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Military Law Review, Vol. 57 DEPARTMENT OF THE ARMY PAMPHLET 27-100-57 REVIEW VOL. 57 Perspective THE MANUAL FOR COURTS-MARTIAL--1984 THE GERMAN MILITARY LEGAL SYSTEM Articles THE CONSTITUTION, THE UNITED STATES COURT OF MILITARY APPEALS AND THE FUTURE MY LA1 AND VIETNAM: NORMS, MYTHS AND LEADER RESPONSIBILITY Recent Developments Book Reviews HEADQUARTERS, DEPARTMENT OF THE ARMY SUMMER 1972 MILITARY LAW REVIEW The Military Law Review provides a forum for those inter- ested in military law to share the product of their experience and research. 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: Articles, comments, recent de- velopment notes, and book reviews should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, U. S. Army, Charlottes- ville, Virginia 22901. Footnotes 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 Reviews and the Yale Law Journal. SUBSCRIPTIONS AND BACK ISSUES: Interested persons should contact the Superintendent of Documents, United States Government Printing Office, Washington, DC 20402. Subscrip- tion price: $2.50 a year, $.75 for single copies. Foreign sub- scription, $3.25 per year. REPRINT PERMISSION: Contact Editor, Military Law Re- view, The Judge Advocate General’s School, Charlottesville, Virginia 22901. This Review may be cited as 57 MIL. L. REV. (number of page) (1972). i Pam 27-10057 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO, 27-100-57 WASHINGTON, DC, Summer 1972 MILITAR LAW REVIEW-VOL. 57 Pans Perspective: The Manual for Courts-Martial-1984 Major General Kenneth J. Hodson ______________ 1 The German Military Legal System Dr. Friedhelm Krueger-Sprengel ~ - - - - - - - 17 Articles: The Constitution, the United States Court of Military Appeals and the Future Captain John T. Willis ____ .-__ ____________.27 My Lai and Vietnam : Norms, Myths and Leader Responsibility Captain Jordan J. Paust ~~ ___ .___ __ __ ~~ ___ 99 Recent Developments: The Law of Speedy Trial : United Siktes v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166; United States v. Hubbard, 21 U.S.C.M.A. 131, 44 C.M.R. 185 (1971) ~ _..~~ _~_~~_______.__._._ _________ 189 Environmental Responsibilities for the Military : Citizens for Reid State Park v. Laird, USDC Maine, 21 January 1972 __.____________.. _____._203 Books Received .- .- . .- .- ... - 223 iii PERSPECTIVE THE MANUAL FOR COURTS-MARTIAL-l984* Major General Kenneth J. Hodson** It is a great pleasure for me to have this opportunity to talk to you. When I started to make notes for my remarks, I planned to give you the distillation of my thirty years of experience in the administration of military justice, tempered somewhat by the observations of the sages of the law, including some critics of the system of military justice, both military and civilian, lawyer and nonlawyer. During my first ten years in judge advocate work, I thought I knew all the answers, knew exactly what was right in every case. During my second ten years, I developed a few doubts in certain areas. During my third decade of service I discovered that I knew less and less and I had a great many doubts. Now that I have retired and have entered my fourth decade, I have doubts about almost everything. We've had a lot of observations about the system of military justice from various people. Former Justice Tom C. Clark, speak- ing for the United States Supreme Court in Kinsella v. Krueger in 1956, made this comment about our military justice system: In addition to the fundamentals of due process, it includes protec- tions which this court has not required a state to provide and some procedures which would compare favorably with the most advanced criminal codes.' Of course, we recognize that this comment was made prior to such landmark decisions of the Court as Gideon,2 Esc~bedo,~ M~pp,~and Mir~nda.~In 1960, in the James Madison Lecture at the New York University Law Center, then Chief Justice Warren commented favorably upon the Uniform Code of Military Jus- tice, saying, in part: The Code represents a diligent effort by Congress to insure that military justice is administered in accord with the demands of due process. Attesting to its success is the fact that since 1951 the *This article was adapted from the first Kenneth J. Hodson Criminal Law Lecture at The Judge Advocate General's School on 12 April 1972. The views expressed are those of the author and do not necessarily represent the views of any governmental agency. **Chief Judge, United States Army Court of Military Review. Kinsella v. Krueger, 351 U.S. 470, 478 (1966). ' Gideon v. Wainwright, 372 US. 335 (1963). a Escobedo v. Illinois, 378 U.S. 478 (1964). 