The catastrophe involving the U.S.S. Greeneville, an American submarine, and a Japanese vessel, a tragedy which led to the deaths of many of the Japanese vessel's passengers, has also led to the convening of a naval Court of Inquiry, a legal proceeding which has brought into the light an ancient aspect of the laws of war. To understand what has been taking place at the Court of Inquiry, it is necessary to understand several important aspects of military law and, in particular, of the law of the sea.
One must begin with a very basic proposition: military law is very different from civilian law and the proceedings under military law are also very different from civilian legal processes. This difference has been recognized by the Supreme Court of the United States. In the 1953 case of Burns v. Wilson the U.S. Supreme Court said that miliary law "is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment."
Military law must be different because those who serve in the military do so under a system of discipline designed to deal with a very different way of life than civilians experience. Military personnel devote their lives to defense and, if necessary, war, even to the extent that they must obey orders which may lead to their own deaths. Military personnel also have control of weapons whose destructive potential is vast; this, too, necessitates a different legal regime. For centuries military law has been viewed as something profoundly different from civilian justice and this view of the law continues today.
The Court of Inquiry is a legal process that, in the United States, dates back at least as far as 1786 when Congress adopted the Articles of War designed to regulate the new country's military forces. According to the standard historical treatment of military law in the United States, Winthrop's Military Law and Precedents, a Court of Inquiry "is really not a court at all." It involves no trial nor judgment, civil or criminal.
Instead, the purpose of the Court of Inquiry is investigative, it is to "examine and inquire." Ultimately it may lead to a prosecution and court martial, but, those who preside at the Court of Inquiry are there to learn as much as they can about what happened in a given situation.
In the case of the Greeneville, the purpose of the Court of Inquiry is to decide whether the captain of the submarine or any of his crew acted in a manner inconsistent with their responsibilities as officers and whether such actions were in violation of military law. If they determine that there was a dereliction of duty, then a court martial might follow. Thus, the rules followed at the Court of Inquiry are quite different than those which would be followed at a court martial or a civilian trial.
To a large degree, they are far looser and testimony may be allowed at a Court of Inquiry which would not be allowed in a more formal trial process. But this does not mean that such a court is unfair to those who may later be subject to prosecution. The institution of the Court of Inquiry is one known to all military officers and it is one that has been used for centuries.
There have been a number of famous Courts of Inquiry in American history. In 1780, then General George Washington convened a Court of Inquiry to investigate the actions of Major Andre, who was found to have been a British spy. President Andrew Jackson, himself a former military commander during the War of 1812, convened a Court of Inquiry in 1836 into the command decisions of Generals Gaines and Scott during the Creek Wars. Several Courts of Inquiry were convened during the Civil War by President Lincoln to investigate the major defeats experienced by the Union armies. Indeed, Courts of Inquiry into Civil War activities continued as late as 1874.
While military law and procedure is different from its civilian analogues, it is not fair to conclude that it is either inferior or less just. The officers of the Greeneville are career officers and they understand the world in which they live. They understand the importance of obedience and duty and care. And, I'm sure, that they understand that the Court of Inquiry and the officers who preside over it take their duty of investigation seriously and their need to find out what happened but to do so in a fair and just manner, equally seriously. We may all learn a great deal about the military system of justice in the next months as the Greeneville saga unfolds and that is a good thing.
No comments
Commenting is turned off for this story.