“Book” Review
Top Ten Military Justice Movies
Reviewed by Major Benjamin M. Joslin
Life imitates art far more than Art imitates life.1
When I deployed to Afghanistan in October 2020,
Department of Defense policy required fourteen days of Restriction of
Movement (ROM) before most overseas travel due to the COVID-19
pandemic.2For me, that meant two weeks in a hotel room. Realizing I would need a hobby to pass the time in ROM, I decided to watch every military justice movie I could find. This article lists my ranking of the top ten military justice movies, which I define as films featuring a court-martial or military tribunal as central to the plot. While there are certainly more serious topics to write about, each film on this list should cause military justice practitioners both reflection and enjoyment. Moreover, these films provide real-world lessons for judge advocates (JAs) and paralegals on a range of relevant topics. The films were selected based on their intriguing stories and profound messages. The list will include some plot features and context of each movie; but, to avoid spoilers, it will not discuss the results of the featured trials.
10. Judgment at Nuremberg
(1961)
This stunning and thought-provoking film is an adapted version of a true
story, The Justice Case,3 in the Nuremberg Military Tribunals.4 Four Nazi judges are tried in a U.S. military tribunal convened in Nuremberg, Germany in 1948 for “murder, brutalities, torture, atrocities.”5 The prosecutor at the tribunal, a U.S. Army JA colonel, notes that the judges have come full circle to sit where they are as defendants. “Here, they’ll receive the justice they denied others. They’ll be judged according to the evidence presented in this courtroom.”6 The tribunal is comprised of three American judges. This, according to the prosecutor, is because “only a Judge knows how much more a court is, than a courtroom. It is a process, and a spirit. It is the House of Law.”7
The prosecution’s case is that the accused “share responsibility for the most malignant, most calculated, most devastating crimes in the history of all mankind.”8 On the other hand, the defense counsel paints his clients as dutiful patriots who merely performed their job as non-combatants: “Should [these judges] have carried out the laws of their country, or should they have refused to carry them out and become traitors? This is the crux of the issue at the bottom of this trial.”9 Through video evidence, the prosecution clearly establishes that the Nazis committed horrible crimes against humanity during the Holocaust. It further establishes that the accused judges swore oaths of allegiance to Adolf Hitler and wore swastikas on their robes. But the prosecution struggles to provide evidence of a direct, concrete link between the defendants and the atrocities committed. This challenge is likely due to several factors, including the extensive murders by the Nazis of those who might otherwise be witnesses, the reluctance of living Germans to admit insider knowledge of the Nazi system, and the separation between the judges’ roles and the actual commission of the terrible Nazi crimes. However, just as it appears that the prosecution’s case may fall short, one of the defendants insists on taking the stand over his own counsel’s objection. Will the outcome of this case reflect accountability for those who facilitated crimes against humanity, or will the complexities of international criminal law keep the defendants free from criminal responsibility?
Two key professional development points resonate from this film. First, “[t]he basis of this case is, of course, the conflict between allegiance to international law and to the laws of one’s own country.”10 Most Soldiers, and all JAs, are familiar with the basic principle that Soldiers have a duty to disobey unlawful orders.11 But what if the orders are lawful under domestic law, yet unlawful according to international law? Can (and should) Soldiers or others involved in the system be held criminally liable?12 Second, how far do aiding and abetting laws extend criminal liability past the actual perpetrator of the offense?13
In this case, the defense counsel argues that it would set an
unsustainable precedent to hold judges criminally responsible for Nazi
atrocities committed outside their presence. On the other hand, if the
judges facilitated a system that they knew was producing horrific crimes
against humanity, why should the law allow them to escape criminal
responsibility?
The presiding judge in
Judgment at Nuremberg delivers an important speech at the end of the film, explaining the decisions reached and the tribunal’s rationale. It is a must-watch for JAs and paralegals.
9. The Rack (1956)
“Every Soldier has his breaking point, his horizon of endurable anguish.”14 A decorated infantry captain arrives home from the Korean War, where he has served for three years—including two in a Chinese prisoner of war (POW) camp. Soon after his return he is served with court-martial charges for “collaborating with the enemy.”15
The accused’s assigned defense counsel, an Army JA lieutenant colonel, believes there may be a valid defense: “I don’t know how I would have held up in your position, but I kind of think I might have done about the same. I think anyone would have who went through what you did.”16
At trial, prosecution witnesses reveal that the accused served as a Chinese propaganda spokesperson in the camp, and even signed leaflets attempting to convince Americans to fight for the enemy: “Turn your guns against those officers who are leading you in this unjust and criminal war.”17 Another witness testifies that the accused foiled a POW escape plot by revealing it to the Chinese guards. However, on cross, the witnesses concede that the accused seemed “terrified” during the rare occasions they saw him in the camp, and they “could not possibly know under what circumstances he signed the leaflet.”18 The defense counsel admits his client committed the acts in question, but argues that it was only because he reached his breaking point: “We find ourselves having to judge a man who committed certain acts under duress, where the mind can be placed upon ‘the rack,’ and made to suffer agony for which there is no measure . . . . Therefore, although he does not deny his part in the misdeeds that were committed, he does deny that they were committed willingly, willfully, or knowingly.”19 Will the court members have any sympathy for an officer who turned against his country, regardless of the circumstances?
“Coercion or duress” is20 (and was, at the time of the Korean War)21 a complete defense to Article 103b (formerly 104), Uniform Code of Military Justice (UCMJ), “Aiding the Enemy.”22 The court members in The Rack resolve the question of whether the defense applies in this case, and they are likely correct based on the letter of the law.23 However, military justice practitioners will benefit from a robust discussion as to whether duress should protect the accused from criminal responsibility here.24 Could lack of mental responsibility also be a relevant defense in this case?25 Next, many JAs have given Code of Conduct26
briefings to Soldiers.27 The Code of Conduct was written and published in the aftermath of the Korean War to provide a “simple, easily understood code to govern [American Soldiers’] conduct while a prisoner of war.”28 The Code is clear that Soldiers may “give no information nor take any part in any action which might be harmful to [their] comrades,” but also uses terms that imply our government recognizes a gray area when it comes to Soldiers subjected to physical or mental torture.29 Specifically, The Code instructs Soldiers to “resist by all means available,” and “evade answering further questions to the utmost of [their abilities],” suggesting there is a difference between a collaborator and a resister, who only after having been physically or mentally tortured, complies with a captor’s demand in order to preserve life or limb.30 Had the Code existed during the Korean War, would the accused’s conduct in The Rack have complied with it?31 And how does the Code interplay with criminal law, if at all?32
Watch The Rack until the end to see the court-martial’s findings: “The accused will rise and face the court.”33
8. The Court-Martial of Billy Mitchell
(1955)
In today’s military, there are several fora in which Soldiers can
lawfully make recommendations for policy change, pitch their ideas for
systemic improvement, and even lodge complaints against their
superiors.34 In the 1920s, that may not have been the case.
