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426

MILITARY A REINFORCER OF DISCIPLINE

Robert S. Poydasheff

The American involvement in Viet­ Unfortunately, some observers nam generated intense soul-searching, wrongly perceive the justice questioning, and argument among vari­ system as a system remote from Ameri­ ous segments of American society. In can military ethical considerations, particular, the My Lai cases and other having no nexus to justice. They see it incidents focused public attention upon as one operating to the prejudice of the the existing system of military criminal accused by failing to accord him the . 1 Many Americans, having little or procedural and substantive protections no professional contact with the Armed of the judicial process under the Consti­ Forces, were exposed to highly mis­ tution and the Federal Rules of leading and inaccurate generalizations .4 One writer has and conceptualizations concerning a even erroneously asserted that: "None system that "is now a sophisticated of the travesties of justice perpetuated system of justice.,,2 The under the UCMJ is really very surprising system must enjoy public confidence for military law has always been and and understanding, because "a system continues to be primarily an instrument of justice is merely as good as the public of discipline, not justice."s believes it to be.,,3 There is little, if any, The Uniform Code of Military Jus­ value in the system if it is not trusted or tice does not reflect a congressional understood by the American public. desire to enforce discipline to the detri- 427 ment of American notions of justice.6 precisely, one generally thinks of "duty, Rather, it combines most of the judicial honor, country," "loyalty," and "mis­ concepts relating to individual rights 7 in sion and men." There are many, no a code of conduct, the violation of doubt, who would view the ethical which is proscribed and which reflects conceptions of the American military the military ethic. While the soldier, by forces as anachronistic. Nevertheless, joining the military, subjects himself to " ... it is in fact the very essence of the limitation or curtailment of the military professionalism.,,9 Today, the scope of his basic freedoms (e.g., free­ line between the military services, dom of speech), he surrenders none of especially the Army, and civilian society them. The military member continues has become blurred with the mobiliza­ to enjoy all of the basic rights and tion of thousands of citizens into uni­ freedoms he enjoyed in civilian life. formed citizen-soldiers. As a result, the However, he or she must exercise these possibilities exist that" ... the patterns rights in a manner consistent with the of military authority [may] shift from overriding interests of the military. authoritarian command to organiza­ There was a time when joining the tional decisionmaking.,,1 0 Under these military meant the of certain conditions, the concepts embodied in righ ts. This is no longer true. In order to the military ethic must be reinforced in highlight the role of law in a military order to insure adherence to standards environment, it is necessary to discuss which are still both viable and necessary the meaning of the military ethic, cer­ in the American Armed Forces. tain codal articles8 as they implement The Armed Forces constitute a the ethic, and some of the basic rights unique and specialized society because of an accused under military law. their ultimate function is that of com­ bat in the national . For this THE MILITARY ETHIC reason, military forces are separate and distinct in many aspects from the parent civilian society. They have developed The military ethic is not a "theory" their own traditions which have given of military conduct. It is a code of rise to the military ethic, which, in tum, behavior pertaining to a profession-the is based on a recognition that the profession of arms. This code is con­ purpose of our military forces is to fight sistent with the American tradition. It is , or to be ready to fight them, empirically derived, and by its nature it should the occasion arise. 1 1 The is noncompulsory. Being noncompul­ soldier's first duty is the accomplish­ sory, we should not be surprised that ment of his mission, and his second is to not all the members of American Armed insure the welfare of his men. If this Forces adhere to it at any given mo­ were not the basic principle, "any mili­ ment. In order to demand this ad­ tary operation involving a risk would herence, the Congress enacted a Uni­ not be undertaken, and in fact the form Code of Military Justice-criminal military forces could be dispensed -in an attempt to corporealize the with.,,12 ethic into concrete , violations The military ethic consists of a code of which could lead to penal sanctions. of behavior appropriate for an organiza­ In so doing, the Congress provided in tion whose primary purpose is to fight if the broadest sense the nexus between called upon to do so. Its practical effect the military ethic and justice. is to provide or to account for the The term "military ethic" is rather motives underlying military conduct. 1 3 amorphous when viewed in the abstract. Writers such as Ward Just fail to con­ Indeed, in attempting to define the term sider the military ethic as a system of 428 empirical norms which provides the difficult to acquire but capable of being guideposts for proper military conduct. lost immediately. There can be no dis­ He has opined that "the army has been ruption lest the armed forces disinte­ corporatized. It has become something grate into a mere armed mob amid the of a syndicate, a corporate state with its stresses of peacetime hardship and own laws and traditions and pro­ time fear."IS This approach emphasizes ceedings." Quite to the contrary, the that the end or purpose of a soldier's military ethic, by regarding love of action is to obey and not to delib­ country, duty, honor, et cetera, as erate.19 virtuous and by emphasizing them con­ tinuously, has enabled the Army to MILITARY LAW avoid succumbing to corporatization. For example, the military ethic requires Military is concerned the American Army to "maintain a with many concepts that are not neces­ nonpartisan posture, i.e., a nonparty sarily embraced within the character of affiliation. ,,14 Yet we have had obvious the military ethic. Within the military cases of members of the Army who legal framework the independence ·of openly and notoriously advocated par­ the -martial20 from command in­ 1 ticularistic political . 5 An fluence, the independence of the extreme example is found in the case of of Military Review2 1 and the Court of 1 Parker v. Levy, 6 where Army Military Appeals, as well as the tradi­ Levy, stationed at Fort Jackson, de­ tional limitation of their scope in clared he would not obey a written making new law, are excellent examples order to conduct training. In addition, of the separation of judicial and military 2 he made several public statements to ethical values in the military law. 2 Of enlisted personnel indicating that the all the ethical values encompassed in was wrong in being in­ military law,· the chief one is the main- volved in the and that . tenance of a disciplined force, which "Colored soldiers" should disobey military law in tum reinforces. orders to go to Vietnam. As discipline must be maintained Even though the military ethic pro­ within the military, so breaches of scribes formal, public political ad­ discipline must be punished. Any breach vocacy, members of the military profes­ of the military ethic-discipline could sion may hold political beliefs, show impair the fighting effectiveness of a political preference, and vote in elec­ military unit. Any