Wednesday, December 27, 2006


It’s been noted elsewhere on this site that the Incumbency did not create the present awful mess by perverting the principles of military justice and its vaunted court-martial system, but rather arrogantly expanded the actual operational dynamics of military justice into a wider field. That the gambit is now failing, that we are losing, that we Americans are at risk of appearing to be losers – all this is the thorn in the lion’s paw just now.

For a moment back there in the Fall, just before the Military Commissions Act (MCA) was passed, we were treated to the JAG bosses swinging into their favorite vaudeville routine: standing tall as dedicated lawyers and flag-rank officers, speaking up for Truth, Justice, and the American Way (supermen without the kinda gay tights). That they had kept quiet throughout the entire previous five years, that they presented themselves to the cameras only when the war on the Eastern front was going irretrievably south and there was increasing talk of war-crimes trials for its perpetrators – these points begged to be made. Then, in a remarkable coincidence, our fears were allayed just before the vote was taken in Congress when three of the military’s staunchest roadies in the Senate – McCain, Warner, and Graham (himself a high-ranking ex-JAG, Reserve Jag, and judge in the military system!) – put themselves forward and assured us that the Thing shall not pass. And then it passed immediately thereafter, themselves claiming that they were content. We were apparently meant to trust them because they had had the ‘courage’ to oppose it, and if they then approved it, well – they were guys we could trust. If you tried this sort of thing on a table at the county fair the sheriff would run you out of town before the sun went down.

Now we hear that somewhere in the government bureaucracy the procedures for a draft are going to be tested; not to worry – just a test, like you’d test the fire alarm system to make sure it works; but there’s no fire, so don’t give it a second thought. Meanwhile, the military justice system wants to subpoena Truthout, a civilian news organization, in connection with its courtmartial of one Eric Watada, a Captain in the Army who – following obligations laid upon him by military regulations and his oath of commission – refused to obey what gives no small indication of being an illegal order to go fight an illegal war.

No doubt we will soon be treated to yet another round of JAGs, ex-JAGs, and JAG roadies commenting with smarmy-smooth, purring calculation about how the system works, and works so much better than civilian justice, and is a wonder of civilization – if they do say so themselves.
So a coupla things here, to fortify us for the trials to come.

The military justice system represents the nation’s centuries’ long effort to square an impossible circle: how to preserve the absolute primacy of command authority and troop discipline while at the same time respecting the wide Constitutional rights guaranteed to citizens in the matter of justicial process. All the service-members are American citizens and their Constitutional rights are large and wide, yet how can you run a military if the General loses a case to a Private?

The American military ran into this problem full-tilt, the first military ever to have to face it fully. No other military in the history of the world had to draw its members from a population so widely and deeply protected from the intrusive police power of the State. Yes, the Brits had increasingly run into the problem in the centuries following Magna Carta, and especially as Parliament began to wrest power from the monarchy. The Brits allowed as how soldiers could be court-martialed, but only for violations of the Articles of War; for all other offenses the accused had to be delivered up to the civil courts, the assumption being that the tender professional mercies of a military trial were to be reserved only to times and situations of absolute necessity and otherwise the beast was to be given as little leash as possible. Sailors presented a different problem because those Royal Navy ships were often all over the world, most of the time at sea out of reach of any civilian judiciary, and since a ship was always in danger – of sinking, even in peacetime – the captain of one of His Majesty’s ships had perforce to enjoy an almost godlike authority over his crew. Which is not to imply that godlike authority confers godlike wisdom or maturity, even in as unitary an executive as a captain of one of His Majesty’s ships.

During the American Revolution itself there was – more than we’d like to think – an especially urgent need for strong discipline, and Washington himself was not hesitant to ensure it. Afterward, following that struggle and subsequent to the adoption of the Constitution and the Bill of Rights, the long – doubtless eternal – struggle to define the boundaries of ‘military justice’ began. It has not ceased, even though the JAGs today would like us to simply accept that ‘military justice goes back to Washington himself and to the Constitution’, and then sit back with our patriotic popcorn as they swing into their well-rehearsed vaudeville about how their system perfectly balances the needs of commanders with the rights of accused service-members, and crisply trot out assorted dog-and-pony shows or PowerPoint presentations, stroking their chins thoughtfully and benevolently as they explain this or that aspect of the Great Arcana for which they are the (very nicely remunerated) high-priests and keepers of the mysteries.

