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Fourth International, March 1941

 

Michael Cort

The Court-Martial System of the US Army

 

From Fourth International, Vol.II No.3, March 1941, pp.71-75.
Transcribed & marked up by David Walters for ETOL.

 

On March 8th the United States Army’s publicity office in Washington announced issuance of a new manual of dis cipline; the New York Times headlined the story: Iron Discipline Abandoned by the Army.

The true facts are very easy to verify., Apart from no longer requiring soldiers to salute officers off post, and one or two similar items, the new manual changes nothing. It says, quite correctly, that “modern warfare requires self-reliance in every grade; individuals capable of independent thought and action, who are inspired by a distinct feeling that as an individual or as members of a unit they are competent to cope with any condition, situation or adversary.” A good guiding principle but it does not guide army discipline. The key to understanding the army’s system of discipline is the court martial, which remains untouched by the “new” manual.

By the end of this month 800,000 civilians will have been drafted into the US Army, and will receive their first samples of the organized brutality that constitutes army disci pline. If the statistics of the last war hold good, one out of ten of these men will be court-martialed.

The army’s problem in 1917 (just as today) was to digest great numbers of workers who entertained democratic illusions concerning their rights in the army. A good soldier, in the army’s opinion, was one that obeyed all orders quickly and unthinkingly. To achieve this state the commanding officers instituted a reign of terror in the training camps of America. Men were prosecuted for trivial offenses and given long prison terms and in some cases death. Safely screened from public view, this campaign proceeded without interference. In the spring of 1918, for a few brief months, an accident occurred. A man with previously concealed liberal views slipped into the position of acting judge Advocate General. When he was thrown out, he blew the lid off.

Brigadier-General T.S. Ansell had the reputation of being “soft with his men,” but if the hierarchy had ever known the extent of his heresy he never would have become, as a result of seniority, acting judge Advocate General. Upon his graduation from West Point, Ansell began specializing in military law. He saw in the army terror, not the inevitable compulsions of an oppressive economic system, but rather abuses of democracy that could be corrected by legislative reform. All through his army career Ansell kept his reformist theories to himself. When, however, he became the judge Advocate General, and had access to the Secretary of War without going through the General Staff, he flooded that department with reports and recommendations.

Far from receiving a sympathetic ear, Ansell discovered he was embarrassing President Wilson and Secretary of War Baker, and that they took steps against him. He was summarily removed from his position and demoted in rank to a Lieutenant-Colonel. Within a few short months Ansell was forced out of the army entirely and then, as a private citizen, opened his campaign for reform of the military code. He was mainly responsible for the introduction into the Senate in 1919 of the Chamberlain Bill aimed at democratizing the military code.

Wilson and the officer caste succeeded in beating back all demands for substantial reform, but the brief glimpse into the court martial procedures afforded by Ansell remain in written and documented form.

On the shelves of the New York Public Library is a volume which bears the inscription, “US Military Affairs Committee, Hearings, Senate 66:2.” It is the record of the hearings on the Chamberlain Bill. Within this volume is partially revealed the viciousness of bourgeois military justice. The army got rid of Ansell, and the Secretary of War, with the help of the American Bar Association, whitewashed the Articles of War. But they have not yet purged the public libraries. This half forgotten volume of official government records provided the source material for this article.
 

Powers of Life and Death

The present military code was taken from the British code of 1774 with merely the word “Congress” substituted for the word “King.” The code has been amended in minor respects from time to time but has never undergone any basic changes. Congress has consistently exempted the army from all Constitutional restrictions. Bound only by a few pseudo-legal formalities, the commanding general may select the man to be tried, select the counsel to defend him, select the jurors to try him, determine the procedure of the court, define the offense, apply what rules of evidence he chooses to observe, and apply any sentence ... one day to death.

“ Everybody knows these courts are afraid of their commanding officers,” Gen. Ansell told the Senate committee. “They know they are under the General’s hand. He will likely change their station and punish them if he does not like the way they do on a court. So they say this, ‘The commanding general up there is pretty stiff. He cussed us out that last case. We said the man ought to have a small sentence, and he came back and cussed us out and said he was going to dissolve us and put a lot of his remarks on the record. So let’s put it up to the old man. We’ll give a sentence high enough to suit him. Let’s give this fellow a sentence of 25 years, and let the old man cut it down to five if he wants to.’”

