Professor Brian Linn delivers the Prugh Lecture at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, in April 2021. (Credit: Jason Wilkerson, TJAGLCS)
No. 2
Atrocities, Abuses, and Adjudication
Military Law Meets Military History
By Brian McAllister Linn
In common with many historians, my parents wanted me to go to law school. But I disappointed them in this respect and, to the dismay of my Quaker mother, I became not only a historian—but a military historian. This article is a personal overview of my encounters with Army military justice over four decades in conjunction with my research on other topics. Yet the frequency with which I bumped into military law brought with it a recognition of how foundational it is to understanding the history of the U.S. Army. This recognition is not original. In fact, some recent scholarly work argues that military law has imposed gender, sexual, moral, and cultural paradigms.1 But these subjects are far beyond the scope of either my research or my interests. Instead, I will discuss some accidental stumbles into the realm of military justice over the course of four decades as a historian of the U.S. Army.
Authority
My first encounter with the importance of military law was in 1979 when I started my doctoral research on the U.S. Army’s experience in the Philippine War of 1899 to1902.2 This conflict, which, depending on your political orientation is also called the Philippine Insurrection and the Philippine–American War, might be better termed the “lawyers war.” The first general officer to arrive in the Philippines was a lawyer. Major General Elwell S. Otis, who commanded the Army in the Philippines from 1899 to 1901, was a graduate of Harvard Law School. When he was not directing military operations or establishing government, Otis revised the islands’ civil code.3 Otis’s successor was Arthur MacArthur, who had read for the law and whose stentorian lectures on legal issues did much to alienate the lawyer who succeeded him, Judge William Howard Taft. In contrast, Taft was so impressed with Lieutenant Colonel Enoch Crowder’s work in resolving disputes over religious holdings that he later made him the Army’s Judge Advocate General.4 Another prominent lawyer-turned-officer-turned-civil-official was Colonel James F. Smith. His success in establishing the first colonial government on Negros Island served as introduction for his later tenure as Governor General of the Philippines.5
In addition to providing a disproportionate number of policy makers,
officer-lawyers also played a significant role in the regional
counter-guerrilla campaigns that typified the war.6
The war’s most effective field commander, J. Franklin Bell, was both a
lawyer and a former judge advocate (JA). John J. Pershing, who was
credited with the pacification of the Moro, or Muslim provinces, was
also a lawyer. A less well-known, but equally important figure, was
lawyer-turned-officer Lieutenant William T. Johnston. As provost marshal
of Union Province, Johnston’s detailed analysis of the guerrillas’
recruitment, taxation, intelligence, and command system was cited by
MacArthur as the most thorough explanation of the resistance.7
The Philippine War was also the lawyer’s war from the perspective of
judicial proceedings. Army officers took over the judiciary. A typical
example was Captain William E. Birkhimer—a Civil War veteran with a law
degree who, in 1899, was appointed Associate Justice of the Philippine
Supreme Court. Army provost marshals and provost courts played a vital
role in imposing colonial law and order throughout the archipelago. The
precedent was set when the Army occupied Manila in August 1898 and
immediately appointed a provost marshal general for the city. This
officer not only enforced the law but supervised the departments
relating to fire, health, public works, streets, sanitation, public
illumination, licenses, and municipal revenue. Lawyers were everywhere.
The Army’s superior and inferior provost courts tried and punished
civilian offenses under the occupation. Indicative of their heavy
judicial responsibilities, between July 1899 and January 1900, the
inferior court heard almost 6,000 cases involving 10,500 people.8
Far from being instruments of oppression, the majority of these offenses
were breaking curfew, gambling, or violation of sanitation ordnances—and
the usual penalty was a token fine. The 8,000 convictions issued by the
inferior provost courts totaled only a cumulative 58 years of
incarceration.9 The efficient rule of the provosts was a major factor in turning Manila from the pesthole of the Orient into one of the healthiest cities in Asia.
As the Army occupied the archipelago, provost courts and provost marshals extended their jurisdiction. Most had no legal training; serving as provost was simply another duty assumed by troop commanders, along with customs official, fiscal supervisor, engineer, police chief, and so on. But they often had to negotiate the law, balancing Army directives with older Spanish legal texts and traditional customs. The correspondence of Lieutenant William B. Cochran, provost marshal at Aparri, Luzon, provides an idea of the complexity of these town provost duties. Between 5 and 7 June 1899, he wrote for advice on two cases. The first was a suit over alleged adultery, but neither Cochran nor anyone in the town knew the applicable divorce laws. The second involved the killing of Cosme de la Cruz, a case complicated by two women accessories. One of these was de la Cruz’s concubine, the other was her daughter, who happened to be the killer’s common-law wife. Although they were clearly guilty of conspiracy in hiding the body, Cochran concluded they had acted in accordance with local concepts of duty and honor and chose not to prosecute.10
Provost marshals played a key role in pacification in the last two campaigns of the Philippine War. General Bell created an elite squad, including William T. Johnston and other lawyers, to smash the resistance in Batangas Province. Bell sent his provosts into known insurgent strongholds where they conducted investigations, held trials, and punished insurgents. Johnston went so far as to form a paramilitary unit of suspected insurgents and deployed them to hunt their former comrades.11
The Philippine War is also something of a legal landmark due to General MacArthur’s implementation of General Orders No. 100 in December 1901.12 Sometimes known as the Lieber Code, it had been issued in 1863 to outline the rights and responsibilities of Union forces occupying the former Confederacy.13 MacArthur later argued that his recourse to General Orders No. 100, more than anything else, pacified the archipelago. This claim, widely accepted by the general’s supporters, contains an element of truth. General Orders No. 100 was interpreted in the field, as MacArthur had intended, as authorizing such punitive measures as burning property, mass arrests, fining, imprisonment, enhanced interrogation, and summary execution. But MacArthur failed to note that many of the provisions of the 1863 ordinances orders had been in effect since the American troops arrived in 1898. Moreover, in the months prior to MacArthur’s proclamation, several district commanders had authorized General Orders No. 100.14
Atrocities
Lawyers and legal codes aside, the Philippine War is most known (at least according to American undergraduate textbooks) as an unremitting catalog of racist-inspired atrocities.15
According to some, the Army waged a campaign of extermination against
helpless Filipinos.16 This “civilize them with a Krag” mythology17 was founded by contemporary anti-imperialists, such as Mark Twain, and reemerged with Vietnam when academics dubbed the Philippines “Our First My Lai.”18 The alleged atrocities in the Philippines were, again, a focal point for journalists and academics drawing parallels with Iraq and Afghanistan.19
I spent several months trying to understand one such atrocity. In the
town of Balangiga on the island of Samar, between 19 and 20 January
1902, U.S. Marines under the authority of Major Littleton W. T. Waller
executed twelve Filipino civilians.20
Waller authorized these killings without any semblance of a trial, nor
did he consult with his superior officer. The incident—or, more
correctly, war crime—occurred after Waller took a party of Marines into
the interior of Samar’s wilderness for what should have been a pretty
routine short hike (a similar Army patrol had marched across the entire
island without losing a man). The inexperienced and impulsive Waller
soon became lost, abandoned his troops, and floundered about until an
Army patrol rescued the exhausted and helpless Marines. By that time, a
dozen of Waller’s troops were dead. Army officers testified that the
only reason the rest survived was because their Filipino guides had
helped them. Waller, who was running a fever of 105 degrees, thought
otherwise. He sent an officer over to Leyte, grabbed eleven prisoners,
brought them back, and ordered his adjutant, Lieutenant John H. A. Day,
to execute them. Day had previously executed a civilian he suspected of
being a spy, and he promptly shot the guides. The incident might have
remained quiet, except that a Marine officer—probably Day—subsequently
boasted about it to Army officers, thus prompting a full
investigation.21