But such a rose-covered-cottage description of the thing is not all that accurate. There are numerous reasons to kick the tires of this thing, but even more reasons to approach it verrry skeptically. Meeting the military justice system is like meeting Count Dracula at a soiree: he’s very polite, always well turned-out, and if he doesn’t think it prudent to eat you just now, he most certainly will want to manipulate you into not interfering with him. And, of course, while he looks like a ‘he’, what you’re speaking to very politely is really an ‘it’, and a very old and clever and ruthless ‘it’ at that. It hasn’t survived into your day by being warm, passive, and fuzzy. Or particularly honest about itself. In fact, you may only really get to know it when you won’t have a prayer of getting away from it. That sort of thing. And while in the old days the thing was pretty much kept in Transylvania, it’s been surfing the assorted opportunities presented by events to expand its range. And it is assisted by numerous lesser beings, its roadies, human but given to consuming such insects as are sent their way as reward.

There are several major categories of wrongness with the system.

The Very Nature of the Military.

A military exists for one purpose: to achieve its objective, and that objective is always To Win. It maximizes the probability of achieving this objective through a thoroughly-drilled hierarchy of authority in which each rank knows its job and is obedient to the rank(s) above it. When the upper ranks, therefore, decree that ‘we’ shall do such-and-such, then every subordinate rank knows without asking that it is to bring the announced plan to a successful outcome. In a really well-trained military, subordinates are almost preternaturally attuned to anticipate and fulfill the desires of their superiors even before the superiors express them. This is as it should be: in the life and death of actual combat, militaries cannot afford to not-Win.

Constitutionally-structured justicial process is adversarial: all the major players – judge, jury, prosecutor, defense counsel, witnesses – are independent of each other. Each has a role to fulfill, and after all is said and done, hewing to the strict requirements of due process, the jury has the best chance of making a ‘just’ finding. None of the players ‘owe’ any of the other players anything nor – ideally – are beholden to them. Out of this free interplay, Truth and Justice is – if not absolutely guaranteed – at least given the best possible shot. But you can never be quite sure what the verdict will be and how things will turn out. The objective of this system is to maintain the Integrity of Process; it is not to Win or to reach any pre-ordained conclusion, but simply to remain truthful and faithfully implement the process. The outcome is not its objective; Integrity of Process is its objective. Integrity, like so many other capital-letter words, is a luxury the military system cannot afford.

And thus the rub: you cannot run the Constitutional plan in the military setting. The civilian system is based on Process, the military on Results. The civilian system is based on independence of the major players; the military system requires each player to be a ‘team-player’ in the task of bringing Victory to the commander. Trying to run the civilian system in the military setting is like trying to land a United 747 on an aircraft carrier. Ain’t gonna happen. Can’t possibly happen. Both 747 and carrier will be wrecked if you try to mate them up.

So, of course, when the military deploys a system where the judge, the jury, the prosecutor, the investigators, most of the witnesses, and the defense counsel all belong to the same team, and when they all work for the same ‘party’ – their Service – that chose to hold the court-martial in the first place, and when all of those ‘team-players’ know that if this is their commander’s operation then their only job is to deliver Win to their commander … well, you see where things get square-circled pretty early on. When the government wears one hat to declare itself the aggrieved party and then puts on a wig to declare itself the judge … you’re getting into those old movies about justice in small southern towns and big immigrant-heavy East Coast cities in the 1890s. And those are very dangerous theme parks indeed.

Nor does it make things better to say that the judge doesn’t work for this particular commander, but has been flown in from somewhere else. The US military is a world-circling organism, bound together by innumerable bonds and ties; ‘word’ gets back that you as a judge didn’t deliver, and your boss and that boss or that boss’s boss are gonna have some words and you can kiss future promotion good bye. And if you’re brand new to the Service and you’re defending your first ‘client’, and there’s law school bills and a new wife and a kid on the way and a factory-fresh Boxster out in the officer’s lot … well, you’ve got to do some serious considering before you try to be the first Perry Mason in uniform.

So the very theory of the military and the very theory of Constitutional process are mutually incompatible. And if someone comes up to you and assures you that this circle can be squared and that as a matter of fact he represents the folks that have done it … well, there’s also a bridge in Brooklyn you might be better off buying.

The Constitution Itself

Although Hamilton very much wanted to give the central government, the national or federal government, as much power and leeway as possible, the overriding concern of the Founders was to ensure that this government – like all other governments – did not continually and increasingly obtrude itself into the individual lives of its citizens nor into the life of civil society, and especially in the matter of the government’s police power.

To that end, the Fifth Amendment was carefully crafted by these very capable folks. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger …” It becomes immediately clear to anyone with even modest grammatical training that the significance of that comma after “Militia” is huge: Even if you’re in the land or naval forces, unless it’s a time of “War or public danger”, you have to be given the right of a Grand Jury indictment, which strongly implies the panoply of civilian criminal justice procedures guaranteed by the Constitution.

