Gambar halaman
PDF
ePub

tem at least insures that lawyers will do lawyer's work. It will have the
further advantage of enabling lawyers to some extent, to be promoted on
their ability as lawyers. They will work as lawyers at all times during
their Naval career and thus furnish the Navy with a type of lawyer quali-
fied to cope with those outside the Service and with whom they must deal
in carrying out their Naval duties.

"Such a system will have the further advantage, in time, of placing all the
legal activities of the Navy under one head, instead of two, as is now the
case. There will be no divided responsibility, and in all probability great
economies can be effected as well as greater efficiency promoted.
"The big business in which the Navy is engaged requires the acquisition and
use of the best legal brains available. Unless possessors of such qualities
can hope to rise to the top, there is no incentive offered them to enter or
remain in the Navy." (Emphasis supplied) 15

15

Everyone in the legal profession, who has ever suggested or advocated a legal Corps for the Navy, has done so solely from the standpoint, in our opinion, of the advantages that would accrue to the lawyer in the Navy in widening the fields of law which would fall to his attention and from the standpoint that the Navy, by having well rounded lawyers who could serve as lawyers and nothing but lawyers, would ultimately obtain the services of loyal, conscientious legal personnel of the highest quality.

Your committee therefore recommends that a Judge Advocate General Corps be established in the Navy and that this should be done by legislative action at the earliest possible date.

Naval lawyers should have their own Selection Board, and their own insignia. (R. 50).

The Judge Advocate General of the Navy should be removed from the chain of command and no longer be subject to influence by the Chief of Naval Operation or any other Naval officer. This removal should be made clear beyond any doubt so that the future Judge Advocates General will conduct their offices as would be done by one devoted to the practice of law. Never should they subordinate the office to the line of command.

Furthermore, the Judge Advocate General should have the sole power to mark the fitness reports of all persons in his command.

Your committee and The American Legion have been and are greatly indebted to Maj. Gen. Reginald C. Harmon and his Assistant, Maj. Gen. Albert M. Kuhfeld, for the assistance rendered this committee in the course of its investigation. We feel we would be remiss in our obligations to them and to The American Legion if we were to allow the opportunity to pass without commending them for the most excellent job of administration performed by them in the conduct of the legal affairs of the Department of the Air Force since its inception as an organization following World War II. As pointed out above General Harmon was the first and has been the only The Judge Advocate General of the Air Force. It is because of his enlightened approach to legal problems and the administration of the system un. der his guidance and leadership, and that of his Assistants, particularly Maj. Gen. Kuhfeld, that the Air Force legal personnel has acquired a very enviable reputation among the members of the Bar outside the Armed Services.

However, we recognize the mortality of men and we appreciate that the system initiated and operated by these gentlemen is administrative in nature and is subject to immediate abolition on their retirement from office. Without the restrictive effect of some substitute their successors may in the conduct of the Office of The Judge Advocate General of the Air Force, revert to or adopt a system similar to that which has been and is now prevalent in the Navy which we have discussed and criticized at great length hereinabove. It is with great reluctance that we reach the conclusion that in view of the ephemeral nature of the present organization of the Judge Advocate General's Department of the Air Force that Congress should be petitioned to create in that Department a Corps similar to that which has existed for nearly one hundred and fifty years or more in the Army.

It is unfortunate that it is necessary to advance such a suggestion particularly in view of the fact that in effect it would appear to be an unwarranted reflection or imposition of a restriction on the sincere and honest officers mentioned who are appreciative of the difficulties inherent in the operation and maintenance of a system of justice in the Armed Services, and have done everything possible in their power to alleviate and eradicate all wrongs which come to their attention. Far better is it, however, for such officers to suffer a possible sense of frustration or some mental distress than to run the risk that the life of one boy be ruined by irremediable, arbitrary or capricious action by an officer who holds the responsible position of The Judge Advocate General at any time in the future who may not be so enlightened, so capable or as respectful of American tradition.

