is based on arguments of some weight, and has bcen approved by successive Chiefs of Chaplains, i t is doubtful whether the general cause of military justice has bccn furthcred by it. A11 enlisted man who was defended in court by a chaplain could expect a sincere and a reasonably competent presentation of his side of the case.

The records of innu~nerablc caws show that (in the words of a former member of a board of review T? ho had read thousands of trial records) "the defense coullsel convicted his client." In criminal practice everywhere outside the Army, an accuscd person is entitled to a trained attorney as counsel. No civilian court would think of appointing any other. Yet in the Army a judgc advocate officer is never sclected as defense counsel, cxcept perhaps when the trial is a spectacular one involving an officer of very high rank.

I N V E S T I G A T I O N S O F THE N A T I O N A I

5. Law member .-Members of courts marti from the legal point of view, though they m: life and death. They are selected for their cc of entirely other qualifications. Even those w admittedly sketchy course in military law at consiclered as particularly qualified. The An that its justice should be administered by jm recognizes that its medical treatments shou qualified doctors or that its spiritual guidance by chaplains with theological training and th ment of their respective churchcs. Officers (

General's Department are, of course, legally t, normally sit on courts martial, nor is that de free hand in technical matters as against the the same way that the Medical Department fundsmental cause for wealcnesses in the syste

To compensate for this defect, however, th provides that a law member shall sit on each officer of the Judge Advocate General's De when an officer of that department is not avail officer of some other branch of the service sl appointing authority as specially qualified to law member.'' The intention of article 8 is lawyer to guide the court in passing on legal qi of procedure. He rules on all interlocutory quc the admissibility of evidence cannot be object on the court.

The beneficent intention of this paragraph in fact, completely voided. Members of the eral's Department do not sit as law members. officers, many of whom have been lcnown to capacity, in the opinion of competent critics. scribed as being usually '(Regular Army officer rank who have nothing else to do." This mz assertion, though there is evidence in support ( of the officers who servc as law incmbers are re

Why do not lawycrs from thc Judge Advoc ment serve in this capacity? So far as is k n o ~ directive against their doing so. I t secms to b ever, and whcbhcr on orders from the Judge Ac some otlicr reason, these trained military lawyers except perhaps in some unusual and conspicuc known, no less than two Judge Advocate Gener bers of the court, but apparently neither was ' law member.

Exactly the reverse of this practice is requirt law. Every court is required to have an officer I

General's organization as law member. He doc a member of the court and, unlike our law men vote. He is impartial. At the conclusion he giv up for both the prosecution and the defense. not have to be accepted by the court, i t is saic does not accept them, its members are likely t c ward. He is a true judge advocate, serving in

)NS OF T H E NATIONAL WAR EFFORT

,, particularly in vicw of the fact that the 1c of war is a L1wastcbasBct" or catch-all particular offcnse and leaving the punishment scretion of the court. While Shapiro's action Il-adviscd, there was room in both law and 11 argument as to the justice of any conviction re of tlic approprink punishmcn t if LL convictio~l

xa t e General and other authorities a t thc War lot concur with the Supreme Court as to the used in such a case. The Adjutant General lnsel that he had conferred with the Judge and the latter had conclucled that "the rivhts

ad not borlr substantially pr(.judiecd." ?he Gcneral himself wrotc: "It is not possiblt: to manner the deicnse could have been strength- ~ c t had the additional time requcsted been ecision was riveted by action of the highest e appropriateness of the scntence of dismissal

collsidered not only by the trial court but by thority, and, after the receipt of the Judge 1's recommerldation and the recommendation )f War, by the President "(signed) Acting Thc ieneral." :r restcd, and would have rested forever, had xporter happened to hear reference to the case olumbia courtroom. A Washington newspaper - . s of editorial comments with somc scatlung tary justice. After the matter became public 3t before, the Under Secretary of War interested atter and declared that justice must be done. n a Presidential pardon and restoration of his was not, of course, restored to his previous rank

regrcttcd that under present regulations chap- : to serve as counscl for the accused. In older ,e chaplain was the aclcnowledgecl "Tribune of respects, and if hc wcre respected and skillful, :%me a very inlportallt factor in the morale and y command. For a chaplain to act as defcnse ,utine. Although the regulation against this is of some weight, and has been approved by

Chaplains, it is doubtful whether the general ice has been furtllcred by it. An enlisted man court by a chaplain could expect a sincere and nt presentation of his side of the case. ~umerable cases show that (in the words of. a )oard of review who had read thousands of trlal e counsel convicted his client." I11 criminal )utside the Army, an accused person is entitled

as counsel. No civilian court would think of . Yet in the Army a judgc advocate officer is lnse coumsel, cxcept perhaps when the trial is a ving an officer of very high rank.

INVESTIGATIONS OF T H E NATIONAL WAR EFFORT 25

5. Law member.-Members of courts martial are largely amateurs from the legal point of view, though they may pass on questions of life and dcath. They are selected for their commissions on the basis of entirely othcr qualifications. Even those who have had a brief and admittedly sketchy coursc in military law at West Point cannot be consiclcred as particularly qualificd. The Army has nevcr admitted that its justice should bc adrninistercd by jurists in the same MTay it recognizes that its medical treatmcnts should be in the hands of qualified doctors or that its spirilual guiclancc should be administered by chaplains with theological training and the ecclesiastical endorsement of their respective churchcs. Officers of tlic Judge Advocate General's Department are, of course, legally trained, but they do not normally sit on courts martial, nor is that department itself given a free hand in technical matters as against the power of command, in the same way that the Medical Department is. Doubtless this is a fundamental causc for wealmesses in the system.

To compensate for this defect, however, the eighth article of war provides that a law member shall sit on each court "who shall be an officer of the Judge Advocate General's Department, except that when an officer of that department is not available for the purpose an officer of some othcr branch of the service shall be selected by the appointing authority as specially qualified to perform the duties of law member." The intention of article S is to provide a trained lawyer to guide the court in passing on legal questions and in matters of procedure. Hc rliles on all interlocutory questions. 13s rulings on the admissibility of evidence cannot be objected to, and are binding on the court.

The beneficent intention of this paragraph of article 8 has been, in fact, completely voided. Members of the Judge? Advocate Gen- eral's Department do not sit as law members. I n their stead sit other officers, many of whom have been known to demonstrate their in- capacity, in the opinion of competent critics. They have been described as being usually "Regular Army officers of lieutenant colonel rank who have nothing else to do." This may be too sweeping an assertion, though there is evidence in support of it. Doubtless many of the officers who serve as law members are really competent.

Why do not lawyers from the Judge Advocate General's Depart- ment serve in this capacity? So far as is known there is no written directive against their doing so. It secms to be unwritten law, however, and whether on orders from the Judge Advocate General or for some othcr reason, these trained military lawyers are never "available," except perhaps in some unusual and conspicuous trial. In one case known, no less than two Judge Advocate General officers sat as members of the court, but apparently neither was "available" to sit as a law member.

Exactly the reverse of this practice is required by British military law. Every court is required to have an officer of the Judge Advocate General's organization as law member. He does not, however, sit as a member of the court and, unlike our law members, does not have a vote. He is impartial. At the conclusion he gives an official summing up for both the prosecution and the defense. While his rulings do not have to be accepted by the court, it is said that when the court does not accept them, its members are likely to be sorry for it afterward. He is a true judge advocate, serving impartially as judge of

26 INVESTIG4TIONS OF THE NATIONAL WAR EFFORT

law and advocate of both sides, but not actually participating in the decision.

The only sound reason that can be alleged for the fact that Judge Advocate General officers are never available as law members of our courts is that there are not enough of them to go around. Yet i t is incredible that if more judge advocate officers were needed during the war, more could not have been provided. The Army contained large numbers of lawyers with training and experience who were not utilized in their professional capacity-35,000 of them according to a recent cst%te of the Judge Advocate General. I

6. 8fa.f judge advocafe. -A key position in the organization of military justice is occupied by the staff judge advocate. Civilians unused to military .nomenclature may find themselves in some confusion over the various judge ?dvocates, so a simple explanation may not be inappropriate. Beginning a t the top, the Judge Advocate General is the highest law officer of the Army, and his department is the military justice department of the Army. Theater commsnd abroad have had during the war in their rcspective aress a jurisd ctio.1 comparable with that of the War Department a t horn e, each with t s own, almost independent, assistant judge advocate general. A staff judge advocate, with his assistants, serves as adviser in matters of military justice to the officer exercising court-martial jurisdiction in a particular command, the latter being usually a major general commanding a division, or the equivalent. The staff judge advocate is usually an officer of the Judge Advocate General's Department. A post judge advocate (not an official title) is tbe law officer of a particular post or regiment, who serves as adviser to the commauding officer, the latter being usually a colonel. A trial judge advocate is the prosecutor in a particular court. He is not necessarily legally trained in any way.

The term "judge advocate," like so many things in military justice, is derived from ancient European military usage. The equivocal nature of the term, implying t h i t the functions of i judge and those of an advocate are united in the same person, is a not unfaithful reflection of the older military theory that every officer is so imbued with the qualities of justice that he can serve impartially as judge in the case and advocate on both sides a t the same time. Officers of the Judge Advocate General's Department are even now to a coiisiderable extent expected to perform this clificult feat.

The stafl' judge advocate, a t the general's headquarters, receives the charges and the report of the investigating officer when they are sent up to the commanding general. He advises the latter on proceedings to follow. The members of local courts martial in the jurisdiction are appointed by the general on his recommendation. So are the trial judge advocates and defense counsel. After the trial has been held, the record of trial is forwarded to the commanding general, this time in his capacity of reviewing authority, and is refcrred to the staff judge advocate for advice as to whether procedure has been correct, and the trial conducted without prejudice to the substantial rights of the accused, whether the findings (i. e., the verdict) are correct, and whether the punishment of a convicted person is appropriate or excessive, and if imprisonment is ordered where the confinement is to take place, a,nd whether a sentence of dishonorable discharge is to be suspended. When the general has acted upon these

matters, and not until then, is the trial cc follows in most cases the advice of his legal (

advocate, but he is by no means bound to do s not. If the general does not happen to have r he is required to refer for this advice to the Of3 cate General in the War Department.

I11 the naming of court-martial rnembcrs, tria defense counsel, the staff judge advocate us appoint individuals who are suggested for th officer (post judge advocate) of the post or reg will function. This puts the actnnl assignme1 in the power or" the local colonel. I t is nocicea taken to see that there is a "strong" prosecutor Defense counsel who have sr?rvecl in previous zeal or ability are apt to find thcmselves I

advocates. It is clear that the staff judge advocate, thorig

a free hand as against the genera!, beiag only a post of grea.t responsibility in the scheme of duties invclve two kinds of rcspoiisibility, which as compatible iu civilian justice. They are bo judicial. I n his judicial c,zpacitly he decides t6 the charges preferred. Then turning to his ad he sebs up he court, n a r n i n ~ thc prcsicm~t, :he othrr menrbcrc, as 21-0 n7bo sh:il proseculc an the trial lins bccn h:d, thc stafl judge ads-ocat role and reviews the clecisicn of the court he !

which he approved. Obviously there are nm abuse here. That thcrc me not more c o ~ p l a i the credit of those who have performed this fi

be clue to the fact that this part of the whole 1 from the public and evcn from the lmowledge of in a particular case. All official acts are, of co staff judge advocate but of the conimanding gen The general, or it r a y be his adjutant, often si without having given pclsonal attention to ther

The case of Sgt. Odus TTest, adverted t this point, as in so many othcrs, an example done. I t is presentcd here not as a norm an illustration of what is admays posGble. lies with the staff judge advocatc in person cor~manding general, it is impossible to de

Brutalities practiced upon soldier prisc Air Bnsc became a matter of widespicad The prison scrgeant, West, was a form Missouri. The personc really responsible f of the prison stockade at, Lincoln were the p Anthony Parisi, and the piison officcr, I not the scrgeant who rcceived his orclcrr officers werc promptly transferred to New i\ respectively, and the staff judge advocat Force, Col. W. I. Williins, sustained a refu advocate to have them called as witnesses air inspector of the Second Air Force ca

VS OF T H E NATIONAL WAR EFFORT

th sides, but not actually participating in the

In that can be alleged for the fact that Judge ers are never available as law members of are not enough of them to go around. Yet

ore judge advocate officers were needed during t have been provided. The Army contained rs with training and experience who were not lonal capacity-35,000 of them according to a udge Advocate General. 1

:.-A key position in the organization of mili- by the staff judge advocate. Civilians unused lrc may find themrelves in some confusion ~dvocates, so a simple explanation may not be ing a t the top, the Judge Advocate General :er of the Army, and his department is the "tment of the Army. Theater c o m m ~ n d tlie war in their respective areas a jurisd ctio?

f the War Department a t home, each with t s nt, assistant judge advocate general. A staff lis assistants, serves as adviser in matters of )fficer exercising court-martial jurisdiction in a he latter being usually a major general com- the equivalent. The staff judge advocate is

e Judge Advocate General's Department. A ot an official title) is the law officer of a par- lt, who serves as adviser to the commauding usually a colonel. A trial judge advocate is

~rticular court. He is not necessarily legally

rocate," like so many things in military justice, n t European military usage. The equivocal ,lying that the functions of a judge and those of in the same person, is a not unfaithful reflection heory that every officer is so imbued with the t he can serve impartially as judge in the case sides a t the same time. Officers of the Judge kpartment are even now to a considerable 'orm this difficult feat. ocate, a t the general's headquarters, receives port of the investigating officer when they are ,riding general. He advises the latter on pro- he members of local courts martial in the juris- ~y the general on his recommendation. So are ~ t e s and defense counsel. After the trial has f trial is forwarded to the commanding general, ,y of reviewing authority, and is referred to the Ir advice as to whether procedure has been cor- nducted without prejudice to the substantial

whether the findings (i. e., tlie verdict] are ,he punishment of a convicted person is appro- d if imprisonment is ordered where the confine- and whether a sentence of dishonorable dis-

~ded. When the general has acted upon these

INVESTIGATIONS OF T H E NATIONAL WAR EFFORT 27 matters, and not until then, is the trial complete. The general follows in most cases the advice of his legal expert, the staff judge advocate, but he is by no means bound to do so, and frequently does not. If the general does not happen to have a staff judge advocate, he is required to refer for this advice to the Office of the Judge Advo- cate General in the War Department.

I n lhe naming of court-martial rnembcrs, trial judge advocates, and defense counsel, the staff judge advocate usually has the general appoint individuals who are suggested for thc purpose by the law officer (posl judge advocate) of the posl or regiment where the court will function. This puts t,he actual assignment,, generally speaking, in the power ol the local colonel. It is noticeable that care is always taken to see that there is a "strong" prosecutor (trial judgc advocate). Defense counsel who have served in previous trials with exceptional zeal or ability are apt to find thernsclves named as trial judge advocates.

It is clear that the staff judge advocate, though of course not having a free hand as against the gencrs!, being only an adviser, does hold a post of grcat responsibility in the scheme of military justice. His duties involve two kinds of rcsponsibility, which would not bc regarded as compatible in civilian justice. They are both administrative and judicial. In his judicial capacity he clecjdes there shall be a trial on the charges preferred. Then t ~ r n i n g to his administrative capacity, he seLs up he court, narniny thc presiocnt, the law member, and the nthrr menrberg, as d o wbo shril prosccut and who defend. After the trial has bcen had, thc staff judge advocate resumes the judicial role and reviews the decision of the court he set up on the charges which he approved. Obviously thme are numerous possibilities of abuse here. That there are not more co~~pla in t s at this point is to the credit of those who have performed this function. It may also be due to the fact that this part of the whole process is far removed from the public and even from the laowledge of those most interested in a particular case. All official acts are, of course, not those of the staff judge advocate but of the commanding general whom he advises. The general, or it may be his adjutant, often simply signs the papers without having given personal attention to them.

The case of Sgt. Odus Tes t , adverted to above, furnishes at this point, as in so many others, an example of what should not be done. I t is presented here not as a normal occurrence, but as an illustration of what is always possible. How far responsibility lies with the staff judge advocate in person, and how far with hie commanding general, it is impossible to determine.

Brutalities practiced upon soldier prisoners a t the Lincoln Air Basc became a matter of widespread newspaper comment. The prison sergeant, West, was a former deputy sheriff in Missouri. The person. really responsible for the administration of the prison stockade at Lincoln were the provost marshal, Capt. Anthony Parisi, and the prison officer, Lt . Stanley T. Jones, not the sergeant who received his orders from them. These officers were promptly transferred to New Mexico and Louisiana, respectively, and the staff judge advocate of the Second Air Force, Col. W. I . Wilkins, sustained a refusal by the trial judge advocate to have them called as witnesses by the defense. The air inspector of the Second Air Force came to Lincoln from


Colorado Springs and made a hasty investigation. Returning to his headquarters, he published in his monthly newspaper, the Trouble Shooter, an account of the brutal conditions which be said prevailed, signed by himself and headed with tho captio~l ((Gestapo Tactics." Sergeant West and the Lincoln Air Base were not named, but the accusatiol~s against wcre related in minute cletail, and he was described as bcing of the bul!dozing type. At least a huncirecl copies of this paper circulated at the Llncoln Air Base and no one who read them had any doubt what place and what pcrson were referred to. Forty persons who were questioned said they h e w the article referred to Sergeant West and thcir post. The members of the court martial professed noL to have seen it. Application for change of venue because of this trying of the case in the press in advance of the trial by Air Force heaclqunyters was refused.

Now for the part played by the staff judge advocate in this affair. The court was picked by the trial judge advocate and named by the staff judge advocate at Colorado Springs. The law member who passes on all questions of evidcncc was an officer sent from Colorado Springs, some 500 miles distant, for the purpose. He came out of thc ogice of the staff judge advocate. There were many lawyers available at Lincoln, but the staff judge advocate clearly wanted one of his own assistants to make the rulings. Defense counse! challenged him during the triai for showing bias and prejudicc, but got nowhcre. Finally, m'est having been convicted, the recorcl went up again to the same staff judge advocate for judicial review, who approved it. I t might be added, to completc the recorcl, that public clisapproval continued to be shown and the House Committee on Military Affairs took an interest in the case. Parisi and Jones were themsolves tried at the Lincoln Air Base. They were acquitted.

7. Roard of Review and Military Justice Division.-At the outset of this discussion, clarification of terminology may be in place, even at the expense of repetition. The "reviewing authority" is the local commanding general, i. e., the officer exercising court-martial jurisdiction whose approval of findings and sentence is necessary to complete the trial. The "reviewing- authority" is not to bc confused with the authorities which give a legal review to proceedings in Washington, which are the Military Justice Division in the Oflice of the Judge Advocate General and the Board of Review, the latter being the higher authority.

