martial and the reference of charges thereto.1o The difficulty arises, however, when commanders seek to intensify their pre-trial relationship with either prospective or appointed court members beyond that degree of warmth expressly tolerated by the Code. The enterprising commanding officer is encouraged to explore beyond the precise prerogatives assigned to command by the UCMJ primarily as a result of certain language contained in a Presidential Executive Order purportedly implementing the congressional purpose expressed through the Uniform Code. Paragraph 38 of the Manual for Courts-Martial, 1951, provides:

41

A convening authority may, through his staff judge advocate or legal officer or otherwise, give general instruction to the personnel of a court-martial which he has appointed, preferably before any cases have been referred to the court for trial. When a staff judge advocate or a legal officer is present with the command such instruction should be given through that officer. Such instruction may relate to the rules of evidence, burden of proof, and presumption of innocence, and may include information as to the state of discipline in the command, as to the prevalence of offenses which have impaired efficiency and discipline, and of command measures which have been taken to prevent offenses. Except as provided in this manual, the convening authority may not, however, directly or indirectly give instruction to, or otherwise unlawfully influence, a court as to its future action in a particular case."

Needless to say, in view of the fact that the aforementioned provision extends far beyond the apparent limitations established by Congress pertinent to the role of military superiors in the administration of military justice prior to trial, the USCMA has experienced a significant division of opinion with regard to the legalty of paragraph 38, MCM, 1951.

The position with respect to paragraph 38 which has consistently commanded the allegiance of a majority of the high military court was initially expounded by the late Judge Brosman in 1953.43 Although expressing an inherent distaste for pre-trial relationships between a convening authority and tribunals of his creation, Judge Brosman observed that "on the whole, I incline to believe that seances of this nature are less necessary than dangerous." " Nonetheless, the Judge expressed a firm opinion to the effect that the provisions of paragraph 38, MCM, 1951, permitting pre-trial instructions to

40. UCMJ, arts. 22-24, 33, 10 USC §§ 822-24, 833.

41. MCM, 1951.

42. Id. par. 38.

44

43. United States v. Littrice, supra, note 38, at 496, 13 CMR at 52. 44. Ibid.

court members by superior commanders did no violence to the intent of Congress. Judge Brosman noted that prior to the enactment of the UCMJ, the Manual for Courts-Martial, 1949, interpreting and applying the Elston Act, contained a provision which was, in all material respects, identical to paragraph 38 of the present manual. Consequently, it was concluded that:

Since a well-defined administrative interpretation was extant under the prior statute, and since that statute was substantially reenacted, I find it impossible to conclude that Congress intended to invalidate the pretrial conference under the Uniform Code." The torch originally ignited by Judge Brosman has since been passed to Judge Kilday who, although expressly invited to reject the Brosman logic upon ascending to the bench, unequivocally endorsed it instead.40

Comprising a consistent and vocal minority of one with respect to the legal efficacy of paragraph 38, MCM, 1951, has been Judge Ferguson who, dissenting vigorously in United States v. Danzine," maintained that the legislative history of the UCMJ compels the conclusion that Congress intended to prohibit both the pre-trial lecture by a convening authority to an appointed court-martial, and the post-trial reprimand by the former of the latter with respect to the exercise of judicial responsibilities. In other words, Judge Ferguson has adopted a position that approaches the status of a per se prohibition of all intercourse between military superiors and courts-martial prior to trial. In reaching this conclusion, the Judge relied upon the fact that the UCMJ represented a balancing of the essential prerogatives of command with the legitimate demands imposed by Anglo-Saxon judicial experience; as a result, commanders were assigned certain specific functions under the Code and, pursuant to Article 37, UCMJ, prohibited from any further participation whatsoever in the administration of military law. The merit of this position is strengthened, in the opinion of Judge Ferguson, by the fact that prior to the arrival of the UCMJ one of the more heinous forms of command control exercised over courts-martial was the so-called "pre-trial lecture." Consequently, the Judge concluded that Congress intended its complete eradication.

