Condon, Aaron S.

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Washington University Law Review Volume 1974 Issue 2 January 1974 Review of “Justice Under Fire: A Study of Military Law,” By Joseph W. Bishop, Jr. Aaron S. Condon University of Mississippi Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Military, War, and Peace Commons Recommended Citation Aaron S. Condon, Review of “Justice Under Fire: A Study of Military Law,” By Joseph W. Bishop, Jr., 1974 WASH. U. L. Q. 381 (1974). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1974/iss2/12 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. Vol. 1974:375]calling for the interconnection between law and morality because hedoes not want to be pushed into Fuller's camp. Like Dworkin, Pro-fessor Bodenheimer seems to be an uneasy positivist. He leans towardthe idea of law-morality but refuses to embrace it head-on. Yet hisstudents and his readers may take the plunge. There is, these days,a great revival of interest in moral philosophy, and the best worksbuild upon the advances to linguistic precision that logical, positivismhas fostered. Ironically, that very precision now seems to be under-mining positivism itself, much as Wittgenstein foresaw in his Philosoph-ical Investigations (1953).20 In this context, Power, Law, and Societymay be seen as an important bridge between the older style of positiv-ism and the new concern for morality. The humanistic, wide-rangingexamples brought forth by the author attest to the morality that Fullerargues cannot be separated from law.ANTHONY D'AMATO*JUSTICE UNDER FIRE: A STUDY OF MILITARY LAW. By Joseph W.Bishop, Jr.' New York: Charterhouse Books, Inc., 1974. Pp. xvi,315. $8.95.If there is a lack of scholarly treatises on military law, there is noneof popular polemics on the subject.J. BISHOP, JUSTICE UNDER FIRE xii (1974)[C]ourts-martial as an institution are singularly inept in dealing withthe nice subtleties of constitutional law.. . . [A] military trial ismarked by the age-old manifest destiny of retributive justice.O'CALLAHAN V. PARKER, 395 U.S. 258,265-66 (1969) (DOUGLAS, J.)If, as widely believed, experience is the best teacher, certainly JusticeWilliam Douglas offers unimpeachable credentials in the pure art andhigh science of the detection of legal systems which are "singularlyinept in dealing with the nice subtleties of constitutional law." His1. Professor of Law, Yale University.20. See H. PrnITN, WITGrENSTEIN AND JUSTICE 50-70 (1972).* Professor of Law, Northwestern University.BOOK REVIEWSWashington University Open Scholarship382 WASHINGTON UNIVERSITY LAW QUARTERLYrecorded opinions over the past thirty-plus years disclose that he hasdiscovered just such ineptness, with a fine impartiality, in virtually allof the fifty states, the federal district and circuit courts, and even amonghis colleagues on the Supreme Court itself. Although it is not alwaysclear in matters of opinion who leads and who follows, there can be nodoubt that this unwavering consistency, coupled with the prestige ofhis record-breaking tenure in office, have made Justice Douglas themost brilliant luminary in a constellation of critics bitterly hostile toexisting practices and procedures in the administration of criminal jus-tice in this country. And nowhere has this antagonism shown itselfwith more passionate intensity than in the recent assault on the institu-tions of military law.Joseph W. Bishop, Jr., professor of law at Yale University, under-takes in Justice Under Fire: A Study of Military Law to enter thisemotional maelstrom on a vehicle of outraged objectivity. With pains-taking accuracy and commendable brevity, he offers the concernedreader an authentic insight into the practices, problems, vices, andvirtues of the American military establishment in its law-related ac-tivities.[M]ilitary law, like other fields of law, raises serious problems that aremore likely to -be solved intelligently if politicians and voters have abetter knowledge of the facts than they are likely to get from suchsources as The New York Review of Books.J. BISHOP, JUSTICE UNDER FIRE XIV (1974)The legal problems besetting the military in its internal aspect proveto be generically no different from those present in any system of crim-inal justice: creation of courts, delineation of jurisdictional boundaries,description of prohibited conduct, selection of court personnel (judge,counsel, and trier of fact), rules of procedure, rules of evidence, pre-scription of penalties, appellate review, and (often most crucial of all)insulation of the system from improper pressures (from inside and out-side, from above and below). Since the resolution of these problemshas been the task of American lawyers, rather than soldiers, it