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Military Law Review Vol. 54 Y I DEPARTMENT OF THE ARMY PAMPHLET 27-100-54 MILITARY LAW REVIEW VOL. 54 Y I EP -z Articles 5 FEDERAL COURT REVIEW OF COURTS-MARTIAL PROCEEDINGS: z4 6 A DELICATE BALANCE OF INDIVIDUAL RIGHTS AND MILITARY RESPONSIBILITIES RECENT TRENDS IN SEARCH AND SEIZURE IClVl L DISTU R BANCE, J U STI FlABLE H OM ICI DE, AND MILITARY LAW LEGAL RULES AFFECTING MILITARY USES OF THE SEABED Comments IN S PECTl 0 NS DEFAULT OF INDEFINITE QUANTITY TYPE SERVICE CONTRACTS ACCUMULATIVE INDEX HEADQUARTERS, DEPARTMENT OF THE ARMY FALL 1971 MILITARY LAW REVIEW The Military Law Review provides a forum for those interested in military law to share the product of their experience and re- search. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense’directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. SUBMISSION OF ARTICLES: Article, comments, recent de- velopment notes, and book reviews should be submitted in dupli- cate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, Charlottesville, Virginia 22901. Foot- notes should be triple spaced and appear as a separate appendix at the end of the text. Citations should conform to the Uniform System of Citation (11th edition 1967), copyrighted by the Columbia, Harvard, and University of Pennsylvania Law Re- views and the Yale Law Journal. SUBSCRIPTIONS AND BACK ISSUES: Interested persons should contact the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. Subscrip- tion price: $2.50 a year, $75 for single copies. Foreign subscrip- tion, $3.25 per year. REPRINT PERMISSION: Contact Editor, Military Law Re- view, The Judge Advocate General’s School, Charlottesville, Vir- ginia 22901. This Review may be cited as 54 MIL. L. REV. (number of page) (1971). i Pam 27-100-54 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-54 WASHINGTON, D.C., FALL 1971 MILITARY, LAW REVIEW-VOL. 54 Page Articles: Federal Court Review of Courts-Martial Proceedings: A Delicate Balance of Individual Rights and Military Responsibilities Professor Donald T. Weckstein - - - - - - - - - - - - - - - - 1 Recent Trends in Search and Seizure Captain David McNeill, Jr. - - ~ - - - - - - - - - - - - ~ - 83 Civil Disturbance, Justifiable Homicide, and Military Law Major Charles R. Murray -. - - - - - - - - - - - - - - - - 129 Legal Rules Affecting Military Uses of the Seabed Captain Robert W. Gehring - ~ - - ~ - - - - - - - -- ---- - 168 Comments: Inspections Major Dennis R. Hunt ...................... 225 Default of Indefinite Quantity Type Service Contracts Major Curtis L. Tracy - -.- - - - ~ ~ ~ - - - - ~ - ~ ~ 249 Book Reviews _______.____.______.__________________271 Second Accumulative Index (Volumes 41 through 54) : Table of Leading Articles and Comments-Authors - - 277 Subject Word Index _.__________________________279 Books Received - - - - -. - - -.-. 2 83 iii FEDERAL COURT REVIEW OF COURTS-MARTIAL PROCEEDINGS: A DELICATE BALANCE OF INDIVIDUAL RIGHTS AND MILITARY RESPONSIBILITIES* By Donald T. Weckstein** Finality in the criminal law has become an increasingly less precise term. Within the militdry today, the “final” review of a court-martial may not come until the United States Supreme Court has reviewed a soldier-defendant’s habeas corpus application. The author examines the in- creasingly significant topic of federal civilian court re- view of court-martial proceedings. Among topics dis- cussed are the type of action brought, the nature of the challenge to the military proceeding, and the extent to which potential military relief must be exhausted. In concluding, the author offers his solution to the difficult question: Under what circumstances should a civilian court interfere with a military criminal determination? I. THE SITUATION Upon graduation from college, Charles Able Baker was ac- cepted to attend graduate school. But his draft board did not concur, and he soon found himself as Private Charles A. Baker, United States Army. His already existing doubts about herican foreign and military policy were deepened by his basic training experience and he became convinced that the road to peace was not a military highway. Accordingly, he spent a good many of his off-duty hours with FARCE (Free American Riflemen for the Cause of Eros) trying to live up to their motto: “Make love not war!” On one Saturday afternoon he participated, in uniform, in a “peace-parade” on post and carried a sign that read : “Get the U.S. Imperialists Out of Viet Nam !” That evening the military police found Baker smoking marihuana in his bar- racks. When apprehended, Baker did not resist but instead kissed the M.P. on the ear. Private Baker was charged with (1) violation of Article 92 of the Uniform Code of Military Justice (UCMJ) in that he *“he opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency. **Professor of Law, University of Connecticut; Major, JAGC, USAR I Art. 92, UNIFORM CODE OF MILITARY JUSTICE [hereafter cited as UCMJ]. The UCMJ is codified in 10 U.S.C. $0 801-940 (Supp. IV, 1969). 