They Call It Justice, by Luther C. West
Bishop, Joseph W. Jr.
BOOKS IN REVIEW - "They Call It Justice, by Luther C. West" the size of their breasts, the color of their hair, and, of course, the number of their orgasms. This memoir is a fascinating—though hardly surprising—revelation of the generation that touted...
...This may be excusable in the case of comparatively recent reforms, such as the Army's establishment in the Office of the Judge Advocate General of a Field Defense Service to furnish research and advice to defensecounsel in all commands...
...To the best of my knowledge no other nation at war has ever tried members of its own forces for war crimes...
...In military practice, as in civilian, most cases are settled by plea-bargaining...
...Certainly there were lasting divisions and fissures on the Berkeley faculty even when I got to that campus as an undergraduate in 1932, and Teggart had become a kind of legendary figure on the campus...
...The first paperback edition appeared in 1960, and has been out of print for several years...
...he retired in 1968 with a substantial pension...
...He is currently working on a study of the relationship between religion and the idea of human progress...
...Like any good child of the sixties, Davidson is full of contempt for the children of the seventies, who have nothing "on their minds other than money and security...
...They, after all, are children of the sixties...
...They claimed to be more honest than preceding generations, but their honesty was nothing more than insensitivity and callousness towards the frailties of others...
...But There is opportunity in America...
...Colonel West repeatedly complains that his career as a regular army judge advocate was ruined by his superiors' resentment of his success as defense counsel...
...His ideas on the international law of war seem to consist largely of the slogans of those he calls "my good friends in the Citizens Commission of Inquiry into U.S...
...He was the most learned Robert Nisbet is Albert Schweitzer Professor in the Humanities at Columbia University and author of most recently, Twilight of Authority and Sociology as an Art Form...
...But the facts of his careerdo not seem to support his lament...
...And if, in fact, his commanders and their staff judge advocates were not favorably impressed by some of the artful dodges which he gleefully recounts, their reaction was human, if not legal...
...There were many subsequent cases which were almost as hard as Keyes...
...this, of course, is a form of command influence...
...Teggart was one of the genuinely original minds in the historical and social sciences during the first half of the century...
...He was a stormy petrel in the Berkeley history department after he received appointment there as Associate Professor in 1911, and when he broke with it a few years later—to create his own department at Berkeley, built around the history of ideas and the comparative study of peoples and cultures —there must have been tremors in the San Andreas fault...
...If he is right, those superiors were guilty of violating Article 37 of the Uniform Code of Military Justice which, inter alia, forbids commanders to "give a less favorable rating or evaluation...because of the zeal with which [the person being rated] represented any accused before a court-martial...
...gential: They suggest, in fact, that military defense counsel has about as good a chance as a civilian lawyer of obtaining an acquittal (just or unjust) in a criminal trial...
...I have my doubts about military juries selected at random, for the armed services are less able to afford the luxury of unjust acquittals than is civilian society...
...Not that Teggart ever claimed originality for himself, but he had a penchant for making his way to books and ideas well off the mainstream in his day...
...She asks us to believe that what she had on her mind was really so much more admirable...
...Colonel West devotes several chapters to the courts-martial, notably that of Lieutenant Calley, which followed the My Lai massacre...
...His books include Justice Under Fire: A Study of Military Law...
...the fact is, however, that what she and her friends had on their minds was themselves...
...When the accused so elects, as he does in a very large majority of cases, the convening authority cannot pack the "jury" by selecting those members of his command who will determine guilt or innocence and, if they convict, assess the punishment...
...Thus, he terms "a vicious violation of the rules of land warfare" the United States' use of artillery fire in areas infiltrated by enemy forces but still inhabited by noncombatants...
...the Articles of War were perceived as essentially a method by which military 34 The American Spectator January 1978 commanders could maintain strict and severe discipline...
...Most cases that go to trial in either system result in guilty verdicts, not because the proceedings are rigged against the accused, but because both district attorneys and military prosecutors are ordinarily reluctant to go to court unless they think the evidence is fairly solid...
