Against the Evidence

Military Justice is to Justice as Military Music is to Music.
by Robert Sherrill.
Harper & Row. 234 pp. $6.95. (Revised edition, paperback, 240 pp., $1.95.)

The uproar about the court-martial of Lieutenant Calley—an uncomplicated conviction of premeditated murder on evidence which fully supported the verdict—shows the depth of the public’s interest, and also of its ignorance, in matters of military justice. The interest is fully justified: Here is a system of criminal law affecting more than three million Americans, and one which differs in many ways, some important, from civilian justice. Moreover, as a practical matter, a court-martial is the only court which could have tried such a crime as Calley’s—which, incidentally, the United States was bound by treaty to “bring before its own courts.”

I am afraid that the ignorance also is at least excusable. I look to see what book on the subject is most likely to be read by non-lawyers, and I find Robert Sherrill’s Military Justice Is to Justice as Military Music Is to Music, published in 1970 and recently reprinted (with minor revisions) as a paperback. It has been very widely reviewed, almost invariably with unstinting and unqualified praise. It has been accepted at face value by eminent politicians like Senator McGovern. Mr. Sherrill’s contribution to public information and understanding thus deserves careful examination.1

Mr. Sherrill’s specialty is ascending Pisgah-heights of moral indignation and from them preaching to the assembled multitude. This book, a polemic against military justice and the armed services generally, allows the fullest scope to his peculiar talents. At an early point (pp. 26-27), to select an entirely typical specimen of his technique of controversy, he describes a “cruel exchange” during a court-martial, in which the prosecutor, Captain Stephen J. Carlotti, “forced a psychiatrist to say on the witness stand, in front of [the accused], what was quite apparent from the evidence and did not need to be said—that the boy’s mother was a prostitute.” This, says Mr. Sherrill, soaring beyond moral indignation into moral outrage, “perfectly illustrates how the Army uses its court-martial procedure to dehumanize defendants.”

It would indeed have been a perfect illustration, had it been true. But a check on a primary source, Captain Carlotti himself, revealed that Mr. Sherrill had not got the facts quite right. (Carlotti, since returned to civilian life, was a student of mine a few years ago. I have in my file a photocopy of the relevant pages of the trial transcript, confirming his statement.) The questions were not asked by the prosecutor, but by civilian counsel for the defense, Terence Hallinan—who stands, of course, very high in the Sherrill hagiology. (But I wish to be fairer to Mr. Hallinan than Mr. Sherrill is to Captain Carlotti: The statement seems to have been volunteered by the witness and not “forced” by the questioner—although counsel usually has, or should have, a pretty good idea of what his own witness is going to say.)

Like greater practitioners of his art, Mr. Sherrill is generally careful not to cite checkable sources for his assertions and accusations; I probably would not have questioned his perfect illustration, had it not been for the one-in-a-thousand coincidence of my knowing young Carlotti. Nevertheless, some of his statements of fact and all of his statements of law can be verified or disproved by anyone with access to a law library. I did not conceive that my Hippocratic oath as a book reviewer required me to investigate each and every dubious allegation, nor could I have done so without a substantial (and improbable) grant from a foundation and the expenditure of several weeks or months—more time, in all likelihood, than Mr. Sherrill spent on his book. As the late Senator Joseph McCarthy should have taught us, it is far easier and quicker, and more fun, to fire off accusations than it is to dig up facts. It also sells better. In checking Mr. Sherrill’s statements of fact and law, I was thus forced to confine myself to those which, to the trained nostril, exhaled a particularly fishy aroma. There follows a random but representative sampling of my findings.