The article of war governing this part of hhe procedure is No. 50jh. Cases of less than extreme gravity are examined by an officer in the Military Justice Division in the Office of the Judge Advocate Geneml, and if he finds the record legally insufficient to support the findings and sentence, the case is referred to the Board of Review. Cases of sentence involving the penalty of death, dismissal not suspended, dishonorable discharge not suspended, or confinement in a penitentiary are referred directly to the Board of Review. If the opinion of the latter is concurred in by the Judge Advocate General and both agree that t8he record is legallv sufficient, confirmation by higher authorities is recommended. If the board and the Judge Advocate Gea- era1 find the record legally insuficient to support the finding; or that errors of law have been committed injuriously affecting the substantial

INVESTIGATIONS OF THE NATIONAL

rights of the accused, thc findings and sentcn wholc or in part and the proceedings renzarlded vening thc col~rt for a rehearing or other apprc Juclgc Advocate G-encral and the board do no are sent directly to the Secre,t,nry of il'a,r for a( who may coIlfirm in wholc or in part any findi prove and vacate in whole or in pa.rt any scnk

Sornc details concerning t'lx Board of Rcvic. ment are pcrtinent. Thc' bocrd is in reality several boards, cach con.sisting of thrce mcmb, the mar there were six boards. The n.umbe: Members are appointecl by the Judge Aclvoc from his department', but at t,lle present t,im.c (J is a Regular Army officer; the othem are pron who have en.tcrec1 the service. Most have t; lieutenant colonel. Only gmeral court-martir Officially, membcrs are given complete freedom and the Juclge Advocate Gen-era1 and a minori board may submit a report, an.d t,he board h as a.gainst the Judge Advocat,e General, thour opinion are gen.era!!j.ironec! out in corrIcren.ce ani In practice, however, as distin.ct from theory General's opinion nearly always prevaiis when. ar to the Secretary of War. The latter accepts tl of t'he clepartme,nt. Only once was there an cr

Article of war 50ji was one of the provisions of 1920, a d the procedures in.stit'ut'ed under it L. of the system as a means of correcting such p justice as may have takeu place earlier when hands of courts a11.d revie~ying a,uthoritics. '

stuclics the recorcl as if object~ions had been mad bit of cvidmcc and ruling even. when defense such exceptions. The revicwing actions at Wa reviewing aut,hority vcstccl ill the general cons double protection, far grcater protection in 1 accords to defendants con.victed in State or PC is a twofold automatic appeal taking place in defendant even having to ask for it.

Exaggerated claims made for the secon.cl 1- together ~yith thc vaguc popular idea that "t reviewed in W'ashin.gton.," are perhaps responsi when cases in.vo1vin.g obvious injustices to the have been approved. Such disillusion.ment gi though sometimes ill-informcd and unjust c r~ t arc not negligible; there is a considerable volt expressed by highly reput,able persons, lawyers, tary, whohtlve donc business with tjhe Divioi on a secm to be coniirmccl by t'h.e particular history c from particular cascs, however, it is probable above do not discriminate between the operr Justice Division and t,hose of the Board of Re1 not realize how far shortcomings complained (

to the personnel involved but to the condition system, they are required to operate.

N S OF T H E NATIONAL WAR EFFORT

and nmde a hasty investigation. Returning s, hc l?ul-,hshcd in his xonthly newspaper, the iLri account of the brutal concllitions which he netl by hiinsclf and Ilcadccl with (lie captioil 1 , Scrgesnt Wcst and the Lincoln Air Base 1ut lhe accusations against West wcrc related i d llc was d~sc~ibecl as b ~ i n g of the bul!clozing h u n d ~ d copics of this papor ciwulntcd a t the nd no one who rcacl thcm had any doubt d l n t wrson were referred to. k'olty persons who lid they knew the article referred to Sergeant 1. The members of the court martial professed t . Application for change of venue because of :ase i n the press in advancc of the trial by Air s was rciuscd. rt played by the staff judgc advocate in this was picked by the trial judge advocate and

ff judgc advocate at Colorado Springs. The )asses on all questions of evidence was an officer o Springs, some 500 miles distant, for the pur- )ut of the office of the staff judge advocate.

lawyers available a t Lincoln, but the staff ?arly wanted one of his own assistaiits to make nse couiise! challenged him during the triai for I prejudice, but got nowhere. Finally, Viest cted, the record went up again to the same staff r judicial review, who approrcd it. I t might pletc the rccorcl, that public disapproval con- 1 and the House Committee on Military Affairs n the case. Parisi and Jones werc themselves In Air Base. They werc acquitted. cind Military Justice Division-At the outset ification of terminology may be in place, even tition. The "reviewing authority" is the local . e., the officer exercising court-martial jurisdic- findings and sentence is necessary to complete

~ i n g authority" is not to be confased with the a legal review to proceedings in FT*ashington,

y Justice Division in the OfEce of thc Judge I the Board of Review, the latter being the

overning this part of the procedure is No. 50%. -erne gravit;y are examined by an officer in the on in the Office of the Judge Advocate General, :ord legally insufficient to support the findings is referred to the Board of Review. Cases of : penalty of death, dismissal not suspended, : not suspended, or confinement in a penitenti- ly to the Board of Review. If the opinion of 1 in by the Judge Advocate General and both is legallv sufficient, confirmation by higher au- ed. If the board and the Judge Advocnte Gen- ;ally insufficient to support the finding; or that, ~omrnitt~ed injuriously affecting the substantial

INVESTIGATIOATS OF T H E NATIONAL WAR EFFORT 29

rights of the accused, the findings and scntcncc may be vacated in whole or in part and the proceedings remaildccl to the authority convening the court for a rehearing or other appropriate action. I the Judge Advocate Gei~eral and the board do not agrcc, both opinions are sent directly to the Sccret'ary of 7Va.r for action of the Presideni, who may confirm in wholc or in part any finding of guilty or disapprove ancl vacalc in whole or in pa.rt any senLcllcc..

Somc tlctails concerning the Board of Reoicw in the War Depart- ment are pcrtincnt. Thc'board is in rcality not one board., but several boards, cach consisting of thrce mcmbers. At l;he height of the war there were six boards. The n.umbcr a t presen.t is three. Menibers are appointed by the Judge Advocat'e General. All are from his d.epartm.cnt', but a t the present t h e (January 1946) only one is a Regular Army officer; thc ot'hers are prominmt civilian Iawyers who have entered the service. Most have the rank of colonel or lieutenmt colonel. Only general court-martial cases are reviewed. Officially, members are given. complete freedom as against o m an.other and the Judge Advocate General ancl a min.orit'y within a particular board may submit a report, and the board has t,he same privilege as against the Judge Advocate Gen.era1, though such differences of opinion are gen.eral!yironed out in con.feren.ce and concurrence obtain.ed. In practice, however, as distinct from theory, the Judge Advocate GBne,ral's opinion nearly always prevaiis whcn. any difference is referred . to the Secretary of War. The lattcr accepts the opinion of t,he head of the department. Only once was there an cxception to this.

Article of war 50)i was one of the provisions created by the reform of 1920, and the procedures in.st,itutecl undcr i t are praised by admirers of the system as a means of correcting such possible miscarriages of justice as may have taken. place earlier whe,n the cases were in the hands of courts and revieu.in.g authorities. The Board of Review studies the record ,as if object~ions had been made to every quest,ionable bit of evidence and ruling even when defense counsel failed to note such exceptions. The reviewing actions a t Washington on. top of the reviewing authority vested in the general ~onst~itutc, i t is claimed, a double protection, fa.r greater protection in fact than civil justice accords to defendants con.victecl in State or Federal courts, for there is a twofold automatic appeal taking place in each case wit'hout the defendant even having to ask for it.

Exaggerated claims made for the second review in Washington, together with the vague popular idea that "t.he whole case will be reviewed in Washin.gton," are perhaps responsible for disillusionment when cases invo1vin.g obvious injustices to the accused are known to have been approved. Such disillusionment gives rise to widespread though sometimes ill-informed and unjust criticism. The criticisms are not negligible; there is a considerable volumc of them; they are expressed by highly reput,able persons, lawyers, both civilian and military, who have done business with the Division and the Board; and they seem to be confirmed by the particular history of linown cases. Apart from particular cases, however, it is probable the critics referred to above do not discriminate between the operations of the Military Justice Division and t,liose of the Board of Review, and that they do not realize how far shortcomings complained of are attributable not to the personnel involved but to the conditions under which, by the system, they are required to operate.


The most important of these restrictions is that, the power of the board is confined strictly to questions of law and not of fact. A fine- print section of the Manual for Courts Martial, under article of war 5054, reads as follows:

Except where the President is the reviewing or confirming authority, i t is not the function of the Board of Review or the Judge Advocate General, in passing upon the legal sufficiency of a record under article of war 5034 to weigh evidence, judge of the credibility of witnesses, or determine controverted questions of fact. In such cases the law gives to the court martial and the reviewing authority exclusively this function of weighing evidence and determining what facts are proved thereby; therefore, zf the record of trial contains a n y evidence which, i f true, i s s u f i - czent to support the jindings of guilty, the Board of Review and the Judge Advocate General are not permitted by law, for the purpose of finding the record not legally sufficient to support the findings to consider as established such facts as are incon- sistent with the jindings, even though there be uncontradicted evidence of such facts. [Italics not original.]

Some observations may be made upon the above crucially important but seldom-mentioiied provision in the law governing military justice. In scope it covers all general court-martial cases, except those in which the President is the reviewing or confirming authority. The substance of the p~ragraph quoted is that the Board of Review is enjoined by "the law" from weighing the value of evidence. Members of the board may see perfectly clearly thct the evidence on which a conviction was adjudged was dubious or worthless, but if the slightest bit of evidencc legally ju.;tifyinz thc conviction was accept4 by the ccurt and the commanding general (reviewmg author it^), there is nothing the board can do about it. No legal error has becn co:mnitted. The Judge Advocate General, by another provision, may send to the commanding general a separate letter from that which officially reports the approval of the board and authorizes the execution of the sentence, and in this letter he may indicate that in his opinion one or more findings of guilty should be disapproved, or that the sentence is un- necessarilv severe; but the commanding gene]-a1 does not have to pay any attention to this opinion. He not infrequently rejects or ignores lt.

Incidentally, no one scems to know where "the law," mentioned in the text quoted above, is to be found. It is not statutory law. I t may be deemed to be implied in article 50)i or it may be an inference from common civilian practice in appellate courts.

This is not the only limitation upon the functioning of the Board of Review, though it is basic. The board works only on the legal records of cases. I t has before it the report of the investigating officer, the record of trial with its attachments and exhibits, and the action of the reviewing authority. I t also has and considers all letters and appeals that come in from interested persons. The number of cases in which a brief comes to the board from the defense counsel is so small as to be negligible. Counsel cmployed by the accuscd may appear a t the board hca~ing, but this happens only in a very small percentage of cases. Many cir~umsta~nces which would have a bearing on a complete examination of the case, if cssential justice and not merely legal c~rrect~ness could be considercd, are not even known to the board.

For example, in a rccent case arising in Italy, kwo soldiers were involvcd in identical circumstances in a charge of rape. Thcy were equally guilly or otherwise. The same charges a t first were brought against them with the same accclsing witnesses. One sol-

I N V E S T I G A T I O N S O F T H E N A T I O N A L

dier was tried first. He was sentenced to li now at Lewisbisrg Penitentiary. Due to fr triel, however, it was decided that "a trial 1 the othec soldier. and he never eve3 came t Review (in the Mediterrcnean the ttcr of or ington) presumably never knew of this as] the findings and sentcnce of the first soldier It vTas not part of the record. Probably ~h considered it if they had known. Yet it I of a life in prison to ,the first soldier.

By a startling opinion rendered in January ' cate General himself crippled the ability of th far as establishing essential justice in court-m sentences is concerned. This is the documen 18. Reversing previous practice, and plainly r of Congress in enacting article of war 70, th the provisions of that article requiring a th investigation before trial are not nlandatory comply with them is not a jurisdictioaal error is held to apply to the requirement of article ' authority (the general) refer the report of the in judge advocate before trial for consideration a requirement of article 46 that the reviewing au eral) refer the decision of the court to his stt advice before approving of the findings and sel

Many miscarriages of justice which have 1 origin to faulty investigation procedure. TI determinative a t present for Army legal policy, ough and impartial investigation" which artic nmy be inadequate, or prejudiced, or even nonc does not have to refer the case to his legal adv for trial. Nor does he have to consult his leg, in article 46, before approving a conviction or a of any or all of these omissions, the likelihood increcsed. Articles 70 and 46 were enacted t against just this possibility. Now, however, thc errors" and the Board of Review is not allowe, rights of the accused have been prejudiced, or t has been violated, even though they may be v exactly what has happened.

The Board of Review ill Washington has ha( criticism really belonging to boards of review I

operat,ion, because the public has not understooc latter have been throughout the war. I n majoi (Mediterranean, European, Southwest Pa aific theater command has had its own judge advoc assistant judge advocate general) and his ow whole set-up parallel to that of the War Depar~ independent of it. It is known that some of t carriages of justice have taken place abrotd-1 known about them in detail, Army judicial p enfolded in even greater obscurity than thost review in theaters abroad are, of course, subj limitations as that in the War Department, bu

)NS OF TEIE NATIONAL WAR EFFORT

of these restrictions is that the power of the ly to questions of law and not of fact. A fine- ~nual for Courts Martial, under article of war

ent is the reviewing or confirming authority, i t ii not of Review or the Judge Advocate Gencml, in passing f a record ~illder article of war 5056 to weigh evidence, witnesses, or determine controverted questions of fact. j to the collrt martial and the reviewing authority ex- :ighing evidence and detcrminiug what facts are proved :old of trial contains a n y evidence which, i f true, i s s u f i - s of guilty, the Board of Review and the Judge Advocate I law, for the purpose of finding the record not legally clings to consider as established such facts a s are incon- : n though there be uncontradicted evidence of such facts.

ay be made upon the above crucially important provision in tjhe law governing military justice. nerd court-martial cases, except those in which ewing or confirming authority. The substance :d is that the Board of Review is enjoined by ing the value of evidence. Members of the y clearly thct the evidence on which a coavic- dubious or worthless, but if the slightest bit

fyinz the conviction n-as accept4 by the ccnrt eneral (reviewing authority), tlxre is nothing , it. No legal error has been committed. The 11, by another provision, may send to the com- arate letter from that which officially reports -d and nutllorizcs the execution of the sentence, lay indicate that in his opinion one or more d be clisapprovcd, or that the sentence is un- the commanding general does not have to pay ~inion. He not infrequently rejects or ignores

S C C ~ S to know where "the law," mentioned in is to be found. I t is not statutory law. It

nplied in article 50)h or it may be an inference ~ractice in appellate courts. limitation upon the functioning of the Board s basic. The board works only on the legal .s before it the report of the investigating offi-

with its attachments and exhibits, and the authority. I t also has and considers all letters in from intercstecl persons. The number of

omes to the board from the defense counsel is rible. Counsel employed by the accused may ming, but this happens only in a very small h n y circumstances which would have a bear- ination of the case, if essential justice and not 3 could be considered, are not even lino~vn to

t recent case arising in Italy, two soldiers were :a1 circumstances in a charge of rape. They or otherwise. The same charges at first were

rm with the same accilsing witnesses. One sol-

INVESTIGATIONS OF THE NATIONAL WAR EFFORT 3 1

dier was tried first. He was sentenced to life imprisonment and is now at Lewisbclrg Penitentiary. Due to facts brought out at his triel, however, it was decided that "a trial was not warranted" for the other soldier, and he never even came to trial. The Board O F Review (in the Mediterranean the ~ t c r of operations, not in Wash- ington) presumably never knew of this a s p ~ c t when it approved the findings and sentence of thc first soldier as "lcgally sufficient." I t was not part of the record. Probably he board could not have considered it if they had linown. Yet it made all the difference of a life in prison to .the first soldier.

By a startling opinion rendered in January 1943, the Judge Advo- cate General himself crippled the ability of the Board of Review so far as establishing essential justice in court-martial convictions and sentences is concerned. This is the document referred to on page 18. Reversing previous practice, and plainly nullifying the intention of Congress in enacting article of war 70, the decision states that the provisions of that article requiring a thorough and impartial investigation before trial are not mandatory, and that failure to comply with them is not a jurisdictioanl error. The same doctrine is held to apply to the requirement of article 70 that the appointing authority (the general) refer the report of the investige tion to his staff judge advocate before trial for consideration and advice, and to the requirement of article 46 that the reviewing authority (the same general) refer the decision of the court to his staff judge advocate for advice before approving of the findings and sentence.

Many miscarriages of justice which have taken place owe their origin to faulty investigation procedure. This decision, which is determinative at present for Army legal policy, means that the "thorough and impartial investigation" which article of war 70 requires nmy be inadequate, or prejudiced, or even nonexistent. The general does not have to refer the case to his legal adviser before referring i t for trial. Nor does he have to consult his legal adviser, as directed in article 46, before approving a conviction or a sentence. As a result of any or all of these omissions, the likelihood of injustice is greatly increcsed. Articles 70 and 46 were enacted to protect the accused against just this possibility. Now, however, these are no longer "fatal errors" and the Board of Review is not allowed to consider that the rights of the accused have been prejudiced, or that due process of law has been violated, even though they may be well aware that this is exactly what has happened.

The Board of Review in Washington has had to bear the brunt of criticism really belonging to boards of review in overseas theaters of operation, because the public has not understood how independent the/ latter have been throughout the war. In major tl~eaters of operation (Mediterranean, European, Southwest Pa :ific, India-Burma), each theater command has had its own judge advocate gene;al (called an assistant judge advocate general) and his own board of review, a whole set-up parallel to that of the War Department, and practically independent of it. It is known that some of the most strildng miscarriages of justice have taken place abroad-though usually little is known about them in detail, Army judicial processes abroad being enfolded in even greater obscurity than those at home. Boards of review in theaters abroad are, of course, subject to the same legal limitations as that in the War Department, but all iudicial processes

32 INVESTIGATIONS OF THE ,NATIONAL WAR EFFORT

from top to bottom have bcen more subject to arbitrary action on the part of general officers. Overseas theaters being combat areas in part, justification or extenuation can be adduced for almost anything, on grounds of haste, shortage of officers. and military necessity.

(On January 19, 1946, the powers "statutory or otherwise" of the commanding generals of ovcrseas theaters pertaining to courts martial, including the powcr of confirmation and the powers conferred by articles of war 48,49, 50, 50%, and 51 were terminated, and these commanders ordcred to send to Washington all pending records involving sentences of death or dismissd for confirmation.)

I t is probable also that some of the censure which has been poured upon the Board of Review, including some of the criticism mentioned above, is really applicable not to the Board of Review but to the Mili- tary Juslice Division of the Judge Advocate General's Office. That division examines cases of less than extreme seriousness (i. e., cases which do not involve the penalty of death, dismissal of an officer, dishonorable discharge not suspended, or penitentiary confinement) but which are serious enough to the person concerned. The Military Justice Division has to do its work under the same general limitations as those which bind the Board of Review. It has had to deal with a much greater volume of cases. Only one person examines a particular case before decision is made. Evidence in committee files indicates that they approve the findings and sentences as they come in, in the ratio of 99 to I. It seems incredible that only one in a hundred ccses really calls for alteration, even within the limits prescribed.