The courts-martial transcripts of Waller and Day are a compendium of contradictory testimony, convoluted legal arguments, and incomprehensible narrative. Waller was defended by Major Edwin F. Glenn, who was himself under investigation for war crimes. The verdicts were clearly a travesty of justice. Although Waller denied authorizing the execution of the spy, Day was acquitted on the grounds he was following Waller’s orders.22 Waller claimed the executions were justified under General Orders No. 100. Despite the evidence against him that he had violated both the spirit of and the law itself, he was also acquitted.23 During his defense, Waller revealed that the Army commander in Samar, Brigadier General Jacob “Hell Roaring Jakey” Smith, had ordered him to “take no prisoners” and “make the interior of Samar a howling wilderness.”24 These revelations created a national sensation and prompted a Senate inquiry into American troop conduct in the Philippines that exposed a number of war crimes. The Marine Corps soon portrayed Waller as a victim of Army conspiracy and recast his bungling foray into Samar’s mountains as a heroic ordeal. Over time, this view of Waller as heroic “warfighter” and scapegoat became so enmeshed in Philippine War lore that even anti-imperialist authors have defended him.25
The Waller case did not end with his acquittal. Army Judge Advocate General, George W. Davis,26 in what may have been a masterpiece of judicial fence sitting, declared that Waller’s court-martial was illegal. Citing Article 122 of the Articles of War, he argued that—as a Marine—the Army could not try Waller; but he also declared Waller’s defense under General Orders No. 100 to be equally illegal since, as a “detachment commander,” Waller had no authority to execute, or even try, prisoners.27 That was not enough to placate a furious President Theodore Roosevelt. He issued an official order—to be read out at every Army formation—that both Waller’s actions and his acquittal had “sullied the American name.”28
Roosevelt was not the only authority to find fault with military justice. The fallout from the courts-martial of Waller and other officers, along with the revelations of burning, torture, and killings, aroused both public and legal scorn. In a 1903 essay in the influential North American Review, Wilbur Larremore claimed attorneys regaled each other with tales of inept or corrupted courts-martial and “the sentiment of lawyers towards the methods of military justice is frankly contemptuous.”29
At the heart of the bizarre military system were two legal
contradictions. First, that the convening authority was allowed to
appoint the time, members, location, and a JA. Second, that the
JA—simultaneously prosecutor, defense attorney, and procedural
advisor—required no legal training. Moreover, the JA’s legal ignorance
was shared by the rest of the court. In spite of these shortcomings,
military officers insisted their system was superior to civilian law in
its fairness, efficiency, and process. Larremore ascribed this
complacency to a deep reverence for authority and “a strong feeling of
caste.”30 The first attribute led them to defer to the wishes of the superior convening the court. The second, an “indulgent professional sympathy” for financial irregularities or brutality to enlisted or indigenous personnel, meant courts routinely “white-washed” guilty officers and, often solely on their word, invariably sentenced Soldiers.31
Larremore made several suggestions for improvement, but there was no
sustained effort to change court-martial procedures. Two years after he
wrote, the Army’s Judge Advocate General noted the Service had
court-martialed over half of its enlisted personnel, an average
maintained throughout the decade.32
Abuse
After studying the Philippine War, I became interested in what happened to the U.S. Army in the Pacific between that war’s conclusion and the four decades that culminated in the Japanese attacks on 7 December 1941. And once again, I found that military law—this time in relationship to civilian law—played a significant role in the history. During this period, Hawaii was designated a “territory,” and thus fell under the legal precedents of earlier territories preparing for statehood. But the Philippines, an “insular area,” served as an important laboratory for case law regarding the status of American forces overseas.
When President Roosevelt declared the Philippine War officially over on 4 July 1902, he seemingly also separated the Army from the civil government. Congress had recently passed the Philippine Organic Act that made the Philippine Commission responsible for establishing and maintaining the insular government.33
The Commission was under the direction of the Bureau of Insular Affairs,
which was an agency of the War Department. The civil and military
authorities reported through separate channels, but ultimately, their
disputes had to be resolved by the civilian Secretary of War. The
presence of the politically powerful Taft, first as head of the
Philippine Commission—and later as Secretary of War, ensured the civil
government’s priorities usually trumped those of the military. Further
complicating the Army’s duties, General Orders No. 152, issued three
days after Roosevelt’s proclamation of peace, subjected military forces
to “the call of the civil authorities for the maintenance of law and
order.”34 Even at the time of Roosevelt’s proclamation, the civil government’s Philippine Constabulary could not suppress the multitude of bandits, sects, gangs, insurgents, and other violent dissidents that kept the archipelago in permanent turmoil; and, almost immediately, the Commission “called” for support. Within a year, almost two-thirds of the Army’s Philippine Scouts were on detached duty with the civil government.35
General Orders No. 152 placed Soldiers in legal limbo. Some officers
believed it contravened the Posse Comitatus Act,36
an understandable view given the lack of clarity by federal courts on
what American laws were applicable in an insular possession such as the
Philippines. As Brigadier General Tasker H. Bliss pointed out in 1905,
officers who had arrested or fired on insurgents received only the
negative protection that they had not yet been prosecuted in the civil
courts.37 Army officers believed, with good reason, that Philippine courts were prejudiced against military personnel. To secure legal immunity, they wanted a declaration of martial law to precede any military commitment to pacification operations. Since declaring martial law would be an admission of the government’s inability to govern, it refused these requests and appealed up to the War Department. The civil-military dispute came to a head, perhaps not surprisingly, on the island of Samar. After both Constabulary and Scouts failed to suppress a rebellion against the corrupt and oppressive provincial government, the Commission had to turn the island over to military authority. With the colonial authorities desperate, Army commanders were able to leverage concessions, giving them virtual legal autonomy on Samar. Their rapid suppression of the rebellion coincided with the ending of all but token local violence in the parts of the archipelago under civil responsibility. With lawlessness reduced to a level manageable by the Constabulary, the Army turned its attention to defending the archipelago from foreign attacks.38 But in the meantime, the civil and military authorities had become embroiled in a far-reaching case on the legal status of U.S. Soldiers overseas.
On 24 July 1904, Private Homer E. Grafton—a sentry assigned to guard supplies on the island of Guimaras—shot two Filipinos he alleged to have attacked him with knives. Grafton was charged under the 62d Article of War of “willfully and feloniously” killing, tried by a general court-martial, and acquitted on 25 August 1904.39 Three days later, the provincial prosecuting attorney charged Grafton with “the crime of assassination.”40 In doing so, the prosecuting attorney insisted that because the Philippine Penal Code distinguished between the offense of “assassination” and homicide offense charged under Article 62, there could be no claim that Philippine civilian prosecution constituted double jeopardy. The civil judges—there was no trial by jury under the Philippine Penal Code—sentenced Grafton to twelve years’ imprisonment.41
To the shock of the Philippine bureaucrats, the Army refused to accept this verdict and a subscription for the private’s defense soon totaled in the thousands. In part, Grafton was a catalyst for years of military resentment at perceived civil government arrogance and duplicity. But, as the editor of the Army and Navy Journal recognized, Grafton’s case was “simply a common effort for common defense in which the interest of one is the interest of all.”42
Both military and public pressure forced the War Department to appoint a
counsel to argue the case before the Supreme Court. In 1907, the Grafton
case reached the Supreme Court, which ruled unanimously that the
court-martial verdict had constituted a legitimate trial, that
“assassination” was the same as homicide, and that Grafton’s conviction
violated constitutional prohibitions against double jeopardy.43
What the Supreme Court did not rule on was whether American Soldiers
sacrificed other constitutional rights, including trial by jury, when
stationed in the Philippines. For the Army, the lesson was clear: In the
future, “[e]very offender whose act falls within the scope of military
jurisdiction should be tried by court-martial and never surrendered to a
bastard civil tribunal like that which usurped the rights of
Grafton.”44 Consequently, when the Army was deployed to Cuba in 1907, then-Secretary of War Taft issued a special order that exempted American Soldiers from the jurisdiction of Cuban courts.