It was clear enough back then as well. Throughout the 19th century this monster of a requirement had to be finessed by the Supreme Court (because a lot of courtmartialees raised the point). Chief Justice David Davis, a Lincoln appointee, took the bull gruffly by the horns in “Ex Parte Milligan” in 1866, trying to cap a full half-century of hemming and hawing. He simply misquoted the Amendment, removing the comma altogether so that the clause read “…except in the land or naval forces, or in the Militia when in actual service in time of War or public danger …”. Otherwise, he went on to say with charming frankness, you couldn’t have any court-martials in the military in time of peace – and that, he implied, was clearly unacceptable. Unacceptable it may be, but the Founders were certainly trained well enough in English grammar not to impose such a massive requirement by mistake or inadvertence.

Things creaked on until 1895 when the Court ‘solved’ the problem in “Johnson v. Sayre” by properly quoting the Amendment but then opining, in effect, that there were two ways of reading the text. You could read it grammatically, and that was certainly one option. Or you could read it such that you simply decided on your own that the clause “… when in actual service in time of War or public danger …” only applied to the “Militia” and not to the land or naval forces. And that, the Court decided, was the way they were going to read it. This solution did not even rise to the level of a ‘legal fiction’. It simply ignored the text.

But it was 1895 and the country was getting ready to make its mark in the world and you couldn’t very well hobble your military and your navy by not allowing them to court-martial folks unless it was a time of War. Let’s be practical here, people! We’ve got an imperial agenda. So while one interpretation of ‘2 plus 2’ is that it equals 4, and that interpretation has its supporters, the government might be indulged if it proposes a broader approach, such that 2 plus 2 equals not-4, and this Honorable Court decides to choose the government’s interpretation. You could be forgiven for thinking that our modern-day Iraq war masterminds took the same Introduction to Government seminar as the Justices in 1895. Talk about tradition!

The awful prospect of bringing this fundamental problem up again seems to have frightened everybody and not so much has been made of it since then. The JAGs today would like us all to believe that the history of military justice was one smooth progress from excellence to excellence, all Constitutional sweetness and light. But it ain’t necessarily so. Not hardly.

The Legal History of Military Justice

The JAGs would like us to believe that military justice has had a bright and simple life, fitting in easily with its siblings – criminal and civil process – around the happy family table of American legal systems. Rather the opposite. The roster of cases coming up before the Federal District and Appeals courts and making their way to the Supreme Court is long indeed, and it starts very early in American history.

A quick primer here: the Constitution is divided into 3 articles, each dealing with the role and powers of one of the Branches of government: Article I deals with Congress, Article II deals with the Executive, and Article III deals with the Courts.

In “Dynes v. Hoover” (1858) it was noted that while Article I, section 8, clause 14 of the Constitution grants Congress the power “to make Rules for the Government and Regulation of the land and naval Forces”, it still has to be questioned whether Congress was thereby granted the power to deprive citizens of their rights (which they most certainly were if they were subjected to military justice). And this was before there was a draft, mind you. But, the Court went on to point out, that if courts-martial violated the regulations that created and governed them, then their doings were void; not “voidable” if anybody took the trouble to notice, the Court emphasized, but just plain “void”.

Still the Court held that the jurisdiction of courts-martial extended beyond the written articles established by Congress, to include any actions traditionally held to be punishable in the service.

The Court quotes that phrase “cases arising in the land or naval forces”, justifying the Constitutional compliance of courts-martial with the Amendment’s requirements, but studiously avoids any notice of the hugely cogent ‘comma’ question. This is a thread that will run through many Supreme Court comments up to the present day: the Court will simply avoid any notice or mention of the ‘comma’ question, and instead use the Amendment to justify the right of military justice to dispense at any time with the Fifth’s requirements.

In “Ex Parte Milligan” (1866) Chief Justice Davis (a friend of Lincoln and appointed by him) took a bolder approach, simultaneously more and less forthright. The question was whether a military tribunal constituted for war emergency in the State of Indiana during the Civil War had the authority to arrest, try and execute a citizen of Indiana, claiming that the Executive power’s authority overrode the Court’s in a time of war and in a war zone.

He adverts to the fact that “during the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are now happily terminated. Now that the public safety is assured, this question … can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case fully sensible to the magnitude of the inquiry and the necessity of full and cautious deliberation.” I quote at length to give a sense of the seriousness of the Court and the relief that the ‘emergency’ of the Civil War was over, and thus was ended the threat to proper jurisprudence and deliberation posed by the pressures of that emergency. It is a fine commentary on how things stand today among us, where Emergency-ism has returned in an even more pervasive form and bids fair to last for decades.

