DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-21 MILITARY LAW REVIEW Articles KIDNAPPISG AS A 1IIILITARY OFFENSE Major hfelburn N. washburn RELA TI OX S HIP BETTYEE?; A4PPOISTED AND INDI T’IDUAL DEFENSE COUNSEL Lievtenant Commander James D. Nrilder COI~1KTATIONOF SIILITARY SENTENCES Milton G. Gershenson LEGAL ASPECTS OF MILITARY OPERATIONS IN COUNTERINSURGENCY Major Joseph B. Kelly SWISS MILITARY JUSTICE Rene‘ Depierre Comments 1NTERROC;ATION UNDER THE 1949 PRISOKERS OF TT-AR CON-EKTIO?; ONE HLSDREClTH ANNIS’ERSARY OF THE LIEBER CODE HEA,DQUARTERS, DEPARTMENT OF THE ARMY JULY 1963 PREFACE The Milita.ry 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 Jli7itm~Law Review does not purport tg promulgate Depart- ment 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 spnced, to the Editor, MiZitary Law Review. The Judge Advo- cate General’s School, US. Army, Charlottewille, Virginia. Foot- notes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvard Blue Rook. This Review may be cited as 21 MIL. 1,. REV. (number of page) (1963) (DA Pam 27-100-21,l July 1963). For sale by the Superintendent of Documents, United States Gov- ernment Printing Office, Washington, D.C., 20402. Price $0.75 (single copy). Subscription price : $2.50 a year ; $0.75 additional for foreign mailing. 688-830 0-661 1 JOSEPH HOLT Judge Advocate General 1862-1875 While prior judge advocates of the Army are included in the lists of Judge Advocates General of the Army, the statutory office of The Judge Advocate General of the Army did not exist until the passage of Section 5, Act of 17 July 1862 (12 Stat. 598). The impor- tance attached to the office at that time is attested to by the man President Lincoln selected as its occupant-Joseph Holt of Kentucky, eminent statesman, lawyer, and orator. General Holt was born in Breckenridge County, Kentucky, on January 6, 1807, and was educated at Saint Joseph’s College and Centre College, both in Kentucky. As was customary at that time, he read law in a law office and, in 1828, began his practice. For the next 20 years he practiced law in Kentucky and Mississippi, distin- guishing himself in both states. In 1836 he achieved national fame as an orator at the Democratic National Convention by virtue of his oratory on behalf of the Vice-presidential candidate. After having spent nine years in Europe, General Holt returned to Washington in 1857. President Buchanan appointed him Com- missioner of Patents in that year, Postmaster General in 1859, and Secretary of War the following year, a position he held until Presi- dent Lincoln took office in 1861. In 1862 President Lincoln appointed Joseph Holt Judge Advocate General of the Army with the rank of colonel and, in 1864, he was elevated to the rank of brigadier general and became the first general officer to head the office of The Judge Ad- vocate General, an office he held until 1875. General Holt attached such importance to his office that he declined tenders of the offices of Attorney General by President Lincoln and Secretary of War by Presi- dent Grant. He was prominent in many military trials, notably the trial of President Lincoln’s assassins. For his faithful and meritorious service during the Civil War, he mas brevetted a major general. In 1875 General Holt was retired at his own requwt and took up residence in the District of Columbia until his death in 1894 at the age of 87. iii Pam 27-100-21 PAMPHLET HEADQUARTERS, DEPARTMENT OF THE ARMY NO. 27-100-21 WASHINGTON, D.C., 1 July 1963 MILITARY LAW REVIEW Articles: Kidnapping As A Military Offense Page Major Melburn N. Washburn ..................... 1 Relationship Between Appointed and Individual Defense Counsel Lieutenant Commander James D. Wilder _____ _ _ _ _ _ _ 37 Commutation of Military Sentences Milton G. Gershenson. _ - ________________________ 65 Legal Aspects of Military Operations in Counterinsur- gency Major Joseph B. Kelly ___________________________95 Swiss Military Justice RenQDepierre - - _ - _ _ _ - _ _ - - _ _ _ __ _ _ _ _ __ - _ _ - __ - _ _ _ _ 123 Comments: Interrogation Under the 1949 Prisoners of War Convention (First Lieutenant Stanley J. Glod and First Lieuten- ant Lawrence J. Smith) ________________________145 One Hundredth Anniversary of the Lieber Code (Captain William S. Shepard) ____ __ ____ ______ __ - _ _ 157 V KIDNAPPING AS A MILITARY