infraction which tions. One authority goes so far as to would lessen a soldier's enthusiasm to main tain that " respond to duty would necessarily should be permitted to serve on local impair the effectiveness of his unit. school boards, run in nonpartisan local Should that unit be in combat, any elections, and be members of govern­ reluctance, however slight, to respond ment advisory boards and public panels to duty "could be disastrous, or even where they have qualifications and in­ fatal. ,,23 terests.,,1 7 Certain aspects of this ethic, em­ Thus, the norms of "duty, honor, bodied in the concept of discipline, are country," "loyalty," and "mission and peculiar to the Armed Forces. Three men" provide the parameters as to how articles of the Uniform Code of Military soldiers ought to behave. Justice illustrate the importance of law When viewed from the perspective of in reinforcing the military ethic. The a , these norms are seen to first is article 88,24 which prohibits underlie the concept of discipline, commissioned officers from using "con­ which "is the very soul of Armies- temptuous words" against the President, 429 Vice President, Congress, and other high of his sentence, Howe was granted a civil officials. If convicted, an offender parole. "shall be punished as the court-martial Should Howe have been tried? Is not may direct." an American entitled to criticize his The others are article 92, prohibiting government as provided for and pro­ 2 disobedience to orders, 5 and article tected by the ?31 Howe was 2 134, 6 the so-called , the first person to have been prosecuted which punishes, inter alia, "[A] 11 under article 88 of the 1950 UCMJ. The disorders and neglects to the prejudice restrictions of this article embrace not of good order and discipline in the only loyalty, one of the fundamentals 3 armed forces," not otherwise specifi­ of the military ethic, 2 but also the cally mentioned in the UCMJ. prenrlse that the American Armed Forces are subordinate to duly consti­ Article 88-Contemptuous Words. tuted civilian authority. After all, under During the recently ended Vietnam era, the Constitution, the President is Com­ a small but vocal group of servicemen mander in Chief of the Armed Forces, a emerged within the Military Establish­ point overlooked by some of Howe's ment. They expressed in no uncertain defenders. terms their opposition to the war and Limitation of this proscription to the role of the United States in it. The officers has been questioned,3 3 and 2 case of 2d Lt. Henry H. Howe, Jr., 7 is during World Wars I and II courts­ a classic example of a violation of martial for such an offense were in­ professional ethics which resulted in frequent. In cases where commanders judicial sanctions because the law, in . did bring servicemen to for their this instance, reinforced the ethic. remarks, courts would acquit if the Howe, an Ordnance Corps officer in the remarks were casual statements made Army Reserve, was serving on active "in private conversations and political duty at Fort Bliss, Tex. While there, he discussions. 1134 Howe's case was far marched with demonstrating civilians in different than the cases of servicemen downtown El Paso, Tex., condemning expressing contempt in private at the the Vietnam war. Howe carried a plac­ apex of duly constituted authority. He ard indicating that the late President flagrantly and publicly abused his posi­ Johnson was a Fascist who was con­ tion and in so doing invit~d contentious­ ducting an illegal war. In addition to ness among other personnel at Fort being charged with using contemptuous Bliss. Such "concerted political prose­ words against President Johnson, Howe lytizing in an attempt to cause general was charged with disaffection toward the President [was] 28 an "officer and gentleman and pro­ rare. 113 5 Nevertheless, the military ethic moting disloyalty and disaffection demands that civil authority be pro­ among the troops and civilian populace tected against threats from those who to the prejudice of good order and are in military power, and if effect is to military discipline.29 He appeared be given to this principle, then there before a general court-martial, was con­ must exist a legal proscription, the victed, and sentenced to dismissal,3 0 violation of which may be punished. forfeiture bf all pay and allowances, and No doubt restricting the speech of confinement at hard labor for 2 years. military members invites constitutional The confinement was reduced to 1 year attack, and article 88 has been criticized by the convening authority, and the on this ground.3 6 Even though mem­ sentence was eventually affirmed by the bers of the Armed Forces do retain United States Court of Military Appeals. certain basic rights,3 7 the military "con­ After serving approximately 3 months stitutes a specialized community 430 governed by a separate discipline from apply in a military context. Indeed, at that of the civilian.,,3 8 If the military "the time the Bill of Rights was adopted, ethic were to deny this distinction by little if any thought was given to whether removing the restrictions embraced in those provisions had direct relevance to article 88, it would not only create the military context, and courts-martial "new forms of tension,,3 9 but might from the beginning assumed they did start the process of seriously eroding not. ,,41 Further, some authorities con­ respect for and the sanctity of au­ sider the military as an "alien sector" of thority. The United States Supreme American society which "fall[s] outside Court appears to reinforce this view. In the area in which ... freedom of expres­ Parker v. Levy, the court said: sion must be maintained.,,42 It is While members of the military "alien," of course, because there is a community enjoy many of the separate ethic for the military society. same rights and bear many of the To someone who does not appreciate same burdens as do members of the difference between civil and military the civilian community, within society, there is an inconsistency be­ the military community, there is tween the military ethic (and military simply not the same autonomy as attitudes) and the civilian values em­ there is in the larger civilian com­ bodied in the first amendment.43 There munity. The military establish­ are three ways to view the relationship ment is subject to the control of of the military ethic to first amendment the civilian commander-in­ values: (1) the first amendment right to chief.... 40 free speech does not apply to the In this case, the majority of the military, (2) the protections apply fully, limited the constitutional without any restrictions,44 and (3) right of free speech as it applies to there are compatible areas permitting a servicemen. The Supreme Court is be­ convergence of civilian notions of free ginning a process of defining constitu­ speech to be applied so long as no tional areas which would not be open to violation of the military ethic occurs, the military community, because of the which is serious enou~h to erode disci­ 4 uniqueness of that community and be­ pline. 