MR. SMITH: Interview with Commissioner Lee Foreman of the U.S. Court of Appeals for the Armed Forces, September 26, 1997.

Commissioner Foreman, what is the Uniform Code of Military Justice and to whom does it apply?

MR. FOREMAN: The Uniform Code of Military Justice is a statute, body of statutes enacted by Congress to create a military justice system for all members of the armed forces. It's found in Title X of the United States Code. It's enacted by Congress pursuant to their constitutional authority and responsibility under Article 1, Section 8 of the Constitution, which gives Congress the duty to make rules for governing the land and naval forces. They've discharged that duty by enacting the Uniform Code of Military Justice.

Now, they have intentionally made it an incomplete military criminal code because it does not contain rules of evidence and rules of procedure. They have delegated that authority to the president. It also does not have any sentence limitations except for a few offenses, and they have delegated that authority to the president.

The president, by executive order, has promulgated rules of procedure, called the Rules for Courts Martial, and the military rules of evidence, which parallel the federal rules of evidence used in the federal civilian courts. And he's also imposed sentence limitations. All of those are promulgated in the Manual for Courts Martial by executive order. And that whole body, the Manual for Courts Martial and the Uniform Code of Military Justice, is a comprehensive criminal code that applies to all members of the armed forces.

As far as who it applies to, it applies to all of the uniform military services: Army, Air Force, Navy, Marine Corps, Coast Guard. It applies to those on active duty. It applies in some specific cases to reservists doing an active duty training. It applies to retired regulars, to members of the regular component who are drawing retired pay. It applies to prisoners in the custody of the armed forces. It applies to prisoners of war.

And there's a provision in Article 2 that would extend its application to civilians accompanying the armed forces. No one has ever been successfully prosecuted under that because of constitutional problems with exercising jurisdiction over civilians.

That basically, I think, covers the people who are generally subject to the Code.

MR. SMITH: When was the Code first enacted, and how were the military forces regulated before the Code was enacted?

MR. FOREMAN: The Uniform Code of Military Justice as we have it now was enacted in May of 1950 and became effective in May of 1951. Before that time, and in fact as long as the United States has had an army, they were governed by statutes which were designated the Articles of War for the Land Forces and the Articles for Governing of the Navy for the naval forces (once we had a navy).

When the Revolutionary War began we adopted the British Articles of War. And in June of 1776, June of 1775 the Second Continental Congress adopted the Articles of War for the Continental Army and then revised them in 1776, and then a number of times thereafter. We took all of the punitive articles and most of the procedural articles, adapted them to the government of the United States, and many of those articles remain in the Code as it is today.

Now, as the Code progressed, as Congress is wont to do, you know, there were amendments from time to time, many amendments to, to the Articles of War and some to the Articles for Governing of the Navy. And the, the Code became kind of redundant, disorganized, and in some cases out of date. And then after World War II there was general dissatisfaction with the way world military justice had been administered during, during that war and a fair amount of public criticism, which turned into legislative criticism.

So the Senate Armed Services Committee, I believe it was in 1948, asked the Secretary of Defense to submit a new military justice system to the Congress for its consideration. That was done, and what was submitted and what was enacted is the Uniform Code of Military Justice as we have it now.

MR. SMITH: Some commentators say that the Uniform Code of Military Justice restricts or circumscribes some constitutional rights enjoyed by Americans who are not in the armed forces. Is this true, and if so what might be some examples?

MR. FOREMAN: The Uniform Code of Military Justice is a mixed bag when it comes to constitutional rights. And there are several areas, mostly in the area of procedural rights, where it significantly exceeds the constitutional rights enjoyed by civilians. And there are other areas in which the constitutional rights of military personnel, for reasons of military necessity, are applied differently or restricted so that they're lesser than those enjoyed by civilians.