Fifty years after the Grafton case, another case where an Army private shot an Asian civilian, this time in Japan, also reached the Supreme Court.45 But there were important differences. Grafton was a model Soldier admired by both his officers and his comrades, who was judged to have acted in self-defense. Specialist 3 William S. Girard was a marginal Soldier of limited intelligence. His guilt in shooting Naka Sakai, an impoverished mother of six children scavenging scrap metal, was never in question. Indeed, his behavior—enticing Mrs. Sakai by throwing brass cartridge shells, then threatening her, then shooting her when she ran away—appalled most of his fellow Soldiers.
What made the incident a cause célebre was that a Japanese deputy, citing the recent Japanese-American status of forces treaty, challenged American jurisdiction.46 A series of mistakes by one officer—trying to cover up the crime, refusing to divulge crucial details, overruling his legal officer and denying Japanese jurisdiction—sparked widespread protests across Japan and threatened the new Japanese-American basing agreement.
Acting on legal advice, Army Headquarters in Japan recommended turning Girard over to the Japanese, but the Secretary of Defense blocked this. Various opportunistic Congressmen announced intended legislation to ensure no American Soldier could be tried in a foreign court. Tensions increased when federal judge Joseph C. McGarraghy declared that Japan’s courts had no jurisdiction over American service personnel.47 With Japanese-American relations deteriorating and the international media castigating American criminality, the Girard case was rushed to the Supreme Court. That august body determined there was no constitutional bar to trying Girard in a Japanese court.48 And—in what one suspects was a secret agreement—the Japanese court found Girard guilty of manslaughter, but gave him a slap-on-the-wrist suspended three-year sentence.49 The Army followed with an undesirable discharge and shipped him out as fast as possible.50
On the surface, these two cases (only fifty years apart) share only the superficial resemblance of two Army privates tried and convicted for killing local civilians. Why did they become so important? Both cases occurred after prolonged civil-military conflict over the rights and obligations of American service personnel overseas. Both cases reached the highest political, judicial, media, and public arenas. In many ways, as one officer concluded about the Girard case, both served as a “catalyst for a lot of things that were just waiting to happen.”51
Grafton’s trial by civil court occurred after almost five years of perceived humiliations by the civil government. Ever since Taft arranged General MacArthur’s recall in 1901, civil officials had routinely used back-channel communications to Washington to assert control over military forces. Army resentment had been steadily growing due to its almost permanent appropriation of the Philippine Scouts, refusal to either establish clear legal guidelines or declare martial law, and its employment of troops against rebels who were often victims of the civil government’s own corruption, brutality, and injustice. And, with the politically powerful Major General Leonard Wood now in the Philippines, the U.S. Army finally had an advocate even more powerful than the civil government’s appointees. Thus, the decision by the Filipino judges to assert their prerogatives was both judicially suspect and badly timed. Moreover, the Grafton case was one that the Army could take to the public as a patent injustice—an American citizen condemned by a Filipino court under Spanish laws—and in clear violation of the rights granted all American citizens by the U.S. Constitution.
The Girard case, on the other hand, was an Army-created disaster. The United States had just signed a politically-sensitive status of forces agreement with Japan deemed crucial to its Cold War national security.52
Senior military leaders should have been attuned to any action that
would impugn Japan’s recently acknowledged legal sovereignty. Instead,
Eighth Army’s leadership allowed its recently appointed public relations
officer—described as a “strict West Point colonel” punching a ticket for
higher command—to take control of the case.53
This officer suppressed information and reneged on an agreement with a
friendly correspondent, all but ensuring the media opposition. Despite
the escalating public relations fiasco, Eighth Army headquarters
continued to support this officer, almost derailing the status of forces
arrangement. Only the rapid action of the Supreme Court and the
political acumen of the Japanese court resolved the controversy. The
Army Public Information School, which made the
Girard case a part of their curriculum, concluded in its extensive report that such scandals almost inevitably result from an officer promotion system which “puts a totally unqualified man into a politically and diplomatically sensitive position; and secondly, which tolerates an obvious misfit when he is discovered.”54
Adjudication
My next—and for this article, my last—encounter with military law lies in the field of adjudication. I recognize that adjudication is defined as “a formal judgment on a disputed matter.”55
But, at the risk of legalistic hairsplitting, I define “formal
judgments” as legal codes—such as the Articles of War,
Manual for Courts-Martial, and the Uniform Code of Military Justice (UCMJ)—and “continuing disputes” as the debates over the enforcement of these codes in practice. Many of the ongoing challenges and reforms to American military justice have reflected the evolving dynamic between the Army’s need to impose discipline and the individual rights of Soldiers. This dynamic has been of great interest to historians, for it encompasses class and caste barriers, command and leadership, officer-enlisted relations, misconduct, punishment, and a host of other human issues.
Historians of the “Old Army” of the nineteenth century—such as Edward M. Coffman, William Skelton, and Samuel J. Watson—have explored the enforcement of discipline through both legal and extra-legal measures. As gentlemen, officers believed their status depended on absolute subordination by enlisted personnel. They were quick to impose their authority through courts-martial. This is reflected in the large number of courts-martial between 1823 and 1828: 7,058 courts-martial over five years in an army that averaged barely 5,000 enlisted men—almost a quarter of the total force.56 Much more common were extralegal punishments such as branding, mutilation, hanging by the thumbs, carrying a rock or heavy log for hours, straddling a sharp wooden beam (the punishment horse), binding in a “stress position” with a rag forced into the mouth (bucking-and-gagging), and so forth.57
Watson, the leading authority on the pre-Civil War frontier army,
concluded of such chastisements that “although few enlisted men were
killed, their routine subjugation to casual blows and elaborate
punishments meant that they, rather than Native Americans, suffered the
most frequent violence at the army’s hands.”58
On the rare occasion officers were court-martialed for such offenses,
they were inevitably acquitted—except in the rare instances when public
outrage forced a harsher sentence.
As long as the Regular Army’s enlisted ranks were composed of men drawn
from the margins of society, the American public accepted that they
needed to be kept under rigid control. But when citizen-Soldiers—not
only the sons of American families, but also voters—were conscripted
into the Army, military justice became far more contested. Volunteers in
Mexico and the Civil War admired the Regulars’ drill, but were appalled
at the brutal punishments they endured. While they concluded that this
was necessary both because of the mercenary motives of the Soldiers and
the aristocratic pretensions of the officers, it did not result in a
favorable opinion of the Regular Army. On the contrary, when these
Volunteers returned to civilian life, they spread to their friends an
image of the Regular Army that both confirmed American anti-standing
army sentiments and reinforced the idea that respectable citizens did
not consort with Soldiers.
The campaign in Cuba in 1898 was fought almost entirely by Regulars. But
in the Philippines, the United States relied primarily on volunteers
drawn from 1) the state militias and 2) a 35,000-man national volunteer
force. Only late in the conflict, when the war was won in most
districts, were Regulars deployed to mop up the last of the areas of
resistance. These national, or U.S. Volunteers, were commanded by
Regular officers; and, like the Regulars, they were subject to the
Articles of War, last revised in 1874. Some colonels, such as William E.
Birkhimer, who was also a lawyer by education, rigorously imposed Old
Army discipline on their regiments and were much hated for it by their
men.59 But others, including many who would rise to high command in World War I, recognized that the Old Army enforcement of regulations was counterproductive. Rather than rely on external discipline imposed by the punitive sanctions of the Articles of War, successful volunteer commanders (such as Colonel Robert L. Bullard) appealed to an internal discipline based on patriotism, respect, and pride.60 Colonel Luther R. Hare of the 33d U.S. Volunteer Infantry took this even further. He made it clear that effectiveness—defined as marksmanship, tactics, and fieldcraft—were far more important than spit-and-polish drill. The “Fighting 33d’s” impressive performance in the boondocks validated Hare’s priorities.
