MR. SMITH: Professor Noone, what is the Uniform Code of Military Justice and to whom does it apply?

MR. NOONE: The Uniform Code of Military Justice is a set of laws passed by Congress that's intended to apply to all active duty members of the armed forces.

MR. SMITH: How were the armed forces regulated before the Code was passed?

MR. NOONE: Before the Code was passed in 1951 there were two separate codes. One governed the Army--and then later the Air Force--and the other governed the Navy and Marine Corps. Those codes, we know the term "article of war," which applied to the Army code, those codes dated back to 1791 and were both written by John Adams at the time the nation was established. And John Adams himself copied those codes from the British codes then in effect.

MR. SMITH: Some commentators say the UCMJ restricts or circumscribes some constitutional rights enjoyed by Americans who are not in the armed forces. In your view is this true? And if so, what might be some examples?

MR. NOONE: Oh, it's true. The constitution itself says that people in the armed forces don't have the right to indictment by grand jury, which is granted to everyone else in the United States charged with a felony.

Also, Congress has made criminal various activities that American citizens would be permitted to do were they not in uniform. For example, it's a crime to, in the military, that you can be sent to jail for, for lying on your job application. That's called fraudulent enlistment. It's a crime to leave your job without permission. That's absence without leave, or desertion. And it's a crime to make false statements to your superiors or to be disrespectful to them. All interferences with first amendment rights that all civilian citizens of the United States have.

MR. SMITH: Just a quick followup on that. Why are these restrictions like you mentioned in force in the UCMJ?

MR. NOONE: Well, I suppose Congress recognized that the force, the military forces have to be regulated in, in ways that civilian employees need not be regulated. The fact that military forces have available to them weapons of mass destruction, or even in the 18th century guns, and were capable of overthrowing the government or doing grave damage to the civilian structure meant that they had to be regulated in ways that it would not be appropriate to regulate civilians.

MR. SMITH: One article, Article 133 of the Code, is headed "Conduct Unbecoming An Officer and Gentleman." What is the reason for including this as a punitive article in the UCMJ?

MR. NOONE: Well, it was in the original 1791 articles and, and dates back to the English code. The English still have it, or British, I should say. The British still have it. The idea, I suppose, was that officers, because of their authority and, again, their control over enlisted personnel and over deadly force, should be held to a high standard of behavior. That provision is rarely used now, but it's still available, for example, to punish an officer who fails to support his family without good cause.

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

MR. NOONE: Well, I'm going to start my answer by saying that there is a third provision to Article 134. Article 134 is intended to be a catch-all, if you will. The other articles enumerate particular offenses and also describe the procedures for court martial. Article 134 does those two things you've just mentioned--and I'll talk about them in a moment--and it also makes criminal crimes and offenses not capital which are otherwise listed in the US Code.

Now, with regard to the two categories that you mentioned, service discrediting behavior was a result of an amendment to the Code in 1916, and it was intended primarily to capture offenders who were creating bad debts in a community. Military personnel are exceptionally, in those days, transient people. Their credit rating was important. And it had reached the stage, as I understand it, where merchants around a military post were refusing to give credit to service members because they couldn't be sure that the service members' debts would be paid. He might be transferred out. This created a specific offense to assure merchants that creditors would have this threat available to them. That's a kind of service discrediting behavior, I suppose, that they were seeking to address.

Conduct prejudicial to good order and discipline was intended to search out behavior which in the opinion of a commander would lead to a, a deterioration in morale or to, what we call nowadays, unit cohesion. It can amount to all sorts of things.

In the Vietnam war, for example, officers, young officers, were caught smoking marijuana with their enlisted troops. Those young officers would be charged under Article 134 for conduct prejudicial to good order and discipline. They're also violating a law prohibiting the use of drugs, but it was seen that that aspect of it was particularly bad.

MR. SMITH: With regard to good order and discipline, Article 134 also makes a distinction between actions or neglects of actions that are directly prejudicial and those that are prejudicial only in the remote or indirect sense. What in practice is, does this distinction come down to?