A couple of examples. In the area where military enjoy greater rights would be the privilege against self-incrimination. Article 31 of the UCMJ is more expansive and more protective than the fifth amendment. Article 31 was enacted some 20 years prior to the Supreme Court's decision in Miranda and was considered to be somewhat revolutionary at the time. In both the fifth and sixth amendment rights to counsel, the UCMJ is more protective and more expansive than most civilian criminal law systems. The right to counsel attaches earlier, it attaches to misdemeanor trials, it provides a right to counsel through the appellate process all the way up to the Supreme Court of the United States.

In terms of areas where the Constitution is applied differently or restricted, first amendment rights, obviously. The punitive articles dealing insubordination and disrespect will restrict what a subordinate can say to a superior, even if the superior happens to be wrong. In the area of the fourth amendment, because military members are subject to legitimate searches there are invasions of their privacy that civilians would not have to be subjected to, except perhaps in, in some cases, such as law enforcement people who also are subject to periodic urinalysis and that kind of stuff.

In the area of freedom of religion, the wearing of religious garb can be and has been restricted by the, by the military services. And in some cases military practices are impossible, either because of the environment or because of military necessity.

So I think those are some areas in which the rights may in, on particular occasions be restricted, and, and as I said there are other cases where they're expanded.

One of the things that I might mention in terms of the enactment of the UCMJ. The dissatisfaction with the Articles of War through World War II was primarily procedural. There, there wasn't much dissatisfaction with the punitive articles--in other words, those things which are offenses--but the Congress was concerned with the fairness of the trial and with the absence of a formal appeals process. So when they enacted the Uniform Code of Military Justice they did some things that were, at the time, considered to be kind of revolutionary.

Under the Articles of War a line officer presided: the president of the court martial. He ruled on questions of law and questions of procedure. The Uniform Code of Military Justice in 1950 created a position of law office, law officer, and the congressional hearings make it clear that they intended that person to be a judge and to preside over the proceedings, even if he happened to be inferior in rank to the president of the court martial. The Uniform Code of Military Justice also guaranteed a right to a defense counsel who was a lawyer in general courts martial. Under the Articles of War the defense counsel was a lawyer if a lawyer was available.

Under the Articles of War there was no formal appeal process. The Army had adopted a process which they'd done informally; the other services had not. When, but there was no system of, of appellate courts as we know now. And the, the UCMJ in Articles 66 and 67 created first of all what was then called a board of review, now called a court of criminal appeals, in each of the services, and they created a civilian court to oversee the system--the Court of Military Appeals--that has since been renamed as the US Court of Appeals for the Armed Forces. That was a very controversial move, to put a civilian court in the military justice system composed to civilian judges who, at the time, were the final arbiters, the court of last resort.

Article 31 was, was somewhat controversial and new you know. As I mentioned earlier, it preceded Miranda by, by some 20 years. It was considered to be a bit revolutionary but was considered necessary by Congress to avoid, particularly, low-ranking suspects from being intimidated by authority.

MR. SMITH: One of the punitive articles, Article 133, is headed "Conduct Unbecoming An Officer and Gentleman." Who determines the principal activities that fall under this Article?

MR. FOREMAN: There're, when you're determining what falls under Article 133, there're really some subsidiary questions as to, it's who decides and how do you decide. And the who decides part of the question is probably shared. The ultimate responsibility for determining if there is a violation or a cognizable offense under 133 of course rests with the courts. But Article 133 rests in large part on custom: What do we expect of officers? And the services determine that, and they determine that by custom, tradition, and training.

There, there's a large body of law that surrounds Article 133 and its predecessors. There was a similar article in the Articles of War in the British system that we adopted in 1775. It's been with us, and the language has been virtually unchanged, since the Revolutionary War. So we've developed a body of law to say what is conduct unbecoming an officer.

The basic underlying principle is kind of a, of a moral principle: that an officer should be held to a higher standard in order to command respect so that those serving under the officer would respect that officer and be willing to follow that officer. And that tradition goes well back in, at least to the British army, and probably earlier.

And that meant that, that the personal deportment and official performance of duty by an officer is held to a higher standard than those in the ranks. And basically that means that an officer doesn't lie, doesn't cheat, takes care of his personal affairs, doesn't abuse his authority.