Beyond that, the rigors of field service and the loss of personnel convinced many commanders that the judicial system was impeding effectiveness. The great majority of courts-martial in the Philippines were for minor offenses involving avoiding onerous duty, drunkenness, fighting in quarters, petty theft, and so on. General courts-martial were relatively rare, but this was in part a concession to practicality. The Manila city provost marshal reported 526 general courts-martial cases between 1 July 1899 and 31 July 1900. The majority were Soldiers who had been imprisoned for crimes in Manila and been left behind when the regiments took the field. In many cases, the paperwork was lost or incorrect, and it was impossible to summon witnesses back. Also, the demands of courts-martial interfered with more important duties, with the result that dozens of Soldiers were sitting out the war in prison. To relieve congestion—and to prevent officers dumping their malefactors in Manila—the provost marshal sent all those he could back to their commanders for trial in regimental summary courts, and he created his own summary court for the rest.61
Recognizing that some malingers committed infractions sufficient to warrant a general court-martial and get out of the field, regimental commanders showed a similar practicality. Frustrated by so many “scavengers,” a battalion in the 32d Infantry Regiment, U.S. Volunteers, advised an overly-prosecutorial lieutenant that “discipline can be better sustained by prompt action and quick punishment then long and tedious confinement awaiting trial by General Court Martial.”62 The regimental adjutant provided some idea of what constituted “prompt action and quick punishment” when he advised another officer that he would “prefer that [they] administer summary punishment, such as standing a man on a barrel, in the sun for a couple [of] hours, or putting him in stocks for a while, or something of that kind [their] ingenuity may devise.”63
In contrast, officers imposed strict sanctions on those convicted of crimes against Filipinos. One private who stole a pair of slippers valued at less than a dollar was given six months’ imprisonment and a dishonorable discharge.64 This contrast between light punishments for internal misdeeds and vigorous prosecution of offenses against civilians reflected the U.S. Army’s wish to present itself to the Filipinos as an impartial, fair, but rigorous instrument of the law. The Army’s experience with both motivated volunteer Soldiers prompted an extensive intra-Army debate over whether Soldiers were thinking individuals who gave their consent or unthinking mechanisms motivated by fear of punishment through the Articles of War.65
In World War I, the widespread use of courts-martial as a means of imposing officer authority was a continuing source of resentment. Even more controversial was the treatment of those found guilty. Letters to the editor published in the newspapers like the New York Times charged that confessions had been extorted through physical coercion; deplored excessive sentences—such as twenty-five years of hard labor for being out of uniform; and accused the Army of circumventing the judicial process by sending alleged violators on suicide missions.66 These allegations were not simply the complaints of disgruntled veterans. Acting Judge Advocate General Samuel Ansell claimed that, in one year, the Army had conducted over 350,000 special courts-martial and 28,000 general courts-martial.67 Richard S. Faulkner’s exhaustive study revealed enlisted men had an 85 percent conviction rate in general and special courts-martial and a 94 percent conviction rate in summary courts-martial.68 That three-quarters of these sentences were later reduced by convening authorities indicated that even Army officers found them excessive.69
In the months following the Armistice, Ansell urged extensive revisions in the court-martial manual and the creation of a civilian-staffed Court of Military Appeals. His agenda was taken up by lawyers, academics, and influential politicians. But as Citizen-Soldiers mustered out, Judge Advocate General Enoch Crowder and the War Department were able to placate critics with minimal reforms to the Articles of War. However, perhaps without recognizing it, the Service had issued a promissory note to treat future Citizen-Soldiers with far more justice and mercy.70
This promissory note would be called in at the end of World War II, when there was a torrent of veteran and public abuse at the military justice system. The twin accusations that the courts-martial process was a tool of command influence and a means of imposing “the caste system” were too loud to be ignored. A barrage of anecdotal evidence—petitions, letters to Congress, surveys, newspaper articles—revealed widespread Soldier discontent with the justice system and prompted the War Department to create the Doolittle Board 71
The accusation that their military justice system was little more than a means to protect the “officer caste” outraged many Regulars. In their view, wartime military justice had been, if anything, insufficiently harsh. Judge Advocate Colonel Frederick Bernays Weiner complained that the Army’s execution of just one Soldier for desertion indicated trials were so lenient that they encouraged shirking.72 To its defenders, any procedural injustices were attributable to recently commissioned citizen-officers who pressed charges to compensate for their poor leadership. Now that these for-the-duration officers had been discharged, the professionals’ ethics, experience, and paternalistic concern for their troops would ensure both discipline and justice would flourish once again. This “blame the citizen-officer” exculpation—which is still asserted today—quickly became a dogma, despite the absence of supporting statistical evidence. But, whatever its merits when applied to the Regular Army officer corps in total, the argument was indefensible in light of numerous, highly-publicized incidents of senior officer abuse. The most infamous was the case of Lieutenant Colonel James A. Kilian who, as commandant of Lichfield Reinforcement Depot, condoned, and indeed encouraged, his staff to brutalize enlisted Soldiers. The Army compounded this relations disaster by giving Kilian a judicial slap on the wrist while sentencing his subordinates to jail; the Army then tried to promote him.73 Only when Congress refused to promote the entire list of lieutenant colonels did the Service back down; but, by that time, the damage was done.74
The Kilian case was exceptional, but there is ample indication that the postwar Regular officer corps had taken no notice of Soldier complaints and was relying on the military justice system to preserve its prerogatives. A not untypical example was provided by Colonel Remington Orsinger during the occupation of Trieste in 1947. Among many other instances, this doughty commander court-martialed a veteran sergeant for allegedly addressing a senior officer while his hands were on his hips. After two courts voted for acquittal, Orsinger assembled a third, which obligingly busted the offender to private. That the colonel luxuriated in his palace while his troops huddled in rotting tents only compounded the injustice.75
Such blatant assertion of the traditional Regular Army officer caste privileges might have been acceptable if, as was true after World War I, the postwar force had required only a small number of lifetime privates recruited from the illiterate, the immigrants, and the unemployed. But, by the end of the war, there were over 500 Military Occupational Specialties, many of which had not existed in 1941. Even more serious was the need for entry-level managers to officer the future force. But with the war over, the Service now had to compete with the booming postwar civilian sector. Skilled labor fled in the thousands, and young men were so disinclined to an Army career that West Point could not meet its annual quotas. The Army had to request the continuation of Selective Service. When it was finally abolished in 1948, the Army’s leaders soon begged for its reinstatement: without the threat of conscription, they could not secure sufficient volunteers. With the outbreak of the Korean War, the ineffectiveness of the volunteer system was exposed. The Army had to immediately call up its Reserve, many of them veterans, and ship them into combat with minimal training. The Selective Service machinery accelerated to full throttle, calling in hundreds of thousands in a few months. From 1951 until its abolition in 1973, the great majority of the Service’s incoming personnel—both officers and enlisted—were either draftees or motivated to volunteer to avoid conscription. Both the reinstatement of the draft and the need for skilled labor pulled the Army further into the civilian world, and thus continued the pressure to civilianize military law. The greatest result of both veteran outrage and the Service’s need to recruit and retain a skilled labor and managerial force was the UCMJ of 1950.76
The Regular Army’s initial response to the UCMJ was not positive. The
most moderate criticism came from military lawyers who pointed out that
it was often ambiguous and would need to be clarified by case law.
Another problem was the increased need for legal officers and the
additional time required for trials. The Army Board of Review soon
averaged 700 cases a month, of which three-quarters requested counsel.
