Minnesota Journal of Law & Inequality Volume 26 Issue 1 Article 1 June 2008 Gentlemen under Fire: The U.S. Military and Conduct Unbecoming Elizabeth L. Hillman Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Elizabeth L. Hillman, Gentlemen under Fire: The U.S. Military and Conduct Unbecoming, 26(1) LAW & INEQ. 1 (2008). Available at: https://scholarship.law.umn.edu/lawineq/vol26/iss1/1 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Gentlemen Under Fire: The U.S. Military and "Conduct Unbecoming" Elizabeth L. Hillmant Introduction ..................................................................................1 I. Creating an Officer Class ..................................................10 A. "A Scandalous and Infamous" Manner ...................... 11 B. The "Military Art" and American Gentility .............. 12 C. Continental Army Prosecutions .................................15 II. Building a Profession .........................................................17 A. Colonel Winthrop's Definition ...................................18 B. "A Stable Fraternity" ................................................. 19 C. Old Army Prosecutions ..............................................25 III. Defending a Standing Army ..............................................27 A. "As a Court-Martial May Direct". ............................. 27 B. Democratization and its Discontents ........................ 33 C. Cold War Prosecutions ..............................................36 IV. Meeting the Proliferating Threats ...................................42 A. The Gentlewoman Question .......................................42 B. Post-Cold War Diversity and Operations .................. 46 C. Recent Prosecutions ...................................................51 C onclusion ..................................................................................56 Introduction When it comes to military crime, the officer corps of the United States military occupies a space both protected and vulnerable. Military justice itself is "officers' country,"' a venue in which officers not only control criminal investigation and t. Professor of Law, Rutgers School of Law-Camden. Versions of this Article have been read and critiqued by many generous scholars and friends. For their help, I am especially grateful to my colleagues at Rutgers-Camden, to audiences at the University of Pennsylvania, the University of California, Davis, and Seton Hall law schools, to the New York LGBTQ law faculty workshop, and to Nancy F. Cott, Ariela Dubler, Alice K. Dueker, William N. Eskridge, Jr., Eugene R. Fidell, Katherine Franke, Kris Franklin, Suzanne Goldberg, Robert W. Gordon, Hendrik Hartog, Nan Hunter, Alice Kaplan, Linda K. Kerber, Jean Marie Lutes, Reva B. Siegel, Edward Stein, and Barbara Welke. All errors and oversights are my own. 1. "Officers' country" technically refers to places on a ship where enlisted personnel are not allowed. See Kristin K. Heimark, Sexual Harassment in the United States Navy: A New Pairof Glasses, 44 NAVAL L. REV. 223, 235 n.39 (1997). Law and Inequality [Vol. 26:1 prosecution but also serve as judge and jury. 2 Yet officers themselves are rarely court-martialed. 3 Many soldiers believe that officers are insulated against prosecution for wrongdoing by the political expediency of pushing blame to the lowest possible level, where it does not reflect as poorly on the judgment of military and civilian leaders. 4 Others attribute the low number of officer courts-martial to the generally good behavior of officers 5 or to the legal and political barriers to punishing individuals for acts that they did not themselves commit, notwithstanding the doctrine of command responsibility, which makes officers liable for crimes that they knew, or should have known, were being committed under their command. 6 The privilege of rank, of course, does not protect all officers equally or absolutely, for lesser officers risk 2. See Uniform Code of Military Justice (UCMJ), art. 15, 10 U.S.C. § 825(a) (2000). Enlisted persons can, however, serve on a court-martial panel (the correlate of a civilian jury) if the accused is an enlistee and personally requests enlisted members. See § 825(c). 3. See, e.g., ELIZABETH LUTES HILLMAN, DEFENDING AMERICA: MILITARY CULTURE AND THE COLD WAR COURT-MARTIAL 109-14 (2005) (discussing reasons why officers have rarely been court-martialed); John Sifton, United States Military and Central Intelligence Agency Personnel Abroad: Plugging the Prosecutorial Gaps, 43 HARv. J. ON LEGIS. 