is hardlysurprising that the end product is not wholly alien to "traditional no-tions of fair play and substantial justice," and that, as the author pointsout, there is less difference between American civilian and military lawthan between the Anglo-American system and other systems of justicethat have long served the rest of the civilized world. But differences[Vl. 1974:381https://openscholarship.wustl.edu/law_lawreview/vol1974/iss2/12Vol. 1974:381]there certainly are, and differences there must be, as the Supreme Courtrecently reaffirmed:This Court has long recognized that the military is, by necessity, aspecialized society separate from civilian society. We have also rec-ognized that the military has, again by necessity, developed laws andtraditions of its own during its long history. The differences betweenthe military and civilian communities result from -the fact that "it isthe primary business of armies and navies to fight or be ready to fightwars should the occasion arise."PARKER V. LEVY, 94 S. Ct. 2547, 2555-56(1974) (REINQUIST, J.)2In his conclusion, Professor Bishop offers specific suggestions de-signed to strengthen the position of justice in the military:1. Creation of permanent military courts, with three- and five-judgepanels to replace line officers as triers of fact in all cases.'2. Making mandatory the current practice (already nearly univer-sal) of providing qualified lawyer-counsel for all trials; and creation ofseparate divisions of the Judge Advocate General's Office to which bothprosecution and defense counsel are severally and solely responsible.3. Abolition of the bad conduct discharge, leaving the dishonor-able discharge as the sole means of punitive elimination from service.The supposed distinction between them is, at present, wholly illusory.4. Repeal of the General Articles, which proscribe without specifi-cation conduct "unbecoming an officer and a gentleman"4 and "preju-dic[iall of good order and discipline" or calculated "to being discreditupon the armed forces. '  These should be replaced by provisions2. Quoting Toth v. Quarles, 350 U.S. 11, 17 (1955). See also Burns v. Wilson,346 U.S. 137 (1953); Orloff v. Willoughby, 345 U.S. 83 (1953); In re Grimley, 137U.S. 147 (1890).3. In practice today, about 75% of all courts-martial employ the military judge astrier of fact. This is the result of defense counsels' option to dispense with the tradi-tional line-officer panel. See H. MOYER, JUSTICE AND THE MiLrrITARY 533 (1972).4. Article 133 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933(1970), provides:Any commissioned officer, cadet, or midshipman who is convicted of con-duct unbecoming an officer and a gentleman shall be punished as a court-mar-tial may direct.5. Article 134 of the UCMJ, 10 U.S.C. § 934 (1970), provides:Though not specifically mentioned in this chapter, all disorders and neglectsto the prejudice of good order and discipline in the armed forces, all conductof a nature to bring discredit upon the armed forces, and crimes and offensesnot capital, of which persons subject to this chapter may be guilty, shall beBOOK REVIEWSWashington University Open Scholarship384 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 1974:381specifically denouncing acts which are forbidden to members of themilitary.05. Abolition of military jurisdiction over all reservists who are noton active duty.76. Repeal of the article denouncing the use by commissioned of-ficers of contemptuous words against the President and various highofficials." The 1967 conviction of an Army lieutenant under this ar-ticle9 was its first application in twenty-five years, and the last to date.7. Making appealable by writ of certiorari all decisions of the high-est military appellate tribunal, the Court of Military Appeals. 10These proposals, most of which have been urged by responsible andsympathetic critics of the military justice system,1 are clearly feasibleand would go far toward eliminating even that "appearance of evil" onwhich hinges so much of what substance there is in the emotional out-pourings of the system's uncompromising opposition.Beyond the field of military criminal law, Professor Bishop deals intaken cognizance of by a general, special, or summary court-martial, accordingto the nature and degree of the offense, and shall be punished at the discre-tion of that court.6. The General Articles in their present form were upheld in Parker v. Levy, 94S. Ct. 2547 (1974). In rejecting the claim that the General Articles are unconstitution-ally vague, the Court relied principally on the clarification and limitations of the articlescontained in decisions of the Court of Military Appeals, e.g., United States v. Howe,17 U.S.C.M.A. 165, 37 C.M.R. 429 (1967), and in guidelines supplied under executiveorder, see MANUAL FOR CouRTs-MARTIAL, UNITED STATES 213c (rev. ed. 1969). 