Judge Advocate General E. M. Brannon estimated that courts-martial now
took three times longer. Individual JAs often encountered commanders who
still believed it was their duty, and their right, to dispense
justice.77 One innovative JA sought to express the correct hierarchy by making the law officer’s desk a foot higher than the court bench.78
Far more acerbic objections to the new system came for those in the field, most commonly that the UCMJ impeded the authority of the commander to impose discipline. One officer complained in 1950 that the new legal protections for enlisted personnel were both cumbersome and expensive: “God knows how much money it costs to induct, train, ship, watch over, court martial, punish, talk to, hospitalize, and discharge these people in one year, yet the line officers and myself spend half their time on this work.”79 There is some evidence that officers and noncommissioned officers sometimes circumvented the entire judicial process. Lieutenant General Eugene P. Forrester recalled, “We were taking the dregs of society in. It was the idea of a lot of people that the only way to make the bastards function was to wave a rail over their heads.”80
The Korean War brought the UCMJ into the public eye on several levels,
in part because between 1950 and 1953 there were almost a million
courts-martial.81 Not surprisingly, there were renewed accusations of command influence and judicial ineptitude. That many of these were justified is apparent in the orders issued by the Adjutant General in December 1952:
Deviations from the provisions of Article 37 and devices created to circumvent the spirit of the law never remain hidden from public view. Officers, warrant officers, and enlisted men who have witnessed specific malpractices in the administration of justice are quick, upon their return to civilian life, to pass on their observations and criticisms to the press, to Congress, and to the Department of the Army.82
Officers who interfered with the legal process not only put the Army in an “indefensible” position, but they posed “a serious threat to the present system. It is entirely possible, if abuses continue, that Congress may act to strip commanders of their power to appoint courts martial.”83 How well this order was heeded, or enforced, may be seen from a 1958 Judge Advocate General’s report on the Infantry School that the convening authority was also the rater of half the officers serving on courts-martial—and that he had rated several immediately after they had delivered verdicts.84
Far more insidious was the accusation that the UCMJ had directly contributed to the Army’s failure to decisively win the Korean War. The most famous, or infamous, such attack was Eugene Kinkaid’s 1959 Every War but One; but, as Susan Carruthers acidly noted, “Kinkaid said little that the army sources on whom he relied hadn’t been saying for years”85
An only slightly less strident critique was T. R. Fehrenbach’s 1963
This Kind of War, a perennial on Chief of Staff reading lists.86 The Kinkaid-Fehrenbach interpretation was simple: a decadent civilian society had raised “soft” youth, civilian do-gooders, and politicians prevented the Army from disciplining them; the result being battlefield defeat and national humiliation. In many ways, this canard represented the Regular Army reaction to the civilianization of the force due to Cold War expansion, conscription, and the dilution of the officer corps’s West Point’s oligarchy by Reserve Officers’ Training Corps graduates and World War II veterans. The myth of the postwar garrison army unfit to fight became a fixture in Army lore, revived in the Task Force Smith narrative, itself a slogan periodically revived as a clarion call to readiness.87
The Vietnam War prompted a similar critique of the UCMJ. The Military Justice Act of 1968 substantially strengthened the power of military judges, and further reduced the ability of commanders to influence their verdicts.88 Yet some argued these changes had not gone far enough. A task force commissioned by the Secretary of Defense found clear racial disparities in the rates of trial and punishments. In 1970, two senators sponsored legislation to completely transfer military justice from command to a separate Court-Martial Command.89
The external critique of the UCMJ and military justice was far less vitriolic than the internal condemnation playing out in Army magazine in the early 1970s. Officers high and low declared that the new restrictions to curb command influence had made it impossible to counteract the epidemic of racial, drug, and disciplinary problems. Officers were so terrified of being accused of influencing verdicts, they refused to charge recalcitrant Soldiers without support from higher authority and a legal opinion from a JA. Captain Robert B. Killebrew declared in 1971, the “present system of military justice serves neither discipline nor justice.”90 He estimated it took over three months for a commander to receive authorization to even fine a misfit, and the restrictions on pretrial confinement allowed bullies to intimidate their barracks mates for weeks. He pleaded for a military justice system that allowed commanders to quickly punish, incarcerate, or separate the incorrigibles and allow them time to train and lead the good Soldiers.
Killebrew was a comparative rarity in that he was a company-grade officer. The most savage attacks on the UCMJ came from “Old Army” survivors of the pre-World War II force. Colonel George G. Eddy believed the UCMJ was symbolic of a decades-long campaign “to hamstring commanders in their efforts to maintain effective discipline.”91 Lieutenant Colonel Garland declared that “military commanders have been and are now capable of determining when an article has been violated and which punishment should be meted out.”92
Waxing nostalgic for the 1927
Manual for Courts-Martial, he found the entire idea of the UCMJ an insult to the Regular Army officer corps’s professional integrity. Garland’s demand for a return to past standards was shared by Lieutenant General Hamilton H. Howze, scion of a martial dynasty and a key figure in the development of airmobile operations. Like Garland, Howze insisted the pre-UCMJ courts-martial had been quick and fair because the wisdom and experience of the senior officer would ensure that justice prevailed. But, as the title of his 1971 article, Military Discipline and National Security, made clear, Howze believed the state of military law had reached a
crisis level. Since 1945 the “vast watering down of the disciplinary
system” had so “crippled the commander” that the armed forces could no
longer be relied on to fulfill their missions.93
Howze referenced a variety of indicators of the breakdown of morale,
authority, and combat effectiveness ranging from My Lai to drug use to
sloppy uniforms. All these were emblematic of a generational war between
disobedient youth (and junior officers) and senior Regular Army officers
and noncommissioned officers. Only when the Army’s leadership stood up
to civilian interference and public opinion, and insisted on the
separation of military from civilian law, would discipline be restored
and the armed forces recover.94 Implicit in the Old Army critique of the UCMJ was the conviction that their generation’s paternalistic dispensation of justice had been fair, while today’s junior officers lacked the essential moral qualities necessary for military leadership.
The Old Army condemnation of military justice elicited a strong response. Major General G. W. Putnam, a contemporary of Howze, recalled most pre-World War II trials as perfunctory, punitive, and predetermined. He cited numerous incidents to refute Howze’s vision of the Old Army as happy, disciplined, and well-officered. The UCMJ might have its problems, Putnam believed, but it was much fairer than the old manuals and could not be blamed for the Army’s current problems.95 The appeal of officers such as Garland and Howze for a return to Old Army regulations provoked much scorn. One enlisted man opined that most officers’ objections to the UCMJ were indicative of their vast ignorance of either military or civil law. An even stronger critique came from a young lieutenant. Having lost the Vietnam War through their “unqualified leadership,” senior leaders “were trying to blame the law for the ills of the Army and the country.”96 Captain Jack E. Lane cited such recent examples of corruption and bad leadership from the World War II generation as the convictions of both the Army’s provost marshal and its command sergeant major. Given nearly one hundred incidents of command influence at Fort Leonard Wood, Missouri, alone, Lane wondered how any officer could question the necessity for the UCMJ and its protections for the enlisted Soldier?97
The debate in Army over the UCMJ’s effects on discipline subsided after political efforts to liberalize the code were defeated and the Supreme Court upheld the validity of courts-martial.98 In what may be a fitting epilogue, Captain Killebrew—whose 1971 article had ignited much of the discussion—wrote on both the problems and benefits of the UCMJ.99 As a company commander, he still found the administration of justice overly cumbersome and protracted, but had come to terms with the process. And, revealingly, he had concluded that not only was “frequent use of the UCMJ self-defeating” but too often substituted for leadership. Most of the troops in the Volunteer Army were immature and badly instructed, and they frequently committed Article 15 offenses without recognizing the consequences. He had found that turning offenders over to noncommissioned officers for extra training, rather than charging them, was more effective and less demoralizing to potentially good Soldiers. Reversing his earlier claim that the legal code was too lenient, he now asserted, “the most striking thing is that the UCMJ is generally adequate to enforce a much stricter degree of discipline than the one somebody is usually griping about.”100
Judge Advocate General George S. Prugh commended both Killebrew’s
endorsement of the UCMJ and his advice to avoid excessive reliance on it
for discipline.101 Two years later, when Prugh’s successor wrote an article extolling the UCMJ and military justice, there was no hostile response. Like Killebrew, the Army officer corps agrees that the UCMJ was a benefit to discipline as opposed to a detriment.102
Conclusion
If my own experience is any guide, military historians encounter military law only when it becomes a political, public, or internal problem. This was certainly the case with the Philippine War atrocity scandals and, to a lesser extent, the public pressure to revise the Articles of War after World War II. But on closer examination, historians must recognize that the connection between military law and American military organizations means that military law is crucial to understanding a host of issues—ranging from how an Army is organized and how it functions, to whether commanders are good or bad leaders, to whether judicial reform is thought to be critical for success in in the next war.