“We find ourselves having to judge a man who committed certain acts under duress, where the mind can be placed upon ‘the rack,’ and made to suffer agony for which there is no measure . . . . Therefore, although he does not deny his part in the misdeeds that were committed, he does deny that they were committed willingly, willfully, or knowingly.”
Based on a true story, The Court-Martial of Billy Mitchell opens with a shot of the filing cabinet where the real life “Record of Trial, Colonel William Mitchell” is stored.35
“Billy” Mitchell is the passionate commander of the underfunded and
underappreciated U.S. Army “Air Service.” He advocates regularly to
higher headquarters for more focus and funding on the Army’s air assets.
“One of these days, half the world will be in ruins from the air. I want
this country to be in the other half.”36
Unfortunately, his pleas fall on deaf ears: “Where’s the money coming
from? There’s not even enough to go around for the Army and Navy
now.”37
Colonel Mitchell writes a letter a day seeking more funding, but after multiple high-profile aviation accidents result in preventable pilot and aircrew deaths, he decides he must take more drastic action: “I would not be keeping faith with my dead comrades if I kept quiet any longer.”38 Colonel Mitchell convenes the press and states, “These accidents are the direct result of incompetence, criminal negligence, and the almost treasonable administration of our national defense by the Navy and the War Department.”39 He is promptly court-martialed for allegedly violating the 96th Article of War, the predecessor to today’s Article 134, UCMJ.40
Article 96 was “[t]he catch-all clause [] [c]over[ed] everything from
kicking a horse to kissing a sergeant.”41
At trial, the prosecution attempts to keep the case simple and
straightforward: “Did or did not the accused make the newspaper
statements attributed to him? If he did, he’s guilty.”42
On the other hand, the defense argues that Colonel Mitchell can’t be
guilty if his public statements regarding the military’s incompetence
were true.43
Does the court-martial panel—a “who’s who”44
of senior general officers—care about the truth in Colonel Mitchell’s
statements, or do they take the prosecution’s view that this is a simple
case of a Soldier improperly bypassing the chain of command?
The Court-Martial of Billy Mitchell features at least two key legal issues worth discussion. First, does the truth or non-truth of Colonel Mitchell’s public statement impact his guilt or innocence? In other words, may witnesses be called by both sides to corroborate or refute Colonel Mitchell’s assertions regarding the “incompetence” of the Navy and War Department? In this movie, the court members vote to allow such “justification” witnesses, since “the whole foundation of our legal system and of our country for that matter, rests on the right of a man to defend himself.”45 Would such witnesses be allowed in a modern court-martial for an offense similar to Colonel Mitchell’s? The truthfulness of a statement made in violation of Articles 88, 89, and 91, UCMJ, is immaterial, but what about Article 134?46 Second, where does a Soldier’s right to raise important issues end and criminal conduct begin? Colonel Mitchell testifies,
I’ve been wearing the uniform of the United States Army most of my adult life, and I’ve worn it with pride. But if being a good Soldier is your kind of good Soldier, unable to think for himself and say what he thinks, of being narrow and blind and insensible to a higher duty, you can have the uniform and all that goes with it.47
Of course, Soldiers should raise safety and national security issues when they see them, but they also do not have the right to go directly to the media whenever they disagree with a military policy or decision, as Mitchell did. Is there a clear line?48
In Colonel Mitchell’s case, history has looked kindly upon him. He is
widely considered “one of the greatest airmen in history.”49
7.
Hart’s War (2002)
In late 1944, Lieutenant Thomas Hart, a Yale law student-turned Army staff officer, is captured by the Germans and sent to a POW stalag deep in enemy territory. There, Hart witnesses captured Tuskegee Airmen50 face severe taunting and discrimination from their own countrymen. One night, an aggressively racist U.S. Soldier in the camp is found dead, and a Black pilot is seen standing over the body.
German guards move to summarily execute the pilot, but the Prisoners’ Representative,51 a fourth-generation-military West Point graduate colonel, knows the pilot is innocent. He intervenes and requests the German camp commandant to allow the U.S. POWs to administer internal justice, arguing that the suspected killer has a right to a trial. The commandant acquiesces, seeing an opportunity to sow division and discord between Americans: “Ah, a trial. A court-martial. Like in your American movies? Yes? That should be fun.”52 Lieutenant Hart is detailed as defense counsel.
Testimony at trial reveals deep-seated prejudices in some U.S. Soldiers, to the camp commandant’s delight. One prosecution witness suggests “colored” men cannot control themselves.53
Another witness falsely claims he personally witnessed the accused snap
the neck of the decedent.54 Meanwhile, Hart zealously advocates for his client by raising due process objections. The court-martial is apparently playing right into the hands of the German commandant. “He might have been better off in Alabama. Lynchings are over in minutes. The kind of justice he’s suffering here is far crueler.”55 However, on the eve of closing arguments, Hart learns that the senior ranking U.S. officer has a bigger purpose for this trial. The colonel admonishes Hart: “make any summation you like,” but do not “fuck with this operation in any way.”56 Can Hart preserve his innocent client’s life while still facilitating the mission?