We have been informed of the fact that in the Department of the Army difficulty is being experienced in attracting and retaining capable young men in the Judge Advocate General Corps. It has come to our attention that a number of very brilliant Judge Advocates in the Army have recently left the Service to practice law in civilian life. The fact that a Corps exists in the Army might seem at first to be a denial of our suggestion that a Corps is the final solution of the legal problem which we have been considering. We do not conceive that the creation of a Corps in any Service will effect a final and complete solution of the problems which have been shown to be inherent in a military legal system, some of which are pointed out herein. We do, however, feel that fearlessly and capably administered by a Judge Advocate General who is in no fear of, and owes no responsibility to, the General Staff or his superiors in the line can by the exercise of his powers in a lawyer-like fashion (similar to the manner in which General Harmon has exercised his powers in the Air Force up to now) that a Corps is the best and only conceivable system which we can recommend in light of the information made available to us.

As long ago as 1948 by Resolution No. 99, adopted in May of that year by the National Executive Committee, The American Legion recommended "*** consolidation of all legal offices of the Armed Forces ***" (and that they) “*** in the future be carried out under one head."

We have been pleased to note that the Hoover Commission and The American Bar Association have now made recommendations which follow the position assumed by The American Legion as indicated. These organizations now suggest that a civilian known as a General Counsel be placed in a position in the Defense Department with the duty of supervising the various Judge Advocates General. We agree with the reasoning of these organizations that such a plan would have the effect of removing the Judge Advocates General from the chain of military command.

We therefore recommend that the position we assumed long ago, now advanced by The American Bar Association and the Hoover Commission, be supported vigorously by The American Legion and that legislation be sought to effect this position.

2. JURISDICTION

We have come to the conclusion that the jurisdiction of Courts Martial should be reduced at least within the continental United States in time of peace. At all previous appearances of your representatives before Congressional committees they have questioned the wisdom of increasing the jurisdiction of such courts. It was felt, however, that if adequate powers of review by civilians were afforded there would be supplied an effective brake on any vicious practices which might arise.

For example, in stating the position of The American Legion to Subcommittee No. 1 of the House Armed Services Committee this spring, your representative stated, in part, as follows:

"In the consideration of the Code, and particularly these amendments which have been suggested in the proposed legislation, we desire to refer to a statement made before a subcommittee of the House Armed Services Committee at the time the Uniform Code of Military Justice was under consideration. This statement, in pertinent part, is as follows:

""The American Legion calls attention to the expanded jurisdiction conferred upon military courts in the proposed Code. It may be that such is necessary. If atomic warfare comes, there is the distinct probability that within a few hours after the commencement of hostilities all activities in America would be subject to martial or military law. All people would then become subject to the proposed or a similar Code. At least military commissions would take the place of civil courts.

[ocr errors]

"There has been of late a seemingly increasing inclination to widen the
jurisdiction of military authority. In the past, Congress has zealously
guarded the distinction between the civilian and the military, indicated
as essential by the writers of the Constitution.

""The military has not always been content to remain within constitutional
or statutory limits in this regard. Witness the case of Duncan v. Kahana-
moku (327 U. S. 304), the United States ex rel Hirshberg v. Cooke, (17 U.
S. Law Wk. 4223), Rosborough v. Rossell, (105 F. 2d 809).' (Page 193 Re-
port No. 491, 81st Congress, 1st Session, House of Representatives.)
“The foregoing is recalled because of the fact, and you will probably re-
member, that during Operation ‘Alert' conducted in Washington, D. C.,
last spring, a great deal of publicity was given to the fact that martial
law was declared. Considerable concern, if not consternation, was expressed
by many individuals and by the press that such action was taken. Anyone
familiar with military or naval law should know that if an atomic war
does come, the first thing that will occur will be that martial law will be
declared, and all of us, civilians as well as military, will be subject to mili-
tary law or to the law of a military commission, with all that is implied
thereby."'1

Further, with respect to specific proposals to enlarge the jurisdiction of military courts, by means of H. R. 6583, it was stated as follows:

