The Serviceman's Rights
In the wake of an expanded draft call, thousands of Americans are about to encounter a fact of G.I. life that might flabbergast a veteran of World War II. It is the Uniform Code of Military Justice, which permits U.S. military courts to be reviewed by civilian judges. By virtue of the code, the modern U.S. court-martial gives the accused a fairer shake than he can expect in most U.S. state criminal courts.
Congress enacted the code in 1950 in response to complaints about "drumhead justice" during World War II, when the number of courts-martial hit 750,000 a year. In one sense, the complaints were no surprise; civilian soldiers, whether draftees or volunteers, have made known their distaste for military rules in every U.S. war since the Revolution. But Congress was also aware of the professional soldier's compelling argument that autocracy is a military necessity. As General William Tecumseh Sherman warned in 1879: "An army is a collection of armed men obliged to obey one man. Every change in the rules which impairs the principle weakens the army."
15 Years Ahead. As it tried to bal ance service requirements against civilian complaints, Congress came to the conclusion that military autocracy had indeed gone too far. Investigators found widespread abuse of "command control" --the power of local commanders to convene courts-martial, appoint court members and review court verdicts. The record showed that all too many commanders had been using military courts as personal disciplinary weapons, ignoring even such bedrock rights as the presumption of innocence until guilt is proved beyond reasonable doubt. As one ex-Navy lawyer recalls: "The general attitude seemed to be that a man was going before a court-martial to receive a sentence rather than a trial."
In writing the new code, Congress adroitly retained command control--but so hedged it with restraints that U.S. military courts have quietly adopted many of the most controversial criminal-law rules only recently imposed on state courts by the U.S. Supreme Court. Civilian courts have not yet adopted some rules that have become military practice. The Supreme Court, for example, has yet to say that state police failure to advise a suspect of his rights to counsel and silence invalidates his confession--a requirement that Congress imposed on the military 15 years ago. A military defendant is also entitled to full pretrial "discovery" of all evidence against him--a virtually unheard-of rule in state courts.
Bread & Water. The Uniform Code of Military Justice governs members of all five armed forces and all organizations assigned to them, such as the Public Health Service. It used to govern servicemen's wives and civilian employees outside the U.S., but the Supreme Court (acting on writs of habeas corpus) voided that power in 1957. The code proscribes a wide variety of offenses, ranging from military mutiny to burglary. It authorizes execution (usually hanging) for everything from premeditated murder to wartime desertion, but makes death mandatory only for spying. No military executions have occurred since 1961; the Navy has performed none since 1849.
Not surprisingly, the code's judicial niceties have moved the services to demand and get more authority for handling minor offenses by meting out punishment without trial--for example, up to seven days in the brig and three days on bread and water. Beyond this, however, the accused is entitled to three kinds of courts-martial, basically ranked according to punishment power:
>SUMMARY COURTS-MARTIAL deal only with enlisted men, consist of one officer who acts as judge and jury. Maximum penalties: one month's confinement, 45 days' hard labor, forfeiture of two-thirds of one month's pay.
> SPECIAL COURTS-MARTIAL nearly always deal with enlisted men, have a president (senior officer present), a trial counsel (prosecutor) and defense counsel. Neither counsel need be a lawyer, but if the former is, the latter must be. Maximum penalties upon conviction: six months' confinement at hard labor and a bad-conduct discharge, which is theoretically less serious than a dishonorable discharge.
>GENERAL COURTS-MARTIAL have jurisdiction over any person subject to the code, try all serious offenses ranging from murder to desertion. The court has at least five members, plus three lawyers trained as members of the particular service's Judge Advocate General's Corps. They are: the trial counsel, defense counsel and "law officer" (judge), who rules on all questions of law, but does not participate in the final secret vote for guilt or innocence. A general court can impose any statutory sentence, including dishonorable discharge, life imprisonment and death (by unanimous vote).
Foxhole Privacy. Grim as it all sounds, every court-martial sentence is automatically reviewed and often lightened in the process. The local commander may cut any sentence (though he may never increase it), after which his actions are reviewed by a Judge Advocate General's Corps lawyer from the accused's branch of the service. For all major sentences, the next step after the commander is a three-lawyer "JAG" board of review in the Pentagon.
The supreme court of the armed forces is the U.S. Court of Military Appeals in Washington. "COMA," as military lawyers call it, has three civilian judges--Chief Judge Robert E. Quinn, 71, a former state trial judge and ex-Governor of Rhode Island; Paul J. Kilday, 65, a Texan who served 22 years in Congress and helped to write the military justice code as a member of the House Armed Services Committee; and Homer Ferguson, 72, a veteran Detroit trial judge who later served two terms as Republican U.S. Senator from Michigan.
Appointed to 15-year terms by the President, COMA judges automatically review all sentences involving death and all sentences involving flag officers. They accept or reject other appeals as they see fit, hear 30-minute oral arguments, and issue written opinions on "decision days" (Fridays).
In its 14-year history, the court has issued reversals in about half its written opinions. In U.S. v. Voorhees (1954), for example, the court upheld the free-speech right of a public-information officer who published a book on Korea without clearance. In U.S. v. Adams (1955), the court ruled in favor of a private who in self-defense killed a trespasser in his tent on the ground that a soldier's right of privacy extends "even to a foxhole."
Who's Crying? The code's guarantee of justice has served as a strong argument for more Status of Force Agreements, arrangements by which foreign governments permit U.S. forces rather than local courts to try the crimes of U.S. servicemen serving overseas. Ironically, though, the Supreme Court's exclusion of overseas civilians from court-martial jurisdiction now subjects them almost exclusively to trial by foreign courts. A case in point is Robert Kimball, the American civilian who is accused of murdering a Vietnamese woman and the top U.S. civilian adviser to South Viet Nam's national police force. Fearing that Kimball might be outside any U.S. jurisdiction whatever, U.S. officials last week waived his diplomatic immunity and handed him over to Viet Nam. Kimball could be imprisoned for life, but Viet Nam also recognizes the crime passionel--in which case the rap is as little as five years.
On the other hand, many U.S. commanders complain that the code's concern for individual rights may compromise military discipline in wartime. While the evidence for this charge is far from overwhelming, disciplinarians may some day cite with alarm the case of Army Doctor Sanford Wolfson, a young draftee and Harvard graduate, who personally griped to General William C. Westmoreland last January about medical-supply shortages in Viet Nam. The irked general ordered the "crybaby" doctor before a general court-martial on Okinawa, where he was accused of malingering and such unofficerlike conduct as sporting a beard. Last week the court tossed out the malingering charge for lack of evidence, thus undermining Westmoreland's entire case.
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