Contingencies of Proof--Ernesto and Alberto return

The editors are happy to learn that our itinerant colleagues did not drive off a cliff, were not threatened by a Dodge Challenger driven by shotgun wielding locals, and the Mustang Diaries have been--well, interesting. ** They conclude their travels with a report on two revolutionaries of the arcane military justice system.

​Before World War II, George S. Patton spent a month’s leave retracing General William Tecumseh Sherman’s march to the sea.  At Normandy – as military historian Victor Davis Hanson noted – Patton appeared to “deliberately emulate[] the ‘super-Sherman style’ of grand flanking maneuvers to the rear as a result of following Sherman’s march firsthand in Georgia.”  The final day of the Contingencies of Proof road trip was immersed in those two great military leaders.  We started the day at Fort Knox’s General George Patton Museum of Leadership, with its astounding collection of iconic Patton artifacts.  Then, after dashing 267 miles to the north, we visited the Sherman House Museum – William Tecumseh Sherman’s birthplace – in Lancaster, Ohio.

Among their similarities was the two generals’ attitudes toward military justice.  It was, to them, a commander’s tool to foster mission accomplishment.  In a directive to the Seventh Army on August 5, 1943, Patton decreed:  “Those who are not willing to fight will be tried by court-martial for cowardice in the face of the enemy.”  And here is the view of Patton’s role-model Sherman, who briefly practiced law during his time as a civilian between 1853 and 1861:

[I]t will be a grave error if, by negligence, we permit the military law to become emasculated by allowing lawyers to inject into it principles derived from their practice in the civil courts, which belong to a totally different system of jurisprudence.

The object of the civil law is to secure to every human being in a community all the liberty, security, and happiness possible, consistent with the safety of all. The object of military law is to govern armies composed of strong men, so as to be capable of exercising the largest measure of force at the will of the nation.
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These objects are as wide apart as the poles, and each requires its own separate system of laws—statute and common. “An army is a collection of armed men obliged to obey one man.”  Every enactment, every change of rules which impairs this principle weakens the army, impairs its value, and defeats the very object of its existence.  All the traditions of civilian lawyers are antagonistic to this vital principle, and military men must meet them on the threshold of discussion, else armies will become demoralized by engrafting on our code their deductions from civil practice.

General William T. Sherman, “Military Law,” 1 Journal of the Military Service Institution of the United States 129, 130 (1880).
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Sherman’s view recalls the great military justice debate of the 20th century – is it foremost a disciplinary system or a justice system?  Sherman argued the former.  Unlike on the battlefield, he was on the losing side of that conflict.  Well before the end of the 20th century, the prevailing view had become, in the words of the Powell Report:  “It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice.  It is an instrument of justice and in fulfilling this function it will promote discipline.” Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army, “Report to Honorable Wilber M. Brucker” 12 (18 January 1960).

Now, a fifth of the way through the 21st century, Congress is poised to move even further in the direction that Sherman bewailed.  Commanders will soon lose their authority to exercise of prosecutorial discretion over some subset of offenses – the precise scope is yet to be determined.  Perhaps sometime in the 22nd century, two military lawyers will take a road trip (and it had BETTER be in a flying car by then) to assess the consequences of that change.

(Ed. note. Readers may be interested in

• Edward F. Sherman, The Civilianization of Military Justice. 22 Maine L. Rev. 3 (1970).
  
• David A. Schlueter, Military Justice for the 1990’s: A Legal System Looking for Respect. 133 Mil. L. Rev. 1 (1991).
  
• And compare, G. R. Rubin, United Kingdom Military Law: Autonomy, Civilianisation, Juridification. 65 The Modern L. Rev. 36 (2002).)

Cheers.

** From the Youts Dictionary--Thelma & Louise, Easy Rider, Motorcycle Diaries.