  1. “Lance Corporal William Harvey and Private George Daniels [were] sent to prison . . . for the crime of asking to talk with their commanding officer about the justice of black men being sent to Vietnam” (p. 41). They were in fact convicted of violating section 2387 of Title 18 of the United States Code, applicable to civilians as well as soldiers, which inter alia makes it illegal to cause or attempt to cause “insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States.” There is nothing illegal about asking to talk to a commanding officer about any subject whatever; Daniels did in fact talk with his company commander for several hours; none of the charges was in any way based on this conversation.
  2. Captain Joseph P. Kauffman was “packed off to Wiesbaden, Germany, for trial, too far away for his civilian attorney to help him” and convicted of “conspiring to sell information to the East Germans,” by evidence obtained in violation of his constitutional rights (p. 85). In fact, as Mr. Sherrill does not report, the Court of Military Appeals reversed Kauffman’s conviction on the conspiracy count precisely because it found that it was based on illegally-obtained evidence; it affirmed his conviction of failure to obey a regulation requiring military personnel to report attempts by representatives of the Soviet Union and East Germany to obtain military information, which rested on untainted evidence. When he brought suit in the civilian courts to have that conviction set aside, the United States Court of Appeals for the District of Columbia Circuit unanimously concluded that the military appellate court had “fully and fairly considered appellant’s claims of constitutional error and disposed of them in accordance with Supreme Court standards,” adding that Kauffman had been represented at his trial by “distinguished [civilian] counsel.”
  3. Mr. Sherrill quotes and apparently accepts as true a statement by defense counsel in one of the Presidio cases that the Army “refused to let us call” a civilian psychiatrist as an expert witness (p. 88). Article 46 of the Uniform Code of Military Justice specifically provides that “The trial counsel [the prosecutor], the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses.” The defense is free to put on the stand any expert witness who is willing to testify. If any Army legal officer purported to deny the right to call such a witness, which I very much doubt, there would be no reason for competent counsel to accept the denial.
  4. Colonel Earl Brown, the military judge in the court-martial of Captain Howard Levy, “left the Army for a post on the law faculty at Columbia University” (p. 123). Examination of the American Association of Law Schools’ annual Directories of Law Teachers for the period since the Levy trial does not reveal Colonel Brown’s presence on the faculty of Columbia or any other law school. (This seems to be merely an instance of slovenly reporting, for the allegation does not, so far as I can see, denigrate Colonel Brown or the Army or advance any of Mr. Sherrill’s other theses.) Colonel Brown is also described as “the top lawyer in the Judge Advocate General’s office,” but this is a trifling error by the Sherrill standards; elsewhere (p. 64) he betrays a truly startling ignorance of the realities of life in the Pentagon by describing a lowly lieutenant colonel, at most a one-feather Indian, as a “high officer in the Pentagon’s military personnel office.”
  5. “The Manual for Courts-Martial specifically states that courts-martial should not be convened unless the evidence is heavily stacked on the side of guilt” (p. 122). This is a highly idiosyncratic version of what I think must be the provision of paragraph 35 b of the Manual (which merely quotes article 34 (a) of the Uniform Code) that “the convening authority may not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under the code and is warranted by evidence indicated in the report of investigation.” So stated, the proposition is one with which few lawyers or laymen would quarrel.
  6. The United States violates the international law of war, as stated in paragraph 281 of its own Manual on the Law of Land Warfare, when civilians are evacuated from combat areas in Vietnam (p. 141). If Mr. Sherrill had taken the trouble to look at the Field Manual, he would have discovered that the provision in question (which, in fact, as the Manual plainly shows, is Article 42 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War) relates exclusively to the internment of enemy aliens resident in the territory of a belligerent. There is nothing in international law which forbids the government of South Vietnam to move its own nationals into refugee camps. Indeed, paragraph 43 of the Manual, following Article 26 of the Hague Regulations of 1907, is designed to encourage the removal of non-combatants from areas of combat.
  7. The Army is deliberately thwarting the enforcement of the Supreme Court’s 1969 decision in O’Callahan v. Parker, which limited the jurisdiction of courts-martial to “service-connected” offenses, by refusing to release those who were sentenced prior to that decision for crimes not meeting the test; the O’Callahan ruling, says Mr. Sherrill flatly, “is retroactive” (p. 177). In fact, a federal district court, as well as the Court of Military Appeals, has held that it is not; and the Supreme Court in a recent decision found it unnecessary to decide the question.
  8. “The Court of Military Appeals . . . does not feel bound by Supreme Court opinions, even for guidance. COMA considers itself an equal to the Supreme Court, and so it ignored the highest Court’s sentiments . . .” (p. 188). In fact, the Court of Military Appeals has repeatedly held that “to the extent that a particular procedure or right is determined by the Supreme Court to be constitutionally mandated, this Court is bound by that determination, since the Supreme Court is the highest tribunal in the federal judicial hierarchy.”