The present discussion shouid serve to make clear that much adverse comment directed against the Board of Review does not rest upon a very solid basis when the limitations under which the board operates are considered. Nevertheless it is useless to look to the Military Justice Division and the Board of Review for over-all rectification of all injustices conlmitted "below." The system simply does not permit it. Yet the matter of juslice or injustice is the great matter. I t is perhaps the greatest of all matters. -

The case mentioned above is further illustrative. There would be no doubt in the mind of any reasonable person that the two soldiers went together to a well-lmown and apparently populous house of assignation; that there they were set upon, beaten and robbed, one of them (the second soldier) being rather severely injured; that the accusation of rape was brought to cover up the attack. In any event, the charges were dropped against the second soldier after the first had been tried. The review board in the Mediterranean theater may have made the same inference, though they had to sustain the conviction because there was testimony to the effect that the accused was guilty.

A captain in France was convicted, under the ninety-sixth article of war, of handling money in connection with English- French rates of exchange in a manner forbidden by ETO regulations. Thcre is much evidence to show that his only essential guilt was that of not reporting the transaction of a friend, who later committed suicide, and that others more guilty testified falsely (as they later admitted) involving him in order to hide their own guilt. The day before the captain was convicted, a lieutenant colonel was tried on the same charges and given dismissal from the service. The captain was given the same plus

INVESTIGATIOATS O F T H E N A T I O N A L

3 years penal servitude. Even assuming guilty as charged, the two sentences wc board of review in ETO pointed this ou inflexible and refused to change anythi~ confinement in France.

8. The pressure of command on the processes dealing with this phase of military justice we delicate and controversial aspects. While g responsibility of the Army in connection wit1 rights" of the individual (which even an adm sary to claim, as happened at a recent joint Sc Pearl Harbor), it would be unfair if recogniti same time to the responsibility of the Army fa military effectiveness. In a particular situa times seem to be a conflict between those tw yet in a broad may it ought not to be impossi to the individual citizen serving in the Army of the service. The present system of milita this, and in many respects it is successful. I n ( ment is not only possible but greatly needed.

The influence of command on military jus which might be called official and unofficial. easily commingled.

Officially the power of command, though nl mount in the processes of military justice. step. The initial charges against an accuse brought by the company commander even if them himself. He has some discretion in the m the accusations, though of ccurse he cannot dc and the accuier might take them to a higher of that the matter can be dealt with under the or article of war without court-martid procedu with which this study is not particularly conceri the control of a regimental or post commandc in which only a general court can i~npose an ap commanding officer appoints an investigating 01 also in a special court case, but this is no longer r (or otherwise) the report of the latter, and dec shall be tried a t all. He selects the prosecutc frequently the defense counsel. (He does n appoint these officials but only recommends comes to about the same thing.) All the pc immediately under the jurisdiction of this cc almost every aspect of their lives. The duti assigned, their leaves and promotions, their g their good reputation, and to a large extent tl- in his hands. He has many ways by which he jn a particular case known and his power felt.

The same powcr in a still larger way is vest cising general court-martial jurisdiction. He I

commander's recommendation regarding the a1 and the personnel of the court, prosecution, capacity of reviewing officer he passes on the fin tence, overriding the advice of his staff judge a

I N S O F T H E N A T I O N A L W A R E F F O R T

IT bcen more subject to arbitrary action on he Overwas theaters bcing combat areas in part,

ation can be adduced for almost anything,, on tagc of officers. and military necessity. K, thc powers "statutory or otherwise" of the ~f ovcrseas theaters pertaining to courts ma:-tinl, )f confirmation and thc powers conferred bv 0, 50%. and 51 were terminntetl, and these coin- KL to Washington all pcrlding records involving clismissnl for confirmation.) lat some of the censure which has been poured riem, including some of the criticism mentioned ble not to the Board of Review but to the M di- )f the Judge Advocate General's Office. That ,s of less than extreme seriousness (i. e., cases he penalty of death, dismissal of an officer, dis- ) t suspended, or penitentiary confinement) but ugh to the person concerned. The Military do its work under the same general limitations e Board of Review. I t has had to deal with a i cases. Only one person examines a particular made. Evidence in committee files indicates findings and sentences as they come in, in the :ms incredible that only one in a, han(Jrcc1 ccses In, even within the limits prescribed. )n should serve to make clear that much adverse nst the Board of Review does not rest upon a ,he limitations under which the board operates rtheless it is useless to look to the Military e Board of Review for over-all rectification of all below." The system simply does not permit it. :e or injustice is the great matter. I t is perhaps ,em. - ,ned abovc is further illustrative. There would e mind of any reasonable person that the two ther to a well-known and apparently populous on; that there they were set upon, beaten and em (the second soldier) being rather severeiy tccusation of rape was brought to cover up the event, the charges were dropped against the er the first had been tried. The review board ean theater may have made the same inference, to sustain the conviction because there was

3ffect that the accused was guilty. 'rance was convicted, under the ninety-sixth handling money in connection with English- change in a manner forbidden by ETO regula- nuch evidence to show that his only essential not reporting the transaction of a friend, who suicide, and that others more guilty testified tter admitted) involving him in order to hide The day before the captain was convicted, a was tried on the same charges and given dis-

ervice. The captain was given the same plus

INVESTIGATIORTS O F T H E N A T I O N A L W A R E F F O R T 33

3 years penal servitude. Even assuming that t'he captain was guilty as charged, the two sentences wcre incompatible. The board of review in ETO pointed this out, but the general was inflexible and refused to change anything. The captain is in confinement in France.

8. The pressure qf command on the processes of military justice.-In dealing with this phasc of military justicc we houch one of its most delicate and controversial aspects. While giving attention to the responsibility of the Army in connection with the "basic American rights" of the individual (which even an admiral may find it necessary to claim, as happened at a rccent joint Senate-House hearing on Pearl Harbor), it would be unfair if rccognition is not given at the same time to the responsibility of the Army for order, discipline, and military effectiveness. In a particular situation there may sometimes seem to be a conflict between those two necessary emphases, yet in a broad way it ought not to be impossible to reconcile justice to the individual citizen serving i n the Army with the actual needs of the service. The present system of military justice seeks to do this, and in many respects it is successful. In other respects improvement is not only possiblc but greatly needed.

The influence of command on military justice takes two forms, which might be called official and unofficial. The two forms are easily commingled.

Officially the power of command, though not unchecked, is paramount in the processes of military justice. It is present at every step. The initial charges against an accused man arc ordinarily brought by the company commandcr even if he does not originate them himself. He has some discretion in the matter. He may ignore the accusations, though of ccurse he cannot do so if they are serious and the accuier might take them to a higher officer, or he may decide that the matter can be dealt with under the one hundred and fourth article of war without court-martial procedure. Summary courts, with which this study is not particularly concerned, are entirely under the control of a regimental or post commander. If the case is one in which only a general court can impose an appropriate penalty, the commanding officer appoints an investigating officer. (He may do so also in a special court case, but this is no longer required.) He accepts (or otherwise) the report of the latter, and decides whcther the case shaI1 be tried at all. He selects the prosecutor and the judges and frequently the defense counsel. (He does not, strictly speaking, appoint t'hese officials but only recommends their appointment; i t comes to about the same thing.) A11 the personnel involved are immediately under the jurisdiction of this commanding officer in almost every aspect of their lives. The duties to which they are assigned, their leaves and promotions, their grading in the service, their good reputation, and to a large extent their future careers are in his hands. He has many ways by which he can make his wishes in a particular case known and his power felt.

The same owcr in a still larger way is vested in the officer exercising genera ? court-martial jurisdiction. He may change the local commander's recommendation regarding the appropriateness of trial and the personnel of the court, prosecution, and defense. In his capacity of reviewing officer he passes on the findings and on the sentence, overriding the advice of his staff judge advocate if he chooses

34 I N V E S T I G A T I O N S O F T H E N A T I O N A L W A R E F F O R T

to do so. I n fact, by the 1943 ruling of the Judge Advocate General referred to above, he does not even have to consult his staff judge advocate, in spite of article of war 46. He, too, has the officers concerned in the case (this time including the colonel himself) under his command. If he.should wish to employ his power to determine

. the issue of a court martial, i t is not very difficuh in most cases for him to do so and still Beep within legal bounds.

While the power of the commanding general over personnel involved is probably very rarely employed with the deliberate intent of affecting the course of justice, i t can unintentionally do so, just as a great planet in its orbit can hardly avoid causing aberrations in thecourses of other and smalier planets in its neighborhood. Quite apart from this influence, which may not be intentionally exerted, the legal official power of the commanding general exercising court-martial jurisdiction is very great indeed. While he may not reverse an acquittal (acquittals are rather rare anyway) nor increase the severity of a sentence (sentences are usually sufficiently severe), in the overwhelming majority of cases he is the final judge of both law and fact. Much is made of thc examination of cases by the Board of Review and other authorities in Washington, but they may be reluctant to question the ruling of the commanding general on questions of law, and they are powerless to overrule him on questions of fact. This exceedingly important sentence from the lManual for Courts Martial has already been quot,ed but deserves repetition here:

In such cases the law gives to the court martial and to the reviewing officer exclusively this function of weighi1:g evidence and determining what facts are proved thereby; therefore if the record of trial contains any evidence which, if true, is sufficient to support the findings of guilty, the board of review and the Judge Advocate General are not permitted by lam, for the purpose of finding the record not legzlly sufficient t,o snp1:ort the findings, to consider as e,stablished such facts as are i~>consistent with the findings even though there be uncontroverted evidence of such hc t s .

This means that when any cvidence whatever, 30 matter how dubious or how clearly false, has bccn accepted as true by the commanding gencral in his copacity of reviewing authority, the judicial authorities of the Army at Washington are bound to accept it as true also, and arc thus prevented from correcting even an obvious injustice.

When thc case reaches the highest Army judiciary, the Board of Review and the Judge Advocate General in Washington, the pcrsonnel who make the decisions are still subject to the power of command.

I t should be clearly understood that the facts as to the power of command in tlie system of military justice as they are indicated in the preceding paragraphs, do not constitute a basis for inferring that this power is gencrally misused. The overwhelming majority of officers of higher and lower grade who exercise this poivcr in their respective measures do so conscientiously and with a keen sense of thc responsibility which the possession of this powcr confers upon them. Ncver- theless, the power is tlierc and such power always opens the way to the possibility of abusc. Tllc qu~st ion which arises is, whethcr it is necessary for ofiicers of various grades to possess vely great judicial powers in addition to the powers necessary to administration. The principlc of the independence of the judiciary has always been regarded as one of the most cherished and necessary safeguards of democracy. I t cannot be claimed that independence of the judiciary exists in the Army. It is possible to conceive that the Army might have its own

judiciary with its personnel acting outside th diate commands in which cases arise.

Cases cited in previous parts of this report pr evidence of the pressure of command upon justice. A further illustration may be added. such cases are typical, but that they do actuall;

In 1942, in New York, -a major lost som of those closely acquainted with the case 4

actually any misappropriation nor apparer so, but this aspect of the case is not imp( While the investigation was still going- general issued a court-martial order appoir major, naming him by name, instead ol phrase, "to try such cases as may be prope The issuance of the order while the iilvcsi on, and its unusual form, were interpret( to the investigating officer that the gent brought to trial and was in effect orde officer to bring in that as his recornmendatic

The t r id it,self seems to have been an c one. The court deliberat,ecl on the evide~ than 30 witnesses. The clecision apparent!, ment to the commanding general, for the light sentence, fining the major an amount 5

sum which had disappearecl and ciireciing TVhen t.he findings and sentence were report gencral, he rcbukccl every member of the c prononncing a sentence of disnrissal from orciered reclassification proceedings initiat major. (Compare what was said on the sub ch. 7.) Finally the general ordered every n take a G w d i s ' course in military law; t>h may have been to !luniiliate and punish the for their light sentence, not to improve tihe

All of the eig:~t officers composing the cot three were experiencccl lawycx-s from civil mas a Regular officer of 25 pears' expcrienc provost court. in Hawaii baci 11ea-d morc and had had much court-mxrt.inl experient cant comment ma.de on this aff::.i~ was pel the next poor devil. Tlinli of ~ d ~ a t , he wo1. before that co:.vt. He wouldn't have a pra

The Committee has in its possession example: commanding genc.rals rebuking members of cour tals and "unjustifiably lenient" sentences. Sucj based on the assuniption that a court which acq gives a lcsser scntencc than might be given is nc responsible judgment, but is going outsitic its which is :~pparently to find guilty evcryone b sentencc him as heavily as possible. One such

Clemency is the pecnlisr prerogative of the appoi!ltinl invasion of t l~is ' r ight has becn effectcd. Such action effectivelless of the gelieral discipli~ie which the courts I maill tain.

ONS OF THE NATIONAL WAR EFFOBT

the 1943 ruling of the Judge Advocate General does not even have to consult his staff judge article of war 46. He, too, has the officers (this time including the colonel himself) under should wish to employ his power to determine lartial, i t is not very difficult in most cases for Beep within legal bounds. ;he commanding general over personnel involved employed with the deliberate intent of affecting i t can unintentionally do so, just as a great hardly avoid causing aberrations in the courses ?lanets in its neighborhood. Quite apart from may not be intentionally exerted, the legal commanding general exercising court-martial

.eat indeed. While he may not reverse an ac- : rather rare anyway) nor increase the severity :es are usually sufficiently severe), in the over- cases he is the final judge of both law and fact. txamination of cases by the Board of Review and ashington, but they may be reluctant to question manding general on questions of law, and they tule him on questions of lact. This exceedingly ,om the Manual for Courts Martial has already *ves repetition here: gives to the court martial and to the reviewing officer of m-eig1lii:g evidence and determining what facts are if the record of trial contains any evidence which, if true, .e fifidings of guilty, the board of review and the Judge ; permitted by lam, for the purpose of finding the record support thc findings, to consider as e-stablished such wit,h the findings even though there be uncontroverted

hen any eviclcnce whatever, 30 matter how du- ~!se, has been accepted as true by the command- tcity of reviewing authority, the judicial author- Washington are bound to accept it as true also, ed from correcting even an obvious injustice. ches the highest Army judiciary, the Board of Ad~ocat~e General in Washington, the persoilnel 1s are still subject to the power of command. y understood that the facts as to the power of :m of military justice as they are indicated in the , do not constitute a basis for inferring that this ;used. The overwhelming majority of officers of de who exercise this power in thcir respectiye entiously and with a keen sense of the responsi- ssion of this power confers upon them. Ncver- here and such power always opens the way to the

The question which arisss is, whether i t is of various grades to possess vely great judicial ) the powers necessary to administration. The mdencc of the judiciary has always been regarded lerished and necessary safeguards of democracy. that independence of the judiciary exists in the to conceive that the Army might have its own


judiciary with its personnel acting outside the sphere of the immediate commands in which cases arise.

Cases cited in previous parts of this report provide direct or indirect evidence of the pressure of command upon the course of military justice. A further illustration may be added. The point is not that such cases are typical, but that they do actually exist.

I11 1942, in New Yorlr, a major lost some Army funds. Many of those closely acquainted with the case do not think there was actually any misappropriation nor apparently did the court think so, but this aspect of the case is not important for our purpose. While the investigation was still going on, the commanding general issued a court-martial order appointing a court to try the major, naming him by name, instead of employing the usual phrase, "to try such cases as may be properly brought before it." The issuance of the order while thc invcstigatioil was still going on, and its unusual form, were interpret,ed as clear notification to t'he investigating officer that the general wished the major brought, to trial and was in effect ordering t,he investigating officer to bring in that as his recommendation.

The trial it'self seems to have been an exceptionally thorough one. The court deliberated on the evidei2ce presented by more than 30 witnesses. The decision apparently proved a disappoint- ment to the commanding general, for the court imposed only a light sentence, fining the major an amount somewhat less than the sum which had disappearect and directing a11 oficinl reprimand. When t.he findings and sentence mere reported to the commanding general, he rebuked every member of the court in writing for not pronouncing a sentence of dismissal from the service. Then he ordered reclassificat,ion proceedings initiated against the erring major. (Compare what was said on the subject of reclassification, ch. 7.) Finally the general ordered every member of the court to take a 6 weelis' course in military Izw; t,he object of this order may have been to llumiliate and punish the members of the court for their light sentence, not to improve their education.

All of the eigb t officers composing the court were of field grade, three were experienced lawyers from civil life. The president was a Regular 0ffice.r of 25 years' experience in the Army who as provost court in Hawaii had heard more than 600 alien cascs and had had much court-mart.ial experience. The most signifi- cant comment made on this affnrir was perhaps this: "ThiilB of the next poor devil. Think of what he would 1ac.e when he cttme before that cmrt . He wouldn't have a prayer."

The Committee has in its possession examples of letters written by commanding generals rebuking members of courts martial for acquittals and "unjustifiably lenient" sentences. Such letters are apt to be based on the assumption that a court which acquits the defendant or gives a lesser sentence than might be given is not only not exercising responsible judgment but is going outside its legitimate province, which is apparently to find guilty everyone brought before i t and sentence him as heavily as possible. One such letter says:

Clemency is the peculiar prerogative of the zppointiag authority. A palpable invasion of this'right has been effected. Such action tends to undermine the effectiveness of the general discipline which the courts have been cstsblished t o mail] tain.

36 I N V E S T I G A T I O N S O F T H E N A T I O N A L WAR E F F O R T I N V E S T I G A T I O N S O F T H E N A T I O N A L

Other communications of this sort go further and threaten member- of courts martial. One sent to all comn~anding generals and commanding officers of a very large general command contains the follows ing paragraphs of a threatening nature, the implication of which will be abundantly clear to any Army officer:

Courts mertial. which ccquit admitkdly gui l t j persons and which, by their continued imposition of imdequztc sentences, i~ldicete by their findings and/or sentences thzt they regard themselves r,s rehabiiitstion agencies and the sole repositories of the powers of clemency will be dissolved. Appropriete letters of reprimand will be placed in tb.e 201 files of the members of such courts martial.

I t is desired that when officers who exercise powers under AW 104, summary court officers, or membcrs of speciJ courts mwtisl arz remiss in their duties and are, therefore, removed from office or otherwise disciplined by a base unit corn- mander, tb.is hesdquarters be notified immedi-,tely of the cction t d ~ x . Also, if persmnel of general courts martial si-thing c;L .?, i,-.se u.iit me simi1zri.t remiss in their duties in the judgment of the base unit coriimmdcr, recomrncnd,o,tion for appropriste action sb.ould be imn~edisteljr msde by him,to this hesdquarters. This procedure is necessarjr so tha t this headquwters will know whether or not the base ur i t commC,nder persona1l:f approves of the punishment, if any, meted out by the courts which sit a t the base unit.

I t will be noted, among other thiags, that such threa,ts as tliesc apply to all members sf courts. As cach member of a court is sworn to secrecy about the way he and other members have voted, the general who has an "appropria,t,e reprimand" placcd in a 201 file (the officer's confident,ial official Army record) does not, presumably, know whether this reprimand (so important for the officer's future career) is being placed against someone who was guilty of voting for an acquittal, or an innocent person who was all for "giving the accused the works." I n short, i t is group intimidation.

The assumption in the above letter that members of courts which do not impose severe sentences are "remiss in their duties" should not be overlooked. An even more glaring instance, from another part .of the. world, is cited bdow. Documents and substantiating information are in the possession of the committee.

