Curbing Courts-Martial

While out on the town for a few beers in 1956, an Army sergeant named James O'Callahan broke into the hotel room of a teen-age girl on Waikiki Beach. There was a scuffle, the girl screamed, O'Callahan fled. He was later arrested by Hawaiian civilian police, turned over to the military for prosecution and charged with housebreaking, assault and attempted rape. At a court-martial, O'Callahan was convicted and given ten years at hard labor--a penalty harsher than he could have expected from many a civilian court.

As it threw out that conviction last week,* the U.S. Supreme Court indicated that the military's jurisdiction over such civilian crimes would henceforth be severely limited. In peacetime, ruled a 5-to-3 majority, unless the alleged crime is "service-connected," an accused serviceman in the U.S. may not be deprived of his constitutional rights to a grand jury proceeding and a trial by a jury of his peers. In O'Callahan's case, Justice William Douglas wrote for the majority, "there was no connection--not even the remotest one --between his military duties and the crimes in question." Normally, the military prosecutes only about 15% of all cases against servicemen charged with serious civil offenses. The rest are handled in civilian courts. But Douglas suggested that it was high time for the military to divorce itself entirely from purely civilian problems.

Precarious Dr. Jekyll. Douglas argued that U.S. military courts consistently dispense an inferior brand of justice. At courts-martial, he pointed out, enlisted men are tried by a panel that is usually composed of officers, who reach their verdict by a two-thirds vote, instead of by a jury of their peers whose verdict must nearly always be unanimous. The Uniform Code of Military Justice, Douglas noted, continues to be primarily an instrument of discipline and not justice. He indicted the system as "marked by the age-old manifest destiny of retributive justice" and as "singularly inept in dealing with the nice subtleties of constitutional law."

In a dissenting opinion, Justices Potter Stewart, Byron White and John Marshall Harlan complained that the decision furnishes few guidelines for selecting the type of crime that would be considered "service-connected." The ruling, they argued, puts the law into a "demoralizing state of uncertainty." The three Justices contended that the military has the right to purge criminals whose attitudes might corrupt others in the ranks. "The soldier who acts the part of Mr. Hyde while on leave," they said, "is at best a precarious Dr. Jekyll when back on duty."

The language of the majority opinion leaves open the possibility that a Supreme Court composed of members with different views may some day dilute the impact of the O'Callahan decision by defining broadly the kinds of offenses that are in some way service-connected. Nevertheless, the opinion establishes a strong precedent for wider federal court review of military tribunals in the future. That sentiment was best summarized by one sentence in last week's decision: "History teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty."

* Paroled in 1960, O'Callahan was imprisoned again after his conviction on a rape charge in Massachusetts. Released once more in 1966, he was returned to Federal prison for violating his original parole. Under last week's ruling, he will be freed before completing the last few months of his military sentence.

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