94S. Ct. at 2560. See generally Wiener, Are the General Military Articles Unconstitution-ally Vague?, 54 A.B.A.J. 357 (1968).7. Although the subject is not free of doubt, in Army and Air Force practice therehas been virtually no effort to assert such jurisdiction in the absence of very special cir-cumstances. The Navy has taken a somewhat broader view. For discussion, see H.MoYER, supra note 3, at 73-76.8. UCMJ art. 88, 10 U.S.C. § 888 (1970). See generally Sherman, The MilitaryCourts and Servicemen's First Amendment Rights, 22 HASTINGS L.J. 325 (1971).9. United States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R. 429 (1967).10. See Ex parte Vallandingham, 68 U.S. (1 Wall.) 243 (1863). See also ANNUALREPORT OF THE UNITED STATES COURT OF MILITARY APPEALS 20-21 (1970) (recommen-dations of Maj. Gen. Kenneth Hodson, formerly Judge Advocate General of the Army).11. See, e.g., Hodson, Perspective: The Manual for Courts-Martial-1984, 57 MIL.L. REv. 1 (1972); Sherman, The Civilianization of Military Law, 22 MAINE L. REv. 3(1970); Sherman, Congressional Proposals for Reform of Military Law, 10 AM. CruM.L. REv. 25 (1971); Warren, The Bill of Rights and the Military, 37 N.Y.U.L. Rav. 181(1962); Note, The Discredit Clause of the UCMJ: An Unrestricted Anachronism, 18U.C.L.A.L. Rnv. 821 (1971); Note, Taps for the Real Catch-22, 81 YALE L.J. 1518(1972).https://openscholarship.wustl.edu/law_lawreview/vol1974/iss2/12Vol. 1974:381]separate chapters with current issues of national war powers, 12 martialrule in domestic territory,' 3 and the enforcement of the internationallaws of war.' He does not conceal his impatience with the eternalchildren of the Left, whose militant unconcern with hard facts he findsmatched only by their strident self-righteousness in denouncing theircountry for its involvement in "imperialist wars of aggression."'15 But,despite yielding to the temptation to throw an occasional dart, ProfessorBishop succeeds in presenting an excellent, if necessarily summary,overview of the complex and controversial questions that inhabit theborderlands of those mutually exclusive and often belligerent realmsof law, policy, and morals.Inevitably, he finds in the doctrine of "apparent necessity" an ex-planation both of executive (and military) jurisdictional demands andof the Supreme Court's acquiescence in such demands in time of "clearand present danger" to the national security. This pliancy stands insharp contrast to the ringing libertarianism which emerges as each suc-cessive threat recedes. Indeed, it may very well be that the enduringstrength of our democracy lies precisely in this inconstancy of judicialopinion, in the ebb and flow of constitutional ideology, in the assur-ance of the possibility that today's minority will write tomorrow's ma-jority opinion. Great dangers demand great responses, and the necessityfor such responses has thus far produced our greatest leaders. Butnational support for emergency measures has mercifully given birth tono fuehrer-prinzip here. The policies of Jefferson could not ultimatelysustain the conviction of Colonel Burr;' 6 nor those of Lincoln the mili-tary conviction of the civilian Milligan;'1 nor those of Roosevelt thedetention of loyal Japanese-American Mrs. Endo;18 nor those of Tru-man the seizure of crucial, strike-bound, but privately owned steelmills.19 But in each case, the final decision was reached when the12. J. BISHOP, JUSTICE UNDER FIRE: A STUDy OF MILrTARY LAW 175 (1974).13. Id. at 225.14. Id. at 257.15. The phrase "wicked, cruel and unnecessary war," so regularly found in these de-nunciations, seems to have been borrowed from the Civil War speeches of Indiana's pro-slavery, anti-Lincoln, anti-union activists, Vallandingham and Milligan. See Ex parteVallandingham, 68 U.S. (1 Wall.) 243 (1863); THE MILLIGAN CASE 14, 379-80, 385(S. Klaus ed. 1970).16. See United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (C.C.D. Va. 1807).17. See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).18. See Ex parte Endo, 323 U.S. 283 (1944).19. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).BOOK REVIEWSWashington University Open Scholarship386 WASHINGTON UNIVERSITY LAW QUARTERLYemergency that spawned the questioned policies was safely past; or thethreat to the nation was no longer acute; or the necessity was not, orwas no longer, apparent to the Court, and a more congenial libertari-anism reasserted itself.Force, to meet force, arms itself with the inventions of art and science.It is accompanied 'by insignificant restrictions, hardly worth mention-ing, which it imposes on itself under the name of international law andusage, but which do not really weaken its power.C. VON CLAUSEWITZ, ON WAR 3(0. Jolles transl. 