An outstanding member of thc legal profession who had served as assistant Unitecl States district attorney, as spaaid assistant to the Attorney General of the United Stat,es, and hacl been recommcndecl for the Feclcral bench by the Chief Justice of the United States, entcred the Air Corps early in t,he war. He did not enter as a legal officer, however, because he hacl long been a student of military strategy and desired combatant, service. He performed unusual services in a number of respects and was on tjhc point of being advanced several grades and made chief of encmy tactic,s in the intelligence section of the --- Air Force. About this t h e he was asked, because of his legal training, to serve on the side as law m.ember of a ge,neral court, a request wit,h which he complied reluctantly because he hacl heard of some of the things courts were doing and wanted to keep out of it.

During ti rece,ss in a trial, the sts.fF judge advocate told the members of the court that the gencral desired them to impose maximum sentmces.

The instant case was that of a soldier who delayed ti day and a half in returning rl; camera which had been left by a passenger in the vehicle, he drove. The soldier was charged with larceny. The c,ircumstances as brought out a t the trial made i t very doubtful indeed whe,ther the man had any dishonest intentions, and the court clearly felt this. B u t the general had made i t ~ p p a r e n t through the. staff judge advocate

thet he wanted findings of guilty and maxi members of the court, perplexed as to their d member and asked, "What do we do jn a casl member replied, "Gentlemen, under the M r t n ~ the general doesn't take the oath. You do." soldier guilty of larceny and fined him more t the camera. It did not, however, give him the of 5 years at hard labor and dishonorable disch wanted.

Tllc general wrote a letter of rcprinland tc required thc law member to read i t to the cc issucd a special order that the rep imand shou member's 201 filc. The letter read, in part:

Tha t sentence is most inadequate and reflects ciiscn of military justicc. Those members of the court respc their duty and indulged a disregard for law and the 1 which members of the military service are held. h . condemnation; whcn convicted by general court marti to dislionorable discharge, total forfeitures of pay, ; confinement a t hard labor; less is an affront to hone discipline. Circumstances suggesting clemency may reviewing authority for consideration in determining but cannot justify adjudication by the court of inade offcnse. For its faillre to perform its duty, I reprimar

'The law member did not receive thc schedul<lc nlcnt but was rclicved of his former post, sci with orders that no dutics bc assigned him. and dclaycd. I n these circumstances 1~ sen petition to the Prcsiden t . His immediate co him the friendly advice, for his owl1 good, not that hc could not morally withdraw a petition I

of coasequcncrs. T o continuc~ in his own wc I was then called t,o t,hc --- Bombardment Di.

-- stated to me that if I had been properly trained know11 that the Army does not want intcrfcrences by t. States or by Congress, a.nd I remembcr t,hose words a: them.

The law member's petition was mithhelcl a President. H e then addressed to the Presidenl of inquiry, a petition which does not have to go mailed i t direct. In course of time he receivec President but Irom the Adjutant General, deny ground that the reprimand hacl not been found Department (there is no explanation of Chis) ; t mand anyway but '(advice" (the general offic mand); and finally that i t appeared the generE his well-recognized prerogative to advise a court thereof concerning such matters as improper 1

It is clear that "improper performance of dut like similar phrases in the documents cited abc finding accused persons guilty and not inflictii them. I t does not refer to any laxity or irreg or any failure to observe legal prescriptions.

By this lcttcr (which is in the committee s Department lined itself u p oi5cially with thos

OATS OF T H E NATIONAL W A R EFFORT

111s of this sort go further and threaten membcr- ne sent to all commancliag generals and com- rcry large gcneral command cotitains the follows lrcntening nature, thc implication of which will

any Army officer: ccqnit a,dinit.tecIly g~iilt,:j persolls and which, b\i their ~izcioquai.~ scutences, idicz;l;e by tlrcir findillgs s!~d/or rd thcmselvcs es rehabiiitation agencics and the sole : of clenlency \ d l be dissolved. Appropriate letters of ill thc 201 files of t,hc members of such courts maltial. ofIicers who exercise powcis undcr .AW 104, sunlmuy of speci,?,l courts 1n3rt,isl sra remiss in their duties and

*om office or otherwise d i ~ ~ i p l i ~ ~ e d by z h s c unit conl- ,s bc notified immedi?tely of the ccl;ion t3E:en. Also, urts martial sitting r;t 5, i,-.se u.iit are simiizri.,~ 'rcnliss mel~ t of thc base ulii-t con~nlo,ndcr, rec~mmend.~,Liol~ for 1 be imn~edi.?tely msde b,v him to this hesdqutrters. r:i so that this heedyu.?,rters 1 \ 4 1 know whether or not persoimlly a-pproves of the pmlishlneut, if any, meted

it a t the base uilit.

mong other things, that such t h l ~ a t s as these of courts. As cach member of a court is sworn way he and other members have voted, the

ppropriate reprimandJ1 placccl in a 201 filc (the Ecial Army record) does not, presumably, know ~d (so important for the officw's future career) st someone who was guilty of voting for an :cnt person who was all for "giving the acc~is~cl ,, i t is group intimidation. the above letter that members of courts which sentences are "remiss in their duties" should

An even more glaring instance, from another cited below. Documents and substantiating possession of the committee.

mber of thc legal profession who had served as .s district attorney, as specid assistnnt to the ,he United States, and hacl been recommended )y the Chief Justice of the United States, entcrccl 1 the war. He did not enter as a legal officer, ad long been a student of military strategy and vice. He performed unusual services in a num- s on the point of being advanced several grades lcmy tactics in the inteUigrnce section of the lout this time he was aslrecl, because of his legal the side as law mcmber of a gencral court, a : complied reluctantly because he had heard of lrts were doing and wanted to keep out of it. trial, the staff judge advocate told the members c general desired them to impose maximum

s that of a soldicr who delayed a day and a half which had been left by a passenger in the vehicle - was charged with larceny. The circumstances trial nade i t very doubtful indeed whether the ?st intentions, and the court clearly felt this. ade i t spparent through the staff judge advocate

INVESTIGATIONS OF T H E NATIONAL WAR EFFOIiT 37

that he wanted findings of guilty and maximum sentences. The members of the 'court, perplexed as to their duty, turned to the law member and askecl, "What do we do in a case like this?" The law m.ember replied, "Gentlemen, under the Manual for Courts Martial, the gencral doesn't take the oath. You do." The court found the soldier guilty of larceny and fined him, more than twicc the value of. the cam.era. It did not, howcver, give him the rnaxim.um punishment of 5 years at hard labor and clishonorablc discharge which the general wanted.

The goncral wrote a lettcr of rcprinmncl to the wholc court and rcquirecl t,he law member to rcad i t to the court. Furthermore, he issued a specia.1 order that the repriman.cl should be placcd in the law mambcr's 201 filc. The lett,er read, in part:

That sentence is most inadequate and reflects discredil on thc administration of military justice. Those members of the court responsible for it have failed in their duty and indulged a disregard for law and the high standards of honor t o which members of the military service are held. A thief deserves the sternest condemnation; when convicted by general court martial he should be sentenced t o dishonorable discharge, total forfeitures of pay, and a substantial term of confinement a t hard labor; less is a n affront to honest soldiers and a blow t o discipline. Circumstal~ces suggesting clemency may properly be referred t o the reviewing authority for consideration in determining execution of the sentence but cannot justify adjudication by the court of inadequate punishment for the offense. For its failure to perform its duty, I reprimand the court most severely.

'The law member did not receive thc schcdulrd prornotio~l and assignment but was relieved of his former post, scnt to an inactive base, with orders that no duties be assigned him. His mail was censored and delayed. In these circumstances he scnt, through channels, a petition to the President. His immediate commanding officer gave hiin thc friendly advice, for his own good, not to do this. ITe replied that he could not morally withdraw a petition of that kind, regardless of couscquencts. To colltinue in his own words:

I was then called to thc - Bombardment Divis~on. * * * General -- stated to me that if I had been properly trained in the Army I would have known that the Army does not want interferences by the President of the United States or by Congress, and I remember those aords as though I had memorized them.

The law member's petition was withheld and never reached the President. He then addressed to the President a petition for a board of inquiry, a petition which does not have to go through channels, and mailed it direct. I n course of time he received a reply, not from the I'resident but from the Adjutant General, denying the petition on the ground that the reprimand hacl not been found in the files of the War Department (there is no explanation of this); that i t was not a reprimand anyway but "advice" (the general officially callecl it a reprimand); and finally that it appeared the general was only "exercising his well-recognized prerogative to advise a court through the president thereof concerning such matters as improper performance of duty."

It is clear that "improper performance of duty" in the above letter, like similar phrases in the documents cited above, means simply not finding accused persons guilty and not inflicting heavy sentences on them. It does not refer to any laxity or irregularities of procedure, or any failure to observe legal prescriptions.

By this lettcr (which is in the committee s possession), the War Department lined itself up officially with those officers described on


page 11 who "regard a court martial as essentially a committee to conduct an inquisition for the in.formation of the commanding officer so that hc may properly enforce discipline in his comn~and," ratEer. than a court of justice. The whole offense of the law member lay in thc fact that he had a.dvised the court to take action in accordance with their oath, their consciencc, and the law, when action so gov- crned did not coincide with the express will of the general. The War Depart,n~ent's lettcr is a clear indication that in its view a gcneral is acting within "his well-organized prerogative" when he directs the sentences courts shall give ancl punishes members of courts who do not fo!low his directioas. This prerogative is ilot inent'ioned in the Articles of War or the A4anual for Courts Martial, but i t is a I:-owerful factor in the administration of military j n ~ t i c ~ .

9. YositiorZ, of the enlisted man.-In mililhry justice, the enlisted man tends to be a t a disadvantage, quite %par!, from the denial of trial by judgment of his peers. By the regulations and the manual, for example, an cnlisted man bas the right to bring cimrges against a

~commissioad officer. This is largely a paper provision. An oflicer of loag experience, well known to the public, has said that he hardly ever knew an enlisted man to accuse an ofiicer, but when j.t did happen the enlisted man aiwnys found himself court-martialed or transferred.

It is a very grave offense lor an eniisted man to strike an oEcer or even a noncomnlissioned officer. Even iil time of peace he may be sentenced to '5 years' imprisonment, and in wartime to ilcath. It is not a specific offense under any article of war for an officer to assault an enlisted man, though he could be charged, under the provisioils of article 96, ~vi th conduct unbecoming an officer.

In the Army system the Inspector General has his representatives throughout the Army; and a.ny oficcr or soldier who considers himself unjustly treatcd has the right to bring his grievance to the attention of the latter for correction. Tne opinlon of enlisted men (and junior officers) seems to be that the provision is worthless.

Minor injustices often ranldc deeper, and do more harm to morale, than big ones. I n Manila, on the island of Leyte, and doubtless elsewhere, orders mere issucd t,hat all who violatted speed laws would be punished by court martial and t.he actual sentences were prescribed (illegally). Enlist8ed men were to be fined for the first offense, but officers mere not to be punished until the third offense, in which case they were not to be fined but to receive a reprimand. I n Manila, ancl doubtless elscwhcrc, it is lmomn that sometirnw Army chduffeurs had orders to speed t'hcir vehicles and so mere forced to choose between being punished for disobeyil?g orders or being arrested by the roilitary policc and punished for obeying orders; t'he officer who told the driver to get to a given place a t a given lime, thercby making violation of speed limits inevitable, did not come into the picture at all.

Enlisted men bclieve that t,heir word is never consiclered quite as wood as that of an cfficcr.. This cliffcrentiation is inevitablp in aclmin- P wtmtivc P-attws, in vicw of t1he c,npcrlc!. por-.i!ion 2nd g r ~ a ~ t c r msponsi- bility of ofliccrs, but i t has no piace in ~ v h i cla.ims to be a system of justice. Before anything that calls itself a court, one man's word should bc as valid as that of another, other things being equal. The underlying assumption in mnch Army justice is that an officer is more liltely to be telling the truth than an cnlisted man, if thcir stories conflict. The enlisted man often says, "It's a case of my word against an officer, so what can I do?"

INVESTIGATIONS OF T H E NATIONAI

Such discriminations as have just been men general through the Army. They are of minc with some weightier matters of the law, but greatest importance for the good repute of th occasional soldier who becomes involved in a injustice permissible by the court-martial sy: in the Army is touched by these little daily inji result of making the military service lmpalatak They shodd be taken account of by those re and for morale. There have been, especially years of the war, too many officcrs who thoq terms of shows and beer. The greatest qualit: is self-respect, and real morale must be built up

10. Secrecy a w l cl~onymiiy.-It has been t a,cluevements of civrl liberty in Anglo-Saxon processes are open to the light o l day. Star- tribunals, and everything of that nature is out1 When a man com3s up for trial he, and the pu what goes on in the courtroom and ivho makc there is an apl-ell, the accused, and the public I

who the judges will be, what they decide, and i witnesses, their cross-examination, the argumei accessible. Sometimes thev are printed in the are not always elevating, but the fact, that dccil a t and opeilly rendered is more thail wholec expcrience of maali-ind has shown that it is justice. I t is one of the freedoms for which me

Army justice is not fashioned on this mode secretive as circumstances permit, and what o public through puhlic relations offices is shrc - - anonymity.

The hlanual ~rovides that the ~ u b l i c mav mart,ial, yet t h e public is practicdly nevcr i r reason that it l i n o ~ s nothing about the trial mh the members of the post or regiment are abscn is to be hcld are not pos td , and those not immcc feel thenlselves intruders. Udess the cceusec is not ovcr wh~i l verdicts are reachcd and punis records must go to the commanding gencral. not refcrred to as such hut by the impcrson reviewing authority." What happens a t his hc Bno.m; itr lies between the gcneral and his s ta is always a highly anonymous person. Eve1 authority" malres his decision, and the trial is c is then quietly informed of what his fate will bc able event of an ovcrturn of the decision of t more anonymous reviewing and confirming a Department The names of those personage Occasionally decisions in which the public has announced in the name of the head of the Dcpa~ thc facts and reaches the conclusions is not d i ~

The recorzds of thc Judge Ad~:oci~tc Gencrn corresponding records in cwil courts, are not : As a mattcl- of courtesy, not of right, dcfense appear when a case coines before the Board c

O N S O F THE N A T I O N A L W A R E F F O R T

a court martial as ess~ntially a committee to for the in.formation of the commanding offimr

rly enforce discipline in his command," rat,ker e. The whole oflonse of t'he law mcmber lay a.dviscd thC court to take action in accordance conscicnce, and thc law, when act8ion so gov- with thr express will of t l ~ c gencrnl. The. War a clear itxlication that in its vicw a general is

11-organizc~cl prerogativc" when he dirccts the ;ive and punishs rnc,mbcrs of courts who do not

rChis prerogative is not mcntioncd in the A4anual for Courts Mnr'cial, but i t is n J: owerful ,ation. of niilitary jnsticc. z1istc.d man.-In milihary justice, the enlisted disaclvm, t,a,ge, quik apart lrom the denial of

is peers. By the regulations and the Manual, d man bas the rig!] t to brkg cimrgos against a This; is lugcly a paper provisioi?. An officer

1 known to the public, hns said that he hardly nail to accuse nil officer, but when i t did happen 7s fonnd himself court-mart,ialed or transferred. Fense lor an enijstecl man to strike ail omcer or .ed oficer. Even iil time of peace he may be mprisonment, a.nd in wutime to death. It is nder any article of war for an officer to assault $1 he could be charged, under the provisions of t unbecoming an officer. the Inspector General has his representatives

and m y officer or soldier who considers himself le right to bring his grievance to the attention tion. T i e opinloil of enlisted men (and junior .at the provision is worthless. !n rankle deeper, and do more harm to morale, anila, on the islancl of Leyte, and doubtless issued that all who violated speed laws would lartial and t.he ac-tual sentences were prescribed len were to be fined for the first offense, but puilislled until the third offense, in which case ncd but to receive a reprimand. I n Manila, e, it is known -that sometim~s Army chauffeurs ir vehicles and SO were forced to choose between beyir~g orders or being arrested by the rrrilit~ry obeying orders ; t'he oEcer who to1.d the driver

: a t a given lime, thereby maluug violation of did not come into the picture at all.

? 1;ha.t t'heir word is never considered quite as :r. This differentiation is ine,yitabl~ in aclmin- . . :TV of the superlx po~ltion :,nd greater responsi- has no piace in what cla.ims to be a system of

ing that calls it,self a court,, one man's word hat of another, otller things being equal. The in much Army justice is that an officer is more

? truth than an elllisted n a n , ii thcir stories man often says, '(It's a case of my word against I do?"

I N V E S T I G A T I O N S O F THE N A T I O N A L W A R E F F O R T 39

Such discriminations as have just been mentioned are not local but general through the Army. They are of minor importance compared with some weightier matters of the law, but are nevertheless of the greatest importance for the good repute of the Army. I t is only an occasional soldier who becomes involved in a big way in some legal injustice permissible by the court-martial system, but every soldier in the Army is touched by these little daily injustices. They have the result of making the military service unpalatable to American citizens. They should be talien account of by those responsible for recruiting and for morale. There have been, especially perhaps in the earlier years of the war, too many officers who thought of morale chiefly in terms of shows and beer. The greatest quality in American manhood is self-respect, and real morale must be built upon that as n foundation.

10. Secrecy awl o~onymiiy.-It has been one of the outstanding achievements of civd liberty in Angio-Saxon countries that judicial processes are open to the hght ol day. Star-chamber courts, secret tribunals, and cvergthing of that nature is outlawed in civilian justice. When a man c0rn.s up for trial he, and the public too, linows exactly what goes on in the courtroom and .~rlao makes the decisions. When there is an apyed, the accused, and the public if i t is interested, knows who the judges will be, what they decide, and why. The testimony of witnesses, their cross-examination, the arguments on both sides are all accessible. Sometimes they are printed in the newspapers; the details are not always elevating, but the fact that decisions are openly arrived a t and opeilly rendered is more than wholesome; it is vital. The experience of manliind ha9 shown that it is a necessary element of justice. I t is one of the freedoms for which we fought.

Army justice is not fashioned on this model. Its processes are as secretive as circumstances permit, and what occasionally reaches the public through public relations offices is shrouded i11 departmental anonymity.

The Manual provides that the public may be adrtLi:ted to courts martial, yet the public is practically never present for the excellent reason that it lmows nothing about the trial which is to be held. Even the members of the post or regiment are absent. Notices that a trial is to be held are not post,ed, and those not immediately concerned would feel themselves intruders. Unless the accused is acquitted, the trial is not over whcn verdicts are reached and punishments assessed. The records must go to the commanding general. For this purpose he is not referred to as such but by the impersonal appellation of "the revie~viag authority." What happens a t his headquarters no one ever linov~s; it lies b e t a e n the general and his staff judge advocate, who is always a highly anonymous person. Eventually "the reviewing authority" makes his decision, and the trial is complete. The accused is then quietly informed of what his fate will be except in the improbable event of an ovcrturn of the decision of the general by the still more anonymous reviewing and confirming authorities in the War Department The names of those personages are never published. Occasionally decisions in which the public has shown an interest are announced in the name of the head of the Department. Who analyzes the facts and reaches the conclusior~s is not divulged.