MR. SMITH: If I can follow on that, the description strikes me more as a set of expectations that've been codified into regulations, which then are viewed, or, against which the performance of an officer is then judged or compared. Is, is regulation the right term or is, is actually law is the term you used correct?

MR. FOREMAN: The Manual for Courts Martial talks in terms of customs that have, have evolved into having the force of law. Now, when you're dealing with the general articles (and this applies to conduct unbecoming an officer as well as the general disorders under Article 134), there're really two issues that you have to address.

The first one is a legal issue. It's the due process issue, and it's founded in the concept of notice. You know throughout our jurisprudence, both military and civilian, one of the basic principles is that a person should know that the conduct that they are committing is criminal and punishable. And that's judged from the, from the viewpoint of a reasonable person. And so when you're talking about 133, Article 133, the question is would a reasonable officer know that that conduct is unacceptable. That's the legal question.

The second question is a factual question, and that is did the conduct violate the custom. And you also have to prove the existence of the custom so there is frequently a question, is there a custom?

In a, early 1980s in the Air Force we had a case arise, United States v. Johans, which was an officer involved with an enlisted woman, romantic relationship, sexual relationship, was convicted of conduct unbecoming an officer. And the Air Force court, which also enjoys broad fact-finding power, found among other things that the custom against fraternization had so eroded that this officer could not be punished. The Court of Military Appeals, in a split opinion but nevertheless with a clear majority, affirmed the decision of the Air Force court. That was, that was dealing with conduct in 1981.

In 1989 another case came up involving an Air Force lieutenant with an enlisted woman. That was United States v. Boyet(?), and of course the, Lieutenant Boyet and his lawyers were arguing that we had held back in 1981 that there is no custom. And what the courts did there was to evaluate what had happened in the Air Force between 1981 and 1989. They looked at publication of regulations, which I think is responsive to your question, what was taught in the training courses, what officers were told was expected of 'em. In other words, was there a custom and tradition that was reestablished? But the important thing as a matter of fact is that the prosecution had to prove in Lieutenant Boyet's case, and did so successfully, that there was a custom against the conduct of which he was convicted.

MR. SMITH: Another article, number 134, is simply headed "General." It addresses two elements which have been in the news recently: good order and discipline in the armed forces, and conduct of a nature to bring discredit upon the armed forces. What is meant by these phrases, and how might they affect a member of the military's services in terms of what he or she can or cannot do?

MR. FOREMAN: Let me answer the second question first: How does it affect what they can do or, or they can't do? The answer is if the conduct is prejudicial or undisciplined (inaudible) discrediting, then it's a crime. And if they do it they can be convicted and punished for it.

With respect to determining when conduct falls into those terms, it's interesting that in the early treatises, the Colonel Winthrop's treatise in, I think it was 1886, discussed the same language which again appears in the Articles of War and all the way back to the British army. And he says this term is so obvious to people in the military that we don't need to define it. And he then went on to give the definition which survives up to the present in the current Manual, and that is the distinction between direct and indirect impact on military discipline. And he uses the word "palpable"--a palpable impact on military discipline. Palpable I think according to the dictionary means easily discernible. You can see it. I think if you translate that out of legal language you're saying anybody would know that that conduct is unacceptable. And that's probably as good as you can do in terms of defining words.

And what happens after that is, of course, we develop a body of law. Even when Colonel Winthrop was writing back in the 1800s, there already was developed lists of offenses that are considered to violate our, the general article. And they were offenses not enumerated in the specific punitive articles. So we were developing a body of common law at that time.

When the issue went to the Supreme Court, for example in 1974 the case of Parker v. Levy, Dr. Levy was an Army physician who was opposed to the Vietnam War and among other things encouraged certain soldiers not to comply with orders if ordered to Vietnam, he was convicted under both Articles 133 and 134. The Supreme Court looked at the way the general articles were treated in the military, the body of law that had developed around those articles, and concluded that any reasonable officer would know that there were certain things that you cannot do.