5 I subscribe to this latter view. cause of the importance of preserving the The Howe case acutely highlighted this superior-subordinate relationship. This relationship. It is unlikely that the limitation which was implicitly recog­ Supreme Court would conclude that nized in Levy particularly applies to first amendment coverage is irrelevant Howe because more was involved in that to servicemen and that only Congress case. True, the President is the Com­ can legislate the scope of constitutional mander in Chief of the Military Establish­ application to the military. Congres­ ment and, as such, he was Howe's su­ sional power concerning the military is perior in the chain of command. Howe's not free from judicial scrutiny.46 In our conviction could be sustained on that society the relationship between the issue alone. The premise underly­ military and the rest of society with ing article 88 is to reinforce that portion respect to political actions is not of the military ethic which emphatically ambiguous, so long as there is a judi­ accepts civilian control of the military. cially reinforced ethic guiding the Thus, if the Howe case had been argued actions of military personnel. Of course, before the Supreme Court, it is unlikely "the fact that a man is a member of the that the Court would have accepted the armed forces, and therefore in some view that all of the rights and privileges situations a servant to the state and its guaranteed by the first amendment to all commanders, does not obliterate the persons, especially in the political arena, fact that as a citizen he has certain 431 rights which remain.,,47 But, on bal­ discipline that a man holds to ance, article 88 is an example of the because it is a refusal to betray his military ethic judicially enforced on the comrades. The discipline that military segment of society. 48 makes a sentry, whose whole body is tortured for sleep, rest his Article 92-Failure to Obey Lawful chin on the point of his bayonet Orders. The paramount article of the because he knows, if he nods, he Uniform Code of Military Justice which risks the lives of the men sleeping highlights and enforces the heart of the behind him ... at some stage in military ethic is article 92: all wars, armies have let their Any person subject to this chapter discipline sag, but they have never who (1) violates or fails to obey won victory until they made it 5 any lawful general order or regula­ taut again; nor will they. 0 tion; (2) having knowledge of any The concept of obedience underlies other lawful order issued by a discipline. A failure to obey a lawful member of the armed forces, command could easily jeopardize the which it is his duty to obey, fails lives of men, the success of a mission, to obey the order; or (3) is and, if widespread, the organization derelict in the performance of his itself. The purpose of article 92 is quite duties; shall be punished as a clear. Men and women recruited from court-martial may direct.4 9 the wide spectrum of American society Obedience to orders is the sine qua must be taught to obey the orders of non to discipline; and without discipline their superiors. In the heat of combat or all aspects of the military ethic fail. To a even in a hostile environment, ordinary military lawyer, the military ethic and sanctions and exhortations may be its conceptual underpinnings are em­ neither sufficient nor effective to bodied in the term "discipline." Field enforce the military value system on the Marshall Slim has stated the necessity members of the organization. It is only for discipline in a : through long years of training and The more modem war becomes, associations with comrades and units the more essential appear the that service members learn to overcome, basic qualities that from the be­ to varying degrees, their natural in­ ginnings of history have distin­ stincts of self-preservation. The preser­ guished armies from mobs. The vation of all requires the obedience of first of these is discipline. We very all. For these reasons, the law requires soon learned in Burma that strict that.all members of the military society discipline in and in bivouac shall obey lawful commands. was vital, not only for success, but As a general rule, military men and for survival. Nothing is easier in women have a legal duty to obey, and jungle or dispersed fighting than they may be punished if they do not. for a man to shirk. If he has no Article 92 contains an important qualifi­ stomach for advancing, all he has cation: the order must be lawful. The to do is to flop into the under­ problem is that, when a soldier is growth; in retreat, he can slink confronted with an [illegal] order out of the rear guard, join up to perform an act constituting a later, and swear he was the last to criminal offense, the demands of leave. A patrol leader can take his military discipline, as expressed in men a mile into the jungle, hide the duty of obedience to superior there and return with any report orders, come into conflict with he fancies. Only discipline ... can the imperative need to preserve stop that sort of thing; the real the supremacy of the law as 432 manifested in the prescriptions of the commission of and criminal law: military discipline bring about a public out­ requires unflinching compliance cry .... 52 with orders; the supremacy of the Nowhere was this problem more law proscribes the commission of highlighted in American military law criminal acts.5 1 than in the My Lai cases, which pro­ The requirement to obey only lawful duced a massive outpouring of hyper­ orders at first seems to present a con­ bole and hurled invectives by an flict between the values of the military aroused public. These cases arose out ethic and the values of American society of a particularly deplorable act on as reflected in the concept of "Rule of the part of former 1st Lt. William L. Law." In addition to a philosophical Calley and others during operations in problem, there is also a practical one: if the subhamIet of My Lai (4) in Song someone obeys an illegal order and thus My village, Quang Ngai Province, commits a criminal act, he violates other Republic of South Vietnam, on 16 provisions of the UCMJ and may be March 1968. The cases concerned tried and punished for them. If, on the Calley and some of his troops who other hand, he does not obey, he risks did the actual shootings and those being punished "for the violation of who "covered up" the incident. There article 92. Further, were many who charged that if the ... the horns of the dilemma are perpetrators were not punished (all sharp and strong enough to notions of appeared wangle the entire legal system to vanish) then the soldiers would insofar as its theory is concerned: literally be getting away with murder. if a soldier commits an offence in Others asserted that if the soldiers obedience to , and were obeying. orders and if they were is, therefore, criminally indicted, punished, then all other military men or, alternatively, if he refuses to could defy orders with impunity comply with an order to perform thereby breaking down good order an act constituting an offence and and military discipline. is consequently charged before a Not one writer appears to have court-martial-will he be con­ indicated an awareness of American victed or acquitted? If he is military law in this area or that the convicted anyhow, whether he "dilemma" between the law and the commits the criminal act as military ethic had already been recon­ ordered or refrains from doing so, ciled as far as U.S. military forces are the legal system seems to be concerned. It is submitted that the tainted by an iniquitous in­ My Lai cases, posing the problem consistency that is all but in­ they did, were properly and correctly credible. And if the soldier is to resolved by the U.S. Army. incur criminal responsibility for At the time the act was com­ his act only in one of the two mitted, 1st Lt. William L. Calley com­ cases and not in the other, certain manded a platoon in C , 1st difficulties emerge. On the one , 20th , 11th Light hand if the soldier risks his life in Infantry Brigade, in Vietnam. The disobeying superior orders and brigade was a part of the America refusing to carry out the criminal Division which was assigned a tactical act, whereas he is exculpated area of operations along tpe South when the offence is committed by China Sea from Quant Ngai Province him in compliance with the north into Quang Nan Province. Each orders-this solution may incite brigade (there were three) had its 433 own operations area; that of the 11th a general court-martial held at Fort Brigade ran from the Duc Pho District Benning, Ga., of three specifications of north to Binh Son and inland approxi­ premeditated murder and one of assault s mately 30 kilometers. 