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.
Advancing a Deeper Understanding of Military Law
Even a vacuum doesn’t operate in a vacuum.
On My Nightstand: More on Preparing for War by J.P. Clark
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
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!
A Potential Working Definition of Military Common Law
One of the obstacles to researching military law is most of the scholarship occurred prior to the digitization of law journals. Many insightful articles are found by accident, buried in a footnote and inaccessible through research sites such as Westlaw and LexisNexis. One such article is CAPT Guy Zoghby’s 1965 article, Is There a Military Common Law of Crimes. While he focuses on civilian offenses found in the Uniform Code of Military Justice (UCMJ), Zoghy does give us at least a starting definition of military common law.
The Military Commander As The Military Magistrate — A Second Look
With things settling down at the new home and things apparently working out with the condo (fingers crossed!), it’s time to return to writing. My latest law review article is coming along nicely (I hope), so I thought I’d jump back into my blogging.
Military commanders are afforded tremendous power over members of the military under their command, as well as the physical installations (bases) where they command. As it relates to military justice—i.e. military criminal law—the commander is essentially the mayor, the district/state attorney, the person who selects the group (venire) from which the jury comes out of, and also serves as the military magistrate. And in these areas, it is safe to say these powers are exercised broadly—and with little to no questioning of that authority. This post discusses this latter power and reviews the seminal case in this area and suggests that perhaps the legal, political, social, and military history surrounding military justice reform may not make the question so clear cut.
Discipline Is the Soul of An Army
I’ve often been led to believe this quote attributed to George Washington referred to discipline in the punishment sense. This is often combined with the additional statement that one of his first decisions upon taking command of the Continental Army was to appoint LT William Tudor as Judge Advocate General. But it is much more likely he referred to discipline in the training sense. And to obtain the discipline Washington sought to save his army, he turned to the most capable man for the job—an immigrant.
I DON’T THINK THOSE WORDS MEAN WHAT YOU THINK THEY MEAN
I read an interesting law review article recently. Written by a prominent military justice scholar, it largely argued that military commanders should retain their current role in the military justice process. It reminded me of the oft-articulated argument for maximizing the jurisdiction of military courts and commanders over all offenses committed by military members. A cornerstone of this argument is that the “military is different.” As such, its specialized needs require a separate criminal justice system. But an article I reviewed while researching my own forthcoming article on the little known (outside the military) military’s highest court’s military necessity doctrine highlights the fact that this phrase, so often relied upon in support of the status quo, stood for the exact opposite proposition.
The Origins of the “Potted Plant?”
My latest project (when I can spare the time) involves reading CAAF decisions from the 1951-1952, 1968-1969, 1994-1995, and 2014-2015 term. I’m up to the 1994-1995 term now, and came across an interesting footnote. Most judge advocates are familiar with the concept of more senior trial counsel serving as a “potted plant,” but what is less known is that this phrase may have originated in the Iran-Contra scandal.
In 1992, the United States Air Force court-martialed an Airman for wrongfully using cocaine and failing to obey a lawful order. The intermediate appellate court affirmed without opinion. After a change in appellate counsel, the Airman appealed the intermediate court’s decision to CAAF, raising an issue there not raised in the court below. CAAF subsequently remanded the case to the intermediate court for consideration of the new issue.
The intermediate court was not amused:
When the [then] Court of Military Appeals permits appellants to raise issues for the first time before them without requiring a showing of good cause, and returns the case for us to repeat our review of the case, it impeaches confidence in the Court’s performance of its statutory duties and provides incentive to appellate counsel to engage in piecemeal litigation….
This is an opinion definitely worth reading, particularly the end of the majority opinion and the two concurring opinions. Each sheds light on the relationship between the military highest court and its intermediate courts. But for purposes here, one passage in CAAF’s decision warrants attention:
As far as the implication that an issue not raised at the lower level cannot be raised before us, we are sure the court below would not sanction a “potted plant” role for appellate counsel with regard to new issues.
Putting aside the concern with issues being raised at the highest court for the first time, the footnote accompanying this sentence drew my attention; as a “more senior and the certified trial counsel,” I am often “relegated” to potted plant (i.e. supervisory) duties:
The term “potted plant” is used in America’s image-based society to distinguish passive non-players (“is a potted plant”) from people of action (“is not a potted plant”). It is derived from Brendan V. Sullivan, Jr.’s, response to Senator Inouye, when the Senator was attempting to limit Mr. Sullivan’s role in protecting his client (Oliver North) from what Mr. Sullivan perceived as unfair questioning by the Senate staff during the 1987 Irangate Hearings: “Well, sir, I’m not a potted plant. I’m here as the lawyer. That’s my job.”
And there you have it….
 United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995) (citation omitted).
 Id. at 446.
 Id. at 446 n.2.