MR. NOONE: The, the distinction is a fundamental one in the law. We talk in the law often about proximate causes and remote causes. You have to draw the line somewhere. Commanders are, are encouraged, when they're thinking about charging an offense as being conduct prejudicial to good order and discipline, or the same thing is true about conduct that brings the service into disrepute, to only look for the immediate consequences, not to search out behavior which, perhaps, or might have an affect on moral and discipline. It's a judgment call. It's a judgment call a commander makes presumably after consulting with the qualified judge advocate and attorney.

MR. SMITH: To a degree that then and how well an offense or a potential offense might be known in the community and in the, the unit.

MR. NOONE: That's exactly right. And, if I may, I'll give an example from the Kelly Flinn case where it became known in the enlisted community where Lieutenant Flinn's boyfriend, married boyfriend lived that an officer, Lieutenant Flinn, was driving into the community to pick up her boyfriend. All the other enlisted families knew about this. That created a problem that wouldn't have arisen if, for example, the boyfriend and his enlisted wife had lived in a private apartment development off base.

MR. SMITH: Gender relations have become the most prominent sociological issue in the miliary and has garnered widespread military attention. Why is this issue so significant, even displacing racial relations?

MR. NOONE: Well, I think it's, it's become significant because there are more women in the armed forces than, now than there were 25 years ago. In 1972 there were roughly three percent of the forces were composed of women; now, only 25 years later, we're talking about 13 percent. So obviously there's that difference.

The other difference is that there are more married couples in the armed forces. The, the commandant of the Marine Corps made the point recently that ten years ago there were twice as many members of the armed forces as there were dependents (wives and children). Now there are twice as many dependents as there are members of the armed forces. Well, if, the increase in the number of women and the increase in the number of spouses, we're obviously moving from an all-male community or predominantly male community to a community where there're far more women involved. And that's going to lead to frictions and differences that literally didn't exist 10, 15, 25 years ago.

MR. SMITH: There's a perception that Article 134 is applied unevenly, particularly when very senior officers are involved. What is your view on this?

MR. NOONE: To outsiders that may be the case, and in, in reality there is a difference in, in application. If a private slugs a private, the private will probably get, who does the slugging, gets nonjudicial punishment, may not serve any jail time, may lose a stripe, and may return instantly to duty. If a colonel slugs a private, the colonel could either receive nonjudicial punishment or the colonel might be court martialed, or the colonel might be told to retire.

In terms of the kinds of punishments that are imposed on senior officers, they're more severe but they may not involve the code directly because a colonel is not going to be sent to jail for, for loss of temper for hitting an enlisted man, but his career is ruined the way that a enlisted man's career might not be ruined in the same fashion.

So there is a disparity, but that assumes that the senior officer is getting off more lightly. In fact, he's being treated more severely. It's become routine now for each of the services to force officers to retire not at the highest grade in which they've held but the highest grade in which, in the opinion of the service secretary, they've served honorably. This is used routinely in sexual harassment allegations. The officer has no opportunity to confront those charges in open court. The officer is simply told to retire at the lowest rate.

MR. SMITH: The Secretary of Defense Cohen was criticized for being willing to pass over an affair involving his nominee for chairman of the Joint Chiefs while only two weeks earlier, in a situation with similar but not exact circumstances, he insisted that another lower ranking general be held to strict standards, as he put it, of the military. What does this say about the equal application of military law and confidence of those in uniform that they can expect fair treatment?

MR. NOONE: The circumstances were similar in the case that both general officers were accused of, and apparently admitted, having engaged in adulterous activity. In one case the general officer's adulterous activity had been very recent, and he was in charge of an organization where he was literally responsible for bringing charges against drill instructors who were similarly charged with sexual offenses. In the other case the officer had committed the adultery 13 years before.

In both cases, if you will, the penalty was the same. The Secretary of Defense told the officers, I have lost confidence in you as a potential leader. In one case the Army commanding general lost his command, and in the other case the Air Force general, who'd been nominated for the highest job in the Department of Defense, was compelled to withdraw his nomination. And I don't think there's any doubt about the compulsion--he didn't do that voluntarily.

MR. SMITH: Another unusual aspect of gender relations in the military is fraternization. Would you explain what this is?