He states that “civil law and martial law cannot co-exist together; the antagonism is irreconcilable”. He asserts that “no graver question was ever considered by this court, nor one which more clearly concerns the rights of the whole people, for it is the birthright of every American citizen when charged with a crime to be tried and punished according to law”. Because “by the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people”. Or – we might note today – both.

He acknowledges that the emergencies of military life required Congress to make special provisions for the military and the soldier “while thus serving, surrenders his right to be tried by civil courts”. Whether this applies to draftees (then a very recent development) is an interesting question.

He observes that “this nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right [to full Constitutional rights in a trial] is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate”. We today are perhaps not as frightened as we should be.

Noting that the State of Indiana was never invaded and that the Federal courts were open and operating, he states that ‘martial law cannot arise from a threatened invasion”. We are seeing here, in 1866, the reflection of government’s sleepless urge to extend its police power and military power over the citizenry on the pretext or occasion of anything that will bear the characterization of an ‘emergency’; precisely what for centuries English advocates of liberty and our own Founders sought to ensure against.

Chief Justice Davis, as was discussed in the prior section, simply dropped the ‘comma’ altogether without further ado.

Of equal contemporary relevance is the fact that Justice Chase, dissenting, spoke for the right of Congress, if the “privilege” of the writ of habeas is suspended, to authorize arrest, detention, trial and punishment by military commission. “The Constitution itself provides for military government, as well as for civil government” he claims, without further elucidation. And he too then misquotes the crucial Fifth, eradicating the key ‘comma’. If Congress, as an agent of the nation and in defense of the nation chooses to so deal with certain persons seeking to injure the nation, well what’s wrong with that? He is confident that “the intelligence and virtue of the people, their zeal for public and private liberty” as well as “official responsibility secured by law, and upon the frequency of elections” will serve “against the abuse of this”. And today?

And further: “We by no means assert that Congress can establish the laws of war when no war has been declared or exists. Where peace exists, the laws of peace must prevail.”

He finishes up by distinguishing clearly between Military Law, Military Government, and Martial Law. Lately, we have seen the boundaries between these three start to wobble.

In “Ex Parte Reed” (1879) the Court noted that “Courts-martial are exceptional in their organization, jurisdiction, modes of procedure, and the rules by which findings are made or judgments pronounced. In an ordinary judicial tribunal, nothing, therefore, is to be presumed in their favor”. The JAGs' current purring that things have always been peachy is a tad misleading.
In “Smith v. Whitney” (1886) however we see a deference to the military as “a special community”. Whether there is a Constitutional relevance to this ‘community’, especially since upon this basis large Constitutional guarantees are rendered less-than-watertight, is a lasting and grave question. Given the “unwritten law or usage” that has evolved in that ‘community’, then “military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law”. Just trust them.

And the Court quotes approvingly a British precedent (“Grant v. Gould”), in which Lord Loughboro asserted that “it would be extremely absurd to expect the same precision in a charge brought before a court-martial as was required to support a conviction by a justice of the peace”. The idea being that in the military you’re not after legal precision and accuracy; you’re after the preservation of order and discipline by decisive action. That the wrong person might be convicted, or a person be wrongly convicted – such points are too fine to be put in the military setting. Yet the problem remains that if courts-martial are going to be allowed to imprison and even execute on the basis of their ‘trials’, then they have to be assumed to have the power to conduct ‘criminal’ process, a power reserved on the face of it to the Courts of Article III of the Constitution, which are bound to respect all Constitutional guarantees to citizens. Courts-martial are odd hybrids of everything but Article III: they are authorized by Congress (Article I) although Congress has – in theory – delegated its authority to the Executive, whose authority as Commander-in-Chief (the theory goes) actually runs the military justice system. Where the JAGs purr about how clear their authority is, and how secure its basis, one must again kick some tire.

In “Johnson v. Sayre” (1895) the Court once again had to face the abyss of the Fifth Amendment and that comma-clause. This has been discussed above. Whether the power of Congress to make rules for the regulation of the army and navy naturally lead to its being able to suspend Constitutional rights is not at all clear, although the Court has often tried to make it so.

In “Grafton v. U.S.” (1907) a solider on guard duty during the occupation of the Philippines shot and killed two Filipino civilians; he was acquitted by a court-martial but was then indicted and convicted by the Philippine civilian courts which were then acting under a Congressional mandate (the Islands had been declared a U.S. Territory). Having been acquitted by one U.S. court (the court-martial) could he then by tried for the same crime by another U.S. court (the Philippine courts acting as Territorial Courts)? Was this not double jeopardy?