...All in all, a bad book on a good subject...
...Their relation to his main theme, however, is at best tanJoseph WI Bishop, Jr., is Richard Ely Professor of Law at Yale University...
...The quality of Colonel West's argument is variable...
...Colonel West's historical chapters include some of the most shocking, as well as a reasonably accurate account of the Court of Military Appeals' erratic progress toward enforcement of that Article of the Uniform Code which attempts to outlaw command influence...
...I would not exclude military lawyers from practice as appointed defense counsel, though I see no objection to usingcivilians too...
...Most astounding of all, I cannot find in the book a single reference to the Military Justice Act of 1968, which represents Congress' strongest effort to get rid of command influence...
...Harry Elmer Barnes, himself learned and effective in his best years and notoriously hard to please, said of Teggart that he was "unquestionably the foremost writer in this country, if not in the world, on the theoretical basis of the new history as the science of social change...
...The military may press doubtful charges when the case involves a variety of malefaction (e.g., black marketing or racial brawling) on which the commander wants to crack down...
...Both originally published by Yale University Press, they were brought within the covers of one book by the University of California Press in 1941...
...When Keyes took his case to the civilian courts, the Supreme Court of the United States gave him short shrift: " [W]hatever irregularities or errors are alleged to have occurred in the proceedings, the sentence of dismissal must be held valid when it is questioned in this collateral way...
...In fact, as Colonel West does not point out, the conviction rate in courts-martial is not significantly higher than in civilian trials...
...The finest example is probably the 1883 case of Lieutenant Keyes of the Fifth Cavalry, in which the Colonel commanding the regiment preferred the charges, testified for the prosecution, and, as a member of the court, voted to convict and cashier...
...As Macaulay, writing in the middle of the last century, put it: "[ON all the maladies incident to the body politic, military insubordination is that which requires most prompt and drastic remedies....For the general safety, therefore, a summary jurisdiction of terrible extent must, in camps, be entrusted to rude tribunals composed of men of the sword...
...On the other hand, I think the commander's responsibility for discipline entitles him to a strong say in the decision whether to refer charges to a military court or to resort to milder sanctions, and in the decision as to what degree of clemency is appropriate...
...Robert Park, a major founding influence in the famous Chicago school of sociology, was strong in his praise, and in his use of Teggart's insights into migrations of peoples and the breakup of what Teggart called "idea-systems...
...But Colonel West also denounces as a war crime the practice of "resettlement" of noncombatants...
...Teggart's scholarship has always seemed to me grossly underrated, especially in this country, and yet I could be wrong, as I think of the written expressions of obligation and esteem...
...Colonel West, who has an unfortunate tendency to lapse into the jargon of the military bureaucracy (e.g., he confuses "advise" and "inform" in a way that sometimes makes his meaning obscure), does not write as well as Mr...
...Unless we are to say that belligerents can immunize themselves from enemy fire by the simple technique of mingling with noncombatants —an idea that is explicitly repudiated by Article 28 of the Geneva Convention on the Protection of Civilian Persons and which no belligerent has ever accepted—the only alternative is to move the noncombatants out of the area...
...The only fact which is new to me is that Calley had been charged some months before thestory of the massacre broke in the press...
...West regards Galley's conviction as unjust, on the ground that the Lieutenant was merely carrying out the genocidal policy of the United States...
...The other half is a collection' of anecdotal reminiscences of the sort that most trial lawyers could write and a great many have written...
...To return to the book's principal theme, more could and should be done to eliminate command influence from military justice...
...About half the book is in fact a polemic against command influence, military justice, and the military in general, including an entire chapter on that monumentally trivial species of oppression, the Army's haircut regulations...
...Except for four undergraduate years at Stanford, his vast learning was entirely self-acquired...
...But since he does not trust "juries composed of white farmers in southern Alabama [or] of blacks drawnlargely from the inner-city ghetto," he favors juries of soldiers drawn by lot...
