LTG John J. Tolson (left), Commanding General, XVIII Airborne Corps and Fort Bragg, congratulates COL Cecil L. Forinash (right) after presenting him with the Legion of Merit upon his retirement, 31 October 1969. (Photo courtesy of author)
Lore of the Corps
A Prisoner of the Japanese and a Judge Advocate
The Life and Times of Cecil L. Forinash
By Fred L. Borch III
Cecil L. Forinash, who served in our Corps from 1950 until 1969, had a very successful career as an Army lawyer, including tours as the staff judge advocate (SJA) at Fort Carson, Colorado, Fort Bragg (now Fort Liberty), North Carolina, and at VII Corps, Stuttgart, Germany. But Forinash had also served as an Infantry lieutenant and captain in the Philippines in World War II, and he survived both the Bataan Death March and captivity as a prisoner of war (POW) from November 1942 until the Japanese surrender in 1945. This is the story of his remarkable life and career as a Soldier.
Born in West Chester, Iowa, on 9 December 1917, Cecil Lavone Forinash grew up in a “small but thriving” town of about 225 inhabitants.1 His father did various jobs, including carpentry, masonry, and working as a laborer on nearby farms. Forinash’s mother died when he was three years old and his father had a tough time as a widower caring for young Cecil, his two-year-old sister, and two older boys. With the onset of the Great Depression, it only got tougher to earn a living.2
After graduating from high school in 1935, Forinash moved to Iowa City, where he found a job paying thirty cents an hour and began taking classes at the University of Iowa. As the university was a land-grant college, every male student was required to enroll in the Reserve Officer Training Corps (ROTC) program—and that was Cecil Forinash’s introduction to the Army.3
He liked the ROTC program, especially close-order drill, but it was the seven dollars a month that one earned for participating in Army ROTC that kept him in uniform as a cadet. In 1939, after completing four years of ROTC, Forinash was commissioned as a second lieutenant in the Army Reserve, even though he did not have enough academic credits at the time to earn a degree from Iowa.4
When the Army announced that a small number of Army Reserve lieutenants could request active duty, Forinash decided it was a good idea. He applied, was accepted, and reported for duty in July 1939 at Fort Snelling, Minnesota. Later that year, Second Lieutenant Forinash travelled to Camp Jackson, South Carolina, and Fort Benning (now Fort Moore), Georgia.5
In the summer of 1940, Forinash applied for extended active duty. His assignment choices were Panama, Hawaii, or the Philippines. He chose the Philippines and shipped out for Manila on the USS Grant. This Army transport ship travelled at about 10 knots (about 11 miles per hour)—so it took some twenty-one days to reach Manila with stops in Hawaii and Guam along the way. When Forinash arrived, he was assigned to a heavy weapons company in the 45th Infantry Regiment, a part of the Philippine Scouts.6
In January 1941, First Lieutenant (1LT) Forinash volunteered for duty as an artillery aerial observer with the Second Observation Squadron at Clark Field. He learned how to send messages in Morse code and use an aerial camera. There also was training on firing the machine gun located in the rear seat of the observer plane.