The listing and documentation of Mr. Sherrill’s errors, great and small, could literally be prolonged until the review is longer than the book. The errors of law are perhaps more forgivable than those of fact, for Mr. Sherrill is not a lawyer, and he seems to have relied on a number of flamboyant attorneys who, to put it as gently as possible, are neither very learned in military law nor very careful in their statements of fact about the cases they have lost. (Still, a good reporter would have talked to the other side and perhaps even looked at some of the books for himself.) There is, however, no excuse for some of Mr. Sherrill’s distortions of history. It is simply not true that “the purpose of the clause [Article I, section 8, clause (14) of the Constitution, which empowers Congress to “make rules for the government and regulation of the land and naval forces”—i.e., to pass Articles of War or the Uniform Code of Military Justice] was . . . simply to establish national armed forces” (p. 168); had Mr. Sherrill looked at the Constitution he would have learned that that purpose was accomplished by clauses (12) and (13), which authorize Congress to “raise and support Armies” and to “provide and maintain a Navy.” Nor is it true that clause (14) was “slipped . . . into the Constitution” or that it was “included only in the final draft and was never discussed or debated.” Clause (14) was in fact taken verbatim from the Articles of Confederation, and had been in them since the original draft of July 12, 1776, as Mr. Sherrill could have learned by consulting such standard sources as Farrand’s Records of the Federal Convention of 1787 and Jensen’s The Articles of Confederation. It is not true that when the Constitution was being drafted “everyone agreed” (p. 169) that soldiers should have the same rights as other citizens; the historical evidence is overwhelming that most of the framers would have agreed with the dictum of Chief Justice Chase, in a concurring opinion in 1867, “that the power of Congress in the government of the land and naval forces . . . is not at all affected by the fifth or any other amendment.” (Mr. Sherrill wrongly describes Chase’s dictum as a holding of the Court “which tossed away the serviceman’s rights to the protection of the Bill of Rights” [p. 186]. Actually the case, Ex parte Milligan, held that a civilian could not constitutionally be tried by a military commission at a time and in a place where the civilian courts were open.) But no matter what the draftsmen of the Constitution may have thought, it is today as clear as any constitutional question can be without a square holding of the Supreme Court that courts-martial are subject to much the same constitutional rules and review by the federal courts as are the criminal courts of the states. That the Supreme Court has not yet squarely so held results simply from the fact that it has not in recent years had to decide a case in which an error of “constitutional magnitude” had survived review by the military appellate courts. All of this seems to be unknown to Mr. Sherrill.

I could easily extend the list of gross historical errors. Indeed, the very title of the book (a remark attributed to Georges Clemenceau) is something of a perversion of history, for the Tiger of France, though a Radical and a Dreyfusard, was anything but a foe of the military. He used the Army to break the strikes in the Pas de Calais in 1906; he vigorously supported the extension to three years of the period of compulsory military service; he backed the ruthless mass courts-martial by which the French Army’s mutinies of 1917 were quelled. What he objected to in the Dreyfus case was not that an Army officer should be court-martialed for selling military secrets to the Germans, but that he should be convicted on evidence which the court knew to be forged or perjured. Mr. Sherrill predictably compares the Dreyfus case with the trial of Captain Howard Levy (pp. 98-99), but about the only similarity is that in each case the accused was a Jew. (Captain Dreyfus, unlike Captain Levy, was a super-patriot; he somewhat resented the intermeddling of the Radical Clemenceau, whose politics he disliked.) There was no contention that Levy had not done what he was charged with doing; the substantial issues, which both military and civilian courts have so far resolved against him, were whether the order which he disobeyed was a genuine order or “given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit”; whether the statements which he undoubtedly made to enlisted men were intended, and clearly likely, to produce “disloyalty and disaffection”; and whether, even if they were, the First Amendment permitted them to be charged as crimes. These are important questions, of fact and constitutional law, but they have no more in common with the Dreyfus case than Robert Sherrill has with Emile Zola.

