Document created: 3 September 03
Air University Review, July-August 1975
Lieutenant
Colonel George D. Schrader
During the past ten years, the military justice system has undergone extensive revisions. The Military Justice Act of 1968 and various decisions of the Supreme Court of the United States and the Court of Military Appeals have introduced a number of significant changes. Although these and other changes resulted from methods and procedures acknowledged as the democratic process, many people still consider military justice primarily as an instrument of discipline, not justice, administered by martinets with blind obedience to a commander. Not so, states Yale Law Professor Joseph W. Bishop, Jr., in his timely and candid evaluation of military justice in 1974.
For a decade, the military justice system has been subjected to the criticism of people who either did not want to distort their established views with accurate knowledge of the subject or were devoid of all criteria except bad taste. However, now a new and different light is beginning to shine on this system, which for so many years has been the whipping boy of antiestablishment critics. In his book Justice under Fire: A Study of Military Law,* Professor Bishop presents a knowledgeable, objective, humorous, and scholarly evaluation of the military justice system. The title of the work is misleading because he has actually consolidated a trilogy into one volume. He devotes four chapters to the background, basis, and current application of military justice, two chapters to the use of military forces under the war clause of the U.S. Constitution, including the concept of martial law, and concludes with a section on the international law of war.
* Joseph W. Bishop, Jr., Justice under Fire: A Study of Military Law (New York: Charterhouse, 1974, $8.95), xvi and 304 pages.
Professor Bishop’s interest in military law began in 1940, while serving under Secretary of War Robert P. Patterson, and continued when he was drafted into the Army and later commissioned in the Judge Advocate General’s Corps. While on duty in the European Theater from March 1944 to June 1946, he gained experience in dealing with war crimes as a legal adviser to a board of inquiry appointed by General Dwight Eisenhower to investigate the murder of British and Canadian prisoners of war by members of a German SS division. In 1952 and 1953 he was Deputy General Counsel and Acting General Counsel of the Army and was involved in the Army-McCarthy controversy. Mr. Bishop has been a professor of law at Yale since 1957.
Professor Bishop states that his purpose in writing the book is “to give to general readers, and to many lawyers who lacks familiarity with military law, a concise account of that jaw-its origins, its procedures, its peculiarities, and its defects and virtues “He begins the book by explaining why critics of military justice have found such receptive audiences. He notes that military service has never been popular among Americans except in times of national or international crises when the nation’s survival is jeopardized. Unlike the writings of Kipling, who at times glorified the armed services, American literature, according to Mr. Bishop, avoids glorification of the military and characterizes military institutions as comically stupid or brutal and cruel.
On the premise that organized communities will not voluntarily renounce their means of defense or aggression, a theory verified since the Stone Age, the author develops the history of military law from its crude beginnings through the Roman influence until the emergence of the modern judicial process at approximately the time of Gustavus Adolphus. Turning next to the development of military law in England, the author provides an excellent discussion of the forerunner of the military law adopted by the Second Continental Congress in 1775. Much to the anguish of many pious liberals, he points out that the United States is not afflicted with pathological militarism. Instead, the history and traditions that have shaped the development of military law in the United States reflect strict civilian control of the military establishment.
The critics of military justice fail to recognize three very simple principles acknowledged by Congress, the President, and the Supreme Court. First, the court-martial system has the same basis in the Constitution and statues as other court systems. Second, the military justice system was designed to operate in a society apart from civilian society, and military law is a jurisprudence that exists separate and apart from the law that governs the remainder of the federal judicial establishment. Third, military service involves the maintenance of discipline because a military organization without discipline is nothing more than a disorganized rabble. It is somewhat of a mystery why these very simple principles seem to escape the thinking of numerous critics of the system. Professor Bishop’s work recognizes these principles and also reflects knowledge and objectivity, traits seldom found in current works on military justice.
The author quickly rises to the challenge of such “scholars” of constitutional and military law as Jane Fonda, the Berrigan brothers, and other bleeding-heart conveyors of negative rhetoric. He points out “with tolerable clarity and brevity” that every issue has at least two sides, and some are even multidimensional. In his evaluation of the military justice system, Professor Bishop discusses constitutional and procedural methods concerning the system, the relationship between the soldier and his constitutional rights, and the military justice system as compared with civilian criminal justice systems. Throughout his evaluation, the author discusses specific cases as examples to familiarize the reader with his subject. The supporting documentation and reference material are extremely helpful. If a fault can be found with the book, it is probably the absence of complete text or selected portions of the Uniform Code of Military Justice. This inclusion, of course, would have required additional pages, but it also would have provided appropriate references for the reader in relating statutory language to the text.