3 Sometime in with intent to murder in violation of the January 1968, Calley's organization was Uniform Code of Military Justice. He assigned to a composite force known as was sentenced on 31 March 1971 to Barker. This organization dismissal, forfeiture of all pay and was assigned an area of operations allowances, and confinement at hard known as Muscatine. 'The units of Task labor for life. 'The general court-martial Force Barker drew fire from enemy convening authority, in his review of the forces in the Muscatine area which case, approved the dismissal and the would then withdraw south. After the forfeitures, but he reduced the confine­ Tet in February 1%8, Task ment portion of the sentence to 20 Force Barker extended its operations years. Calley appealed his conviction on southward, enbracing the Son My vil­ grounds alleging numerous irregularities lage, because intelligence reports had occurring at and during the trial. 'The indicated that the 48th Vietcong Bat­ issues raised by Calley were resolved talion had its base in the My Lai area of against him by the Army Court of Song My. Sweeps into the area by the Military Review; that opinion was sus­ Task Force were only moderately suc­ tained by the United States Court of cessful. Although Calley's unit had not Military Appeals. experienced much combat prior to 16 'The significant point here is that March 1 %8, it did sustain casualties among the arguments of extraordinary from mines and booby traps. scope employed by Calley's attorneys, On 15 March 1%8, Captain Medina, one factor directly highlighted the the commander of Calley's company, apparent conflict between the military was notified that the company would be ethic of obedience to orders and the law involved in an offensive action in the proscribing murder. Assuming arguendo, My Lai area the following day. Medina that an order was received by Calley to briefed his company that evening about "waste" everybody in My Lai, was he the area, the mission, resistance to be justified in heeding such an order? expected from the 48th VC Battalion, Indeed, is there a basic onflict at all and other pertinent matters. Calley between civilian notions of and argued later that Medina ordered him the obedience to orders? and others to "waste them," referring to 'The villagers had a right to life, and the villagers. 5 4 Nevertheless, the com­ any order to kill them, so long as they pany engaged in the My Lai operations were noncombatants and not bellig­ on the 16th of March without receiving erents, was patently illegal. 'The fact any fire. No mines or booby traps were that the inhabitants of My Lai sympa­ detonated, and the only unit casualty thized with the Vietcong is not im­ on that day was a self-inflicted wound. portant so long as they were not at the In the My Lai (4) area only unwarned, time of the Muscatine operation en­ unresisting, and frightened old men, gaging in hostile actions against Calley's women, and children were encountered platoon. Even if some of the villagers -no enemy units. Yet, the had previously engaged in hostile opera­ conclusively showed that Calley and tions, the wanton killing of the villagers some members of his platoon, at his in response to the "presumed delicts of urging, shot villagers and herded others a few is not a lawful response to the into a ditch on the eastern boundary of delicts. ,,57 Further, reprisal, if indeed My Lai (4) and murdered them.s 5 this was Calley's intent, by "summary CalleyS 6 was tried and convicted by execution of the helpless is forbidden in 434 the laws of land warfare"s 8 which are a light favorable to him, and to demand part of the laws governing the American that guilt be proved beyond a reason­ Armed Forces and have been for numer­ able doubt is a proper and a practical S ous years. 9 Thus, there can be no way of reconciling the law and the question that any orders to execute ethic.63 summarily innocent civilians or those The military ethic is also reconciled eligible for prisoner-of-war are with civilian notions of justice because illegal violations of American military orders are presumed to be valid, and law. Such orders are not within the an accused who disobeys an order has or bit of article 92.6 0 the burden of proving illegality.64 If a The fact that Calley alleged that he soldier believes that the order is was ordered to do what he did raises the ambiguous, he is obliged to seek question of whether he could defend his clarification from the superior who action by asserting that, ethically, issued the order. If the order is illegal, obedience of superior orders was de­ then he "must try to have the order manded of him. Obedience to an un­ rescinded, disregard the order if the lawful order is not a defense in the trial superior persists, and also report the of any accused unless he did not know, incident to higher headquarters or an and could not reasonably have been alternative source.,,6 5 There was no expected to know, that the order was evidence anywhere in the Calley case 6 unlawful. 1 Realizing that this issue that he questioned the presumed order could become one that is difficult to of Captain Medina, assuming, as the resolve, given the dynamics of combat author emphatically does not, that the and the ethical norm demanding obedi­ order could be considered valid. Yet, ence, the Army specifically permits the Calley should have known that killing determination of legality to be made by unarmed, unresisting men, women, and courts-martial. Field Manual 27-10, The children was illegal. Neither the mili­ Law of Land Warfare states: tary ethic nor the law requires that b. In considering the question soldiers act as automatons in obeying whether a superior order consti­ orders. American servicemembers are tutes a valid defense, the court expected to respond to orders as shall take into consideration the persons imbued with our basic societal fact that obedience to lawful mili­ values (taught them in our military and tary orders is the duty of every civilian schools, the home, and the member of the armed forces; that church). The military court took this the latter cannot be expected, in into account in reaching its deter­ conditions of war discipline, to mination and found Calley's action as weigh scrupulously the legal an officer woefully wanting. As the merits of the orders received; that Court of Military Review stated: certain rules of warfare may be We find no impediment to the done in obedience to orders con­ fmdings that appellant acted with ceived as a measure of reprisal. At murderous mens rea, including the same time it must be borne in premeditation. The aggregate of mind that members of the armed all his contentions against the forces are bound to obey only existence of murderous mens rea lawful orders.6 2 is no more absolving than a bare In combat situations great difficulty claim that he did not suspect he can arise in determining the legality of did any wrong act until after the an order. Therefore, permitting a court­ operation, and indeed is not con­ martial to consider all of the attendant vinced of it yet. This is no excuse circumstances, to view the accused in a in law.66 435 Such a reconciliation of law and an officer imposing or con­ military ethic will not breed insubordi­ vening a court. This aspect of unpredict­ nation, because the