Notwithstanding the persuasiveness of Judge Ferguson's position with respect to pre-trial communications between command and a courtmartial the rather legalistic position fashioned

45. Ibid.

46. See United States v. Davis, 12 USCMA 576, 580, 31 CMR 162, 166 (1961) (Kilday, J.)

47. 12 USCMA 350, 354, 30 CMR 350, 354 (1961).

by Judge Brosman and adopted by Judge Kilday and Chief Judge Quinn represents the opinion of the Court at the present time. This is not to say, however, that the USCMA will tolerate all communications with court members prior to a trial by court-martial. Quite to the contrary, lectures, directives and policy communiques slanted toward actual or potential court members by military authorities have frequently been cited as constituting an unlawful interference with the judicial prerogatives of the offended court members.48 Furthermore, in evaluating the propriety of a contested pre-trial communication, the Court has maintained emphatically that primary significance is given to a consideration of the subject matter of the controversial lecture or directive rather than to other circumstances of the case. Thus, in Danzine, Judge Latimer instructed that:

We have on prior occasions considered cases involving allegations of improper command influence and, when consideration is given to our holdings in this area, it is obvious that the subject matter of lectures dealing with military justice is the important consideration, and not whether they are delivered personally by the commanding officer nor whether they are given to court members only."

Consequently, any attempt to distinguish between permissible and improper pre-trial utterances must bottom itself upon a meaningful analysis of the subject matter of previously litigated pre-trial dialogues between command and court members.

Viewed solely in the light of subject matter, the peculiarities of permissible pre-trial communications are imprecise and, therefore, extremely difficult to enumerate. Nonetheless, an examination of pertinent opinions fashioned by the USCMA and of the subject matter represented within each contested communication suggests that at least two general categories of unobjectionable pre-trial intercourse can be isolated on the basis of substance with a reasonable degree of certainty: (1) Discussions which may be comfortably described as advancing broad and general instructions to court members pertaining to evidentiary matters or military judicial procedure, and which in no wise may be deemed coercive or directed toward a particular case or class of cases; and

48. See, e.g., United States v. Johnson, 14 USCMA 548, 34 CMR 328 (1964); United States v. Kitchens, 12 USCMA 589, 31 CMR 175 (1961); United States v. Olson, 11 USCMA 286, 29 CMR 102 (1960). The Court has held, however, that prejudicial error arising from improper command influence does not deprive the trial court of jurisdiction. United States v. Ferguson, 5 USCMA 68, 17 CMR 68 (1954) (see concurring opinion of Brosman, J., for several interesting theories supporting the Court's determination in this regard).

49. United States v. Danzine, supra note 47 at 351, 30 CMR at 351.

(2) Discussions which may be considered prophylactic in nature due to unusual conditions of widespread notoriety existing within the command.

With respect to the initial category of favvored command discourse, it will be noted that the language herein employed closely parallels that of paragraph 38, MCM, 1951. In view of the majority position of the Court with respect to paragraph 38, there can be no contesting its legal effect. Curiously enough, however, very few cases involving pre-trial command communications have been sustained solely because the substance thereof related broadly and generally to the areas outlined in the Manual. In one of the isolated instances where the USCMA did declare a contested document substantively harmless, a majority of the Court determined that a controversial Seventh Army Circular fell within the spirit, if not the letter, of paragraph 38 in that it urged court members to assume a stance of impartiality with respect to deliberations on findings and sentence, and to arrive at a decision without recourse to sentimentality.50