"The American Legion has consistently taken the position that it is danger-
ous to increase the jurisdiction of any military court or the corrective au-
thority of officers. It has in some instances acceded to an enlargement of
jurisdiction and powers, with the proviso always, however, that with each
increase in jurisdiction there by a corresponding increase of, or wider, re-
view of all action of military tribunals. In respect to each of the proposed
amendments under discussion here, the same comment is made. Obviously,
an attempt is made to increase authorized 'company' punishments; to give
company officers greater authority and to increase or facilitate the sum-
mary disposition of minor offenses. The American Legion does not object
to this enlargement of, or increased authority to be placed in commands,
provided the proper type of review be granted. We see no provision for
review to accompany this increased jurisdiction. We protest this failure.
"The creation of ‘one man' special courts, even under the limitation stated
is objectionable. Serious question exists as to the advisability of continu-
ing the summary courts, and this proposal may early result in extending
the power to administer 'company punishment' under the disguise of judi-
cial process. 'Consent' of the accused to be had by such a court is illusory.
The freedom of choice of the soldier or sailor is seriously limited by his
environs and circumstances."'1

The Army Judge Advocate General has complained of "the loss of power of commanding officers and field commanders" because of the Code. Instead of being able to give parental guidance to first offenders, officers must either order a Court Martial, impose an inadequate punishment under Article 15 of the Code or ignore the matter entirely. He recommends that offenders be given "a few days of confinement." (See Annual Report of United States Court of Military Appeals for period January 1 to December 31, 1954. (P. 22.))

However, in AW 104, in effect before the Code, non-judicial punishments were set forth. The only power thereunder appears to be that which allowed one week's

hard labor without confinement. Now Army Commanders may assess two weeks (instead of one) extra duty, and may withhold privileges or assess restriction to limits for two weeks (instead of one week)!

18.)

The complaint is about a loss of a power which never existed! (See R. 16, 17,

It has been discovered that after the Code was enacted, the various services initiated a practice of having an accused sign a waiver of his right to appeal, despite the fact that it was obvious that such waivers were null and void and were a deliberate attempt to defeat the intent of Congress. If continued or sanctioned by law, the Court of Military Appeals would have been left with little jurisdiction. Your committee has heard repeated claims of defense counsel being told what issues they can raise and how to raise them; of Boards of Review being told how and in what way to decide cases; of types of "indoctrination" on policies in the Offices of The Judge Advocates General.

The reluctance to adhere to the position previously stated by The American Legion representatives is based on the conception that the military will continue to seek additional jurisdiction, even after being granted greater jurisdiction. It has shown that some segments of the military will not or cannot administer the law within the spirit of American justice, to justify even the allowance of the jurisdiction now granted to it. Unfortunately the more enlightened administrators of the law perhaps must be restricted in order that their more arrogant fellows may be restrained from violating what have come to be accepted principles in this country by the great mass of our people. (See Appendix “C”.)

The hearings we have held, added to our own experience, have caused a change of attitude.

If jurisdiction of military tribunals is enlarged the committee is no longer satisfied with an increase of the power of appellate review. We feel that the jurisdiction of military courts and disciplinary agencies within the Armed Services should not be enlarged, but on the contrary, should be decreased.

Our previous discussion of personnel applies here. Integrity and intelligence cannot be legislated into a person. A legal system cannot be administered by men who have not had experience in the handling and command of men. We have alluded hereinabove to the "new look" in our military services at this time and to the fact that both officers and men of our present Services do not possess the maturity and judgment of their counterparts of years past.

We find that this lack of experience produces a lack of judgment in the handling of disciplinary problems. Even in the days before World War II, and during that time, there was a tendency to use courts as an instrument of discipline only, to use courts to supply deficiencies of lack of knowledge in how to control men and keep those for whom one is responsible out of trouble. Today, however, we feel that the situation outlined above has dangers which require a curb on the power of the military to try those in their charge for offenses which are not military in nature.