With a spirit of good humor not generally found in books concerning the law, Professor Bishop’s words flow smoothly over his established course. Many who take issue with his thesis and others who played a role in the development of the subject matter are accorded a touché’ by a master of the foil. The author makes his comments, descriptions, and characterizations with the finesse of a skilled swordsman.
Professor Bishop takes up the challenge of critics on the questions of whether military justice is better or worse than civilian justice and whether the court-martial system should simply be abolished. He very ably points out that it is not a question of which system is the best. The armed forces need a separate system because of certain fundamental differences between civilian society and military society. Military discipline, he says, cannot be maintained by the civilian criminal process, which is neither swift nor certain; since discipline is the responsibility of the military commander, he should have some control over the machinery by which it is enforced; many offenses in military society have no civilian analogues; and, with regard to offenses committed by American servicemen outside the United States, the ends of justice are better served if the trial can be held in the place where the crime is committed.
By acknowledging these basic differences, Professor Bishop establishes the essential element of credibility, the lack of which is so evident in other current publications on military justice. If they choose to recognize these differences, perhaps the critics should consider the fact that speedy justice is not the most outstanding attribute of civilian judicial systems. In this regard it must be noted that a major deterrent to crime is swift and certain justice, something which society either fails to understand or refuses to acknowledge.
In support of the commander’s having some control over the system is the undeniable fact that, because of the very basic differences between military and civilian societies, not only commanders but officers and airmen who serve on military courts are better equipped to understand and respond to the problems involved in military offenses. Those who are responsible for the administration of the military justice system must be sensitive to potential ramifications of such actions in relationship to the organizational mission, and it cannot be forgotten that military service involves the maintenance of discipline.
The fact that many military offenses have no civilian counterpart supports
the conclusion that, in dealing with these offenses, civilian judges and juries
may lack required experience and knowledge. Since Congress is extremely
reluctant to give federal courts jurisdiction over crimes committed by American
servicemen outside the United States, it seems best to retain the status quo.
The only alternative is to permit servicemen to be tried in foreign civilian
courts. Even the most severe critic of military justice, if he were familiar
with foreign judicial systems, would not approve of such jurisdiction in lieu
of American military courts.1
Professor Bishop compares the military and civilian systems in selected areas where obvious differences or similarities occur in procedure and practice. Although he selected the Army system for his military model, the reader should be aware that there are major differences between the Army, Navy, Air Force, and Coast Guard in certain methods, policies, and practices. He discusses the operation of the military justice system in court/jury selection, judges, convening authority, counsel, command influence, pretrial investigation, rules of evidence, and appellate review. In a tell-it-like-it-is fashion, he relates facts to refute or support identifiable challenges against the system.
His conclusions indicate that any differences between the rights of military defendants and civilian defendants in their relationships with their respective systems are likely to be resolved in favor of military defendants. A more caustic rebuff to demands for “civilianization” of military courts is to note that military justice is a model with imperfections but that civilian systems cannot even find a model.
Professor Bishop traces the issue of military jurisdiction as it applies to both civilian and military personnel. He notes that Congress, over the years, had consistently expanded the scope of military jurisdiction until it reached its zenith in 1950. In a series of judicial decisions after 1950, the Supreme Court began to remove the bricks from the constitutional foundation that Congress had built. The author comments specifically on the Toth v. Quarles case (discharge terminates jurisdiction), the Reid v. Covert case (civilians cannot be court-martialed in time of peace), and the O’Callahan v. Parker case (offense must be “service connected”). He describes the opinion in the O’Callahan case as “. . . filled with maddening muddle and obscurity, whose basis and reasoning, if any, are nearly impossible to decipher.” The author’s evaluation and conclusions on the O’Callahan situation are extremely interesting as he points out that this particular jurisdictional issue will be troublesome for years to come. The jurisdictional question as it relates to civilians, reservists, retired regulars, and others is also discussed.
In considering the applicability of the Bill of Rights to the serviceman, Professor Bishop examines selected cases reflecting abuse of those rights prior to 1951. He submits that public opinion since the Korean War has caused the three branches of government to address this issue, even if perhaps in a confusing and uncertain way. The Military Justice Act of 1968, a comprehensive revision of the Uniform Code of Military Justice, and the Manual for. Courts-Martial 1969 (revised edition) reflect the contributions of the legislative and executive branches. The judicial branch has projected its influence through the popular concept of “collateral review.” This uncertain but expanding concept has given the federal courts the opportunity to second-guess the armed forces and the courts created by the Uniform Code of Military Justice with regard to questions of constitutional due process. The federal courts apply the same concept in reviewing state court decisions to insure constitutional due process to the accused. The author concludes that a soldier tried by court-martial has some constitutional rights, however ill-defined, and that those rights can be enforced by federal courts if the military courts fail to recognize them.