1943)While "apparent necessity" is a dependable and often wise adviserin the quiet chambers of the Supreme Court, it can become a bloodytyrant during military battle. The endless carnage of today's extendedbattlefield and the limitless destruction of life and property, as nationspursue political goals frequently obscure and remote from the personalconcerns of their populations, produce, as they should, an immenserevulsion in souls sensitive to the unhappy lot of man. The war it-self--or rather, our involvement in the war-and not the cause of thewar, becomes the object of execration for those who would end warwhile leaving the causes of war intact. And since our conduct of thewar is the criminal act, this narrow and one-sided morality would damnwithout hearing every action and person involved, with the sole pre-condition that the defendant be either an American or a supporter andally of Americans.But the luxury of this simplistic view is neither available nor help-ful in the resolution of practical issues surrounding the actual conductof hostilities. Here the aim is not 'the abolition of war (by ending ourhalf of the conflict), but the more realistic goal of mitigating war'sinevitable suffering. And it is not enough to await the advent of someimplausibly impartial International War Crimes Tribunal. Analyzingthe Nuremberg precedent, Professor Bishop finds it virtually sui gen-eris-a fortuitous concomitance of the triumph of the righteous cause(though not without its criminal acts and agents) over monstrous andundisguised criminality (though not without its heroes and victims).Victor's justice, yes-but, on the whole, justice nonetheless.The duty of the law today is less dramatic but no less clear. AsBishop puts it, "Tlhe most realistic prospect for punishing war crimi-nals is by trial -in the courts of the accused's own country."20  Al-20. J. BISHOP, supra note 12, at 290.[Vol. 1974:3 81https://openscholarship.wustl.edu/law_lawreview/vol1974/iss2/12Vol. 1974:381]though 117 Americans were tried by courts-martial, and sixty convictedof murdering civilians in Vietnam, the proceedings against the My Laidefendants, and particularly the conviction of William Calley, stand asthe one public monument to the law's limited ideal.The record is thus very far from perfect. All that can be said isthat it is a better record than that of any other nation in the worldand that it lends a degree of credibility to the Pentagon's numerous or-ders and regulations that aim to prevent and punish war crimes byrequiring a report and an investigation of such incidents, and the train-ing and indoctrination of the troops on the subject ...The fuzzy notion that every citizen of the United States (except thesaints and martyrs of the antiwar movement) is guilty of the war crimeat My Lai-that the unfortunate Lieutenant Calley was merely a scape-goat-is, to a lawyer, nonsense, and pernicious nonsense at that.The international law of war, as it now exists, is undoubtedly veryimperfect. . . . All that can be said is that it is better than no law; Ithink it probable that much suffering has been prevented in the lastsixty years by the existence of a body of law which nearly all govern-ments profess to respect, and which most are reluctant to violate openlyand on a large scale.J. BISHOP, JUSTICE UNDER FIRE 292-93 (1974)Few undertakings are more challenging than the task of presentingto a professional audience a basic introduction to a separate systemwithin the area of audience expertise. Negotiating the narrow channelbetween verbosity and sketchiness requires all the skill of a masterhelmsman; and in any case, the passage will be the inevitable occasionof confused cries of "Too much!," "Too little!," "Wrong way!," and"Is this trip really necessary?" From the standpoint of this reviewer,however, Professor Bishop has met the challenge most commendably.A reading of Justice Under Fire will go far toward providing that "bet-ter knowledge of the facts" promised in the book's introduction, in thisalternately abused and neglected area of the law. And it is only thespread of such knowledge that offers the hope of rational progresstoward the elusive goal of equal justice under law-whether the systemin question be military or civilian.AARON S. CONDON** Professor of Law, University of Mississippi.387BOOK REVIEWSWashington University Open Scholarship

Review of “Justice Under Fire: A Study of Military Law,” By Joseph W. Bishop, Jr.

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Review of “Justice Under Fire: A Study of Military Law,” By Joseph W. Bishop, Jr.

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