This film provokes reflection on multiple topics familiar to JAs, including the Geneva Convention Relative to the Treatment of Prisoners of War57 and the Code of Conduct,58 but the key lessons in Hart’s War come from the featured court-martial. First, the case is a reminder that racism in the military justice system can come from many sources—including witnesses. During World War II, de jure racism was military policy, with segregated units and facilities.59 De jure discrimination is, of course, no longer military policy, but race can still play a subtle role in all aspects of the justice process,60 and it is important for military justice practitioners to maintain awareness of this fact. Second, an underlying theme in the Hart’s War trial is the balance between military necessity and justice. The accused pilot’s due process is severely limited due to mission requirements. Does the purpose of the military justice system shift during wartime?61 When a contradiction exists between military mission and due process, which should prevail?
Hart is unwilling to stand by while his innocent client is denied justice, but struggles to reconcile a strong defense with the best interests of his country’s war efforts. This clash contributes to a great plot and an even better ending.
“Note the time. Captain, I’m sorry, but you’re a sick man. I’m relieving you as Captain of this ship.”
6. The Caine Mutiny
(1954)
The U.S.S. Caine is a minesweeper serving in the Pacific theater during World War II. After eighteen months of combat, the “men act like a bunch of cutthroats and the decks look like a Singapore junk.”62 A new captain comes on board, seeking to run a tight ship by the book, regardless of the cost. At first, he cleans things up nicely; but his disciplinary focus quickly gives way to obsession over minutia at the expense of the mission. While he is busy personally reprimanding a Soldier for an untucked shirttail, the Caine turns in a circle and cuts its own towline. In another incident, the captain’s compulsive behavior results in combat ineffectiveness during a key mission.
The captain’s pattern becomes more apparent and severe. The executive officer and other officers of the ship consider whether their boss may be mentally unstable. They debate relieving him under “Article 184 of Naval Regulations”: “It is conceivable that most unusual and extraordinary circumstances may arise in which the relief from duty of a commanding officer by a subordinate becomes necessary.”63 One night during a dangerous storm, the captain insists that the Caine must continue to “run with our stern to the wind” even though this course puts it at grave risk of going down. On the brink of disaster, and with perhaps no other choice to save the men and the ship, the executive officer orders the helmsman to turn against the wind. He says, “Note the time. Captain, I’m sorry, but you’re a sick man. I’m relieving you as Captain of this ship.”64 The executive officer maneuvers the ship safely out of the storm, but when the Caine returns to U.S. soil he is promptly court-martialed for mutiny.
The assigned defense counsel assesses the case and bluntly tells his client: “You have an excellent chance of being hanged.”65 Will the members find that the accused properly invoked “Article 184” to save the Caine and its men, or find him guilty of mutiny on penalty of death?
The court-martial depicted in The Caine Mutiny contains fantastic courtroom scenes and top-notch entertainment value. This trial certainly serves as a reminder to both sides to prepare their witnesses for cross-examination. Above all, though, this film raises the question of whether any possible conditions would allow for a lawful and appropriate relief of a failing commander in the field by subordinates in a modern U.S. Army unit. Cut off from communication during combat, could a real world executive officer relieve their company commander due to mental instability or a repeated failure to safely perform the mission? The Army does not have an equivalent of the fictional “Article 184 of Naval Regulations,” but practitioners researching and discussing this question would do well to begin with Army Regulation 600-20, paragraph 2–9,66 Article 94, UCMJ,67 and Rule for Courts-Martial 916(c),68 outlining the defense of “Justification.”69
As for the accused executive officer of the Caine, his fate rests on the deposed ship captain’s performance under cross-examination by a stellar JA defense attorney.
5. Paths of Glory
(1957)
“The paths of glory lead but to the grave.”70
So goes the elegy from which the title of this film derives.
Paths of Glory is based on a book of the same name, written by a World War I veteran and loosely based on a true story.71
“By 1916, after two grisly years of trench warfare . . . successful attacks are measured in hundreds of yards, and paid for in lives by hundreds of thousands.”72 A French division commander receives orders to take “the Ant Hill.” “It’s the key to the whole German position in this sector.”73 Unfortunately, it’s a suicide mission, since what’s left of the Division “is in no position to even hold the Ant Hill, let alone take it.”74 But orders are orders, especially when another star and a Corps command are on the table.
Disregarding the predicted casualty rate of more than half the attacking force and the extremely low odds of mission success, the commanding general passes the order down the chain with gusto, but with little assistance or guidance, saying “All France is depending on you.”75 The operation predictably fails. Scores of soldiers are killed, others are forced to retreat, and many more are unable to even leave their own trenches because of suppressing German machine-gun fire. However, rather than reflect on the impossibility of the mission, the commanding general instead convenes a court-martial. He orders one man randomly chosen from each company in the first wave of the attack to be “tried, under penalty of death, for cowardice.”76
A bold colonel (the commander who courageously led the failed mission) volunteers to serve as defense counsel. Coincidentally, before the war he was “perhaps the foremost criminal lawyer in all of France.”77 In this case, he faces an altogether new challenge: blatant unlawful command influence.78 The commanding general, who has already made his position well known to the jurors—“if those little sweethearts won’t face German bullets, they’ll face French ones!”79—personally observes the trial.
The prosecution’s case is simple: orders are orders. “The failed attack was a stain on the flag of France. A blot on the honor of every man, woman, and child in the French nation.”80
On the other hand, the defense counsel attempts to argue the nuance of
the situation: when a Soldier faces definite death for no possible
military benefit, certainly he shouldn’t be expected to continue to
advance alone. Can the members reach any verdict other than the one
their commanding general clearly wants?
Every JA is familiar with the modern prohibition on unlawful command
influence in the military. This film highlights why military justice can
never be just if there is unlawful command influence. The convening
authority in Paths of Glory is personally interested in the outcome of the trial out of career-based self-interest. He appoints his own staff as court-martial jurors and makes clear to them his preferred outcome. While real-world examples in the modern U.S. Army are unlikely to be this extreme, even minor hints or perceptions of unlawful command interest in a specified outcome can have determinative effects on case results. If the commanding general in this film had a staff judge advocate, what would they have advised? What would they have done in the event that this advice was not followed? The second military justice question raised in Paths of Glory is whether all orders apparently relating to a military mission are lawful. Even an order purportedly connected to a lawful command end can be unlawful if its sole purpose is to accomplish some private end, or it is arbitrary and unreasonable.81 In this film, was the commanding general’s order to attack the Ant Hill in this film a lawful one, even though he knew it was a “suicide mission”?