With the exception of those rights explicitly denied servicemen by the Fifth Amendment, which exempts cases arising in the land or naval forces from the requirement of a presentment or indictment of a grand jury, are not all the rights conferred by the Bill of Rights applicable to military personnel? If not, why did the framers of the Bill of Rights think it necessary to make that one exception? Since 1951, decisions of the Court of Military Appeals and the Supreme Court of the United States, Congressional legislation, and policy decisions by the various services reflect that the rights guaranteed by the Bill of Rights are, with limited exceptions, equally as applicable to military personnel as to civilians. In some respects, decisions by the Court of Military Appeals reflect a somewhat broader application of constitutional rights to military personnel than interpretations of the Constitution by the Supreme Court. The Court of Military Appeals has also reiterated on several occasions that the rights contained in the first eight amendments, as interpreted by the Supreme Court, apply to servicemen as well as civilians, except those thaw are expressly or by necessary implication inapplicable.
In an excellent discussion of various constitutional safeguards and their application to military personnel, particularly the First Amendment freedom-of-speech provision, Professor Bishop questions whether the process due a soldier. is necessarily the same as that due a civilian. In his opinion, the Supreme Court must someday determine whether military tribunals should not be subject to the same quality of constitutional policing as state criminal courts. But it should also recognize that the rights of men in the armed forces must be conditioned by certain overriding demands of discipline and duty. The least that the Supreme Court could do in this area is to recognize that a “perfect” system of justice in an imperfect society is impossible. The best that anyone can hope for is a “fair” system of justice based on standards established by the Supreme Court unless military conditions require different rules.
Unfortunately, this book was published prior to June 1974, when the Supreme Court rendered its decision in the case of Parker v. Levy. Professor Bishop describes this case as the most litigated case in U.S. history. His comments and conclusions regarding this decision would have benefited from the court’s final disposition of the case, particularly since the Supreme Court upheld the constitutionality of the general Articles 133 and 134, a status which Professor Bishop questioned. The majority opinion quite emphatically supported the need for a separate system of military justice apart from civilian systems. Professor Bishop and others concur on the need for a separate system of military justice, but he suggests that Congress should be more explicit concerning identifiable criminal conduct under Articles 133 and 134 of the Uniform Code of Military Justice.
The author also gives the My Lai massacre a full treatment from the standpoint of the laws of war. He is very careful in drawing analogies concerning that situation, particularly in terms of the Calley trial and war crimes. This, in itself, is a major accomplishment.
If anything positive results from war, it is the general tendency of the U.S. Congress to reform the military justice system. This occurred in the periods following World War I and World War II and during the war in Vietnam. With the conclusion of U.S. military action in the Vietnamese war and the draft, treatment of military justice as a popular whipping boy will probably abate, and changes, if any, will be few. This should insure the timeliness of Professor Bishop’s work for several years to come.
Professor Bishop’s conclusions are classic in the sense that he blends really with theory in supporting his proposals. He is no fuzzy-thinking self-appointed opinion-maker but supports his proposals in a knowledgeable and factual manner. In essence, the book is well written, well documented, and extremely timely. Although certain conclusions and proposals are controversial, the author’s comments may be the laws of tomorrow. Justice under Fire: A Study of Military Law is a valuable text for military lawyers, a study in reality for active and reserve personnel, a reference to satisfy the curiosity of nonmilitary readers, and an effective challenge to the critic. The author remarks: “I see no convincing sign that the Millennium is at hand. Now is a good time to think about the problems of the future.” A reading of this book should generate concern for those future problems and serve as a reminder that the future is now.
AU Institute for Professional
Development
Note
1. For a pertinent discussion of this subject, see “The Military Decision-Maker and Foreign Trials” by Captain Richard J. Erickson in Air University Review, May-June 1975
Lieutenant Colonel George D. Schrader ( M.B.A., University of Dayton; M. P. S., Auburn University; J. D., University of Kentucky) is Deputy Director, The Judge Advocate General’s School, USAF, Air University Institute for Professional Development. He has served as Chief, Military Justice Division, Hq Ninth Air Force, and Director of Civil Law, U. S. Air Forces Southern Command. Colonel Schrader is a member of the bar of Kentucky and Ohio and a graduate of Air Command and Staff College.
Disclaimer
The conclusions and opinions expressed in this
document are those of the author cultivated in the freedom of expression,
academic environment of Air University. They do not reflect the official
position of the U.S. Government, Department of Defense, the United States Air
Force or the Air University.
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