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The Armylawyer THE ARMY LAWYER ARTICLES Communication is the Key—Tips for the Judge Advocate, Staff Officer and Leader Brigadier General Charles N. Pede Deadly Advice: Judge Advocates and Joint Targeting Major James A. Burkart, USMC The Long, Hot Summer: Active Duty Support to Wildland Fire Fighting Operations Captain Matt D. Montazzoli Realizing a Dream: Expedited Paths to Citizenship for Servicemembers Major Kurt M. Rowland TJAGLCS FEATURES Lore of the Corps The First Manual for Courts-Martial BOOK REVIEWS Dies Irae: Day of Wrath Reviewed by Lieutenant Commander Aaron J. Casavant, USCG Lincoln’s Code: The Laws of War in American History Reviewed by Lieutenant Andrea M. Logan, USN Judge Advocate General’s Corps Bulletin 27-50-16-06 June 2016 Editor, Captain Cory T. Scarpella Contributing Editor, Major Laura A. O’Donnell Legal Editor, Mr. Sean P. Lyons The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly Authors should revise their own writing before submitting it for by The Judge Advocate General’s Legal Center and School, Charlottesville, publication, to ensure both accuracy and readability. The style guidance in Virginia, for the official use of Army lawyers in the performance of their legal paragraph 1-36 of Army Regulation 25-50, Preparing and Managing responsibilities. Correspondence, is extremely helpful. Good writing for The Army Lawyer is concise, organized, and right to the point. It favors short sentences over The opinions expressed by the authors in the articles do not necessarily long and active voice over passive. The proper length of an article for The reflect the view of the Department of Defense, the Department of the Army, Army Lawyer is “long enough to get the information across to the reader, and The Judge Advocate General’s Corps (JAGC), The Judge Advocate General’s not one page longer.” Legal Center and School, or any other governmental or non-governmental agency. Masculine or feminine pronouns appearing in this pamphlet refer to Other useful guidance may be found in Strunk and White, The Elements both genders unless the context indicates another use. of Style, and the Texas Law Review, Manual on Usage & Style. Authors should follow The Bluebook: A Uniform System of Citation (20th ed. 2015) The Editorial Board of The Army Lawyer includes the Chair, Administrative and the Military Citation Guide (TJAGLCS, 20th ed. 2015). No and Civil Law Department, and the Director, Professional Communications compensation can be paid for articles. Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge The Army Lawyer may make necessary revisions or deletions without Advocate General’s School, U.S. Army. prior permission of the author. An author is responsible for the accuracy of the author’s work, including citations and footnotes. Unless expressly noted in an article, all articles are works of the U.S. Government in which no copyright subsists. Where copyright is indicated in The Army Lawyer articles are indexed in the Index to Legal Periodicals, an article, all further rights are reserved to the article’s author. the Current Law Index, the Legal Resources Index, and the Index to U.S. Government Periodicals. The Army Lawyer is also available in the Judge The Army Lawyer accepts articles that are useful and informative to Army Advocate General’s Corps electronic reference library and can be accessed lawyers. This includes any subset of Army lawyers, from new legal assistance on the World Wide Web by registered users at http:// attorneys to staff judge advocates and military judges. The Army Lawyer strives www.jagcnet.army.mil/ArmyLawyer and at the Library of Congress website to cover topics that come up recurrently and are of interest to the Army JAGC. at http://www.loc.gov/rr/frd/MilitaryLaw/Army_Lawyer.html. Prospective authors should search recent issues of The Army Lawyer to see if their topics have been covered recently. Articles may be cited as: [author’s name], [article title in italics], ARMY LAW., [date], at [first page of article], [pincite]. Lore of the Corps The First Manual for Courts-Martial ................................................................................................. 1 Articles Communication is the Key—Tips for the Judge Advocate, Staff Officer and Leader Brigadier General Charles N. Pede .................................................................................................. 