Now, they concede, and it's always conceded, that there are conduct on the fringes that maybe is and maybe isn't directly and palpably prejudicial to good order and discipline. But the cases that are listed in the Manual for Courts Martial, the cases that have been affirmed by the courts, are those where the court concludes that any reasonable officer in a case of 133, or any reasonable member of the armed forces in 134, would know that that's unacceptable conduct.

Directly, as opposed to indirectly, impacting on military discipline, that gets you into the types of fuzzy terms that exist throughout the law. You know in the civilian side of the house you can debate about how bad do you have to be before you are negligent. Negligence underlies a lot of civil liability; it underlies a lot of criminal statutes. We have fuzzy terms in pornography statutes because we judge them by community standards. Community standards are custom. So we have counterparts in the civilian sphere for these kinds of soft terms where you have to look to what the community thinks they mean in order to define them.

And then you address the question is this so apparent in the community that a reasonable person would know that that is unacceptable conduct.

MR. SMITH: Apparent, or community standards that are apparent and based on the culture would be the equivalent in the civilian community to what we call customs of the service in the military community.

MR. FOREMAN: Yes, I think that's correct. What, what is customarily unacceptable conduct in the civilian community is comparable to what would be customarily unacceptable conduct in the military.

You know in the civilian community there's a general agreement that exposing certain part of your body in public is indecent, and the courts will wrestle with words to define that and to try to sometimes find the limits of that. But that's, you know that's generally agreed. And that's agreed by custom--that is indecent.

There're certain things that you can do that would be considered negligent, and before you decide something's negligent you have to decide what the standard is that would, that was violated. And then you have to decide if it was so negligent that it ought to be punished.

And that happens in the military, too. You know even though the services, the president, by promulgating the Manual for Courts Martial, is trying to reflect the customs of the service by listing the offenses under the general articles, there're always some that develop. For example, in 19--I think it was 1964, a sailor called Sadinsky(?), United States v. Sadinsky, decided to jump off an aircraft carrier that was underway on the high seas, on a bet. And his bodies said they would double the bet if he would do a backflip off the aircraft carrier. And so he did. And he was charged under the general article for doing a backflip off an aircraft carrier underway at sea.

Well, there's nothing in the specific enumerated articles about doing backflips off aircraft carriers, and it wasn't one of those specifically enlisted, listed in the Manual. So his case was litigated all the way up to Court of Military Appeals you know on the issue would a reasonable sailor know that you shouldn't do a backflip off an aircraft carrier; and secondly, does doing a backflip off an aircraft carrier directly and palpably affect good order and discipline. And the Court of Military Appeals held that it did on both counts. He knew, or at least a reasonable person would know, and it disrupted operations sufficiently to be a a direct and palpable impact on military discipline.

The current Manual has a specific offense of jumping off a vessel now, which indicates how we preserve the common law by looking at the fringe cases, and when they're decided, then reflecting them in a document like the Manual for Courts Martial.

MR. SMITH: You've already talked a little bit about the, the directly prejudicial and prejudicial only in a remote sense in terms of the good order and discipline. In practice, can you give me some examples where some type of conduct might fall into one category at one point and into the other category at another point?

MR. FOREMAN: Trying to identify conduct which is prejudicial only in a remote or indirect sense is difficult because you're trying to imagine a negative, something that isn't. And I can think of occasions where you might fall short of something that is directly prejudicial. Let me see if I can think of some examples.

Carelessness not arising to the level of negligence. We have an offense under the, under Article 134 of incapacitating oneself for duty due to prior indulgence. You could have somebody who's not incapacitated but is operating a little bit more slowly because they stayed up late, had a little bit too much to drink. And they're still performing; they're just not as efficient. That might be a fringe case.

Abusive styles of leadership where the leader is actually working against the purpose of the organization by style might fall into a case like that. A leader playing favorites could be very disruptive to an organization. It might not make it as, as an offense.