Not only does the commanding general control the severity of the punishment meted out, but he has the power to return an acquittal, with instructions to the court to reconsider its verdict and find the defendant guilty. Major-General John F. O’Ryan submitted statistics to the Senate committee covering 6,000 court martial trials of enlisted men in the AEF. Of the 6,000 tried, only 800 were acquitted, and of those acquitted over ten per cent were subsequently found guilty by direct order of the commanding officers. All verdicts do eventually pass over the desk of the judge Advocate General in Washington, but he is bound by a firmly established tradition of support and confirmation of all findings passed upon by the field generals.

There has been, from time to time, agitation for the establishment of a civilian appellate court with full review authority. The army hierarchy has firmly resisted this reform.

“ In a military code there can be no provision for a court of appeal,” Judge Advocate General Crowder told the Senate committee. “Military justice and the purpose which it is expected to subserve will not permit of the vexatious delays incident to the establishment of an appellate procedure.”

Speedy execution of sentence is, of course, aimed not at justice but at the terrorist effect it has upon the soldiers. The army will tolerate no delay beyond that occasioned by the submission of the case to the judge Advocate General sometimes not even that. Ansell told of a court martial in a training camp in southern Texas while he was acting judge Advocate General. Eleven Negroes were accused of rape and sentenced to death. Ansell heard of the case and determined to read the trial minutes thoroughly when they reached him for review. When he received the transcript, he found, as he had expected, that the trial had been of the most summary character and that simple justice demanded an entirely new trial. Upon ordering this he discovered that the men had been executed before the case had been submitted to the judge Advocate General’s office.

During this same period 20 Negroes were accused of rape in a New Jersey training camp. They received the barest semblance of a trial and were sentenced to death. This time Ansell received the case before the execution and ordered a new trial. Ansell later testified before the Senate committee:

“I was subject to great pressure from the General Staff. Many members of the Staff admitted that the case was not too good against the defendants, but they insisted that an example had to be made whether the boys were guilty or not. They pleaded with me to hang five, any five, of the 20 and let the rest go free.”
 

The Class Basis of This Terror

If the savagery of the officer caste appears, at first glance different in kind from the daily ruthlessness of the capi talist class in civilian ife, it turns out upon examination to be but one form of capitalist justice. The army is the concentrated image of bourgeois society.

This is illumined by the testimony of Major J.E. Runcie, Professor of Law at West Point for many years, who spoke out when he returned to civilian life. He testified to the Senate committee:

“ The Cadet stays there for four years and he finds the enlisted men engaged not in military duties, but in domestic ones. Many of them have no arms, their only uniforms are working ones, laborers’ and artisans’. The inevitable result is that the Cadet comes out with a feeling that his privilege is to be served, a feeling of class distinction. Courts martial maintain this structure. Enlisted men receive more severe punishments than do officers. More than that, an enlisted man may be tried and convicted of something that is no offense at all ... under the military code. For instance, two years ago at West Point an enlisted man was tried and convicted of lack of respect for, and obedience to an officer’s wife.” The conviction had been under Article 96 of General Articles of War, which reads, in part, ‘... conduct of a nature to bring discredit upon the military service. Punishment at the discretion of the court.’”

Ansell told the committee that soldiers were not allowed to walk on the front walks at West Point and that even on visiting days they were required to take their sweethearts and mothers through the rear alleyways.

Testimony before the Senate committee included the case of a lieutenant who, on his time off from bridge construction at the front, got drunk with a friend who happened to be a private. This officer was court martialed, charged with “conduct unbecoming an officer.” Major Elmore, the prosecutor, said in his summation: “If this man had done what he did alone, or in company of other officers, he would have been guilty of no offense. Having done what he did in the company of an enlisted man, I insist that dishonorable discharge from the Army is not enough for him, but that a sentence of hard labor must be added.” The defendant received three years, two of which he served after war had ended.

Runcie also revealed that many officers, who had incurred the disfavor of the top bureaucracy, were charged with a crime but never called before a court. Their cases would remain on file in Washington to serve as hostage in case the offending officer failed to mend his ways. Other, more difficult officers would be tried and convicted but never sentenced. Their sentence would be held in abeyance pending their good behavior.