servicemember is ability would certainly appear to be true bound only to refuse patently illegal in those cases where a breach of a orders or those that he personally custom of the service is charged as an knows are illegal. In cases where legality offense. The Manual for Courts-Martial is blurred, "the responsibility rests with states that: the superior giving the order, not the A breach of a custom of the subordinate who obeys it-he can pre­ service may result in a violation of sume legality until an obviously illegal this clause of Article 134. In its order arises.,,6 7 Therefore, in such cases legal sense of the word "custom" the defense of superior orders would be imports something more than a a legitimate defense for the lower ranks method of procedure or a mode who, in obeying illegal orders, could of conduct or behavior which is contend that they did not know or merely of frequent or usual occur­ could not have known the orders were rence. Custom arises out of long illegal. They are, as a result, ultimately established practices which by protected by the law. common consent have attained the force of law in the mili­ Article 134-The General Article. tary.... A custom which has not The fin~ UCMJ article to be discussed is been adopted by existing article 134, which is known as the or ceases to exist when "general" or "catchall" article. This its observance has been long article is similar in nature to article 133, abandoned 70 which proscribes conduct that is un­ There appears to be a superficial becoming to officers, obviously an justification for the criticism leveled at attempt to set higher standards for the this codal attempt to enforce tradi­ officer corps than for the other ranks. tionally well-known and accepted stand­ Article 134 exists to punish offenses not ards. 71 But close analysis indicates that specifically denounced elsewhere in the civilian standards which require criminal Uniform Code of Military Justice. It is a statutes to be defmite and certain and primary source for the enforcement of to provide for predictability have been the military ethic and, as such, it is a met by the filling-in done by the Court unique tool to maintain and strengthen of Military Review and the Court of discipline. The law embodied in article Military Appeals as well as the guides 134 does not make "every irregular, contained in the appendix to the mischievous, or improper act a Court­ Manual for Courts-Martial. In this martial offense.,,6 8 Rather, it is limited manner, terms such as "customs" or to conduct that is "directly and pal­ "Conduct of a nature to bring discredit pably ... prejudicial to good order and on the armed forces" have been con­ discipline.,,69 tinuously defined and refmed by these Critics have assailed this provision courts in no less a manner than "funda­ and its officer counterpart because, they mental rights" and "due process" have say, there is unpredictability as to what been defined and given substance by the actions are punishable. The critics claim United States Supreme Court.72 there appear to be no objective stand­ Further, if a member of the military ards other than a list of specifically service is charged with a particular denounced offenses, and thus the deter­ violation of a custom or ethic, his mination of what offenses are "pre­ actions must also be shown to be judicial to good order and discipline" prejudicial to good order and discipline are ultimately within the of or to bring discredit to his service. In 436 this regard, the military courts and depend. on a command structure commanders are always influenced by that at times must commit men to such factors as time, location, nature of combat, not only hazarding their offense, and all of the circumstances lives but ultimately involving the surrounding its commission. security of the Nation itself. In two recent cases the constitu­ Speech that is protected in the tionality of these articles was considered civil population may nonetheless in the light of contemporary civilian undermine the effectiveness of standards, and in both cases the courts response to command. If it does, recognized the special nature of the it is consti tu tionally un­ military in assessing its needs for laws protected.74 which implement and enforce the mili­ Finally, in the landmark case of tary ethic. The case of United States v. Capt. Howard Levy,75 the United Priest 73 concerned an enlisted man in States Supreme Court recognized the the Navy who, while on active duty, uniqueness of the military society. Levy edited, published, and distributed an was an Army officer and a physician underground newspaper. As a result of who refused to obey orders to train these activities, he was convicted of two Special Forces. He made public state­ specifications concerning the publica­ ments urging black enlisted men not to tion and distribution of two issues of his go to Vietnam if ordered to do so, and publication with intent to promote dis­ he characterized Special Forces per­ loyalty and disaffection among mem­ sonnel as liars, thieves, killers of peas­ bers of the Armed Forces. These two ants, and murderers of women and issues, in their entirety, contained state­ children. Levy was convicted by a ments disloyal to the United States. The general court-martial, among other Court of Military Appeals found that things, of conduct unbecoming an of­ the pamphlets were not only a call to ficer and gentleman and for disorders action but, in fact, suggested means by and neglects to the prejudice of good which the troops might actively demon­ order and discipline of the Armed strate their own disloyalty and defec­ Forces. He then filed a Writ of Habeas tion, for example, by deserting, by Corpus in the Federal District Court demonstrating in public, and by refusing which denied him relief. However, the promotions. The Court found this type Third Circuit Court of Appeals reversed of activity prejudicial to good order and the District Court, holding that articles military discipline, stating: 133 and 134 were void because of In the armed forces some restric­ vagueness and thereby it applied civilian tions exist for reasons that have concepts of due process to the military no counterpart in the civilian sphere. The case was heard by the community. Disrespectful and Supreme Court with Justice Rehnquist contemptuous speech, even writing the majority view of five mem­ advocacy of violent change, is bers. The Court opined that because of tolerable in the civilian com­ the differentiations between military munity, for it does not directly society and the civilian society, Con­ affect the capacity of the Govern­ gress was permitted to legislate with ment to discharge its responsibili­ greater breadth and flexibility when ties unless it both is directed to prescribing rules governing the military. inciting imminent lawless action Further, neither articles 133 nor 134 of and is likely to produce ac­ the UCMJ were void for vagueness tion .... In military life, however, under the due process clause of the fifth other considerations must be amendment since each article has been weighed. The armed forces construed by military authorities in a 437 manner which narrowed their broad most frequently discussed areas of scope and because considerable speci­ criminal law, that of confessions, the ficity had been supplied, by way of military legal system, since 1951, has examples, over many years. The Su­ provided most of the rights enunciated preme Court indicated that Levy could in Miranda v. Arizona,79 a 1966 case have had no reasonable doubt that his hailed as a landmark in civil rights. The public statements urging black enlisted Miranda decision, the leading case re­ men not to go to Vietnam if ordered