1428 supply it. It seems to me we should examine this matter before our com- mittee a little further, and perhaps the Secretary of Agriculture could come for- ward with some further suggestion as to what is necessary to make disposition of the surplus potatoes without dumping or destroying them. I am not going to condemn the Secre- tary of Agriculture at this point for what he has failed to do with respect to the surplus potatoes. Mr. ANDET:7ON. I have tried very hard, in what I have said today, to indi- cate that Iam rot condemning the Sec- retary of Azriculture. Mr. LUCAS. I know the Senator is not, but an inference has been left in the colloquy that the Secretary of Agri- culture is the sole person responsible for not disposing of the surplus potato crop. I am not so sure that he is responsible for not making proper distribution of the potatoes under the Thomas amend- ment. I think the matter should be fur- ther examined. I believe that if the Secretary of Agriculture can find a way to dispose of the potatoes, as is suggested under the Thomas amendment, he will do it. I am sure he does not want to dcstroy potatoes, any more than anyone else does. But that is the inference vhich has been left by some in this debate. Like the former Secretary of Agricul- ture, now the distinguished Senator from N>2w Mexico, I too am interested in what we should do with the surplus potatoes, but I am more interested in the cause which produces this surplus crop. Mr. President, year after yeur we have had the surplus potato problen. before us. This is not the first time potatoes have been destroyed, or there has been a threat to destroy them, because the growers could not market them. I re- call that potatoes were destroyed in Ala- bama and Florida a few years ago. They were destroyed because they were of & certain type and kind which had to be shipped te New York or Chicago in re- frigerator cars, or they would be spoiled when they reached the market place. Yet, because those potatoes were dumped and burned, much criticism came forth Mroughout the country akout the de- struction of food. What was done at that time was the only thing that could have been done, and the evidence before the committee so indicated. The main problem which the Senate and the House of Representatives must solve is as to what we are going to do with the problem of control of the potato crop. It is not a political question with me. I never mix politics and corn and potatoes. All through the Midwest Dem- ocrats and Republicans alike, from the day when McNary and Haugen came for- ward with farm bills, have been working closely together in the attempt to do s>mething to give the farmers some leg- islative relief. That has been the course year after year. Since 1935 we have had an excellent program, a program, if you please, which has saved the economic life of this Nation, because if there is not a prosperous agriculture, there will not be a prosperous America. If the CONGRESSIONAL RECORD—SENATE farmer does not make a good, decent living, the laboring man and all others cannot make a living. The time has now come when some- thing drastic must be done with respect to the control of the production of po- tatoes. We have lingered along year after year, through Congress after Con- gress, thinking something ts going to be done with potatoes and a few other crops which are not under controls, giv- ing subsidies to many individuals who are growing potatoes, not for the market, but it would seem for the Government as a result of the exorbitant loss year after year. So long as human nature is what it is, they will continue to grow po- tatoes for the Government rather than for the market, if the Congress of the United States does not clamp down up- on them with severe and drastic legisla- tion. I have made this argument be- fore. I repeat the time has come to act once and for all, that we must tell the potato growers of this country that they cannot continue to take from the Treas- ury of the United States the taxpayers’ money without absolute control coopera- tion by the grower. Every Senator fa- miliar with our farm legislative prog- ress dealing with the support and con- trol program of our basic commodities, knows that the potato program is grad- ually weakening the foundation stones of a great agricultural program. Mr. President, the American people will not continue on and on in the support of that kind of a program, when they see what is happening year after year with re- spect to potatoes and a few other crops. The potato program to date alone has cost more than all the basic commodi- ties put together. The fact of the mat- ter is that up until this very moment the Commodity Credit Corporation has made money on cotton, corn, tobacco, and wheat. I do not say that the Corpora- tion will not lose some money on some of these commodities in the future. But it is the potato program which is causing all the trouble. Mr. President, as one Member of the Congress who is vitally concerned about continuation of a program which will keep agriculture where it belongs, which will keep America where she belongs, namely, on solid economic feet, I am sick and tired of continuing to subsidize certain specialized groups which will not play ball on the same basis with the farmers producing the basic commodi- ties. And I propose to do something about it, Mr. President. Mr. WILLIAMS. Mr. President, will the Senator from New Mexico yield? Mr. ANDERSON. I shall be glad to yield in a moment, if I may comment on something the Senator from Illinois just said. Mr. President, it is not my contention that the situation with respect to pota- toes is due to any failure on the part of the Department of Agriculture. I should think, however, it would be of value to call attention to a procedure that takes place on the cattle ranges of the country. When the cook, out on the range with his chuck wagon, has come FEBRUARY 3 pleted his work in preparing a meal he yells out “Come and get it.” I think it might be well for the Department of Ag- riculture to invite the welfare organiza- tions and similar institutions to come and get the 50,000,000 bushels of sur- plus potatoes. I may say that the re- sponsible governing board of an orphan- age, a hospital, or a welfare institution which did not pinch its pennies and try to get some of these cheap surplus po- tatoes ought to be called up for question- ing by the proper authorities to find out why it did not do so. Here is an oppor- tunity for such organizations to get a considerable part of the food needed by such organizations. Potatoes are a good and satisfactory form of nourishment. It is a shame that the surplus potatoes cannot be used. If the governing boards of welfare or- ganizations cannot pay the freight on the potatoes, that is, if it is not cheaper for them to pay the freight and obtain the surplus potatoes, then they can no- tify the Department of Agriculture that they cannot pay the freight, and the De- partment of Agriculture can come before the Congress and ask for additional funds, if it needs additional funds, with which to pay the freight on the pota- toes. Certainly every effort ought to be made to persuade people to pay a few cents in freight for a few dollars’ worth of potatoes. That seems to me the only sensible thing for the charitable institu- tions of the country to do. Mr. WILLIAMS. Mr. President, will the Senator yield? Mr. ANDERSON. I yield. Mr. WILLIAMS. Regardless of who might be responsible for our present po- tato surplus, does the Senator from New Mexico agree with me that the most con- structive step which the Congress could take toward establishing a sound agri- cultural program and at the same time provide the best solution to our problems of huge surpluses, would be to advance the effective date of the flexible provi- sions of the Anderson Act from January 1, 1952, to read “effective immediately’? Mr. ANDERSON. I think the Senator from Delaware will agree that many of us had opinions with respect to the measure to which he refers which were not in agreement with the opinions of many other Members of the Senate or of the House. We did the best we could under the circumstances, and so far as I am concerned, the majority having acted, I will stay with the majority until we have occasion to consider the subject again. Mr. WILLIAMS. Does not the Sena- tor from New Mexico agree with me that the most effective step we could take would be to reduce price supports across the board on all commodities on which we are piling up surpluses? Mr. ANDERSON. If the Senator from Delaware should try to get that type of legislation considered he might find that he will get something which is worse than what we have now. We came near to having a permanent 90-percent sup- port-price program. It was only with some difficulty that we finally achieved
1950 the bill, which I think has some possi- bilities. The Senator knows I am wedded to the idea of flexible price supports. I advocated that principle while I was in the Department. I testified in favor of it before committees of the Senate and the House. I was glad to see it written into the platforms of both political parties in 1948. Iam not going to desert that principle now. However, I am per- fectly willing to allow the Congress to set the time of the effective date of the flexible provisions of the act. Having gone through the late unpleasantness, I shall be glad to see the Congress take whatever action it desires to take. Mr. WILLIAMS. Idonot think I quite understand the Senator from New Mex- ico. The Senator is not opposed to any amendment of the Anderson Act until 1952, is he? Mr. ANDERSON. No, but I think there should be consideration of such legislation in orderly fashion. When the legislation comes up for consideration we may consider this problem. After we had days and days and days of the most prolonged and difficult negotiations to get any farm bill at all, I do not want to discuss the desirability of trying to change its provisions now. The Sena- tor will recognize that during those ne- gotiations I learned many things about myself that I had not theretofore sus- pected. I do not care to go through the same type of experience again at once, unless there is a possibility of reaching an agreement, and I think there is very slight possibility of reaching an agree- ment to advance the effective date of the flexible provisions of the act. Mr. WILLIAMS. Mr. President, will the Senator yield further? Mr. ANDERSON. I yicld. Mr. WILLIAMS. If we were to assume that there was a possibility of arriving at an agreement respecting the desira- bility of advancing the effective date, does the Senator think it would be a wise step to take? CONGRESSIONAL RECORD—SENATE Mr. ANDERSON. I have always con- sidered that the flexible provisions of the act represonted a wise step. There- fore the earlier they can become effec- tive, the better I think it will be. We are not at that point, however. We had dif- ficulty in getting as far as we did. Mr. WILLIAMS. Will the Senator yield for one further question? Mr. ANDERSON. Yes. Mr. WILLIAMS. The Sznator will agree with me, will he not, that it would solve to a large extent our problem of huge accumulation of surpluses in the so-called basic commodities at this time? Mr. ANDERSON. It would not solve the problem of the surpluses or accumu- lations of potatoes which is now harass- ing us. Mr. WILLIAMS. No. Mr. ANDERSON. The potatoes are on hand. Therefore we cannot solve that problem immediately. Perhaps it can be solved by the adoption of one of the measures representing the two extremes, the one advocated by the Senator from Oklahoma |Mr. THomas] and the other by the majority leader of the Senate. Mr. WILLIAMS. I was not trying to infer that it would solve the problem of the 50,000,000 bushels of surplus pota- toes with which we are now confronted. I realize that we are confronted with this situation, regardless of what action we may take. But I think we should profit by the mistakes made by which we have accumulated this surplus. It could alleviate the possibility of having to de- stroy the potatoes as well as other com- modities later. Mr. ANDERSON. May I suggest what is a more fruitful fleld of endeavor? There was passed by the House of a few days ago a bill to correct inequities in Public Law 272, the so-called cotton- acreage limitation legislation. That bill is now pending before the Agricul- tural Committee of the Senate and may come shortly to the floor of the Senate of the United States. If it comes to the floor of the Senate in the same shape it left the House of Representatives it will 1429 contain a provision which alone will add 1,400,000 acres, and a second provision which I regard as a wide-open invita- tion to increase other limitations on cot- ton acreage by permitting the commit- tees in various States to review the cases and open up the situation as to individ- ual farms. In my opinion the passage of the bill in that form could easily give us 2,500,000 acres of additional cotton in a year when we will produce at least one and a half million and probably two million bales more than we cen possibly use. Those additional two or two and a half million acres could give us an- other one and a half million bales of cotton. We do not need those extra million bales of cotton. If we hold that legislation down to reasonable limits which will correct inequities and not go as far as I think the House has gone— and I think it has gone too far—then I think we shall perform a very useful service. The statement was made on the floor of the House that not only was this meas- ure designed to correct inequities so far as cotton and peanuts were concerned, but that when the wheat and corn grow- ers came in they would be taken care of too. The whole basis upon which the pressure was on for high levels of price supports this year was that we were reducing acreages on every crop, and that therefore we had to give the producers high income for one more year in order to permit a gradual re- adjustment. But if we proceed to give away all that we gain by acreage limita- tion and have high prices too, then those high prices serve as incentives to pro- duction, and we get far more of the crop than we can possibly take care of. While I would be very much inter- ested in going along with the distin- guished Senator at some time, perhaps, in trying to speed up the time when the flexible price supports might become ef- fective, I hope he will join in the drive to see to it that we do not lose what lit- tle ground we have gained by attempting to put limitations on some of these crops. Exuwit A POTATOES ! > . . >p t h f Yield per acre (bushels) Produc Hon iuannds of Yield per acto (bushels) Produc ‘fusiesan a) Gronp and State ~~ ~| p him ~ Pred ~ Group and State | br lm. Peale relim Prelims elim- rolime Averate Average Average 3 . | Average 1948 ina, ¥ 1918 inary, _ 1048 inary, _ 1048 inary 1938-47 1919 19db 47 1919 1038-47 149 1ud8~47 1949 s nt tato States: Surplus late potato States-Con Sun he . pe wee we ee wees 202 380 435, 2, 758 78, 340 65, 685, Oregon oo. 227 2k0) 265 9, 669 11,490 11, 395 Now York, U. I__.------ 251 329 220 15, 108 18, 8KO 11,440 California! 2 ole. 312 360 305 1, 418 14, 400 14, 220 io Fork, Upstate..... 123 225 220 15, 400 19, 125 16, 500 Ja ee aan Denneylvanin petate eenne 128 185 1380 10, 275 19, 425 18, 540 10 Western States... 208 7 271 6 244 6 07,388 | 120, 210 101, 2338 ——-———- | —-—-—.| — —-~—|— - —— scorer |e - 8 Eastern States......- 108 1 205 9 204 4 | 102,501 | 130, 770 112,165 Total, 18 States. ....2. 160 8 234 6 . veseecnensecees “Top | 160 | 1a | 10,054 | 16,350 | 16,983 |] Other late potato States: Michigan ---- - 88 125 150 13, 202 10, 875 12, 600 New ITampshie_. 160 215 210 1,120 068 R61 Minnesota... 8 15 150 18, 648 16, 740 14, 250 Vermont... ...--..- - 136 185 185 1, Alo 1, 205 1, 184 North Dakota. W7 165 160 17, 787 | 20, 205 17, 440 Manat - ae 28 Fd 2 wi i Ms * m K 8 25 5 2,390 2, 500 952 thodo Islund. .. - 25 ' , 46% 2 South Dakotw .- id a | Connecticnt..... | 102 225 225 B88 | 4852 3172 -) 149 6 71.172 | 66, 760 G2, 225 West Virginia... 1 vi 106 8, O62 2, OO 2,100 5 Central Statos......- 4 M40 ‘ somes a ao = Onlo_... ¥ M3 165 165 8, 600 6, 765 6, 270 155 10, 32u 1), 305 8, 060 Indiana. 121 180, 170 4, 756 4,140 3, 670 130 1, 884 2, 400 1,820 Tilinois - 87 103 10 2, 458 1,133 800 Bs 85,048 | 42, 600 32, 900 Towa_....-- wee 98 110 100 4, 062 1, 430 1,100 170 2, O87 2, 400 1,870 Now Mexico..-.......-- 18 90 82 200 270 AG 285 5,606 | 20, 670 17, 755 a | | ma | | | 180 2,579 2, 944 2,610 Total 11 other late 185 515 300 27 Btates....-.--.2.2.-- 1205] 1626] 160.2] 33,326 | 20,453 | 23, 553 Washington........-.... 222 200 205 8,449 | 11, 600 10, 325 IE ens 1 Karly and late crops shown separatoly for California; combined for all other Btates,
1429 Yield per acre (bushels) Qioup and State Gther lite potato States—Con 2Y lute States... 2.2.22. Intermedtate potato States New Jersey. Delaware... Maryland... - Virgimia. ... - hentucKy-_.. Missouri. Kansas _. Anzonn.. Bintermediate States. _ CONGRESSIONAL RECORD—SENATE PoTATOEs—continued Production (thousands of bushels) Group and State Prelim- inary, 1949 Early potato States. North Carolfma._. 22-2. 216 1, 065 1, 509 Alabama. 8,408 | 11, 620 9, 68 Mississippi. 3,750 2, 542 2, 639 Arkansas. 2.02. 2.2...2- 3, 702 3, 128 2, 580 Louisiana... 2, 084 1,476 1, 084 Oklahoma 914 1,749 1, 268 Texns___. |e California bt. 32, 509 36,234 | 27,156 l2carly potato States.. 37 late and interme- diate States......22 2. New Jersey 133 Indiana... 104 Dhnois._ 87 Towa ._. 08 Missouri... ene naee 94 Kansas _— No Delaware. _ 120 Maryland... 152 Virginia. 113 North Carolina. 106 South Carolina... 222.2... 03 Georgi. 2.2. a7 d6 v2 380, 436 | 326, 332 Total, United States_- SWEKETPOTATOES 190 HT Tennessee. Alabama _. KS {| Louisiana 1,120 |] Okishoma. . 3,120 {| Texas _... ae 6,444 |] California .. 4,400 4, 930 7,100 United States.....2... 1 Karly and late crops shown separately for California, combined for all other States, Mr. WILLIAMS. Mr. President, will the Senator further yield? Mr. ANDERSON. I prefer to yield the floor, but I yield to the Senator. Mr. WILLIAMS, I merely wish to say to the Senator from New Mexico that when the bill to which he refers comes to the floor of the Senate, I shall be on the floor and join with him in opposition to that bill. Mr. ANDERSON. I hope the Senator does not join in opposition to all bills in this field. I think that particular bill goes too far. Mr. WILLIAMS. I shall join in oppo- sition to the bill to which you have re- ferred. I hope that when my bill to advance the effective date of the provi- sions of the Anderson Act is before the Senate, the Senator from New Mexico will join with me in supporting that measure Mrs. SMITH of Maine. Mr. Presi- dent, I should hke to make an observa- tion in connection with the suggestion of the junior Senator from New Mexico with respect to potatoes. It seems to me that he has ar excellent suggestion to the effect that charitable institutions, hospitals, and other institutions operated in the interest of the needy should take advantage of the surplus free potatoes for the people in need, by taking such free potatoes and either providing the necessary transportation for delivery to such institutions or paying the cost of such transportation when they would be getting the potatoes free rather than let them go to waste when food is so neces- sary. At this time IY should like to commend the distinguished junior Senator from New Mexico for the nonpartisan position he has always taken on farm matters. I have always found him extremely fair. CODIFICATION OF THE ARTICLES OF WAR The Senate resumed the consideration of the bill (H. R. 4080) to umify, con- solidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard, and to enact and estab- lish a Uniform Code of Military Justice. Mr. MORSE. Mr. President, the sub- ject upon which I wish to address the Senate today is to me a painful one. It is painful because I had always thought that there was one point upon which the thinking people of this country were in accord, and that is the proposition that every man or woman charged with a crime or offense in this country is en- titled to a fair trial by a free and im- partial court. I now find that that is not true. We have pending before us H. R. 4080, “An act to establish a Uniform Code of Mili- tary Justice for the Armed Services of the United States.” This bill is the re- sult of the able labors of a committee appointed by the late Secretary of De- fense James E. Forrestal. The chairman of this committee was Prof. Edmund M. Morgan, of the Harvard University Law School. The executive secretary was Felix Larkin, of the Office of the Secre- tary of Defense, and the three other members were representatives respec- tively of the Departments of the Army, the Navy, and the Air Force. H.R. 4080, as reported by the Senate Committee on the Armed Services, substantially reflects the work of the Forrestal committee, although it has been altered in several important respects, which it is my pur- pose to refer to at this time. Mr. President, the junior Senator from Oregon is a member of the Committee on Armed Services and was a member of the subcommittee which conducted hear- FEBRUARY 3 Production (thousands of Yield per acre (bushels) busbels) g ~ rrepessrcs rd —_ SESESESEE 97 440 | 17,430 86, 422 | 203 8 | 303, 403 1,164 ¢80 &3 1, 204 960 913 107 3, B05 2,000 2,247 80) 5,709) 4, 5005 4,160 94 6, 499 4, 300 3, 948 5 1, 786 1, 396 1, 235 97 8, 616 7, 315 7,178 76 649 40H 450 100 5, 2% 8, 250 5, 500 106 1, 204 1,100 155 09 9 | 63,626 | 49,806 52, 284 ings on the pending legislation. As a member of that subcommittee and as a member of the Armed Services Commit- tee, he dissents from the recommenda- tions which are made in the form of the pending bill. It is a matter of regret to the junior Senator from Oregon that this bill was not committed to the Judiciary Commit- tee for at least the advice and considera- tion which that committee could give to the Armed Services Committee with re- spect to what I consider to be very serious defects in the pending legislation. I wish to say, however, that I have had the finest relations with my colleagues on both the subcommittee and the Armed Services Committee. Our differences in regard to this legislation are entirely professional differences, and not personal in any way. I wish to extend to the very able chairman of the subcommittee, the Senator from Tennessee |Mr. KEFAUVER], my sincere compliments for the fairness he showed throughout our discussions, both in the subcommittee and in the Committee on Armed Services in regard to this particular measure. I find to my regret that H. R. 4080 represents a compromise between justice, as I have always thought we understood it in this country, and a so-called military idea of justice advanced by many hon- orable and well-intentioned officers of our armed services who, however, feel that justice for the civilian is one thing but justice for a member of this coun- try’s armed services is something differ- ent. I find myself unable to agree with this rather startling thesis. The advocates of the military point. of view start with the fundamental idea that the function of the armed serv- ices is to win wars. With that premise I heartily concur. They proceed with
