Establishment of Military Justice

808 ESTABLISHMENT OF MILITARY JUSTICE .
My own assent was in effect that the power could be deduced from the statute ,
if the Secretary thought it advisable to attempt it at this time, but I advise d
Gen. Ansell against the form of action which he proposed to take in that an d
similar cases. He believed that the power should reside in the Judge Advo-
cate General to take any corrective action that might be found necessary in a
court-martial case. He was not satisfied with the procedure which had there-
tofore been followed of making recommendations to the Secretary of War, or
through him to the President, and letting the corrective action be taken i n
obedience to an order issued by the Secretary of War, or under the directio n
of the Secretary . In this mutiny case, to which I referred, he accepted my re -
view of the case, but changed the concluding paragraph of the review . He in-
troduced language of this kind, which, I think, had never before been use d
in a review prepared in the Judge Advocate General's Office : " I hereby set
aside the judgment of conviction and the sentence in the case of each of thes e
several defendants, and recommend that the necessary orders be issued restor-
ing each of them to duty ." It was Gen. Ansell's contention that this ultimat e
power of saying whether the verdict of a court-martial should stand shoul d
be vested in the Judge Advocate General rather than in the Secretary of Wa r
or in the President . From that particular view I strongly dissented at th e
time the brief was prepared and advised Gen . Ansell against taking that posi-
tion . I told 111111 that the logical outcome of such a position would be that h e
(the Judge Advocate General )would be asserting the right to reverse or modf y
or set aside the completed action of even the President of the United State s
in cases where he might be the reviewing or confirming authority . Gen . Ansel l
replied that he would not hesitate on that account ; that he thought the prin-
ciple was right, and he was willing to go to the extreme limit . This opinion,
which Gen . Ansell submitted to the Secretary of War in support of his positio n
was, by the Secretary of War, referred to Gen . Crowder, and almost immedi-
ately thereafter Gen . Ansell received a note from the Secretary of War whic h
he (Gen. Ansell) showed me, in which the Secretary said that Gen . Crowder
had found it possible to so divide his time that he could give a part of each da y
to the office of the Judge Advocate General, and that he was sure Gen . Ansell
would be glad to welcome Gen . Crowder back to his official family . Gen .
Crowder thereupon returned to the Judge Advocate General ' s Office and re-
sumed control .
Q . Upon what date was Gen. Ansell's memorandum of November 10, relativ e
to the construction of section 1199, Revised Statutes, submitted to the Wa r
Department?A . I would say, from my recollection of the matter, that it wa s
probably submitted on that same date, or not more than one or two day s
thereafter . I mean by dateNovember 10 . I might say in fuller explanation
of that that the memorandum which had been prepared in the mutiny case, an d
which bears the date of October 30, 1917, was held in the Judge Advocat e
General's office and submitted to the Secretary of War with the memorandum
which Gen . Ansell prepared in support of his views as to the construction o f
section 1199, Revised Statutes .
I discovered that Gen . Crowder had prepared and submitted to the Secretar y
of War an opposing brief of his views prior to his return to the Judge Advocate
General 's office. Within a day or two after his return he gave me a copy o f
his brief and asked that it be made the subject of study in the Disciplinary Di -
vision of his office . This was done . He, about that time, or shortly thereafter ,
directed Col . Clarke, who was my principal assistant, and myself to make a
further study for the purpose of ascertaining and stating at length the argu-
ments which could be deduced from a study of the law and the decided cases
in support of his view of the statute . Col. Clarke and myself made this
thorough study and investigation and we discovered what had been overlooke d
in the first study of this matter and what, I think, Gen . Ansell had also over -
looked ; that the very point he was contending for had been made the subjec t
of a decision in one of the Federal courts in a district of New York and decide d
adversely to his contention. We collected these authorities for Gen. Crowde r
and began the study of what action could be taken by the War Department t o
prevent the infliction of hardships in any case tried by military court whic h
night result in a change of status before the case was reviewed by the Judg e
Advocate General ' s office. It had been Gen . Ansell's contention that ful l
justice could not be done the men in the mutiny case because they were dis-
honorably discharged and the discharge had been executed and the men coul d
not be put back until they themselves applied for restoration . We made thi s
study for the purpose of determining whether there was a method of staying

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808 ESTABLISHMENT OF MILITARY JUSTICE .

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