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"Forum Panelists Praise Military
Justice"
Harvard Law
Record - November 24, 1966
By Steven Goddard
reprinted by permission
"Yes, there is justice in the military," asserted Colonel Pell, head of Army ROTC at Harvard, to the small band of loyal Forum supporters in attendance at Lowell Lecture Hall Friday night, Nov. 18th. In fact, it was asserted, there is often more military justice than civilian justice.
In his introduction Colonel Pell outlined the main plan of the present Uniform Code of Military Justice, enacted in 1951. The offenses are dealt with by four tribunals, each having its own jurisdiction depending on the severity of the punishment to be imposed.
Minor crimes are dealt with by a Field commander under Article 15 of the Code. Colonel Pell, himself a field-grade infantry officer, explained the disciplinary actions under Article 15 were instructional and preventive measures, with a week's confinement the maximum punishment allowed. If the accused is dissatisfied with his treatment he can demand a court martial.
"The military has a system of three levels of court martials," Colonel Pell explained, "the summary, the special, and the general court martial. The courts have one, three, and five officers as judges respectively."
Rear Admiral Hearn, Judge Advocate General of the Navy, then defined justice as "merited reward or punishment", and explained why applying this standard was much more difficult under military conditions.
"A military man," he said, "is not free to live where he pleases, quit if he pleases, or cuss his boss." He explained that while sleeping on the job in civilian life might be owned upon, in the military it could result in many men being killed. In comparing civilian and military justice, Admiral Hearn analyzed the protections given in both systems for Fourth, Fifth and Sixth Amendment rights.
Presentment Protected
"Under the Code," Admiral Hearn stated, "the men are free from unreasonable searches as guaranteed by the Fourth Amendment. A search can be made only by authorization after due cause has been shown."
As to the protection of presentment rights under the Fifth Amendment, he cited Article 34 of the Code. "This article provides for full investigation before court martial proceedings are begun.
"Not until the the 1964 Mallory decision did the accused in state courts have the same protections against self-incrimination provided the military man by the Code since 1786," Admiral Hearn noted. He also demonstrated that the military more closely follows the commands of the Sixth Amendment as to speedy trials.
Effective Appeal Procedure
Brigadier General Hodson represented the Army JAG Corps. He pointed out the provisions of the Uniform Military Code, drafted mainly by Professor Edward Morgan, Jr., of the Law School, provided for more effective appeal procedures than the civilian counter-part.
"All court martials are reviewed at least once," General Hodson asserted, "and punishments of a dishonorable discharge or worse are reviewed twice as a matter of course."
"The protection against double jeopardy is much more effective than in the states," he continued. "No man is tried twice on the same matter, and the appellate courts can reduce the sentence, but not increase it."
Warren Farr, an attorney for Ropes & Gray in Boston and an ex-JAG officer, was then given the opportunity for rebuttal. He explained that the system was essentially fair, but that miscarriages of justice are due to the failings of the men administering it.
He thought the greatest opportunities for abuse were under Article 15 procedures, or the summary court martials. Both leave judgment of guilt and deserved punishment to one person with little opportunity for review, he noted.