The Army Lawyer
A Courts-Martial Revolution
How the Military Justice Act of 1968 Turned Military Criminal Law Upside Down
|A judge advocate captain serves as a military judge at a special court-martial, Vietnam, circa 1969-70. The Army tried more than 59,000 courts-martial in 1969 (Photo courtesy of JAGC’s Regimental Historian & Archivist’s office).|
On 24 October 1968, President Lyndon B. Johnson (LBJ) signed the Military Justice Act of 1968 into law. The legislation was the culmination of efforts to amend the Uniform Code of Military Justice (UCMJ) that had been underway almost as soon as the code was enacted in 1950. Now, with the reforms ushered in by President Johnson’s signature, courts-martial were about to experience a second revolution in less than twenty years. The first revolution had been the creation of a single military criminal code in 1950, that was uniformly applicable to all the services; a remarkable achievement in every respect.1 This second revolution in 1968 was no less remarkable and, as it occurred fifty years ago when LBJ put pen to paper, now is the time to tell the story of how it happened and how it turned military criminal law upside down.
Starting in the early 1960s, Senator Sam Ervin2 of North Carolina, head of the Subcommittee on Constitutional Rights (part of the Senate Judiciary Committee), began hearing complaints from Soldiers about injustices they had suffered under the UCMJ. At the time, there was no judge advocate involvement at special courts-martial (line officers served as trial and defense counsel in the proceedings) and more than a few Soldiers complained about arbitrary and capricious treatment at this level of courts-martial. Even at general courts-martial, non-lawyer decision-making dominated the process and, while legally qualified counsel prosecuted and defended at this level of the process, the law officer (the forerunner of today’s military judge) had only limited powers.3 There was, for example, no option for a trial by judge alone; all courts-martial were tried by panels. This meant that there could be no judge alone sentencing either; all punishments were imposed by panels.
Senator Ervin became convinced that courts-martial would be fairer if they were more like civilian courts. Prior to 1966, he introduced eighteen separate pieces of legislation that would have amended the UCMJ. Most of these bills had the goal of reducing, if not eliminating, the role of non-lawyers in the military justice system. In Senator Ervin’s opinion, the court-martial process would be better if administered by uniformed lawyers.4
At the beginning of the ninetieth Congress, which was in session from 1967 to 1969, Senator Ervin combined all previous UCMJ legislation into a single bill, which he introduced into the Senate. Since the Department of Defense (DoD) opposed most of the changes in Ervin’s single bill, their supporters on the Senate Armed Services Committee blocked action on the bill.5
Ervin’s allies in the House of Representatives now took a new approach: They introduced legislation in the House containing only those reforms in Ervin’s Senate legislation that were acceptable to the DoD. As most of these reforms were “designed principally to increase the participation of military lawyers in [special] courts-martial,” there was little objection to them. After all, since special courts-martial had no lawyer involvement, it was hard to argue against injecting at least some judge advocate involvement in the process, especially when a Soldier might be sentenced to six months confinement by a special court.6
When this House legislation reached the Senate in June 1968, Senator Ervin immediately began amending the House-passed bill so that the bill would have “the minimum reforms necessary to any meaningful legislation.”7
At this point in the process, Senator Ervin was aided by a fortuitous event: Major General Kenneth J. Hodson, who had only recently become The Judge Advocate General of the Army, was the DoD’s representative in negotiations on Ervin’s Senate reforms. General Hodson, who had a strong background in military criminal law, agreed with most of Ervin’s reforms, and he seems to have convinced other DoD officials to accept the legislation.8 As General Hodson later recalled, the final bill was “the best bill we could get at the time . . . but [it] was worth the effort, because without it, we would have had an extremely difficult time handling the sophisticated problems that came to us in the My Lai cases.”9
The end result was that the Senate Armed Services Committee accepted the amended legislation. After the bill was reported out of committee, both the House of Representative and the Senate adopted it on a voice vote (without any dissent) in early October 1968. President Johnson signed the Military Justice Act in a White House ceremony on 24 October 1968.