MR. NOONE: Yes. Fraternization has, a term that's had a long history in the military but only in about the last 10 to 12 years has gained much legal meaning. Fraternization was always seen to be a term to describe inappropriate relations between superiors and subordinates. The example I gave of the junior officer smoking marijuana with his troops back in the seventies, that was fraternization of this sort; the officer during the 1920s who'd go out and get drunk with his enlisted members of his unit. That was traditionally seen to be fraternization.

Fraternization gained gender overtones in the mid-1980s in a case involving a Captain Johans(?) (who, by the way, was stationed at the same base that Lieutenant Flinn was stationed at), where Johans, who had been dating enlisted women and was then forbidden to do so by order of his commander, disobeyed them, the commander's order, was charged with fraternization. And the Court of Appeals for the Armed Forces ruled that in the absence of a regulation which defined fraternization that could not be called a criminal offense. And ever since then the military has been struggling with an appropriate definition.

If I can, I'd like to say that this problem is not unique to the US armed forces. One of our NATO allies, some friends told me, that in their service the air force forbids officers from dating enlisted persons in the chain of command, but officers may date enlisted persons who are not in the chain of command. Their army has a rule which says that officers may not date enlisted persons.

An air force officer went into a bar with his army date. Her army boyfriend saw them together and struck the air force officer. The army commander insisted that the air force officer be court martialed because by army rules he was engaging in illicit fraternization. The air force officer's superiors demanded that the army sergeant be court martialed because by their standards the air force officer was not acting improperly.

These are issues which we can't imagine having arisen 15 years ago. But as all the armed forces in western Europe and in North America become gender-integrated, we're gonna see more of these kinds of problems.

MR. SMITH: Well, even in the US armed forces is there not a difference between the services as to what is allowed in terms of fraternization between officers and enlisted?

MR. NOONE: There is a difference, and as I understand it now the office of the Secretary of Defense is, is seeking to arrive at uniform rules. Whether or not that's a good idea to have uniform rules, it may be legally satisfying but whether or not it's appropriate to hold the Air Force, which seeks to reenlist 95 percent of its enlisted people in, in higher, in high technical skills and therefore is a more educated force with different relationships between officers and enlisted people, is it appropriate to hold the Air Force to the same standard that the Marine Corps is held to, where literally they don't want more than 20 percent of their young enlisted people to enlist because they're looking for young, strong infantry persons and nothing more than that. We're going to achieve some sort of leveling. Whether or not that's realistic is questionable.

MR. SMITH: The media has--

CAMERAMAN: Can you hold for a second?

MR. SMITH: Yeah.

CAMERAMAN: I'm just trying to get the voice (inaudible).

MR. SMITH: Okay. The media has reported incidents in which the Air Force has brought charges against officers who fraternized with enlisted persons, a relationship which led to the parties marrying. Why was the issue pursued after those involved became married?

MR. NOONE: I don't know the facts in these cases because typically journalistic coverage of these events is biased by the fact that the military is precluded from prejudicing a possible court martial case by disclosing all the facts. But in my experience and, and what I do know about these cases is typically marriage in and of itself between an officer and an enlisted person, even today, doesn't lead to punitive actions.

As I understand most of these cases, they involve situations where the officer had been asked previously whether or not he (and I think in all the cases between officers and enlisted it's been a male officer and a female enlisted person) whether or not he was engaging in, in an inappropriate social relationship, and in those cases he denied it. And this, I think, denial, lying, is a far more serious offense in the armed forces than the civilian community gives credit to it.

MR. SMITH: But it's not simply the fact of, of fraternization or dating that really is the problem per se in these cases. It's the added--

MR. NOONE: In my experience, in my experience the, the, no one has ever after the fact been punished for simply marrying someone of a different rank, enlisted status. They've been punished because they misled their superiors at the time the relationship was, was going on.

Now whether or not marriage should cure the lie is another kind of problem. I think the military takes a very strict position on that. I've read an interview with Lieutenant Flinn's commander, who said, once I knew she lied I had to pull her security clearance, which meant she couldn't go into the vault anymore. And for a nuclear bomber pilot to be refused access to classified information is a career ender, and that's what happened to her. That was long before charges were brought. It's once he knew that she'd lied.