The recorrds of the Judge Aci?:ocate General's Department, unlilie corresponding records in civil courts, are not available to the public. As a matter of courtesy, not of right, defense counsel are allowed to appear when a case comes before the Board of Review--though, of

40 INVESTIGATIONS OF THE NATIONAL W A R EFFORT

course, this happens rather selclom, and only whcn the defendants can afford to employ thcm-but such counsel are not permitted to see the staff judge advocate's report to the convening authority (general) on the ground that this is a coifidential report to a superior ofhcer. Nor are the reports of Ibc Board of Rcview in cases requiring confirmation divulged. The gencral Army practice is to let out as little information about court-martial ttrals as possible.

The accused has the right to ask for a transcript of the record of his trial. The transcript given is a bare recorcl of what was said in open court. The report of thc investigating officer, upon which the trial was based in the first place and, which in practice, if not in theory, does so much to fix a presupposition of guilt upon the accused. is not included. The latter has no mcans of knowing, or at any rate proving, how "thorough and impartial" the investigation was and this often has a great deal of bearing upon the case, because, as we have seen, the investigation is often neither thorough nor impartial. Data given out by the Army are always limited and grudging, and deferlse counsel (if any), when the case reaches the Board of Review, are often considerably handicapped because of this fact.

The famous Coleman case has becn cited in public print as a n example of surprising dccisions by unknown authorities. Col. W. T . Coleman, commander of Selfridge Field, Mich., in a fit of drunken, irresponsible temper, shot his Negro soldier chauffeur. Pour months later a court martial convicted him of drunkenness and "careless use of firearms." The original sentence was that Coleman be reduced to captain and withhelcl from promotion for 3 years. This must have been approved by the commanding general and the Judge Advocate General. I t is open to wonder what finding and sentence would have been nppliccl had a drunken Negro soldier shot the colonel. There was much newspaper discussion of this case, however, ancl 2 months later thc "War Department" (not even the Secrctary of m'ar) announced that Colonel Coleman was being retired. No individual had any public responsibility for dccisions made in the case, everything being veiled in corporate action.

In thc case of thc captain in France, tlcscrihcvl on p a p 33, the former captain was iorbicldcn to send his record of trial homc to his wife, the reason being that thc documcllt was stnmpctl "con- fidcl~tial," and an ,2riny order forbade scnding i t out of the couu- t ~ y bccnuse it night reveal to the cncmy thc names of plilces where military organizations wc.re. Tt happens, howevcr, that this trial took place on May 31, 1945, nfter VE-dav. Pe~mission to send the record was dcniccl to t l ~ c captain in Dccember 1045.

11. Excessive and disparate sentences.-There have been many excessive sentences, although nonc perhaps with the degree of ab- surdity reached in the First World War when a soldier was sentencecl to a term of 30 years' imprisonrncnt for refusing to hand over a package of cigarettes to a second lieutenant who had been in the Army 3 weeks. The most tragic, of course, are the death sentences not commuted, about which it is so difficult to obtain information. Many of thcse have been for rape, especially abroad. Armies of other nations in Europe and probably elsewhere never give a sentence of more than 10 years for this offense (the British Army gives 6 months to 2 years) and when the peoples abroad have seen us hang our own soldiers for it they have been asking curious questions about American freedom.

INVESTIGATIONS O F THE NATIONAI

The fact that, as the Manual for Courts Mi "an accusation easy to bc made, hard to be 1: defended by the party accused, though innoc possibility that Army severity in this rcspect (

in Europe of bringing the charge in order to ex can soldiers, might well have made the Am motives of expediency if not from a sense of jt death or ordering them to life imprisonment. was to coerce soldiers into good behavior anc for our forces in enemy and liberated coun jectured that neither of these objectives was

The case of t,he soldier convicted of serving a life sentence (while his compal for the same offense because of facts e brought out at the first trial) is similar tc the committee in that the complainant morals. I n fact she was the owner of a same is hue in the other case known to this case also an American soldier is ser intercourse in a housc where the imlates for pay.

Absence without leave has constituted dui ptoblem for the Army. I n peacetime the pe moderate (6 months if absent for 60 days or m and 2 days' forfeiture of pay for each day absc Millions of men, whose previous experience h: quit their job if they did not like it and in a faction of tclling the boss what they thought of the Army suddenly and found quite othcr Some of them were ignorant men with little ur army is and what n war is. They were sent 1 was not surprising that many "took off" for wh reasons, sickness a t home and things of that so real deserters, but many had no intention of c mitted the offense of a. w. o. 1. repeatedly. C thc obvious intention of avoiding foreign serv werc liliely to be shipped abroad. As a resu chaotic in places, the Prcsidcnt removed the lim which courts could givc for absence without lea the limit. Army courts in Europe adjuclgec imprisonment for a. W. O. 1. NO uniformity of there is no question that sentences of utterly were very common. To justify this it was saw be long enough to keep the offencler in prison

A chemical engineer from Wilmington, an only son, was inducted in 1942. He high-strung, nervous disposition and in th medical mcn should not have bcen indu however, and was later commissioned, s e ~ land and later on the battlefields in franc^ his organization was in a rcst area some 3 with some companions, made a trip to Pc noon, August 27,1944. Becoming separat who went off with some women, the lieutc hotel. He expected the others to join him

3NS OF THE NATIONAL WAR EFFORT

*aLl~er seldom, tlncl oilly wlml the defendarlts thcm- but such colmscl arc not permitted to oc-ate's rcport to the convening authority (gcll- hat this is a confidential report to a supckor eports of the Board of Rcview in cases rccluir- gcd. Thr gcncral Army practice is to lrt out bout court-martla1 t~ia ls as possible. : right to ask for a transcript of the record of ipt given is a bare record of what was said in )rt of thc investigating officer, upon which th(: e first place and which in practice, if not in o fix a presupposition of guilt upon the accused. latter has no means of knowing, or at any rate h and impartial" the investigatlon was and this of bcaring upoil the case, because, as we have is often neither thorough nor impartial. Data are always limited and grudging, and defense

the case reaches the Board of Review, arc often ped because of this fact. lcinan case has becn cited in public print as an sing decisions by unknown authorities. Col. ommandcr of Selfridgc Field, Mich., in a fit of sible tempcr, shot his Negro soldier chauft'eur.

a court martial convicted him of drunkenness of fircarms." The original sentencc was that ed to captain and withheld from promotion for ust have been approved by the commanding udge Advocatc General. I t is open to wonder entence v~ould have been applied had a drunken , the colonel. There was much newspaper dis- asc, however, and 2 ~nonths later thc "War t even the Secretary of SiT'ar) announced tlmt was being retired. No individual had any

ty for decisions made in Lhe case, everything .porate action. he captain in Prance, tlcscr:t)cd on page. 33, the 1s iorbiddcn to send his record of trial home to 111 bring that thc document was stamped "con- h i n y ordcr forbade sending it out of thc couu- ght reveal to the cneiny thc namcs of places aganiaations were. T t happens, however, that :e on May 31, 1945, ilfter VE-dav. Pcmission 1 was dcnied to thc captain in Deremhcr 1945. iisparate sentences.-There have been many [though none perhaps with the degree of ab- First World War when a soldier was sentenced nprisonment for refusing to hand over a package d lieutenant who had been in the Army 3 weeks. 3urse, are the death sentcnces not commuted, ifficult to obtain information. Many of these specially abroad. Armies of other nations in :lsewhere never give a sentence of more than 10 ,he British Army gives 6 months to 2 years) and )ad have seen us hang our own soldiers for it g curious questions about American freedom.


The fact that, as the Manual for Courts Martial points out, rape is "an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent," together with the possibility that Army severity in this respect contributed to a practice in Europe of bringing the charge in order to extort money from Ameri- can soldiers, might well have made thc Army more cautious, from motives of expediency if not from a sense of justice, in putting men to death or ordering them to life imprisonment. The object, presumably, was to coerce soldiers into good behavior and to increase the respect for our forces in enemy and liberated countries. I t may be con- jectured that neither of these objectives was greatly promoted.

The case of the soldier convicted of rape in Italy and now serving a life sentence (while his companion was not even tried for the same offense because of facts exculpatory the accused brought out a t the first trial) is similar to another case known to thc committee in that the complainant was a woman of light morals. I n fact she was the owner of a house of ill fame. The same is true in the other case known to the committee, and in this case also an American soldier is serving a life sentcnce for intercourse in a house where the inmates regularly received men for pay.

Absence without leave has constituted during the war a difficult problem for the Army. I n peacetime the penalty imposed was very moderate (6 months if abscnt for 60 days or more, 3 days' confinement and 2 days' forfeiture of pay for each day absent if less than 60 days). Millions of men, whose previous experience had been that they could quit their job if they did not like it and in addition enjoy the satisfaction of telling the boss what they thought of him, were brought into the Army suddenly and found quite other conditions prevailing. Some of them were ignorant men with little understanding of what an army is and what a .war is. They werc sent to strange climates. It was not surprising that many "took off" for what seemed to them good reasons, sickness a t home and things of that sort. Sonie of them were real deserters, but many had no intention of deserting. Othcrs committed the offense of a. w. o. 1. repeatedly. Others disappeared with the obvious intention of avoiding foreign service just as their outfits werc likely to be shipped abroad. As a result of conditions almost chaotic in places, the President removed the limitation on the sentences which cowts could give for absence without leave, and the sky became the limit. Army courts in Europe adjudged two sentences of life imprisonment for a. w. o. 1. No uniformity of practice prevailed, but there is no question that sentences of utterly unreasonable severity were very common. To justify this i t was said that a sentence should be long enough to keep the offcnder in prison until the war was over.

A chemical engineer from Wilmington, Del., 34 years of age, an only son, was inducted in 1942. He had always been of a high-strung, nervous disposition and in the opinion of competent medical men should not have been inducted. He made good, however, and was later commissioned, serving 8 months in Ice- land and later on the battlefields in France and Belgium. While his organization was in a rest area some 30 miles from Paris, he, with some companions, made a trip to Paris on a Sunday after- noon, August 27,1944. Becoming separated from his companions who went off with some women, the lieutenant took a room at a hotel. He expected the others to join him in the morning. They

42 INVESTIGATIONS OF THE NATIONAL WAR EFFORT INVESTIGATIONS OF THE NATIONAI

did not do so. He waited for them and did not get back to his outfit until Tuesday n~orning. The others were back on Monday morning. Whether or not any of the group had permission is not clear, but no charge was ever placed against any of the others. The lieutenant, who was I day a. w. o. I., was convicted by general court martial to dismissal and confinement at hard labor for 5 years (later reduced to 2 years). The lieutenant was brought to this country and confined a t the disciplinary barracks a t Green Haven, N. Y. While he was there, the commanding officer and the board of psychiatry and sociology recommended his release on grounds of his mental and physical condition. This was refused by the Secretary of War, in conformity with the policy of not freeing any prisoner sentenced for Army violations as long as the war continued. After Japan surrendered, he was released on September 4, 1944. He reached home at 9:30 p. m., and died 2jh hours later of a coronary thrombosis, possibly brought on by strain and shock.

The conviction of a useful officer and his sentence to dishonorable discharge and 2 vears of hard labor, for 1 dav's absence without lea&, not in the presence of the enemy, th; refusal of even clemency recommended by penitentiary officials, its culmi- nation in death, and the accompanying misery of a patriotic American family were all perfectly legal under the system.

Some comments t h t havc been made are instruciive: A high- ranking Army officer said there must have been somebody in the lieutenant's company who was "out to get him" because ordinarily the offense for which he was court-martialed would have carried a penalty of not more than a $50 fine. Another officer, formerly staff judge advocate of. a large command, said: "If they sentenced all the officers who were away a day too long like that they wouldn't have any Army left." A prominent civilian attorney wrote to the Secretary of War:

When I looked into the law for the purpose of ascertaining what individual or what board had been set up to hear appeals from such sentences, I karned t o my surprise that there is absolutely no appeal from the sentence of a court martial. I have discussed this case with our representatives in Congress, but they have been unable t o make any impression on your subordinates in the War Department. I n their attempts t o have this case reviewed in this country, i t became ev:dent that we were up against a military system as self-righteous and cold-blooded as any in the world. As a practicing attorney, I realized that constitutional guaranties mean nothjng as far as Army trials are concerned. * * * I a m one of those who was of the opinion that universal military service would be a good thing for this country, but I have changed my mind; and as long as I live, I shall oppose any attempt t o extend the military power in time of peace. I do not wish t o risk having my son inducted into a n army which is as inconsiderate in its practice as this case proves it to be. I do not want his heart or his spirit broken by the action or decision of arbitrary boards from whose decisions there is no appeal.

The Under Secretary of War wrote to the parents, referring to the above as a "fine letter" and extending sympathy. He would, he said, have recommended a Presidential pardon for the lieutenant, but it was decided this could not be given posthumously.

On March 5, 1943, The Adjutant General published a letter on the subject of uniformity of sentences adjudged by general courts martial (AG 250.4 (2-12-43) OB-S-SPJGJ-M). This letter outlined a policy of appropriate sentences in the area of the United States, for offenses

not controlled by the articles in time of war c mum punishments where limitations have bee ident. For aggravated absence without leave not "ordinarily" exceed 5 years; for desertion "not less than 5 years"; for a soldier striking 5 years w-odd be "appropriate," with 10 yea1 mum"; deliberate disobedience of a commiss than 5 years"; misbehavior of a sentinel, 5 "normal." The letter was careful to state thr is a judicial body, the policies announced II-

"guide" rather than as a directive. Such a pl authority in the Army, however, was natural1 order. Commanding officers read this letter The effect was to establish a high degree of u at a high level of severity.

As a result of this policy, hundreds, probab dered boys with no really disloyal intentions wc imprisonment for absence without leave. A more humane might have been worked out wl more of these soldiers to useful and honorabh Army, faced with this identical problem, used sence without leave for more than 21 days is in British military law, but no one can be s desertion.) The legality of the letter of The been questioned. I t is a case of the executive directing what sentences courts must impose, should be scrutinized even in wartime.

Another example of infringement upon w sidered elementary judicial principles occurrc when a letter was sent out by the commandi Forces, practically demanding dismissal for breach of certain flying regulations. This was of courts. So many officers were lost to the policy that it had to be modified.

It is the opinion of competent observers generally err on the side of severitv. This is n I which most excites civilian criticism, although this report that the root of the trouble lies deep€ system itself.

The same can be asserted in a general way (

disparity between sentences imposed on differ same offense. One cause of disparity is the vai the Articles of War. Another cause is a diffic civilian justice, but which is real to an Army in t which might be trivial under some circumsta with extreme gravity on a campaign and in enemy. This consideration constitutes a meas1 many severe sentences imposed abroad, althol lt has been abused and made to cover hasty a1 and unconscionable sentences, such convictio make i t necessary for the War Department c through the great task of revising sentences dow of clemency.

jNS OF THE NATIONAL WAR EFFORT

e waited for them and did not get back to hin ,y morning. The others were back on Monday 3r or not any of the group had permission is not ge was ever placed against any of the others. LO was 1 day a. w. o. I., was convicted by general lismissal and confinement at hard labor for 5 :d to 2 ycars). The lieutenant was brought to :onfined at the disciplinary barracks a t Green hile he was there, the commanding officer and hiatry and sociology recommended his release s mental and physical condition. This was cretary of War, in conformity with the policy prisoner sentenced for Army violations as long lad. After Japan surrendered, he was released 944. He reached home a t 9:30 p. m., and died L coronary thrombosis, possibly brought on by

of a useful officer and his sentence to dishonor- d 2 years of hard labor, for 1 day's absence t in the presence of the enemy, the refusal of :ommended by penitentiary officials, its culmi- and the accompanying misery of a patriotic vere all perfectly legal under the system. s t l - ~ t havc been made are instruciiv~. A high- cer said there must have been somebody in the my who was "out to get him" because ordinar- Ir which he was court-martialed would have of not more than a $50 fine. Another officer, ze advocate of a large command, said: "If thcy ~fficers who were away a day too long like that re any Army left." A prominent civilian attor- Secretary of T a r : nto the law for the purpose of ascertaining what indi- -d had been set up t o hear appeals from such sentences, r i s e that there is absolutely no appeal from the sentence

I have discussed this case with our representatives in have been unable t o make any impression on your

e War Department. I n their attempts t o have this is country, i t became ev4dent that we were up against ts self-righteous and cold-blooded as any in the world. ,orney, I realized that constitutional guaranties mean rmy trjals are concerned. * * * I am one of those inion that universal military service would be a good itry, but I have changed my mind; and as long as I

any attempt t o extend the military power in time of ish t o risk having my son inducted into an army which in its practice as this case proves it t o be. I do not ?is spirit broken by the action or decision of arbitrary decisions there is no appeal.

retary of War wrote to the parents, referring to ne letter" and extending sympathy. He would, ommended a Presidential pardon for the lieu- ; decided this could not be given posthumously. The Adjutant General published a letter on the of sentences adjudged by general courts martial )B-S-SPJGJ-M). This letter outlined a policy :es in the area of the United States, for offenses

INVESTIGATIONS OF THE NATIONAL W A R EFFOIW 43

not controlled by the articles in time of war or by the table of maximum punishments where limitations have been removed by the Pres- ident. For aggravated absence without leave, the punishment should not "ordinarily" exceed 5 years; for desertion (in the United States) "not less than 5 years"; for a soldier striking a, commissioned officer 5 years would be "appropriatc," with 10 years as a "probable maximum"; deliberate disobedience of a commissioi~cd officer, "not less than 5 years"; misbehavior of s sentinel, 5 ycars to be considered' "normal." The letter was careful to state that since a court martial is a judicial body, the policies announced mush be construed as a "guide" rather than as a directive. Such a pronouncement from top authority in the Army, however, was naturally taken as virtually an order. Commanding officers read this letter to members of courts. The effect was to establish a high degree of uniformity in sentences, at a high level of severity.

As a result of this policy, hundreds, probably thousands, of bewil- dered boys with no really disloyal intentions were sentenced to 5 years' imprisonment for absence without leave. A policy both wiser and more humane might have been worked out which would have saved more of these soldiers to useful and honorable service. The British Army, faced with this identical problem, used other methods. (Ab- sence without leave for more than 21 days is regarded as desertion in British military law, but no one can be sentenced to death for desertion.) The legality of the letter of The Adjutant General has been questioned. I t is a case of the executive, rather than the law, directing what sentences courts must impose, and such proceedings should be scrutinized even in wartime.

Another example of infringement upon what are usually considered elementary judicial principles occurred in the Air Forces, when a letter was sent out by the commanding general, Army Air Forces, practically demanding dismissal for officers convicted of breach of certain flying regulations. This was also read to members of courts. So many officers mere lost to the service through this policy that it had to be modified.

It is the opinion of competent observers that Army sentences generally err on the side of severity. This is n phase of Armv justice which most excites civilian criticism, although it is the substance of this report that the root of the trouble lies deeper, in the court-martial system itself.

The same can be asserted in a general way of the much-discussed disparity between sentences imposed on different offenders for the same offense. One cause of disparity is the vagueness of so many of the Articles of War. Another cause is a difficulty not paralleled in civilian justice, but which is real to an Army in time of war. Offenses which might be trivial under some circumstances become fraught with extreme gravity on a campaign and in the presence of the enemy. This consideration constitutes a measure of justification for many severe sentences imposed abroad, although as a justfication it has been abused and made to cover hasty and unjust convictions and unconscionable sentences, such convictions and sentences as make i t necessary for the War Department after each war to go through the great task of revising sentences downward by the exercise of clemency.