1950 the unassailable statement that in order for an army to win a war it must have discipline. They further assert that the system of military justice being one of the essential aids of command in enforc- ing discipline, control of this system must be vested in the commanding officers who lead the forces. They further assert that the power to appoint the mihtary courts, the prosecuting officer and even the defense counsel must be within the powers and duties of these commanding officers. It is at this point that I feel we must part company. Throughout this debate, Mr. Presi- dent, my difference with my colleagues on the Armed Services Committee is over that very premise or assumption. In order to do justice in the armed forces to those charged with offenses and brought before courts martial we must put a stop tocommand control. That is the heart and the essence of my argu- ment this afternoon on this part of the bill, namely, that I do not think we can have justice in courts martial, as experl- ence has already demonstrated, so long as we permit the commanding officer to exercise the control over courts martial which he now exercises and which this bill permits him to continue to exercise. Mr. KEFAUVER. Mr. President, will the Senator yield? Mr. MORSE. I should like to say to my good friend from Tennessee that I cannot yield to him at this time because I had made an appointment with the Secretary of State for 3:30 on a very im- portant matter, and he has kindly post- poned the appointment until later this afternoon. I should like to say that the Senator from Tennessee is well aware of my views on this subject, and I am sure that the Senator can perform a great courtesy to me if, after the conclusion of my remarks, he will take sufficient time on the floor to discuss the points I raise, and give me time to keep my appoint- ment with the Secretary of State and return to the Senate. So I shall continue uninterrupted, Mr. President, because I should hke to get my remarks into the ReEcorD in con- tinuity for future reference, because I am satisfied that no matter what the out- come of the vote is this afternoon—and I am inclined to think that once more the Junior Senator from Oregon will find himself on the losing side of the issue— the vote this afternoon will not settle this issue. We shall come back to it in the future. The particular provisions of the bill which I am going to criticize this afternoon will not work justice within the Military Establishment, and, there- fore, veterans’ organizations and law- yers’ organizations interested in the amendments which I am offering this afternoon, will continue to carry on the fight to break the command control of commanders in respect to military jus- tice until the fight is won. Until we break the control of commanders we jeopardize the doing of justice within the court-martial system of our Military Establishment. Mr. President, I do not want anyone to have any doubt as to where I stand on that issue. So far as my amendment is CONGRESSIONAL RECORD—SENATE concerned, I propose to strip the com- manding officers—as they should have been stripped years ago—of the control they now have over the court-martial system. Mr. President, as a background, let me sketch in a little ancient as well as mod- ern history. Some of us may remember that following the close of World War I,a public outcry developed against the sys- tem of military justice then in effect in the Army of the United States. Cases of tyrannical oppression, arrogant mis- carriages of justice, disregard of the rights of the individual, and a wholly in- adequate system of review came to light. Significantly, one of the chief critics of the Army court-martial system was Maj. Gen, S. T. Ansell, who had for a period been the Acting Judge Advocate General of the Army. Opposed to him, as a de- fender of the existing system, was the then Judge Advocate General, Maj. Gen. E. H. Crowder. Senator Chamberlain appeared on the floor of this body as the advocate of a court-martial reform measure known as the Chamberlain bill, which sought to provide adequate repre- sentation for the accused, to insure im- partiality of the courts martial by re- moving them from the influence of the line commanding officers, which provided for the services of enlisted men on courts martial, and which further set up an adequate system of review. Then, as now, the opponents of the bill resorted to the military maxim that “discipline is a function of command,” in order to jus- tify the retention of control over the courts by the line commanding officers. I :egret to say that the efforts of these gentlemen were successful, and the Chamberlain bill was killed. Neverthe- less, the force of public opinion was such that in June 1920, a new statute for the government of the Armies of the United States was enacted. That statute has governed the trial of Army personnel from 1920 until passage of the Elston Act in 1948. It did not affect the Navy, and the Articles for the Government of the Navy today exist in substantially the same form as they have existed since Civil War times. Under the 1920 Articles of War, the basic set-up of the Army courts remained unchanged. As in World War I, and to this very moment, every officer and en- listed man, every nurse and member of the Women’s Army Corps, who is charged with an offense is tried by a court ap- pointed by a commanding officer from the personnel of his command—the same commanding officer who has directed the trial of the accused, and in many cases the same commanding officer who has instructed his junior officer to prefer the charges against the accused. In other words, the officer who appoints the court is in a real sense of the word the prosecu- tor. This same commanding officer also is charged with the duty of appointing counsel for the accused, limited only by the requirement of article 27 (b) that the defense counsel must at least be a person who is a member of the bar of a Federal] court or of the highest bar of a State, and be certified as competent to perform such duties by the Judge Ad- vocate General, 1431 It must be remembered that the mem- bers of the court, being under the com- mand of the appointing officer, are de- pendent upon him for their promotions, their efficiency ratings, their assignments of duty, and their leaves of absence. We must remember also that it is amaz- ingly easy for a commanding officer, without ever putting his wishes into the form of a direct command to the mem- bers of the court, to make clear to them that he desires the conviction of the ac- cused and thewmposition of a severe sen- tence. Such a suggestion may be made as well from a sinccre belief that an ex- ample must be made of the accused in order to prevent others from following his example as from any personal pique or ill will. In fact, it is well-intentioned but misdirected zeal which has most fre- quently led to the exertion of pressure by the commanding officer upon the mcm- bers of the court appointed by him. Would any Member of the Senate care to place the responsibility of determining the guilt or innocence of his son or his daughter in the hands of such a court, the members of which are entirely de- pendent for their careers und their hap- piness upon the good will of the officcr who has indicated to them that they must convict the accused who is on trial before them? This is no mere theoretical danger. The influencing of the courts by the ap- pointing officer has been an abuse which has persisted through World War I and through World War II. I quote from the CONGRESSIONAL REcoRD for September 15, 1919, which reports the following colloquy between Senator Norris and Senator Chamberlain: Mr Noragis. One of the evils, as I under- stand it, is that all the men, not only the members of the court but the prosecuting officer, as well as the attorney for the defense, are selected by the man who makes the charge in reality, and from whom every one of these officials, if they get a promotion, must secure it Is that right? Mr. CHAMBERLAIN, Absolutely. Mr Norris Of course, that surrounds tho young man with an air of injustice to begin with Mr CHAMBERLAIN There is no question about that The commanding officer ap- points the court, he appoints the prosecutor, he appoints the counsel for the dofendant, * * © he approves or disapproves the sentence when it is rendered. So much for the problem in 1919. As to World War II, let me refer the Senate to the work and the conclusion of the War Department Advisory Com- mittee on Military Justice, appointed by the then Secretary of War, Robert P. Patterson, on March 25, 1946, the chair- man of which is the present chief justice of the Court of Errors and Appeals of New Jersey, Arthur T. Vanderbilt. This group held full committee hearings in Washington, and regional public hear- ings in New York, Philadelphia, Balti- more, Raleigh, Atlanta, Chicago, St. Louis, Denver, San Francisco, and Seat- tle. The testimony adduced from the witnesses filled more than 2,500 pages of transcript. The witnesses included the Secretary of War, the Under Secretary of War, the Chief of Staff of the Army, the commander of the Army Ground Forces, the Judge Advocate General, the
1432 Assistant Judge Advocate General, gen- eral officers, aS well as those of lower grade, and civilian witnesses who had served as officers or enlisted men during World War II. The War Department Advisory Com- mittee, as its conclusion drawn from the evidence before it, found that— Although the innocent were not punished, there was such disparity and severity in the impact of the system on the guilty as to biing many military courts into disrepute both among the law-breaking element and the law-abiding element, and a serious im- pairment in the morale of the troops ensued where such a situation existed. The committee said: The committee is convinced that in many instances the commanding officer who se- lected the members of the courts made a deliberate attempt to influence their deci- sions. Mr. President, that was in World War II; that is the record the committee found in regard to the action of com- manding officers in World War II, in many instances. I say it is a serious in- dictment of military justice, and I say also that it is the clear duty of the Sen- ate to see to it that there cannot be a repetition of the type of undue influ- ence which was exercised over military courts by commanding officers in World War II. The committee further said: It is not suggested that all commanders adopted this practice but its prevalence was not denied and, indeed, in some instances was freely admitted. * * °*. Not infre- quently the members of the court were given to understand that in case of a conviction they should tmpose the maximum sentence provided in the statute so that the general, ‘who had no power to increase the sentence, might fix it to suit his own ideas. In view of this finding by the War De- partment committee, it cannot be argued seriously that command control of the courts is a mere phantom conjured up by the civilian mind. Mr. President, I wish to say that the primary recommendation of the War Department's Advisory Committee was, therefore, the elimination of command control of the courts; and this recom- mendation has been the keystone of the court-martial reforms advocated in well-considered studies and reports pre- sented by the American Legion, the American Bar Association, the Associa- tion of the Bar of the City of New York, New York County Lawyer's Association, the War Veteran’s Bar Association, and other bar and veterans’ groups. To the best of my knowledge, every member of the committees on military justice of the groups mentioned had not only mili- tary or naval experience but experience in the actual workings of the court- martial system in the fleld. Most of these associations stated bluntly that court-martial reform without the re- moval of command control would miss the major cause of the injustices perpe- trated during the past two World Wars. Mr. President, because of their find- ings and because the record they made satisfied the junior Senator from Ore- gon that they were right in their rec- ommendations and conclusions, I have CONGRESSIONAL RECORD—SENATE found it impossible to join in support of the pending measure. One would think that in view of these statements, the primary reform incor- porated in any legislation seeking to amend the system of military justice would be the elimination of command control by placing the power to appoint the courts in some hand other than that of the officer who is the real prosecutor and who has it within his power so suc- cessfully to dominate the court which he appoints. But the Elston bill, which was passed by both Houses of the Congress in 1948, and which included many needed reforms, among them the estab- lishment of an independent Judge Advo- cate General's Corps for the Army, re- sponsible for the performance of its du- ties only through its own chain of com- mand, failed to effect the divorcement of command and the Army courts. And now we have H. R. 4080 which, though it forbids any attempt to influence or co- erce the courts, still leaves a system by which the courts are appointed precisely as that system has existed since prior to World War I. I have yet to hear a single individual suggest that the accused before a mili- tary court was not entitled to an im- partial trial. Yet, many respected offi- cers of high rank, and even some indi- viduals not in the armed services, have opposed depriving command of its power to appoint the courts. I find it impos- sible to understand the logic in this posi- tion. If the courts are to be impartial, then why should command insist upon its power to appoint them? If, on the other hand, command believes that it must dictate the findings and sentences of the courts in order to preserve disci- pline, then why not abandon the sham, abolish the court-martial system, and make each individual in the armed serv- ices subject to such punishment as his commanding officer sees fit to impose? Only in one of these alternatives may logic be found. What, then, are the arguments of those who demand the preservation of command’s right to appoint the courts? The first argument has been that the elimination of command's power to ap- point the courts would subvert discipline and interfere with the armed services’ primary duty of winning wars. If this is true, it must be because granting a fair trial to an accused person will derogate from discipline. The best answer I can give is the statement of one general who testified before the War Department Advisory Committee on Military Justice that— Discipline Is maintained by many means, outstanding of which is the proper adminis- tration of justice. There is no such thing as a choice between maintenance of discipline and proper administration of Justice by the courts-martial system. Justice is adminis- tered through courts martial in the interest of maintaining proper disciplinary standards. Those of the Members of the Senate who have served, not in the exalted ranks of the generals and admirals, but in the lower echelons of the military, naval, and air forces, know that noth- ing will arouse the resentment of the FEBRUARY 3 men and women in the services as quickly and in such degree as the feeling that one of their number its receiving a raw deal from a court martial, and they will also know, as the rest of us must realize from our human experience, that a resentful individual is an inefficient individual and one who is far less ame- nable to discipline than those who have faith in their superiors. A second argument has beeri made that the problems of military justice are peculiar to the armed services and that civilian methods and standards of ad- ministering justice are not appropriate. The fact is that with the exception of such offenses as absence without leave, desertion, and insubordination, the great majority of cases brought before courts martial are for precisely the same of- fenses as civilian courts include within their jurisdiction—-such offenses as drunkenness, disorderly conduct, larceny, fraud, rape, murder, and the like. And as to the so-called military offenses, what is there about them which makes inap- plicable the principle that every accused person is entitled to a fair trial? Bear in mind, that I would reserve to com- mand the right to order to trial any person whom his commanding officer be- lieves guilty of an offense. Al] that I ask—all that the bar and veterans’ groups request—is that when the man is placed on trial, he shall be tried by a free and impartial court, not under the influence or coercion of the command- ing officer, either directly or indirectly. If this is not the right of every Amer- ican citizen, it is time that the Senate make it the right of every American citizen. A further argument is made that it would be impracticable to place the ap- pointing power elsewhere than in the commanding officers. This objection has been met and disproved in testimony given at the hearings on this bill and on the Elston Act. I have proposed amend- ments to H. R. 4080 which represent a practicable, workable method of elimi- nating command control without impair- ing the functions of command, which I will offer at the proper time. These amendments will leave to command the power to appoint the prosecuting officer and to order the trial of any person sub- ject to court-martial jurisdiction whom command believes should be tried. In other words, the purpose of these amend- ments is not to dictate to command which persons shall be tried, but only to assure the accused of a fair trial. The fact is that we are faced with a stubborn although well-intentioned re- fusal of some of the military men to ad- mit that during World War II we had a break-down in the system of military justice and that the administration of military justice should be placed in the hands of that branch of the armed serv- ices best qualified to administer it; that is, the Judge Advocate General’s Depart- ment. Each branch of the armed serv- ices is jealous of its prerogatives—and one has but to sit on the Armed Services Committee in order to realize that, fre- quently—that condition is founded in part upon the traditions of the particu-
1950 lar branch and the very human unwill- ingness of its spokesmen to admit its past failures. But we cannot afford to let this type of opposition, understandable though it may be, defeat such changes as may be necessary to secure justice—as we Americans have always known jus- tice—for those of our fellow citizens who are serving in the armcd forces. The arguments now presented by those opposed to the divorcement of the mili- tary courts from command control have been advanced by their predecessors for some 30 years in justification for the present system, with the result that the same injustices which were perpetrated in World War I were repeated in World War II. It is the duty of the Senate to effect a change. Mr. President, in this, as in all other debates, I try to be exceedingly fair in seeing that the record includes whatever information I have in my file on the opposite point of view from the one which I have taken. I want to say at this point that I have the highest regard for the great professor at the Harvard Law School, Eddie Morgan. It was never my pleasure or privilege to be one of his students, but I have sat at his feet at a distance, 1n that, as a teacher of law for a great many years, I have, may 1 say, eaten and tried to digest the scholur- ly writings of Eddie Morgan, particu- larly in the ficld of evidence I have taught from many of his writings. In my judgment, in spite of his scholarship and his great ability, in this particular in- stance, the great Harvard professor, Mr Morgan, is dead wiong in the position he has taken in regard to the command- control issue. But in fairness to him, T want to insert in the Recorp at this point a letter which I received from him under date of June 24, 1919, in which he sets forth his point of view 1n regard to com- mand convrol. I ask also that my reply to the Icvler may be mserted at this point ‘here being no objection, the letters were ordered to be printed in the Rrconp, as follows: UNIVERSITY OF CorLoRAnoO, Boulder, Colo, June 24, 1949. Drar WAYNE The newspapers tell mc that you objected to the passage of the uniform code by unanimous consent. And it has been suggested to me that you are going to urge the Spicgclberg-Farmer-Wells panel proposal as an amendment This makcs me doubly sory that you were unuble to be present at the mectings of the subcommittee of which you were a member, I think I was able to convince the other members, as well as the membcrs of the House subcommittee of two things: 1 The plan ts impracticable Take the example which the three proponents used. An army of 51x divisions has an army head- quarters with a staff judge advocate attached to the staff of the Army communding Officer. The commanding cfficcr of each of the 51x divisions is to furnish the Army stuff judge advocate with a list of officers and enlisted men assignable for general courts martial. Since each court must have five members, and two of these may or may not be en- listed men, and since the division command- ing officer is not to choose the court in any case, he must furnish a list of at least 10 officers and 4 enlisted men. Must he set CONGRESSIONAL RECORD—SENATE these persons aside so that they can be called at any time? If so, he cannot as- sign them to any other duties which cannot be dropped instantly by them. Is he going to select men of any ability for such a detail? How would you like to be a com- manding officer of a division and have your officers subject to call by a staff judge advocate at Army headquarters? And how could this plan work in time of war? 2. The plan will not eliminate command control All three of the spcnsors concede that in at least 90 percent of the cases the court for a division will consist of officers and men from that division. All the com- plaints of “skin letters” and other inter- ference by command have been by mem- bers of a court for their conduct on the court, and not at all in the proceedings for their selection. So long as the commanding officer wants to make it uncomfortable for one of his officers or men on account of con- duct as a meinber of a court in his division, it won't matter a whit who selected thut member Where the Army staff Judge ad- vocate selects officers or men fiom division 6, for service on a court in division 1, aro you so naive as to believe that the command- ing officer of division 1, who is assumed to be hell-hent on convicting the accused, will not communicate with the commanding officer of division 6? And what do you think of the ides of having the Army staff Judge advocete piven authority to tell the commanding offl- cer of 6 that he must detail officers and men for se.vice in 1? And particularly since this is to prevent the commanding officer a 1 from petting convictions? It seems to me the whole idea is fantastic as » means of eliminating command control or even lepssen- ing it The Unitorm Code has, I submit, much more etiective provisions. First, the CO must slways consult his staff JA as to the sufiiciency of the charges and of the avail- able evidence before a trial ts ordered Sec- ond, when a conviction is reviewed, the stalf JA must submit un opinion as to its velidity, which becomes a part of the record. Third, if the sentence is us severe us a year's confinement, the record must be 1eviewed by a board of review in the JAG office, the members of wiich ure lawyers They are fur removed from all semblance of control of the CO of the divisisn or army in which the court sat = =They review lnw, facts, and sentence, and can make new findings—but they cannot increase the sentence or muke findings more detrimental to the accused than those made by the court. Finally there is review on the law by the Court of Militury Appeals All this is in addition to the protection given the accused by requiring that the counsel at the trial be lawyers, that the court have a lawyer as a luw officer who acts like a civilian judge, with the court members act- ing like a civilian jury. And the accused ulso is entitled to be represented by a de- fense appellate counsel before the Board of Review and before the Court of Military Appeals. I submit that, if these in addition to the provisions which expressly forbid command interference and make it a punishable of- fense do not furnish adequate protection, certainly the device of the panel won’t do so. I regret that I cannot see you personally; I trust that you will give personal attention to this letter, and not be satisfied with a word from your secretary as to its content. With regards and best wishes, I am, Sincerely yours, Eppv1ez, . Edmund M. Morgan, Professor of Law, 1433 Juny 5, 1949. Prof. Epmunp M. MorGan, School of Law, University of Colorado, Boulder, Colo. Dear Eppie: Thanks a lot for your letter of June 24 Although I wasn’t able to attend very many mectings of the subcommittee of the Senate Armed Services Committee, I did read every word of the hearings that were typed, and I am sure I've given the matter as conscientious study as those members of the committee who did attend the meetings. I objected to the passage of the Uniform Code by unanimous consent for two reasons: First, because I have not completed to my own satisfaction my study and analysis of the issue; and, second, because I am satis- fied that legislation as important as this should not be passed in the Senate of the United States by unanimous consent. You may be sure, Eddic, that I not only will give your letter and all letters that come to my office on this subject my personal at- tention but I am going to give this entire issue the most careful study of which I am capable Youn work and views on it are cer- tain to have tremendous influence with me because of my docp admiration for your scholarship and your deep intellectual hon- esty However, I am not going to vote for the proposal until I am thoroughly con- vinced on it, and I hope to find the time to complete my analysis of it within the next week or 10 days. As you well know, for weeks past I have been deeply involved in an intensive study and debate on various labor issues, und now we are taking up the North Atlantic Pact matter Still 1 am reasonably certain to be able to devote my time to the military Justice matter before many more days With kindest personal regards. Sincerely yours, Wayne Morse. Mr MORSE Mr. President, after rece.ving Piotessor Morgan’s lettcr, I discussed 1ts contents with representa- tives of certain of the bar groups who had appeared before our committee in oppo- sition to Professor Morgan’s particular recommendation in respcet to the com- mand control issue. One of the bar rep- resentatives was Mr. Arthur E Farmer, of the firm of Stern & Rcubens, of New York City I ask unanimous consent to have inserted at this point in my remarks Mr, Farmer’s lettcr to me under date of July 25, 1949, in which he covers point by point the matters raised in the Mor- gan Ictter to which I previously referred. There being no objection, the letter was ordered to be printed in the ReEcorp, as follows: New Yoru,N Y., July 25, 1949 Hon WAYNE Morse, United States Senate, Senate Office Burlding, Washington, D C. Drar SENATOR Morse This Ietter may aid you in combating the erguments as to the Impracticability of the amendments to H. R. 4030 which Mr Spiegelberg and I drew in order to eliminate command control of courts martial. Under date March 4, 1949, Prefessor Morgan wrote to Mr. Spiegelberg as follows, with per- mission to quote him. “As to the plan which you propose for eliminating command control, I agree that 1f each division commander is required to furnish a list of officers for court-martial duty to the Army commander, and if there is a statutory provision that the local Judge ad- vocate gencral will select the court for any division fron offcers of other divisions, you
