Military Law Review-Vol. 97 (Usps 482-130)
Total Page：16
File Type：pdf, Size：1020Kb
MILITARY LAW N REVIEW COMMAND CRIMINAL RESPONSIBILITY A PLEA FOR A WORKABLE STANDARD BOOK REVIEW PUBLICATIONS RECEIVED AND BRIEFLY NOTED Volume 97 Summer 1982 Phamphlet HEADQUARTERS, DEPARTMENT OF THE ARMY NO. 27-100-97 Washington, D.C.,Summer 1982 MILITARY LAW REVIEW-VOL. 97 (USPS 482-130) The Military Law Review has been published quarterly at The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia, since 1958. The Review provides a forum for those interested in military law to share the products of their experience and research. Writings offered for publication shodd be of direct concern and import in this area of scholarship, and preference will be given to those writings having last- ing value as reference material for the military lawyer. The Reuiew en- courages frank discussion of relevant legislative, administrative, and ju- dicial developments. The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions reflected in each writing are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. Masculine pronouns appearing in the pamphlet refer to both genders un- less the context indicates another use. SUBSCRIPTIONS: Private subscriptions may be purchased from the Superintendent of Documents, United States Government Printing Of- fice, Washington, D.C. 20402. The subscription price is $14.00 a year for domestic mailing, and $17.50.for foreign mailing. A single copy is $5.50 for domestic mailing, and $6.90 for foreign mailing. Publication exchange subscriptions are available to law schools and other organizations which publish legal periodicals. Editors or pub- lishers of such periodicals should address inquiries to the Editor of the Review. Inquiries concerning subscriptions for active Army legal offices, other federal agencies, and JAGC officers in the USAR or ARNGUS not on ac- tive duty, should be addressed to the Editor of the Review. CITATION: This issue of the Review may be cited as 97 Mil. L. Rev. (number of page) (1982). Each quarterly issue is a complete, separately numbered volume. i MILITARY LAW REMEW MAJOR GENERAL HUGH J. CLAUSEN The Judge Advocate General of the Army MAJOR GENERAL HUGH R. OVERHOLT The Assistant Judge Advocate General of the Army COLONEL WILLIAM K. SUTER Commandant, The Judge Advocate General's School EDITORIAL BOARD COLONEL ROBERT E. MURRAY LIEUTENANT COLONEL THOMAS P. DEBERRY EDITORIAL STAFF CAPTAIN CONNIE S. FAULKNER, Editor CAPTAIN STEPHEN J. KACZYNSKI, Editor MS. EVA F. SKINNER,Editorial Assistant **** INDEXING: The primary Military Law Review indices are volume 91 (winter 1981)and volume 81 (summer 1978). Volume 81 covered all writings in volumes 1through 80,and re- placed all previous Review indices. Volume 91 covers writings in volumes 75 through 90 (excluding Volume 81), and replaces the volume indices in volumes 82 through 90. Volume indices appear in volumes 92 through 95, and are replaced by a cumulative index in volume 96. Military Law Review articles are also indexed in the Advance Bibliography of Con- tents: Political Science and Government; Legal Contents (C.C.L.P.); Index to Legal Pe- riodicals; Monthly Catalog of United States Government Publications; Law Review Digest; Index to US. Government Periodicals; Legal Resources Index; two computerized data bases, the Public Affairs Information Service and The Social Science Citation Index; and other indexing services. Issues of theMilitary Law Review are reproduced on microfiche in Current US.Govern - ment Periodicals on Microfiche, by Infordata International Incorporated, Suite 4602, 175 East Delaware Place, Chicago, Illinois 60611. ii MILITARY LAW REVIEW TABLE OF CONTENTS Title Page Command Criminal Responsibility: A Plea for a Workable Stand- ard Colonel William G. Eckhardt . , . , , , . , . , . , . , . 1 The Military Death Penalty And The Constitution: There Is Life After Furman Captain Michael E. Pfau and Captain Eugene R. Milhizer , . , 35 The Constitutionality of the U.C.M. J. Death Penalty Provisions Major John J. Pavlick, Jr. , , , . , . , , . , . , . , . , . 81 BOOK RBVIEW: A Uniform System of Citation, Thirteenth Edition Colonel William S. Fulton, Jr. , . , , , . , , , . 127 PUBLICATIONS RECEIVED AND BRIEFLY NOTED . , . 