Military justice continues to provide a convenient target for both internal and external critics. Yet it would be hard to argue—as Howze and others did—that military law’s evolution toward greater protections for military personnel, less command influence, and greater procedural rigor have not been beneficial. Anyone who has studied the court-martial records of the pre-World War I era will quickly find, as Larremore noted, rampant command influence, caste bias, and punitive sanctions. This is not just the all-too-common tendency of today’s historians to impose their own morality on the past. There are numerous contemporary criticisms of the Old Army’s judicial practices. Perhaps the most acerbic verdict was given by George van Horn Moseley. A few weeks after joining his cavalry regiment in 1899, he came to the conclusion that the reason no court-martial was allowed to remain in session after early afternoon was because no officer could be expected to be sober by then.103 Such rough justice might have been acceptable for the rough Soldiers of the frontier Army, but it simply will not suffice play for a service that has promised for decades to allow Soldiers to be all they can be. TAL
Professor Linn is the Ralph R. Thomas Professor in Liberal Arts at Texas A&M University in College Station, Texas. He is the author of five books on American military history. He has published over thirty articles, book chapters, and conference proceedings and given numerous international lectures on the American way of war, counterinsurgency, and the U.S. Army. Professor Linn delivered the Prugh Lecture on 14 April 2021 at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. This article is adapted from that lecture.
Notes
1. Andrew Byers, The Sexual Economy of War: Discipline and Desire in the
U.S. Army (2019); Elizabeth Lutes Hillman, Defending America: Military Culture and the
Cold War Court-Martial
(2005);
Kellie Wilson-Buford, Policing Sex and Marriage in the American
Military: The Court Martial and the Construction of Gender and Sexual
Deviance, 1950–2000 (2018).
2. Brian McAllister Linn, The Philippine War, 1899–1902
(2000);
Brian McAllister Linn, The U.S. Army and Counterinsurgency in the
Philippine War, 1899–1902
(1989).
3. Born in Maryland in 1838, Elwell Stephen Otis served in the Civil War
and the Indian campaigns of the 1870s, including the Battle of Little
Big Horn. Appointed a major general in 1898, Otis arrived in the
Philippines in late August that same year to be the commander of the
Department of the Pacific and the governor of the Philippines. Otis
maintained a “delicate peace with Filipino nationalists” as the United
States took control of the islands. Vernon L. Williams,
Otis, Elwell Stephen, in Reference Guide to United States Military History 1865–1919, at 196 (Charles R. Shrader ed., 1993).
4. A graduate of the U.S. Military Academy, Crowder earned a law degree at the University of Missouri in 1886. He served in the Philippines as a judge advocate and Associate Justice of the Philippine Supreme Court from 1898 to 1901. Then-Major General Enoch Crowder was the Judge Advocate General from 1911 to 1923; he also served as Provost Marshal General during World War I. David Lockmiller, Enoch H. Crowder: Soldier, Lawyer and Statesman
(1955).
5.
Paul A Kramer, The Blood of Government: Race, Empire, the United
States & the Philippines (2006).
6. The correlation between legal training and pacification operations
was already established in the U.S. Army. Colonel George Henry Sharpe, a
Yale Law School graduate who had practiced law before the Civil War,
headed the Bureau of Military Information from 1863 to 1865. This agency
gathered intelligence on the enemy and also conducted
counterintelligence by interrogated prisoners of war and refugees. While
the Bureau of Military Information was disbanded in 1865, the Army
established a Military Intelligence Division in 1888 and the 1892 Army
regulations required all brigade and division provost marshals to
maintain “secret service” on campaigns.
U.S. Cent. Intel. Agency, Intelligence in the Civil War
(2007),
https://www.cia.gov/static/44d5b357dc66ed40f2fbbd53f3bc7a29/Intelligence-in-the-Civil-War.pdf.
7. Lieutenant William T. Johnston, A Brief Record of Services Since
1898, [1902?] (on file with U.S. National Archives); Lieutenant William
T. Johnston,
Investigation into Methods Adopted by the Insurgents for Organizing
and Maintaining a Guerrilla Force, 21 May 1900, in 1 Annual Report of the War Department 1900
pt. 7, at 257–64;
Linn, U.S. Army and Counterinsurgency, supra note 2, at 41–45, 156.
8. Lieutenant George P. Whitsett to AG, Provost Marshal General, 29
August 1900, in 1 Annual Report of the War Department 1900
pt. 10, at 282–83.
9. Id.
10. Lieutenant William B. Cochran to AG, 3d District, Dep’t of N. Luzon, 5, 7 June 1899 (on file with U.S. National Archives).
11. Linn, The Philippine War, 1899–1902, supra note 2, at 299–305. The reputation of provosts was tainted by Major Edwin F. Glenn, a graduate of Columbia University’s law school and the 6th Separate Brigade’s judge advocate. Roaming between Samar and Leyte, Glenn kidnapped, tortured, and murdered civilians—including a Filipino priest—and defended the actions under General Orders No. 100 and the alleged savagery of the enemy. See General Court-Martial No. 33401 (Edwin F. Glenn) (on file with U.S. National Archives).
12. Headquarters, War Dep’t, Gen. Orders No. 100 (14 Apr. 1863).
13. Id.
14. See Luis H. Francia, History of the Philippines: From Indios Bravos to
Filipinos (2013) (arguing that war crimes and mistreatment of Filipinos during the
Philippine War was linked to White racism).
15. See Kramer, supra note 5 (arguing that racial politics of empire in Philippines was resulted in ruthless military campaigns against Filipinos).
16. Id.
17. The phrase originated in The Soldier’s Song, a popular tune sung by American Soldiers during the Philippine War:
In the days of dopey dreams—happy, peaceful Philippines,
When the bolomen were busy all night long.
When ladrones would steal and lie, and Americanos die,
Then you heard the soldiers sing this evening song:
Damn, damn, damn the insurrectos!
Cross-eyed kakiac ladrones!
Underneath the starry flag, civilize ‘em with a Krag,
And return us to our own beloved homes.
See Military Order of the Carabao, Wikipedia, https://en.wikipedia.org/wiki/Military_Order_of_the_Carabao (Sept. 8, 2021). The “Krag” refers to the Krag-Jorgensen rifle, a bolt-action weapon used by the U.S. Army during the war in the Philippines. Linn, The Philippine War, 1899–1902, supra note 2, at 322.
18. See Stuart C. Miller, Our Mylai of 1900: Americans in the Philippine Islands, 7 Trans-Action 19 (1970); Mark Twain, Mark Twain’s Weapons of Satire: Anti-imperialist Writings
on the Philippine-American War (Jim Zwick ed., 1992).
19. Ben Arnoldy, Columnist Compares Iraq War to Philippines. Blogosphere
Objects., Christian Sci. Monitor (July 29, 2009), https://www.csmonitor.com/World/Global-News/2009/0729/columnist-compares-iraq-war-to-philippines-blogosphere-objects; Ross Douthat, The War We’d Like to Forget, N.Y. Times (July 26, 2009), https://www.nytimes.com/2009/07/27/opinion/27douthat.html; Paul Kramer: Iraq, Afghan Wars Parallel Philippine Invasion, Columbian Coll. of Arts & Scis. (April 12, 2006), http://hnn.us/roundup/entries/23962.html; Gregg Jones, Honor in the Dust: Theodore Roosevelt, War in the
Philippines, and the Rise and Fall of America’s Imperial Dream (2012).
