MILITARY JUSTICE IN AMERICA THE U.S. COURT OF APPEALS FOR THE ARMED FORCES, 1775-1980, Revised and Abridged Edition. by Jonathan Lurie. Lawrence, Kansas: The University Press of Kansas, 2001. 348 pp. Paper $25.00 ISBN: 0-7006-1080-4.

Reviewed by Faye Jones, McGeorge School of Law, University of the Pacific.

MILITARY JUSTICE IN AMERICA THE U.S. COURT OF APPEALS FOR THE ARMED FORCES, 1775-1980 is a revision and abridgement of Jonathan Lurie's two-volume opus that was published by Princeton University Press as ARMING MILITARY JUSTICE (1992) and PURSUING MILITARY JUSTICE (1998). ARMING MILITARY JUSTICE covers the military justice system from 1775 to 1950. PURSUING MILITARY JUSTICE details the history of the Court of Military Appeals from 1951 to 1980. (The Court was designated with its current name in 1994.) Both of the original titles are heavily annotated and scholarly. MILITARY JUSTICE IN AMERICA is published in a single volume without footnotes for a broader audience. A concise bibliography provides a bridge back to its scholarly predecessors.

The focus of MILITARY JUSTICE IN AMERICA is primarily the institutional evolution of the Court rather than legal doctrine. There are few case citations in the work. Instead, the author addresses a number of important questions about the Court including: Why was the Court established in 1950 and not earlier? What was its intended mission? What, if any, tradition of military appellate procedure existed before the creation of the Court? What was the impact of congressional preferences and the political process on the creation of the Court? What has been the relationship of the armed forces to the Court? How have its judges been chosen? What has been the Court's mandate and how successful has it been?

Lurie, a professor of history and adjunct professor of law at Rutgers University, has served as the historian and archivist for the U. S. Court of Appeals for the Armed Forces since 1987. In this capacity, he was given the support and cooperation of the Court as he prepared both the earlier set and this work. Although Lurie has had an insider's access, the Court did not interfere with or attempt to control his work. Although it is clear that Lurie has great respect and appreciation for the Court and its accomplishments, his conclusions are fair and critical.

This objectivity is important because Lurie's subject has within it a tension that has existed since the creation of the American military justice system. Military justice is inextricably intertwined with military discipline and the achievement of military objectives. In contrast, the civilian justice system is designed to protect "the rights of property, community, and the individual." From our modern perspective, it might seem reasonable that a fundamental question in the establishment of the military justice system would have been how to balance the need for military discipline against the rights of the individual citizen serving in the military. However, for a country struggling to use the military to establish its existence, discipline rather than the rights of the individual soldier was of paramount concern.

The need for a strongly disciplined and effective military was evidenced when the foundations of American military justice were laid in the 1775 and 1776 Articles of War. Anticipating their need, military courts-martial were established by 1776, more than a decade before the federal district courts. The 1776 Articles also made military justice subject to congressional supervision and review. The nature and closeness of that control was not clearly defined. However, it would not be long before it was clear that civilian control of the military justice system was an issue that required definition. Through vivid descriptions of the people and events that shaped American military justice, Lurie shows how that definition was achieved.

The first half of MILITARY JUSTICE IN AMERICA is a history of military justice before the creation of the Court. Over time, events repeatedly raised the need for refinement in the military justice system. In 1786, Major John Wyllys commanded a frontier post in Pennsylvania. With desertions plaguing him, Major Wyllys convened a court-martial. After the trial, he forwarded the convictions and sentences as required to the War Department. With hopes of curbing desertions, he also posted the results. More desertions occurred. This time Major Wyllys recaptured the deserters and executed them with neither trial nor prior notification to Congress. Shocked by Wyllys' actions, Henry Knox, the Secretary of War, asked Congress to investigate. New rules were devised for general courts-martial and sentences now required review before execution. Courts of inquiry with rights of cross-examination for the accused were also instituted.

By the mid-nineteenth century, military justice was well established as a self-contained system but no provision had been made for any appellate procedure. In 1843, Captain Alexander Mackenzie of the U. S. Navy brig SOMERS held a court-martial at sea. He then executed three crewmembers, one of whom, Philip Spencer, was the son of the secretary of war. At court-martial, Mackenzie was acquitted of improper conduct. However, a review of the matter showed that the trial of the three sailors had been held in secret, the accused had been given no chance to confront witnesses or to speak on their own behalf, and Mackenzie had exerted command influence over the officers on the panel to convict the accused and sentence them to death. As the officer responsible for review of the sentence, Mackenzie had acted as accuser, judge, jury and executioner all in one. Some form of appellate procedure was needed.

In 1917, a disagreement between the Judge Advocate General (JAG) of the Army and his senior assistant revived the issue of appellate review. The controversy was about the highest stakes of all for a JAG officer: what is the nature of military justice and what is the appropriate role of the JAG Corps in its administration. What began as an internal matter became a public feud. Its resolution sets the stage for the second half of Lurie's history, as the reforms advocated in 1919 became reality in 1949-1950 with the creation of the Court of Military Appeals.

The second half of MILITARY JUSTICE IN AMERICA covers the first thirty years of the Court's development. Lurie provides a detailed yet lively recounting of the struggles over the status of its judges, its jurisdiction, its relationship with the Judge Advocate Generals of the services, and the proper role of the Court within the military justice system.

MILITARY JUSTICE IN AMERICA presents a fascinating story that is also timely. The U. S. Court of Appeals for the Armed Forces celebrated its fiftieth anniversary this year. Since its creation, the Court has reviewed over 78,000 cases, written more than 6,500 opinions, and has produced a substantial body of decisions, which now fill over seventy-five volumes. The Court has been clearly designated by Congress as a Federal Court, not merely an administrative agency. Yet it remains a little known institution. Similarly, military justice is a unique and important area of jurisprudence, yet it usually receives little attention. In March 2001, when the Navy began its formal hearing on the collision of the U. S. S. Greeneville and a Japanese fishing vessel, a respected national newspaper asked "How just is U. S. military justice?" and, "Is military justice" an oxymoron?" When a matter of military justice comes before the public, these may be the foundational, if uninformed, questions that frame the debate. Lawyers may ask the same questions. Their knowledge of military justice may be limited; few law schools offer a course in military law and procedure.

As Lurie notes in the preface to MILITARY JUSTICE IN AMERICA, the unique nature of military justice may have contributed to the impression that the system is "fundamentally arcane and inaccessible." By making military justice more understandable, Lurie hopes to encourage greater exchange of ideas, analyses, and innovation between the military and civilian justice systems. He also hopes to raise civilian interest, awareness, and involvement in the question of effective civilian control of the military. It is a question that continues to be vitally important today. Thus, it is to be hoped that Lurie's work finds the wide audience that it deserves.

*****************************************************************************

Copyright 2001 by the author, Faye Jones.