The major root of the difficulty, however, lies in the immediate nature of the two conceptions, "peacetime" and "wartime." Some sentences imposed in quiet camps in the United States and back areas abroad have been very heavy because it was "in time of war," when as a matter of fact everything connected with the offenses took place thousands of miles from any front, and there was no apparent reason for such severity. They order this matter better m the British Army.

'Due perhaps to the long experience of the British in "little wars" far from home, British military justice has developed a distinction not between punishments "in time of war" and "in time of peace," but between troops "on active service" and those "not on active service." Under this distinction, "in time of war" cannot be used to justify sketchy processes of justice and extreme sentences far from the scene of actual contact with the enemy. Sentences may be more severe for military personnel who are "on active service," which is thus defined:

In this act * * * the expression "on active service" as applied to a person subject to military law means wheneter he is attached to or forms part of a force which is ellgaged in operation against the enemy or is engaged in military operations in a country or place wholly or partly occupied by the enemy or is in military occupation of any foreign country (the Army Act, sec. 189).

We need some distinction equivalent to this in our Articles, and, in addition, the Articlcs should contain, or Congress should permit the President to publish in the Manual, maximum tables of punishments for both conditions. At present there is a maximum table for "time of peace," but in "time of war" the limits for some offenses are entirely removed, with resultant confusion, disparity of sentences, and essential injustice.

I t is only fair to add that criticism of excessive ancl disparate scntences should not be laid at the door of the actual courts imposing the basic sentences without taking into consideration the following:

(a) The court is aware that its sentences can only be reviscd do.wnward, ancl not upward, by higher authorities.

(b) The court tends to rely on thc reviewing authorities at headquarters and in the War 'Department to correct sentences that are out of line.

( c ) The court is aware that due to provisions for shortening sentences for good conduct while in confinement, to rehabilitation prec- tices, and similar measures, the full time iinposcd will not, in many cases, be actually served.

(d) I t was well understood that heavy sentences would be drastically cut down after the war, as is now actually being done.

Many, probably most, of the long terms of confinement adjudged by military courts are not served out in thcir entirety. Harsh sentences are often not what they seem. Yet it is questionable whether the practice of imposing heavy sentences and then by clemency or other procedures mitigating them, really serves the ends of either justice or discipline. So far as the latter is concerned, Army officers seem to feel that a good in terrorem efiect is produced when the men hear that "So-and-so got 10 years for that." Yet nobody is really deceived, least of all the genuinely criniud elements who are always well informed on these points. Word gets around. VThat the men are more likely to say is, "So-and-so got 10 years for that, but they will probably knock off 6 or 7." I t is a good rnasim that celerity and


certainty of punishment are far more deterrer harsh sentences which will not be carried out. that our British allies are wiser, and that the what we would think lenient sentences but t likely to be carried out in full, unless essential in

I t is appropriate here to describe briefly the Department Clemency Board. Normal peace tions as carried on by the Secretary of War's o page 10 of this report. The war produced a of prison cases, and the sentences were for much at least, because of the feeling indicated abc should not be given a short sentence with a (

which would enable him to go home, while honoi soldiers were still fighting the war. Hence it 1 both world wars to set up a kind of mass-pro1 cedure. In June 1945 the W'ar Department established. There are five members, headed Supreme Court; the otl~ers are a former comn of K m York City, a combat officer, an Assic General, a junior oficer, and a distinguished This is the policy-niaking group. Uncler them z each headed by a civilian, which examine the ca one member of the general board. Operations the fiftieth article of war. The special boards following data about each case: the record of tri: from the institution where the prisoner is confinc on the family circumstances of the prisoner, Investigation report on his civil record, a rec case from the warden of the penitentiary, a reco Judge Advocate General, and a recommendatioi Division of The Adjutant General's Office. P thorough. In most cases (nore than 85 percer up to February 1946) scntences have been r drastically. This is in itself inclication of th sentences that have been imposed. The board examination of 35,000 cases by July 1946. So criticism of the operation of this board exists. that which arises out of the necessity for its esi

12. Prisons.-Thorough consideration of the which the Army confines military personnel wh would be impossible without a wide indepc Therc are a few points, however, to which atten

In its larger institutions, such as disciplinr habilitation centers? it would seem that the A principles of an enl~ghtened penology. Army I terms are frequently confincd in Federal pen manag~ment of which is well known. When tl to be m smaller and morc temporary places of houses and stockades serving local areas and u commands. In this respect the situation rathei is known to exist in civilian prisons. It is not in maintained by the Federal Government or the States that one looks to find prison abuses bu and small city prisons.

ONS OF THE NATIONAL WAR EFFORT

the difficulty, howe~er, lies in the immediate iceptions, "peacetime" and "wartime." Some

1 areas luiet camps in the United States and bacl- y heavy because it was "in time of war," when erytlling connected with the offenses took place ~m any front, and there was no apparent reason ley order this matter better in the British Army. ng experience of the British in "little wars" far lilitary justice has developed a distinction not "in time of war" and "in time of peace," but

:tive service" and those "not on act'ive service." 1,. "in time of war" cannot be used to justify justice and extrcme sentences far from the

~ c t with the enemy. Sentences may be more :rsonnel who are "on active service," which is

the espressioll "on act,ive service" as applied to a v la\\- Inearls whenever hc is attached to or forms part ged i n operation against, the enemy or is engaged in ountry or place wholly or partly occupied by the enemy >n of any foreign cou~ltry (the Army Act, sec. 189).

nction equivalent to this in our Articles, and, in should contain, or Congress should permit the n the Manual, maximum tables of punishrnents A t present there is a maximum table for "time e of war" the limits for some offenses are entirely ltallt confusion, disparity of sentences, and

add t,llat criticism of excessive and disparate 3e laid at the door of the actual courts imposing iithout taking into consideration the following: Lware that its sent,ences can only be revised pward, by higher authorities. s to rely on tjhe reviewing authorit'ies a t heacl- War 'Department to correct seakences that are

vare that due to provisions for shortening sen- ~ c t while in confinement, to rehabilitation prac- asures, the full time imposcd mill not, in many ied. derstood that heovy sentences would be drssti- the war, as is now actually being done. ost, of the long terms of confinernent adjudged *e not served out in their entirety. Harsh sen- vhat they seem. Yet it is questionable whether sing heavy sentences and then by clemency or .ig,zting them, really serves the ends of either So far as the latter is concerned, Army officers

)ocl in terrorem effect is produced when the men got 10 years for that." Yet nobody is really

the genuinely crinlinal elements who are always se points. Word gets around. TIThat the men y is, "So-and-so got 10 years for that, but they IB 6 or 7." I t is a good rnasim that celerity and


certainty of punishment are far more deterrent to wrongdoing than harsh sentences which will not be carried out. Here again it is said that our British adlies are wiser, and that their military courts give what we would think lenient sentences but that the sentences are likely to be carried out in full, unless essential injustice is later proved.

I t is appropriate here to describe briefly the operation of the War Department Clemency Board. Normal peacetime clemency operations as carried on by the Secretary of War's office are mentioned on page 10 of this report. The war produced a vastly greater volume of prison cases, and the sentences were for much longer periods, partly, a t least, because of the feeling indicated above that a wrongdoer should not be given a short sentence with a dishonorable discharge which would enable him to go home, while honorable and well-behaved soldiers were still fighting the war. Hence it became necessary after both world wars to set ,up a kind of mass-production clemency procedure. In June 1945 the War Department Clemency Board was established. There are five members, headed by a Justice of the Suprenie Court; the others are a former commissioner of correction of IZTm York City, a combat officer, an Assistant Judge Advocate General, a junior officer, and a distinguished civilian trial lawyer. This is the policy-making group. Under them are four special boards, each headed by a civilian, which examine the cases and report each to one member of the general board. Operations are carried on under the fiftieth article of war. The special boards have before them the following data about each case: the record of trial, a psychiatric report from the institution where the prisoner is confined, a Red Cross report on t<he family circumstances of the prisoner, a Pecleral Bureau of Investigation report on his civil record, a recommendation on the case from the warden of the penitentiary, a recommendation from the Judge Advocate General, and a recommendation from the Correction Division of The Adjutant General's Office. Procedure is obviously thorough. In most cases (more than 85 percent of those considered up to February 1946) sentences have been mitigated, often very drastically. This is in itself indication of the extreme nature o!' sentences that have been imposed. The board expects to finish the examination of 35,000 cases by July 1946. So far as is known, no criticism of the operation of this board exists. The only criticism is that which arises out of the necessity for its existence.

12. Prisons.-Thorough consideration of the places and manner in which the Army confines military personnel whom it has condemned would be impossible without a wide independent investigation. There are a few points, however, to which attention may be directed.

In its larger institutions, such as disciplinary barracks and rehabilitation centers, it would seem that the Army is following the principles of an enlightened penology. Army prisoners serving long terms are frequently confined in Federal penitentiaries, the good management of which is well known. When trouble arises it is apt to be in smaller and more temporary places of confinement, guardhouses and stockades serving local areas and units and under local commands. In this respect the situation rather parallels that which is known to exist in civilian prisons. I t is not in the great institutions maintained by the Federal Government or the governments of the States that one looks to find prison abuses but in the county jails and small city prisons.

46 INVESTIGATIONS OF THE NATIONAL WAR EFFORT INVESTIGATIONS OF THE NATIONAL '

The Army lays down very precise regulations regarding the care and supervision of prisoners. Where these regulations are carried out in spirit as well as literally, there is no ground for complaint. It is inevitable, however, that here and there the deep-seated sadistic impulses which seem to be inherent among the other complexities of human nature should get the upper hand. During the war, the Army has been reluctant to assign soldiers of the best quality to duty as prison guards; they were too greatly needed in combat units. Nor are local guard companies, often referred to as military police, usually made up of members of the Army's trained military police under the Provost Marshal General. They are often "limited duty" men whose physical disabilities prevent them being useful in other capacities, acting under the local post commander and under the immediate supervision of the officers whom he assigns to duty as provost marshal and prison officer. When higher supervision is lax, abuses arise. If there is complaint and scandal results, efforts are often made to put the blame on the guards rather than on the officers who permit or direct them to treat prisoners brutally, although regulations direct that the commanding officer is responsible for all disciplinary measures taken.

Evidence which the committee found in its own investigation of conditions at the Lincoln Army Air Base as to brutalities practiced upon American prisoners is confirmed and exceeded by reports which come in from elsewhere. There is sufficient evidence to indicate that more watchfulness could be exerted by responsible authorities against the ever present possibilities of cruel treatment of prisoners.

IX. LACK OF PROCEDURE TO CORRECT ERRORS OF JUSTICE

Probably the gravest single weakness in the whole judicial system of the Army is that no procedure exists for the complete correction of miscarriages of justice. We have seen how easy it is to convict a man, and how inadequate are the higher reviewing processes in spite of the claim that they are equivalent to appellate procedure in civil justice. Once a finding and sentence are approved by the division commander (or equivalent general), little is likely to be done about it. Once it has been confirmed, nothing can be done. Yet cases are constantly coming to light, such as those which have been described above, where full knodedge of the circumstances or sometimes even a careful reading of the trial record makes it abundantly clear that a grave injustice has been perpetrated.

The Secretary of War (in practice the Under Secretary) has the power of confirming many of the most serious cases, and also advises the President in this connection. The Supreme Court has held (in the case of Runkle v. U. S., 1886) that inasmuch as the duty of confirming the proceedings of courts martial is a judicial function and not an administrative cne, the President may not delegate this power and is obliged himself to consider the cases laid before him and decide personally upon them. Manifestly, however, it is not possible for the President, especially in time of war, to carry out this prescription because of the manifold and pressing nature of his other duties. Much the same thing is true of the Secretary (or Under Secretary) of War. The latter has no staff for the purpose, and indeed the Supreme Court doctrine would seem to apply to this official also.

The difficult situation of many persons convic They may know that their conviction is unjust has acted, they usually regard their cases as hop1 improbable that a case will ever again receive matter what facts were ignored the first time. seldom have results. Defense counsel seldor accompany the case for review. The Board of I must justify the conviction and sentence if ar appears in the record to support it. There is the President, but the conviction is widespreac that the only effect of such a petition is that the will be referred for answer to the same officials in who approved the conviction in the first place, a are vain. Finally, recourse may be had to a pl for purposes of redress, but such procedure mu and in any case cannot be regarded as judicial.

There are cases which not only the defendant in the Army's judicature know perfectly well ha no authority can do anything to correct the ir cedure has passed a certain stage. Not all cas to get correction by means of newspaper publici case, nor is it desirable that they should. Ir Presidential pardon was issued. This is the la rare a t that.

Neither clemency nor pardon are remedies for I They do not clear a man of the imputation shorten sentences and restore civil rights. Th conviction or put the man back where he was b is not made clear to the public or to his associai

Perhaps the greatest sirgle need of the who justice is an independent and public tribunal whi cases, consider both law and fact, and be em finding or any sentence of a general court mart action.

British military law emphasizes as complete1 ditional rights of the citizen, which our milita~ forget. On the first page of the British Man occurs this statement accompanied by judicial c of England, a man who joins the Army, whethe soldier, does not cease to be a citizen." This n the words which Washington used in 1775, word the Amphitheater of the Unknown Soldier at 1

assumed the soldier we did not lay aside the cit

INTRODUCTION TO THE RECOMMEN

The American people are proud of their Arr stupendous achievements in the recent war. T small and in many respects unprepared for th through its own fault but because of the blindnet world situation that was developing. They wa expand to a force of many millions with an am

CONS OF THE NATIONAL WAR EFFORT

wn very precise regulations regarding the care risoners. Where these regulations are carried literally, there is no ground for complaint. I t is that here and there the deep-seated sadistic to be inherent among the other complexities of get the upper hand. During the war, the Army ) assign soldiers of the best quality to duty as Mere too greatly needed in combat units. Nor mies, often referred to as military police, usually of the Army's trained military police under the eral. They are often "limited duty" men whose prevent them being useful in other capacities, a1 post commander and under the immediate cers whom he assigns to duty as provost marshal Vhen higher supervision is lax, abuses arise. If d scandal results, efforts are often made to put ards rather than on the officers who permit or prisoners brutally, although regulations direct officer is responsible for all disciplinary measures

Le committee found in its own investigation of lcoln Army Air Base as to brutalities practiced ners is confirmed and exceeded by reports which :re. There is sufficient evidence t'o indicate t,hat uld be exerted by responsible authorities against ibilities of cruel treatment of prisoners.

?st single weakness in the whole judicial system LO procedure exists for the complete correction of 3. We have seen how easy it is to convict a man, are the higher reviewing processes in spite of the rquivalent to appellate procedure in civil justice. :ntence are approved by the division commander d), little is likely to be done about it. Once it nothing can be done. Yet cases are constantly as those which have been described above, where me circumstances or sometimes even a careful record makes it abundantly clear that a grave rpetrated. War (in practice the Under Secretary) has the many of the most serious cases, and also .advises ; connection. The Supreme Court has held (in , U. S., 1886) that inasmuch as the duty of con- ~gs of courts martial is a judicial function and not el the President may not delegate this power and 1 consider the cases laid before him and decide 1. Manifestly, however, it is not possible for the in time of war, to carry out this prescription

,Id and pressing nature of his other duties. Much le of the Secretary (or Under Secretary) of War. ff for the purpose, and indeed the Supreme Court to apply to this official also.


The difficult situation of many persons convicted should be realized. They may know that their conviction is unjust. Yet once the court has acted, they usually regard their cases as hopelessly lost. It is very improbable that a case will ever again receive full consideration, no matter what facts were ignored the first time. Requests for retrial seldom have results. Defense counsel seldom put in a brief to accompany the case for review. The Board of Review at Washington must justify the conviction and sentence if any evidence whatever appears in the record to support it. There is a right of petition to the President, but the conviction is widespread (rightly or wrongly) that the only effect of such a petition is that the letter of the petitioner will be referred for answer to the same officials in the War Department who approved the conviction in the first place, and that such petitions are vain. Finally, recourse may be had to s private bill in Congress for purposes of redress, but such procedure must inevitably be rare, and in any case cannot be regarded as judicial.

There are cases which not only the defendant but official authorities in the Army's judicature know perfectly well have gone all wrong, but no authority can do anything to correct the injustice once the procedure has passed a certain stage. Not all cases are so fortunate as to get correction by means of newspaper publicity, as did the Shapiro case, nor is it desirable that they should. I n the Shapiro case, a Presidential pardon was issued. This is the last recourse, and very rare a t that.

Neither clemency nor pardon are remedies for miscarriages of justice. They do not clear a man of the imputation of guilt. They may shorten sentences and restore civil rights. They do not wipe out a conviction or put the man back where he was before. His innocence is not made clear to the public or to his associates.

Perhaps the greatest s i~g le need of the whole system of military justice is an independent and public tribunal which can, in appropriate cases, consider both law and fact, and be empowered to alter any finding or any sentence of a general court martial, or void the whole action.

British military law emphasizes as completely as possible the traditional rights of the citizen, which our military seem sometimes to forget. On the first page of the British Manual of Military Law, occurs this statement accompanied by judicial citations: "By the law of England, a man who joins the Army, whether as an officer or as a soldier, does not cease to be a citizen." This may be compared with the words which Washington used in 1775, words which are carved on the Amphitheater of the Unknown Soldier a t Arlington: ('When we assumed the soldier we did not lay aside the citizen."

INTRODUCTION TO THE RECOMMENDATIONS

The American people are proud of their Army. They realize its stupendous achievements in the recent war. They know that it was small and in many respects unprepared for the great struggle, not through its own fault but because of the blindness of the Nation to the world situation that was developing. They watched our little Army expand to a force of many millions with an amazing absence of con-


fusion and uncertainty. They saw it adjust itself to unprecedented conditions and win incredible victories. They observed that where changes were needed there was, in most respects, a remarkable readiness to discard the traditional for the sake of meeting new exigencies effectively.

It has not failed to be noted, however, that this adjustability has not extended to military justice. In that field no improvements were made. Such important alterations as did take place, like the removal of all limitations on sentences for some offenses and making violations of articles of war 70 and 46 not jurisdictional, were not improvements. They made a system which was in some respects obsolete and defec- tive, more so. While the country was engaged in a struggle for the rights of the common man, its citizens who were drafted to do the fighting did not have their own fundamental rights as citizens adequately protected, even within the limitations inherent in military service. Abuses have existed and wrongs have been committed in such numbers as to excite widespread comment both inside and outside the Army. Even high-ranking officers of the Juclge Advocate General's Department have been known to speak, in private, of course, of the "break-down" of military justice. Millions of plain citizens have come home with some degree of bittaness in their hearts not because they object to discipline, even to severe discipline, but because they object to injustice, whether in great matters or small, and the prevailing system of military justice has been a factor contributing to this bitterness. This feeling undoubtedly plays a part in popular reluctance to consent to even such peacetime expansion of the military service as a wise public policy might direct.