One morning, while flying over a mountainous area, the aircraft in which Forinash was the observer suddenly lost altitude, clipped a tree, caught fire, and crashed. Forinash “was surprised to find himself alive.”7 He managed to climb out the rear of the plane but immediately saw that the pilot was trapped and was unable to open his canopy to escape. Forinash managed to pull the pilot—whose feet were on fire—out through the fuselage and saved his life. Despite this near-death experience, Cecil Forinash liked flying, and he applied and was accepted for Army pilot training at Randolph Field, Texas. He was scheduled to begin flight school at the end of his tour of duty in the Philippines, but the Japanese attack on the Philippines on 8 December 1941 meant there would be no return to the United States in the near future, much less learning how to fly at Randolph Field.8
When the Japanese did attack, 1LT Forinash was ordered to join the pilot of a Curtiss O-52 observation airplane9 and fly to Nichols Field, which was located south of Manila. When the airplane approached the airfield, the Japanese fired on it. The engine stopped—as it had been damaged by the enemy’s gunfire—and as the airplane began losing altitude, the pilot ordered Forinash to jump. Consequently, he went through the emergency door, crawled out on the wing, and jumped. As Forinash remembers:
When my parachute opened, all the [Japanese] ground fire was directed at me instead of at the plane. Tracers and bullets whizzed by me. One caught me on the left side of the chest, circled around my rib, and came out the back. When I put my hand on my back I came up with a handful of blood. My immediate thought was that I had been hit in the heart.10
Forinash landed near several American Soldiers. Someone said, “Get a chaplain,” but Forinash yelled, “Hell, get me a doctor.”11 A field ambulance soon took him to the hospital at Fort McKinley. There were some reports that 1LT Forinash had been killed in action, but reports of his death obviously were exaggerated.12
In February 1942, when Forinash’s wounds were healed and he was discharged from the hospital, the Japanese were on the move and the Americans and Filipinos were in retreat. Then-Captain (CPT) Forinash was assigned to the 31st Infantry Regiment, Philippine Army. His battalion was assigned to defend the main road into south Bataan. It was tough going because food was in short supply and the American and Filipino soldiers were “hungry and weak.”13 Despite their efforts, the Japanese repeatedly broke through the American defenses. Forinash and some 10,000 American and tens of thousands of Filipino soldiers surrendered to Japanese forces on 9 April 1942.14
Over the next days, Forinash was a part of what is now called the Bataan Death March. He and his fellow POWs endured a six-day, sixty-mile trek during which the Japanese guards beat, bayonetted, or shot those who offered any resistance or who impeded the pace of the march.15 The “death march” was conducted without food or water and thousands died, but Cecil Forinash survived to arrive at Camp O’Donnell.16 Conditions at this location, however, were no better for the Americans. There was only one water faucet for some 6,000 to 7,000 prisoners. Only rice and watery soup were available to eat. Forinash remembered that about sixty Americans were dying every day at the camp; ultimately, about 1,200-1,500 died.17 Also, Cecil was suffering from malaria, but a friend managed to get him some quinine, which helped mitigate his chills and fever.18
In June 1942, Forinash and his fellow American POWs were made to walk nine miles from Camp O’Donnell back to Capas,19 where they boarded a train for Cabanatuan. There, they joined POWs who had been captured on Corregidor. On several occasions, CPT Forinash “witnessed Japanese soldiers carrying Philippine heads tied to bamboo poles by the hair.”20 At the time, he remembered wishing that he had a camera with him to record this war crime.21
In November 1942, CPT Forinash and some 1,500 POWs were transferred to the Japanese ship, Nagata Maru. It took three weeks to reach Moji, Japan, and the men were crammed into the hold for the entire journey. “Life in the hold of the ship,” remembered Forinash, “was impossible for anyone to describe. It was pitch black and unbearably hot.”22
When the ship docked in Japan, CPT Forinash “was so weak that [he] fell to the ground.”23 Fortunately, his fellow prisoners helped him get on the train that took them to Osaka. Forinash was assigned to live and work in a factory that produced galvanized sheet metal. It was hard work and Americans soon began to die from illness caused by lack of food; the Americans only received a little rice and some watery green soup. There was rarely any meat. Once again, however, Cecil Forinash managed to survive, although about 100 of the 400 POWs in the factory did not.24
In June 1943, Forinash left Osaka for a POW camp in Zentsuji, which was located on the island of Chikoku. He remained there until June 1945, when the Japanese moved the Americans to the island of Honshu. On 6 August 1945, the United States dropped the first atomic bomb on Hiroshima.25 Three days later, a second bomb detonated over Nagasaki.26 About two weeks later, the Japanese commander assembled all the prisoners in Forinash’s POW camp and announced that “the emperor had brought peace to the world.”27 He and the Japanese guards then disappeared. The war—at least for CPT Cecil Forinash—was over.28 He had weighed about 155 or 160 pounds when the war started; he now was “down to about 110 or maybe 100 [pounds]” and was “skin and bones.”29 But he was alive.