4 Deadly Advice: Judge Advocates and Joint Targeting Major James A. Burkart, USMC ......................................................................................................10 The Long, Hot Summer: Active Duty Support to Wildland Fire Fighting Operations Captain Matt D. Montazzoli ............................................................................................................25 Realizing a Dream: Expedited Paths to Citizenship for Servicemembers Major Kurt M. Rowland ..................................................................................................................37 TJAGLCS Features Book Reviews Dies Irae: Day of Wrath Reviewed by Lieutenant Commander Aaron J. Casavant, USCG ....................................................47 Lincoln’s Code: The Laws of War in American History Reviewed by Lieutenant Andrea M. Logan, USN ............................................................................51 JUNE 2016 • THE ARMY LAWYER • JAG CORPS BULLETIN 27-50-16-06 Lore of the Corps The First Manual for Courts-Martial By Fred L. Borch Regimental Historian & Archivist While military legal practitioners today assume that there It was not until 1886, when then Lieutenant Colonel has always been a manual to guide those prosecuting, William Winthrop published his two-volume Military Law defending, and judging courts-martial, nothing could be and Precedents, that judge advocates in the field had any further from the truth: It was not until 1895 that an official authoritative source. However, Winthrop’s treatise was Manual for Courts-Martial was published by the Army. mostly about military law; it provided no practical guidance What follows is the history of that first Manual. for the line officer tasked with prosecuting a court-martial or serving as a member at a Although the Continental general, garrison or Congress adopted sixty-nine regimental court. To meet this articles for the regulation of need, First Lieutenant (1LT) the Army during the Arthur Murray, a Field Revolution, and the new U.S. Artillery officer stationed at Congress exercised its power Fort Leavenworth, wrote under Article 1, Section 8 to “Instructions for Courts- enact the first American Martial and Judge Articles of War in 1806, there Advocates,” which was was little in the way of written published as Circular No. 8, guidance or procedure that Headquarters, Department of governed how a court-martial Missouri, on July 11, 1889.5 should operate. The 1863 Murray had previously served Articles of War, for example, as the Acting Judge Advocate provided only that a general for the Department of court-martial should consist of Missouri in 1887 and “any number of consequently had commissioned officers, from considerable experience with five to thirteen”1 (with courts-martial and the Articles thirteen preferred) and that the of War.6 judge advocate “shall prosecute in the name of the In 1890, Murray turned United States” but also his ‘Instructions’ into a small “consider himself counsel” for four-inch by-five-inch the accused.2 Persons giving “pamphlet.”7 He then had it evidence before the court commercially published by a were “to be examined on oath New York firm as “A Manual or affirmation,”3 and the judge A Manual for Courts-Martial, 1893 for Courts-Martial.” After advocate was required “to object to any rearranging and enlarging his original leading questions” and to prevent the accused from answering work, Murray published a second edition in 1891 and a third questions “which might tend to criminate (sic) himself.”4 But edition in 1893.8 These were greatly improved versions of his there were no provisions in the Articles of War governing the original manual, as he had obtained input from members of admission of hearsay, or elements of proof in a substantive the Judge Advocate General’s Department (JAGD), including offense, much less any guidance on how to draft a charge Captain E. H. Crowder, Major George B. Davis, Colonel sheet or court-martial convening orders. (COL) Thomas F. Barr, and COL G. Norman Lieber, the 1 U.S. WAR DEP’T, ARTICLES OF WAR ART. 64 (Stackpole Books 2005) 5 THE JUDGE ADVOCATE GEN.’S CORPS, THE ARMY LAWYER: A HISTORY (1863). OF THE JUDGE ADVOCATE GENERAL’S CORPS, 1775-1975, at 95 (1975). 2 Id. at Art. 69. 6 ARTHUR MURRAY, A MANUAL FOR COURTS-MARTIAL pt. IV (3d ed. 1893), https://www.loc.gov/rr/frd/Military_Law/pdf/manual-1893.pdf. 3 Id. at Art. 73. 7 Id. pt. III. 4 U.S. WAR DEP’T, supra note 2. 8 Id. JUNE 2016 • THE ARMY LAWYER • JAG CORPS BULLETIN 27-50-16-06 1 Acting Judge Advocate General (JAG).9 Since Crowder, While there was no formal discussion of evidence, Davis, and Barr later served at the highest ranks of the JAGD, Murray did write that a court should always use the “best Murray’s manual was reaching an important and influential evidence obtainable” and he insisted that “hearsay evidence audience.10 is inadmissible.”13 He also advised that documentary evidence was “only admissible when its authenticity has been established by sworn testimony, or the seal of a court record, or when its authenticity is admitted by the accused.”14 A Manual for Courts-Martial also had sections discussing credibility of witnesses,15 proof of intent,16 and findings17 and punishments.18 While there was no discussion of the elements of proof required for an offense, the “General Forms” at the back of the booklet provided sample specifications for common offenses such as larceny, desertion, fraudulent enlistment, drunk and disorderly, and conduct prejudicial to good order and military discipline.19 These sample specifications, like those in Part IV of today’s Manual for Courts-Martial necessarily covered the elements that must be proved for a conviction.20 Murray’s Manual received high praise.
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