The readiest reply to criticism of the system is that "discipline must be preserved." There is no question that discipline must be preserved. Discipline, however, must not be named as a cloak to cover arbitrariness and injustice. Discipline is sound only when those who are subject to it know that it will be fair, that the accused will have his side properly presented, that punishments imposed will be equal, that those who are not guilty will not be treated as if they were guilty, that when (as can always happen) mistalics are made by those in powcr, these mistakes will be aclinowledgcd and corrected. This is the kind of discipline which the greatest military leaders of mankind have imposed on their troops, and which, however severe, has won that tribute of loyal affection which men will give even to the harsh when thcy arc also just. In civilian terms, it can be summed up by the words graven in the front of the Supreme Court: ''Equal justice under law."

I t is not very profitable to ask (except in individual cascs) who is to blame for such faults in Army justice as have bccome evident. Apologists for the system contend that the trouble is all due to the vast expansion of the forces, which brought into the service an overwhelming number of inexpcricnccd civjlians; everything wcnt vcry well, it is said, in peacetime when Army justicc was in the hancls of experienced professional officers. I t is to be feared that this conten- tion fails to impress such civilians as have found themselves in the Army during the war. They know this reasoning is not applied in other phases of Army activity, and they are not unaware that not only is the system itself a creation of the Regular Establishment, but that practically all the higher officials who have been responsible

INVESTIGATIONS O F T H E WATIONAL T7

for the course of justice during the war are Appointing and reviewing authorities, for examp Reserve officers, though the personnel of Arm: officers whose service began during the emerge it is not an adequate defense of any defect in a mj to say that i t works well in peacetime but fails to In other phases of Army activity, when traditior to show cracks, i t was changed forthwith to me

It is more profitable to ask how the system of in its evolution from the pre-Revolutionary BI come to be a rather illogical and frequently ineff be so modified as to serve the needs of order and same time afford its citizen soldiers such a measu human rights, that its order and discipline may and affection for the American people.

With this in view a considerable number c growing out of this study, are made in the psri first two of these, pertaining to the functions of General's Department and the creation of a t r i b~ tices, are of a broad fundamental character imp structure of the system itself. These are the mc mendations.

The residue of the recommendations are not u are concerned with more specific matters. Each I

some known inadequacy in the present system. Recommendation 1

That the Judge Advocate General's Departmc judicial power it does not now possess;

That after a special or general court has been h sentences shall pass directly to the Judge Advoca ment for all further nctions of review, promulgatic except for such final appellate review as may be Advocate General of the United States in acco mendation 2 below, and such final confirmation a: action on the part of the President;

That in view of its increased responsibility General's Department be reorganized and enla number and qualifications of its personnel, prov Judge Advocate jurisdictions to be set up throug pendent of the immediate commands in which I

vision being made for higher reviewing oficers of General's Department to take part in actual tria throughout their service in order to keep their j well as academically and legally sound;

That officers of the Judge Advocatc General's available to sit as law members and defense cc courts martial in accordance with recommcndatic

That the Articles of JYar be amended as may effect to the foregoing provisions of the recommen

Explanation of recommendation 1 .-Thc admin ?f justice is a task primarily for traincd experts c Justice, the outgrowth of many centuries of ex1 loving people, places this responsibility in the har

I N S O F T H E N A T I O N A L W A R E F F O R T

.. They saw it adjust itself to unprecedented credible victories. They observed that where here was, in most respects, a remarkable readi- ditional for the sake of meeting new exigencies

e noted, however, that this adjustability has not justice. In that field no improvements were ~t alterations as did take place, like the removal ltences for some offenses and making violations d 46 not jurisdictional, were not improvements. vhich was in some respects obsolete and defec- ,he country was engaged in a struggle for the man, its citizens who were drafted to do the their own fundamental rights as citizens ade- :n within the limitations inherent in military

existed and wrongs have been committed in cite widespread comment both inside and out- 1 high-ranking officers of the Judge Advocate have been known to speak, in private, of course, of military justice. Millions of plain citizens some degree of bittaaess in their hearts not discipline, even to severe discipline, but because :e, whether in great matters or small, and the ditary justice has been a factor contributing to

feeling undoubtedly plays a part in popular t to even such peacetime expansion of the lse public policy might direct. to criticism of the system is that "discipline There is no question that discipline must be

:, however, must not be named as a cloak to nd injustice. Discipline is sound only when to it ltnow that it will be fair, that the accused xr ly presented, that punishments imposed will rho arc not guilty will not be treated as if they :n (as can always happen) mistakes are made ;e mistakes will be acknowledged and corrected. iscipline which the greatest military leaders of d on their troops, and which, however severe,

of loyal affection which men win give even ley arc also just. In civilian terms, i t can be rds graven in the front of the Supreme Court: Iaw ." table to ask (except in individual cases) who is ults in Army justice as have become evident. ;tern contend that the trouble is d l due to the forces, which brought into the service an over- inexperienced civilians; everything went very

,cetime when Army justice was in the hands of la1 officers. I t is to be feared that this conten- such civilians as have found themselves in the .. They know this reasoning is not applied in 7 activity, and they are not unaware that not ,self a creation of the Regular Establishment, 11 the higher officials who have been responsible

I N V E S T I G A T I O N S O F THE N A T I O N A L W A R E F F O R T 49

for the course of justice during the war are professional soldiers. Appointing and reviewing authorities, for example, have seldom been Reserve officers, though the personnel of Army courts are usually officers whose service began during the emergency. In any event, it is not an adequate defense of any defect in a military establishment, to say that i t works well in peacetime but fails to work in time of war. In other phases of Army activity, when traditional mechanism began to show cracks, i t was changed forthwith to meet the new situation.

I t is more profitable to ask how the system of Army justice, which in its evolution from the pre-Revolutionary British prototype has come to be a rather illogical and frequently ineffective structure, can be so modified as to serve the needs of order and discipline and at the same time afford its citizen soldiers such a measure of regard for basic human rights, that its order and discipline may be a matter of pride and affection for the American people.

With this in view a considerable number of recommendations, growing out of this study, are made in the psragraphs below. The first two of these, pertaining to the functions of the Judge Advocate General's Department and the creation of a tribunal to correct injustices, are of a broad fundamental character implying changes in the structure of the system itself. These are the most important recommendations.

The residue of the recommecdations are not unimportant but they are concerned with more specific matters. Each is intended to correct some known inadequacy in the present sys tem. Recommendation 1

That the Judge Advocate General's Department be invested with judicial power it does not now possess; e

That after a special or general court has been held, the findings and sentences shall pass directly to the Judge Advocate General's Depart- ment for all further actions of review, promulgation, and confirmation, except for such final appellate review as may be made by the Judge Advocate General of the United States in accordance with recommendation 2 below, and such final confirmation as may legally require action on the part of the President;

That in view of its increased responsibility the Judge Advocate General's Department be reorganized and enlarged both as to the number and qualifications of its personnel, provision being made for Judge Advocate jurisdictions to be set up throughout the Army independent of the immediate commands in which cases arise, and provision being made for higher reviewing officers of the Judge Advocate General's Department to take part in actual trials from time to time throughout their service in order to keep their judgment realistic as well as academically and legally sound;

That officers of the Judge Advocate General's Department be made available to sit as law members and defense counsel in all general courts martial in accordance with recommendations 4 and G below;

That the Articles of War be amended as may be necessary to give effect to the foregoing provisions of the recommendation.

Explanation of recommendation 1 .-The administration of a system ?f justice is a task primarily for trained experts or technicians. Civil justice, the outgrowth of many centuries of experience in a liberty- loving people, places this responsibility in the hands of persons of legal

50 INVESTIGATIONS OF THE NATIONAL WAR .EFFORT

training and judicial character, and then segregates these functionaries as completely as possible from interference by executive power. There is no good reason why it should not be so in the Army. The Army already has an organization of trained military lawyers, but i t places little real authority in their hands. They do not have authority in their field comparable with that of the Medical Department in its field. The Army admits that a general officer does not know better than a surgeon when an operation on a soldier's stomach is indicated, but it has not yet recognized that a general officer may not know better than a judicial officer when a 10-year sentence oficonfine- ment a t hard labor for a soldier is indicated. A great many of the defects and abuses of the court-martial system arise from this fact.

In brief, the purpose of the above recommendation is to provide the Army with a judicial department as complete and autonomous in its field as is the Medical Department. It is believed that this proposal preserves to command, essentially intact, its function of maintaining discipline. In addition to having control of discipline by virtue of its general authority, by the wide application of article of war 104 in connection with minor offenses, and by means of summary courts martial, command will also be able to institute proceedings against those believed guilty of graver offenses, will control the investigation procedure, will have the right to commit a case to special or general court martial, and then will name the personnel of the court which will try it. After trial, the case will be in the hands of the Army judiciary, not in the hands of the immediate commanding officer of the personnel involved. To continue the comparison employed above, it will be as if the soldier, whose commander suspects him of a serious crime, will a t this point be turned over to the judiciary as another soldier might be turned over to the hospital. I t is believed that this procedure, while providing ample means to insure good order and discipline in the Army as a whole, will protect the individual soldier against many now-existing possibilities of injustice. At the same time, the Judge Advocate General's Department, being in fact as well as in name responsible for Army justice, may be expected to advance to new levels of judicial impartiality, judicial effectiveness, and judicial independence.

It may be objected that this still leaves the commanding general with power to take penalizing measures against members of courts who have brought in findings which he considers objectionable. With this in mind, i t has been suggested in various quarters that authority to appoint general courts be limited to the Chief of Staff, and that courts so appointed have jurisdiction over specified geographical areas and function for long periods a t a time. There seem to be some objections to this suggestion, however, and the recommendation of this report is in favor of the proposal here made as involving less disloca- tion of precedent. Mobility is required and the courts need to be closer to the points of origin of the cases. Army justice, like other Army functions, mnst be kept fairly fluid and mobile. I t is probable that the Judge Advocate General's Department functioning as a judicial system for the whole Army can bring oppressive practices into disrepute, dispense an even-handed justice, and eventually build up a system of precedents with respect to both findings and sentences which will constitute a true corpus juris rnilitaris and establish a desirable uniformity in the whole.


Recommendation 2 That Congress give consideration to the cr

Judge Advocate General of the United state^ the administrative system of the Army, vesting to correct injustices arising in the judicial systei decisions in fact as well as in law;

That the Judge Advocate General of the T required to review all convictions by general c now requiring confirmation by the President oi listed in articles of war 48 and 49, and to exerc them and all other cases the powers delegated b Secretary of War and the Under Secretary of W No. 9556, dated May 26, 1945;

That the Judge Advocate General of the I. specifically empowered to receive appeals from general courts martial after promulgation, a appeals on a prima facie basis and, if in his j~ warrant further consideration, to give them suc deems necessary in the interests of justice, and t concerning them as he shall deem appropriate;

That the Judge Advocate General of the I. powered in his judgment to order any case retri it de novo in his own person, or to void any orig alter any sentence, or to issue an honorable d dishonorable discharge, or to restore to an officer grade of which he may have been deprived by court martial, or to take other action as may 1 any injustice and so far as possible to make who injured;

That Congress authorize, empower, and dire( the advice and consent of the Senate, to name General of the United States and one or more P cates General of the United States as in his dis~ able ;

That no person shall be appointed a Judge Ad United States or an Assistant Judge Advocate ( States who shall have been a commissioned a Army, Navy, or Marine Corps;

That when the Judge Advocate General of t k have two or more Assistant Judge Advocates reached by him must be concurred in by at number, to be considered valid;

That the Articles of War be amended as may effect to the foregoing provisions of this rccomn

Explanation of recommendation 2.-The mos the present, system of military justice is its faih for the reversal of injustices once the findings and court martial have been approved by the local There is no such thing as an appeal, and the e processes of review are strictly confined to th errors, and even in that respect are highly restr evidence that any considerable independent st serious cases as require confirmation by the Pre

IONS O F THE NATIONAL WAR EFFORT

haracter, and then segregates these functionaries ssible from interference by executive power. son why it should not be so in the Army. The organization of trained military lawyers, but i t lority in their hands. They do not have au- ~mparable with that of the Medical Department ly admits that a general officer does not know when an operation on a soldier's stomach is in- lt yet recognized that a general officer may not ldicial officer when a 10-year sentence oficonfine- )r a soldier is indicated. A great many of the the court-martial system arise from this fact. se of the above recommendation is to provide $a1 department as complete and autonomous in lical Department. I t is believed that this pro- nmand, essentially intact, its function of main- n addition to having control of discipline by authority, by the wide application of article of with minor offenses, and by means of summary

land will also be able to institute proceedings guilty of graver offenses, will control the investi- 1 have the right to commit a case to special or and then will name the personnel of the court

fter trial, the case will be in the hands of the I the hands of the immediate commanding officer dved. To continue the comparison employed the soldier, whose commander suspects him of a

, this point be turned over to the judiciary as , be turned over to the hospital. It is believed rhile providing ample means to insure good order Army as a whole, will protect the individual now-existing possibilities of injustice. At the

: Advocate General's Department, being in fact sponsible for Army justice, may be expected to s of judicial impartiality, judicial effectiveness, ence. 1 that this still leaves the commanding general nalizing measures against members of courts who lings which he considers objectionable. With een suggested in various quarters that authority )urts be limited to the Chief of Staff, and that ave jurisdiction over specified geographical areas periods a t a time. There seem to be some objec- ion, however, and the recommendation of this be proposal here made as involving less disloca- VIobility is required and the courts need to be )f origin of the cases. Army justice, like other t be kept fairly fluid and mobile. I t is probable :ate General's Department functioning as a j i~di- vhole Army can bring oppressive practices into 1 even-handed justice, and eventually build up a with respect to both findings and sentences which corpus juris militaris and establish a desirable

le.

INVESTIGATIONS OF THE NATIONAL WAR EFFORT 5 1

Becommendation 2 That Congress give consideration to the creation of an office of

Judge Advocate General of the United States, entirely apart from the administrative system of the Army, vesting in this office authority to correct injustices arising in the judicial system of the Army, basing decisions in fact as well as in law;

That the Judge Advocate General of the United States shall be required to review all convictions by general courts martial in cases now requiring confirmation by the President of the United States as listed in articles of war 48 and 49, and to exercise in connection with them and all other cases the powers delegated by the President to the Secretary of War and the Under Secretary of War by Executive Order No. 9556, dated May 26, 1945;

That the Judge Advocate General of the United States shall be specifically empowered to receive appeals from all other decisions of general courts martial after promulgation, and to consider these appeals on a prima facie basis and, if in his judgment such appeals warrant further consideration, to give them such consideration as he deems necessary in the interests of justice, and to make such decisions concerning them as he shall deem appropriate;

That the Judge Advocate General of the United States be empowered in his judgment to order any case retried de novo or to retry it de novo in his own person, or to void any original proceeding, or to alter any sentence, or to issue an honorable discharge in place of a dishonorable discharge, or to restore to an officer his commission or the grade of which he may have been deprived by sentence of a general court martial, or to take other action as may be required to correct any injustice and so far as possible to make whole the party or parties injured ;

That Congress authorize, empower, and direct the President, with the advice and consent of the Senate, to name the Judge Advocate General of the United States and one or more Assistant Judge Advo- cates General of the United Statea as in his discretion may be advis- able ;

That no person shall be appointed a Judge Advocate General of the United States or an Assistant Judge Advocate General of the United States who shall have been a commissioned officer in the Regular Army, Navy, or Marine Corps ;

That when the Judge Advocate General of the United States shall have two or more Assistant Judge Advocates General, any decision reached by him must be concurred in by at least one-half of the number, to be considered valid;

That the Articles of War be amended as may be necessary to give effect to the foregoing provisions of this recommendation.

Explanation of recommendation 2.-The most conspicuous gap in the present system of military justice is its failure to make provision for the reversal of injustices once the findings and sentences of a general court martial have been approved by the local commanding general. There is no such thing as an appeal, and the subsequent automatic processes of review are strictly confined to the possibility of legal errors, and even in that respect are highly restricted. There is little evidence that any considerable independent study is given to such serious cases as require confirmation by the President on the recom-

52 INVESTIGAT~ONS OF THE NATIONAL .WAR EFFORT

mendation of the Secretary of War or by the Secretary or Under Secretary of War under the Presidential powers now delegated to them. Yet instances are constantly cropping up where it is plain that out-and-out wrongs have been committed in the form of either an unjust conviction or an unconscionable sentence. There is no real redress in such cases. The only recourse is a Presidential pardon. This is very rarely issued, and when issued does not fully clear the accused.

In this connection much is made by the Army of the procedures for clemency, both the normal procedure which is something like a parole board in civil life, and the Special Clemency Board which has been operating on war cases since the middle of 1945. The fact that the latter board is reducing terms of confinement in an overwhelming majority of the 35,000 cases of long-term confinement being considered is itself evidence of the need of such action but has no bearing whatever on the question of whether an injustice was committecl in the first place, nor can the action taken restore the life or the years that may have wrongfully been taken away or the former standing of the accused in the Army or in society. Clemency cannot even grant an honorable discharge instead of a dishonorable one, its utmost capacity in this respect being to enable a convict whose clishonorahle discharge was suspended the right to reenlist in the Army (even if he were a commissioned officer previouslv) and earn a later honorable diecharge.

Clemency pqocednre, then, fails to provide adequate correction for errors of justice. The same may be said of the procedure rcquiring Presidential confirmation in certain serious cases. I11 article of war 45, Congress provided that any sentence respccting a general officer or dismissal of an officer or cadet, or any sentence of death, should be confirmed by the President, with the esception that in time of war officers below the rank of brigadier general may be dismissed and death sentences for murder, rape, mutiny, and espionage may be executed upon confirmation by the commanding general of the Army in the field. The purposc of rescrving the most serious classes of cases (though even among these sentences of long imprisonment are not included) for confirmation by the President,, was obvioiisly to protect the accused by insuring careful, authoritative, and independent consideration before the csecution of the sentence. Ttv is instructive to inquire how completely this intention has becn realized. To begin with overseas thcatcrs, it should be observcd that there the confirming power has been vested in thcater commanders, without reference to t8he War Department or the President. This is justified by article of war 48 as it stands.

We turn now to procedure at home. During most of the war period, article 48 was carried out in that the cascs concerned were referred to the President by the Secretary of War with his recommendations, recommendations which originated in the Board of Review, the limitations of which are discussed above. In 1945, however, a change was made. Despitc the fact that in the case of Runkle v. the united States, referred to above (p. 12), the Supreme Court approved the doctrine that the confirming power of thc President, being a judicial function, cannot be delegated and must be exercised in his own person, the President, by Executive order dated May 26, 1945, under the First War Powers Act, delegated this power to the Secretary of War and the

INVESTIGATIONS OF THE NATIONAI

Under Secretary of War. A practical reason ? in the order, viz, that "the burden of dutie! becoming increasingly heavy," which unquesl tional reason for believing the system itself well understood that the power thus delegal War and the Under Secretary of War actur Under Secretary. It is also understood that War, who has had no staff to assist him in this also has many other duties, has relied upon I Advocate General and the Board of Review. the authorities that have already passed upon t the int,ention of Congress to ensure a careful, : pendent, examination by placing responsibilit~ hands of the President, has miscarried. Tht bility has, in the course of being handed around to the Secretary of War, to the Under Secretai Advocate General, and to the Board of Review, and left actual decisions in the original hands.

