“It is well if the court shall acquit thee;
It were best hadst thou never been tried.”
*I have referred to the Court of Inquiry only in this article; the Board of Investigation is analogous.
The purpose of the Court of Inquiry is set out in section 1042, Naval Courts and Boards, 1923: “Purpose.—In important cases, where the facts are various and complicated, where there appears to be ground for suspecting criminality, or where crime has been committed, or serious blame incurred without any certainty on whom it ought chiefly to fall, a court of inquiry affords the best means of collecting, sifting, and methodizing information for the purpose of enabling the convening authority to decide upon the necessity and expediency of further judicial proceedings.” Section 1041 states that the convening authority “should remember that any action taken in a matter subsequent to its investigation by a Court of Inquiry is taken upon the initiative of the convening authority in his administrative capacity. The function of the Court of Inquiry is merely to aid such officer in the performance of his administrative duties, and is not to relieve him of responsibility for his administrative acts.” This provision of section 1041 is not to be found in Naval Courts and Boards, 1917. It must have been added for a purpose. The purpose would seem to be to emphasize the fact that whether a convening authority orders a court-martial, or takes other disciplinary action, as a result of a Court of Inquiry, or simply upon the facts as known to him and without recourse to any board, is immaterial. So far as concerns the convening authority whatever action he takes is his own and the responsibility is his. This responsibility cannot be shifted in the slightest degree to a Court of Inquiry.
In a large number of cases where a Court of Inquiry is now convened it is submitted that the Court of Inquiry does not actually aid the convening authority in arriving at a determination as to his course of action as to any particular individual. This for the reason that there are certain fundamental differences between the Court of Inquiry and a trial which it is believed are frequently lost sight of and are apt to mislead, and furthermore, because the case does not come squarely within the purpose of the Court of Inquiry. The differences between a Court of Inquiry and a trial will be taken up later. First let us examine the provisions governing the convening of a Court of Inquiry to see if it is mandatory to convene one in any case, and if so, in what.
Section 1043 of Courts and Boards reads: “When to be convened.—Officers so empowered are expected, on the occurrence of any matter serious enough in their judgment to require thorough investigation, to order a Court of Inquiry as soon as practicable. Among such occurrences are included the following:” This section in itself would appear to require a Court of Inquiry in practically any serious case. But the two following sections are virtually a continuation of this section, covering the most probable and most serious cases. It should be noted that section 1044, dealing with accidents involving loss of life, provides that the circumstances be as set forth in section 1042, that is to say, in what is conceived to be the most usual case, where serious blame has been incurred without any certainty on whom it ought chiefly to fall. If there is certainty on whom the blame ought to fall, it is submitted that a court-martial may be ordered at once, and a Court of Inquiry is not mandatory. Section 1045, dealing with cases involving serious damages, requires a Court of Inquiry in cases of collision, grounding or other important casualties (not involving loss of life, which would come under the preceding section) which convening authorities “deem necessary to be investigated.” This leaves a wide discretion with the convening authority. He clearly is not required under this provision to deem a case necessary to be investigated where he is convinced that a court-martial will bring out all the facts and that a Court of Inquiry will accomplish no result at all commensurate with the time and energy it will necessarily expend.
The fairest and quickest investigation of facts in the Navy is the captain’s mast. The convening authority of a Court of Inquiry cannot hold mast. But he can have an officer of his staff hold it for him, digest the results and lay them before him. This could probably be best accomplished under our procedure bv ordering the officer to investigate under the authority of section 183 of the Revised Statutes, as set out in chapter fifteen of Courts and Boards. This officer should find facts; he should express no opinion in writing. Such proposed course of action would enable one officer to do what three are now required to do, and would, in most cases, result in its being done better. The ordinary board is “long, narrow and wooden.” It is an unwieldy instrument. A one-man investigation may be as narrow and wooden, but in length more resembling a club—often a very useful instrument. At any rate, the responsibility is the convening authority’s. A member of his staff, being in close personal contact with the convening authority, can very easily learn just what the latter wants and can get the facts for him.
Reverting to the statement that a Court of Inquiry is apt to mislead, it should be noted that by Article 67 of the “Articles for the Government of the Navy” a Court of Inquiry shall express its findings of facts only, and that the expression of an opinion is the exception. A recommendation by a Court of Inquiry is not mentioned in the law. It has been foisted upon the procedure. If the Court of Inquiry were confined to the expression of facts it would not tend to mislead. But the opinion and recommendation have become the rule, not the exception. Even if the Court of Inquiry were confined by its precept to the finding of facts, why waste the time of three men where one man could do the job even better? The precept of a Court of Inquiry given in section 1076 of Courts and Boards orders the court to include in its findings a full statement of the facts it may deem to be established. This requirement is essential if the Court of Inquiry is not to be abortive. Emphasis should be laid on the word “deem.” Then, and necessarily based upon these facts “deemed” to be established, the court is ordered to express an opinion and to make recommendations. Now “deeming” a fact to be established is a far cry from having that fact proved “beyond a reasonable doubt.” The first is what is called in technical language “the preponderance of the evidence” and is explained in section 605 of Courts and Boards; the second is familiar to all officers. From this difference in function comes the discrepancy so often remarked between the opinion given by the Court of Inquiry and its recommendations, and the results reached by the subsequent court-martial. The Court of Inquiry tends to recommend too many courts-martial. We should err by having too few.
As an illustration let us imagine a serious accident in which a number of individuals are involved. There is no question but that serious blame has been incurred. There is no question, from the inherent nature of military organization, but that this ought chiefly to fall upon the responsible senior officer. The only question is upon what subordinate officers ought it to fall also? The one-man investigation starts. As this one man is interested in facts only, he works fast. He is not trammeled by the necessity of forming an opinion. Upon the conclusion of his work he lays the record before the convening authority. The latter, at his convenience, having the investigating officer practically always at hand, questions him: “Upon what evidence do you find this as a fact?” The investigating officer explains. The convening authority decides whether that evidence would be sufficient to establish the fact beyond a reasonable doubt. Finally he determines upon his course of action: “There is no question but that A, who was in command, is largely to blame. It was his duty to keep himself informed. You have found that he failed in this. Even if your finding is too much snap judgment still the conclusion is inevitable that if he were informed he failed to act properly upon his information. In either case he must be court-martialed. With regard to B, you find that he failed in his duty of keeping A thoroughly informed as to the conditions. B is in the same boat with A. As to C and D, I doubt from what I now know that a court-martial would convict them. If it would not they should not be tried. At any rate enough will be brought out in the trials of A and B so that I can then decide about C and D. Draw up the charges and specifications for A and B, and in doing so remember that at the start, at least, we were all endowed with our share of the milk of human kindness.”