1434 will secure much more freedom from com- mand control of the trial court; otherwise, ‘IT am still from Missour!’ And I have some doubts whether such a plan would be work- able, whether officers on the list wouldn't be- come unavailable, etc.” Morgan's letter to you, which I return with this letter, shows clearly that between March 4 and June 24, he was sold a bill of goods by those who advocated retention of com- mand control, which, of course, was only possible because he is not familiar with the practical workings of either military justice or the Army line of command. Let me take each of his objections in the same order as he states them. 1 “The plan is tmpracticable.” Morran assumes that each division com- manding officer must furnish a list of at least 10 oMicers and 4 enlisted men to serve on courts martial. From this assumption he concludes that he must set these persons aside so that they can be called at any time; that he must therefore lose the services of this personnel for other purposes; that the consequence will be that he will select men ot no ability, and that it is unthinkable that the commauding officer of the division could have his officers subjcct to call by a staff judge advocate at Army hendquarters The tact of the matter is that under the present system a general court martial usu- ally consists of nine officers, selected by the division commanding general. These cffi- cers perform thetr usual duties and are sub- ject to call for service on courts only when there are cases ready for trinl. Even in war- time, these courts generally sat not more frequently than once every 10 davs to 2 weeks, and if othe: duties required their at- tention during the day, the court convened at night The officers would be no less available under our plan than under the present system. The only d:fference would be that the cases assigned to the courts would be assigned to them by the staff judge advocate at Army level instead of by the division commanding general Again in practice, it was generally not the commanding gencral who determined when the court would sit, but the staff Judge udvocate If anv of the officers was needed for other important dutics, he was excused from service at that particular session of the court The arrangements would be no dif- ferent under the system which we pronpote. Furthermore, the amendments forwarded to you by Mr. Splegelberg add to article 25 of H R. 4080 a new subdivision (e), the last sentence of which reads as follows: “Such commanding officers may withdraw names from such lists and may substitute others therefor” In other words, not only by implication, but specificallv, the power to withdraw offi- cers and to substitute others is reserved to the division commanding general, so that the argument that he will lose the services of the selected personnel, is nonsense. 2 “The plan will not climinate command control.” Morgan argues that inasmuch as we state that at least 90 percent of the cases will be tried by the court of the division of which the accused is a member, command control will not be eliminated. He then accuses us of being naive in assuming that the com- manding officer of division 1 will not com- municate with the commanding officer of division 2, if division 1’s personnel is tried by a court from division 2, in order to secure a conviction. He scoffs at the idea that an Army staff judge advocate have authority to tell the commanding general of division 6 that he must detail officers and men for ecrvice in division 1. With due respect to Professor Morgan, this paragraph shows an extraordinary and lamentable failure to un- derstand the plan proposed. The reason why we say that in at least 90 percent of the cases tried by general courts CONGRESSIONAL RECORD—SENATE martial, the accused will be tried by the court consisting of officers from his own division, is that unless there Are indications that the commanding general of a division has been seeking to influence the decisions of his courts, the Army judge advocate, as a matter of convenience, will refer cases arising in diviston 1 to the panel of officers selected by the commanding general of divi- sion 1. We do not intend by the proposed amendment to require that an accused be tried by a court consisting of officers and men from a division other than the one of which he !s a membor. Our purposze is to check command control by interfering only where the commanding general shows that he is intent on influencing his courts. In saying this, I am not referring solely to a situation where there is cvidence sufli- cient to convict the commanding general of the offonse of attempting to coerce the court; I am referring more especially to the typical case in which the commending gen- eral lets it be known that he considers a conviction necessary—a matter which can- not escape the attention of the staff Judge advocate in the command. You know, as well as I do, that as a practical matter, this type of information runs through the staff— and considerably beyond—with the speed of light. If, as happened in a case in which I sat as law member, the commanding pfeneral, instead of verbally ordering the accused officer into arrest, placed him in arrest by published special order, the staff Judge ad- vocate at division level would pass the word Alou directly to the Army judge advecate (under the Elston Act he has a direct line of communication with superior authority in the Judge Advocate General’s Depart- ment), and the Army judge advocate would order the officer to trial before a court com- posed of cfiucers of a different division Furthermore, the Army judge advocate would not tell the commanding officer of division 6 that he must detail officers snd men for service in division 1, as Professor Morgan asserts. What he would do would be to order the case of the accused in divie sion 1 to trial before the division 6 court. It would be the accused and the witnesses who would go before the division 6 court; it would not be the division 6 court which would sit in the area of division 1. Why this should cause any perturbation on the part of the Army, I don't understand. As I testi- fied before the Senate subcommittee, during the latte: part of World War II all cases pending in the Sixth Service Command were tried before a general court sitting in Chicago, the witnesses and the accused being trans- ported to the court As an alternative method, in the North African theater travel- ing tcams consisting of a trial judge advo- cate, dciense counsel, and law member cov- ered large areas of the theater in the trying of general court-martial cases. Finally, I am afraid it ts not Colonel Splegelberg and ex-Lieutenant Farmer who are naive in believing that the commanding general of division 1 will not communicate with the commanding general of division 2 in order to get the latter to instruct his court to convict. No commanding general, under whom elther of us ever served, would have stuck his neck so far out as to ask another two-star gencral to ald him in violating an article of war (A. W. 87). I am sure that a commanding general would not hesitate, if he desired to secure a conviction in his own command, to drop a hint to his staff; I am equally sure that he would not care to communicate his wishes to the commanding general of another division. Professor Morgan puts much faith tn the fact that the appointing authority must al- ways consult his staff judge advocate as to the framing of the charges and the avail- able evidence before a trial is ordered. We do not share in this faith. Not only is the CG not bound by his staff judge advocate’s FEBRUARY 3 recommendations, but I know numerous tn- stances in which the CG asked his staff judge advocate to change his recommenda- tion, and, I am sorry to say, several in- stances in which the staff JA acceded to this request, And what good does it do an accused to have the staff JA’s recommendation a part of the record? What we are talking about here is the pressure which a commanding general may put upon members of a ccurt appointed by him. I fail to see the rele- vance of Professor Morgan’s comment re- specting the staff JA’s recommendation. Professor Morgan also argues that under the system of review provided by H. R. 4089, the possibility of injustices resulting from command control is virtually eliminated. This contention simply is not true. In many cases the court might legitimately find either way, and the Board of Review could not say that its finding was against the weight of the evidence. This is bccause the determination of issues of fact is largely dependent upon the view which the court takes of the credibility of the witnesses. And that is precisely why the system of review does not solve the problem of command in- fluence upon the courts. Where the evidence is conflicting and the court finds in accoid- ance with the wishes of the commanding general, neither the Board of Review nor the Court of Military Appeals can upset the con- viction. Theso ore the only arguments advanced by the opposition, in addition to those cov- ered in the material which I sent you a few days ago, of which I am cognizant. If oth- ers should be presented, I will be glad to analyze them for you. You see, Senator, the Morgan letter represents tho very situa- tion that I had in mind when I wrote you some weeks ago, asking whether it would be possible to bring the proponents and the opponents of the command-control amend- ments before your committee. Unless a per- son has had sufficient military service, plus complete familiarity with the processes of military justice, he 1s at a tremendous dis- advantage when faced by the Judge Advocate General or others equally experienced. Cordially yours, ArtHur E. Farmer, Mr. MORSE. Mr. President, I also wish to include at this point in my re- marks what I consider to be an cxcep- tionally able writing on this subject by Mr. Arthur John Keeffe and Mr. Morton Moskin, which appeared in the Cornell Law Quarterly for the fall of 1949, un- der the title “Codified Military Injus- tice.” Were I in court at this moment, Mr. President, I should ask to have this particular article marked for identifica- tion purposes, and I should offer it as one of my key exhibits in support of the premises I am defending and advancing here this afternoon. There being no objection, the article was ordered to be printed in the Recorp, as follows: Copirizp MItrrary INJUSTICE—AN ANALYSIS OF THE DEFECTS IN THE NEw UNIFORM CODE or MILITARY JUSTICE When the newly inducted GI bids farewell to his family and friends, little does he real- ize that he is also saying good-by, in large measure, to his rights as a citizen. It isa matter of regret that the Uniform Code of Military Justice,! already passed by the House of Representatives and approved by a Senate subcommittee of the Committee on Armed Bervices, makes no substantial change in this unhappy situation. 18 857 and H. R. 4080, 81st Cong., 1st sess. (1949).
1950 “If we are going to handle this court- martial business, I say,” said Senator WAYNE Morse, of Oregon, during the Senate hear- ings on the proposed Code,’ “let us do a thorough Job; let us not take our present system and Just make a little addition or two here. If we are going to do the job that I think this committee ought to do, I think we have just got to start at the beginning and go to the finish, and make changes wherever we can make a change that will bring the military system in direct line with civilian justice and, at the same time, not interfere with what we can all agree is necessary mill- tary organization in order to have an effec- tive fighting force.” But the Senator's enlightened stand failed to sway his fellow committee members. Such, it appears, has always been the case whenever radical revision of what is para- doxically termed “military justice’ has been suggested. The last real attempt at reform, the Chamberlain bill," an aroused public's an- swer to the flagrant miscarriages of justice permitted under the guise of discipline dur- ing World War I, was killed in committee. Its advocates, MaJ Gen. 8.T Ansell ‘and Senator George Chamberlain, like Senator Morsr, a dauntless legislator from Oregon, had sought to divorce military justice from command control, provide trained legal representatives for the accused, and insure adequate review procedures, It is time the services came to realize that courts martial are more than instruments tor the maintenance of discipline.6 They ure criminal courts, enforcing a penal code, and applying highly punttive sanctions. As such, considerations of law and justice become paramount The drafteis of the new reform legislation have overlooked this underlying postulate A scrutiny of the code’s provi- sions will make this clear HOW UNIFORM IS “UNIFORM”’? The legislation professes to be uniform, yet article 1 which merely defines the terms used throughout, reveals the perpetuation of three scparate and distinct Judge Advo- cate Generals Upon these officers, as now constituted, rests the responsibility for the legal sufficiency of every case, because it is in their offices that the records of trial are reviewed To achieve true uniformity of policy, and to bring about a more efficient and a more economical administration it is imperative thut the three Judge Advocate General offices be merged into one depart- ment. Three individuals in three separate departments doing the work of one is ridicu- lous Furthermore, only by merging the three departments into one can we hope to have Army, Navy, and Air Force sentences ap- proach a degree of uniformity. The for- tuitous induction into one branch of ser- vice rather than another during the last war determined whether one who perpe- trated a capital offense would live or dle. We should not again see capital punishment present in the Army but abolished in the Navy, or have absences from boot camp in the Army punished more severely than like absences in the Navy." 2Hearings before subcommittee of the Committee on Armed Services on S. 857, 81st Cong, Ist sess, 84 (1949). °8.64,H R. 367, 66th Cong , 1st sess. (1919). ¢ Ansell, Military Justice, 5 Corn. L. Q. 1 (1919). ’ This was the traditional view. 1 Win- throp, Military Law and Precedents 53-54 (1886). *The Army executed over 100 men in World War II. The Navy has not executed a man since 1842, the year in which Midship- man Philip Spencer and two others were hanged at sea for conspiring to mutiny. Midshipman Spencer was a nephew of the Secretary of War, John C. Spencer. He was CONGRESSIONAL RECORD—SENATE The arguments for combining the Judge Advocate Generals in one department are indisputable. Why then has not such action been taken? The best reasons Prof. Ed- mund Morgan, chairman of the committee which drafted the legislation, could offer the Senate subcommittee were: “Well, that, of course, is very nice theo- retically, after you once get the thing thor- oughly unified, but there again we felt that we had to Keep off that because of the dif- ferent organizations of the Judge Advocate General's office. “For example, if you had a single Judge Advocate General, what should he be, an Army man, an Air Force man, a Navy man, or acivillan? That is the first question. “Second, the functions of the Judge Ad- vocate General are so different in the dif- ferent services, if you had a single Judge Advocate General, how and what functions would you take away from him?”? CIVILIANS IN GUAM AND OTHER POSSESSIONS SUBJECTED TO COURTS MARTIAL Article 2 (11) deprives the civil popula- tions of Guam, American Samoa, and the trust territory of the Pacific of their basic civil rights by subjecting them to military justice. The article does this by implication in that it extends the code’s Jurisdiction to all persons under the supervision of the armed forces outside of certain designated areas At the present time the Navy De- partment has control over these 1slands,* none of which are within the teriitory spe- cifically excepted by the code. Significantly, in Duncan v. Kahanamoku ® the Supreme Court overruled the Govern- ment’s contention that Hawallan civilians were subject to the jurisdiction of military tribunals The Court, speaking through Mr Justice Black, said that the people of Ha- wali are entitled to constitutional protec- tion to the same extent as the inhabitants of the 48 States. Hawaii, it must be admitted, is an incorpo- rated Territory,’? while Guam, American Samoa, and the trust territory are not, nor should we lose sight of the fact that under article IV, section 3, clause 2, of the Con- stitution, Congress has ‘power to * * ¢ muk* all needful rules and regulations re- specuing the Territory * * * belonging to the United States" Two Supreme Court cases have held that under this provision such rights as trial by jury in criminal cases 't and indictment by a grand jury?” are statu- tory matters rather than constitutional rights when applied to Territorial posses- sions Nevertheless, there can be no com- & graduate of Hobart and when Andrew D, White, the first president and cofounder of Cornell University, entered Hobart, he tock his room S82e Keeffe, Universal Mili- tary Training With or Without Reform of Courts Martial? (33 Cornell L. Q 465, 469 (1948) ). ‘Hearings before subcommittee of the Committee on Armed Services on S. 857, Eighty-first Congress, first session, 319 (1949). *The Navy and Interlor Departments have agreed on a@ plan to replace Navy personnel on Guam with civilians by July 1, 1950. If Guam’s government is shifted to the Juris- diction of tke Department of the Interior, pursuant to an Executive order of the Presi- dent, civilians on Guam will not be subject to the code provision. However, the Sen- ate Appropriations Committee is threatening to block the change because of the added expense involved Sce Washington Evening Star, September 13, 1949, p. 12, col. 2. 9327 U. S. 304 (1946). 1” See Gettys, The Law of Citizenship in the United States 149 (1934). 1 Dowdell y. United States (211 U. 8. 825 (1911) ). 2 Ocampo v. United States (234 U. 8. 91 (1914) ). 1435 pelling policy reason for altering the stand- ard of justice applicable to these lesser islands if we bear in mind that the protec- tion afforded by the due process and equal protection clauses of the fourteenth amend- ment is not confined to citizens, but extends to all natural persons. In Yick Wo v.Hop- kins * the Court said: “The rights of the petitioners, as affected by the proceedings of which they complain, are not less, because they are aliens and sub- jects of the Emperor of China. * * * The fourteenth amendment to the Constitution {1s not confined to the protection of citi- zens. * * * These provisions are unl- versal in their application, to all persons within the Territorial jurisdiction, without regard to any differences of race, of color, or of nationality.” REVIVING JURISDICTION AFTER DISCHARGE Article 3 (c) provides that “any person who has deserted from the armed forces shall not be relieved from amenability to the jurisdic- tion of this code by virtue of a separation from any subsequent period of service.” In theory, this is meant to apply to deserters who luter reenlist in another branch of serv- ice or in the same branch under a different name, serve faithfully, and procure honorable discharges The provision was designed to circumvent two well-established rules of law. First, that & person is amenable to military jurisdiction only during the period of his service. Sec- ond, that an honorable discharge is a formal and final judgment passed by the Govern- ment on a man’s entire military record."® The danger in depriving a discharged serv- iceman of his rights to trial in a civilian court is pointed out by Mr. Justice Black's decision allowing habeas corpus in United States ex rel. Hirshberg v. Cookce.4% Chief Petty Officer Harold E. Hirshberg had been granted an honorable discharge in 1946. The very next day he reenlisted, and about a year later he was served with charges directing his trial by a general court martial for alleged Offenses committed during the prior enlist- ment Had the Navy been right in its con- tention that the subsequent reenlistment re- vived jurisdiction that had concededly been lost upon discharge, then “punishment of the gravest nature might be imposed on a naval volunteer or draftee which no court martial could have imposed but for such a voluntary or [in the case of subsequent draft] forced entry into the Navy. * * * Jurisdiction to punish rarely, if ever, rests upon such Illogical and fortuitous circum- stances.” True article 3 (c) applies Only to deserters, but in light of the fact that over 75 percent of all court-martial cases involve desertion or absence without leave” its far-reaching effect becomes evident The ease with which a mere unauthorized absence can be transformed into a charge of desertion for purposes of receiving juris- diction can be illustrated by the trial of John Jones, machinist’s mate, second class, United States Naval Reserve, a case in which the ac- 4118 U 8S. 357, 368 (1886). “United States ex rel. Hirshberg v. Cooke (69 Sup. Ct. 530 (1949)); United States ex rel. Viscardi v. MacDonald (265 Fed. 695 (E. D N. Y. 1920) ), Naval Courts and Boards, § 334, Pp. 92 (1937 ed, 1945 reprint); Winthrop, Mil- itary Law and Precedents 89 (2d ed, 1920 reprint) But cf. Untted States ex rel. Pasela v. Fenno (76 F. Supp. 203 (D. Conn. 1947) aff'd, 167 F 2d 583, United States ez rel. Hironimus v Durant (168 F. 2d 288 (4th Cir. 1948) ). 1 United States v. Kelly (15 Wall. 34 (U 8 1872) ). 69 Sup Ct. 530 (1949). 17 Report of the General Court Martial Sen- tence Review Board to the Secretary of the Navy, sec. XI (1), p. 329 (January 1947).