On 8 September 1945, Soldiers from the 1st Cavalry Division arrived to prepare Forinash and his fellow POWs for their return home. The men sailed from Yokohama to Manila and then to San Francisco. While recuperating from injuries sustained during captivity, CPT Forinash travelled to Miami Beach, Florida, where he met a woman, Mary May, in charge of local Red Cross operations. They married in July 1946.30
After being discharged from the Army, Forinash settled in Knoxville, Tennessee, and decided that he wanted to be a lawyer. He entered the University of Tennessee College of Law, took the bar examination his second year of law school, and passed. He was in the last class permitted to take the Tennessee bar examination after completing the second year of law school.31
Forinash then decided to apply for a Regular Army commission in the new Judge Advocate General’s Corps.32 His wife was not certain that this was a good course of action, but Forinash convinced her that with his more than six years of active-duty service before, during, and after World War II, he had fewer than fifteen years to serve before he would have an Army retirement.33
Having promoted to major (MAJ), MAJ Forinash reported for duty to Fort Monmouth, New Jersey, which was the home of the Army Signal Corps. He was the deputy staff judge advocate (DSJA). His duties included sitting as the law officer (the forerunner of today’s military judge) on general courts-martial, assisting Article 32 investigating officers, and reviewing records of trial.34
Major Forinash also served as legal counsel to the First Army’s Loyalty Security Review Board. At the time, U.S. Senator Joseph McCarthy’s search for communists in the U.S. Government had resulted in Army investigations of personnel assigned to Signal Corps engineering and laboratory facilities at Monmouth. Forinash’s job as legal counsel was to question employees alleged to be security risks. At the time, he felt that there was “little evidence” supporting these allegations, but the board generally took a hard line and recommended termination of any employee who appeared before it.35
In 1951, MAJ Forinash was assigned to Seventh U.S. Army, then located in Stuttgart, Germany. He worked in the Military Affairs Office, served as a law officer, and represented more than a few accused Soldiers at general courts-martial. One infamous case involved two Soldiers, Private (PVT) Clarence Brooks and PVT Herbert Edwards. On 2 May 1953, the two men attacked a German woman who was walking with her boyfriend in a park in Karlsruhe, Germany.36 The two Americans also attacked the boyfriend, but he was able to flee and telephone the military police.37 In the meantime, Brooks and Edwards dragged the woman into the nearby woods, repeatedly struck her in the face and on the body, and raped her.38
Both PVTs Brooks and Edwards were subsequently apprehended and, under questioning by Army Criminal Investigation Division (CID) agents, confessed to the rape. Although PVTs Brooks and Edwards were tried separately, they received the same punishment after being found guilty: a dishonorable discharge and fifty years’ confinement at hard labor.39
As defense counsel for both PVTs Brooks and Edwards, MAJ Forinash requested that at least one-third of the panel consist of enlisted personnel—which had only been permitted since 1951.40 He thought having a mixed panel would be better than officer members only. The most damning evidence against both Soldiers was their confessions to CID. After investigating the taking of the statements, however, Forinash was unable to find a basis to request their suppression. Consequently, he did not object when they were offered as evidence at trial. Given the aggravated nature of the sexual assault, and the fact that the victim was White while both Soldiers were Black, MAJ Forinash thought they might be sentenced to death, as rape was then a capital offense under the Uniform Code of Military Justice.41 But they were not. Since PVT Brooks had already been convicted three times at previous courts-martial, Forinash must have been most worried about him.42
Forinash was promoted to lieutenant colonel (LTC) while he was in Stuttgart, and he returned to the United States in 1954. He was assigned to the General Branch, Litigation Division, Office of The Judge Advocate General. This branch monitored the hundreds of litigation cases in which the Army was involved.43
Probably the most significant case in which he participated was Reid v. Covert.44 The case was a companion to the military criminal proceedings against Dorothy Krueger Smith, who was the daughter of a four-star Army general and was also married to an Army colonel.45 After she stabbed her husband to death with a long hunting knife in their Tokyo quarters, Ms. Smith was tried by a general court-martial for the murder.46 She was convicted, sentenced to life imprisonment, and confined at a Federal prison camp in Charleston, West Virginia.47
Ms. Smith’s defense counsel, LTC Howard S. Levie, had objected to the proceedings on the ground that the court-martial had no personal jurisdiction over Smith because she was a civilian—but his argument was rejected at trial.48 Several years later, however, Smith—who now went by her maiden name of Krueger—hired Mr. Frederick “Fritz” Wiener, who was also a Reserve colonel (COL) in the Judge Advocate General’s Corps, to file a writ of habeas corpus on her behalf. He alleged that it was unconstitutional for the Army to prosecute her because she was a civilian and the offense occurred during peacetime. Lieutenant Colonel Forinash and another judge advocate (JA) represented the Army in U.S. District Court for the Southern District of West Virginia, and the judge denied the petition.49 Ms. Krueger remained in jail.
