Military Legal History

The Convening Authority as an Early Appellate Authority

/ Rodrigo M. Caruco / Leave a comment

At the heart of the early American court-martial was the convening authority, the military commander with the legal authority to convene such a proceeding.[1] The Army and Navy of the period was not only quite small relative to today, they also existed in a world with limited communications bandwidth. Generals, Admirals, and (Navy) Captains received their general orders from the Commander-in-Chief and were delegated vast authority to otherwise act on their own pursuant to the Commander-in-Chief’s “intent.”

Courts-martial of the period were primarily the (sole) medium to imposing punishment and maintaining control over enlisted[2] men.[3] This is an important point to understand. A criminal proceeding in a regularly constituted court of competent jurisdiction is, at least in theory, intended to independently assess the facts of a case to determine whether the government has proven its case beyond a reasonable doubt and, if necessary, impose an appropriate sentence. Courts-martial by this period had a long history of being a creature of necessity outside regular law used to enforce conformity and discipline in an age before loyalty to a state, much less a constitution, while attenuating charges of arbitrary and capricious whims (which would not be the acts of an officer and a gentleman).

Under the conventional perception of courts-martial of this era, a panel of military officers heard the evidence and independently determined guilt. Likewise, this same panel independently determined the appropriate sentence. Courts-martial of the period had no maximum punishment tables nor sentencing guidelines. Sentences were determined, paraphrasing, “as a court-martial may direct.”

So, one would be fine to think the convening authority acted as an appellate authority over the independent determination of the court-martial panel.

The convening authority selected the panel of officers to determine guilt and adjudge a sentence. He also selected the prosecutor, who also spoke for the Accused. If the convening authority disagreed with a particular ruling by the panel, he could re-submit the issue for further review. Same goes for the sentence.

Oh, and he also rated each of the officers selected for the panel, meaning he was in control of their career.

As a further indication of a court-martial’s administrative hearing character, though there were no early rules of evidence or procedure, the early Articles specifically spelled out that the trial judge advocate was responsible for compiling the record of trial and forwarding it to the convening authority. He then had the authority to approve the findings and sentence, set them aside, or approve a lower sentence.

An additional copy was forwarded to the JAG Department in Washington, DC. At the time, the department had no authority to do anything to the approved findings and sentence. The most it could do was, upon review, provide recommendations to the convening authority to consider in the future. In fact, it was not until Brigadier General Samuel Ansell in the early 20th century that the JAG Department asserted Congress intended it to have jurisdiction over courts-martial.

But, that is hundreds of years away. In colonial times, the convening authority’s power was virtually absolute and he remained the only “appellate” authority in a court-martial. As you can probably imagine, this was abused, and Congress almost immediately stepped back in to require a bit more supervision.

More next time.

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[1] Then, and now, there existed multiple types of courts-martial, differentiated by the type of punishment it was authorized to impose. The more serious the authorized punishment, the higher rank the convening authority needed to be.

[2] In a separate post I might venture a little more into officer courts-martial. While there are some notable cases, mostly an officer was just as likely to demand a trial by court-martial when “dishonored” as he was to face a court-martial for misconduct. And even when that happened, officers were loathe to convict one of their own.

[3] Also in a separate post, I will explore a bit more why this was so. For now, recruiting was different, military organization was different, enlisted men were different. It was just a different time and a different people, and a different need.

Wading Into the Supreme Court’s Military Law Jurisprudence

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“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that ‘it is the primary business and armies and navies to fight or be ready to fight wars should the occasion arise.’”[1]

“We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”[2]

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Lessons Learned and Back to the Blog

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You know, Thomas Edison tried and failed nearly 2,000 times to develop the carbonized cotton-thread filament for the incandescent light bulb.
….
And when asked about it, he said “I didn’t fail; I found out 2,000 ways how not to make a light bulb,” but he only needed one way to make it work.