It is highly unlikely that the defense counsel in Paths of Glory would have been successful with any motions to dismiss for unlawful command influence or an unlawful order. As counsel himself put it during closing argument, “[t]he attack yesterday morning was no stain on the honor of France, and certainly no disgrace to the fighting men of this nation. But this court martial is such a stain, and such a disgrace.”82
4. The Court-Martial of Jackie Robinson
(1990)
Jackie Robinson is an Army second lieutenant, stationed at Camp Hood,
Texas—“where Satan’s step-brother, Jim Crow, reigns supreme”83—during World War II. Though he was an athletic stand-out in college,
he has not yet considered joining the Brooklyn Dodgers as the first
African-American person to ever play Major League Baseball.84
Lieutenant Robinson serves as a platoon leader in a tank battalion
preparing to deploy overseas. One afternoon, he boards an inter-post bus
and sits in a middle seat. When ordered to move to the back of the bus
by the racist bus driver, Lieutenant Robinson declines. He responds
calmly and correctly, “I’ll sit where I please. Regulations forbid
segregation on any Army transportation.”85
The driver reports him to the Military Police (MP), who are no help at
all. They gratuitously use the n-word toward Lieutenant Robinson, and do
not accord him nearly the respect due to a superior commissioned
officer. Lieutenant Robinson, understandably reaching the limits of his
patience, tells one MP sergeant: “call me [the n-word] again, and I’ll
break you in two.”86 He also becomes frustrated—and voices his frustration—with an MP captain at the station after being treated like a second-class citizen and called the n-word repeatedly. Lieutenant Robinson is soon placed under arrest. The MP captain says, “[t]his is the south, boy. Custom and tradition die hard.”87
Court-martial charges subsequently preferred against Lieutenant Robinson include: insubordination, disturbing the peace, conduct unbecoming an officer, and violation of an order. The accused is represented by a fiery JA lieutenant, who notes: “The charges should read ‘overt discrimination, disrespect to an officer, unlawful detention, and harassment.’ Lieutenant Robinson should be sitting on the other side of this courtroom.”88 Conversely, the prosecutor attempts to move the trial away from any racial connotation, and seeks to streamline the case solely as an issue of good order and discipline. Will the Camp Hood jury, six out of seven of whom are White officers in a segregated Army in the Jim Crow south, reach a just verdict in an unjust prosecution?
Based on a true story, this movie serves as another reminder of the relatively recent de jure racial discrimination in our armed forces and the importance of being aware of conscious or subconscious racial biases in all stages of the justice process. Oftentimes, case files can be impacted by racial biases before they ever even reach a JA. If this case file reached a trial counsel’s desk today, how would the trial counsel respond? Would they find probable cause that Lieutenant Robinson committed any offenses, or would they open an investigation into Equal Opportunity discrimination by the MPs? The Court-Martial of Jackie Robinson is also a reminder that the cases we try do not just impact individual lives, but can also change history. Jackie Robinson’s military trial undoubtedly impacted his incredible life story in many ways, perhaps even influencing his successful baseball career as the first African-American player in the major leagues. In real life, “[t]he character and resiliency Robinson displayed at his court-martial when his reputation, career, and freedom was on the line were precisely the qualities that Branch Rickey, President and General Manager of the Brooklyn Dodgers, was looking for when he selected Robinson” to be the first African-American player in Major League Baseball.89 Had Lieutenant Robinson’s defense counsel not prepared so thoroughly, and so passionately and eloquently defended him, one never knows how baseball (and American) history may have been different.
3. Breaker Morant
(1980)
Based on a true story, this film is about war, peace, colonial empires,
rules of engagement, and scapegoating operational-level Soldiers for
strategic-level failures. It is also a fantastic courtroom drama. At the
turn of the twentieth century, the British Army is in South Africa
fighting the Boer War. “The issues are complex, but basically the Boer
population (mostly Dutch) wishes to retain their independence from
England.”90 By 1901, the British Empire occupies most of Boer territory, but the Boers resist total defeat through effective guerilla warfare.
Australian Lieutenant Breaker Morant—so-named because of his penchant for breaking horses—serves in an elite British mounted infantry unit designed specifically to defeat the Boer guerillas. One day, Morant’s commander informs him that the rules of engagement concerning captured Boers have changed: “New orders. From [the senior British officer in South Africa] Lord Kitchener . . . No prisoners. The gentlemen’s war is over.”91 Lieutenant Morant is initially surprised at the change, but he embraces it when he is placed in charge after his commander is mutilated and killed by Boer guerillas. He subsequently orders the execution of a total of seven captured or surrendered enemies. Additionally, in a separate incident, Lieutenant Morant orders the killing of a German missionary whom he suspects of being a direct participant in hostilities working with the Boer. When word of all this gets out, political considerations force Lord Kitchener to take the matter seriously, despite the fact that the Boer prisoners were executed under his very own orders. Kitchener promptly convenes a court-martial. “I’m trying to put an end to this useless war. The Boer leaders must see this court-martial as a demonstration of our impartial justice. If these three Australians have to be sacrificed to help bring about a peace conference, it’s a small price to pay.”92
Lieutenant Morant and two others in his unit are tried for murder on
penalty of death.
The accused are represented by an Australian major. He has never tried a
criminal case, let alone a court-martial, but he was a “solicitor” back
home.
The assigned defense counsel tells his clients: “I handled land
conveyancing and wills.”93
The accused Soldiers are not impressed. “Wills. Might come in handy.”94
In this court-martial, “obedience to orders” appears to be a complete defense, even if the accused knew or should have known of the order’s unlawfulness.95 Additionally, the defense convincingly beats the murder charge relating to the missionary. Therefore, the case boils down to a single question: whether the accused were operating under orders when they executed surrendered enemy prisoners. The defense case—an uphill battle, to say the least—is that Lord Kitchener issued verbal orders contradicting the British Manual for Military Law.96 Defense counsel even requests Lord Kitchener himself as a witness, to “settle, once and for all, the matter of whether or not orders were issued to shoot prisoners.”97 Will the court do “impartial justice” by executing the accused officers, or will it find that they acted in accordance with the rules of engagement, and spare their lives at the potential expense of Lord Kitchener’s peace conference?