In the meantime, another civilian female, Ms. Clarice B. Covert, had been court-martialed at an airbase in England for murdering her Air Force sergeant husband with an axe while he slept.50 She was sentenced to imprisonment at a Federal penitentiary. When her attorney filed a writ of habeas corpus, the U.S. District Court for the District of Columbia granted the writ—freeing Ms. Covert.51 As a result, the Smith case (now styled Kinsella v. Krueger, with Kinsella being the prison warden) and Covert cases were consolidated—because of the conflicting District Court opinions—and the U.S. Supreme Court granted a writ of certiorari.52
Initially, in a five-four decision, the Supreme Court upheld the Army and the Air Force’s exercise of jurisdiction over a civilian accompanying the U.S. Armed Forces. But, when Fritz Wiener filed a petition for a rehearing, the Supreme Court reversed—because Justice John Marshall Harlan III, who had voted with the majority in the Court’s decision, now had changed his mind.53
Lieutenant Colonel Forinash was tasked with writing a brief that would convince Justice Harlan that the exercise of jurisdiction was constitutional. His argument was that the “necessary and proper” clause of the U.S. Constitution gave the Army and the Air Force authority to prosecute civilians.54 Justice Harlan was not persuaded—and the Court reversed its original decision and now sided with Covert and Smith. In a six-two decision, Justice Hugo Black wrote that the need for the military to be able to exercise court-martial jurisdiction over civilians accompanying it made sense but that the Constitution did not permit it—because a trial by court-martial deprives a U.S. citizen of his or her Bill of Rights protections.55 The decision is significant not only for its restriction on in personam jurisdiction over civilians, but also, because it is the only time in history that the Supreme Court, without a change in membership, reversed a decision as the result of a petition of rehearing.56
Then-COL Forinash’s next assignment was at Fort Liberty, where he was the post SJA. In 1960, he was reassigned to Korea, where he was the DSJA, United Nations, Joint Services, Eighth Army.57
His next assignment was SJA, Fort Carson, Colorado. Within months of his arrival there, the Army re-established the 5th Infantry Division. As the new unit was being stood up, it soon became obvious that there was insufficient land in the area for the division’s training needs. The Fort Carson engineer was having some success in obtaining land for training, but the largest landowner was holding out—concerned that the Army might not pay claims for damage to his land or injuries to his cattle. Colonel Forinash was able to convince this landowner that there was a claims procedure and that he would work closely with the engineer to obtain payment of any valid claims. As a result of his efforts, the landowner agreed to let the division use thousands of acres of property for training—and the Army did pay a claim of a little more than $40,000 during the first year the land was used for training. Ultimately, the United States purchased the entire ranch for Fort Carson.58
Colonel Forinash was able to convince this landowner that there was a claims procedure and that he would work closely with the engineer to obtain payment of any valid claims.