51

Contrary to the paucity of decisions pertaining to the first suggested category of permissible pre-trial command control, a number of opinions have been drawn rejecting allegations of illegality with regard to communications that have been prompted by extenuating local conditions. For instance, in United States v. Carter, 1 a pre-trial statement by the Commander-in-Chief of the United States' forces in Europe pertaining to methods of improving American-German relations was considered substantively innocuous even though uttered a mere two weeks after the accused allegedly had raped a German girl of tender years. With respect to the contested communication, the Court concluded: "From its tenor, it is apparent the document was a prophylactic memorandum and not a court interference scheme." 52 larly, in United States v. Navarre, 53 the Court gave judicial approval to the pre-trial remarks of a command representative who had mentioned the fact that a court member's fitness report would be affected by the performance of his judicial duties. The decision in Navarre is even more impressive in view of the fact that previous cases had concluded that references to fitness reports in pre-trial lectures could be con(Continued on page 110)

Simi

50. United States v. Littrice, supra note 38. 51. 9 USCMA 108, 25 CMR 370 (1958). Accord, United States v. Hurt, 9 USCMA 735, 27 CMR 3 (1958). 52. Id. at 113, 25 CMR at 375.

53. 5 USCMA 32, 17 CMR 32 (1954).

FAILUR

AILURE OF THE U.S. Merchant fleet to meet commitments to carry surplus wheat to the Soviet Union in 1963 emphasized the condition of the U.S. Merchant Marine at that time and as a consequence planted the seeds for much of the controversy that has followed concerning the adequacy of that fleet. It will be recalled that among the conditions of the sale was one that stipulated the wheat would be carried in American bottoms when available. There was great concern that this stipulation might prevent the sale in view of the fact that American bulk cargo rates were running some $10 a ton higher than foreign ship rates. After considerable negotiations it was finally agreed on 3 November 1963, that 50% of the wheat purchased would be carried at $18 per ton, in American bottoms. Subsequent attempts to meet the commitment of transit in American bottoms failed because of the unavailability of American merchant shipping and the larger of the two shipments contracted for was moved in only 37.5% American bottoms.

I. CURRENT NATIONAL POLICY ON MERCHANT MARINE AS PROVIDED IN 46 U.S.C. 1101

A. Purposes

Any discussion of the U.S. Merchant Marine is fraught with controversy. There are advocates of expansion as opposed to those who would curtail the fleet. There are those who would extend subsidization as opposed to those who would abolish it. The advocates of extending the concept of "effective control" are confronted with those who deny there is "effective control." It is impossible to find a single area relating to the U.S. Merchant Marine where all are in agreement, save the general statement of policy which provides that there shall be a merchant fleet capable of serving the commercial and security requirements of the United States.

In order to evaluate future needs it is necessary to examine the current basis for our U.S. *Commander Newsome is currently assigned to the Administrative Law Division, Office of the Judge Advocate General. He holds a B.A. degree from Brooklyn College and the LL.B. degree from New York University. Commander Newsome is a member of the New York bar, the bars of the Court of Military Appeals, and the United States Supreme Court. He recently participated in a Merchant Marine study group in the Department of the Navy.

merchant fleet and to decide initially whether we have the proper tools for providing for an adequate one. The many existing laws, regulations, agreements and orders which are associated with the U.S. Merchant Marine comprise the legislative and administrative basis for our present merchant fleet. Of necessity certain changes have been made through the years and the need for others will become apparent. No analysis can be complete unless the various positions of the advocates and opponents of change are examined. Consequently an historical approach to much of the legislation and administrative acts will assist in an understanding of their purposes and will enable the reader to evaluate their present degree of utility for meeting the potential requirements of national defense.

The Merchant Marine Act of 1936 has been called the Magna Carta of the American merchant marine. Primarily it realized the need for a healthy American merchant marine and breathed new life into the merchant marine fleet. It restored confidence to American shipyards and hope to seafaring trade. It actually implemented policy which had existed dormantly since it was first set forth in the earlier Merchant Marine Act of 1920 and reaffirmed in the Act of 1928. Its purposes were limited to: (1) securing a place in ocean transportation necessary to national defense and (2) properly promoting and developing foreign trade. The new tools made available in the act have, however, proved to be most effective in accomplishing these purposes.