1436 cused’s avowed dislike for the Navy was dis- torted into an intent never to return.” This, despite the fact that his testimony indicates he had worn his uniform at all times during his absence and had purchased a return bus ticket 3 or 4 days before being apprehended. Civilians are entitled to trial in civil courte with all the constitutional safeguards, in- cluding jury trial, which the fifth and sixth amendments guarantee. The failure or in- ability of the services to act during that time when jurisdiction could have legiti- mately attached should not be allowed to change this. PRESERVATION OF DOUBLE JEOPARDY Under article 14, ‘a member of the armed forces accused of an offense against a civil authority may be delivered, upon request, to the civil authority for trial’ This is well and good, but the code, despite a loosely worded prohibition against double Jeopardy in article 44,” fails to protect an individual so tried in the courts of a State or foreign country from subsequent trial by court mar-~ tial for the same offense. Such subsequent trial does not legally constitute double jeopardy, inasmuch as the constitutional protection against double jeopardy * extends only to courts which derive their jurisdic- tlon from the same source, namely, the Fed- eral Government ** Thus, only if the act or omission with which the accused is charged 4s prohibited both by this code and the Criminal Code of the United States, and is committed in an area within the jurisdiction of the Federal courts, is trial by either the military or civil courts a ber to trial by the other.? The type of manifest injustice this code condones can be readily illustrated by a case which arose during the late war. The prisoner had been jailed for 125 days by & civil court for committing a battery. Upon 1%‘ General Court Martial Sentence Review Board of the Navy No. 167 (August 1946). This was the board of which Professor Keeffe was president from April 9, 1946, to June 12, 1947, and will hereafter be cited as “G C.M.S8 R.B.”. 1#“No person shall, without his consent, be tried a second time for the same Offense.” 2% U. §. Const. Amend. v. Turner's Case (16 Charles II (1676) ), first laid down this rule. In Feldman v. Untted States (822 U. 8. 487 (1944) ), in which the court concluded that the fifth amendment did not prohibit the admission against Feldman upon his trial in the Federal court of the earlier testimony given by him in the State courts under & State immunity statute, Justice Black’s ex- cellent dissent lays bare the fallacy of legal- ized double jeopardy. He writes: “Holding that the defendant can be so convicted cuts into the very substance of the fifth amend- ment. And it justifies this result not by the language or history of the Constitution it- self, but by a process of syllogistic reasoning based upon the broad premises of ‘dual sov- ereignty’ stated in previous decisions by the Court relating to immunity statutes.” (Bee note, 80 Cornell L. Q 255 (1944).) 31 Moore Vv. Illinos (14 How. 18 (U. 8. 1852) ); United States v. Marigold (9 How. 560, 569 (U. 8. 1850)); For v. Ohio (5 How. 410, 434) (U. 8. 1847)); (6 Ops. Atty. Gen. (606, 511 (1854) ). 2 Grafton v. United States (206 U. 8. 833 (1906)); Untted States v. Block (262 Fed. 205 (D. Ind. 1020)); Naval Courts and Boards (sec. 398) (1937 ed., 1945 reprint). Compare Untted States v. Bayer (156 F. 2a 064 (2d Cir. 1946)), reversed on other grounds (331 U. 8S. 532), rehearing dented (332 U. 8. 785); Ex parte Benton (68 F. Supp. 808 (N. D. Cal. 1945)), with United States v. Clark (81 Fed. 710, 715 (OC. C. E. D. Mich. 1887) ); United States y. Cashiel (25 Fed. Cas. No. 14744 (1868) ). *™G.C. M.S. BR. B. No. 136 (Aug. 1046). CONGRESSIONAL RECORD—SENATE his release he was placed tn military cus- tody and charged with and convicted of 125 days’ absence over leave and scandalous con- duct. The Judge Advocate General found the conviction legal. Double jeopardy in court-martial cases may take still another form, as evidenced by the case of Wade v. Hunter.* There, & court martial was dissolved by the conven- ing authority after both sides had presented their cases but before a decision was ren- dered, because the tactical situation had made the summoning of certain witnesses inexpedient. A conviction by a second court, subsequently convened, was upheld by the Supreme Court on the tenuous ground that this was not the type of oppressive practice at which the double-jeopardy prohi- bition is aimed Had Gen. Edwin C. McNeill, Assistant Judge Advocate General, not referred the original case back with an endorsement to the effect that tactical conditions made it impossible to proceed with the trial, Wade might well have won his double-jJeopardy argument. Even under the code (article 44c), when a proceeding is dismissed for failure of available evidence or witnesses without any fault of the accused, he cannot be tried a second time for the same offense. However, with General McNeill’s endorse- ment the familiar legal doctrine of imperi- ous necessity entered the case. If, for ex- ample, a courthouse burns down during the course of a trial, or a juror is disquali- fied, under this doctrine the trial judge is permitted to stop the proceedings and order a new trial. Gen. Franklin Riter, speaking on behalf of the American Legion, explains it thusly: “Well, General McNeill, in his endorse- ment, points out that this situation with regard to the rapidly advancing Seventy- sixth Division (to which Wade belonged) and the Third Army in military justice processes produced an emergent or imperious necessity, and, therefore, the action of the commanding general of the Seventy-sixth Division in withdrawing those charges was equivalent to the trial Judge ordering a new trial when the courthouse burned down, and burned all the records." * Riter pungently decried this distortion of “{mperious necessity" before the House com- mittee, saying: “The Wade case is a classical example of what will happen in allowing the convening authority to take two bites at the cherry. “It was obvious there because Wade was charged with another soldier and the other soldier was acquitted, and it was obvious what was going to happen in the Wade case. There was going to be an acquittal.” * Conceivably, difficulties in proof might lead a commanding officer to dissolve three or four such courts before a finding is ulti- mately reached. Such practice, under the guise of emergent necessity, would not be at variance with the Uniform Code. But, as Mr. Justice Murphy pointed out in his dis- senting opinion in the Wade case: “The harassment to the defendant from being repeatedly tried is not less because the Army is advancing. The guaranty of the Constitution against double jeopardy is not to be eroded away by a tide of plausible-ap- pearing exceptions. The command of the fifth amendment does not allow temporizing with the basic rights it declares. Adapta- tions of military justice to the exigencies of tactical situations is the prerogative of the commander in the field, but the price of such *€9 Sup. Ct. 834 (1949). * Hearings before subcommittee of the Committee on Armed Services on 8. 857, 81st Cong., 1st sess., 170 (1940). “Hearings before subcommittee of the Committee on Armed Services on H. R. 2498, 81st Cong., 1st sess., 671 (1949). FEBRUARY 8 expediency is compliance with the Consti- tution.” Applicability of the prohibitions against double jeopardy ought to be broadened as a matter of express statutory policy to cover situations such as these. Civil jurisdictions have tended in this direction.” It is time the military did likewise. NONJUDICIAL PUNISHMENT An analogous problem is raised by article 15. Should a commanding officer’s nonju- dicial punishment for minor offenses operate as @ bar to subsequent trial by court martial if a more serious crime grows out of the same act or omission? Subdivision (e) an- swers this question in the negative. Here the code is on firmer ground. While no exact parallel exists in civilian life, comparable sit- uations are handled in much the same way. Courts of law have long recognized that a defendant convicted of assault may, if death of the person assaulted supervenes, be prose- cuted for homicide. The new fact, death, creates a different offense from the one for which the accused was put in jeopardy on the first trial.4 While article 15 is not deficient in this par- ticular it is by no means free from defects. Subdivision (a) (2) (F) permits a com- manding officer to impose, as nonjudicial punishment, confinement on bread and water for 3 days. This is in conflict with the spirit of article 55 which prohibits a court martial from meting out cruel and unusual punish- ments. Listed in this category are flogging, marking, branding, and tattooing. No less cruel and unusual than any of these js star- vation or its near equivalent, a bread-and- water diet. No civil court can inflict such barbaric punishment on offenders. Why then should a commanding officer, who has not even afforded the accused a trial, be per- mitted to do 80? Top military observers regard the punish- ment as the only effective deterrent to un- wieldy men aboard ship. Even conceding the validity of this tenuous argument, there is no reason why punishment cannot be less savage or even, on occasion, deferred until the ship docks. Brutality is not a sine qua non to effective discipline. Subdivision (d) grants a person who deems his disciplinary punishment unjust the right of appeal to the next superior authority. In the meantime, however, he must undergo the punishment adjudged. How can a pun- ishment such as 8 days on bread and water ever be remitted? Who, for that matter, would dare make such an appeal from pun- ishment for a minor offense over the head of his commanding officer—an officer under whose charge he will remain and to whom he must look for favorable fitness reports, pro- motions, assignments, and furloughs? None put the intrepid or the insane. SPECIAL COURTS PERMITTED TO AWARD BAD- CONDUCT DISCHARGES A classification of courts martial is under- taken by article 16. General courts martial are at the top of the hierarchy. The sub- ordinate courts martial are designated “spe- cial” and “summary.” The summary court martial, consisting of one officer, is relatively unimportant, inasmuch as, for all practical purposes, the right to refuse trial by such a body is made ahsolute by article 20. The jurisdiction granted to special courts martial by article 19 1s considerably broader, such 31 See note, 16 A. L. R. 1243 (1922); 8R.C. L. 2200 (Perm. Supp. 1929). % Diaz v. United States (223 U. 8. 442 (1012) ); State v. Wheeler (178 La. 753, 138 So. 656 (1931)); Commonwealth v. Rammuno (219 Pa. 204, 68 Atl. 184 (1907)); State v. Littlefield (70 Me. 452, 35 Am. Dec. 335 (1880) ); Curtis v. State (22 Tex. App. 227, 3 8. W. 86 (1886)); Johnson v. State (19 Tex. App. 458, 53 Am. Dec. 885 (1885) ).
1950 bodies being privileged to award bad-conduct @iccharges. The consequences flowing from a@ bad-conduct discharge are not substan- tially different from those resulting trom a dishonorable discharge “* Both operate as a bar to Government employment and elther may deprive a man of benefits under the Servicemen's Readjustment Act of 1944. A body which may adjudge so serious a punishment ought certainly to be provided with rigid safeguards. Yet a great many of the protective measures required of general courts martial are not available in special courts. Article 26 makes mandatory the presence at all general courts martial of a law officer, a duly constituted member of the legal profession whose duty it is to rule on points of law. No such person 1s required on special courts; nor, for that matter, need the prosecutor and defense counsel on special courts be persons with any legal training," as they must be on general courts. Either the power to award bad-conduct discharges must be taken from special courts, or the safeguards necessary to the granting of full justice must be provided. PRETRIAL INVESTIGATION Article 82 appears to be a very salutary sec- tion in that it gives to the accused the right to be represented at a pretrial investigation. However, subdivision (d) takes the teeth out of the provision by foreclosing any possible review by the civil courts on this point It makes failure to comply with the article directional only.* Such failure should be held to be jurisdictional, guarantecing to the defendant the procedural safeguards of the fifth amendment. But the drafters of the code state: “Subdivision (d) is added to prevent this article from being construed as jurisdictional in a habeas corpus proceeding. Failure to conduct an investigation required by this article would be grounds for reversul of a reviewing authority under the code and an intentional failure to do s0 would be an offense under article 98.% In rebuttal, Senator Pat McCARRAN re- marked: “While failure to conduct the investigation would be an offense under article 98, it 1s difficult to see how this will benefit the ac- cused who must depend upon a nebulous right of review by a whole maze of review- ing authorities and tribunals." “To those in the military or naval serv- ice of the United States, the military %” A dishonorable discharge can be imposed only by sentence of a general court martial, while a bad-conduct discharge may be im- posed by either a general or special court. Tho bad-conduct discharge is peculiar to the Navy. It was first created by act of Congress, March 2, 1855, in “An act to provide for a more efficient discipline for the Navy,” as ® mode of punishment to be imposed upon enlisted men by special, then called sum- mary, court martial (10 Stat. 627 (1855)). See Report of the General Court Martial Sen- tence Review Board to the Secretary of the Navy (sec. X (3), p 322 (January 1947) ). ™58 Stat. 301, 88 U. 8. C., sec. 697 (c), title I, ch. VI, sec. 1503 (1944); Regulations and Procedure, Veterans’ Administration, sec. 1604 (A). 3% Uniform Code of Military Justice (art. 27 (1940) ). = Humphrey v. Smith (69 Sup. Ct. 830 (1949) ); Warte v. Orerlade (164 F. 2d 722 (C. C. A. 7th Cir. 1948)); cf. Retlly v. Pescor (156 F. 24 632 (8th Cir. 1946) ), cert. dented, (329 U. 8. 780 (1946)). See Antieau, Courts Martwal and the Constitution (33 Marq. L. Rev. 25, 30 (1949) ). x3 Commentary to art. 32, Uniform Code of Military Justice (1949). % Hearings before subcommittee of the Committee on Armed Services on 8. 857, 8lst Consc., Ist sess. 109 (1949). XCVI 91 CONGRESSIONAL RECORD—SENATE law is due process.™ To this might be added the logical conclusion that it is due proce ess only when complied with.” # UNDUE INFLUENCE The avowed purpose of article 37 is to break down the domination and control ex- ercised over courts martial by commanding officers. The article expressly interdicts such practices as reprimanding members of the court with respect to the results they reached or the manner in which they conducted the proceedings. But the article is ineffective to accomplish its purpose. The mere exer- cise of administrative discretion in giving of leaves or furloughs, in making recom- mendations for promotions, in assigning men to various jobs and details, and in preparing fitness reports gives the commanding officer ample opportunity to manifest his displeas- ure at the manner in which those under his control have handled a case. Such inter- ference does not appear in the record on ap- peal. Consequently, it can never be detect- ed by subsequent reviewing bodies. Only by removing from command the pow- er to influence the court can the prohibition of article 37 be made effectual. The Amer- ican Bar Association set out to do this by suggesting that the Judge Advocate Gen- eral'’s area representative select members of the court from rosters supplied by the com- manding officers of other echelons in the vicinity.” The ill-fated Chamberlain bill had a somewhat similar provision * An ale % Reaves v. Ainsworth, 219 U & 296 (1911); United States v. Weeks, 232 U.S 383 (1914). %“ Hearings before subcommittee of the Committee on Armed Services on 8. 857, 81st Cong, Ist sess. 110 (1949). s7“The remedy suggested is a simple one: the power to convene the court, to appoint assigned defense counsel and to order the sentence executed would be taken from the commanding officer and vested in the Army Judge Advocate General’s Department or its equivalent in the other services. Command- ing officers who under existing law convene the court would be required to make avail- able to Army or higher headquarters a panel of officers available and qualified for court- martial service. From such panel the Judge Advocate General at Army or higher head- quarters (or equivalent echelons in other services) would select the general court to ndjudicate the cases in a particular division. That court could, of course, be composed of officers selected entirely from divisions other than the division in which they are assigned to preside.” Splegelberg, Hearings before Subcommittee of the Committee on Armed Services on H. R. 2498, 81st Cong, 1st sess. 728 (1949). * “Art. 10. General and Special Courts, How Organized: The appointing authority of a general or special court shall designate a panel, which he shall increase as may be found necessary, consisting of those who are by him deemed fair and impartial and com- petent to try the cases to be brought before them, and from such a panel the court shall be constituted, as hereinafter provided " The Chamberlnin bill placed another weap- on at the disposal of the accused in the form of an affidavit of prejudice Article 27 pro- vided in part: “If the accused shall file in the proceedings an affidavit of prejudice, accompanied by a certiticate of counsel of record that such affidavit is made in good faith, alleging spe- cific grounds to show that the officer ap- pointing the court has bias or prejudice against him or that the court, by reason of any matter touching its constitution or com- position cannot do Justice, the court shall proceed no further until the judge advoeate shall decide whether it is able to moceed with absolute impartinlity in the present case, and if he decides that the court cannot fro- ceed with absolute impartiality the court 1437 ternative theory was advanced by the Amer- ican Legion.” That body proposed a strengthening of the penalty in the hope that u really severe chastisement would dis- courage such devious practices. The code, in article 98, goes no further than to make violations of article 87 an offense. Tie Le- gion would substitute civil indictment with a@ penalty of 85,000 fine or 5 years in prison. Neither of these solutions may hbo the panacea we seek, but both are to be preferred to the culpable indifference the code exhibits toward the problem. Perhaps the most vicious way to influence a court unduly presents itself in the Niusory language of article 38. This article gives the accused the right to be represented by military counsel of his own selection “if reasonably available.” “If available” hus been recently construed by the Court of Ap- peals for the Second Circuit to mean if milt- tarily available and not if physically avail- able ” John J. Finn, who spent 33 months in the office of the Navy Judge Advocate General during Worid War II, gave the House sub- committee some insight into how this aiticle will work in practice when he said: “If counsel hus been reasonably successful in defending culprits, his availability ceases or, in some instances, he has been made what is in this code called trial counsel, and thus obviously has been unavailable to defend cases.” “ As a consequence the accused is almost invariably represented by the officer ap- pointed by the commanding officer under article 27, The result is not always as ce- plorable as that in Beets v Hunter, but the fact that such practtces are possible under the Uniform Code speaks for itself. In grant- ing Beets a writ of habeas corpus, Judge Murrah unfolded the details of the case: “When Captain Morgan called upon him (Beets, the accused petitioner), as the ap- pointed defense counsel, Captain Morgan was informed that he (Beets) wished to have Lieutenant Fox represent him, where- upon Captain Morgan left him and went back, leaving the impression at least that he would have Lieutenant Fox call him. Lieutenant Fox did not see this petitioner, instead Captain Morgan returned and on the day before the trial was furnished a copy of the charges. He confesses on the witness stand that he was wholly incompetent to represent him, and he also makes it plain, manifestly plain, too plain for mistake, that he did so only on orders—acting under orders @s a soldier.” Not always is the defense counsel up- pointed by the commanding officer so remiss in his duties A Licutenant Shapiro tricd conscientiously to represent an Americ n gBolaisr of Mexican descent before u coult murtial during the last war. Shapiro, in order to destroy the credibility of the prose- cuting witnesses’ identification of their :s- sallant, substituted for the accused another shal] not be competent for the trial of the pending case, and he shall so report to the appointing authority; thereupon the next superior authority may appoint a court for the trial of sald case. And whenever an ac- cused shall file a like affidavit alleging bias or prejudice of the Judge advocate, such judge advocate shall proceed no further in the case, but another shall be appointed.” 8S. 64, H. R. 367, 66th Cong, 1st sess. (1919). See note, 62 Harv. L. Rev. 1377, 1379 (1949). %®” Hearings before subcommittee of the Committee on Armed Services on H. R. 2498 Blst Cong., Ist sess, 665 (1949). “ Henry v. Hodges (76 F. Supp 968 (8. D. N. Y. 1948) ). * Hearings before subcommittee of the Committee on Armed Services on H. R. 2498, Elst Cong, 1’ t sess, 685 (1949) «© 75 F. Supp. 825, 826 (D. C. Kan. 1948).