After a tour of duty in the Inspector General’s Office in the Pentagon, COL Forinash was assigned as the SJA of VII Corps in Stuttgart. When he reported to the commanding general, his new boss said: “I don’t like [JAs] and that includes the present Judge Advocate General of the Army . . . they have been disloyal to me and you begin from there.”59
As COL Forinash remembered it: “That was the beginning and almost the end of my tour.”60 Over the next few months, the commanding general routinely resisted COL Forinash’s advice and insisted that “command and law were incompatible.”61 However, COL Forinash continued to provide advice and counsel to the commander and, after about six months, the VII Corps commander began “accepting” COL Forinash’s advice and recommendations.62
At the end of his tour of duty at VII Corps, COL Forinash had thirty years of service for retirement purposes. He served briefly at Fort Liberty before deciding to retire on 1 November 1969.63
Upon retirement, COL Forinash and his wife moved to Knoxville, Tennessee. Initially he joined a small firm of attorneys but then left the private practice of law to be a prosecutor in Knoxville City Court. He soon established a reputation as a “fair but firm” courtroom lawyer.64 Colonel Forinash retired as an Assistant Attorney General in Knox County in 1983. He died on 25 July 2015 after a brief illness. He was ninety-six years old.65
Talk about a life well-lived: from a boy on a farm in Iowa to the Philippines and years in Japanese captivity, to an outstanding career as a JA and senior leader in our Corps, to a civilian career in public service, COL Cecil L. Forinash’s life is worth remembering. TAL
Mr. Borch is the Regimental Historian, Archivist, and Professor of Legal History and Leadership at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. Cecil L. Forinash, Memoir, reprinted in Oral History, Colonel Cecil L. Forinash, app. at 4 (2004) (on file with author).
2. Id. at 7.
3. Id. at 10.
4. Archive Record: Cecil L. Forinash, Am. Defs. of Bataan and Corregidor Museum, https://philippinedefenders.pastperfectonline.com/archive/7998756A-CD61-4283-9504-429615144736 [hereinafter Philippine Defenders] (last visited July 11, 2023).
5. Id.
6. Id. The Philippine Scouts consisted of Filipinos and Filipino-Americans, and they were a permanent part of the Regular U.S. Army. Historical Dictionary of the U.S. Army 366-67 (Jerold E. Brown ed., 2001). Most officers commanding scout units were seconded from the U.S. Army (like Forinash), but after Filipinos began attending the U.S. Military Academy in 1908, those who graduated returned to the Philippines and commanded scout units. Id. When General MacArthur assumed command of the forces in the Far East in July 1941, there were more than 11,900 scouts under his command. Id.
7. Forinash, supra note 1, at 15.
8. Id.
9. Manufactured by the Curtiss-Wright Corporation, the O-52 “Owl” was a two-seat observation aircraft used widely by the Army before and during World War II. Curtiss O-52 Owl, Nat’l Museum of the U.S. Air Force, https://www.nationalmuseum.af.mil/Visit/Museum-Exhibits/Fact-Sheets/Display/Article/195666/curtiss-o-52-owl (last visited July 11, 2023). It had one forward- and one rearward-firing .30-caliber machine gun. Id.
10. Forinash, supra note 1, at 20.
11. Id.
12. Id. at 21.
13. Id. at 23.
14. Michael Norman & Elizabeth M. Norman, Bataan Death March: World War II, Britannica (May 18, 2023), https://www.britannica.com/event/Bataan-Death-March.
15. Id.
16. The death march brought the prisoners of war to a rail head in San Fernando, where they were transported under horrific conditions to the Capas train station to endure an additional 9-mile march to Camp O’Donnell, the former Philippine army training ground. See id.
17. Id.
18. Philippine Defenders, supra note 4.
19. See Bataan Death March, in World War II in the Pacific: An Encyclopedia 157, 158 (Stanley Sandler ed., 2001).
20. Philippine Defenders, supra note 4.
21. Id.
22. Forinash, supra note 1, at 32.
23. Id. at 36.
24. Id.
25. Atomic Bombings of Hiroshima and Nagasaki: World War II [1945], Britannica (June 29, 2023), https://www.britannica.com/event/atomic-bombings-of-Hiroshima-and-Nagasaki.
26. See id.
27. Forinash, supra note 1, at 42.
28. Id. at 42.
29. Id. at 44.
30. Philippine Defenders, supra note 4.
31. Forinash, supra note 1, at 48.
32. The Judge Advocate General’s Department became The Judge Advocate General’s Corps in 1947. See Selective Service Act of 1948, Pub. L. No. 80-759, § 246, 62 Stat. 604, 643 (1948).