Now, even with those examples you know I go back to what I said earlier: You've got to satisfy the legal prong and the factual prong. Is this something that a reasonable person would know is prohibited? And secondly, can the prosecution prove, (1) that it's unacceptable, and (2) that it directly and palpable affected good order and discipline. So when you have those fringe cases the prosecution has to, to satisfy both the legal and factual test.

And I think one of the reasons that the reported cases tend to be square on the mark is that the fringe cases fall out of the system before they get into the court martial process. They're handled by counseling, by reprimands, and sometimes simply by advice, by removing somebody, or lesser forms of punishment. So it's only those cases that are direct and palpable that seem to get into the criminal law system directly, and they're the ones that make law.

MR. SMITH: And make the media, such as the spate of sexually related cases and incidents that cropped up in the last year.

MR. FOREMAN: That's right, and frequently make the media.

MR. SMITH: Article 134 has over 50 subsections that describe specific offenses. Other violations in the code such as false official statements, espionage, failure to obey orders are under their own articles. What, why the difference?

MR. FOREMAN: I think to answer the question why certain articles are specifically enumerated and others are not and are folded under the general article is kind of a question about the legislative process itself because Congress decides whether to enact a specific article or to simply leave it in under the umbrella of one of the general articles. Most of the, most of the offenses that you have just mentioned are traditional offenses that were in the earliest Articles of War and they tend to simply be carried forward.

As I mentioned the Articles of War got a little cluttered and redundant, but even when they were cleaned up there were really no offenses that were eliminated when the Uniform Code of Military Justice was enacted. They were simply straightened out. There were some offenses that the Navy had but that you know the Army might not have. There were a number of offenses that the Army and Navy and Air Force had but the Coast Guard didn't, and, but nothing really fell out of the system. And that's why you have offenses like dueling that are still in the UCMJ. I've been around military criminal law for 35 years and I've never seen a dueling case, but it's still there because nobody has decided to take it out.

Congress amends the UCMJ when somebody convinces them that it needs to be amended. And that can be either adding or removing punitive articles or it can be making procedural changes.

CAMERAMAN: Excuse me. I have to change tapes.

MR. SMITH: Yeah. You just really took pretty much the next few questions (inaudible) which were how was it changed and--

(END OF SIDE A, TAPE A)

MR. SMITH: When was the Uniform Code of Military Justice last updated just beyond minor changes?

MR. FOREMAN: The Uniform Code of Military Justice underwent major changes in 1968. The Military Justice Act of 1968 changed the name of the law officer to military judge and increased his power. And it authorized for the first time a trial, a bench trial before a military judge alone without the full panel of members. That, that was authorized upon request of the accused.

The Military Justice Act of 1968 also required for the first time that defense counsel in special courts martial, basically in misdemeanor court, be qualified lawyers. Prior to that they were not required to be and usually were not. Most recent change was the amendment of the UCMJ to authorize appeals to the Supreme Court of the United States.

There were, there have been two substantive changes to the UCMJ of 1950. One is the addition of Article 123(A) which is the bad check offense. Originally in 1950 there was no bad check offense. Bad checks were, were prosecuted either as larcenies, obtaining some, something of value by fraud, or under Article 134, dishonorable failure to maintain sufficient funds, or, in some cases, as forgeries. And that became cumbersome. Any time you are prosecuting an offense that doesn't sound right to a layman, it becomes cumbersome when they have to make mental bridges. Also I think probably in 1950 not too many soldiers and sailors had checking accounts. They were paid in cash and they spend their money in cash. But as bad check offenses became a problem, Congress reacted and enacted Article 123(A).

Similarly, all drug offenses were prosecuted either under Article 134 or as violation of regulations under Article 92. But, probably because of the number of drug offenses, plus problems reconciling the punishments for Article 92 violations with Article 134 violations, Congress passed Article 112(A) which is the specific drug offense.

So the, the, those are, you know other than minor tweaks in the system, those are the major substantive changes that have occurred since 1950.

MR. SMITH: In addition to regulating conduct of US military personnel, how does the UMC, UCMJ reflect the values generally accepted by Americans?