to garding the privilege against self­ do so were punishable. The Court, in incrimination during custodial interroga­ effect, recognized that in order to foster tion, held that unless a defendant was orderly and dutiful fighting forces, lee­ advised of his right to remain silent, that way must be granted to incorporate any statement made may be used basic ethical considerations in a criminal against him, and that he has the right to statute. The Supreme Court stated that: be represented by an attorney, the II ••• to maintain the discipline essential may not use any of his to perform its mission effectively, the statements, exculpatory or inculpatory, military has developed what 'may not during the trial. unfitly be called the customary military The military legal system has long law' or general usage of the military required that persons in the . ,,7 6 may not interrogate a suspected or The Supreme Court specifically accused party without first informing recognized that both the fundamental him of the rights stated in the Miranda necessity for obedience and the conse­ decision. In addition, "military law al­ quent necessity to impose and to main­ ready provided that the suspect or tain discipline permits some actions accused could consult the legal advisor which would be constitutionally imper­ to the court-martial authority, a lawyer missible outside a military organization. or his , or of his own choice The Levy case is the best and most before being subjected to interroga­ recent example of the recognition of the tion, ,,80 and this right was formally viability of the military ethic in con­ recognized and given juridical effect in temporary society and its enforcement United States v. Tempia,81 a 1967 case by the use of judicial sanctions. decided by the Court of Military Ap­ peals. Thereafter, all members of the RIGHTS OF MEMBERS uniformed services were to be afforded IN THE ARMED SERVICES the protections announced by the Supreme Court in Miranda. As the What has gone before is not to Court stated: suggest in the least that the military Now, the accused must have a judicial system is void of judicial con­ lawyer; before, he need not have siderations in protecting servicemembers been given one; now, he must be who have violated the UCMJ. Indeed, warned of his right to counsel; civilian influence has been extraordinary before, he need not be so warned; in the area of individual rights con­ and now, finally, he will receive cerning military accused. In many cases effective legal advice not only as the individual servicemember has en­ to what he can do, but also as to 8 joyed greater protection than his civilian what he should do. 2 counterpart. For example, the military Thus, members of the military have a criminal legal system demands that free twofold protection: the specific warning counsel be provided all accused not only requirements afforded under article 31 during interrogation 77 but also during and the general fifth amendment privi­ pretrial" stages. 7 8 Further, in one of the lege against self-incrimination. 438 Members of the armed services have witnesses against him if they are avail­ also been afforded protection from arbi­ able, to present evidence in his own trary referral of charges to general behalf, and to have witnesses testify for courts-martial. Congress has provided him. Hence, not only is there compati­ that before a criminal may be bility with civilian notions of justice and referred" to a trial by a general court, an fair play, the military system has gone officer must be appointed to investigate far beyond civilian requirements and is the charges thoroughly and to recom­ perhaps paving the way in the moderni­ mend formally the disposition of the zation of civilian criminal proceedings. case to the convening authority.83 In Also, civilian standards relating to this article 32 investigation, the investi­ searches and seizures and the right to a gating officer must impartially and speedy trial have been part of the judiciously determine whether the evi­ military criminal law. dence warrants criminal disposition. The military justice system has This investigation is analogous to a traveled a long and sometimes stormy grand proceeding, but there are and misunderstood path. Yet, as this significant differences, the import of brief summary demonstrates, the which is that the military procedure civilian defendant has no rights greater affords greater rights than the grand than his military counterpart. Indeed, in jury. No monitors grand jury many areas the protections afforded by proceedings; furthermore, they are the code and the Manual for Courts­ generally secret. A prosecutor normally Martial exceed those available in civilian guides the grand jury process; and, a criminal courts. Here, clearly, the mili­ grand jury may, within its discretion, tary judicial system has kept ahead of compel the production of evidence or civilian concepts with no apparent detri­ the testimony of witnesses, and its mental effect upon discipline. The process generally is unrestrained by the opinion of Justice Pouglas in O'Calla­ technical procedural and evidentiary han v. Parker85 to the effect that rules which govern criminal . Of courts·martial are not independent in­ paramount importance is that neither struments of justice but are a mechan­ the accused nor his counsel are present ism by which discipline is preserved and during any of the grand jury pro­ are marked by ",,86 ceedings; they may not cross-examine indicates a woeful lack of understanding witnesses or submit any evidence with­ of military criminal law today.87 Con­ out the express approval of the foreman gress has held extensive hearings on the of the grand jury. The proceeding is, in subject of law and discipline and has reality, an ex parte investigation. consulted with numerous authorities. Although the article 32 investigation The UCMJ was enacted specifically to is somewhat similar to a grand jury, meet the needs of the Armed Forces there are distinguishing features which and to guarantee to individual service­ inure to the benefit of a military men and women the profound Ameri­ accused. The investigation provides a can values of justice. It worked during discovery proceeding in which the the Korean and Vietnamese wars. accused may determine the validity of the charges before trial.84 In order to CONCLUSION insure that this is not an empty gesture, the military accused is guaranteed the The military criminal justice system right to be present and to be repre­ is a reinforcement of the military ethic. sented by a qualified attorney during all The Congress, the courts, and the mili­ of the hearings. In addition, the accused tary have continually sought to keep the is granted the right to cross·examine all UCMJ compatible with the military 439 need for discipline and with the basic make the system "work." Balancing rights of all American citizens guaran­ interests has always been a difficult task teed by the Constitution. The Congress for legislators and courts alike. In the has done so through amendment, the area of military justice and discipline, courts' by means of judicial interpreta­ balancing of interests is a constant, tion, and the military by practice and ongoing process. The search for compro­ by proposed changes, such as those mise will continue successfully, so long which resulted in the amendments of as both the civilian and military sectors 1968. continue to understand that one affects What is equally important is that the other and that to be effective the military personnel directly concemed­ military ethic and its codal implementa­ commanders, , and criminal in­ tion must be acceptable to American vestiqators-have continuously tried to society.