20.
Linn, The Philippine War, 1899–1902, supra note 2, at 315–19.
21. Id. at 318–19.
22. General Court-Martial No. 10196 (John H. A. Day).
23. General Court-Martial No. 30313 (Littleton W. T. Waller).
24. Linn, The Philippine War, 1899–1902, supra note 2, at 319. See also David L. Fritz, Before the “Howling Wilderness”: The Military Career of Jacob Hurd
Smith, 1862–1902, 43 Mil. Affs. 186 (1989).
25. Joseph L. Schott, The Ordeal of Samar
(1964);
Stanley Karnow, In Our Image: America’s Empire in the Philippines 189-94 (1989).
26. For more on George Davis, who served as the Judge Advocate General
from 1901 to 1911, see Fred L. Borch,
From Frontier Cavalryman to the World Stage: The Career of Army Judge
Advocate General George B. Davis, Army Hist., Winter 2010, at 6.
27. Linn, The Philippine War, 1899–1902 (2000), supra note 2, at 319.
28. Headquarters, War Dep’t, Gen. Order No. 80 (16 July 1902) (on file with U.S. National Archives). For the court-martial and the Judge Advocate General’s opinion, see General Court Martial 30310 (Littleton W. T. Waller) (on file with U.S. National Archives). For a sample of works on Samar and the Waller Affair, see Louise Barnett, Atrocity and American Military Justice in Southeast
Asia: Trial by Army 61–87 (2010); Thomas A. Bruno, The Violent End of Insurgency on Samar, 1901–1902, Army Hist., Spring 2011, at 30; Kenneth R. Young, Atrocities and War Crimes: The Cases of Major Waller and General
Smith, 12 Leyte-Samar Stud. 64 (1978); The Philippine War, 1899–1902, supra note 2, at 305–21.
29. Wilbur Larremore, American Courts-Martial, 177 N. Am. Rev. 607 (1903).
30. Id.
31. Id.
32. Id. See also Report of the Judge Advocate General, in 1 War Dep’t, Annual Report of the War Department 1905,
at 479. Some commands tried an average of four out of five Soldiers
annually.
Edward M. Coffman, The Regulars: The American Army, 1898–1941, at 119–20 (2007).
33. Philippine Organic Act, 32 Stat. 691 (1902).
34. Headquarters, Div. of the Phil., Gen. Order No. 152, 7 July 1902 (on file with U.S. National Archives). Brian McAllister Linn, Guardians of Empire: The U.S. Army and the
Pacific, 1902–1940, at 23–49 (1997).
35. John A. Hixon,
Philippine Scouts, in Historical Dictionary of the U.S. Army 366–67 (Jerold E. Brown, ed) (2001).
36. Posse Comitatus Act, 18 U.S.C. § 1385.
37. Memorandum from Tasker H. Bliss to Sec’y of War, No. 23160, 17 Nov.
1905 (on file with U.S. National Archives). Bliss was not a lawyer, but
was later made an Honorary Doctor of Laws at Harvard, Bucknell, and
Western Reserve universities.
Henry Blaine Davis, Jr., Generals in Khaki 42–43 (1998).
38.
Andrew J. Birtle, U.S. Army Counterinsurgency and Contingency
Operations Doctrine 1860–1941, at 153–58 (1998).
39. Grafton v. United States, 206 U.S. 333, 341 (1907).
40. Id. at 342.
41. Id. at 344.
42. Defense of Grafton and the Army, Army & Navy J., Mar. 2, 1907, at 44.
43. Grafton, 206 U.S. at 354–55.
44. Lessons of the Grafton Case, Army & Navy J., June 18, 1907, at 44. On the legal implications, see Captain Edward Sigerfoos, Are Members of the Military Forces in the Philippines Entitled to a
Trial by Jury?, 43
J. Mil. Serv. Inst. 222–33 (1908); Grafton Case and Cuban Service, Army & Navy J., Feb. 23, 1907, at 697.
45. Wilson v. Girard, 354 U.S. 524 (1957).
46. Id. at 526.
47. Girard v. Wilson, 152 F. Supp. 21, 36 (D.D.C. 1957).
48. Wilson v. Girard, 354 U.S. 524 (1957).
49. SP-3 William S. Girard File, Box 3, Biographical Files, Record Group 407 (on file with U.S. National Archives); Girard Case Files, Adjutant General’s Office (AGO) 250.4, Boxes 15–17, Command Information (CINFO) 1958, Entry NND 957387, Record Group 319 (on file with U.S. National Archives). For the political importance of Girard v. Wilson, see William S. Girard Files 1-4, Box 254, CF/GF, Dwight D. Eisenhower Papers, Eisenhower Presidential Library, Abilene, Kansas.
50. SP-3 William S. Girard File, Box 3, Biographical Files, Record Group 407 (on file with U.S. National Archives).
51. Letter from C. R. Revie to George. S. Meloy, 6 July 1957 (on file with U.S. National Archives).
52. Security Treaty Between the United States and Japan, 28 April 1952, 3 U.S.T. 3329, reprinted in Am. J. Int’l L. Supp., July 1952, at 96.
53. Letter from Frank C. Castagneto to George V. Underwood, 17 May 1963 (on file with U.S. National Archives).
54. Army Info. Sch., The Girard Case, 17 May 1963 (on file with U.S. National Archives).
55. Adjudication, Lexico, https://www.lexico.com/en/definition/adjudication (last visited Oct. 21, 2021).
56. Samuel J. Watson, Peacekeepers and Conquerors: The Army Officer Corps
on the American Frontier, 1821–1846, at 41 (2013).
57.
Randy Steffen, The Horse Soldier: The Revolution, War of 1812, the
Early Frontier 1776–1850, at 32-35 (1977).
58. Watson, supra note 56, at 41. See also Edward M. Coffman, The Old Army: A Portrait of the American Army in
Peacetime, 1784–1898, at 196–97 (1986);
Lorien Foote, The Gentlemen and the Roughs: Violence, Honor, and
Manhood in the Union Army (2010);
William B. Skelton, An American Profession of Arms: The Army Officer
Corps, 1784–1861, at 270–78 (1992);
Richard Bruce Winders, Mr. Polk’s Army: The American Military
Experience in the Mexican War
61–63 (1997).
59. An 1870 graduate of the U.S. Military Academy, William E. Birkhimer
served in the Philippines from 1899 to 1901. He was decorated with the
Medal of Honor for most distinguished gallantry in action at San Miguel
de Mayam on 13 May 1899.
George W. Cullem, 5 Biographical Register of the Officers and
Graduates of the United States Military Academy 167 (1910).
60. Robert L Bullard,
The Citizen Soldier–The Volunteer, 39 J. Mil. Serv. Inst. 153–67 (1906). James Parker, The Old Army: Memories, 1872–1918, at 370–71 (1929).
61. Coffman, supra note 58, at 78–79 (1986); Letter from Brigadier Gen. J. Franklin Bell to Adjutant Gen., Dep’t of the Phil., 24 August 1900, in 1 War Dep’t, Annual Report of the War Department, 1900,
pt. 5, at 190–91 (1900).
62. Letter from Adjutant, 32d, to Commanding Officer, 1st Battalion, 31
July 1900, Letters Received 314, Regt. Letters Received Book, 32d
Infantry Regiment (U.S. Volunteers) Records (on file with U.S. National
Archives).
63. Letter from Major Robert E. Spence to Lieutenant Miller, 3 January
1900, Letter Sent 35, 2d Battalion, Letters Sent Book, 32d Infantry
Regiment (U.S. Volunteers) Records.
64.
John Scott Reed, The US Volunteers in the Southern Philippines:
Counterinsurgency, Pacification, and Collaboration, 1899–1901, at 165–95 (2020).