...Toynbee, in one of the final volumes of his A Study of History, declares that it was Teggart's works which first attracted him to the idea of a comparative, plural history and furthermore, Toynbee writes, "showed me where to find the entry into my subject after I had been groping for it without succeeding in discovering it by my own native lights...
...Such tactics as securing the dismissal of a charge by spotting a careless typist's omission of a key word (although both he and his client were perfectly aware of the nature of the offense charged), or pressuring a court-martial to acquit (which is a speedier process than conviction and sentencing) by springing on the members at the last moment the news that the helicopter which represented their only chance to avoid spending the night at an exceptionally uncomfortable post in Korea would leave in thirty minutes, are legitimate, and even more or less ethical, but they do not improve the image of the legal profession in the eyes of ordinary citizens...
...It is this demand for automatic and unthinking admiration that makes Loose Change a shameful and disgusting book...
...BOOK REVIEW Theory and Processes of History Frederick J. Teggart / University of California Press / $4.95 Robert Nisbet We can be grateful to the University of California Press for restoring to print this volume, which is actually two separate, though related books by Teggart: the earlier (1918) The Processes of History and the later Theory of History (1925...
...their morality clearly placed no taboo on the public discussion of lovers' weaknesses...
...This memoir is a fascinating—though hardly surprising—revelation of the generation that touted itself as the most idealistic, the most honest, and the most moral ever...
...But the most astonishing aspect of West's tract on command influence is the breadth and scope of its omissions...
...That Act created the Military Judge and gave the accused the right in non-capital cases (capital cases are extremely rare) to elect trial by a judge sitting alone...
...This is almost precisely par for the course, an average career in the regular army...
...The accused is, of course, always entitled to retain his own civilian counsel...
...War Crimes in Vietnam," including those slogans which contradict each other...
...BOOK REVIEW They Call It Justice: Command Influence and the Court-Martial System Luther C. West / Viking Press / $12.95 Joseph W. Bishop, Jr...
...Nizer, but some of his tales of his forensic triumphs, and some of his military gossip (of a kind common to armies the world over) about the General's mistress and so forth, are moderately good reading...
...He adds very little to the extensive literature on the subject...
...Nor am I much edified by his policy, when he became a staff judge advocate himself, of recommending to the convening authority that every sentence be reduced or suspended, without regard to the merits of the particular case...
...The publisher's blurb de- scribes They Call It Justice: Command Influence and the Court-Martial System as a discussion of "command approved fraud and command rigging of courts-martial" and the "cruelties of the American judicial system," and adds that the author "exposes high-ranking military officers as jury-fixers and conspirators...
...Cases like Keyes are as dead as Dred Scott's case...
...Quick to temper, fierce in resolve, it was said that the earth shook every time he changed his mind...
...It was hardly a problem at all until after World War II, for none of the three branches of government saw anything wrong with it...
...And what they wanted was to look pretty, to have nice clothes, to own nice furniture, and to be accorded therespect due them as members of the most wonderful group of kids ever produced...
...And yet, having demonstrated their clear inferiority as human beings, they demand recognition of their clear superiority to the rest of us money-grubbers...
...In fact, both Article 49 of the Geneva Convention and Article 26 of the older Hague Regulations encourage such evacuation, and the Secretary General of the United Nations in 1970 urged all belligerents "to ensure that civilians are removed from, or kept out of areas...likely to place them in jeopardy or expose them to the hazards of warfare...
...Nevertheless, command influence in military justice is a serious problem...
...As a practical matter, collateral review by the federal courts now includes appeal to the Supreme Court, and the change would decrease the caseload of the inferior federal courts without adding much to that of the highest court...
...I would myself prefer an expansion of the power and independence of military judges —specifically giving them tenure during good behavior and referring all cases arising in the military to permanent military courts composed of one or (for serious offenses) three to five judges, both military and civilian...
...The Army has the additional advantage that the commonest military offense, absence without leave, rarely presents any difficulty of proof...
...that magic formula sets them free: They behave in the most despicable way and expect praise for it —because they have the right credentials...
...Sarkes Tarzian Inc...
...It goes without saying that he never mentions the fact that North Vietnam regularly and in cold blood massacred noncombatants on a scale far surpassing My Lai...