NOTES

1. The My Lai incidents, particularly, have added fuel to this fire of public opinion, and a veritable industry now appears to exist in the production of articles, books, and newspaper articles about military criminal law. See, e.g., Robert Sherrill, Military Justice Is to Justice as Military Music Is to Music (New York: Harper & Row, 1970). (Where the court-martial is portrayed as a "Star Chamber" proceeding run by cretins and sadists who convict on the basis of ill-gotten evidence and torture-wrought confessions); Bishop, "Perspective, the Case for Military Justice," 62 Mil. L. Rev. 215 (1973); Pousner, "The Vietnam Veteran Branded by the Numbers," Penthouse, August 1974, p. 57; Mackenzie, "Scope of Decision on Calley Raises Press-Trial Issues," Washington Post, 26 September 1974, p. Al:6. 2. Schiesser and Benson, "Modem Military Justice," 19 Cath. L. Rev. 489,490 (1970). 3. Poydasheff and Suter, "Military Justice?-Definitely!" XLIX Tulane L. Rev. 588 (1975). 4., See O'Callahan v. Parker, 395 US 258 (1969). 5. Glasser, "Justice and Captain Levy," 12 Colum. F. 49 (1969). 6. See, e.g., Gerwig, "Viewpoints of Military Law, Civil and Criminal," 48 Notre Dame Law 509 (1973); Moyer, "Procedural Rights of the Military Accused: Advantages Over a Civilian Defendant," 51 Mil. L. Rev. 1 (1971). 7. See Bishop, p. 221. 8. Uniform Code of Military Justice, hereinafter cited as UCMJ, 10 U.S.C. § 801. The Uniform Code of Military Justice was enacted in 1950 as 64 Stat. 108 (1950). Thereafter it was revised, codified, and enacted into law as part of Title 10, , by the act of 10 August 1956. The latest amendments are co'ntained in the Military Justice Act of 1968, PL 90-632 (82 Stat 1335). 9. Toner, "The Military Ethic: On the Virtue of an Anachronism," Military Review, December 1947, pp. 9,10. 10. Janowitz, "Volunteer Armed Forces and Military Purpose," Foreign Affairs, April 1972, pp. 427, 430. 11. Toth v. Quarles, 350 US 11 (1955). 12.' Toner, p. 14. 13. Ward Just, Military Men (New York: Knopf, 1970), p. 123. 14. Janowitz, p. 440. 15. Parker v. Levy, 417 US 733 (1974). See also United States v. Howe, 37 CMR 429 (1967). 16. 417 US 733. 17. Janowitz, p. 440. 18. United States v. Johnson, 43 CMF 604, 607 (1970) (Finkelstein J. concurring in part and dissenting in part). 19. In re Grimley, 137 US 147 (1890). 20. There are three types of courts martial. The general court-martial is the highest military trial court. It may impose any authorized sentence, including a punitive discharge, reduction in grade, forfeiture of pay, or confinement The special court-martial is the intermediate trial forum. This court may not adjudge confinement in excess of 6 months. However, it may impose a bad 440 conduct discharge 1D. a sentence if the case was recorded verbatim and if a military judge and qualified defense counsel were assigned. The summary court-martial is the lowest trial court and has very limited . It is similar to a hearing before a justice of the . During the tenure of the author as the Staff Judge Advocate at the U.S. Army Engineer Center and Fort Belvoir during 1974-1975, this court was not used. See UCMJ arts. 18-20, U.S.C. §!j 818-20 (1970). 21. The Military Justice Act of 1968, Pub. L. No. 90-632, 92 Stat. 1335 (1969). 22. Patterson opines that in Anglo-American law the law is concerned with nonethical values and stresses the independence of the and "the corresponding limitations of the scope of the judicial function in making new law," as the prime example of this. E.W. Patterson, , Men and Ideas of the Law (Mineola, N.Y.: Foundation Press, Inc. 1953). 23. United Statesv. Voorhees, 16 CMV 83 (1954). 24. 10U.S.C. 888 (1970). 25. 10 U.S.C. § 892 (1970). 26. 10 U.S.C. § 934 (1970). 27. United States v. Howe, 37 CMR 429 (1967). 28. 10 U.S.C. § 933 (1970). 29. 10 U.S.C. § 934 (1970). This charge was dismissed during the court-martial. 30. A dismissal of a commissioned officer is the equivalent of a dishonorable discharge of an enlisted man or warrant officer. 31. In America, the right to criticize the Government is at the heart of our personal liberties protected by the first amendment. Mills v. Alabama, 384 US 214 (1966), wherein it was stated that: There is practically universal agreement that a major purpose of that amendment was to protect the free discussion of government affairs. This, of course, includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. at 218-19. 32. However, the author concurs in the opinion of Chap. (Col.) Kermit D. Johnson, USA, who stated that: "Loyalty, an admirable and necessary qUality within limits, can become all-consuming. It also becomes dangerous when a genuine wholesome loyalty to the boss degenerates into covering up for him, hiding things from him or not differing with him when he is wrong." Johnson, "Ethical Issues of Military Leadership," IV Parameters 36, 37 (1974). 33. For an excellent discussion of the history of article 88, see Kester, "Soldiers Who Insult the President: An Uneasy Look at Article 88 of the Uniform Code of Military Justice," 81 Harvard L. Rev. 1697 (1968). 34. Id., at 1730. 35. Id., at 1731. 36. Id., at 1742. It is beyond the scope of this paper to make an exhaustive review of all of the cases and arguments concerning this punitive article. 37. Poydasheff and Suter. 38. Orloffv. Willoughby, 345 US 83, 94 (1953). 39. Morris Janowitz, The Professional Soldier: A Social and Political Portrait (New York: Free Press, 1960), p. 440. 40. Parker v. Levy, supra, note 15, at 751. 41. Kester, p. 1741. 