Apart from such cases, used to preserve the hierarchy, charges against officers are usually quashed. Both Ansell and Runcie testified that the most flagrant cases of misconduct by officers are consistently ignored by the judge Advocate General and the General Staff.

“ I knew an officer that was an inveterate gambler and swindler,” said Runcie. “All his life he cheated at cards but one day his crime was so flagrant that charges were brought against him. A court martial was convened and set to proceed when suddenly an arbitrary order from a superior officer arrived which set aside the court. There was nothing that could be done.”
 

Court-Martial Procedure

The great power exercised by the commanding officer would seem to reduce court martial to little more than meaningless superstructure. And yet that very superstructure is so weighted against justice for the soldier that it is worth examining. To begin with, there is no designated judicial or police authority. Any officer can bring charges against any soldier at any time. And, as we shall see, a simple charge is usually tantamount to conviction. The defendant may be charged with the most trivial offense punishable by a $5 fine or 24 hours in jail, and yet he is often kept imprisoned a month before his trial is started. When officers have grudges against certain men and can discover only minor infractions of law, they keep the men in the guardhouse the full statutory period before bringing them to trial.

The defendant is then questioned by his superior and enjoys no legal protection from self-incriminating testimony. Ansell reported that the army “habitually forces testimony out of the accused by third degree and then uses that testimony against him at the trial.”

When the defendant is finally brought to trial, the personnel of the court is determined by the commanding officer.

The defendant has no challenges without cause and only one challenge with cause. This challenge is then tried by the remaining members of court. In other words, to change the composition of the court all officer judges would have to vote for the enlisted man and against a fellow officer.

The defendant is usually allowed to retain counsel of his own though under the code the judge Advocate is charged with the responsibility for the defense. The counsel available to the defendant has usually had, up to that moment, no familiarity with the case. Runcie testified: “Recently there was a sentence of imprisonment for life where the counsel for the defense had been a bystander suddenly appointed, and said in open court that he never before had seen the accused and that he had no knowledge of the case.”

Since the court has the power to affirm or deny the defendant’s choice of counsel, it may use this means to prevent him from getting the best counsel. Where counsel is designated by the Judge Advocate, it is usually an inexperienced “shave-tail.” Examination of 5,000 cases by Ansell during his brief term as judge Advocate General, revealed that a second lieutenant (lowest commissioned officer) was counsel in 3,871 cases, or 77 per cent.

Should the defendant happen to obtain good counsel, the rules of the court prevent him from effectively helping his client. The counsel is restricted to giving advice to the defendant and framing questions which are handed by the accused to the judge Advocate on slips of paper. Any legal objections are also handed on slips of paper to the judge Advocate who silently rules upon them. The counsel may not address the court or interfere in any way with the proceedings.

There are three classes of court martial: Summary, Special and General. The Summary and Special are the lowest courts and may be convened by a captain and brigade commander respectively. These courts are used a great deal near the front, for their procedure is quick and simple and no minutes are kept of the trial. The General Court Martial is used to try all officers and soldiers accused of the more serious crimes.

The principal characteristic of these courts, common to all three, is the unique position enjoyed by the judge Advocate. His authority over the court and the course of the trial finds no counterpart in civil jurisprudence.

As judge he passes upon all evidence submitted to the court (there are no established rules of evidence in the military code), he is also the prosecutor and charged with obtaining a conviction, and he may allow the defendant to obtain a counsel of his own, or he may reserve that function for himself.

Ansell attributed much of the viciouness of military justices to the multiple powers of the judge Advocate. “The files are full of these cases,” he said, “but there is one I remember particularly. A lieutenant, a quartermaster, was put (by his commanding officer) to making a trap for an enlisted man out in a western department, to catch him and to see if he was stealing goods out of a storehouse. The lieutenant set the trap and said that he caught the man, which I very much doubt. He was, of course, the prosecuting witness. Then he was appointed judge Advocate of the court, and then he was assigned counsel for the accused, and he functioned in all three capacities. The man was convicted.”

This procedure actually makes the other judges superfluous, for the judge Advocate can so control evidence and procedure as to allow only the verdict he may desire. Even with this degree of authority the judge Advocates have always preferred to sit in Summary or Special Courts Martial where the numbers of judges is sharply reduced; three to five officers on the Special, a single officer on the Summary court.