1438 American soldier of Mexican descent. The substitute was readily identified as the cul- prit and was convicted. Satisfied that he had destroyed the prose- cution’s case, Shapiro informed the court of the ruse he had employed. These vere tiginous repercussions followed. The real defendant was brought to trial, also identi- fied as the gullty party and convicted. Lieu- tenant Shapiro was arrested. Upon arrest he asked to be represented by a Captain May- field. A day or two thereafter he was charged with effecting a delay in the orderly progress of the general court martial and was ordered to stand trial that afternoon, At the same time he was informed that Captain Mayfield was no longer available, having been named as the trial judge advocate. Thereupon, the licutenant hastily selected as his detense counsel two lieutenants, neither of whom were Inwvers When the court martial con- vened 80 minutes later Shapiro moved for a continuance of 7 days on the ground that his counsel had not had sufficient time to prepare his defense. Needless to say, this motion was denied. Three and one-half hours later, Lieutenant Shapiro was sen- tenced to be dismissed from the service. Less than 5 hours had elapsed from the time charges were served to the-time sentence was pronounced. Subsequently, Shapiro brought sult in the Court of Claims ‘' for his back pay, contend- ing that his conviction was void and his dismissal illegal. He won-—scant compensa- tion to the former officer for the disgrace and chagrin he had suffered. SENTENCES NOT PREDATE'D Article 57 (b) reads: “Any period of cone finement included in a sentence of a court martial shall begin to 1un from the date the sentence is adjudged by the court martial” This provision gives no credit for time the accused may have spent in confinement he- fore sentence. On the other hand, civil penal codes often require that time so spent before sentence is pronounced be deducted from the term of sentence imposed" It would seem no more than right that the military likewise give credit in whole or in purt from the date of arrest depending upon whether the defendant was confined to quar- ters or the post or imprisoned in the brig or guardhouse The point is important, be- cuuse in many cases delay of trial for proper preparation is in the defendant's interest. An edequate defense cannot be assured if the accused must regard delay as added punish- ment. REVIEW PROCEDURES Articles 59 through 76 concern themselves with the procedure for review of courts martial Review begins in every case with the con- vening authority's initial action on the rec- ord. When the convening authority has taken final action in a general court-martial case, he forwards the entire record to the appropriate Judge Advocate General. The Judge Advocate Gencral 1s required to refer certoin cases to a board o7 review and wWti- mately to u judicial council. Other cases are reviewed in the ofiice of the Judge Advocate General and then, if necessury, by a board of review. It has been suggested that the two most geerlous difficulties with the court-martial system are the method of review and the contro] by commanding officers over court proceedings® It is at the stage of initial “‘ Shapiro v. United States (69 F. Supp. 2c5 (Ct. Claims 1947)). “E.g., N. Y. Penal Code, sec. 2193. *. Report of the General Court Martial Sen- tence Review Board to the Secretary of the Kavy, sec VII (1) (D), p. 206 (January 1947). CONGRESSIONAL RECORD—SENATE review by the convening authority, as pro- vided in articles 60-64, that these two diffi- culties come most sharply into focus. There appears to be a basic inconsistency between these articles and article 6 that the simple expedient of placing fifty-some-odd other provisions between them cannot re- solve The purpose of article 6 (a) is to place judge advocates and law specialists under the control of the Judge Advocate General. To make these law officers independent of the convening authority in this manner, and then to subject the court’s proceedings to review by the convening authority is incon- gruous, to say the very least Indeed, there are such serious objections to this sysvem of initial review by the cone vening authority that several of the com- mittees appointed in the past few years to study existing court-martial systems have recommended either complete elimination or severe limitation of the power“ The French have entirely eliminated such review from thei: court-martial procedure and have made the sentence of the court self-executory, sub- ject, however, to higher departmental re- view & The Navy General Court Martial Sentence Revicw Board report summarized the objec- tions to the o'd system, none of which have been rectifed by the code, as follows: @ “(i) The reviewing authority is usually the same officer who convencd che court and re- ferred the case to trial There is a certain anomaly in having the same officer review a cause which he has considcred at some length before it went to trial. It is humanly im- possible for a person, no matter how high his purpose, to dissociate himself from his prior actions and opinions on a particular matter and to view it later as though he were secing it for the first time. This is recog- nized in the rules which prescribe the quali- fications for members of courts martial, and in the rules followed everywhere with respect to disqualification of Judges in civilian ap- pellate courts It is anomalous not to recog- nize it in the single case of the authority who reviews court-martiul cases. * * * “The difficulty is not cured by requiring that the case be referred to a legal officer for his opinion. For exactly the sume prob- lem presents itself The legal officer who re- views the case is usually the same officer who studied the case beforehand, drafted the charges, and recommended trial in the first place. “(4i) The review of a court-martial case is not reelly analogous to an appeal. Although councel for the accused has the privilege of submitting a brief, he dves not often do so, and rarely, if ever, resorts to orul presenta- tion of the case to the convening authority or his legal oiMcer. Although theoretically “ See report of the General Court Martial Sentence Review Board to the Secretury of the Navy, sec. VII (1) (D), p. 206 (January 1947); report of War Department Advisory Committee on Military Justice to the Secre- tary of War, sec III AS, p. 9 (December 196) ; report of the General Board, USFET, ‘Military Justice Administration in Theatcr of Opera- tions,” File: 250/1, Study No. 83, par. 55, pp. 45-46; report of the House Military Affairs Committee, H. R. 2722, 79th Cong, 2d sess. (1947). Neither the report of Ballantine com- mittee to the Secretary of the Navy (April 1946), nor the report of the McGuire commit- tee to the Secretary of the Navy (November 1945) specifically mention the important question of review by the convening authority. “McNeil, French courts martial, pp. 6 et seq. (1946). “Report of the General Court Martial Sentence Review Board to the Secretary of the Navy, sec. VII (1) (B), pp. 101-194 (Jan- uary 1947). FEBRUARY 3 each objection to evidence and rulings of the court is weighed as though on appeal, and the record is carefully scrutin)zed for Juris- dictional or other error, it is difficult, on such &@ procedure, to detect all the errors which may exist, sometimes serious ones. “(iii) The practical result of the present system is that the reviewing authority, rather than the court, fixes the sentence. Theo- retically, the court can impose whatever sen- tence it deems fit. But it is directed to im- pose a sentence ‘commensurate with the offense’ and to leave matters of clemency to the reviewing authority. Of course the meme bers of the court may, and frequently do, recommend clemency. Occasionally @ court invades the reviowing authority’s prerogative of clemency. But in the vast majority of cases the court moercly fixes a maximum limit to the sentence, and the sentence is actually set by the reviewing authority, with- in that maximum The clemency extended by the reviewing authority in most cases consists merely in reducing the sentence to something approaching what it should have been in the first place. * *" * “(iv) The convening authority’s power of review carries with it a large measure of in- direct control over the court and its actions. If the convening authority does not agree with the findings of the court, or believes that the sentence is inadequate, even though he may be powerless to change the result in the particular case, he can express his opin- jon in his action or in a letter to the court. This cannot but have its effect on subsequent cases, The mere knowledge that it can take place is apt to influence a court, without any expression of disapproval or nonconcurrence ever being made by the convening authority. “(v) Finally, difficult law points in court- mortial cyses are practically nonexistent. If the judges of the Military Court of Appeals are to receive the pay of circuit judges they should do the work of circuit Judges There should be no difficulty at the present time in their reviewing wll court-martial convictions. And in time of war, their number could always be temporarily increased "” The code not only provides for such re- view by the convening authority, but atter the case has passed him, under article 66, it may be reviewed by boards of review in the otticcs of the three Judge Advocate Generals. Yet the detects are not such that they can be cured by higher appellate review, for any subsequent reviewing body must, of neces- sity, rely heavily on the action of the court and the initial reviewing authority. “They are the parties closest to the accused, the offense, and the scene” ” In any event, review by boards of review as constituted by this code seems to be an unnecessary step and a waste of time and money. It cannot be expected that such boards, appointed by the Judge Advocate General, will give the disinterested impartial review necessary. Just as the trial court has been shown to be under the domination of the convening authority, 50 too will the boards of review come under the domina- tion of the Judge Advocate General. The Judge Advocate General is not, and by the nature of his office and appointment cannot be, an impartial Judicial officer. He is to on- Yorce discipline and he is to give defense. In an effort to resolve this conifllct the English have separated the prosecution and defense sides of the office of their Judge Advocate General. They have further pro- vided that the Judge Advocate be a civilian appointed on the recommendation of the Lord Chancellor and be responsible to him” Thus, the English reforms have freed the * Report of the General Court Martial Sen- tence Review Board to the Secretary of the Navy, sec VII (1) (C), p. 194 (January 1947). ™ London Letter, A. B. A. J. 75 (January 1949).
1950 Judge Advocate General from the control of the Secretaries for State and Air. This is in sharp contrast to the American reforms which have served only to compound the ine herent infirmity in the Department. Still another opportunity for the Judge Advocate Genera] to exert his influence sug- fests itself in article 67. This article admir- bly creates a Court of Military Appeals, a clvilian body of three attorneys appointed by the President for 8-year terms, each to receive compenzation and allowances equal to those paid to a United States Court of Appeals judge. This court ts, in a limited number of cases, to be the final reviewing authority of courts martial. As has been suggested above, to all ine tents and purposes there is no difference between the Judge Advocate General and a district attorney in civilian life Yet, de- spite this basic confilct of interests, subdivi- sion (b) (2) provides that the Judge Ad- vocate General may order forward to the Court of Military Appeals for review such cases as he pleases. Under this provision, only if your case interests the Judge Advo- cate Gencral can you hope to have an appeal. But there is another way. If you have bocn sentenced to death or are an admiral or a general, subdivision (b) (1) gives you an unqualified right to bring your case he- fore the Court of Military Appeals. To state this provision ts to show Its injustice Every- one, regardless of rank, should have his case automatically heard before this top civilian court. There is a third way in which a case can be reviewed by the Court of Military Appeals. S.bdivision (b) (3) provides that upon peti- tion of the accused and on good cause shown, the Court of Military Appeals can grant a review. The code significantly does not tell us who {fs to make this petition. Experience has shown that the great majority of de- fendants in court-martial cases are far from mental giants. They are primarily very young men, and in most cases very poorly educated men. They are men who are in trouble largely because of bad home environ- ment. They are the children of divorced parents, and the real poor and neglected in America. These men, if they are to exercise the right to file such a petition, will have to have assistance. The only ones who will not require assistance are the wicked and the well-connected. This method of provid- inz an appeal by petition will result in the wrong kind of cases going to the Court of Military Appeals and the right kind being buried in the board of review in the office of the Judge Advocate General." Another defect in article 67 is that it limits the Court of Military Appeals to review of questions of law and chains this body to the focts as found by command. Not even busy civil courts are limited to a review of the law ‘Contrast this with the corresponding provision in the Chamberlain bill,S 64, H R. 367, 66th Cong., 1st sess., art. 52 (1919): Unless the accused, when sentence is pro- nounced upon him, shall make the state- ment in open court that he does not desire that his cause be reviewed by the Court of Military Appeals, which statement shall be made a matter of record by the Judge Ad- vocate, or unless he shall thereafter notify eaid court of appeals in writing that he does not wish his case reviewed, said court shall review the record of the proceedings of every general court or military commission which carries a sentence involving death, dismissal, or dishonorable discharge, or confinoment for a period of more than 6 months, for the cor- rection of errors of law evidenced by the record and injuriously affecting the substan- tive rights of an accused without regard to whether such errors were made the subject of objection or exception at the trial. CONGRESSIONAL RECORD—SENATE in criminal cases. If the task of reweigh- ing the evidence should become too arduous, the court can always be expanded. It is worth the added expense if as a result even one innocent American boy 1s spared the vilification of an unjust sentence. Nor is it ever desirable to throw any court’s jurisdiction into the controversy inherent in the metaphysical distinctions between fact and law. For example, is the obtaining of a confession by torture a question of fact or a question of law? Cases of that sort are bound to be difficult to review and the statute should be drawn co that the Court of Military Appeals has an unlimited right to review questions of fact as well ns ques- tions of law."* Can we be sure that the code, as it is now written, guarantees re- view of tragedies like the Sugar Cane Rape Cases? *! Early in 1944 the rapes in Hawaii of sev- eral civilian women resulted in a public clamor for retribution. The Navy responded to these rcmonstrations by herding some 40 to 50 Negro sailors into confinement. No charges were pressed No counsel was provided. Once incarcerated. marine guards “convinced” six of the unfortunates that they should confess to the crimes. Beatings with billy clubs and blackjacks, threats of death, deprivation of sleep, the application of lghted cigarettes to bare ficsh, and the pushing of brcom straws under fingernails were among the most cogent arguments em- ployed. So persuasive were these appeals to reason that the Navy found itself with one more coniession than there had been crimes The extra confession was discarded. Undaunted, the general court martial tound these specious admissions of guilt, coupled with the most equivocal of identifications, sufficient evidence upon which to sustain the prisoners’ pleas of guilty Dishonor- able discharges and confinement in Federal penitentiaries followed It is well settled that Federal courts will review court-murtial records to see if basic constitutional guaranties have been denied petitioners * If such is found to be the case, the courts will grant a writ of habeas corpus on jurisdictional grounds. The reasoning seems to be that in a case where constitu- tional guaranties have been flouted, juris- diction was defective ab initio™ But this is no help to unfortunates like these who have neither the intelligence nor the knowledge nor the money to pursue such a course, Before the advent of the Uniform Code there was no way that their convictions could be reviewed There ts still no effectual way. Could Mr. Justice Black have been mistuken when he wrote. “The Constitution of the United States stands as a bar against the conviction of any individual tn an American court by means of coerced confession. There have been, and are now, certain foreign nations with govern- ments dedicated to an opposite policy; gov- ernments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to scize persons suspected of crimes against the state, hold them in seerct custody, and wring from them cenfessions by physical or mental tor- 2B, g., People ex rcl. Higley v. Millspaw (281 N. Y. 441 (1939) ). “See Morgan, Atlantic Monthly, Decem- ber 1946, pp. 97-102; Report of the General Court Martial Sentence Review Board to the Secretary of the Navy, sec. VII (2) (C) (5) (v1), p. 226 (January 1947). “GQ. C. M.S. R. B. Nos. 61, 742, 58, 697, 57 (August 1946). 53 Sanford v. Robbins (115 F. 2d 435 (5th Cir. 1940)). See Brown v. Sanford (170 F. 2d $44 (6th Cir. 1943)). 59 Schita v. Cox (139 F. 2d 971 (8th Cir, 1944) ). 1439 ture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.” * WHY NO CHIEF DEFENSE COUNSEL? To be sure that every case is presented to the Court of Military Appeals, it was the sug- gestion of the General Court Martial Sen- tence Review Board, based on their experi- ence in reviewing court-martial cases, that there should be created a chief defense coun~ sel.“ Such an officer, and not the Judge Advocate General, would have the responsi- bility of appealing cases to the top appeals court. Instead of following this suggestion, the drafters of the code have required, in article 70, that the Judge Advocate General appoint appellate counsel. It ig too much to expect any Judge Advocate General, no mate ter how well intentioned and capable, to act in two such confiicting capacities like Pooh Bah. It is like asking the district attorney to appeal the case of a defendant that he has convicted COLLATERAL ATTACK Article 76 restates the existing law as to finality of court-martial Judgments.” Fol- lowing such review as the code provides, court-martial judgments “shall be flual and conclusive.” Presumably they will still be open to cole lateral attack, either by petition to a Fed- eral district court for a writ of habeas corpus or by suit in the Court of Claims to recover such back pay as may have been withheld by way of punishment. To carry such appeals to the top of the Federal hicrarchy of courts is so slow and cumbersome a process as to be of little practical value. The remedy of habeas corpus 1s of doubt- fu) utility in any event. Only last April ® the Supreme Court reiterated its earlier holding in Carter v. McClaughry,” that such proceedings do not permit the re- viewing court to pass on the guilt or inno- cence of persons convicted by courts martial, There are only tour traditional grounds for review by the civil courts. Such courts muy inquire whether the military court « Asheraft v. Tennessee (322 U 8S. 143, 155 (1944) ). In McNabb v. Untted States (318 U 8 332 (1943)), the Supreme Court had occasion to review a similar record of illegal arrest, delay in arraignment, and questloning of prisoners who had been held incommunicado without advice of coungel. It held that confession gained uncer such circumstances was invole untary as a matter of law, and inadmissible in the Federal courts. See, e.g, Anderson V. United States (318 U.S. 350 (1043) ); Ward v. Texas (316 U.S 535 (1942) ), Lomagz v. Tezas (313 U. B 544 (1941) ); Vernon v Alabama (313 U §& 647 (1041) ); Canty v. Alabama (369 U S. G29 (1940)); White v. Teras (310 U. S. 630 (1840)), Chambers v. Florida (309 U 8. 227 (1940)). Nor is a defendant's claim that the use of his involuntary confession deprived him of due process foreclosed by the findung of a court or the verdict of the jury or both. Lisenba v. California (314 U. & 219, 237-238 (1641) ). If such a coerced confession is introduced as evidence for the prosecution at the trial, the judgment of conviction will be sct aside even though the proof apart from the con- fession might have been enough to sustain the jury's verdict. Malimski v. New York (324 U. S 401, 404 (1045)); Lyons v. Okla- homa (322 U. S. 596, 597 (1943)). * Report of the General Court Martial Sentence Review Board to the Secretary of the Navy, § VII (5) (1), p. 254 (January 1947). vIn re Grimley (137 U. S 147 (1890) ). "Humphrey v. Smith (69 Sup. Ct. 830 (1949) ). 183 U. S. 365 (1902).