The new legislation was a revolution in courts-martial practice and procedure. The law officer—the quasi-judge official created by the original UCMJ in 1950—was now renamed the “military judge,” and he was given new authority that made him comparable to a civilian judge. The most remarkable change was that the new military judge, who presided over all general and special courts-martial, had the authority to try the case by himself. No longer would guilt or innocence be determined exclusively by a panel of non-lawyers. Rather, if the accused, knowing the identity of the judge (and after consultation with defense counsel), requested in writing that the court be composed of military judge alone, then both findings and sentence would be decided solely by that judge.10
But the Military Justice Act also gave the judge other powers that previously had been performed by the court-martial panel. For the first time, the judge had the power to call the court into session without the attendance of the panel members, for the purpose of deciding interlocutory motions, and motions raising defenses and objections. The judge also could arraign the accused and receive his plea. Also for the first time, the judge was given the authority to decide challenges for cause against panel members; previously, the court itself had voted on challenges to its own membership.11
Another provision of the Act required that The Judge Advocate General of each service create a field judiciary from which military judges would be assigned to courts-martial. Prior to this time, all judge advocates serving as law officers had been part of the convening authority’s command (and assigned to the staff judge advocate’s office). Requiring a field judiciary meant that judges were now truly independent from the local command, as they were not rated by a commander or convening authority. While the Army and the Navy had already established field judiciaries prior to October 1968, the new legislation guaranteed that military judges from all the services would be independent of the convening authority. Finally, in the Army at least, military judges began wearing black robes and were addressed as “Your Honor.”12
Special courts-martial also underwent additional unprecedented changes. While Senator Ervin’s legislation did not require that the trial and defense counsel at special courts-martial be licensed attorneys, the new law provided that the accused “shall be afforded an opportunity to be represented” by a lawyer at a trial by special court-martial. There was only one exception: if “physical conditions” or “military exigencies” meant that counsel “having such qualifications” could not be obtained, then a non-lawyer might represent the accused. As a practical matter, however, this exception has rarely been used.13
Just as the law officer was upgraded to the new position of military judge, the Act also upgraded the existing Boards of Review. They were re-designated as Courts of Review and their members were now called judges. These appellate courts remained under the authority of The Judge Advocate General, but the new legislation meant that there was a chief judge who could now divide the other judges into panels of not less than three, and who also appointed a senior judge to preside over each panel. Under the original UCMJ, there were separate boards of review; after the Military Justice Act of 1968, there was only one court with a number of panels. The idea behind this change was that a single court would ensure greater consistency in decision-making and a higher quality of legal decision than could separate review panels.14
Even the Court of Military Appeals (COMA) (today’s Court of Appeals for the Armed Forces) saw some change. For the first time, an accused could petition COMA for a new trial on the basis of newly discovered evidence or fraud; previously, an accused could petition COMA only if sentenced to death, dismissal, punitive discharge, or a year or more confinement. The new Act also extended the time an accused could petition COMA from one year to two years.15
One more significant change in the Act is worth examining: a provision for post-conviction release. The convening authority now had the power to defer the serving of confinement until completion of appeal. Additionally, The Judge Advocate General of each service was now authorized to vacate or modify the findings and sentence in any court-martial that had been through the appellate process in four circumstances: newly discovered evidence; fraud on the court; lack of personal or subject matter jurisdiction; or error prejudicial to the substantive rights of the accused. This last provision was a major change because it meant that, for the first time in history, a Soldier convicted by a special court who did not receive a punitive discharge could obtain review of prejudicial errors by someone other than the officer who convened the case and his staff judge advocate.16 Since the Army alone was trying thousands and thousands of special courts-martial every year in the late 1960s (59,500 in calendar year 1969 alone), this change to the UCMJ was a major benefit to more than a few Soldiers.17
While the Military Justice Act of 1968 was a revolution, it was a second revolution in the sense that it completed the process that had begun with the creation of the UCMJ. Prior to 1950, the role of lawyers in the military justice system was minimal. Consequently, it was a clear break with the past when, in enacting the new UCMJ, lawyers were accepted as part of military criminal law, and were given defined powers to make legally binding decisions at the trial level. The changes that were made to the UCMJ in 1968 were a fulfillment of the initiatives started in 1950; the Military Justice Act signed by LBJ completed the revolution started in 1950. When the 1968 legislation went into effect on 1 August 1969 (accompanied by a new Manual for Courts-Martial, United States, 1969), uniformed lawyers had the additional tools that would, in a short time, transform courts-martial into fuller and fairer proceedings—with due process akin to that exercised by defendants in U.S. District Court.