B. Policy Statement

The current declaration of national policy with respect to the merchant marine is stated in Title 36 U.S. Code Sec. 1101. It provides:

It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the waterborne export and import foreign comerce of the United States and to provide shipping service on all routes essential for maintaining the flow of such domestic and foreign water-borne commerce at all times, (b) capable of

serving as a naval and military auxiliary in time of war or national emergency, (c) owned and operated under the United States flag by citizens of the United States insofar as may be practicable, and (d) composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned with a trained and efficient citizen personnel. It is declared to be the policy of the United States to foster the development and encourage the maintenance of such a merchant marine.

C. Historical Development and Analysis This policy in its present form was expressed some 29 years ago at a time when the United States was essentially a self-sufficient nation. Today, in direct contrast to the situation in 1936, the United States is a raw material importing country (particularly in petroleum and metals) dependent as never before on overseas transportation for importing raw materials and exporting manufactured goods. Consequently, that portion of the national policy as outlined in subsection (a) above, "sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service on all routes essential for maintaining the flow of such domestic and foreign water-borne commerce at all times", is applicable today but to even a greater extent than envisioned by the framers of this legislation. Sino-Soviet competition as part of their political-economic war could not have been anticipated at the time of the declaration of this policy, but its terms are broad enough to allow implementation to meet the challenge of any future economic confrontation.

The merchant marine has alternately been considered an instrument of peace and an instrument of war. The statement of national policy characterizing the merchant marine as a necessity of national defense has not been changed, but the period in which that policy is examined will reveal the tone of the times. Prior to World War I the merchant marine approached the vanishing point and again from 1920-1936 not a single ocean going dry cargo merchant vessel was constructed in American yards. Naturally the impetus provided by two World Wars substantially increased our merchant fleet on both occasions, but the fading din of battle revived maritime apathy. Current preparedness programs and studies projecting future inadequacies have, however, focused the need for proper planning to fulfill the capabilities required under section (b) of the statement of policy, above, "capable of serving as a naval and military auxiliary in time of war or national

emergency." Other provisions of the act will permit unlimited expansion for emergency needs (§§ 210, 502 and 902 Act of 1936) subject only to allocation of funds. Consequently it must be concluded that legislation to meet emergency or wartime capabilities as set forth in section (b) of the statement of policy has been adequately provided for in the Act of 1936.

In a report of an Interdepartmental Committee on Shipping Policy appointed in 1935 by the Secretary of Commerce with the approval of the President, certain particular proposals with regard to the U.S. merchant marine were set forth. Fundamental objectives were established therein providing in part that the U.S. merchant marine should be privately owned, operated by citizens of the United States, with vessels built in the United States, and manned by U.S. officers. These objectives were considered desirable: (1) to secure steamship service over routes essential to our commerce which the steamship services of other countries might not provide, (2) to secure the beneficial effect of the control of general shipping rates which the existence of a U.S. controlled merchant marine assures, and (3) to have available at all times a supply of tonnage to meet our urgent needs in the event of the withdrawal of foreign ships in time of crisis or emergency abroad. Other considerations were the proper maintenance and organization of American shipyards and the support of a National Merchant Marine Academy. Consequently the basis for the statement of policy in subsection (c) above, "owned and operated under the United States Flag by citizens of the U.S. insofar as may be practicable," is apparent if the objectives outlined above are to be realized. Implementation of this statement of national policy is evidenced by the establishment of the differential subsidy program for both the construction and operation of merchant vessels. With minor changes throughout the years these subsidies have provided the needed impetus to maintain a merchant fleet under the U.S. flag to meet current needs. Projected needs are however, presently cause for concern and there are varied opinions as to how these needs can be met both within and dehors the framework of the Act of 1936.