1440 was properly convened and constituted,” whether it had jurisdiction over the person,* whether it had jurisdiction to try the of- fense charged,“ and whether it imposed a sentence in excess of its power.“ The recent tendency, however, has been to go further and to grant habeas corpus on Jurisdictional grounds if basic constitutional guaranties have been violated™ At least two Federal courts have gone over the entire record in making this determination.” This trend toward increased civil review poses a problem. Is such practice advis- able? The answer must depend on the extent to which full justice can be dispensed in military courts. The reforms made by this Uniform Code are so nogligible that the question must, of necessity, be answered in the affirmative. With the coming of ade- quate reform, however, such broad appeal to a civil judicial tribunal will be neither desirable nor practicable, except in those cases where difficult judicial points are in- volved ,.Most court-martiul cases involve offenses against discipline, and these are better handled by persons thoroughly famil- jar with service discipline and its ramifi- cations In the final analysis, all substantial ques- tions of jurisdiction and due process must, of course, be answered by the United States Supreme Court. Collateral attack can never accomplish this. During the last war there were no cases appealed to the Supreme Court of the United States with respect to any American serviceman. It was not until 1949 that the first such case was heard by the High Court ® The privilege apparently exists, but to insure appeal to the Supreme Court @ more swift and effective piocedure must be provided There was no delay in passing on the validity of the military convictions of Japanese Generals Homma“ and Yamushi- ta’ Likewise, immediate action was taken by the Supreme Court in testing the Juris- diction of the military commission which tried the German saboteurs who disembarked on our shores in 19427 Should we be less “ United States v Smith (197 U S 386 (1905)), McClaughry v Deming (186 U. S. 49 (1902) ) “Er parte Reed (100 U S 13 (1879)); Mosher v Hunter (1943 F 2d 745 (10th Cir. 1944)), Untted States v MacDonaid (265 Fed 695 (E D. N Y. 1920)), In re Cra.g (70 Fed 959 (C C D. Kan. 1895)); McCune v Kilpatrick (53 F.Supp 80 (E D Va 1943)). % Smith v. Whitney (116 VU S 167 (1886) ); Dynes v. Hoover (20 How 65 (U S. 1857) ); Rosborough v. Rossell (150 F. 2d 809 (1st Cir. 1945) ). ® Swaim v. United States (165 U 8S. 553 (1897)), Ex parte Mason (105 U. S. 696 (1881)); Cf. Bishop v United States (197 U. 8. 334 (1905)), holding that the civil courts will also look into the question whether there hus been an tllegal delegation of the power to pass on the sentence. “% United States ez rel Innes v Riatt (1941 F, 2d 664 (C C A 3d 1944)); Schita v. Coz (133 F. 2d 971 (C C A 8th 1944)), cert de- nied (322 U.S 761 (1944), rehearing denied (323 U. S. 810 (1944)), Romero v. Squter (133 F, 2d 528 (9th Cir. 1943)), cert denied (318 U. S. 785 (1942)); Sanford v Robbins (115 F 2d 435 (5th Cir 1940), cert denied (312 U. S. 697 (1941)), Hicks vy Hiott (64 F. Supp. 238 (M D. Pa. 1946) ). *tSehita v. King (133 F 2d 283 (8th Cir. 1943)); Schita v. Cor (139 F 2d 971 (8th Cir. 1944)), cert. denied (322 U 8S. 761 (1944)), rehearing denied (323 U S 810 (1944) ); Hicks v. Hiatt (64 F. Supp. 238 (M D. Pa. 1946)). “United States ex rel. Hirshberg v. Cooke (69 Sup. Ct. 530 (1949) ). “In re Homma (327 U. 8. 759 (1946) ). %~In re Yamashita (327 U 8S. 1 (1946)). "Ex parte Qunvin et al. (317 U. S. 1. (1942) ). CONGRESSIONAL RECORD—SENATE willing to grant effective civil appeal to our own service personnel than to our enemies? PUNISHABLE OFFENSES Article 88 makes the use of contemptuous language against the President, Vice Presi- dent, legislators, Cabinet members, gover- nors, and certain other officials a court-mar- tial offense. In light of the unfavorable public reaction to the recent “Dierdorff incident,” ** the wis- dom of such a provision, at least without some qualification ltmiting it to time of war and degree of disrespect, is questionable. Last February, Naval Capt Ross A. Dier- dorff replied to Senator HarLey M. KILGorRE’s slur on the captain’s superior officer by call- ing the Senator “a politician” not fit for an admiral “to wipe his shoes on” Almost im- mediately, the captain was relieved of his duties and transferred pending retirement. In an effort to forestall the more serious punishment of official reprimand which nevertheless followed, Senator Morsz re- marked “TI wonder how many people in Government service, in and out of the armed forces, would be free of disciplinary action by their supe- riors if we ever started to adopt the policy of disciplining Government officials, including Cabinet officers and Assistant Secretaries, tor every hit of critical figurative language they have spoken about Members of Congress in what they thought was private conversa- tion "7% Another serious failure of the code is in the matter of definitions Article 106 subjects spies to court-martial jurisdiction. Unfortunately, “spy” is not clearly defined, so that the article applies by its terms to “any person” who in time of war is “in or about any shipyard, any manu- facturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States" During the last war it would have been difficult to find anyone in the United States not subject to this broad and danger- ous language With double jeopardy the vogue under this code, most civilians In war- time appear to be subject to both civil trial and court martial, Article 120 defines “rape” in such a way that many types of rape are not offenses un- der the code at all For instance, carnal connection without force with & woman of unsound mtnd,7! or with a woman intoxi- cated to insensibility,” or penetration by surprise or after the victim has been ren- dered unconscious by the blow of a third person,” or submission by the victim under the belief that the act was a surgical opera- tion,” are examples of the crime of rape in clvil jurisdictions Yet none of these acts conform to the code’s definition of rape as an act of sexual intercourse with a female other than the wife of the actor “by force and without her consent.” To obviate the diMculties set forth above, the word “or” should be substituted for ‘‘and.” CONCLUSION From our study of this Uniform Code of Military Justice, we draw the following con- clusions: 1. The code creates three Judge Advocate Departments where we formerly had two. There should only be one. A requirement that the three Judge Advocates General fol- "™New York Times, February 19, 1949, p. 3, column 6. ™ New York Times, February 20, 1949, p. 26, column 3. ™ People v. Palvino (216 App. Div. 319, 214 N. Y. Supp. 577 (4th Dept. 1926) ) ™ People v. Quinn (50 Barb. 128 (N. Y. 1867) ). w State v. Atkins (292 8. W. 422 (Mo. Sup. 1926) ). " Regina v. Flattery (18 Cox C. C. 388 (1877) ). FEBRUARY 3 low the same procedure is not enough. One could operate with less expense and more efficiency. What price must we pay for the interservice jealousy of military lawyers? 2. There is no excuse for article 2 (11) of the new code which subjects the entire civil- jan population of Guam, Americun Samoa, and the trust territory of the Pacific to court martial. The provision is both unnecessary and undesirable. 3. The decision of the Supreme Court of the United States in the Hirshberg case was desirable. Article 3 (c) of the code, in effect reversing that decision, is undesir- able It permits the services to withdraw honorable dischaiges Yet at this stage the considerations of discipline are no longer controlling. There is therefore no excuse for military jurisdiction. If a service gives an honorable discharge it should be forced to a civil court to void it. 4. When a serviceman has been tried by a civil court, the selvice to which he is at- tached should be made to accept the result. Accordingly, articles 14 and 44 of the Uni- form Code should be changed. The changes should be broad enough to reveise the Wade decision. The Congress should not subject a citizens’ army to double jeopardy, legally or illegally. Double jeopardy is nonetheless double jeopardy even though to date the Supreme Court of the United States has not struck it down, as some day it surely will. 5. Whether on land or sea, no provision such us article 15 which approves a bread and water diet as u form of punishment should stand It is cruelty, and as such has no place in our American way of life. G. Article 19 should be changed so as to rob special courts of the power to give a discharge The protection of counsel and the new law officer established by the code makes trial by general courts martial a valu- able right. It is not sufficicnt protection that a stenographic record is to be made of the proceedings of a special court that gives a bad-conduct discharge. If a special court hos to use some of the procedures of a gene eral court to give a bad-conduct dischaige it is much more sensible to take the power away from special courts entirely. 7 Article 32, requiring a pretrial investi- gation, shculd either make such investiga- tion a jurisdictional requirement or be elim- inated As article 32 is drawn, If the sei vices do not hold o pretrial investigation as 52 purports to requlre, it is their own affair and not a subject into which our civil courts can inquire by habeas corpus. 8. The pious protests of article 37 against improper command influence in the selec- tion of court and counsel avail nothing. The code should be amended to require the establishment of panels from which the court is to be selected. The Chamberlain bill yes- terday so provided and the American Par Assoclation today urges the same provision. There should be a trial Judge advocate who is a judge and not an advocate, and he should be given the sole right to select the members of the court from the established panels and the sole right to select counsel. In addition, the civil penalties asked by the American Legion should be written into the bill. 9. Sentences under the new Uniform Code are to run from the date of sentence. This is @ vicious provision under which a man is denied credit in whole or in part for time spent in the brig or guardhouse or confined to quarters. 10. It is not so much that innocent men are convicted by military courts as that out- rageously long sentences are given by trial courts. There will never be any correction of this practice until the review power of the convening authority is eliminated as ‘was proposed in the Chamberlain bill and as was recommended by the General Court Martial Sentence Review Board of the Navy. Only if the members of a court martial
1950 know that the convening authority will not review their sentence can the court be de- pended upon to do its duty by fixing the sentence at the proper length. 11. More cumbersome even than having three Judge Advocate Generals instead of one is the provision in article 66 requiring that boards of review in the office of each Judge Advocate General shall review every case. This is not only an unnecessary step, but, since the Judge Advocate on appeal is like the district attorney, it fails to provide dis- interested review. 12. While a Court of Military Appeals con- Bisting of three civilian lawyers is an excel- lent contribution by the new code, the court parallels the similar court proposed in the Chamberlain bill in name only. Unlike the Court of Appeals in the Chamberlain bill, this court cannot hear every case. ‘The pro- vision permitting s man to petition for an appeal does not cure the evil, because it presupposes an intelligence that most pris- oners do not have. Letting you appeal only if sentenced to be shot is small comfort. Letting generals and admirals appeal as of right is an outrage. Since no one knows what is law and what is fact, confining the Court of Military Appeals to questions of law only robs them of power to decide the very cases they are created to hear. 13. Because of the basic conflict in the duties of the Judge Advocate General on appeal, provision should be made to lodge defense on appeal with a chief defense coun- sel. The new code leaves the Judge Advo- cate General to protect the accused as well as to present the Government’s case. 14, There is still no effective way to appeal ® court-martial sentence to the Supreme Court of the United States. Not only is the present habeas corpus procedure through the Federal hierarchy cumbersome, but worse, when the Supreme Court finally does hear a case it is limited to an inquiry as to a deprivation of constitutional rights. It still cannot inquire as to guilt or innocence. 15. Article 68, permitting conviction for use of contemptuous language, should be eliminated as an unjustifiable limitation on free speech. 18. The code is careless as to its defini- tions. The definition of “spy” in article 106 should be torn out by the roots as a danger to our whole civil population. The definition of “rape” in article 120 condones more varie- ties of the act than it includes as punishable. YER ORATIO From the above analysis we submit that the new Uniform Code of Military Justice retains and compounds flagrant errors of commission and omission. If time permits, the Senate of the United States should make the corrections before the bill 1s enacted into law. If not, the chances are good that the corrections will never be made, The only hope in the code, itself, lfes in article 67 (b) which provides: “The Court of Military Appeals and the Judge Advocate Generals of the armed forces shall meet annually to make a comprehen- sive survey of the operation of this code and report to the Committees on Armed Services of the Senate and of the House of Representa- tives and to the Secretary of Defense and the Secretaries of the Departments the number and status of pending cases and any retom- mendations relating to uniformity of sen- tence policies, amendments to this code, and any other matters deemed appropriate.” In our judgment there 1s little likelihood that these three powerless, buried judges in the Department of Defense will correct the obvious defects outlined above. Nor can we expect these judges and Judge Advocate Generals to supply omissions such as investi. gation of treatment of prisoners, equality of treatment of men and officers, consolida- tion of the offices of the three Judge Advo- CONGRESSIONAL RECORD—SENATE cate Generals into one, establishing court- martial rules in lieu of this primitive code. In the first place, though receiving the pay of judges of the United States courts of appeals, the civilian judges to be ap- pointed to the Court of Military Appeals will not, like their civil-court counterparts, be appointed for life. At the ends of their 8-year terms they will need the good will of admirals and generals to be reappointed. In the second place, the history of many administrative agencies is that, beginning gealously alive to the public interest, they quickly begin to think of the public only in terms of the litigants who appear bcfore them. We have seen the best of adminis- trative agencies disintegrate for lack of disinterested civilian criticism. In court- martial procedure governing civilian soldiers and sailors the armed services should wel- come the creation of a strong civilian ad- virory council. Wasn’t it Roscoe Pound who long ago pointed out that codes are rigid, codify errors, and make changes more diffi- cult? The only hope for improvement is to condition passage of the code upon the appointment of an advicory council—and this is what was suggested by the Navy's General Court Martial Sentence Review Board in 1947.7" Such a body can be relied upon to follow this court-martial reform to the bitter end. In its permanent advisory capacity it can do all the things article 67 (g) only hints at, and considerably more. The opponents of reform rely upon the present pressure easing and civilian lawycrs losing interest. The stakes are too high. Let us hope that the Senate will establish such a council. True reform lies that way. ARTHUR JOUN KEtFFE,’? MorRTON MosKIN Mr. MORSE, While I am on this sub- ject, Mr. President, I want to point out that. not all military men, even in active service today, disagree with the junior Senator from Oregon on this point, be- cause I refer to the hearings on the bill, to the testimony of General Harmon, Judge Advocate General of the Air Force, appearing at page 290 of the hearings. Listen to what he says: Well, you have the two extremes. You have the preservation of discipline on the one hand and the elimination of command influence on the other, and you do not want to sacrifice discipline to accomplish this 7% Introduction, p. 3 (January 1947). Mr. Justice Benjamin N. Cardozo characterized such advisory bodies in his celebrated law review article advocating what were to be- come the New York State Law Revision Com- mission and the Judicial Council. He wrote: “Recommendations would come with much greater authority, would command more gen- eral acquiescence on the part of legislative bodies, if those who made them were charged with the responsibilities of office. * * ® Such a board would not only observe for itself the workings of the law as adminis- tered day by day, it would enlighten itself constantly through all availabie sources of guidance and instruction; through consulta- tion with scholars; through study of the law reviews, the Journals of social science, the publications of the learned generally; and through investigation of remedies and meth- ods in other jurisdictions, foreign and domes- tice. © * © Reforms that now get them- selves made by chance or after long and vexatious agitation, will have the assurance of considerate and speedy hearing. Scattered and uncoordinated forces will have a rally- ing point and focus.” Cardozo, A Ministry of Justice, 36 Harv. L. Rev. 113, 114-125 (1921). ™ Professor of law, Cornell Law School, 1441 other. I do not go as far as some articles I have read, where they go to the nth degree to eliminate all control. I do not go that far at all, I think, however— This is the Judge Advocate General of the Air Force testifying, Mr. Presi- dent— I think, however, that the administration of military justice generally should be com- pletely taken away from command so that the Judge Advocate General and his office does have the sole right to administer jus- tice after the man has committed the offense and the commanding officer has decided that he is to be investigated for it and various steps going up to court martial after that. I think the Judge Advocate General of the Air Force is to be commended for the testimony he gave on that subject, not because it happens to coincide with the point of view of the junior Senator from Oregon, but because the point of view which he expressed was not shared in the testimony of other officers of the Military Establishment in regard to the desirability of breaking command con- tro] in respect to the administration of military justice. I am inclined to be- lieve, as I previously indicated, that in the years to come the position taken by General Harmon in the hearings will be sustained on the basis of experience and future action which I think the Senate and the House of Representa- tives will necessarfly have to come to in respect to this issue. I turn now, Mr. President, to another feature of the bull. The purpose of House bill 4080 which is now before the Senate is, of course, to create a Uniform Code of Military Justice for all the services. While there is com- mon agreement upon the need for uni- formity in the administration of the judicial system of the armed forces, there is considerable divergence of opinion concerning the propriety of bringing to military justice certain of the concepts of civilian justice, and an even greater difference of opinion as to the advisa- bility of creating a court of appeals for the Military Establishment, the members of which shall be appointed from civilian life. I refer, of course, to article 67 of the pending bill which creates a Court of Military Appeals consisting of three judges appointed from civilian life by the President, by and with the consent of the Senate, located for administrative pur- poses in the National Military Establish- ment. This court is a direct outgrowth of the Judicial Council constituted by section 226 of the Elston Act, Public Law 759, in the Office of the Judge Advocate General of the Army. By amendment to article 50 of the Articles of War, which apply only to the Army, the Judicial Council is composed of three general officers of the Judge Advocate General's Department. It performs the function of a supreme court of the Army, but being composed of officers under the command of the Judge Advocate General it lacks those elements of independence which any court with its powers should have. The Judicial Council has the power to review only such cases as require action by the Presi- dent, or where a board of review or the