...Colonel West recounts a number of old cases, familiar to students of military law, which show that Macaulay's splendid rhetoric was not much exaggerated...
...Louis Nizer's My Life in Court is probably the best-selling example of the genre...
...Certainly the record of the American forces in Vietnam was bad, although better than Colonel West says and very much better than that of North Vietnam...
...Like a few other great scholars of his age, he disdained a Ph.D., no doubt wondering, as others did on written record, who would be qualified to examine him...
...But there is hardly a word about the rapid development in the last 15 years of the federal courts' jurisdiction to review court-martial convictions (via habeas corpus, suits for back pay in the Court of Claims, and several other techniques), and the many holdings, by the Court of Military Appeals and by civilian courts, up to and including the Supreme Court, that soldiers have constitutional rights whose denial may lead to nullification of court-martial verdicts...
...Finally, I would make the decisions of the Court of Military Appeals reviewable by the Supreme Court (not, as Colonel West recommends, by the Circuit Courts of Appeal) by writ of certiorari...
...I would remove defense counsel from the chain of command, as military judges have been...
...For those who have been excited by the ostensible novelty of Collingwood's Idea of History, Isaiah Berlin's Historical Inevitability, and Karl Popper's Poverty of Historicism, a reading of these two books by Teggart will be salutary...
...There is something to be said for military experience and expertise in the trial of military crimes...
...One would be hard put to find more self-involved, mindless, and grasping people than Sara and her gang...
...The Military Judge is responsible only to the Judge Advocate General of the service concerned...
...the commander who convenes the court has nothing to do with his efficiency reports or promotion...
...Although Teggart was a recluse by nature, almost never attending scholarly meetings and conferences, and, to my knowledge, never paying any living scholar a written compliment, he nevertheless received the acco36 The American Spectator January 1978...
...In short, Colonel West's treatment of the law of war is even less scholarly and more purely propagandistic than his chapters on command influence...
...They claimed to be moral, but for them moralitymeant how the world treated them, not how they behaved in it...
...He advocates that the administration of military justice be entrusted to civilians under the control of the Attorney General, and that trials be handled by civilian lawyers and judges...
...sometimes it is reasoned and even fairly objective, sometimes hardly above the rant suggested by the blurb...
...It might be difficult to obtain convictions for absence without leave, when some of the jurors may be tempted to go AWOL themselves, or convictions in war-crime cases, when few soldiers have much sympathy for the victims...
...He was a librarian for the first ten or so years after receiving his A.B., but those were years of immense reading and the beginnings of what would be a stream of articles and books during the rest of his life...
...He could be wonderfully patient and understanding, though, as I discovered during the several years I studied under him, and at his best he was a lustrous teacher, always demanding but at the same time inspiring, by example and spoken word...
...Bloomington, Indiana The American Spectator January 1978 35 inadequate as were the American disciplinary measures, a less partisan writer might have noted that they were something of a landmark precedent...
...man I have ever known, and was regarded with some awe at Berkeley where he taught for a third of a century, retiring in 1940, dying at age 76 in 1946...
...But district attorneys, who are usually running for higher office, have been known to do the same when the case is sensational and likely to generate headlines...
...The trials of Lieutenant Calley and the other My Lai defendants—all but Calley were acquitted —were a most inadequate response...
...In 17 years of service he was promoted from First Lieutenant to Captain to Major to Lieutenant Colonel...
...They claimed to be idealistic, but their idealism—devoid of both ideals and ideas—was merely the automatic and contemptuous rejection of their parents' ideas and ideals...
...He seems hardly aware of any development in the law after his retirement...
...They devoted their lives to making sure that they had what they wanted...
...A book with such extraordinary gaps, whether deliberate or merely the result of ignorance, cannot be considered a useful contribution to the literature on command influence or any other aspect of military justice...
...Colonel West's recommendations, though I do not agree with all of them, are oddly restrained and reasonable, considering the tone of what has gone before...
Vol. 11 • January 1978 • No. 3
