Defending America: Military Culture and the Cold War Court-Martial (review)

From the earliest times societies have recognized a need for separate legal codes for their military forces and these have been codified into formal law codes. Legal scholar and historian Elizabeth Lutes Hillman seeks to track the history and effectiveness of the United States military's Uniform Code of Military Justice (UCMJ) from its inception in the Cold War (1950) to the end of the 1980s, along with the underpinnings of its actual use, which she states are violence and repression against minorities, homosexuals, and those whom she labels as "dissidents" (primarily deserters, war protesters in uniform, and defectors/spies) and how this power and subjugation played out in courts-martial of the era.

Hillman begins her provocative work by examining the state of the post-World War II military and what led to the creation of a combined judicial code for the armed forces. With the military in a state of flux after the war and its demography having changed massively (p. 1), its dichotomous nature became more apparent: it defends freedom by depriving service personnel of freedoms or curtailing them and the court-martial was where the "tension between military tradition and liberal democratic" ideals was most obvious (p. 2).

Much of her study deals with various types of sex crimes, and other similar misconduct. Hillman explains the military's need for control, using modernist theories that fail to convince; whether dealing with issues of homosexuality in the ranks, sexual assaults, murders due to hatreds or being incited by "notions of men's right to purchase and control female sexuality, a right that was closely associated with military service and racial hierarchies" (p. 102).

There are some serious problems with Hillman's study, not the least of which is her methodology. Instead of examining all courts-martial or a scientifically gathered sample, Hillman looks only at records from the Military Court Review (MCR), arguing that these were more important since they represented the most serious cases (general courts-martial), although admitting they were also numerically the fewest. Yet by doing this, she not only introduces selection bias, but ignores the overwhelming majority of the courts-martial (special and summary) during the period. Thus, although she makes sweeping generalizations based on her research, her research is severely limited and thus she cannot support these general assertions to the standard of either legal or historical studies.

Another common issue in Hillman's book is her use, or nonuse, of detail. This is not a mere criticism of descriptive taste, but of leaving out relevant information that, if included, directly contradicts the conclusions drawn. One of the more egregious of these is Hillman's description of nonjudicial punishment (NJP) under Article 15 of the UCMJ. While commenting on the process of posttrial punishment, after stating that the accused was almost always convicted during court-martial (pp. 20–21), Hillman argued that the reason for the high conviction rate was the availability of NJP, stating that this type of punishment "circumvented the due process set out in the UCMJ" (p. 20); thus, one is left with the logical conclusion that the UCMJ violated itself or the U.S. Constitution. The problem here is that, as every former military officer (Hillman served as a U.S. Air Force officer) should know, each service member has the right to refuse such punishment, except while underway at sea. In the case of such a refusal, the commander has to choose whether to go forward with a case that might not win at trial, or to drop the matter. This reviewer personally knows of an instance where the matter was dropped after the service member refused to accept Article 15 punishment. This type of selective description is common throughout and mars Hillman's study.

Aside from the almost exclusive use of the CMR cases, Hillman uses many books of questionable objectivity. Obviously, this is not...