33. Forinash, supra note 1, at 48.
34. Id. at 49.
35. Id. Ultimately, Senator McCarthy’s claim that “hundreds of Communists had infiltrated the State Department and other Federal agencies” was simply false. “Have You No Sense of Decency?,” U.S. Senate, https://www.senate.gov/about/powers-procedures/investigations/mccarthy-hearings/have-you-no-sense-of-decency.htm (last visited July 11, 2023). Today the word “McCarthyism” has come to mean a practice that endorses the use of unfair allegations. See McCarthyism, Merriam-Webster, https://www.merriam-webster.com/dictionary/McCarthyism (last visited July 11, 2023).
36. Forinash, supra note 1, at 50-51; United States v. Brooks, 13 C.M.R. 334, 338 (A.B.R. 1953); United States v. Edwards, 13 C.M.R. 322, 325-26 (A.B.R. 1953).
37. Brooks, 13 C.M.R. at 338; Edwards, 13 C.M.R. at 325-36.
38. Forinash, supra note 1, at 50-51; Brooks, 13 C.M.R. at 338; Edwards, 13 C.M.R. at 325-36.
39. Brooks, 13 C.M.R. at 334, 339; Edwards, 13 C.M.R. at 325-36. On appeal, the Board of Review (the forerunner of today’s Army Court of Criminal Appeals) reduced Edwards’s sentence to thirty years and reduced Brooks’s to thirty-five years. Brooks, 13 C.M.R. at 339; Edwards, 13 C.M.R. at 333.
40. See An Act to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice, Pub. L. No. 81-506, art. 25(c)(1), 64 Stat. 107, 116 (1950).
41. UCMJ art. 120 (1951) (“Any person subject to this code who commits an act of sexual intercourse with a female intercourse with a female . . . by force and without her consent, by force and without her consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.”).
42. Forinash, supra note 1, at 50-51.
43. Id. at 52.
44. Reid v. Covert, 354 U.S. 1 (1957).
45. Mrs. Smith Guilty, Sentenced to Life: Tokyo Court Martial Decides General’s Daughter Slew Colonel Deliberately, N.Y. Times, Jan. 10, 1953, at 2 [hereinafter Mrs. Smith Guilty]. Smith was the daughter of General Walter Krueger. Id. She was married to Colonel Aubrey D. Smith, a 1930 graduate of the U.S. Military Academy. Aubrey Dewitt Smith, Am. Battle Monuments Comm’n, https://www.abmc.gov/decedent-search/smith%3Daubrey-0.
46. Mrs. Smith Guilty, supra note 45.
47. Id.
48. See United States v. Smith, 17 C.M.R. 314 (C.M.A. 1954). Levie had a remarkable career as an Army lawyer and was the principal author of the cease-fire agreement that today remains in force on the Korean peninsula. For more on Levie, see Fred L. Borch, The Cease Fire on the Korean Peninsula: The Story of the Judge Advocate Who Drafted the Armistice Agreement that Ended the Korean War, Army Law., Aug. 2013, at 1.
49. United States ex rel. Krueger v. Kinsella, 137 F. Supp. 806, 811 (S.D.W. Va. 1956).
50. United States v. Covert, 16 C.M.R. 465 (A.F.B.R. 1954).
51. Reid v. Covert, 354 U.S. 1, 4 (1957).
52. Id.; Forinash, supra note 1, at 53-55.
53. 354 U.S. at 5; Forinash, supra note 1, at 53-55.
54. See Supplemental Brief for Appellant and Petitioner on Rehearing, Reid v. Covert, 354 U.S. 1 (1957) (Nos. 701, 713), 1957 WL 87830.
55. 354 U.S. at 3, 6, 41.
56. Brittany Warren, The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial, 212 Mil. L. Rev. 133, 133 (2012); see also Reid v. Covert; Kinsella v. Krueger, 51 Am. J. Int’l L. 783 (1957).
57. Forinash, supra note 1, at 56-58.
58. Id. at 58-59.
59. Id. at 60.
60. Id. at 62.
61. Id.
62. Id.
63. Id. at 63.
64. Id.
65. Cecil L. Forinash, Knoxville News Sentinel (Aug. 13, 2014), https://www.legacy.com/us/obituaries/knoxnews/name/cecil-forinash-obituary?id=16918351.