In developing an answer, the Court raised the curious legal animal called ‘sovereignty’ – a citizen, for example, lives actually under two sovereignties simultaneously: the State and the Federal: each has its own laws and its own courts. So, it smiled, to be prosecuted by one ‘sovereign’ for an act against its law, does not preclude prosecution for the same crime by the other ‘sovereign’. It’s only double jeopardy, thus, if both courts derive their authority from the same sovereign. So Grafton cannot be tried by two courts deriving their authority from the same ‘sovereign’, i.e. the Federal government. Grafton is released; the Court injects yet another complicating variable into the on-going chemical reaction. The ‘dual sovereign’ doctrine had been deployed earlier, but only in matters between the Federal law and the laws of a State.

Now the possibility is opened that there may also now be a sub-division of sovereignty: between military and civilian criminal law, between Article I and Article III courts, which puts a whole new twist on things.

In direct contradiction to the JAGs’ purring, we have to note the curious events of early 1919. In January of that year, within two months of the signing of the Armistice, numerous and vociferous complaints about the military justice system were raised by returning veterans and their families, and reached the floor (and the Record) of the Senate, and were given notable publicity. On March 1, the Secretary of War, Newton D. Baker, sent a letter – quickly and officially made public – to the chief JAG of the Army, Major General Crowder, piously expressing his deep concern over the “harsh criticisms” leveled at the system. He refuses to believe that “justice is not done to-day under the military law or has not been done during the war period”. The conditions of “harsh and illegal treatment” asserted by the complaints, he is sure, do not exist and never have existed. But the public must be informed of the true state of things, and would the General care to address matters publicly? Yes, members of the General’s staff had been made to go before a Senate Committee, but their fine answers were voluminous and technical, and it would be a while before they could be printed up. The vets, their families, and the public must not be left to the illusion that “their men were subjected to a system that did not fully deserve the terms ‘law’ and ‘justice’”. In a shrewd (and surprisingly modern) bit of spinning-before-the-fact, the Secretary asserts his confidence that the public will be reassured by the General’s response.

Amazingly, given the military system, the JAG had a 64-page reply ready a little over a week later, on March 10. From reading the now-familiar military script that nothing is or was wrong and changes are being made, we can get a reverse-glimpse of complaints about the system being arbitrary and excessive. It isn’t, said the JAG, and anyway it was war.

Jumping ahead for a moment, we now know that within months of the end of World War 2, ex-Great War Army artillery Captain, Harry S. Truman, would be bombarded by similar complaints from returning veterans that touched so deep a nerve that in the Fall of 1945 he assigned Jimmy Doolittle to head up a commission, and that inquiry into military justice was completed and its report on Truman’s desk by the Spring of 1946.

In “Kahn v. Anderson” (1921) the Court again asserted that Congress has the power to dispense with the provision of Fifth Amendment guarantees, and it adverts to numerous decisions of the Court upholding that (admittedly not altogether obvious) power. It also disposed of the interesting argument that since the U.S. was at peace, the military did not have the jurisdiction to try for murder. The Court simply noted, in an unusual glance at current events, that “complete peace, in the legal sense, had not come to pass by the effect of the Armistice”. Which was true enough. It went on to quote the Court’s hopeful assertion in “Reed” that “the Constitutionality of the Acts of Congress [in the matter of military justice] is no longer open to question in this Court”.

In “Ex Rel Creary v. Weeks” (1922) the Court again asserted that “the power given to Congress by the Constitution to raise and equip armies and to make regulations for the government of the land and naval forces of the country (article 1, 8) is as plenary and specific as that given for the organization and conduct of civil affairs”, which raises – at the very least – the question as to the very small amount of text, none of it quite that clear, devoted to the military matters in the Constitution itself. The Court immediately goes on to observe that “military tribunals are as necessary to secure subordination and discipline in the army as courts are to maintain law and order in civil life” and that “the experience of our government … proves that a much more expeditious procedure is necessary in military than is thought tolerable in civil affairs”. The shrewd understatement hiding beneath the mild “tolerable” belittles the long-standing concern about the expansion and conduct of military influence – and military justice – into the life of the Republic.

In “U.S. v. Lanza” (1922) the Court did not address military justice, but it is referenced in other, subsequent Court Opinions because of the ‘dual sovereignty’ question. The defendants insisted that to be prosecuted for rum-running under both the State laws of Washington and the National Prohibition Act was double-jeopardy. Again, although at greater length, the Court supports the dual-sovereignty: “We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory”. And “each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” Which is true enough, as far as it goes. But while the abstraction can sustain the theory, when it comes to actual human beings, the theory leads to one person being tried by the government police power twice for the same thing. That there are two different ‘governments’ can appear not entirely in touch with reality.

