Military Law Review

DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-25 MILITARY LAW REVIEW Articles AN OFFICERS OATH Lieutenant Colonel Thomas Reese COUNTERINSURGENCY: A PERMITTED INTERVENTION? Lieutenant Colonel john 1. Douglas BRIBERY AND GRAFT Major lack Crouchet . AN INTRODUCTION TO MILITARY JUSTICE IN FRANCE Gerald L. Kock HEADQUARTERS, DEPARTMENT OF THE ARMY JULY 1964 AGO 9077B PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. 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 the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General's School, U. S. Army, Charlottesville, Virginia. Footnotes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvard Blue Book. This Review may be cited as 25 MIL. L. REV. (number of page) (1964) (DA Pan; 27-100-25, 1 July 1964). For sale by the Superintendent of Documents, United States Government Printing Office, Washington, D. C. 20402, Price : $.75 " (single copy). Subscription price: $2.50 a year; $.75 additional for foreign mailing. i CAMPBELL SMITH Judge Advocate of the Army 1797-1802 In 1784 the Army of the United States was reduced to less than one hundred officers and men and it was not until after the adoption of the Constitution in 1789 that any great interest was taken in military matters. Judge advocates were merely detailed from the line of the Army. In 1792 the Army was organized into the Legion of the United States and on 16 July 1794, pursuant to an order of Major General Anthony Wayne, Lieutenant Campbell Smith, IV Sublegion, who had entered the service as an ensign of Infantry in March 1792, was appointed “Judge Marshal and Advocate General to the Legion of the United States.’’ He served more than two years as Judge Advocate and also performed the additional duties of aide- de-camp to Brigadier General Wilkinson. He relinquished his office of Judge Marshal and Advocate General on 13 July 1796. On 1 November 1796 the Army was reorganized and he became a lieutenant in the Fourth Infantry. As a result of the fact that special emoluments for his office were not provided by law, he applied for Congressional redress in 1798 for services rendered as a judge advocate from 1794 to 1796. Acting on his position, Alexander Hamilton, as Deputy to General Washington who had returned from retirement to head military preparations for a possible war with France, writing from New York on 25 October 1799 per- tinently stated : I consider it to be a principle sanctioned by usage that when an officer is called to exercise in a permanent way an office of skill in the Army (such as that of Judge Advocate) for which provision is not made by law, he is to receive a quantum meruit by special discretion for the time he officiates,which in our present system would be paid out of the funds for the contingencies of the War Department. Favorable action was taken on his petition and he received the equivalent of pay of The Judge Advocate of the Army as provided in the Act of 3 March 1797 (1 Stat. 507) for services rendered from 1794 to 1796. (Report of Committee of Claims, 21 February 1800, United States House of Representatives.) This same act, which had been passed by the Congress to pre- pare the Army for a threatened war with France, provided : That there shall be one Judge Advocate, who shall be taken from the commissioned officers of the line, and shall be entitled to receive two rations extra per day, and twenty five dollars per month in addition to his pay in the line; and whatever forage shall not be furnished by the public, to ten dollars per month in lieu thereof. iii Pursuant to this act, on 2 June 1797, Campbell Smith, then a Lieutenant in the 4th Infantry, was appointed Judge Advocate of the Army, with rank as a lieutenant of the line to continue. He was promoted to Captain in the Fourth Infantry while still serving as Judge Advocate of the Army on 20 November 1799. It appears that he was relieved as captain of Fourth Infantry on 1 April 1801 and served thereafter exclusively as “Judge Advocate.” (Compare 1 Heitman, Historical Register and Dictionary of the United States Army 39 (1903), with id. at 895.) On 16 March 1802 Congress passed an act establishing the United States Military Academy, limiting the line of the Army to three regiments, and abolishing the Office of Judge Advocate of the Army (2 Stat. 132). Pursuant to this act, Captain Smith was discharged from the service on 1 June 1802. Subsequent to this date and during various parts of its history, the United States Army had Judge Advocates but it was not until 1849 that Congress again authorized a “Judge Advocate of the Army)’ (Act of 2 March 1849, 9 Stat. 341). iv Pam 27-100-25 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-25 WASHINGTON, D.C., 1 July 1964 MILITARY LAW REVIEW Page Articles: An Officer’s Oath Lieutenant Colonel Thomas Reese ______-_______ 1 Counterinsurgency : A Permitted Intervention? Lieutenant Colonel John J. Douglass -___-_-____- 43 Bribery and Graft Major Jack Crouchet ____-___________________ 85 An Introduction to Military Justice in France Gerald L. Kock ______________________________ 119 TAG0 0077B-Juo V AN OFFICER’S OATH* BY LIEUTENANT COLONEL THOMAS H. REESE** I. INTRODUCTION You have held personal safety and comfort above duty, honor, and country, and, in so doing, have deliberately violated your oath . as an officer of the United States Army.1 These words of reprimand were imposed upon an Army lieutenant colonel by Lieutenant General Robert N. Young, then Com- manding General, Sixth US Army, on 21 February 1956. Considerable concern arose in the minds of military officers of the United States who read General Young’s words. Questions of unsure loyalty, divided loyalty, and the meaning of an officer’s oath were voiced by some commissioned officers. Others stated: “In many years of active service in the Armed Forces of the United States I have never been reminded, in training, of an officer’s oath, nor heard a discussion of its meaning.” The words and thoughts are intriguing and indicate a crucial situation that exists in the officer corps of the Armed Forces of the United States. That is to say, there is not a general realization of the obligations entailed in the solemn oath of allegiance to sup- port and defend the Constitution of the United States against all enemies and to bear true faith and allegiance to the same. The framers of the Constitution professed concern for the nation and if we admit to ourselves that the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs” we too must profess the same concern. rThis article was adapted from a thesis presented to the U. S. Army War College, Carlisle Barracks, Pennsylvania, while the author was a student there. A short adaptation of the thesis was published in the January 1964 issue of Military Review. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of the U. S. Army War College, the U. S. Army Command and General Staff College, The Judge Advocate General’s School, or any other governmental agency. ** JAGC, U. S. Army; Deputy Staff Judge Advocate, Headquarters Field Command, Defense Atomic Supply Agency, Sandia Base, Albuquerque, New Mexico; B.S., 1942, University of Utah, LL.B., 1948, University of Utah; Member of the Bar of the State of Utah, and of the United States Supreme Court and United States Court of Military Appeals. 1 Gen. Court-Martial Order No. 14, Hq. Sixth U. S. Army (21 Feb. 1956). 2 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819). AGO 9077B 1 25 MILITARY LAW REVIEW Let us take a view of an officer’s oath, unhindered by the cynic and his doubts and with the hope that a look at the past will provide a partial guide for today and a pattern for the future. Accordingly, it is the purpose of this study to endeavor to define the meaning and function of the military oath of office, to present for consideration the evolution of the statutory enactments, to point out some historic and current conflicts of unsure and divided loyalty to the Constitution, to indicate the problem of an officer’s oath in an integrated international military command, and to put in proper perspective the preparation needed to educate commissioned officers regarding an officer’s oath so that they may be prepared to say: Where’s the coward that would not dare to fight for such a land.3 instead of: Dear friends, we, all prisoners, solidly appeal to you as follows: the armed intervention in Korean internal affairs is quite a barbaristic, aggressive action to protect the benefit of the capital monopolists of the U.S.A.4 11.

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