42. Emerson, "Towards a General Theory of the First Amendment," 72 Yale L.J. 877,918 (1963). 43. US Const. Amend I. "Congress shall make no law .•• abridging the freedom of speech ... " 44. Henderson, "CourtS-Martial and the Constitution: The Original Understanding," 71 Harv. L. Rev. 293 (1957). 45. See, e.g., Warren, "The Bill of Rights and the Military," 37 N.Y.U.L. Rev. 181 (1962); and Vagts, "Free Speech in the Armed Forces," 57 Colum. L. Rev. 187 (1957). 46. See, e.g., Reid v. Covert, 354 US 1 (1957); Toth v. Quarles, 350 US 11 (1955); and O'Callahan v. Parker, 395 US 258 (1969). In United States v. Robel, 389 US 258 (1967), the Court stated: This concept of "national defense" cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term "national defense" is the notion of defending those values and ideals which set this Nation apart •..• It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties .•. which makes the defense of the Nation worthwhile. 441 47. Kester, p. 1742. 48. United States v. Voorhees, 16 CMR 83 (1954). The case of United States v. Priest, 45 CMR 338 (1972), and United States v. Gray, 42 CMR 255 (1970), appear to reinforce the author's view. In Priest the accused was convicted of publishing a newspaper with intent to promote disloyalty among members of the Armed Forces. The balance struck between civilian notions of free speech and the military status was approved in Parker v. Levy, 437 US 733, 758-759. In the Gray case the accused made statements inviting other members of the Marine Corps to join in defiance of military authority. The Court held, inter alia, "speech by a subordinate toward a superior in the military can directly undermine the power of command; such speech therefore exceeds the limits of free speech that is allowable in the armed forces." 49. 10 U.S.C. § 892 (1970). 50. Field Marshal Slim, Defeat into Victory (London: Cassell, 1950) at 451. 51. Yoran Dinstein, The Defense of 'Obedience to Superior Orders' in (Leyden: Sijthoft, 1955), at 6. . 52. Id., at 7. 53. United States v. Calley, CM 426402, 46 CMR 1164 (1973), affmd., 22 USCMA 534, 48 CMR 19 (1973). 54. United States v. Calley, CM 426402, 46 CMR at 1180 (1973). 55. The best source of the evidence is contained in the Peers Report, compiled by a military factfinding group headed by retired Lieutenant General Peers. Although the author had access to that report, no facts or statements from that report have been utilized in this paper; rather, the primary source for this material is the cited cases. 56. United States v. Calley, CM 426402,46 CMR 1131 (1973), affmd., 22 USCMA 534, 48 CMR 19 (1973). 57. United States v. Calley, supra, at 1174. 58. Id. 59. See, e.g., Field Manual 27-10, The Law of Land Warfare (July 1956); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 UST 3316, TIAS No. 3364,75 UNTS 135 (1956). 60. United States v. Marsh, 3 USCMA 48, 11 CMR 48 (1953); United States v. Trani, 1 USCMA 293, 3 CMR 27 (1952). 61. Field Manual 27-10, para. 509. See generally, Paust, "My Lai and Vietnam: Norms, Myths and Leader Responsibility," 57 Mil. L. Rev. 99 (1972). 62. Field Manual 27-10. 63. Toner, p. 15. 64. United States v. Trani, supra, note 60. 65. Paust, p. 171. 66. United States v. Calley, supra, note 57, at 1184. 67. Paust, p. 172. 68. United States v. Sadinsky, 14 USCMA 563, 565, 34 CMR 343, 345 (1964). 69. United States v. Holiday, 4 USCMA 454, 456, 16 CMR 28, 30 (1954). 70. Para. 213b, MCM, 1969 (Rev.). 71. United Statesv. Smart, 12 CMR 826 (1953). 72. An exploration of all of the cases defining military custom, service discrediting conduct, or conduct prejudicial to good order and discipline is beyond the scope of this paper. For a good discussion, see, e.g., William W. Winthrop, Military Law and , 2d ed. (Washington: U.S. Govt. Print. Off., 1896; 1920 reprint); and M. Moyer, Justice and the Military (Washington, D.C.: Ed. Inst., 1972). 73. 21 USCMA 564, 45 CMR 338 (1972). 74. Id., at 344; accord., United Statesv. Harvey, 19 USCMA 539,42 CMR 141 (1971). 75. Parker v. Levy, supra, note 15. The court-martial review by the Court of Military Appeals in United States v. Levy, 39 CMR 672 (1968), pet. for rev. denied, 18 USCMA 627 (1969). 76. 417 US 733, at 744. 77. Military law provides an accused with the same right to counsel as that recognized by civilian courts. United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967). 78. UCMJ Art. 32, 10 U.S.C. § 822 (1970). The accused is entitled to representation by an attorney throughout the entire pretrial hearings. United States v. Tomaszewski, 8 USCMA 266, 24 CMR 76 (1957), a decision that predated by 6 years the Supreme Court's decision in Gideon v. Wainwright, 372 US 335 (1963); and by 15 years that Court's decision in Argersinger v. Hamlin, 407 US 25 (1972) which postulates that absent a waiver, no person may be imprisoned for any offense unless he was represented by counsel at trial. 442

79. 384 US 436 (1966). 80. Quinn, "Some Comparisons Between Courts-Martial and Civilian Practice," 15 UCLA L. Rev. 1240, 1243 (1968), referring to United States v. Gunnels, 8 USCMA 130, 23 CMR 354 (1957). 81. 16 USCMA 629, 37 CMR 249 (1967). 82. Id., at 640 and 260. 83. UCMJ Art. 32, 10 U.S.C. § 832 (1970). The convening authority is the commander of the organization authorized to convene a court-martial. 84. See United States v. Cot., 48 CMR 723 (1974); United States v. Samuels, 10 USCMA 206,27 CMR 280 (1959). 85. 395 US 258 (1969). 86. Id., at 265-77. 87. Strassburg, "Civilian of MilitaryCriminal Justice," 66 Mil. L. Rev. 1 (1974). ----'¥----