'Mapp v. Ohio, 367 U.S. 643 (1961). 'Miranda v. Arizona, 384 U.S. 436 (1966). 1 57 MILITARY LAW REVIEW number of habeas corpus petitions alleging a lack of fairness in courts-martial has been quite insubstantial. Moreover, I know of no case since the adoption of the Code in which a civil court has issued the writ on the basis of such a claim. This development is undoubtedly due in good part to the supervision of military justice by the Court of Military Appeals." To the contrary, however, is the comment of Justice Douglas in the O'CaZlahun case in 1969: [ Clourts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. A civilian trial, in other words. is held in an atmosphere conducive to the protec- tions of individual rights, while a military trial is marked by the age old manifest destiny of retributive justice.' There are also many comments by persons other than Supreme Court Justices. In a recent issue of the Student Lawyer Journal, a young woman law student concluded: . that injustice does indeed occur in military courts and that the maintenance of military discipline through a commander's exercise of judicial discretion is responsible for that injustice.8 Senator Birch Bayh of Indiana, in introducing legislation which would make major changes in the Uniform Code of Military Justice, stated on the floor of the Senate on March 8, 1971: The main thrust of this bill is an attempt to eliminate completely all danger of command influence, the possibility-or even the appearance-that the commanding officer of an accused man could affect the outcome of his court-martial. In addition to the danger presented by command influence, the military justice sys- tem denies a defendant other rights fundamental to a free society.' Subsequently, in a by-line article in Parade, the weekend mag- azine, Senator Bayh was even more harsh: It is a shameful fact that this nation, which prides itself on offering 'liberty and justice for all,' fails to provide a first-rate system of justice for the very citizens it calls upon to defend those principles. More than 8 million Americans now under arm8 are being denied rights fundamental to all members of a free society." (Emphasis in original) Warren, The Bill of Rights and the Military, 37 N.Y.U.L. REV. 181, 188, 189 (1962). ' O'Callahan v. Parker, 395 U.S. 258 (1969). ' 17 STUDENT LAWYER JOURNAL 12,15 (March 1972). ' 117 CONG. REC. S 2551 (March 8,1971). lo PARADE (1971). 2 MCM, 1984 Charles Morgan, Jr., of the American Civil Liberties Union would agree, He is quoted as saying, “The Uniform Code of Military Justice is uniform, is a code and is military-and therefore has nothing to do with justice.” l1 This is a suprising commentary, coming so soon after President Johnson’s commendatory remarks when he signed the Military Justice Act of 1968: The man who dons the uniform of his country today does not discard his right to fair treatment under law. We have always prided ourselves on giving our men and women in uniform ex- cellent medical service, superb training, the best equipment. Now, with this bill, we are going to give them first class legal service as well. Within the military, we likewise find conflicting views of military justice. Caesar is credited with saying, “Arms and the law cannot flourish together.” One of our present day military critics, General Howze, a distinguished Army officer who is now retired, expresses views similar to those of Caesar: The effect of a weakened system of military justice has been apparent for some time. Now it is simply getting worse, due to the turbulence which is shaking our society and, in turn, inevitably affecting military discipline. The requirements of military law are now so ponderous and obtuse that a unit commander cannot possibly have the time or the means to apply the system. .= On the other hand, some of our younger commanders disagree with General Howze: What it all boils down to is that military command is more difficult today because our society is more heavily stressing freedoms and rights. Leaders unwilling or unable to adjust to this trend will fail. Commanders who resort to military justice as a substitute for their own inadequacies are barking up the wrong tree.
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