An additional advantage of the lower court is the absence of any official stenographer. The more flagrant cases of persecution are most often found in the lower courts where the officer runs little chance of future embarrassment because of written records.

Ansell revealed a method commonly used to circumvent the restriction upon length of prison sentence emanating from lower tribunals. A certain captain in France had a grudge against a soldier but could never get anything on him. One day this man overstayed his leave by a few hours and he was jailed. The captain’s problem was to conduct the trial in a lower court, so that no stenographic record would be made of it, but also to give the man a longer sentence than a Summary court had the power to impose six months. The captain solved his dilemma by bringing three charges against the man: absent without leave, failing to report for duty, and disobeying a command. The man was tried in a Summary court martial on all three charges, one at a time, and given six months on each charge. The captain thereby succeeded in imposing eighteen months’ imprisonment at hard labor.
 

Officers’ Prestige at All Costs

Summary, Special or General Courts Martial, stenographic record or not, the findings of the court reflect the desires of the commanding officer and subsequent review by the hierarchy generally serves to uphold his hand. One example of confirmation of unjust convictions merely to maintain the solidarity of the officer caste occurred in 1917 in a Texas training camp. Ansell, who was acting judge Advocate General at the time, had intimate knowledge of the case and presented it to the Senate committee.

Eleven non-commissioned officers were gathered around a crap game in a company street during their free period. About half of them were engaged in the game, the other half being spectators. Captain Harvey, graduated the year before from West Point, discovered this game, placed them under arrest and ordered them to their barracks. The next morning he noticed that these eleven men were absent from drill and went to their barracks. The men explained that the Articles of War provided that no man shall perform military duties while under arrest. They said further, that if he released them from arrest they would report for drill at once. Captain Harvey was enraged and immediately charged them with mutiny. Between the time of the officer’s charge and the trial, these men were demoted from their non-commissioned status to the rank of private and stood trial as such.

When this case came before Ansell for review, he threw out the findings and ordered a new trial. Ansell’s reversal, however, was countermanded by the War Department, and the convictions stood. Ansell told the Senate committee:

“It was perfectly obvious to all of us that the men should never have been tried at all, and that the trial was illegal in many respects. The charge was imperfect, defense made for them was not the defense that should have been made, and their rights were disregarded during the trial. The young West Point officer’s conduct was lawless and arbitrary and he ought to have been court martialed for his part in the affair. But this case went through the entire proceeding from bottom to top of the military hierarchy without a discovery of any of these errors. Or at least, no action upon them. The men received long prison terms at hard labor. The War Department held that all proceedings, findings and judgments of a court martial are final, beyond all remedial, curative power, when those proceedings and judgments are once approved by the commanding general who brought that court into being.”

Official records, removed from the judge Advocate General’s office by Ansell, revealed that out of every 100 charges brought against soldiers by officers, 97 were tried; and out of every hundred trials 96 were convicted. From April 6, 1917 to August 31, 1919, there were 30,916 men tried before General Courts Martial and an estimated 400,000 men tried by the Summary and Special courts this according to the testimony of Brigadier General Edward Kriger of the Judge Advocate General’s office. These figures, which applied to an army of 4,000,000, meant that over ten per cent of the army was tried by courts martial during the war.

Significantly, it was not during overseas service that the soldier was in greatest danger of being court martialed, but immediately upon induction into a training camp. Faced in 1917 with a great influx of civilians, the army launched a reign of terror as the best method of keeping these new men in line. The slightest infraction of a rule brought immediate and awful retribution. News of this terror began to seep out, and frightened parents and wives demanded a Congressional investigation. The army succeeded in stalling this investigation until after the war ended. However, even in 1919 public opinion was running high against the hierarchy and judge Advocate General Crowder felt compelled to defend his office with the words, “We never expect the defendants to serve the full sentences. It was merely that severity was necessary at that time to teach discipline.”
 

Some Typical Case Histories

What Crowder meant by discipline was, of course, a blind, unthinking, automatic submission to the slightest whim of a superior. The fact remains that one man in ten was tried, usually convicted, and served sentence. Here are just a few of the cases that Ansell quoted from the terror of ’17:

The extent of the terror can be judged by Ansell’s testimony that the following cases constituted a single day’s report from a single camp (Dix):

Classic examples of army persecution, which later achieved great notoriety in America, were the death sentences passed upon four young volunteers in France.