487, 490 (2006) (noting that very few officers have been court-martialed and that the cases in which officers have been court-martialed have involved officers' direct participation in crimes). For what may be the exception that proves the rule, see Chelsea J. Carter, 2 Marines to Face Courts- Martial in Haditha Killings, WASH. POST, Oct. 20, 2007, at A2 (reporting the pending court-martial of Lt. Col. Jeffrey R. Chessani for dereliction and disobedience). 4. See, e.g., Jonathan Peterson, Higher Officials Unlikely to Be Tried, L.A. TIMES, Jan. 16, 2005, at A24 (describing the difficulty of prosecuting high-ranking officials in the Abu Ghraib scandal); Sam Provance, The American Ghosts of Abu Ghraib, CONSORTIUMNEWS (Mar. 27, 2007), http://www.consortiumnews.com/ 2007/032607b.html (last visited Nov. 1, 2007) (reporting that the Pentagon punished an officer who testified about crimes at Abu Ghraib and arguing that the Pentagon blamed only low-level personnel). See generally GORDON A. GINSBURG, THE LAVELLE CASE: CRISIS IN INTEGRITY (1974) (on file with author) (describing the impact of politics on the investigation of an Army general for his role in the unauthorized bombing of North Vietnam); Keithe E. Nelson, Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 A.F. JAG L. REV. 124, 124 (1970) ("The disposition of cases involving officer misconduct has been a continuing problem in the Armed Forces of the United States."). 5. See, e.g., ROBERT BUZZANO, MASTERS OF WAR: MILITARY DISSENT AND POLITICS IN THE VIETNAM ERA (1996) (asserting that the armed forces are full of politically savvy officers); HILLMAN, supra note 3, at 114 (discussing the ability of high-ranking officers to work within the system to avoid court-martial). 6. See In re Yamashita, 327 U.S. 1, 15 (1946) (holding that officers bear some responsibility for acts of their subordinates); U.S. ARMY, FIELD MANUAL 27-10: THE LAW OF LAND WARFARE 501 (1956); Maj. Michael E. Smidt, Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations, 164 MIL. L. REV. 155 (2000) (discussing the doctrine of command responsibility). 2008] GENTLEMEN UNDER FIRE being sacrificed for those higher up the chain of command. 7 Officers who escape court-martial can be punished through sub- criminal measures, such as administrative sanction, demotion, or career-derailing reassignments.8 But the perception that high- ranking officers are rarely disciplined and almost never criminally prosecuted is so common partly because it is true. 9 Although some of the best-known courts-martial in United States history involve officers, 10 very few officers have faced court-martial, even when soldiers under their command have been tried and convicted for offenses related to their military duties. 1 The aftermath of a recent high-profile military scandal, the abuse of prisoners at Abu Ghraib in 2003, provides an example of the disparity of punishment between officers and enlistees. After exhaustive investigations, public fallout, and internal recriminations, eleven enlistees were court-martialed, convicted, and sentenced for their conduct at Abu Ghraib.12 Their sentences 7. See, e.g., Dexter Filkins, What the War Did to Colonel Sassaman, N.Y. TIMES, Oct. 23, 2005, (Magazine), at 52 (describing the fate of Nathan Sassaman, another much-celebrated Army lieutenant colonel, who was reprimanded by the Army-but not court-martialed-after his men forced two Iraqis who had allegedly violated curfew to jump into a river as punishment); Scott Gold, 5 California Guardsmen Face Charges of Abusing Iraqis, L.A. TIMES, Aug. 23, 2005, at Al (explaining that five soldiers, three of whom were sergeants, faced courts-martial for abusing Iraqi detainees while their commander Lt. Col. Patrick Frey was simply suspended from duty). 8. See, e.g., HILLMAN, supra note 3, at 114 (noting the availability of administrative discharges and nonjudicial punishment for officers). In the past, officers could face a special punishment that delayed their promotions. See Eugene R. Fidell & Jay M. Fidell, Loss of Numbers, 48 NAVAL L. REV. 194 (2001) (assessing the impact of the abolition of "loss of numbers," an officers-only punishment in the sea services that was eliminated in 1999, on the use of the general court-martial in cases involving naval officers). 9. HILLMAN supra note 3, at 109-14. 10. These include the 1865 trial of Capt. Henry Wirz for his conduct as commander of the notorious Civil War prison in Andersonville, Georgia, the 1925 trial of Gen. Billy Mitchell for insubordination for his stubborn advocacy of air power, and the 1970 trial of Army Lt. William L. Calley, Jr. for his role in the My Lai massacre in Vietnam. See, e.g., ALAN M. DERSHOWITZ, AMERICA ON TRIAL: INSIDE THE LEGAL BATTLES THAT TRANSFORMED THE NATION (2004) (discussing the courts-martial of Wirz, Mitchell, and Calley in a survey of great American trials). 11.