This film is a case study in why Soldiers must disobey unlawful orders, including unlawful rules of engagement. An order to kill prisoners is clearly an order to violate the laws of armed conflict and the UCMJ.98 Throughout the film, there is no doubt that Breaker Morant and his co-accused committed cold-blooded murder of captured Boer prisoners. But this film should cause military justice practitioners to reflect on levels of responsibility for war crimes. Soldiers in the field, at the lowest levels, are the easiest to scapegoat. However, leaders set culture and policy. Adherence to an unlawful order is not a defense under modern military law, but it is an extenuating factor. Even in today’s military, would the accuseds’ claims of acting under Lord Kitchener’s verbal order fall on deaf ears, or would Lord Kitchener be relieved, investigated, and tried?
Additionally, this film presents important questions about the nature of armed conflict and the rules of engagement against a guerilla force. Rules of engagement are based on complex considerations including law, policy, and mission. In this film, Lord Kitchener initially determined that the rules of engagement were too restrictive to enable mission success. However, his updated rules clearly violated the law. How can JAs effectively advise commanders in such circumstances? Rules of engagement must be tactically sound, easily understandable, and must enable mission accomplishment. But above all else, they must be legal.
Viewers will find out at the end of this film whether the accused are acquitted or become “scapegoats of the empire.”99 For Breaker Morant’s part, he certainly felt his wartime service put him in an impossible situation: “If you encounter any Boers, you really must not loot ‘em. And if you wish to leave these shores, for pity’s sake, don’t shoot ‘em!”100
2. King and Country
(1965)
“A proper court is concerned with law. It’s a bit amateur to plead for
justice.”101 This movie is about the horrors of war, depicted not through scenes of battle, but through a field court-martial held in the trenches. A young man volunteers to join the British Army in 1914 for “king and country.”102 During three years of combat on the front lines, all other members of his unit are killed, including some right in front of him. He narrowly escapes death himself only to receive a letter from a neighbor telling him that his wife has left him. He visits his unit’s medical officer, declaring that he can’t eat, can’t sleep, and can’t stop shaking. The doc examines the young private for only five minutes, diagnoses him with “cold feet,”103 and sends him back to duty, later explaining, “Do you expect me to leave wounded soldiers to die while I cross question cowards?”104
Soon thereafter, the young soldier deserts his unit rather than return
to combat yet again. Within twenty-four hours he is caught by the
military police, brought back to the trenches, and tried in a hastily
convened court-martial. The private’s assigned defense counsel, a
battle-hardened combat arms officer, believes his own client should be
sentenced to death. Upon receiving his assignment to defend a deserter,
he laments: “We’re all on trial for our lives. The only thing that makes
him original is that he’s failed. Failed as a man and as a
soldier.”105 Nevertheless, the assigned defense counsel puts on a masterful extenuation case, including an effective cross-examination of the medical officer, who continues to insist the accused did not suffer from “shell shock.”106 Defense counsel inquires:
Is there an exact moment in the life of a soldier before which he is not suffering from shell shock and after which he is? An exact boundary about which no two doctors will ever disagree? An exact boundary on the one side of which a man is required by Army law to pull himself together, or on the other, if he cannot, he is liable to be shot as a criminal? Is there?107
During a compelling closing argument, counsel argues that his client has “seen it all. A man can only take so much. So much blood, so much filth, so much dying . . . He had one instinct, only, left . . . . The instinct to walk away from the guns.”108
The officer later tells his client, “Don’t thank me for doing my duty. I
had to. Just as you should have done yours.”109
How does a war-numb court-martial panel balance the understandable
motives of this broken soldier with the need to maintain good order and
discipline in the trenches?
Every attorney knows on an academic level that defense attorneys must
zealously advocate for their clients regardless of personal feeling.
This film depicts an assigned defense counsel performing this duty
wholeheartedly, even though he personally believes his client should be
shot. Can all military justice practitioners say that they would do the
same? This movie causes important reflection on whether personal
feelings sometimes impact our performance in court, even subtly or
subconsciously. Additionally, this movie highlights a unique and
important aspect of the military justice system: the impact of combat on
conduct. Formerly known as “shell shock,” and now known as
“post-traumatic stress,” many Soldiers act completely out of character
after experiencing the death of their friends, near-death themselves,
and even after carrying out assigned missions to kill the enemy.110
Deterrence of desertion is absolutely essential, especially on the front
lines of a deadly conflict, but military justice practitioners should
never overlook extenuating factors relating to post-traumatic stress.
How would today’s military justice system treat a similar case?
The ending of this film takes an unexpected turn, showing just how far
soldiers can be expected to go in the performance of their duties for
“king and country.”
1.
A Few Good Men
(1992)
The all-time classic. This film is to the Judge Advocate General’s Corps
as Top Gun111 is to fighter pilots, as Band of Brothers112 is to the Airborne.
An underperforming Marine stationed at Guantanamo Bay, Cuba, requests a transfer to a less demanding unit. His O-6 commander, a rising star in the Marine Corps, declines the request: “A transfer. I’m sure that’s the thing to do. Wait. I’ve got a better idea. Let’s transfer the whole squad off the base . . . the whole Division . . . get me the President on the phone, we’re surrendering our position in Cuba.”113 Instead, the colonel orders a method of extreme (and prohibited) corrective training to help get the struggling Marine back on track—a “Code Red.”114 The next night, two “recruiting poster Marines”115 enter the floundering Marine’s room, tie him up, stuff a rag down his throat, tape his mouth shut, and attempt to shave his head. As ordered, their intent is to just teach him a lesson and remind him to get his priorities—“unit, Corps, God, country”116—back in line, but things go horribly wrong. The struggling Marine has
a severe lung reaction to the Code Red, blood starts dripping from his
mouth, and he dies.
In a parallel to Breaker Morant, the chain of command denies issuing the orders, and the two young Marines are promptly arrested and charged with murder. Seeking to avoid a lengthy investigation and trial that could reflect negatively on the prestigious colonel, the government offers to deal. However, the accused Marines will not admit to any crime—they were just following orders: “We did nothing wrong, sir. We did our job and if that has consequences, then I’ll accept them. But I won’t say that I’m guilty.”117 The case goes to a jury.