Sebastian, 19 years old and Cook, 18, were assigned to an advance observation post in the American sector of the western front. They were under bombardment continually and had received no relief for seven days. On the eighth day, when relief did arrive, they were discovered asleep at their post. Their trial lasted exactly 40 minutes and the entire transcript of evidence and testimony covered four loosely written pages. They were sentenced to death.

The other two volunteers, Ledoyen, 19, and Fishback, 18, were behind the lines under a sadistic drill sergeant who maneuvered them long hours every day in deep snow. After a long morning drill and a brief respite for lunch, the sergeant, in spite of the obviously exhausted condition of the boys, ordered them out for further drill. They were not able to get their packs on their backs and fell into their bunks in a semi-conscious condition. They were court martialed for refus- ing to obey a command, and sentenced to death.

Without any direct knowledge of the two cases, according to Ansell’s testimony, General Pershing sent word to President Wilson that the death sentences were necessary to the good of the service. Wilson turned to the General Staff for advice and the General Staff decided that since Pershing had personally entered the case there was nothing it could do but uphold his hand regardless of the merits of the cases.

Wilson finally yielded to public opinion and commuted the sentences to long prison terms. The War Department then issued a statement that the army never intended that the sentences be executed as handed down and that their severity was merely for a “beneficial effect upon army discipline.”

Throughout the month long Senate hearings there was only one private heard, but his testimony was probably the most damning. He was Pvt. W.B. Thomas, Company F, 16th Engineers. He had been an attorney before the war and because of that he was in great demand as a defense counsel. He testified before the Senate committee that after he had defended several men his superior came to him and said that he was “making a big mistake” by defending all these men. When Thomas ignored the warning his superiors began to prepare a trap for him. In the meantime Thomas was selected by the men to head a delegation to the captain to get an accounting of the men’s pay placed in his keeping. The captain refused to give an accounting of the company funds and again threatened Thomas.

A month later, Thomas, on leave, went into a small French town near his camp. While there he took suddenly ill and went to the Red Cross depot. The nurse put him to bed and then sent him to the base hospital where he was kept for three weeks. When Thomas returned to his company nothing was said concerning his hospitalization. A month later, how ever, when he again headed a delegation trying to get an accounting of the men’s funds, the captain preferred charges against him and he was court martialed for being absent with out leave the three weeks he was in the hospital. Thomas obtained statements from both the Red Cross depot and the base hospital that he was seriously ill, but the court convicted him on the technicality that he had failed to report to the company medical officer before going to the base hospital. He served three months at hard labor and when he returned to his company he was informed by Colonel Fowler that he would be forbidden to act any more as counsel for soldiers.
 

Why Congress Did Nothing

The end of the war and the demobilization of troops opened to the press and public a fund of information and evidence concerning military justice. It was then that Congress appointed committees and made brave speeches. What these crusaders did not at first recognize was that the repressions they wailed over were, and remain, an integral part of the military code, not abuses of it. Demands were made in Congress that enlisted men sit as jurors on all courts martial. These demands were labeled by the army hierarchy as “Bolshevist,” and as “absolutely unworkable.” The army was right, in essence. The military code could not be democratized without playing havoc with the officer caste and the army caste is only a sharply focussed reflection of the capitalist oppression the army serves.

The demand for military reform was easily beaten back once the Congress became fully aware of the class interests involved. Peace descended upon the War Department and the office of the judge Advocate General.

But there was still work to be done. A new file was installed which contained the names and case histories of every man dishonorably discharged from the army. Employers were to be informed of the “bad record” made by these men and were to be urged to replace the “troublemaker” with a man with a good army record.

The story here told occupies about one third of the bound Senate hearings on proposed changes in the Articles of War. The other two thirds of the volume are taken up with defense of the articles by various members of the hierarchy and the Wilson cabinet. They did not deny Ansell’s case histories. They simply drew different philosophical conclusions from them. Their philosophy was that of all oppressors. Judge Advocate General Crowder stated their philosophy when he said, in summarizing his arguments against any reform: “The disintegration of the Russian (Czarist) army was due not to age long tyranny or oppression or reaction, or any other like cause, but entirely to a failure to treat disobedience in small things and great things alike.”

That is, the real danger is in not being severe enough.

 
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