MR. SMITH: Some observers have accused the armed forces of engaging in a form of puritanical witch hunt when it comes to gender issues, whether these involve heterosexual or homosexual relations. Does this charge in your view have any basis?

MR. NOONE: No, but I'd like to comment on both prongs of it. First of all, there's some observers, it seems to me, fall into two categories. Members of Congress, either a member of Congress like Representative Franks who has openly sought to change the rules regarding sexual behavior in the armed forces which is certainly his prerogative as a member of Congress, he, of course, appropriately challenges the military's interference in what he considers to be private matters.

The other members of Congress that I've observed making these kinds of comments are singularly ill-informed for people who are responsible for administering the armed forces. Senator Slade Gorton, who claimed to be an Air Force judge advocate although he'd never served as one on active duty, doesn't understand the Uniform Code of Military Justice. Senator Tom Harkin, who sought to be the Commander-in-Chief of the armed forces, and Senator Trent Lott, who is, represents the Republicans in the Senate, both in the Flinn case showed that they had absolutely no grasp of either the Uniform Code of Military Justice or even what Lieutenant Flinn was charged with. So I don't think that those are credible critics.

Media critics, of course, when they talk about puritanical comment, they're thinking of The Scarlet Letter--and I mean the movie, not the book. They want to portray this in an exciting way, and I think it's become clear after the fact that adultery in all of these cases is the least important issue. It's a question of trust and a question of obedience.

And in Lieutenant Flinn's case, after she'd been, after she promised not to have anything to do more with the man, she ended up by taking him home for Christmas. And the military learned of that when the man's wife, an enlisted woman, called and said that officer has taken my husband home for Christmas.

MR. SMITH: A followup, and if you skip this one we can, I recall it before one of the congressional committees, General Fogelman, who's retired Chief of Staff of the Air Force, made a very forceful statement about the Lieutenant Flinn case, and in effect, as I recall, was chastising the Congress for not understanding. Do you--

MR. NOONE: I remember that vaguely. And what struck me when the members of Congress spoke out, particularly about the Flinn case because to date that's been the one that's generated the most comment, the members of Congress who spoke out were clearly people who knew nothing, or very little, about the military. The members of Congress who I would have expected to speak out, particularly members of the Armed Services Committee on the Senate side and the, the, on the House side, were quite silent. I think it, they were silent because they knew enough to realize that the issues were more complex than were being shown on 60 Minutes and The Washington Post.

MR. SMITH: Federal and state legislatures meet annually and pass new laws over the old ones. How often has the UCMJ been significantly updated and what guidelines are applied when changes are made?

MR. NOONE: The Uniform Code of Military Justice has been amended, I would guess, 20 or 30 times since its passage in 1951. Most of those amendments are not significant to anyone except military lawyers. Even the more recent amendments (and I'm thinking of particularly the ones in the 1970s where military judges were given a different role and military defense counsels became more important) to outsiders would not be considered a significant change. The Code is overall unchanged since 1789, and I think that that's still true.

MR. SMITH: Do you believe the UCMJ still reflects values accepted by Americans in general?

MR. NOONE: I think it does. And of course what we're really talking about is whether or not Congress feels that the Code should be amended in the light of Congress's perception of changing values in the UCMJ.

We've been talking a lot about adultery, of course, and, and fraternization, and neither of those offenses are listed in the Congressional statute. They're both listed as the kinds of offenses that could be charged under Article 134. That list is prepared by the Office of the President within the executive branch. I find it hard to believe that this Commander-in-Chief, particularly, would ever seek to change the executive order decriminalizing sexual misconduct.

MR. SMITH: Shouldn't the UCMJ be more strict and be more strictly enforced than civil laws in terms of gender relationships?

MR. NOONE: As I've said before, I don't think that the way the laws has been applied focuses as much on gender relationship as it focuses on behavior which is seen either to bring the service into discredit. And that is a question as to whether or not that's an appropriate charge.

We've seen cases in civilian life where police officers have been punished for appearing topless in, in Playboy. We know that in the military that would, could result in a criminal punishment. It probably wouldn't, but it could. It certainly wouldn't happen to a police officer, who might or might not lose their job.