At trial, the prosecutor gives one of the best opening statements of all time, movie or otherwise, military or civilian trial. “The facts of the case are these . . . .”118 Throughout the court-martial, the defense team of three Navy JAs suffers a series of setbacks, on everything from overruled objections, to surprise details, to even losing a key witness to suicide. Crucially, they are unable to establish any facts in evidence that the two accused ever received an order to perform the Code Red. Tom Cruise’s character, as defense counsel, laments to co-counsel: “I mean, let’s pretend for a minute that it would actually matter to this court that the guys were given an order. We can’t prove it ever happened . . . . We’re gonna lose. And we’re gonna lose huge.”119 The accused are looking squarely at life sentences, with little hope left. However, after much internal deliberation, and as a last possible resort, the defense team decides to put the O-6 commander on the stand.
A Few Good Mencontains accuracies (“Article 39(a)” and “Rule 802” are used correctly),120 and there are certainly inaccuracies (“Conduct Unbecoming a Marine” is not a thing),121 but the film is still indispensable for all JAs. One extremely important, but often overlooked, lesson from A Few Good Men is the meticulous trial preparation put in by the defense team. The defense spends untold hours—most after their duty day—combing through each line of the case file, preparing cross-examinations, and brainstorming trial strategy. Experienced trial practitioners know that there is no substitute for absolutely thorough preparation in a contested court-martial. There are no second chances in front of a military jury, and there is little margin for error.
In this film, the defense team knows their clients’ entire futures are on the line; and, from preparing their cases to zealously advocating in court, they perform their duty well. Is preparation time in military justice cases typically correlated to the result? Trial attorneys may also see an important lesson in the famous cross-examination of the Marine colonel. While it is undoubtedly rare for witnesses to make new admissions contrary to their interests in court, a well-prepared cross-examination of an untruthful witness can put them into a situation where they either continue an obvious lie, or make an admission. An expert cross-examination can spell out key facts step-by-excruciating-step, leading fact-finders to infer a conclusion favorable to the cross-examiner without the need to ask the “ultimate question.” In this film, the defense counsel deems it necessary to actually ask the ultimate question, giving the witness an opportunity to admit or falsely deny the decisive fact. Nevertheless, the cross-examination of the colonel teaches military justice practitioners that thorough, small-fact-focused preparation is absolutely essential to a good cross-examination of a potentially untruthful witness. In this case, would a one-question cross-examination of “Isn’t it true you ordered the Code Red?” have been equally as successful?
Kevin Bacon, as trial counsel, says: “Colonel . . . do you solemnly swear that the testimony you will give in this general court-martial will be the truth, the whole truth, and nothing but the truth, so help you God?”
Jack Nicholson as the Marine colonel: “Yes I do.”122
Most JAs know exactly what happens next. Those who do not must watch this all-time great military justice movie. TAL
MAJ Joslin is the senior military justice advisor for I Corps at Joint Base-Lewis McChord, Washington. He has previously served as a Special Forces battalion judge advocate, a trial defense counsel, a trial counsel, and a special victim’s counsel.
Notes
1. Oscar Wilde, The Decay of Lying: An Observation, in Intentions 1, 29 (Thomas B. Mosher 1904) (1891).
2. Memorandum from Under Sec’y of Def. to Senior Pentagon Leadership, Def. Agency and Dep’t of Def. Field Activity Dirs., subject: Force Health Protection Guidance (Supplement 12)–Department of Defense Guidance for Personnel Traveling During the Coronavirus Disease 2019 Pandemic (6 Aug. 2020).
3. 3 Trials of War Criminals Before the Nuremberg Military Tribunals, at iv (1951) (“This trial has become known as the Justice Case,
because all of the defendants held positions in the Reich system of
justice.”).
4. United States v. Alstotter, Trials of War Criminals Before the
Nuremberg Military Tribunals (1947).
See also Fred L. Borch III, The Nuremberg Trials at 75, Army Law., no. 6, 2020, at 16, 20 (referencing “Case No. 3: Justice Case”).
5. Judgment at Nuremberg, at 14:50 (Roxlom Films Inc. 1961).
6. Id. at 15:45.
7. Id. at 13:55.
8. Id. at 15:00.
9. Id. at 19:20.
10. Id. at 2:39:40.
11. U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook
para. 5-8-1 (29 Feb. 2020) [hereinafter DA
Pam. 27-9].
12. Captain Robert E. Murdough, “I Won’t Participate in an Illegal War”: Military Objectors, the
Nuremberg Defense, and the Obligation to Refuse Illegal Orders, Army Law., July 2010, at 6, 7 (exploring similar questions).
13. See UCMJ art. 77 (1950) (providing that a person who “aids, abets, counsels, commands, or procures” an offense’s commission is equally guilty as the perpetrator of the offense).
14. The Rack, at 1:02:10 (MGM 1956). This film is not based on any one true story. However, after the Korean War, “the services proceeded cautiously with 192 cases” of collaboration with the enemy against Service members returning from Prisoner of War (POW) camps. Albert S. Johnston III & George J. Noumair, POW Collaboration–104 or Treason, 6 Catholic U. L. Rev. 56 (1957).
15. The Rack, supra note 14, at 42:00.
16. Id. at 39:45.
17. Id. at 47:15.
18. Id. at 49:00.
19. Id. at 1:01:44.
20. Manual for Courts-Martial, United States, R.C.M.
916(h) (2019) [hereinafter MCM].
21. James Snedeker, Military Justice Under the Uniform Code
653–54 (1953).
22. Today’s Article 103b is similar to Article 104 during the Korean
War. C.f. UCMJ art. 104 (1951), with UCMJ art. 103b (2016).
23. The Rack, supra note 14. See also DA Pam. 27-9, supra note 11, at para. 5-5 (providing the military judge’s instruction on the “duress” defense).
24. See generally Coercion: A Defense to Misconduct While a Prisoner of
War, 29 Ind. L.J. 603 (1954) (discussing whether duress should protect the accused from criminal responsibility). This article recognizes that “the problem of the prisoner who in the face of inhumane treatment gives military information, informs on fellow prisoners, or even joins the enemy forces is not new in the history of warfare,” and argues that “coercion should not automatically be the basis for complete exculpation, but rather should constitute a mitigating factor.” Id. at 605, 614.