That part of the national policy which provides that our merchant marine shall "(d) be composed of the best-equipped, safest, and most suitable types of vessels constructed in the U.S. and manned with trained and efficient citizen personnel," forms the basis for those advocates of a commercially competitive merchant fleet with a minimum of subsidy. Their position is

that the answer to foreign competition is mechanization and automation in both ships and ocean terminals which will permit the United States to compete successfully in the world market. The suitability of ships for national defense purposes is insured under the Act of 1936. Provisions are contained therein for the incorporation of national defense features on ships built under construction subsidies. In addition, extensive and comprehensive research and development programs insure the modernization of these ships. The manning of our merchant fleet is carefully regulated by Title III of the Act and only under unusual circumstances are departures from the stated policy, requiring that ships be manned by citizen personnel, permitted.

D. Adequacy

The declaration of national policy with respect to the merchant marine as contained in the Act of 1936 is therefore sufficiently broad in scope and flexible in application to accommodate our present needs. A revitalized, competitive merchant marine which can be self-supporting is the ideal. Whether this goal can be attained through modernization and automation is speculative; but however the ideal can be obtained there is nothing in our present national policy which would obstruct any foreseeable plans for modernization and expansion.

II. RESPONSIBILITY OF SECRETARY OF COMMERCE FOR CARRYING OUT THE NATIONAL POLICY, TITLE 46 U.S. CODE SEC. 1120

A. Historical Development

The Secretary of Commerce traditionally has not been charged with the responsibility of carrying forward the national policy as set forth in the Merchant Marine Act of 1936. Originally, under the Act, this responsibility was vested in the United States Maritime Commission although serious consideration had been given at the time the Act was introduced to placing much of the responsibility for its enforcement under the Secretary of Commerce. (Senate Report 1226, 74th Cong., 1st Sess., on Merchant Marine Act of 1936). It was reasoned that the vesting of this responsibility in the Interstate Commerce Commission was inappropriate because although it is concerned with transportation, it is essentially a regulatory body dealing with transportation over land, principally railroads. Burdening the newly created Maritime Commission with the responsibility was also considered to be inappropriate because it was obvious that

it would be immediately unable to cope with the many problems heaped upon it. In spite of these misgivings the Commission was initially saddled with all of the regulatory and administrative responsibilities under the Act of 1936. The United States Shipping Board had applied itself with some degree of success under the earlier Merchant Marine Acts of 1920 and 1928 and it was reasoned that the U.S. Maritime Commission would similarly be in the best position to oversee and be responsible for carrying forward the national policy.

It was not long after the Act of 1936 had been put to its most severe test during World War II that the inadequacies of this delegation of responsibility were recognized.

In 1947 the President's Advisory Committee on the Merchant Marine, and in 1948 a management survey of the Senate Committee on Expenditures in the Executive Department and the Hoover Commission agreed that the Maritime Commission's position was anomalous. It was an independent agency of the executive branch of the Government outside the control of the President since he had no authority to require that it conform with the general policies of the Government. The matters with which the Commission dealt affected many other departments and agencies but it was able to operate without regard to national policy. In performing its quasi-judicial, quasi-legislative and regulatory duties there was an advantage in shielding it from political influence and reprisal. However, as a promotional agency, as an operating arm of the Government and as a potential military auxiliary it was considered that it should be controlled directly or indirectly by the President and be operated in conformance with current national policy.

The Hoover Commission recognized that the main objection to the Maritime Commission was that it was at the same time both regulatory and operating and promotional. It felt that these regulatory functions should be performed by an organization separate from that which is responsible for the operating and promotional activities.

Plan #21 of the Reorganization of 1950 proposed placing many of the functions of the Maritime Commission under the Secretary of Commerce. In establishing the Department of Commerce the Congress had provided in the organic act of the Department that:

It shall be the province and duty of the said Department to foster, promote and develop the foreign and domestic commerce . . . shipping . . . and the transportation facilities of the U.S.

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