Should the military be held to a different standard? Well, I come from a tradition in which I think they should be. Others may differ.

MR. SMITH: On a related issue, does the fact that certain military specialties, such as infantry and armor, remain closed to women affect gender relationships across the entire force?

MR. NOONE: Well, that's been raised as a topic by a, a law professor at, at Duke University, who suggested that if we had more women in, in combat arms that it would be a kinder, gentler force. I doubt that. I think just the reverse. I think that if women were allowed into combat arms, they'd have to prove that they're as macho as the next guy and we'd see them engaged in more crimes of, of violence and, and battery.

I really don't see that having sisters in, in an infantry unit (and that's the term that the law professor suggested that the women be looked on, as sisters) is going to change either the, in any positive way it's gonna change the efficiency of the, of the unit. And after all, we're talking about training people who are ready to kill people and break things, 'cause that's what the military's all about.

MR. SMITH: Is, and this is really as I think I, I've said earlier, a question which goes way off the rest of the interview, is there any situation, such as a dire natural disaster or a large terror strike using weapons of mass destruction, in which martial law may be declared in the part of the country where the UCMJ would supersede civil law?

MR. NOONE: The last time that, that I know of where martial law was imposed was during World War II in Hawaii, and I think also, perhaps, in, in Alaska. At that time the threat of invasion which seemed to be sufficient that the military took over the regulation of all forms of civil society, including bringing people before military courts, not under the UCMJ but under similar treatment. Subsequently the Supreme Court, relying on precedent that dates back to the Civil War, held that martial law could not be imposed as long as the courts remained open, civilian courts remained open. So I can't foresee that happening realistically.

CAMERAMAN: I've gotta change tapes.

MR. SMITH: Okay. Well, we're (inaudible)--

Back to the case involving the two general officers who admitted adultery. One retired. His affair was five years in the past. And the Secretary of Defense, in a press conference, said that officers had to be held to a very strict standard--

MR. NOONE: Yes.

MR. SMITH: --which (inaudible) agree with. Yet two weeks later it seemed that, in the case of General Ralston, whose affair was 13 years in the past, that the strict standard rule just didn't come into question. Could you comment on that?

MR. NOONE: Yes, I will. First of all, I, I think that the Secretary of Defense acted appropriately in telling General Longhauser(?) that General Longhauser could no longer have a command where he was making decisions regarding sexual misconduct in view of this news. Whether or not General Longhauser had a future in the Army was something that General Longhauser and the Army would have to work out.

In General Ralston's case, the Secretary of Defense's initial response I think was an appropriate one: that what had occurred 13 years in the past, and not when the officer was exercising any command responsibility, didn't diminish his usefulness to the United States and to the people of the United States. I think that in, that obviously, it seems to me, the Secretary of Defense did not know about this relationship at the time he was considering General Ralston for the post.

So he was placed in a, a catch-up position. Was he gonna withdraw his support for his candidate once he knew of it? And I think that he, he looked back at the Senator Gary Hart incident, at the other allegations of sexual misconduct of members of Congress and of the executive branch, and said this happened so long ago I don't think my nominee will lose his credibility with the American people or with Congress.

Then the press descended. And I think that the Secretary of Defense thought, concluded that perhaps Ralston's reputation would be severely tarnished, even though he could be confirmed by the Senate, and he simply withdrew his support.

As far as holding someone to a different standard, I suppose if, if an officer had been involved in sexual misconduct as a second lieutenant, should that affect his qualifications when he's being considered for his, his fourth star, I'd say at some point it becomes remote and not proximate, and a decision has to be made.

But again, we're not talking about criminal prosecutions here. We're talking about suitability for a job, and the same employer can make different decisions about different people. Sometimes very difficult to articulate those distinctions.

MR. SMITH: Anything else on these--

MR. NOONE: No. I don't think so.

MR. SMITH: Any thoughts, anything, there is also that, I think it was a rear admiral--

MR. NOONE: Yeah.

MR. SMITH: --he was (inaudible)--

MR. NOONE: I don't know. Don't those guys have anything better to do? My theory is, my theory is that when the services began deemphasizing alcohol, discouraging--

(END OF TAPE)