25. MCM, supra note 20, R.C.M. 916(k).
26. See Exec. Order No. 10,631, 20 Fed. Reg. 6057 (Aug. 20, 1955), last amended by Exec. Order No. 13,286 (Feb. 28, 2003) [hereinafter Code of Conduct].
27. U.S. Dep’t of Army, Reg. 350-1, Army Training and Leader
Development
tbl.F-1 (10 Dec. 2017) (listing “SJA” as the “Delivery method” for
mandatory “Code of Conduct” training for “all personnel”).
28. Memorandum from Sec’y of Def. to the Chairman, Def. Advisory Comm.
on Prisoners of War, subject: Terms of Reference (17 May 1955).
29. Code of Conduct, 20 Fed. Reg. 6057.
30. Id.
31. “If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades.” Id. art. IV. “I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause.” Id. art. V.
32. Unlike the UCMJ, the Code of Conduct is “more a credo than a code of law.” George S. Prugh Jr., The Code of Conduct for the Armed Forces, 56 Colum. L. Rev. 678, 707 (1956).
33. The Rack, supra note 14, at 1:36:45.
34. For instance, Federal law and Department of Defense Directive 7050.06 allow military members to make “protected communications” to members of Congress and Inspectors General free from reprisal. See 10 U.S.C. § 1034; U.S. Dep’t of Def., Dir. 7050.06, Military Whistleblower Protection
(17 Apr. 2015).
35. For an overview of the real-life trial,
see Fred L. Borch III,
The Trial by Court-Martial of Colonel William “Billy” Mitchell, Army Law., Jan. 2012, at 1.
36. The Court-Martial of Billy Mitchell, at 6:44 (United States Pictures 1955).
37. Id. at 06:55.
38. Id. at 34:05.
39. Id. at 34:14.
40. Manual for Courts-Martial, United States, app. 1, at 529 (1921). See also Borch, supra note 35, at 3 n.16.
41. The Court-Martial of Billy Mitchell supra note 36, at 40:00.
42. Id. at 46:05.
43. Id. at 46:13.
44. Id. at 38:35.
45. Id. at 1:08:15.
46. DA Pam. 27–9, supra note 11, para. 3A-12-1.d (providing in the standard instruction for Article 88: “The truth or falsity of the statement(s) is immaterial.”); Id. para. 3A-13-1.d (providing in the standard instruction for Article 89: “Truth is no defense.”); Id. para. 3A-15-3.d (Article 91), (providing in the standard instruction for Article 91: “Truth is no defense.”).
47. The Court-Martial of Billy Mitchell supra note 36, at 1:34:28.
48. For a starting point on this question, see U.S. Dep’t of Army, Reg. 360-1, The Army Public Affairs Program
(8 Oct. 2020).
49. Borch, supra note 35, at 8.
50. Williams Alexander Percy, Jim Crow and Uncle Sam: The Tuskegee Flying Units and the U.S. Army
Air Forces in Europe During World War II, 67 J. Mil. Hist. 773 (2003). The Tuskegee Airmen were “America’s first all-black flying units, the 99th Fighter Squadron and the 332nd Fighter Group, trained [and their name derived from their training location] at segregated Tuskegee Army Air Field in Tuskegee, Alabama.” Id. While serving their country in combat overseas, the Tuskegee Airmen “experienced both positive and negative racial relationships with other fighter and bomber units of the Army Air Forces.” Id.
51. Both the 1929 and 1949 versions of The Geneva Conventions Relative to the Treatment of Prisoners of War (GPW) call for a leader to be appointed among POWs, known as the “Prisoners’ Representative.” See Convention of July 27, 1929, Relative to Treatment of Prisoners of War, July 27, 1929, 47 Stat. 2021, 118 L.N.T.S. 343 [hereinafter 1929 GPW]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter 1949 GPW]. Article 43 of the GPW in effect during World War II stated that “the senior officer prisoner of the highest rank shall be recognized as intermediary between the camp authorities and the [prisoners].” 1929 GPW, supra, art. 43. This is consistent with current U.S. military policy which states that the senior U.S. member will take command of fellow prisoners. Code of Conduct, 20 Fed. Reg. 6057, art. IV.
52. Hart’s War, at 55:03 (Cheyenne Enterprises, David Foster Productions, David Ladd Films, & Metro-Goldwyn-Mayer 2002).
53. Id. at 1:06:25.
54. Id. at 1:06:50.
55. Id. at 1:20:22.
56. Id. at 1:39:50, 1:39:35.
57. Percy, supra note 50.
58. Code of Conduct, 20 Fed. Reg. 6057. The Code was not in effect at the time of World War II. Id.
59. Morris J. MacGregor Jr., Integration of the Armed Forces, 1940–1965, at 17 (2001).
60. On 16 June 2020, The Judge Advocate General of the Army, Lieutenant
General Charles Pede, testified before Congress:
As good as our [military] justice system is, we can never take for
granted its health or its fairness. . . . We have brought our justice system much closer to the full realization
of equal justice for all. But close is never good enough. In May 2019,
the [Government Accountability Office] found racial disparities in our
justice system . . . . This report raises difficult questions . . . . We must understand how preconceptions and prejudice can affect both the
investigation and disposition of misconduct . . . . I believe our justice system is one of the best in the world, but I
also know it is not perfect. A justice system must be both just for, and
seen to be just, by all.
Racial Disparity in the Military Justice System—How to Fix the
Culture: Hearing Before the Subcomm. on Mil. Pers. of the H. Comm. on
Armed Servs., 116th Cong. (2020) (statement of Lieutenant Gen. Charles N. Pede, The
Judge Advoc. Gen., U.S. Army).
61. MCM, supra note 20, pt. 1, ¶ 3 (2019) (stating “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”).
62. The Caine Mutiny, at 25:40 (Columbia Pictures 1954).
63. Id. at 1:11:12.
64. Id. at 1:24:30.
65. Id. at 1:29:35.
66. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy
para. 2-9a(1) (24 July 2020) (stating that Army commanders will remain
in command unless dead, disabled, retired, reassigned, or absent).