This feeling is fortified by the experience gained in the years since the inception of the Code. An examination of the opinions of the Court of Military Appeals shows that there is still lacking, in the Services, a basic, elementary knowledge of legal practice as accomplished in civil courts. As examples of immaturity (to be temperate in expression) and lack of independence of Naval legal advisers we cite the decision of the United States District Court of Western District of Washington, Northern Division (May 1, 1956) in the Boscola and Smith cases, wherein is demonstrated the exercise of illegal, capricious and arbitrary power at its worst. When a person puts on a uniform, he should not be deprived of the rights of every other American citizen except those rights specifically denied by our Constitution.

We conclude that no amount of legislating can create a system of satisfactory general criminal jurisdiction in military courts.

The field of courts martial jurisdiction is one that preeminently calls for application of the principle of limitation to "the least possible power adequate to the end proposed." Anderson v. Dunn, 6 Wheat. 204, 231; Toth v. Quarles, 350 U. S. 11, 23, Cammer v. United States, 350 U. S. 399, 404.

The least possible power adequate to the end proposed would be provided by affording jurisdiction in peace times over purely military matters to military courts. The civilian courts, in time of peace, with their rights to jury trials, and other safeguards, can and should handle offenses of every other nature.

[ocr errors]

We are aware, as The American Legion has previously informed Congress, "that the purpose of our Military Establishment is to be prepared for war, and, if it comes, to fight it efficiently and successfully. To accomplish such a purpose the commanding officers must have discipline and a means of enforcing order. You can't have a debating society holding forth in battle or when a ship is underway." It cannot be said, however, in our opinion, that the rapist, the housebreaker or the drunken driver by committing those offenses and being tried in a civilian court destroys the commanding officer's discipline over his men. As was stated by a witness before the committee, after indicating that there is no distinction between justice and discipline—a point made long ago by The American Legion—“You can't discipline by injustice, and justice to the community demands discipline of the offending individual." (R. 724)

The committee therefore recommends:

1. Article of War 74 of the 1920 Code should be reenacted so that the civilian courts will have priority of jurisdiction in peace time over offenses of a civil nature committed off a military reservation; and

2. Article of War 92 of the 1920 Code should also be reenacted so that no court martial may try an offender for a capital offense which is a civil offense, i. e., rape, murder, etc., wherever a State or Federal court is functioning.

A. Introduction

3. TRIAL COURTS AND APPELLATE REVIEW

The committee, during the course of its investigation, has given consideration to the history and origin of the present Courts Martial system. It was derived from the British Code, operative at the time of the commencement of the American Revolution, and even today carries definite indications of its origin. The British Code, operative in the American colonies, was originally designed for an Army of professional soldiers dispersed in remote outposts against the Indians. In patterning the Code of the Continental Army on the British Code, this characteristic was continued and even emphasized. The modern British and American Codes are strikingly alike in one particular, in that a Court Martial is a court to be convened ad hoc for every individual case. Unlike the military courts of Switzerland, France and even Germany (before the coming of Hitler) which are permanent institutions, the British and American courts have no permanency. Also, unlike the military courts of the three named continental countries, the British and American courts have no civilian complexion.

The committee respectfully suggests that many of the evils and irregularities which have arisen in the American system-both past and present-probably have their origin in the system itself, and that no amount of patching and mending of the present system can entirely eliminate command control and influence. The fact that a court owes its existence to an appointing authority who usually becomes the approving authority, naturally creates a situation which fosters and encourages the idea that a court is only an instrumentality of disciplinary control rather than a court of justice. Further, the weakness with respect to personnel heretofore discussed appears to arise out of the practice, custom and tradition of considering the administration of military justice as a "side line" to the principal responsibilities of an officer.

The committee has heretofore discussed the change in the nature of the personnel of the Armed Forces. While there certainly have been radical reforms in the American Court Martial system so as to bring it more nearly in harmony with the needs of the present citizens Army and Navy of a democratic country, it is startling to discover that the three continental countries above-named have advanced further in this direction than have the United States or Britain.

« SebelumnyaLanjutkan »