133 iii MILITARY LAW REVIEW [VOL. 97 MILITARY LAW REVIEW SUBMISSION OF WRITINGS: Articles, comments, recent development notes, and book reviews should be submitted typed in duplicate, double spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, US. Army, Charlottesville, Virginia 22901. Footnotes should be double-spaced and should appear as a separate appendix at the end of the text. Footnotes should be numbered consecutively from the beginning to end of a writing, not chapter by chapter. Citations should conform to the Uniform System of Cita- tion (13th ed., 1981) copyrighted by the Columbia, Harvard, and University of Pennsyl- vania Law Reviews and the Yale Law Journal. Typescripts should include biographical data concerning the author or authors. This data should consist of rank or other title; present and immediate past positions or duty assign- ments; all degrees, with names of granting schools and years received; bar admissions; and previous publications. If the article was a speech or was prepared in partial fulfillment of degree requirements, the author should include date and place of delivery of the speech or the source of the degree. EDITORIAL REVIEW: The Editorial Board of the Military Law Review consists of the Deputy Commandant of The Judge Advocate General’s School; the Director, Develop- ments, Doctrine, and Literature Department; and the Editor of the Review. They are as- sisted by subject-matter experts from the School’s Academic Department. The Board sub- mits its recommendations to the Commandant, TJAGSA, who has final approval authority for writings published in theReview. The Board will evaluate all material submitted for publication. In determining whether to publish an article, comment, note or book review, the Board will consider the item’s sub- stantive accuracy, comprehensiveness, organization, clarity, timeliness, originality and value to the military legal community. There is no minimum or maximum length require- ment. When a writing is accepted for publication, a copy of the edited manuscript will be pro- vided to the author for prepublication approval. However, minor alterations may be made in subsequent stages of the publication process without the approval of the author. Be- cause of contract limitations, neither galley proofs or page proofs are provided to authors. Italicized headnotes, or summaries, are inserted at the beginning of most writings pub- lished in the Review, after the authors’ names. These notes are prepared by the Editor of theReview as an aid to readers. Reprints of published writings are not available. However, authors receive compli- mentary copies of the issues in which their writings appear. Additional copies are usually available in limited quantities. They may be requested from the Editor of theReview. BACK ISSUES: Copies of recent back issues are available in limited quantities from the Editor of the Review. For individual military personnel on active duty, recent back issues are also available from the US.Army AG Publications Center, All”: Distribution Man- agement Division, 2800 Eastern Boulevard, Baltimore, MD 21220. Bound copies are not available, and subscribers should make their own arrangements for binding if desired. REPRINT PERMISSION: Contact the Editor, Military Law Review, The Judge Advo- cate General’s School, US.Army, Charlottesville, Virginia 22901. iv 19821 COMMAND CRIMINAL RESPONSIBILITY: A PLEA FOR A WORKABLE STANDARD* by Colonel William G. Eckhardt * * PREFACE A major revision of the law of war is in process. The unusual timing of historical and political events requires Americans to seek a practical articulation of the standard of behavior expected of their combat com- manders. The purpose of this article is to constructively participate in that search. The cornerstone of military professionalism is professional conduct on the battlefield. The articulation of that professional conduct, in addition to underscoring the legitimacy of the honorable profession of arms, would shield commanders from untutored, politically motivated allega- tions of war crimes and, more importantly, would allow the teaching of expected conduct and thus prevent institution-staining misconduct. An examination of the current and the proposed new standards reveal an alarmingly unsettled and dangerously inarticulated expression of the most basic social contract between a soldier and the citizenry he serves. This article constitutes a plea for soldiers to articulate the essential in- gredients of their profession and thus return to a central role in con- trolling ita rules. Lawyers are admonished to “do their duty” and articu- The opinions and conclusions expressed in this article are those of the author and do not necessarily represent the views of The Judge Advocate General’s School, the Depart- ment of the Army, or any other governmental agency. This article is based upon a thesis submitted by the author in partial satisfaction of the requirements for completion of the U.S. Army War College, Carlide Barracks, Pennsylvania, during academic year 1981- 1982. ** Judge Advocate General‘s Corps, United States Army. Chief, Defense Appellate Divi- sion, US. Army Legal Services Agency,