MR. FOREMAN: Whether or not the Uniform Code of Military Justice reflects the values generally accepted by Americans is basically a political question, and it's one that's determined by Congress. The offenses listed in the UCMJ are there because Congress put them there. And if the general public didn't want them to be offenses, then it would be Congress who would remove them. So, so Congress is the means of adjusting military justice to the values of Americans at large.

And, and of course included in that question is the question whether Americans want their armed forces held to higher standards than the rest of the population. But again, they do that through the political process, through Congress, because you know we keep coming back to the Constitution, Article I, Section 8: Congress runs the land and naval forces.

MR. SMITH: At this point it's, it may be appropriate to, to look at the question of fraternization in the military as that, and to explain what that term is, and how that, or why that exists in the military as a, a consideration, whereas it doesn't outside the military. And the second question which is parallel, and that's sexual harassment against which I believe there is no specific article in the UCMJ but is and can be prosecuted. Can you remark on those points?

MR. FOREMAN: I'll try to remember all those questions--

MR. SMITH: Okay.

MR. FOREMAN: --and not forget 'em. Remind me if I leave one out.

Let me address sexual harassment first as a separate offense. There is an offense under the UCMJ, Article 93, which is maltreatment of a subordinate. So anytime the victim of sexual harassment is a subordinate either in rank or position, you may have a prosecution under Article 93 on the grounds that that constitutes maltreatment.

There has been some movement to have a specific punitive article. I don't know where that is in the legislative process. I don't think it's, it's risen to a very high level of visibility. But there are people in the military and legal community who think that there should be a specific prohibition.

You know one of the things that happens sometimes is that there are offenses which are included in other offenses. But Congress decides, perhaps for reasons of emphasis, to specifically prohibit a certain type of conduct. And you know that may be why we have a specific drug offense because drug offenses were prosecutable before Article 112(A), but it was only when drugs really became a problem that we have Congress weighing in.

So there is no specific sexual harassment statute now. Whether there will be depends upon whether or not somebody can get enough support in Congress and convince them that one is needed.

MR. SMITH: Back to the fraternization.

MR. FOREMAN: Fraternization. Fraternization comes under the general article. It's an offense that has been with us, again, as long as, as we've had an army. Traditionally it involved officer-enlisted social relationships, or relationships that were on terms of military equality, I think is the, is the technical term, and that violated the custom of the service. It's an offense that can only be committed by an officer with an enlisted person. And you know traditionally it was somebody, an officer who simply got too friendly with a subordinate. And the basis for it being an offense under 134 is that that erodes the authority of the officer and therefore is directly and palpable prejudicial to good order and discipline.

With the drastic increase in the number of women in the armed forces, fraternization obviously started taking a, a little bit different turn because you get into romantic relationships and sexual relationships. And you know that may account in part for more prosecutions. I don't know. It certainly accounts for media interest in fraternization prosecutions.

Fraternization is not the same offense as adultery. You don't have to be an officer to commit adultery. Fraternization, or, excuse me, adultery has been listed as one of the commonly recognized offenses under the general article for as long as I can remember and as long as I know.

There's always been a fundamental expectation that soldiers, sailors, airmen--officer or enlisted--don't mess with another soldier's, sailor's, airman's wife. In the case of officers, you may recall when we were talking about Article 133, one of the things that an officer is expected to do is take care of personal obligations. And that includes taking care of this family; that includes taking care of his soldiers' families. And committing adultery is contrary to that.

Most military installations are like small communities, like small towns, which means everyone knows what everybody else is doing. And so I think one of the underlying premises is that if there is adultery going on it has a disruptive affect. It it's officer-enlisted adultery, or if there's a crossing of the lines between officer and enlisted (an officer involved with an enlisted man's wife, for example), then the officer is compromised in certain respects, the enlisted man's morale is destroyed, and it's, there is the direct and palpable impact on military discipline.