In 1946, as noted above, Harry Truman saw his chance to reform a system that had upset him even during his own military service. He ordered the military to fix things, and specifically to get rid of the problem of ‘command influence’, the tendency of commanders to – visibly or otherwise – place their thumb on the court-martial process to ensure the Outcome and the Result they want. No flies on Harry – he put his finger on precisely the problem that exists at the core of the whole thing: a military does everything it can to ensure its desired Outcome; no incorporeal abstractions (among which we might include Ideals and Virtue) are allowed to interfere with the push to Victory, and the direction of the higher commanders is essential to that process. A fully adversarial process, with its much larger uncertainty as to outcome, simply will not do. Nor, for a moment, will it be tolerated. Thus, JAGs purring that there is no ‘command influence’ or that the problem has been solved are not being truthful. If there’s no command influence then we’re not talking about any military on this planet, and to say that the problem is solved is to say that Navy ships can now be sent on the high seas without getting wet. Ain’t gonna happen.

The subsequent five years are instructive. The Pentagon was busy with other things, it was the Cold War, and the JAGs didn’t get around to anything before the election of ’48, which we might reasonably infer they hoped would make Truman ‘go away’. Alas. He took the oath again and inquired as to how his orders were being carried out. The Pentagon came up with the Uniform Code of Military Justice (UCMJ), claiming that they had wanted it all along and that it perfectly met the needs of the military and simultaneously protected to a nicety the rights of the service-member. It was passed by Congress in 1950. Truman signed it with a clearly glum look on his face (he didn’t like being crossed) and then said to a reporter that it still didn’t solve the question of ‘command influence’, which is the equivalent of saying that the ship may look good but has no keel.

One might be forgiven for suspecting that in their desperation after the ’48 election, they cast about for a solution and came up with … Stalin’s from the 1930s: if you own all the players in a court system, then you can make all the guarantees you need to, toss in all the comforting props folks are used to, and still control – almost without any traceable effort at all – your Outcome. Thus the UCMJ: all the familiar players and props are there (just Perry Mason in a uniform is all it is, they purr) and the guarantees are numerous enough to fill a truck. The JAGs brag about it even to this day. But in light of the Baker-Crowder correspondence, it’s also possible that Stalin got it from the JAGs.

It might then come as a surprise to see how much trouble it stirred up back at the Court, almost immediately.

In “U.S. ex rel. Toth v.Quarles” (1955) the Court was called back to this now souped-up thing. A serviceman, honorably discharged, was later alleged to have killed a civilian while on duty in Korea. The Air Force sent MPs to his hometown of Pittsburgh, arrested him, and quickly took him back to Korea on a military plane. (Does this sound sorta familiar?) All of this was done in conformity with a quiet little provision that gave the military jurisdiction over anybody for a crime they were alleged to have committed in the service, even if they had completed their service and gone back to civilian life. Toth’s sister took the matter to the Supreme Court.

The Court – stoutly – noted that this was “an important constitutional question”: does the military have court-martial power over persons who have no connection to it? Over ‘civilians’ as so many of us are known? Hugo Black delivered the Opinion.

The UCMJ, he said, “cannot be sustained on the constitutional power of Congress 'To raise and support Armies', 'To declare war', or 'To punish offenses against the Law of Nations'". “The Government’s contention is that the Act (i.e. of 1950, the UCMJ) is a valid exercise of the power granted to Congress”. “This Court has held”, he responds, “that the Article I clause just quoted authorizes Congress to subject persons actually in the armed services to trial by court-martial for military and naval offenses” [and thus not for every crime in the criminal code].

Then he goes on to observe that “an expansion of the court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals”. He expands upon that thought by noting that the Founders not only insisted upon independent judges, but on a grand jury indictment, in order to “protect defendants against oppressive governmental practices”.

And then “We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty, or property. It is the primary business of navies and armies to be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to the army’s primary fighting function.” Military courts can’t equal the ability of civilian courts in determining guilt or innocence, and rendering justice is not what armies are primarily set up for [yes, the services hire lawyers to be JAGs, but those folks instantly become officers in the hierarchy and – if they plan on staying – have to be ‘team players’; if you're the accused, and you're a tad leery of your military lawyer, you are generously allowed to hire your own lawyer ... ummm ... at your own expense - on a serviceman's pay! ].

But Black tops even that: “And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such a way that they can have the same kind of qualifications that the Constitution deemed essential to fair trials of civilians in federal courts.” In a stroke, he disposes of the military charade – ever unmentioned and unmentionable – that you can keep command control and still administer Constitutionally adequate justice. Of course, he leaves unspoken but clearly implicit the question: is this thing actually going to be able to provide justice for servicemembers? To which, so far, the only response seems to be that encapsulated wonderfully in a scene from “The Simpsons”: being taken away by government agents Homer cries “Is this legal”, to which, after a moment’s silence, an agent replies “It’s legal enough”. But is that enough?