There is indeed a formidable array of hig upon some court-martial cases-the approvin ity, the Board of Review, the Judge Advocate of War, the President, the Clemency Boarc brought out in the body of this report amd in however, demonstrates that a case which be: original injustice can be passed upward fron authorities to another on a basis of recomme from below, and emerge from the proccss with tice untouched. There is clear need of an over- and quite independent power to correct miscr

The intention of this recommendation is ths be lodged in a civilian public official of jndicie ing, independent of the influence and control Departments. (If Congress should see fit, the era1 of the United States coilid serve in a sin Nary to that proposed here for the Army.)

While many have concurred in the need for power in some authority outside the War Dc becn variations in the suggestions made. I t ha board be sct up for the purpose, and this option ( The present recommendation for a single offic idea that it is better to have a single and rath invested with this responsibility, in view of the rate nature of all other action in the court-mart nymity of military justice proceedings is comme of this report. I t is among the characteristics t world an impression of cold-blooded impersonal. sonal responsibility in connection with militar. of how wcll-foundcd or otherwise this impressior is s a c i e n t reason for not leaving the tribunal function in a mist of obscurity. The Judge Ad United States should be publicly as responsible 1 Justice of the Supreme Court.

)hTS OF THE NATIONAL .WAR EFFORT

metary of War or by the Sccretary or Under er the Prcsidcntial powers now delegated to arc constantly cropping up whcrc it is plain gs havc been committed in the form of either * an unconscionable sentence. There is no real

The only recourse is a Presidential pardon. ued, and when issucd docs not fully clear the

nuch is made by the Army of the procedures normal procedure which is something like a

Fe, and the Special Clemency Board which has cases since the middle of 1945. The fact that ~cing terms of confinement in an overwhelming :ases of long-term confinenlent being considered need of such action but has no bearing whatever ether an injustice was committed in the first m taken restore the life or the years that may taken away or the former standing of the

r in society. Clemency cannot even grant an head of a dishonorable one, its utmost capacity enable a convict whose dishonorable discharge ht to reenlist in the Army (even if he were a *eviouslv) and earn a later honorable discharge. , then, fails to provide adequate correction for same may be said of the procedure requiring

on in certain serious cases. 111 article of war that any sentence respccting a grneral officer Lr or cadet, or any sentence of dcath, should be ident, with the esception that in time of war k of brigadier general may be dismissed and rurder, r a p , mutiny, and espionage may be ation by the commanding general of the Army osc of reserving the most sc,rious classes of cases ,liese sentences of long imprisonment are not ion by the President, was obviol~sly to protect g careful, authoritative, and indcpcnden t con- secution of the sentence. It is instructive to y this intention has been realized. To begin it should be observed that there the confirming in thcater commanders, without rcferen ce to

,r the Presidcnt. This is justified by article of

3dure at home. During most of the war period, lut in that the cascs concerned were referred to Secretary of War with his recommendations, h originated in the Board of Review, the limi- Liscussed above. In 1945, however, a change le fact that in the case of R u n k l e v. the United ve (p. 12), the Supreme Court approved the rming power of thc President, being a judicial egated and must be exercised in his own person, ltive order dated May 26, 1945, under the First ated this power to the Secretary of War and the


Under Secretary of War. A practical reason for this move was stated in the order, viz, that "the burden of duties upon the President is becoming increasingly heavy," which unquestionable fact is an additional reason for believing the system itself needs alteration. I t is well understood that the power thus delegated to the Secretary of War and the Under Secretary of War actually devolved upon the Under Secretary. It is also understood that the Under Secretary of War, who has had no staff to assist him in this function, and of course also has many other duties, has relied upon the advice of the Judge Advocate General and the Board of Review. But these are exactly the authorities that have already passed upon the case. It is clear that the intention of Congress to ensure a careful, aut'lloritative, and mde- pendent, examination by placing responsibility for final justice in the hands of the President, has miscarried. The Presidential responsibility has, in the course of being handed around to theater commanders to the Secretary of War, to the Under Secretary of War, to the Judge Advocate General, and to the Board of Review, completely evaporated, and left actual decisions in the original hands.

There is indeed a formidable array of higher authorities passing upon some court-martial cases-the approving or reviewing authority, the Board of Review, the Judge Advocate General, the Secretary of War, the President, the Clemency Board. Study of the facts brought out in the body of this report and in the above paragraphs, however, demonstrates that a case which bears all the scars of an original injustice can be passed upward from one of these august authorities to another on a basis of recommendations and decisions from below, and emerge from the process with thc fundamental injustice untouched. There is clear need of an over-a11 agency with gcneral and quite independent power to correct miscarriages of justice.

The intention of this recommendation is that the corrective porn-er be lodged in a civilian public official of judicial character and standing, independent of the influcnce and control of the War and Navy Departments. (If Congress should see fit, the Judge Advocate Gep- era1 of the United States could serve in a similar character for the Nary to that proposed here for the Army.)

While many have concurred in the need for vesting this corrective power in some authority outside the War Department, there have been variations in the suggestions made. It has been proposed that a board be set up for the purpose, and this option deserves consideration. The present recommendation for a single official is offered with the idea that it is better to have a single and rather conspicuous official invested with this responsibility, in view of the impersonal and corporate nature of all other action in the court-martial system. The anonymity of military justice proceedings is commented upon in the body of this report. It is among the characteristics that give to the outside world an impression of cold-blooded impersonality and evasion of personal responsibility in connection with military justice. Regardless of how well-founded or otherwise this impression may be, its existence is sufficient reason for not leaving the tribunal here recommended to function in a mist of obscurity. The Judge Advocate General of the United States should be publicly as responsible for his decisions as is a Justice of the Supreme Court.


I t has been objected that to set up an additional tribunal is simply to add another to what may seem an interminable list of reviewing and confirming authorities. The reasons for having this tribunal would seem to be made amply clear in the body of this report. On the other hand there is no reason to suppose that the Judge Advocate General of the United States and his staff would be burdened with an impossible number of cases in time of peace, and in time of war his office can be expanded by an arrangement parallel to that by which Assistant Judge Advocates General functioned with virtually independent powers in overseas theaters in the two World Wars. Nor would it be requisite for the Judge Advocate General of the United States to prepare an elaborate review of each case, a declaration of his decision being all that would be needed.

The Board of Review in the War Department would continue in its present form. In most instances its decisions would still be final and the meticulous reports which i t draws up on the purely legal aspects of ewh major case would be of great value to the Judge Advocate General of the United States in those cases which he considers. Recommendation 5

That Congress consider amending article of war 4 in such manner as to provide that when charges are brought against enlisted men for trial by special or general court martial, they shall be informed of their right to have enlisted men sit on the court;

That if the accused so requests, enlisted men shall be appointed to the number of one-third of the total membership of the court;

That enlisted men so appointed shall be selected from other companies or equivalent organizations than that of the accused person and that of the officer bringing the charges;

That failure to comply with this provision shall be a jurisdictional err3r.

Explanation of recommendation 5.-In the body of this report the matter of enlisted men serving on courts martial is discussed, and mention made of the practice-of some foreign armies in this connection, as well as reference to the ancient civil right of an accused person to trial by a jury of his peers. There has been a rising demand on the part of our soldiers for recognition of this elementary principle of justice in military courts. Recommendation 4

That article of war 8 be amended in such a manner as to require that the law member in a general court martial be an officer of the Judge Advocate General's Department;

That the law member shall a t the conclusion of proceedings, if requested by the president of the court, sum up the case impartially for both the prosecution and the defense;

That the law member shall not vote on the findings or sentence; That failure to observe the foregoing provisions shall constitute

a jurisdictional error; That consideration be given to the advisability of denominating the

law member by the term "trial judge advocate," a t present applied to the prosecutor, and the prosecuting officer by the term "prosecutmg officer."


Recommendation 5 That articles of war 8, 9, and 10 be amende

to prohibit the censure, reprimand, or admor of a court martial by any authority who ha special, or summary court, with respect to th adjudged by such court. Recommendation 6

That article of war 11 be amended to require for the defense be officers of the Judge Advocate

Explanation of recommendation 6.-This rec in view of the facts that inadequate defense cou sible for many miscarriages of justice, that ther a steadily maintained policy prohibiting Juc officers from serving as defense counsel, and th everywhere except in the Army trained atto defense counsel. Recommendation 7

That Congress consider amending article of articles as may be necessary, to provide a max ments in time of war;

That in this connection a differentiation be r personnel in zones of combat or in occupatior and military personnel in areas where more nor even in wartime;

That the above table of maximum punishm officers and enlisted men.

Explanation of recommendation 7.-Excessil have excited civilian resentment and which ha1 so severe as to constitute an actual indictment tary justice, have in fact been almost entirely (1) the removal of limitations on sentences for c President, during the war; (2) the absence of lir in wartime in certain of the articles; and (3) b j are not included in many of the limitations on I Recomm,endation 8

That article of war 44, requiring publication in of the conviction of an officer for cowardice or scandalous for any other officer to associate wit1

Explanation of recommendation 8.-Article of carried out in practice for many years for obvioi Recommendation 9

That article of war 50)i be amended to requir under which the accused has been confined for be reviewcd by the Board of Review.

Explanation of recommendation 9.-The purpos~ tion is to close a loophole now existing. Cases in discharge has been suspended are reviewed by Division; cases in which a dishonorable discharge subject to the far more exacting scrutiny of tl With the definite intention of avoiding the latter

TS OF THE NATIONAL WAR EFFORT

,hat to set up an additional tribunal is simply may seem an interminable list of reviewing ties. The reasons for having this tribunal ~mply clear in the body of this report. On the reason to suppose that the Judge Advocate tates and his staff would be burdened with an sses in time of peace, and in time of war his by an arrangement parallel to that by which %tes General functioned with virtually inde- seas theaters in the two World Wars. Nor r the Judge Advocate General of the United borate review of each case, a declaration of his vould be needed. in the War Department would continue in its instances its decisions would still be final and which i t draws up on the purely legal aspects dd be of great value to the Judge Advocate ltates in those cases which he considers.

er amending article of war 4 in such manner as charges are brought against enlisted men for era1 court martial, they shall be informed of rted men sit on the court; o requests, enlisted men shall be appointed to 1 of the total membership of the court; ) appointed shall be selected from ot,her com- rmnizations than that of the accused person ,hnging the charges ; ly with this provision shall be a jurisdict,ional

mendation 3.-In the body of this report the 1 serving on courts martial is discussed, and tctice90f some foreign armies in this connection, the ancient civil right of an accused person to eers. There has been a rising demand on the )r recognition of this, elementary principle of rts.

S be amended in such a manner as to require n a general court martial be an officer of the al's Department; ?r shall a t the conclusion of proceedings, if re- it of the court, sum up the case impartially for id the defensi; !r shall not vote on the findings or sentence; :rve the foregoing provisions shall constitute

le given to the advisability of denominating the m "trial judge advocate," a t present applied to e prosecuting officer by the term "prosecuting

INVE 3TIGATIONS OF THE NATIONAL WAR EFFORT 55 Recommendation 5

That articles of war 8, 9, and 10 be amended as may be necessary to prohibit the censure, reprimand, or admonishing of any member of a court martial by any authority who has appointed a general, special, or summary court, with respect to the findings or sentences adjudged by such court. Recommendation 6

That article of war 11 be amended to require that counsel appointed for the defense be officers of the Judge Advocate General's Department.

Explanation of recommendation 6.-This recommendation is made in view of the facts that inadequate defense counsel have been responsible for many miscarriages of justice, that there has been in existence a steadily maintained policy prohibiting Judge Advocate General officers f ~ o m serving as defense counsel, and that in criminal practice everywhere except in the Army trained attorneys are assigned as defense counsel. Recommendation 7

That Congress consider amending article of war 45 and such other articles as may be necessary, to provide a maximum table of punish- mcnts in tune of war;

That in this connection a differentiation be made between military personnel in zones of combat or in occupation of foreign countries, and military personnel in areas where more normal conditions prevail even in wartime;

That the above table of maximum punishments apply equally to officers and enlisted men.

Explanation of recommendation 7.-Excessive sentences such as have excited civilian resentment and which have in many cases been so severe as to constitute an actual indictment of the system of military justice, have in fact been almost entirely due to three factors: (1) the removal of limitations on sentences for certain offenses, by the President. during the war; (2) the absence of limitations on sentences in wartime in certain of the articles; and (3) by the fact that officers are not included in many of the limitations on punishments. Recommendation 8

That article of war 44, requiring publication in his home newspapers of t.he conviction of an officer for cowardice or fraud, and malung it scandalous for any other officer to associate with him, be dropped.

Explanation of recommendation 8.-Article of war 44 has not been carried out in practice for many years for obvious reasons. Recommendation 9

That article of war 50% be amended to require that all convictions under which the accused has been confined for more than 6 months be reviewed by the Board of Review.

Explanation of recommendation 9.-The purpose of this recommendation is to close a loophole now existing. Cases in which a dishonorable discharge has been suspended are reviewed by the Military Justice Division; cases in which a dishonorable discharge is not suspended are subject to the far more exacting scrutiny of the Board of Review. With the definite intention of avoiding the latter, in certain cases, the

56 INVESTIGATIO~S OF T H ~ NATION,AL WAR EFFORT

general exercising court-martial jurisdiction sometimes suspends the dishonorable discharge until after the case has been approved by the Military Justice Division and then orders its execution. This enables the case to bypass examination by the Board of Review. Recommendation 10

That article of war 70 be amended to provide that failure to comply with its requirement for a thorough and impartial investigation before trial shall be a jurisdictional error. Recommendation 1 1

That article of war 70 be further amended to make provision that a showing of evidence having been obtained by oppressive, cruel, or persecuting practices, including threats, for forcing confessions or admissions from accused person or persons under investigation, shall be excluded from use a t the trial by the prosecution; and that officers or others clearly responsible for such practices shall themselves be subject to charges under the Articles of War. Recornmenda fion 12

That article of war 92 be amended to make the punishment for rape subject to the discretion of the court; and that for United States personnel serving in a foreign country, the maximum punishment be that imposed by the civil law of the country for its own citizens.

Explanation of recommendation 12.-Convictions for the crime of rape have been fairly frequent during the war. Widely different from the codes of other nations, article of war 92 makes mandatory a sentence of either dcath or imprisonment for life for this offense. There is reason to believe that not only have there been unjust convictions for this offense but that other abuses have arisen because of the mandatory severity of this article. Recommendation 13 .

That article of war 96 be ame~ded to provide that punishments for crimes and offenses not capital, awarded under the article, be required to conform to the prescriptions of Federal and State statutes for corresponding offenses ;

That article of war 96 be amended by the omission of the clause "conduct of a nature to bring discredit on the military service."

Exl;Lanafion of recommendation 19.,Article of war 96 is of a general naturc, intendcd to cover many kinds of offenses not covered in other specific articles. The more scrious of these offenses are paralleled in civil criminal codes, and the amendment proposed is intended to correct the wide disparity of sentences now awarded under this article by placing them under the limitations prcscribed by Federal statutes. or by the statutes of the State in which the offense is committed.

Recommendation for dropping the clause, "conduct of a nature to bring discredit on the military service," is based on t$ following facts: I n 1916, at the rcquest of the Army, Congress inserted the clause mentioned into the article as it stood previously. It was represented by the War Department at the time that the sole purpose of this clause and the only use which would be made of it was to enable prosecution of retired Army personnel who were remiss in paying their debts. Yet the committee has i t on good authority that only once in the years since 1916 has this clause of this article of war been used for the purpose named, and i t is notorious that i t has constantly been used

I N V E S T I G A T I O N S O F THE NATIONAI

for other purposes in a way that constitutes a Almost any peccadillo or error of judgmeni "conduct of a. nature to bring discredit on the believed that without this clause, article of wa to cover all genuine offenses against good orde which require correction by prosecution unde; Recommendation 14

That the Manual for Courts Martial, para make it a matter of right for defense counsel subpena on an equal basis with the prosecutic Recommendation 15

That the Manual for Courts Martial be notices of impending court-martial trials bc boards in the camp or post where they are to panying statement that attendance at tria: public and to military personnel. Recommendation 16

That Army regulations governing reclassi: convened under Public Law 190, and simila: provide fully that administrative due process oEicers or enlisted men brought before these 1 tion provided for the rights of those againsl made, including provision for supplying defene on complete parity with the privilege of the Am

NS O F THE1 NATION.AL W A R E F F O R T

-martial jurisdiction sometimes suspends the mtil after the case has been approved by the n and then orders its execution. This enables iination by the Board of Review.

1 be amended to providc that failure to comply a thorough and impartial investigation before

onal error.

bc further amended to makc provision that a bving been obtained by oppressivr, c~uel, or including thrcats, for forcing confessions or d person or persons under investigation, shall , the trial by the prosecution; and that officers nsible for such practices shall themselves be .r the Articles of War.

92 be amended to make the punishment for retion of the court; and that for United States foreign country, the maximum punishment be ril law of the country for its own citizens. menda at ion 12.-Convictions for the crime of frequent during the war. Widely different nations, article of war 92 makes mandatory a

th or imprisonment for life for this offense. 3ve that not only have there been unjust con- ,e but that other abuses have arisen because of T of this article.

16 be ameqded to provide that punishments for ; capital, awarded under the article, be required escriptions of Federal and State statutes for , 96 be amended by the omission of the clause ,o bring discredit on the military service." rnenrlation 13.-Article of war 96 is of a general rer many kinds of offenses not covered in other more serious of these offenses are paralleled in md the amendment proposed is intended to city of sentences now awarded undcr this article the limitations prescribed by Federal statutes.

le State in which the offense is committed. )r dropping the clause, "conduct of a nature he military service," is based on the followiilg : request of the Army, Congress inserted the I the article as it stood previously. It was ,r Department at the time that the sole purpose nly use which would be made of it was to enable 4rmy personnel who were remiss in paying their ittee has i t on good authority that only once in 1s this clause of this article of war been used for d i t is notorious that it has constantly been used

I N V E S T I G A T I O N S O F T H E N A T I O N A L WAR E F F O R T 57 for other purposes in a way that constitutcs a serious abuse of justice. Almost any peccadillo or error of judgment can be stretched into "conduct of a nature to bring discredit on the military service." I t is believed that without this clause, article of war 96 is sufficiently broad to cover all genuine offenses against good order and military discipline which require correction by prosecution under the Articles of War. Recommendation I4

That the Manual for Courts Martial, paragraph 97, be altered to make it a matter of right for defense counsel to procure witnesses by subpena on an equal basis with the prosecution. Recommendation 15

That the Manual for Courts Martial be altered to require that notices of impending court-martial trials be published on bulletin boards in the camp or post where they are to be held, with an accompanying statement that attendance at trials is permitted to the public and to military personnel. Recommendation 16

That Army regulations governing reclassification boards, boards convened under Public Law 190, and similar boards, be altered to provide fully that administrative due process of law be accorded to officers or enlisted men brought before these boards, and full protection provided for the rights of those against whom allegations are made, including provision for supplying defense counsel and witnesses on complete parity with the privilege of the Army.