Judge Advocate General deems that a finding of guilty or sentence should be modified, or the Judge Advocate General and the Board of Review disagree. It has no power to order a new trial, that power being vested in the Judge Advocate General. The Uniform Code takes this power from the Judge Advocate General and vesis 1. in the Court of Military Appeals. It has no power to accept Jur- isdiction of an appeal upon petition of the accused. The Uniform Code specifi- cally provides that in all cases revicwed by a board of review, the court of appeals may grant a review upon petition of the accused on good cause shown. Need- less to say, the Judicial Council, being a creature of the Judge Advocate General, has no authority to investigate his ad- ministration of military justice or to recommend to the Congress neccssary revisions affecting military justice. Sub- division (g) of article 67 of the Uniform Code charges the Court of Military Ap- peals and the Judge Advocate General of the armed forces with the duty of mak- ing a comprehensive survey of the Uni- form Code of Military Justice annually, and to report to the Committee on Aimed Services of the Senate and the House and to the Secretary of Defense and Secretaries of the Departments the num- ber and status of pending cases and recommendations relating to uniformity of sentence, policies, amendments to the code, and any other matters deemed appropriate. It is obvious that article 67 represents a drastic reallocation of the power to re- view the findings and sentences of mili- tary courts, not only in the Army but in the Navy and Air Force as well, and for the first time creates a method whereby injustices and weaknesses in the system may be explored and reported to the Con- gress and to the responsible heads of the Department of Defense for necessary action. As might be expected, these concepts are not wholly palatable cither to those officers who do not hike civilian checks being exercised on the military, or to the Judge Advocate General of the Army, who understandably is opposed to limi- tations upon his judicial powers and the creation of a Military Court of Appeals, which not only 1s not responsible to him, but which 1s 1n a measure clothed with the responsibility of examining the con- duct of his corps insofar as it relates to military justice. It 1s to the credit of the Judge Advocate General of the Air Force that he has welcomed the salutary changes embodied in the proposed Uni- form Code. ‘'wo objections have been interposed to the enactment of article 67. The first is that it places final appellate power of cases tried by military courts in a civilian body, the members of which are not familiar with problems peculiar to the maintenance of discipline in the atmed services. The powers of review of the proposed Court of Military Appeals are limited to matters of law. It would seem, therefore, that the court would not be required to pass upon questions which invotve technical military knowledge. But the Judge Advocate General of the Army in his statement before the Sen- CONGRESSIONAL RECORD—SENATE ate Armed Services Committee insisted that many questions which must neces- sarily come before the court would in- volve mixed questions of fact and of military law and, indeed, cited several examples of such questions. However, the answer to this argument is implicit in the contention itself. If the question is not a pure question of law, then by the express provisions of article 67 (d), the Court of Military Appeals has no power to pass upon it. If it were argued that the provisions of article 67 (d) deprive the Court of Military Appeals of jurisdic- tion neccessary to the best functioning of the court by hmiting its power of review to legal questions only, there might be validity to the argument, but to contend that a court which has jurisdiction only to decide questions of law might be re- quired to decide mixed questions of fact and law is an absurdity. The Judge Advocate General asserted in his statement that there 1s no need to change the present system of review, but, on the centrary, “the remarkable success of the military-appeals system is attested to by the fact that of more than 200 habeas corpus cases arising since World War II only one accused has been re- leased from confincment as the result of final court action on his petition.” This is, indeed, a specious argument Thc fact of the matter is, as the Army’s Judge Advocate General should well know, that under the decisions of the Supreme Court of the United States the Federal courts have no power to free an accused in a habeas corpus procced- ing if the tribunal which convicled him in the first instance had jurisdiction of the accused and of the offense, unless 1t could be said that there was an abuse of due process. No matter how great the miscarriage of Justice, no matier how inordinate the sentence, no matter how contrary to conscience the action of the military tribunal may have been, the Federal courts are powerless to intervene unless the military court either acted without jurisdiction or without due process. Mark this, Mr. President, the fact that the clemency boards appointed by the Secretary of War found it necessary to reduce or remit sentences in 27,500 cases, or 85 percent of all the cases revicwed by them, is in itself a complete refuta- tion of the claim of the effectiveness of the present military-appeals system. The record is a sorry record, and it stands on its face in complete rebuttal to the Judge Advocate General of the Military Establishment. I certainly do not mean to imply that all cases tried by the military courts re- sulted in injustices, but I believe that 1t is fairly obvious that any system of jus- tice which can result in such miscar- riages of justice requires revision. In justice to the Army's boards of review, I should like to make the point which the Judge Advocate General did not make, namely, that until the passage of the Elston Act, which became effective on February 1, 1949, the boards of review had no power to pass upon the weight of evidence, so that if there was any evi- dence in the record sufficient to support a finding of guilty, the board of review FEBRUARY 3 was compelled to affirm the conviction. The Elston Act for the first time gave the boards of review the power to set aside a finding of guilty if they fclt it was contrary to the weight of evidence. I wish to say, although he is not on the floor at the present time, that I think the country 1s indebted to the junior Senator from Missouri [Mr. Kem | for the fight he put up on the floor of the Senate at the time these amendments with respect to the Elston Act were adopted by this body. What was done through the Elston Act does not, however, remove the need for a court which can function inde- pendently as a court of appeals for all the services. The suggestion made by the Judge Advocate General of the Army that a Court of Military Appeals com- posed of the Judge Advocate Generals of all the services should be established does not fill the need. What we need is a court which will be concerned pri- marily with justice and not a court which will mcrely reflect the individual views of the Judge Advocate Generals as to the requirements ol the services. The opportunity for give and take among tie services in a court composed of the three Judge Advocate Generals—and I say this without any intention of 1m- puegning the present Judge Advocate General—is too great to assure public confidence in its decisions It must be remembered, Mr. Presi- dent, that it is as important for the personnel of the armed services and those at home who are dear to them to feel that their rights as American citi- zens are not lost when they enter their country’s service as for these rights to be preserved in actuality. I can think of no greater assurance of justice to them than a supreme appellate court comprised of civilians appointed by the President with the advice and consent of the Senate—a court to which they will have the right of appeal—a court which will function outside the particular branch of the service by which they were convicted. But to maintain public confidence such a court must be free of the slightest imputation of political or military pres- sure. For this reason, I believe that the Senate amendments to H. R. 4080, by which the terms of the members of the court are reduced from life or during ood behavior to 8 years, are inadvisable, Under article 67 of the Senate version of H. R. 4080 not only are the terms of the judges lhmited to 8 years but their pension rights do not accrue until they have served at least 10 years—in other words, unless they have been reap- pointed. This provision permits pres- sure to be placed upon the judges Curing their initial term of office. By reason of the limitation upon the tenure of the judges, individuals with outstanding qualifications may be unwill- ing to give up larger incomes in order to accept appointment to the court. Fur- ther, this limitation destroys the stand- ing of the Court of Military Appeals as “a court of the United States” as defined in section 451 of the Judicial Code (U. S. C, title 18),
1950 Finally, as it would seem from the gen- eral provisions of article 67 that it was the intendment of the Senate to place the Court of Military Appeals on a parity with the United States Courts of Appeals, the Judges of which serve for life or dur- ing good behavior, the Senate amend- ment is inconsistent with this primary purpose. While I am on the subject of the quali- fications for personnel of the Court of Military Appeals, I should like to advert to a section of the Senate version of H.R. 4080 which deals with the qualifications of the Judge Advocate Generals of the services. The House version of section 13 of article 140 provides that the Judge Advocate Generals exclusive of the pres- ent incumbents “shall have at least 8 years’ cumulative experience in a Judge Advocate’s Corps, Department, or Office, the last 3 years of which, prior to ap- pointment shall be consecutive.” The Senate version omits this requirement limiting the requirement of service to “not less than a total of 8 years’ experi- ence in legal duties as commissioned officers.” The omission of this provision would make eligible for appointment as Judge Advocate General an officer who had never been a member of a Judge Advo- cate’s Corps so long as he had had 8 years’ experience in legal duties—even though his experience had been obtained early in his career in the performance of limited and relatively unimportant duties wholly unrelated to the courts-martial system, and the officer had had no con- tact with the work of a judge advocate for a score of years or more. Surcly such an officer should not be vested with the powers reposed in the Judge Advocate General of the Army or of the Navy or of the Air Force. If we now consider the matter of eli- gibility for service on the Court of Mili- tary Appeals in connection with eligi- bility for service as a Judge Advocate General, we find this startling result: The Judge Advocate General shall be required to have but 8 years of legal experience in the services, of a nature unspecified. The Court of Military Ap- peals, it is urged by the Army’s Judge Advocate General, should be composed of the Judge Advocate Generals of the three services. Therefore, the Court of Mili- tary Appeals, if this point of view were to be heeded, could consist of three offi- cers none of whom need have had more than 8 years’ military experience, so long as they had been admitted to practice in a Federal court or the highest court of a State or Territory. If this is the type of court which is to have the final word in disposing of the cases of our fellow citizens in the armed services, we had best abandon any pretense to competent military justice. I strongly urge the retention of article 67, amended to provide life tenure for the judges of the Court of Military Ap- peals, and the amendment of article 140 (13) so as to restore the House version of this article. Mr. President, I have sought in this brief time this afternoon to set out my major reasons for dissenting from the report of the Armed Services Commit- CONGRESSIONAL RECORD—SENATE tee in respect to the pending bill. It will be most unfortunate if the Senate of the United States this afternoon hastens to take a vote on this measure before Senators have had ample oppor- tunity to study and consider the objec- tions I have raised this afternoon. I say that not because of any pride of au- thorship in these objections, Mr. Presi- dent, because in the first instance the objections were not mine. They are ob- jections which I came to adopt after I heard the able representatives of the bar groups and veterans’ groups point out to me in testimony and in letter and in memoranda the weakness of the bill in its present form. The amendments which are on the desk which I have presented are not my amendments in the sense that I, in the first place, proposed those amend- ments. Those amendments, I repeat, were proposed by the veterans’ organiza- tions, by the veterans’ groups, by the bar-association groups, to which I have referred, who are very much concerned about what they consider to be some se- rious defects in this particular bill. The chairman of the Scnate Commit- tee on the Judiciary wants to have the bill referred to his committee for the purpose only of affording that commit- tee the opportunity of going over the bill so it can give its advice and opinions to the Armed Services Committec in re- spect to the objections. The reason for this position is, I understand, that the chairman of the Committee on the Ju- diciary also has come to the conclusion that at least a prima facie case exists in favor of the objections and the pro- posed amendments which I am offering here this afternoon. Therefore, Mr. President, I sincerely hope that the Senate of the United States will not rush into a vote on the bill this afternoon. I sincerely hope that the majority leader will at least permit the bill to go over until next week for a vote so that the Members of the Senate over the week end will have the oppor- tunity to study and analyze the objec- tions of the committee of the American Bar Association, of the group in the New York Bar Association previously referred to in my remarks, and the objections of the veterans’ organizations. I think they are entitled to a much more careful con- sideration than can possibly come to them in the short few minutes they will receive this afternoon if the Senate now rushes into a vote. Mr. President, as I said at the begin- ning of my remarks, it is necessary for me to hasten immediately to a confer- ence with the Secretary of State. Iam sure I will be back in the Senate Cham- ber by 5 o’clock. I sincerely hope that if a vote is to be taken this afternoon, I be extended the courtesy of a postpone- ment of a vote until 5 o'clock, so that I can get back here and call up my amend- ments for a vote on them. Mr. President, I wish to repeat that I desire very much, in behalf of the vari- ous veterans’ organizations and bar groups who are behind the amendments I have offered this afternoon, to have a record vote on the amendments, It is only fair that Members of the Senate 1443 stand up and be counted on the record as to whether they want to go on record as supporting a continuation of com- mand control over the military courts of justice within the Military Establish- ment. Mr. KEFAUVER. Mr. President, be- fore the Senate from Oregon leaves the Chamber, I wish to ask him a question. Mr. MORSE. I shall be very happy to have the Senator do so. Mr. KEFAUVER. I shall speak briefly in response to the very able presentation by the Senator from Oregon, but if no other Senator wishes to speak, and the Senator shall proceed to vote, does the Senator from Oregon desire that I offer, on his behalf, the amendments he has presented? Mr. MORSE. Mr. President, I shall appreciate it very much if the chairman of the subcommittee of which I am a member will offer the amendments in my absence, if the Senate comes to the point of voting in my absence. Mr. President, it is a matter of very much embarrassment to me that I have an appointment which conflicts with con- sideration of the bill on the floor of the Senate, and which may cause me to be off the floor at a time when a vote may be taken on the amendments I have pre- sented. However, I assure the Senate that the conference I have spoken of with the Secretary of State at 4:30 o’clock is of such vital importance that I must keep the appointment, even if it means that I shall miss the opportunity to vote on my amendments. Mr. KEFAUVER. Mr. President, I appreciate the situation of the Senator from Oregon [Mr. Morse] and the neces- sity for him to keep his appointment for a conference, and I shall offer the amendments on his behalf when the time comes, if the Senator is not then present. Mr. President, most of the matters which have been discussed by the dis- tinguished Senator from Oregon have been thoroughly considered and gone over time after time in the history of this proposed legislation. First the whole question was considered at great length by the Committee on Armed Services of the House of Representatives, where hearings were had over a period of 5 weeks. That committee received ex- pert advice from various bar associa- tions, service associations, and repre- sentatives of the armed services them- selves. The matter of command control was fully presented to the members of the House committee. The House commit- tee, after considering the subject fully, by unanimous vote determined against the proposal of the American Bar Asso- ciation which is incorporated in one of the amendments of the distinguished Senator from Oregon. Very briefly, Mr. President, this {s the issue in that connection. The present system and the system provided for in the bill under consideration, House bill 4080, provide that a commanding officer shall have the right to convene a court martial. That has been the law for a long time. Then the accused has a right
1444 of one peremptory challenge. The ac- cused has the right to legal counsel to represent him. Under the provisions of the pending bill the legal counsel must be a lawyer. After the case has been determined, if the accused has been convicted, then the case must be judged by the com- manding officer as to legal sufficiency. Then under the provisions of the Dill there is an automatic appeal to a board of review, where the case must be dis- missed if the board finds that legal evi- dence is not sufficient. Mr. President, the bill gives a great many more rights and protections to the accused than he has at the present time. For instance, the Kem amendment to the Selective Service Act of the Eightieth Congress provides that the accused shall have legal counsel to represent him only if available, and on many occasions legal counsel has not been found available to represent him. The bill makes it man- datory that his counsel be a lawyer. Furthermore, Mr. President, in that portion of the Kem amendment which is included in House bill 4080 as article 37, it is provided that it shall be unlawful for the commanding officer to try to in- fluence the outcome of a case, or to reprimand a court for its action. In article 98, we have included another protection to prevent interference by the commanding officer in court pro- ceedings. Under that article it is not only improper and illegal for him to try to influence the decision of the court, but article 98 makes it an offense which would make the officer subject to court martial That is an added protection. The difficulty in trying to have a panel to try anyone accused in military pro- ceedings comes about in this way: If there should be a panel, it would mean that a large number would be immo- bilized for any other purposes. If selec- tion is to be made of someone from a penel, the panel will have to remain and be unevailable for other military serv- ice, because an accused will have the right to select someone from that panel. That would not be so bad in the case of the Army But in the case of the Navy it would, according to the naval authorities who testified before the House committee and the Senate com- mittee, be absolutely unworkable. Let us consider a case which is to be tried on shipboard. The law provides, and ccrrectly so, that the service mem- bers of a court must not be in the same unit with the accused, so that they would not be particularly buddies of his. If a panel were required for a court martial to try someone who might be accused of an offense, I do not know where it would come from. An accused would have to be incarcerated perhaps over a period of many weeks and, in some cases, many months, before he could be brought back to shore, where a panel would be avail- able to try him. The amendments suggested by the American Bar Association and proposed by the Senator from Oregon [Mr. Morse] provide that the commanding officer shall select the panel and that from the panel so selected and immobilized from other service during the time the members of CONGRESSIONAL RECORD—SENATE the panel are waiting to try a court- martial case the judge advocate shall select the particular court to try an accused. It does not seem to me and to the services—and most of the witnesses took the same position—that there is very much difference between having an accused tried by a panel selected by the commanding officer and having a com- manding officer select the particular court which is to try the accused. Under the provisions of the Articles for the Government of the Navy an ac- cused has no peremptory challenge. That privilege would be extended to the accused by the bill. So taking it all in all and considering the advice of those who have intimate knowlcdse of mih- tary service, the fact that there would be a considerable burden in having a large number of persons immobilized and kept from other duty during the time they constitute a panel to try in- fractions, and the difficulty of applying this system to the Navy, in view of the other protections which are provided in H. R 4080, the committee came to the conclusion that it should not upset the present situation with respect to com- mand control, but that we should give the added protections provided in the pending bill. I am certain that the out- come will be a great deal better and more satisfactory than it has been in the past. Mr. TYDINGS. Mr. the Senator yield? Mr. KH FAUVER. I yield. Mr TYDINGS I should like to ask the distinguished Senator in charge of the bill 1f it is not conceded by everyone who has gone to any trouble to investi- gate the provisions of this bill, as they were investigated by the House of Repre- sentatives and by the Armed Services Committec, and others who are inter- ested in the measure, that from begin- ning to end the bill is an attempt to liberahze the provisions of the old Ar- ticles of War and the Articles for the Government of the Navy dealing with courts martial and to protect to a degree never before written into the law in- dividuals who may be charged with in- fractions. Mr. KUFAUVER. That is definitely correct. The bill contains at least 10 improvements in the law which give additional protection to a serviceman who is accused of a violation of the code. Mr. TYDINGS. Mr. President, will the Senator yield further? Mr. KEFAUVER. I yield. Mr. TYDINGS. The improvement flows from un investigation and exami- nation into alleged complaints against the old system, the causes for which complaints the bill attempts to correct, so that they will not arise in the future. Mr. KEFAUVER. That is exactly cor- rect. That is the sentiment of everyone. Mr. TYDINGS. The only reason the system was not put on a completely civilian basis similar to that prevailing in civilian courts was that the peculiar cir- cumstances of some of the cases, particu- larly cases involving persons who wear the uniform, would not permit it, be- cause it would be so foreign to the whole theory of discipline that it would not be President, will FEBRUARY 8 feasible to carry the system to the point where accused servicemen would be tried in civilian courts. Obviously there would have to be military courts to try many of these offenses. Mr. KEFAUVER. I agree with the distinguished chairman of the commit- tee. I believe the Senator from Oregon (Mr. Morse] admitted that we must have a different system for the trial of military offenders. Mr. TYDINGS. I think it fair to state also to the Senate that the Senator from Oregon [Mr. Morse! has stated to the committee, and perhaps to the Senate, that the bill is a distinct improvement on the existing system, and that there are only certain phases with respect to which he would like to amend it. Basi- cally he is not opposed to much of the bill and approves much of the bill as it has come from the committee. Is that cor- rect? Mr. KEFAUVER. Yes; that is correct. The Senator from Oregon believes that there are about 10 or 12 points which represent great improvements in courts martial, and there are only two or three respects in which he disagrees. He thinks the committee should have gone further. Those two or three points are not back- ward steps. They represent largely a retention of what is already in the law. The Senator from Oregon was most complimentary with respect to the pro- vision for a Court of Military Appeals, by which, on matters of law and on matters referred to the court by the Judge Advocate General uniformity will be brought about among all the services and in all theaters of activity in court- martial procedure and in the punish- ments which may be imposed. It 1s true, as was stated by the Senator from Ore- gon, that 1n 27,500 cases since the end of World War II various boards changed the decisions. That would be impossible under the proposed procedure because the general supervision, unification, and direction of the cases from all the serv- ices will be in the Court of Military Ap- peals, which is a great step toward ci- vilian influence in our military justice. So we have gone all the way with the distinguished Senator from Oregon ex- cept with respect to the removal of mili- tary control. We have made it. a court- mertial offense for a commanding offi- cer to attempt to influence the court or to reprimand the members of a court for their actions. We have given a great many protections to the accused. In the light of the testimony of representatives of the services, representatives of most of the service associations, and of the Judge Advocate Generals who have tes- tified, and in the hght of the studies of the Morgan committee, as well as the unanimous conclusion reached by the House committee, the committee did not feel justified at this time in abandoning provision for the selection of the court by the commanding officer. Mr. President, while the American Bar Association recommended a panel from which the court would be selected, the New York State Bar Association made exactly the opposite recommendation. So even the bar associations are not unanimous on this point.
