The best writing builds a moving story in the mind of the reader. Cinema can bring that story to life in a way that forces viewers to feel a story that might be more monumental than they imagined. I’m four years late, but I recently came across The 24th, a fictionalized depiction of the events surrounding the Houston Riots of 1917 that led to the largest murder trial in U.S. military history.
Continue readingMilitary Legal History
The Army’s Recent Press Release Regarding The “Houston Riots” In 1917. A Look Behind The Curtain.
A few weeks ago, the Army announced the correction of records of 110 soldiers convicted by court-martial after the so-called “Houston Riots” in 1917. Here is, as Paul Harvey would say, “the rest of the story.”
Continue readingThe Convening Authority as an Early Appellate Authority
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.
Introducing Judge Advocates Into Courts-Martial
By 1806, judge advocates were introduced as a mandatory aspect of courts-martial. Sort of. And only on the prosecution side. Sort of. Military defendants were, though, allowed to hire a civilian lawyer to represent them. Not really. But when they could, the lawyer usually wasn’t allowed to speak. . . .
The Court-Martial Panel of the Founding Era
The Continental Congress enacted the first Articles of War under fire. British troops occupied Boston. The British Navy blockaded Boston Harbor. The “Shot Heard ‘Round the World” was fired at Lexington. Neighboring colonies sent militia to assist the Massachusetts response. The Siege of Boston was underway. The colonies were at war with Great Britain.
Keeping Order in an Amateur Army on Campaign In a Time Long Gone
To understand courts-martial at the time of the Founding, one must also understand the military (or organized violence more broadly) of the same period and the greater society within which it existed. And to do that, one must forget all you know of the modern military and instead imagine a completely foreign idea.
Wading Into the Supreme Court’s Military Law Jurisprudence
“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]
Lessons Learned and Back to the Blog
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
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.
Competing Conceptions of Manhood and Honor in the North and the Union Army
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.
Echoes of Adolphus 