1 54 MILITARY LAW REVIEW failed to obey a lawful general order prohibiting military per- sonnel from participating in demonstrations while in uniform ; (2) violations of Article 134, UCMJ, in that (a) he uttered statements which were disloyal to the United States,2 (b) he possessed and used marihuana,’ and (c) he committed an in- decent assault on the After an Article 32 investigation, the commanding general referred the charges for trial by a general court-martial. Private Baker requested that he be represented by a Private Oliver Ames, a recent graduate of Harvard Law School who also had been drafted and at the time was undergoing basic training at Fort Mudd. The commanding general determined that Private Ames was not available to serve as counsel, and appointed Cap- tain Novice from the post staff judge advocate’s office to serve as defense counsel. Captain Novice was himself a recent law school graduate who had never before tried a case, civilian or military. Baker testified in his own defense, and on cross-exami- nation, the trial counsel, in order to impeach Baker’s testimony, inquired whether or not it was true that Baker had engaged in several acts of fornication with various females druing the past six months. There was no objection and Baker answered that it was true. The court-martial found Baker guilty of all charges and spec- ifications and sentenced him to two years confinement at hard labor, forfeiture of all pay and allowances and a dishonorable discharge. Before a court of military review appellate-defense counsel contended that the findings and sentence were erroneous be- cause : (1) Article 134 was unconstitutionally vague ; (2) Baker’s First Amendment rights to freedom of speech and expression were violated by (a) the order prohibiting participation of uni- formed military personnel in public demonstrations, and (b) the prohibition of statements critical of the United States gov- ernment or its policies; (3) Kissing a male on the ear did not constitute indecent assault; (4) It was prejudicial error to admit impeachment evidence concerning Private Baker’s sexual mis- conduct; (5) The sentence was too severe. The court of military review approved the findings and sentence rejecting all conten- *Art. 134, UCMJ; MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1969 (REVISED EDITION) [hereafter cited as MCM, 19691, p. A6-21, Specification 139. Id. at p. A6-22, Specifications 144, 145. ‘ Id. at 5 219f (2), pp. 28-76; A6-20, Specifications 128. Pursuant to Art. 70, UCMJ. 2 FEDERAL COURT REVIEW tions on their merits with the exception of number (4) which they refused to consider because trial defense counsel had not objected to the evidence. No further military appellate review was requested by the Judge Advocate General or Private Baker.6 After Baker served eighteen months of his sentence, he was released from confinement. He then brought an action in the United States Court of Claims for back pay and allowances on the ground that the findings and sentence adjudged in his court- martial were erroneous and void. In support of his contention, his civilian counsel alleged the same five errors that appellate defense counsel had urged before the court of military review, a.nd added : (6) The court-martial lacked jurisdiction over the offenses charged because they were not service connected; (7) Baker was denied his constitutional right to counsel by (a) the refusal to grant Baker’s request to permit Private Ames to act as defense counsel at the court-martial, and (b) the inade- quacy and incompetence of Captain Novice, the appointed defense counsel. The questions raised by Baker’s suit are illustrative of the many problems confronting the courts in their attempt to safe- guard rights of individual servicemen without unduly interfering with the special requirements of military service. Among the issues are: (1) What jurisdiction, if any, do the civil courts have to review military proceedings? (2) What civil remedies may be invoked to obtain such review? (3) What military rem- edies must be exhausted before relief may be sought from the federal courts? (4) What types of errors committed by mili- tary tribunals are subject to civil court review? (5) What is the scope of such review by the civil courts? (6) To what extent are the constitutional rights of servicemen limited because of their military status? The importance of these issues to our legal order and to the nation has become increasingly apparent with the continued conscription of large numbers of our youth in order to fight an unpopular war and support questioned foreign and domestic policies.
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