1950 I hope that the amendments of the Senator from Oregon will be voted down. In line with my agreement with the Senator from Oregon, I now offer the various amendments which he has sub- mitted. The PRESIDING OFFICER. Does the Senator desire that the amendments be read at this point or only printed in the REcorD? Mr. KEFAUVER. I do not think the Senator from Oregon would want all the amendments read. I ask unanimous consent to have them printed in the ReEcorp at this point. The PRESIDING OFFICER. Without objection it is so ordered. The amendments offered by Mr. Kr- FAUVER for Mr. Morse are as follows: On page 107, betwcen lines 5 and 6, insert two new paragraphs as follows: “(15) ‘Appointing authority’ shall be cone strued to refer to a commanding officer au- thorized to appoint a summary court or a panel of military personnel from whom shall be designated the members of general or spe- cial courts martial. “(16) ‘Convening authority’ shall be con- strued to refer to those persons and officers authorized to designate the military per- sonnel to serve as members of general or spe- cial courts martial. Wherever in these arti- cles reference is made to an officer exercising peneral or special court-martial jurisdiction, such reference shall be construed to mean the convening authority with power to desig- nate the members of such court martial.” On page 112, line 4, strike out “Convening” and insert in lieu thereof “Appotnting ” On page 117, beginning with line 10, strike out all down to and including line 13, and insert in lieu thereof the following: “(C) if imposed by an officer authorized to exercise appointing authority with respect to general court martial, forfeiture of one-half of his pay per month for a period not excecd- ing 3 months,". On page 118, line 8, strike out the word “or” On page 118, line 7, strike out the period and insert “; or.” On page 118, between lines 7 and 8, insert the following: “(G) if imposed by an officer authorized to exercise appointing authority with respect to special court martial, forfeiture of one-half of his pay for a period not exceeding 1 month” On page 123, beginning with line 7, strike out all down to and including line 21, and insert in lieu thereof the following: “(8) the senior member of the Judge Ad- vocate Gencral’s Corps attached or assigned to a territorial] department, an army group or an army, and such other member of the Judge Advocate General's Corps as may be designated by such senior member; “(4) the senior legal specialist attached or assigned to a fleet or to a naval station or larger shore activity of the Navy beyond the continental limits of the United States; “(5) the senior judge advocate attached or assigned to an air command or an air force, and such other judge advocate as may be designated by such senior judge advo- cate; “(6) such other members of the Judge Advocate General’s Corps, legal specialist or Judge advocate as may be designated by the appropriate Secretary of a Department; or “(7) any other member of the Judge Ad- vocate General’s Corps, legal specialist or the judge advocate in any of the armed forces when empowered by the President.” On page 123, Mne 22, strike out “com- manding officer” and insert in lieu thereof “convening authority.” CONGRESSIONAL RECORD—SENATE On page 124, beginning with line 12, strike out all down to and including line 15, and insert in lieu thereof the following: “(3) the commanding officer of an army corps, & division, a brigade, a regiment, de- tached battalion or corresponding unit of the Army; "“(4) the commanding officer of an air divi- sion, a wing, group, or scparate squadron of the Air Force;”. On page 126, line 8, strike out “Who may serve on courts martial” and insert in lieu thereof “Qualifications and appointment of members of courts martial.” On page 127, beginning with the word “Where” in line 1, strike out all down to and including line 5, and insert in leu thereof the following: ‘Where such persons cannot be obtained the court may be con- vened and the trial held without them, but the appropriate commanding officer, whether the appointing authority or the convening authority, shall make a detalled written statement, to be appended to the record, stating why they could not be obtained.” On page 127, beginning with line 14, strike out all down to and including the word “temperament” in line 18, and insert tn lieu thereof the following: “(2) The President of the United States, the Secretary of a Department, and com- manding officers, shall appoint as members of courts martial, and of panels from which general and special courts martial shall be designated, such persons as, in thetr opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” On page 127, between lines 21 and 22, ine sert the following new subdivision: “(e) The commanding officers enumerated in subdivisions (2), (3), (4), (5), and (6) of article 23 (a) shall appoint qualified mili- tary personnel in thelr commands available for service as memrbers of general and special courts martial and shall forward a Hest of such personnel to the convening authority having general court-martial jurisdiction of thelr command, and such personnel shall constitute a panel from which the convening authority shall from time to time designate the members of general and special cuurts martial. Such commanding officers may withdraw names from such lists and may substitute others therefor, subject to the provisions of article 29 (a) ” On page 128, beginning with line 18, strike out all down to and including Mne 24, and insert in leu thereot the following: “(a) (1) For each general court martial the authority convening the court shall ap- point a defense counsel together with such assistants as he deems necessary or appro- priate. Each appointing authority, or if the court be convened by the President of the United States or the Secretary of a Depart- ment, then such person shall appoint a trial counsel, together with such assistants as he deems necessary or appropriate, who shall prosecute the charges originating in his command. “(2) For each special court martial the authority convening the court shall appoint a trial counsel and a defense counsel, to- gether with such assistants as he deems nece essary or appropriate. “(3) No person who has acted as investle gating officer, law officer, or court member in any case shall act subsequently as trial coun~ sel, assistant trial counsel or, unless exe pressly requested by the accused, as defense counsel or assistant defense counsel in the game case. No person who has acted for the prosecution shall act subsequently in the same case for the defense, nor shall any person who has acted for the defense act subsequently in the same case in the prose- cution.” 1445 On page 134, lines 16 and 17, strike out “to the officer exercising general court-martial jurisdiction” and insert in lieu thereof “to the appointing authority for the command.” On page 134, beginning with line 21, strike out all down to and including line 2 on page 135, and insert in lieu thereof the following: “(a) Before directing the trial of any charge by general court martial, the appoint- ing authority for the command shall refer 1t to his staff Judge advocate or legal officer for consideration and advice. The appointing authority shall forward the charge to the convening authority, who shall thereupon refer the charge to the trial counsel ap= pointed by such appointing authority, for prosecution before a general court martial designated by the convening authority The convening authority shall not refer a charge to a gencral court martial for trial unless it has been found that the charge alleges an offense under this code and is warranted by evidence indicated in the report of investi- gation.” On page 137, line 3, after “any”, insert “appointing ” On page 153, beginning with line 14, strike out all down to and including line 3 on page 154, and insert in leu thereof the following: “(a) After every trial by a general court martial, and after every trial by a special court martial convened by a member of the Judge Advocate General's Corps, a legal specialist, or a judge advocate, the record shall be forwarded to the convening au- thority, and action thereon shall be taken by him or by his successor. The convening authority shall, unless he shall disapprove the sentence or order a rehearing, forward the record, and if the record be of a trial by general court martial, then with his written opinion and review thereof, to the appoint- ing authority who forwarded the charge to him, or to such officer's successor in com- mand, and the latter may mitigate, remit, or suspend the whole or any part of the sentence. “(b) After every trial by a court martial, except as specified in subdivision (a), the record shall be torwarded to the convening authority and action thereon may be taken by the officer who convened the court, an officer commanding for the time being, a successor in command, or by any officer exer= cising general court-martial jurisdiction.” On page 154, beginning with line 5, strike out all down to and including the period fol- lowing the word “authority” in line 8 On page 156, beginning with line 14, strike out all down to and including line 5 on page 157, and insert in lieu thereof the tollowing: “(a) When the convening authority and the appointing authority have taken final action in a general court-martial case, the appointing authority shall forward the entire record, including the action and the opinion and review of the convening authority, and any order which the appointing authority may have made pursuant to article 60 (a) to the appropriate Judge Advocate General. “(b) Where the sentence of a special court martial as approved by the convening au- thority includes a bad-conduct discharge, whether or not suspended, and such dis- charge shall not have been remitted by the appointing authority, the record shall be for~ warded to the officer exercising general court- martial jurisdiction over the command to be reviewed in the same manner as a record of trial by general court martial or directly to the appropriate Judge Advocate General to be reviewed by a board of review. If the sentence as approved by an officer exercising general court-martial jurisdiction includes a bad-conduct discharge, whether or not sus« pended, the record shall be forwarded to the appropriate Judye Advocate General to be reviewed by a board of review.”
1446 On page 166, line 16, before “officer” insert “commanding ” On page 166, beginning with line 20, strike out all down to and including the word “probationer” in line 23, and insert in lieu thereof the following: “(b) The record of the hearing and the recommendations of the commanding offi- cer having special court-martial jurisdiction shall be forwarded for action to the com- manding oifcer exercising general court- martial appointing authority for the com- mand.” Mr. HENDRICKSON. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER. clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. HENDRICKSON. Mr. President, I ask unanimous consent to withdraw the suggestion of the absence of a quorum and that proceedings under the call be suspended. The PRESIDING OFFICER. Without objection, it is so ordered. The question 1s on agreeing to the amendments offered by the Senator from Tennessee | Mr. KEFAUVER] on behalf of the Senator from Oregon to the com- mittee amendment. Without objection, they will be considered en bloc. [Put- ting the question. | The amendments were rejected. The The PRESIDING OFFICER. The committee amendment 1s open to amendment. Mr. KEFAUVER. Mr. President, I call up my amendment B, which com- prises a group of technical amendments to the language and a slight rewording in order to make changes in the refer- ences to statutes. I ask that the amend- ments be considered as having been read, and that they be considered en bloc. The PRESIDING OFFICER. Without objection, it is so ordered, and the amendments will be considered en bloc. The question is on agreeing to the amendments lettered B, offcred by the Senator from Tennessee. The amendments were agreed to. The PRESIDING OFFICER. The question now Is on agreeing to the com- mittee amendment as amended. [Put- ting the question | Mr. HENDRICKSON. Mr. President, I suggest the absence of a quorum. Mr. KEFAUVER. Mr. President, may we have a vote on the committee amend- ment, as amended, without having the absence of a quorum suggested? The PRESIDING OFFICER. The question 1s on the committee amend- ment, as amended, not on the final pas- sage of the bill. Mr. HENDRICKSON. Then I tempo- rarily withhold the suggestion of the absence of a quorum. The PRESIDING OFFICER. The question is on agreeing to the committee amendment, as amended. The amendment, as amendcd, was agreed to. The PRESIDING OFFICER. The bill is open to further amendment. If there be no further amendment to be offered, the question is on the engrossment of the amendment and the third reading of the bull. CONGRESSIONAL RECORD—SENATE The amendment was ordered to be engrossed and the bill to be read a third time. The bill was read the third time. The PRESIDING OFFICER. The bill having been read the third time, the question is, Shall 1t pass? Mr. HENDRICKSON. absence of a quorum. The PRESIDING OFFICER. The Secretary will call the roll. Mr. KEFAUVER. Mr. President, I ask that we may have the vote without a quorum call. I wonder whether the distinguished Senator will withdraw his suggestion of the absence of a quorum, and let us vote. Mr. HENDRICKSON. I should like to accommodate the distinguished Sen- ator, but on a bill of this importance, I think a quorum should be present. The PRESIDING OFFICER. The ab- sence of a quorum is suggested. Mr. SALTONSTALL. Mr. President, will the Senator yield for a question? Mr. HENDRICKSON. I yield. Mr. SALTONSTALL, Will it not be possible, in line with the request of the Senator from Tennessee, to have a show of hands on a request for the yeas and nays, in order to bring the matter to a head; then, if the yeas and nays are ordered, a quorum will be developed on the vote. Mr. HENDRICKSON. Of course, Mr. President, that 1s a possible procedure, but I do not think it is well to follow it under the circumstances in the case of a bill of this importance. The PRESIDING OFFICER. clerk will call the roll. The Legislative Clerk called the roll, and the following Senators answered to their names: I suggest the The Aiken Humpkhicy Mundt Brew ter Hunt Murray Bricker Ives Neely Bridges Jenner O'Conor Butler Johnson, Colo. O'Mahoney Capehart Johnson, TeX Robertson Chapman Johnston,S C Russell Connally Ke!auver Saltonstall Cordon Kem Schoeppel Darby Kor Smith, Maine Donnell Knowland Smich,N J. Douglas Lehman Sparkman Dworshak Lodge Stennis Ecton Lucas Taft E lender McCarran Tayior Ferguson McCarthy Thomas, Uiah Fulbr).sht McCleilan Tobey George McFarland Vydings Gurney McKellar Watkins Hayden McMahon Wherry Hendiickson Magnuson Wiley Hill Malone Willams Blooy Maybank Withers Hoiland Morse The PRESIDING OFFICER. A quo- rum 1s present. The bill having been read the third time, the question is, Shall it pass? Mr. McCARRAN and other Senators asked for the yeas and nays. The yeas and nays were ordered, and the legislative clerk called the roll. Mr. LUCAS. I announce that the Senators from New Mexico LMr. ANDER- s50N and Mr. CHavez], the Senator from Virginia [Mr. Byrp], the Senator from California [Mr. Downey], the Scnator from Delaware [Mr. Frear], the Senator from Iowa (Mr. GILLETTE], the Senator from North Carolina |Mr. Granam], the FEBRUARY 8 Senator from Florida [Mr. Pzpprr], and the Senator from Oklahoma IMr. Tuomas] are unavoidably detained on official business, The Senator from Mississippi [Mr. EasTuanp! is absent on official business. The Senator from Connecticut [Mr. Benton], the Senators from Rhode Is- land [Mr. Green and Mr. Leany], the Senator from West Virginia |[Mr. K11- GoRE], the Senator from Louisiana [Mr. Lone], and the Senator from Pennsyl- vania [Mr. Myers] are absent on public business. I announce further that if present and voting, the Senators from New Mexico [Mr. ANDERSON and Mr. CHavez!, the Senator from Virginia [Mr. Byrp], the Senator from Connecticut [Mr. BenTon] the Senator from California [Mr. Downey], the Senator from Iowa [Mr. GILLETTE], Lhe Senator from Nortn Caro- lina [Mr. GraHam |, the Senatcrs from Rhode Island [Mr. Grern and Mr. Lreauy], the Senator from West Virginia {Mr. Kiicorel, the Senator from Penn- sylvania |[Mr. Myers], the Senator from Florida (Mr. Peprrer], and the Senator from Oklahoma |Mr. THomis] would vote “yea” Mr. SALTONSTALL. I announce that the Senator from Vermont I[Mr. FLaANvbERS], the Senator from Iowa [ Mr. HicKENLoorer!, the Senator from North Dakota [Mr. Lancer], the Senator from Colorado |Mr. MILLIKIN], and the Sen- ator from Minnesota |Mr. THyr! are absent by lcave of the Senate. The Senator from Michigan VANDENEERG] is necessarily absent The Senator from Pennsylvania [Mr. Martin! is absent on official business. The Senator from Washington [Mr. Cain! and the Senator from North Dakota [Mr. Youne!] are detained on official business. The result was announced—yeas 62, nays 9, as follows: [Mr. YEAS—62 Aiken Hoey Maybank Brewster Holland Mundt Bricker Humphicy Murray Bridges Hunt Neely Butler Jenner O'Conor Capchart Johnson, Colo. O’Mahoney Chapman Johnson, Tex Robertson Connally Johnston,S C Russell Cordon Ketauver Saltonstall Darby Kom Smith, Maine Donnell Kerr Smith, N J Douglas Knowland Sparkman Dworshak Lehman Stennis Ecton Lodge Taft F'lender Lucas Taylor Ferguson McCarthy Tydings Fulbright McClellan Watkins George McFarland Wheriy Gurney McKellar Wiley Heyden McMahon Withers Hill Magnuson NAYS. -9 Hendrickson Malone Thomas, Utah Ives Morse Tobey McCarran Schoeppel Williams NOT VOTING—25 Anderson Gillette Millikin Benton Qrahum Myers Byrd Gicen Pepper Cain Hickenlooper Thomas, Okla Chavez Kilgore Thye Downey Langer Vandenberg Eastland Leahy Young Flanders Long Frear Martin So the bill (H. R. 4080) was passed.
1950 Mr. KEFAUVER. Mr. President, I move that the vote by which the bill was passed be reconsidered. Mr. SALTONSTALL. I move that the motion of the Senator from Tennessee be laid on the table. The motion to lay on the table was agrced to. CONSTRUCTION OF CERTAIN MILITARY AND NAVAL INSTALLATIONS Mr, TYDINGS. Mr. President, I move that the Senate proceed to the consid- eration of Senate bill 2440, Calendar No. 926. If the motion is agreed to, I shall then propose an amendment to the bill in the nature of a substitute. The PRESIDING OFFICER, clerk will state the bill by title. The Curer Cierk. A bill (S. 2440) to authorize certain construction at mili- tary and naval installations and for other purposes. Mr. TYDINGS obtained the floor. Mr. SALTONSTALL. Will the Sen- ator yield before he speaks? Mr. TYDINGS. Is the bill before the Senate? The PRESIDING OFFICER. Not yet. Mr. TYDINGS. I should like to have the motion acted on, and then I shall be glad to yield. The PRESIDING OFFICER. The question is on agreeing to the motion of the Senator from Maryland. The motion was agreed to; and the Senate proceeded to consider the bill (S. 2440) to authorize certain construc- tion at military and naval installations and for other purposes. Mr. TYDINGS. Mr. President, I send to the desk an amendment to the bill in the nature of a substitute. I ask that the clerk read it, but first I yield to my colleague, the Senator from Massa- chusetts. Mr. SALTONSTALL. Mr. President, sitting for the time being in the chair of the acting minority leader, I desire to ask the chairman of the Commitee on Armed Services a question. I know what is in the bill, and I know what the Sena- tor’s motion will be, and I agree with him in his position, but does he know of any opposition, or any feeling on the part of any member of the muncrity party against the proposed authoriza- tion of public works for the Military Establishment? Mr. TYDINGS. I do not, and if the Senate will bear with me, I should like to make a brief statement about the bill. But I can answer the Senator now that I know of no opposition on either side of the aisle to the bill as it stands. Mr. President, I should like to make a brief statement about the bill for the information of my colleagues. The Committee on Armed Services, after extensive hearings by the full com- mittee, unanimously reported S. 2440, the military construction authorization bill. This bill was reported to the Sen- ate on August 15 of last year and has been on the Senate Calendar since that date. As indicated by the title, the purpose of this bill is to authoriz2 the construc- The CONGRESSIONAL RECORD—SENATE tion of specific public works facilities required by the Department of Defense at military installations in the continen- tal United States and at oversea loca- tions, and to authorize the appropria- tion of funds with which the facilities can be constructed. This bill represents the first unified construction legislation developed and presented by the Department of Defense. For the first time the Congress is able to review the first priority public works requirements of the three military serv- ices as a whole in a single bill. I may say that heretofore cach of the services presented its program without any particular relationship to the other services. The pending bill represents a relativity in the importance of projects in the Army, Navy, and Air Force. Title I of the bill includes the facilities authorized for the Army, title II for the Navy, title III for the Air Force, and title IV provides the general provisions of the bill applicable to all three services. All these projects were carefully screened in the office of the Secretary of Defense prior to their submission to Congress. The Research and Devclop- ment Board, a high-level group con- cerned with this most vital function of our defense establishment, reviewed all research and development facility proj- ects to insure that each is critically re- quired, that there is no duplication, and that each facility can be utilized to the maximum after construction. The following is important, and I hope Senators will listen to it. The Joint Chiefs of Staff were con- sulted as to the strategic and operational requirements of the projects. The Chairman of the Munitions Board, as the personal representative of the Secretary of Defensc, developed this integrated program of facility construction. I am informed that no consideration was given to the service origin of any project and it was a case of the necessity and justification measured one against the other. During the war practically no perma- nent construction was accomplished by the military. The urgency of their re- quirements for facilities, the scarcity of materials and labor, and the essentiality of economy made permanent construc- tion neither desirable nor feasible. The temporary facilities built during this period with a 5-year expected life still today constitute the hulk of the military physical plant. Most of these facilities have already passed their economic life, are expensive to maintain and inefficient to operate on a permenent basis. How- ever, where these facilities are available and can be used, they are not being re- placed. Since the end of the war only relatively minor amounts of new con- struction have been authorized to the services so that there fs no backlog of authorizations to allow the services to carry on their permanent construction programs. Housing ts still in critical need by all the services. I am informed that the Wherry bill, which I joined in sponsoring during the first session, has and will ma- terially assist in the reduction of this 1447 shortage. It is not, however, the com- plete answer to military housing, and the construction of additional perma- nent public quarters at some installations in the United States and most overseas locations is necessary. There is a con- siderable amount of money authorized for housing in this bill, all of which is needed and cannot be provided under Public Law 211. As Ihave stated to the Senate on many occasions, research and development is one of the most important functions of the military services. Nothing would be so disastrous as being second best in our offensive and defensive weapons of war. There are numerous projects in the bill for research and development facilities. The Research and Develop- ment Board, the Joint Chiefs of Staff, and the Secretary of Defense have told the Armed Services Committee that these facilities are necessary, not 1 or 2 years from now, but at once. If we de- lay, it may mean that we will be sec- ond best in the development of these highly strategical and scientific weapons. As originally introduced the bill pro- vides a total monetary authorization of approximately $634,000,000. It will be recalled that near the end of the first session, when it was apparent that S. 2440 would not be enacted prior to adjourn- ment, at the urgent request of the Joint Chiefs of Staff, some of the authoriza- tions provided in this bill for Alaska and Okinawa were submitted in a new bill which was enacted by the Congress and became Public Law 420. Thus, some of the authorizations for Alaska and Oki- nawa have been provided. In addition, the Secretary of Defense has recently re- viewed S. 2440, in view of the decreased military budget for this coming fiscal year, and has recommended reduction or deletions in the amount of approximate- ly $19,000,000. The Armed Services Com- mittee have considered these recommen- dations and have reportcd an amend- ment to S. 2440 in the nature of a sub- stitute carrying the reductions hercto- fore referred to. This amendment eliminates the authorizations for Alaska and Okinawa which have already been enacted and includes the reductions or deletions recommended by the Secretary of Defense. There are no additional projects included in the amendment. The total authorization provided in the amendment is approximately $500,030,- 000 which is a reduction of $135,000,000 from the original bill. That has been achieved by additional] screening, among other things. It is not the intent of the Department of Defense to request the appropriation of this total amount for the next fiscal year, Funds will be requested for those facilit:es most urgently needed. The balance will be requested in future years and will allow the services to plan their permanent construction in an orderly manner—I may say parenthetically— while using the temporary structures now in existence, so long as they are fit to be used before new construction be- gins. I should like to call the attention of the Senate to section 408 of the bill