65. Id.
66. George Gleason Bogert, Courts-Martial Criticisms and Proposed Reforms, 5
Cornell L.Q. 18, 18–19 (1919-1920); Edmund M. Morgan, The Existing Court-Martial System and the Ansell Army Articles, 29 Yale L.J. 52, 54–55 (1919).
67. Samuel T. Ansell, Military Justice, 5 Cornell L.Q. 1, 1–2 (1919).
68. Richard S. Faulkner, Pershing’s Crusaders: The American Soldier in
World War I, at 555–62 (2017).
69. Id. See also Walter Wilson, War and the Common Soldier, New Republic, May 22, 1935, at 36–39.
70. Fred L. Borch, Military Justice in Turmoil: The Ansell-Crowder Controversy of
1917–1920, Army Law., Mar. 2017, at 1; Major Terry W. Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T.
Ansell, 35 Mil. L. Rev. 1 (1967); Joshua E. Kastenberg, To Raise and Discipline an Army: Major Enoch
Crowder, The Judge Advocate General’s Office and the Realignment of
Civil and Military Relations in World War I (2017).
71. Paul Jones, Barrack-Room View of the Brass, Saturday Evening Post, Jan. 5, 1946, at 96; War Dep’t, Special Memorandum No. 11-209, subject: Voluntary Comments About “The Army” Made by a Group of Army Officers November–December 1946 (20 Jan.1947) (on file with U.S. National Archives). For the Doolittle Board, see War Dep’t, The Report of the Secretary of War’s Board on
Officer-Enlisted Relationships
(May 27, 1946).
72. Frederick Bernays Weiner,
Lament for a Skulker, Combat Forces J., July 1954, at 33–38.
73. Antonio Monea, The Beast of Lichfield: Colonel James A. Kilian and the Infamous 10th
Reinforcement Depot, Army Law., no. 3, 2019, at 20–22.
74. The Malady Lingers On, Army & Navy Bulletin, Mar. 8, 1947, at 4; Jack Gieck, Lichfield: The U.S. Army on Trial
(1997). For an example of the continuing prevalence of the “blame the
citizen-officer” narrative, see
Don Vandergriff, The Path to Victory: America’s Army and the
Revolution in Human Affairs
75 (2002).
75. Robert Ruark,
A Very Loud Whistle Stirs up an Ill Wind for Lt. Gen. Lee, Armed Force, Aug. 16, 1947, at 3; Robert Ruark, Ruark Nears End of His European Journey with a Final Look at
Paris, Armed Force, Sept. 20, 1947, at 3.
76. 1 Jonathan Lurie, Arming Military Justice: The Origins of the United States Court of Military Appeals,
1775–1950, at 127–255 (1992). For an extensive examination of the post-World War II draft, see George Q. Flynn, The Draft, 1940–1973 (1993).
77. Ernest M. Brannon,
Remarks of TJAG of the Army at Annual Meeting, Judge Advoc. J. Bull., Oct. 1952, at 15–17 (on file with Army Heritage and Educational Center, Carlisle, Pennsylvania).
78. Id.; Persons Oral History, Wilton B. Persons Papers, Army Heritage and Educ. Ctr., Carlisle, Pa.
79. Memorandum from Headquarters, 7700th Troop Info. and Educ. Grp., Suggestions of Officers on Improving USAREUR (Survey 107) (13 Nov. 1950) (on file with U.S. National Archives).
80. Persons Oral History, supra note 78, at 119; Eugene P. Forrester Papers, (on file with Army Heritage and Educational Center, Carlisle, Pennsylvania).
81. Elizabeth Lutes Hillman, Defending America: Military Culture and the
Cold War Court-Martial
30-31 (2005).
82. Memorandum, Adjutant Gen.’s Off. to Commanders in Chief, subject:
Administration of Military Justice (15 Dec. 1952) (on file with U.S.
National Archives).
83. Id.
84. Office of Judge Advoc Gen., In the Review . . . United States v Gentry W. Wade, 16 Dec. 1958 (on file with U.S. National Archives).
85. Susan L. Carruthers, Cold War Captives: Imprisonment, Escape, and
Brainwashing
206 (2009).
Eugene Kinkead, In Every War but One (1959). Christopher S. DeRosa, Political Indoctrination in the U.S. Army from
World War II to the Vietnam War
128–31 (2006);
Ron Robin, The Making of the Cold War Enemy: Culture and Politics in
the Military-Intellectual Complex
162–81 (2001);
Charles C. Moskos Jr., The American Enlisted Man: The Rank and File
in Today’s Military
9–13 (1970).
86.
T. R. Fehrenbach, This Kind of War: A Study of Unpreparedness
(1963).
87. Roy K. Flint,
Task Force Smith and the 24th Division: Delay and Withdrawal, 5–19
July 1950, in America’s First Battles, 1776–1965, at 266 (Charles E. Heller & William A. Stofft eds., 1986). For a critique of senior leadership in Korea, see Thomas E. Ricks, The Generals: American Military Command from World
War II to Today
121–49 (2012). See also Thomas E. Hanson, Combat Ready? The Eighth U.S. Army on the Eve of
the Korean War (2010); William M. Donnelly,
The Best Army That Can Be Put in the Field in the Circumstances: The
U.S. Army, July 1951–July 1953, 71 J. Mil. Hist. 809 (2007). In what may be a revealing omission, the best military history of the war does not mention a negative impact on discipline or morale from the UCMJ. See Allan R. Millett, The War for Korea, 1950–1951: They Came from the
North
(2010).
88. Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335
(1968).
89. U.S.
Dep’t of Def., Report of the Task Force on the Administration of
Military Justice in the Armed Forces 36–69 (1972). John R. Prosser, Reforming Military Justice, Army, Apr. 1973, at 38–42; Frederick B. Wiener, The Perils of Tinkering with Military Justice, Army, Nov. 1970, at 22–25; Sen. Bayh’s Proposal to Civilianize the UCMJ, Army, Apr. 1973, at 40.
90. Captain Robert B. Killebrew, Volunteer Army: How it Looks to a Company Commander, Army, Mar. 1971, at 19–22. For a response, see Joseph W. Sutton to Editor, Army,
June 1971, at 4.
91. George G. Eddy,
Military Discipline, Army, Mar. 1972, at 3.
92. Albert N. Garland, Military Justice Before the Bar, Army, Jan. 1972, at 27–29.
93. Hamilton H. Howze, Military Discipline and National Security, Army, Jan. 1971, at 11.
94. Id. at 15.
95. G. W. Putnam to Editor, Army, Mar. 1971, at 3–4.
96. Nicholas P. Retson, Military Discipline, Army, Mar. 1972, at 4.
97. Jack F. Lane, Discipline and Justice, Army, June 1972, at 4.
98. Solorio v. United States, 483 U.S. 435 (1987). See also Dixie A, Morrow, Solorio v. United States: The Death and Burial of “Service-Connection” Jurisdiction, 28 A.F. L. Rev. 201 (1988).
99. Robert B. Killebrew,
Where the Squad Leader Makes a Difference, Army, Mar. 1974, at 33.
100. Id.
101. George S. Prugh, Good Judgment, Army, July 1974, at 3.
102. Wilton B. Persons Jr., Military Justice: Fair and Efficient, Army, Oct. 1976, at 116.
103. George van Horn Mosely, One Soldier’s Journey 54–55 (unpublished, on file with the Library of Congress). Moseley, who graduated from the U.S. Military Academy in 1899 and retired as a major general in 1938, was a controversial figure whose racist and anti-Semitic opinions became more pronounced after he left active duty. In June 1939, for example, he testified before the House Un-American Activities Committee that a “Jewish Communist conspiracy” was about to seize control of the United States in a coup d’etat. Joshua E. Kastenberg, The Crisis of June 2020: The Case of the Retired General and Admirals and the Clarion Calls of their Critics in Lex Non Scripta (Historic) Perspective, 99 Univ. Neb. L. Rev. 594, 609–15 (2021).