The Law: Tough Test for Military Justice

ONLY the Army knows why it is so determined to prosecute six of its own officers in Viet Nam for executing an alleged double agent named Thai Khac Chuyen. Whatever the reasons, the murder trials of the Green Beret officers that are supposed to begin later this month could turn into the most sensational courts-martial in U.S. history. The result may be the severest test to date of the judicial system that has governed the military for almost 20 years—the Uniform Code of Military Justice (U.C.M.J.).

The code has been tested in the highest civilian and military courts this year by dissenting servicemen at home who complain of biased courts-martial, harsh sentences, prolonged pretrial imprisonment without bail and military efforts to stifle free speech. In a decision last summer that restricts the military's authority to prosecute servicemen for off-base crimes, the U.S. Supreme Court questioned whether a court-martial is really a fair trial or just another means of enforcing discipline. "A civilian trial is held in an atmosphere conducive to the protection of individual rights," wrote Justice William O. Douglas for the court, "while a military trial is marked by the age-old manifest destiny of retributive justice."

Civilian Rights. Enacted by Congress in 1950, the U.C.M.J. set up three categories of military trial: 1) summary courts-martial, which try only enlisted men for minor offenses that have a maximum sentence of one month in prison or 45 days at hard labor; 2) special courts-martial, which mainly try enlisted men for crimes that carry a bad-conduct discharge and up to six months in prison; and 3) general courts-martial, which handle serious crimes that can lead to life imprisonment and even the death penalty.

The code entitled servicemen to lawyers in all general courts-martial but not necessarily in special courts-martial (which outnumber general courts-martial by more than 20 to 1) unless the prosecutor was a lawyer. Because of a scarcity of military lawyers, most defendants at special courts-martial were represented by officers without law degrees. The U.C.M.J. also set up the U.S. Court of Military Appeals in Washington, which has decreed that men in uniform are protected by a number of the safeguards in the Bill of Rights.

But civilian rules do not always work within the autocratic framework of the military. Under the U.C.M.J., the C.O. not only convened a general court-martial but appointed the prosecutor, law officer (judge) and veniremen for the court-martial board (jury); he even selected the defense counsel, though the accused could ask for another one. Thus the code did not eliminate the phenomenon known as "command control." Looking back on his experience as a Marine legal officer during the Korean War, Boston Trial Lawyer Joseph Oteri describes the C.O.'s influence on military courts this way: "The word always filtered down that the Old Man wanted such and such to happen. And, miracle of miracles, it always did." Within this system, a career officer assigned as defense counsel often helps the miracle along by pleading his client guilty. "There is no such thing as a truly vigorous attempt to defend your client in the military," complains a military lawyer in California, "except for those few willing to be branded as renegades."