MR. SMITH: Are we running into trouble with that women being out there, do you think? Well, and again this is a, this is a specific case, and if you want to not answer it, fine. It's the case of the, on fraternization, of the Air Force officer who dated an enlisted an enlisted woman and then they were married. And yet the Air Force had initially elected to pursue fraternization charges. Do you, are you familiar with the case at all?

MR. FOREMAN: I don't really know enough about that case--

MR. SMITH: Okay.

MR. FOREMAN: --to give you anything meaningful.

MR. SMITH: Then I'll, then where I was gonna get to was, was just you know in terms of the outside community it would seem that because they became married, or they, they got married, that there shouldn't have been any, any pursuit after the marriage of charges. That's all I was gonna try and get to, that community, civilian community versus military community expectations. But we can let that one run. Macklin(?) and probable know about that, so I'll ask him.

MR. FOREMAN: Yeah. I think that might be better.

MR. SMITH: Yeah. Okay.

MR. FOREMAN: The one thing we might discuss is that customs are not necessarily the same in all the services.

MR. SMITH: Yeah. That's a good point, too. The Army has less, or fewer restrictions against fraternization as I recall in its services. In fact, we can take that one right now. Are the rules governing relationships between the sexes or in other customs of the service uniform across all four of the services?

MR. FOREMAN: I think that generally speaking the rules are not exactly uniform. They're not identical. And whether that, whether that constitutes uniform is a, is a separate question. But they're, they're certainly not identical, and they're not identical because the services are different.

I'm not familiar with the exact language of the guidance that's in each of the services now. But we do know that in 1981 when the Johans case was decided that at least the views expressed by the Air Force court was that the custom against fraternization was very eroded. We do know that after that the Army, for example, has put out some guidance on social relationships that as I understand it would allow officer-enlisted dating under situations where there is no superior-subordinate relationship and you know provided everybody exercises good judgment, etc. The Air Force has considerably tightened up, become more strict about officer-enlisted relationships and is probably tougher than the Army now.

This relates back to how you prove the offense and how an officer reasonably knows that that conduct's prohibited. It's the custom in that particular service. Now, the Manual talks in terms of custom of the armed forces. Well when you, when you get into what a reasonable Air Force officer know, or what a reasonable Navy officer know, or what a reasonable Marine Corps officer know, that something is prohibited, then you're really looking at the custom in that service. And, and they're different because their missions are different. The way they deploy and the way they live are different.

MR. SMITH: For the, what might be considered community expectations and community standards overall will be modified by each service. And it's the obligation of the service to teach and the service person to learn the peculiar customs of whatever service he or she is in.

MR. FOREMAN: I think that's correct. And one of the things that happens is that the services respond to problems by issuing directives and policy statements you know which can have the effect of overriding what was the custom.

And then there's the responsibility on the part of the services in their training programs to ensure that the members of the force know that that conduct is unacceptable. And there's the responsibility of the service member to learn what conduct is acceptable and unacceptable.

The old Articles of War, and I think it was Article 1 of one of the early Articles of War, had a requirement that every officer sign on the bottom of a copy of the Articles of War. I think that the enlisted people, they only had to be read to them.

But you know we still retain in the UCMJ the requirement that new entrants into the armed forces be instructed on the Uniform Code of Military Justice. And we still have in officer training programs specific courses of instruction on what is expected of an officer. And it's just for that reason: so that they will know what's expected. And it's also a way of establishing and reinforcing the community standard.

MR. SMITH: In 1983 Chief Justice Warren Burger noted, the special status of the military has required, the Constitution has contemplated, Congress has created, and this Court has long recognized two systems of justice to some extent parallel: one for civilians and one for military personnel. Is this distinction still valid, and if so why should it persist?

MR. FOREMAN: My personal opinion? Yes, it's still valid. And I think that's reinforced by what Congress has done and what the Supreme Court has done. Since 1950 Congress has not diminished jurisdiction over military personnel but has enhanced it, for example, by extending it to reservists.