Aspects of the UCMJ that we take for granted today did not exist prior to 1968—like Article 39a sessions outside the hearing of the members, judge alone trials, and lawyers at special courts-martial. But these changes did not end all complaints about the system. Books published in the 1970s, like Robert Sherrill’s unflattering Military Justice is to Justice as Military Music is to Music18 and Luther West’s highly critical They Call It Justice19 convinced more than a few observers that additional reforms were needed if military criminal law was to provide the same due process for Soldiers that civilians enjoyed. Even authors who recognized that the Military Justice Act of 1968 had ushered in considerable reforms remained unsatisfied. In Justice Under Fire, for example, Yale professor Joseph Bishop argued that additional reforms should be made to the UCMJ. “Civilians,” he wrote, “should be employed as military judges” at both the trial and appellate level. As for substantive law, Bishop argued that Articles 88, 133, and 134 “should be repealed.”20
Regardless of what reforms may occur in the future, however, it is unlikely that any changes to court-martial practice will turn military justice upside down to the extent that occurred with the enactment of the Military Justice Act of 1968. TAL
1. Prior to 1950, the Army conducted courts-martial under the Articles of War while courts-martial in the Navy were governed by the Articles for the Government of the Navy. The new UCMJ created a single criminal code and greatly increased lawyer participation in the court-martial process. While there had been limited lawyer involvement under the Articles of War (a judge advocate served as a law member at general courts-martial in the Army after 1920), there was no requirement, much less any role, for legally qualified counsel at Navy courts-martial until the enactment of the UCMJ. Judge Advocate General’s Corps, U.S. Army, The Army Lawyer 136 (1975) [hereinafter The Army Lawyer]. Line officer opposition to lawyer participation at Navy courts-martial meant that the Navy resisted the creation of a separate corps for lawyers until 1967, when Congress finally passed legislation creating a Navy Judge Advocate General’s Corps. Jay M. Siegel, Origins of the United States Navy Judge Advocate General’s Corps 617-86 (1997).
2. Samuel James “Sam” Ervin, Jr. (1895-1985) served in the U.S. Senate from 1954 to 1974. While his efforts in shaping the Military Justice Act of 1968 were important, Senator Ervin is probably best known for his work as the chairman of the Senate Select Committee to Investigate Campaign Practices. This committee investigated the break-in at the Watergate complex and played a major role in President Richard Nixon’s downfall. For more on Ervin, see Karl E. Campbell, Senator Sam Ervin, Last of the Founding Fathers (2007).
3. The law officer (who was present only at a general court) ruled on all interlocutory questions except challenges for cause; the panel members themselves decided whether to sustain or overrule a challenge for cause against a member. The law officer’s rulings were final except that the court-martial panel could overrule him on a motion for a finding of not guilty. The court also could overrule the law officer on the question of the accused’s sanity. While the law officer was an important part of the process, it was the president of the panel who was in charge of the court-martial. Manual for Courts-Martial, United States, (1951)., para. 39
4. The Army Lawyer, supra note 1, 243-44 (1975).
6. Until the UCMJ was amended in 1999, the maximum confinement that could be imposed at a special court was six months. National Defense Authorization Act for Fiscal Year 2000, Pub.L. No. 106-65, § 577,113 Stat. 512 (1999), increased that six month jurisdictional limit to one year.
7. The Army Lawyer, supra note 1, at 245.
9. Kenneth J. Hodson, The Manual for Courts-Martial—1969, 57 Mil. L. Rev. 1, 8 (Summer 1972). Hodson was referring to the general courts-martial arising out of the March 16, 1968 murders of unarmed and unresisting Vietnamese civilians by Lieutenant William L. “Rusty” Calley and his platoon.
10. Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335 (1968).
11. UCMJ, art. 41(1968).
12. UCMJ, art. 26; The Army Lawyer supra note 1, at 247.
13. UCMJ, art. 19 (1968).
14. For more on the new Army Court of Military Review, see Fred L. Borch, The Army Court of Military Review: The First Year (1969-1970), Army Law. (Mar. 2016), 1-2
15. UCMJ, art. 73 (1968). The new Military Justice Act of 2016 extends this two year time limit to three years. National Defense Authorization Act for fiscal Year 2017, Pub. L. No. 114-328, § 5001, 130 Stat. 2022 (2016).
17. Williams C. Westmoreland and George S. Prugh, Judges in Command: The Judicialized Uniform Code of Military Justice in Combat, 3 Harv. J. L. & Pub. Pol’y 1, 32 (1980).
18. Robert Sherrill, Military Justice is to Justice as Military Music is to Music (1970).
19. Luther West, They Call It Justice (1977).
20. Joseph W. Bishop, Jr., Military Justice Under Fire: A Study of Military Law 301, 302-303 (1974).