Nor does Justice Black fail to underline just how deep-seated and intractable this problem is: “But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals”.

Nor does he fail to dispose of a favorite JAG line, used even recently, to the effect that since the military is a special community, then it’s better for everyone, including the accused, that a panel of military folks be the jury. “… the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. The idea is inherent in the institution of trial by jury.”

And as to another old JAG ploy, that the system is needed to preserve good order and discipline, he nails it down with “Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal, constitutionally preferable system of trial by jury.”

And of another favorite ploy, that it’s no big change and no big deal: “… there is no justification for treating the Act as a mere minor increase of congressional power to expand military jurisdiction. It is a great change, both actually and potentially”. And we might fast-forward to the past four years.

“There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution.” One wonders, again, not only about what has taken place since then, but also about just how adequate and reliable this system is even to servicemembers.

Yet even he, quoting the Fifth Amendment accurately in a footnote, does not go to the textual heart of the matter, confining himself – efficaciously enough – to the declaration that the Fifth Amendment does not of itself grant court-martial authority to Congress, another balloon that had been sent up by the government’s attorneys.

In all of their Manuals and press releases, the JAGs never seem to get around to “Toth”.

In his Dissent, Justice Reed offers that “courts-martial are deeply rooted in history” and that “war is a grim business, requiring sacrifice”. Both generally quite true, but not quite fine enough as points to bear on the massive Constitutional issues. He then figures that “The power to regulate the armed forces must have been granted to Congress so that it would have the authority over its armed forces that other nations have long exercised, subject only to the limitations of the Constitution.” But those limitations are precisely the nub of the matter, and the Constitution most largely distinguished – separated – us from those “other nations” of the day; none of those other nations had citizens so fully protected by a carefully constructed Constitution.

He goes on to dismiss this narrowing of military authority simply because “the accused has better opportunities to escape conviction in a civil court”; to Mr. Reed, it comes down to that: an accused in the military system should not be pitied simply because he has worse chance of “escaping conviction” than in a civil court. Mr. Reed does not mention that such an accused also stands a supremely better chance of being convicted regardless of what he did or did not do.

He quotes “Johnson v. Sayre” for his treatment of the Fifth Amendment, shrewdly not arguing or even noting the ‘comma question’ but simply asserting – accurately enough, as far as it goes – that “this Court has held, and all the history of our courts-martial shows, that such phrase has reference only to “cases arising … in the militia”. The system has, in some ways, stayed around look enough to constitute a ‘fact on the ground’ in its own right.

“The military”, he believes, “is in a position to give its personnel a fair trial”. Only on the surface of things, only in appearance. The military can no more legitimately promise to give a fair trial than the Navy can legitimately promise that its sailors won’t get wet.

“Reid v. Covert” (1957) had to do with the jurisdiction of the courts-martial in capital cases against military dependents overseas in time of peace.

Justice Black observed that “these cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights”. He also observed that this was happening “for the first time in our history”, an oblique acknowledgement of the effort of the military justice system to expand, once having been given its new trimmings in 1950.

“At the beginning we reject the idea that when the United States acts against its citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source.” There are times when it is positively refreshing to read these Opinions just to see how matters were framed back then, the depth and seriousness with which they were treated, and how in some significant ways things have now changed.

Stunningly, we read through the Court’s comments and realize what the Government must have been trying to put forward: “Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right.” Black goes on to say that “Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency and convenience.” In light of what has happened over the past decades, as well as since 9-11, in this country, we are moved to consider our present situation carefully; he notes that those are “safeguards which cannot be given in a military trial”.

He notes in passing that “it has been held” that Congress’s assigned right to make rules for the armed forces creates an exception to civilian-trial requirements as provided by the Constitution and “permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights.” What he neglects is that the Fifth only allowed that power in time of war. But by 1957 Sputnik is up and there is a ‘bomber gap’, so it was said.

“The tradition of keeping the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution.” And he was speaking of the adults of half a century ago. And today? Especially since the militarization of our society and our very minds is being insinuated slowly and there are so many distractions these days.

“The Founders envisioned the army as a necessary institution but one dangerous to liberty if not confined within essential bounds. Their fears were rooted in history.” The hard work of keeping the military confined to its proper sphere is even harder today, when not only the ‘military-industrial complex’ noted by Eisenhower in 1961 but the awful bargain struck between the Advocacies and the government and the Fundamentalists, has brought the police power of the State, itself already militarized, into the most intimate precincts of hearth and home.