The Supreme Court has had a number of occasions to review the Constitutionality of the process. You have quoted from the Chief Justice on one occasion. More recently than that the Supreme Court overturned an earlier opinion I think by Justice Douglas, the O'Callahan(?) decision, that greatly restricted jurisdiction over the military. It basically required that there be service connection if, if it happened in the continental United States. The Supreme Court overturned that decision and went back to the literal reading of Article 2, which confers jurisdiction based on the status and not on the question of whether or not a civilian court could take, could take jurisdiction. I think that was a tremendous vote of confidence for the military justice system.

Recently the Supreme Court used a military case called Davis v. the United States to resolve a conflict among the federal civilian courts on when the right to counsel was triggered during a police interrogation. And they used the military case to make the law of the land.

Most recently, in a case called Loving v. the United States the Supreme Court considered and upheld the constitutionality of the military's death penalty statute and the, the manner in which the death penalty is imposed. That's about as far as you can go in terms of endorsing a, a criminal law system.

Now, that's what the Congress and the Supreme Court has done.

You know I think underlying that is a recognition that the needs of military society are such that they, that you can't rely solely on the civilian criminal law system to enforce discipline. There was a time under the Articles of War when the common law felonies--murder, rape, arson, (inaudible), etc.--were not cognizable by courts martial except in time of war or a national emergency, insurrection, and a couple of other things. And Congress changed that. You know they can prove general jurisdiction over penalties. And, and I think that was in recognition of the needs of the service.

The Supreme Court is very deferential to Congress's determination of military necessity. They made that clear and they repeated some earlier decisions in a case called Weiss v. the United States which dealt with the question whether or not military judges were appointed in accordance with the appointments clause of the Constitution. And in that opinion Chief Justice Rehnquist said that deference to Congress is at its apogee in military matters.

So I get back to what I said earlier, that it's largely a political question how expansive and comprehensive is the military's jurisdiction over those who are, who are subject to the UCMJ.

Now, just in terms of why. And, and these are my personal views. You know why do you need a separate system?

The first and most obvious reason is there are things that are offenses in military society that are not in civilian, so you've got to have punitive articles that only apply to the armed forces.

The second is you have to have a system that is portable, that you can take with you. The early days of the Articles of War we thought of armies and navies as centered around and based in the United States, and of course that's no longer true. We're deployed all over the world for long periods of time. The choices are to subject our personnel to the laws of the host countries, send them back to the United States for trial, or bring our own system with us, and Congress has determined that we bring our own system with us.

We tried many, many courts martial in Vietnam. We tried courts martial during Desert Storm out in the middle of the desert, just before the big war began. And that was necessary to preserve the integrity of the units, and to preserve discipline, and safeguard the rights of those who were accused of crimes without making them wait till the war was over to have their guilt or innocence adjudicated.

The third requirement I think of a military system that is not as critical in a civilian system is quick resolution. You know soldiers and sailors enlist for terms of three or four years. If it takes five or six to dispose of their case, you've got a problem. Witnesses are reassigned, they deploy, they get killed, they retire, so you have a problem of keeping your evidence in one place. And the needs of discipline require that the result of an infraction happen during the memory of those who know that it happened. And all of these things I think militate toward a system that operates in a more expeditious manner than the traditional civilian system.

And, and, and so we have some procedural aspects of the military system that enhance that. The first one is full disclosure by the government. Basically the defense, when a case goes to trial, gets to see everything the government has. There's no trial by ambush, there's no need for a continuance to get ready for a surprise--they walk into the courtroom knowing how they're going to try their case.

Second difference is the way that verdicts are reached. There are no hung juries in courts martial. As you know, in a civilian system if you don't get a unanimous verdict you have a hung jury, you declare a mistrial, and the district attorney then has to decide whether or not to try the case again in front of another jury. In a court martial, if you don't have the required number of votes for a conviction it's an acquittal. It's over. There is not going to be another trial. So you have a quick determination of the question of guilt or innocence. It's, it's more efficient and it means something to the community that's surrounding it.

MR. SMITH: Okay. That was the last question. Do you want to check anything to see if you have anything to add?

MR. FOREMAN: See if anything else we should cover.

(END OF INTERVIEW)