OFFENSE* BY MAJOR MELBURNN. WASHBURN** I. INTRODUCTION In 1960, two prisoners escaping from a military stockade at Fort Carson, Colorado, kidnapped a pard. Their subsequent trial by general court-martial started a judicial process culminating in hold- ings by the United States Court of Military Appeals that the offense of kidnapping, in violation of Colorado statutes, is also an offense under the Uniform Code of Military Justice.2 The opinions in these cases focused the attention of military lawyers on general considera- tions of kidnapping as an offense triable before military courts under military law. Although such offenses at one time had been prosecuted under the Articles of War,3 this was the first conviction under the Uniform Code of Military Justice. There can be little doubt that such offenses have occurred since enactment of the Code. That they were not tried as kidnapping was probably because they involved other offenses which were proscribed, either specifically or by custom, by military law and because of the lawyer’s natural reluctance to face appellate tribunals on new issues when old principles, perhaps somewhat inadequate but already tested in the appellate crucible, are available for use. Whatever may have been the reason for disinclination of the military to make use of the various legislative enactments against kidnapping, it has been overcome. The wall having been breached, a second case has followed the first into the field and together they appear to have established a firm foothold in military criminal law. It is the purpose of this article generally to discuss the nature of this new tool of military law-its background, its future, its uses, *This article was adapted from a thesis presented to The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, while the autbor was a member of the Tenth Career Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other government agency. **JAGC, U.S. Army ; Office of the Division Staff Judge Advocate, Headquarters Seventh Infantry Division (Korea) ; LL. B., 1949, University of Missouri ; Mem- ber of the Missouri Bar. United States v. Picotte, 12 USCMA 196, 30 CMR 196, and United States v. Wright, 12 USCMA 202,30 CMR 202 (1961). a Art. 134, UCMJ ; 10 U.S.C. g 934 (1958). ‘See e.g., CM 212505, Tipton, 10 BR 237 (1939) ; CM 328876, Mullarkey, 77 BR 247 (1948). ‘ See United States v. Harkcom, 12 USCMA 257,30 CMR 257 (1961). 1 MILITARY LAW REVIEW and its limitations. What is intended is not an exliniistire study of the oflense, hut rather a base upon which the practicing militnry attorney can build. 11. HISTORY OF THE OFFEKSE A. GEIERAL In tlie early societies, slavery was a predominant institution, and kidnapping n-as linked to slave trade. With tlie rise of feudalism, the nature of the offense changed and only with the growth of capital- ism has the offense we commonly think of as kidnapping come into being. Blthough man has al~raysseized and made off with his brethren for one reason or another, there is no common thread by which one his- torical form of the offense may be linked to another except that of human greed. B. THE HEBREW LAW In the Hebrew law “manstealing” was a capital offeii~e.~However, the proscription was somevhat limited in its application, having as its object protection of Hebrews from being stolen from their homes and enslaved.6 By its terms, the prohibition applied only to tlie tak- ing of Hebrews. Capture and enslavement of members of other nations were not proscribed. Presumably, the head of a household could sell his own sons and daughters with impunity,‘ and the one sold was bound to service sub- ject to certain laws governing treatment snd length of service8 It may be concluded that the prohibition against “manstealing“ did not apply to the stealing of women. As other laws dealing with servitude refer expressly to male and female,9 the omission of the female from the protection of this earliest of kidnapping laws was apparently intentional. C. BABYLONIAL1’ LAW The law of Babylon, set forth in the famous Code of Hamniurdbi,l“ provided that : If a man steal a man’s son, who is a niinor, he shall be put to death.” Exodus 21 :16 ; Deuteronomy 24 :7. Deuteronomy 24 :7, “If a man be found stealing any of his brethren of the children of Israel, and maketh merchandise of him, or selleth him; then that thief shall die; .