— Benjamin Franklin Gates
National Treasure (2004)

Chalk up launching C4SMJ to one of the 2,000 ways how not to make a light bulb. Ultimately, there were hurdles we weren’t quite ready to overcome.

So, C4SMJ is back on the drawing board for now and I’ll be re-focusing on this blog.

More to come soon!

— Rodrigo

Thoughts on the Court’s Engagement with the Inmate Community

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The Court’s decision in Turner v. Safely is a benchmark example of the Court’s ability to establish a framework for analyzing constitutional issues in a community with which it is not familiar with, willingness to engage with the community and apply the framework, and take a disciplined approach to its role as the court of last resort in its Congressionally-created jurisdiction.

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Competing Conceptions of Manhood and Honor in the North and the Union Army

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If you are like me, there is a never ending list of books you keep adding to but can’t get to. For me, that often also leads to a similar stack of books on my bookshelf bought in excitement, just waiting to be read. The Gentlemen and the Roughs, by Professor Lorien Foote, is one of those books. I’ve finally been able to dive into it and what a consuming read it has been so far.

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On My Nightstand: More on Preparing for War by J.P. Clark

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A bit further along in Preparing for War: The Emergence of the Modern U.S. Army, 1815-1917, by J.P. Clark. I’m always looking to steal some time to get in a little reading every day, but it is a continual struggle–particularly after long days of reading at my day job.

Clark has done an excellent job so far of leading me through the army culture’s evolution as it responded to its experience, as well as its parent society.

Take this excerpt, for example, as Clark discusses the late 1800s:

But underneath political deadlock, society was undergoing a profound change from traditional personalized customs to new impersonal systems. That was, in broad terms, the difference between the Gilded Age and the Progressive Era. Naturally, such a momentous transition was neither instantaneous nor absolute. The broad trend, however, manifested itself in different ways across all aspects of society: in government, the patronage of party machines slowly yielded to an impartial bureaucracy manned by civil servants; in the private sector, unregulated free practitioners were subsumed by national credentialing associations for professions such as law and medicine; in the army, individual autonomy would be slowly subordinated to a general staff dictating a centrally determined notion of professionalism.

Beyond the clear and vivid, well-researched writing, I am particularly intrigued by Clark’s thesis.

Though still working through the details of my thesis, I believe a similar argument can be made about the evolution of military justice, both within the parent society and the law that governs its people.

Reading books like Clark’s, and other well researched and written articles, help refine the questions to be asked and hypotheses to test, even though they might not directly reference military justice. My intent is to share and celebrate these works on this blog . . . and to take good notes . . .

On My Nightstand: Preparing for War by J.P. Clark

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I picked up Preparing for War: The Emergence of the Modern U.S. Army, 1815-1917, by J.P. Clark, a few weeks ago and added it to my reading rotation.

The inside jacket cover was particularly appealing.

The author, an active duty Army officer and former faculty at the United States Military Academy, “traces the evolution of the Army between the War of 1812 and World War I. . . .” But this was the part that hooked me:

Nineteenth-century officers believed that generalship and battlefield command were more a matter of innate ability than anything institutions could teach. They saw no benefit in conceptual preparation beyond mastering technical skills like engineering and gunnery. Thus, preparations for war were largely confined to maintaining equipment and fortification and instilling discipline in the enlisted ranks through parade ground drill. By World War I, however, Progressive Era concepts of professionalism had infiltrated the Army. Younger officers took for granted that war’s complexity required them to be trained to think and act alike—a notion that would have offended earlier generations.

Does that sound cool or what???

I’m a little over ninety pages in so far, and it is fascinating. This “industrialization” of American though on command, mobilization, organization, and training promises to be a fascinating insight on this aspect of the evolution of military society, and the broader society in which it exists. I’m hopeful that this will add to how best to understand the proper evolution of military law. So far, this book does not disappoint.

Check it out, share your thoughts, and pass along recommendations!