He imagines that the Founding generation, in their adoption of the Constitution, “embodied their profound fear and distrust of military power … Perhaps they were aware that memories fade and hoped that in this way they could keep the people of this Nation from having to fight again and again the same old battles for individual freedom.” It appears that we do indeed have to fight that same old battle again, and very much closer to home than ever before in our national history.

The government had also tried to argue that the concept of “in the field”, the ancient justification for the harshness and arbitrariness of military justice (the navy already had the harshness of simply keeping the ship afloat and mission-ready, even when there was no fighting to be done) should be expanded to include dependents. In the Cold War, it could be plausibly be proposed that since nuclear missiles could reach the U.S. in 30 minutes, then the military was always under alert and danger was always (possibly) imminent. So that therefore life itself had become “in the field” no matter who or where you were.

Then, in a reality check to the government arguments that since the UCMJ was passed, all its prior problems had been fixed, it is stated flatly: “We recognize that a number of improvements have been made in military justice recently by engrafting more and more of the methods of the civilian courts onto courts-martial. In large part these ameliorations stem from the reaction of civilians who were inducted during the two World Wars, to their experience with military justice. Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in civilian courts.” Black, something of a fearless vampire-killer, simply won’t be tricked into accepting the cutesy, purring appearances of what is essentially a monster. And his use of the ‘engrafting’ image clearly implies his sense that the whole system has been cobbled together ala Frankenstein. Military justice “emphasizes the iron hand of discipline more than it does the even scales of justice”. A perfect justice system for a People who needed to do less gutsy thinking and more happy obedience – which is what we’re well on our way toward today.

Still swinging, Black then turns on another Grima Wormtongue-like government proposition: “It is urged that the expansion of military jurisdiction over civilians claimed here is only slight and that the practical necessity for it is very great”. And does that sound kinda familiar? “The attitude appears to be that a slight encroachment on the bill of Rights and other safeguards in the Constitution need cause little concern”. But “slight encroachments create new boundaries from which legions of power can seek new territory to capture”; we think of all the dubious legislation that has been touted to us as merely “the next logical step”. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure”. It’s almost a form of surfing, waiting on your board until a useful wave comes along, and suddenly Kowabunga! A classic example is the military’s insinuation of itself into the 1996 Megan’s Law for sex offender registries: all that law’s ill-considered strictures are followed by a curious list of courts upon whose convictions the burden of registration will lie: appended to each list, again and again, is the phrase “or courtmartial”. Quietly, without much fuss, the public mind comes to assume that the military justice system is simply one more criminal justice system, and maybe even a better one for fighting evil than the slow and pokey and creaky and prissy civilian justice systems. The JAGs got a TV show out of it, not long afterward.

In Footnote 67 of the case, is this notation: “The chief legal officers of the armed services have already (1957) recommended to Congress that certain provisions of the UCMJ which were designed to provide protection to an accused should be repealed or limited in the interest of military order and efficiency.” So much for our purring JAGs. Quick and efficient, cheap so as not to waste money and time better spent. Accuracy not a primary objective. Justice not required. One can only imagine what such an attitude, then blended with the embrace of some popular hysteria, can wreak on a court-martial’s integrity.

But even Justice Frankfurter, in his Concurrence, mis-reads the Fifth Amendment, focusing on the phrase “except in cases arising in the land and naval forces”. Yet he, at least, gives us a clue as to whether he actually realizes what he’s doing. A few sentences later he speaks rather vividly of the need to “avoid a strangling literalness in construing an instrument [i.e. the Constitution/Bill of Rights] that is not an enumeration of static rules, but the living framework of government designed for an undefined future”. It appears that almost from the first decades of the 19th century there was a consensus among government-types that the strictures clearly placed in the Fifth Amendment were simply too great to be borne. A conclusion, doubtless, that the military of the time did nothing to prevent.

I’ll follow up with a concluding Post on this subject shortly.

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Blogger Davidco said...

The show trial of Saddam was stopped before anything could be 'shown' about how much complicity there was with Reagan and Bush the elder in the gassing of the Kurds and WMD for the bloodbath with Iran.

This could have been a precedent setting post Nuremburg trial of a head of state for crimes against humanity. Instead of dignity and due process, what we got was not the ICC but partisan bullying and losers' spiteful 'justice' - a circus from beginning in procedural folly to end when the defendant was cursed taunted on the gibbet by both executioners and witnesses.

It became a pathetic footnote to your argument about trials conducted when all parties to the process (including the defendant) are on the same payroll.

This travesty had neocon 'supervision' written all over it. May there be justice one day.

7:19 AM  

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