If only in obedience to the laws of statistical probability, some of Mr. Sherrill’s denunciations of the Army are justified. On the evidence available to me, I believe that conditions in the Presidio stockade were far worse than Army regulations prescribe, although somewhat better than Mr. Sherrill says. I believe that on the facts and the law it was asinine to charge as “mutiny” the attempt of some of the prisoners to protest, more or less peacefully, against those conditions. (In fact, the Court of Military Review, the intermediate military appeals court, has reversed some of the convictions on the ground that the evidence did not support convictions of mutiny.) I believe that the necessity of subordinating the military to civilian authority does not justify, constitutionally or politically, Article 88 of the Code, which makes it unlawful for commissioned officers to use “contemptuous words against the President, the Vice President, Congress,” and a long list of other civilian officials—especially when it is applied to a semi-literate reserve second lieutenant like Henry Howe. (The picket sign which Howe carried accused the then President of “facist agression” in Vietnam. Mr. Sherrill, as kind to his heroes as he is unkind to his villains, has corrected Lieutenant Howe’s spelling in his account of the affair [p. 179].) I believe that the Army’s practice of handing out undesirable discharges in administrative proceedings in which the soldier is entitled neither to a lawyer nor to many of the other protections he would have in a court-martial, ought to be reformed, if not by the Secretary of the Army, then by the federal courts or Congress. I believe that the military commanders who convene courts-martial, and refer charges to them, should not have the power to appoint the members of the court, who not only determine guilt or innocence but assess the punishment. (In fact, “command influence,” which Mr. Sherrill flogs for most of Chapter 3, is beginning to look like a moribund, if not dead, horse. Under the 1968 amendments to the Uniform Code the accused in a non-capital case—and capital cases are very rare—can demand trial by a military judge sitting alone. A military judge is responsible only to the Judge Advocate General of the service concerned; his efficiency reports and promotion are beyond the reach of the convening authority. A very large majority of accused servicemen do in fact request trial by a military judge.) I believe these things in spite of the fact that Mr. Sherrill says them.



The banal, tiresome truth is that any system of criminal justice administered by human beings, probably even one administered by Mr. Sherrill, is going to be marred by stupidity and injustice. We can be certain that if Mr. Sherrill had set out to report on criminal courts and jails in Arkansas or New York he would have produced a book quite as lurid and about as truthful. The Army’s criminal process and penology are at least no worse than those prevailing in most of the states. A strong argument can be made that in some important respects—notably the provision of appellate counsel and the quantity and quality of appellate review—the soldier accused of crime gets a better break than most civilians. Mr. Sherrill and his publishers, capitalizing on the current vogue, have merely added their bucket of bilge to a wave of anti-military propaganda which is approaching the proportions of a tsunami—an anti-militarism as indiscriminate and brainless as the militarism of pre-war Germany or Japan. The authors of such tracts invariably represent themselves as gallant, lonely defenders of righteousness against a ruthless military juggernaut—every one a Leonidas at Thermopylae, a Roland at the pass of Roncesvalles. But in fact they have simply taken the side of the big battalions of contemporary controversy. Much more courage (as well as much more time and trouble) would have been required of Mr. Sherrill had he undertaken to write an honest, objective, and accurate description of military justice. Like civilian justice, it could stand reform. It has had a good deal in the last twenty years, which Mr. Sherrill naturally dismisses as “half-answers and patchwork reform” (p. 3). I should have supposed that a comparison of German and Russian history with that of the United States and England would have suggested that half-answers and patchwork reform are not entirely to be despised.

There is, God knows, need for rational reform of military (and civilian) justice. There is need for information. The comments of George Wallace, Dr. Spock, and many ignoramuses of lesser note on the Calley case show the depth of public ignorance of military law. I do not think that Military Justice Is to Justice, etc. is likely to contribute either to rational reform or to public understanding of the problem. But its style—the blending of truth, half-truth, and untruth, flavored with labored sarcasm, to produce homogenized hate propaganda—undoubtedly has an impact on many minds. Senator McGovern, whose command of the duckspeak of the New Politics is hardly inferior to Mr. Sherrill’s, says that “Sherrill’s account of the sham of courts-martial and of the harsh, dehumanizing treatment of military prisoners should inspire national outrage.” Mike Wallace expresses himself to much the same effect. There are far too many similar statesmen and philosophers. But in their case Sherrill merely confirms what their inner voices had already told them. The real danger is that honest people, wanting to learn the facts about an important and difficult issue, will think they have found them in Sherrill.



1 Since COMMENTARY is not a law review, I have not cited all of the reported cases and other authorities supporting my statements, although I will be glad to furnish the citations to interested readers upon request.

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