67. Mutiny or Sedition, 10 U.S.C. § 894.
68. MCM, supra note 20, R.C.M. 916(c).
69. “A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.” Id. See also DA Pam. 27-9, supra note 11, para. 5-20.
70. Thomas Gray, Elegy Written in a Country Churchyard, Poetry Found., https://www.poetryfoundation.org/poems/44299/elegy-written-in-a-country-churchyard (last visited Sept. 13, 2021).
71. Humphrey Cobb, Paths of Glory 181 (Penguin Classics 2010) (1935) (“All the characters, units, and places mentioned in this book are fictitious. However, if the reader asks, ‘Did such things really happen?’ the author answers, ‘Yes,’ and refers him to the following sources which suggested the story . . . .” Cobb goes on to cite to sources discussing the “Souain corporals affair,” a real-world court-martial in 1915 resulting in the French Army executing four corporals for refusing to carry out impossible orders.).
72. Paths of Glory, at 1:55 (Bryna Productions 1957).
73. Id. at 3:20.
74. Id. at 3:48.
75. Id. at 12:55.
76. Id. at 36:20.
77. Id. at 11:05.
78. Today, Article 37, UCMJ, and Rule for Courts-Martial 104 prohibit any person, especially commanders, from coercing or influencing the action of a court-martial by “unauthorized means.” UCMJ art. 37 (2019); MCM, supra note 20, R.C.M. 104 (2019). That said, it is unlikely that the commanding general’s clear and direct influence over the court-martial results in this film would have actually been “unlawful” under French military law in World War I.
79. Paths of Glory, supra note 72, at 35:45.
80. Id. at 52:53.
81. DA Pam. 27–9, supra note 11, paras. 3-16-1 n.3, 3–16–2 n.3; 3–16–3 n.2.
82. Paths of Glory, supra note 72, at 54:40.
83. The Court-Martial of Jackie Robinson, at 45:03. (Turner Pictures, Von Zerneck-Sertner Films 1990).
84. For a full history of the real-life court-martial of Second Lieutenant Jackie Robinson, see generally Major Adam Kama, The Court-Martial of Jackie Robinson, Army Law., no. 1, 2020, at 68.
85. The Court-Martial of Jackie Robinson, supra note 83, at 54:05.
86. Id. at 57:35.
87. Id. at 1:01:10.
88. Id. at 1:13:10.
89. Kama, supra note 84, at 69.
90. Breaker Morant, at 0:14 (South Australia Film Corporation, Australian Film Commission, 7 Network, Pact Productions Pty. Ltd. 1980).
91. Id. at 44:25.
92. Id. at 1:03:35.
93. Id. at 13:00.
94. Id. at 13:06.
95. This is consistent with prior U.S. military law. “From 1914 until 1944, U.S. Service members could assert the defense of superior orders as a complete defense to a crime so long as they could demonstrate they acted in accordance with superior orders.” Major M. Keoni Medici & Major Joshua P. Scheel, Training the Defense of Superior Orders, Army Law., no. 6, 2020, at 34, 35. However, the defense has evolved. Under modern U.S. military law, “following a superior’s orders is not a get-out-of-jail-free card.” Id. at 36. The defense of superior orders may not be invoked if “the order was illegal and the accused actually knew it was illegal or a person of ordinary sense and understanding would, under the circumstances, know the order was illegal.” DA Pam. 27-9, para. 5-8-1, n.1.
96. Breaker Morant, supra note 90, at 45:25.
97. Id. at 59:24.
98. See, e.g., 1949 GPW, supra note 51 (stating “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely . . . . ”). See also UCMJ art. 118 (2016) (criminalizing the killing of another without legal justification or excuse).
99. Breaker Morant, supra note 91. The film Breaker Morant is based on a true story, as documented in the book, George Witton, Scapegoats of the Empire: The True Story of Breaker
Morant’s Bushveldt Carbineers
(1907).
100. Breaker Morant, supra note 90, at 1:41:28.
101. Id.
at 56:45.
102. King and Country, at 12:42 (B.H.E. Productions Limited 1964).
103. Id. at 40:36.
104. Id. at 40:20.
105. Id. at 07:20.
106. Shell-shock, now known as Post-Traumatic Stress Disorder, confused doctors and commanders in the British Army during World War I. “By the winter of 1914–15, ‘shell shock’ had become a pressing medical and military problem. Not only did it affect increasing numbers of frontline troops serving in World War I, British Army doctors were struggling to understand and treat the disorder.” Edgar Jones, Shell-Shocked, Monitor on Psych., June 2012, at 18.
107. King and Country, supra note 102, at 39:05.
108. Id. at 52:20.
109. Id. at 1:03:05.
110. “Research on Vietnam veterans suggests an association between psychological problems, including posttraumatic stress disorder (PTSD), and misconduct . . . [and in a study of Marines deployed to Iraq or Afghanistan in the early 2000’s,] PTSD was associated with an increased risk for both demotions . . . punitive discharges . . . .” Robyn Highfill-McRoy et al., Psychiatric Diagnoses and Punishment for Misconduct: The Effects of
PTSD in Combat-Deployed Marines, 10 BMC Psychiatry, 2010, at 1.
111. Top Gun (Paramount Pictures, Don Simpson/Jerry Bruckheimer Films 1986).
112. Band of Brothers (DreamWorks, DreamWorks Television, HBO Films, Playtone, British Broadcasting Corporation 2001).
113. A Few Good Men, at 17:49 (Columbia Pictures, Castle Rock Entertainment, David Brown Production 1992).
114. “A Code Red is a disciplinary engagement . . . [used by] the men in a Marine’s unit to get him back on track.” Id. at 25:52.
115. Id. at 05:54.
116. Id. at 28:21.
117. Id. at 51:32.
118. Id. at 1:05:44.
119. Id. at 1:22:23.
120. See UCMJ art. 39(a) (1990) (a court session without members, for example, a motions hearing); MCM, supra note 20, R.C.M. 802 (1984) (off-the-record conferences between the military judge and counsel for both sides).
121. A Few Good Men, supra note 113, at 2:11:15. Under the UCMJ, “Conduct Unbecoming an Officer” is an offense, but not “Conduct Unbecoming a Marine.”
122. Id. at 1:54:52.