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Excerpted From: Dru Brenner-Beck and John A. Haymond, Racial Inequities in Military Justice: Déjà Vu, All Over, and Over, Again, 61 South Texas Law Review 535 (Winter 2021) (58 Footnotes) (Full Document)


BrennerBeckAndHaymondIn the summer of 2020, the House Armed Services Committee held hearings on the 2019 General Accountability Office (GAO) Report detailing demonstrated racial inequities in the administration of military justice. At the direction of Congress, this report, Military Justice: DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial and Gender Disparities (GAO Disparity Report), was issued by the United States General Accountability Office (GAO) in May 2019. It analyzed military justice data collected from 2013 to 2017 and substantiated disturbing findings on racial inequities in the administration of military justice in the armed services.

In the 2020 hearings, The Judge Advocate General (TJAG) for each military service testified--acknowledging the disturbing statistics disclosed in the GAO report. Despite the passage of more than a year from the report's issuance, no TJAG was prepared to give answers to explain the existence of the racial disparities. This problem is not new. Although ostensibly race-neutral, in reality, military justice has long struggled with issues of racial inequities in its administration. Despite the U.S. military's role in leading the nation in the amelioration of racial discrimination resulting from President Truman's order requiring the integration of the military in 1948, in the past seventy-four years, the U.S. military has grappled with its own legacy of institutional racism. In 1972, then-Secretary of Defense Melvin Laird created a task force to determine the nature, extent, and causes of racial discrimination in the U.S. military. This Task Force on the Administration of Military Justice in the Armed Forces (1972 Task Force) determined that intentional and systemic discrimination remained in the armed forces, and both actual and perceived racial discrimination adversely affected discipline and the related military justice system. Although the military implemented many of the remedies recommended by the 1972 Task Force, the 2019 GAO Disparity Report substantiated the continued and persistent presence of racial inequities in the administration of military justice. The truth is that racial discrimination in military justice goes back much further than the mid-twentieth century.

From November 1917 to March 1918, the Army tried 118 African-American soldiers for their alleged roles in what was termed the Houston “Mutiny” or “Riot” in a series of three courts-martial (United States v. Nesbit, United States v. Washington, and United States v. Tillman). By the end of the third trial, the Army convicted 110 of the soldiers. Thirteen soldiers convicted in Nesbit were sentenced to death by hanging. Under a legal technicality possible because the nation was at war, their sentences were executed on December 11, 1917--within twelve hours of the findings and sentence of the court-martial being approved by the Convening Authority, MG John Ruckman--and without any outside review or opportunity to seek clemency. An additional six soldiers tried in the subsequent trials (Washington and Tillman) were executed in 1918. None of the white officers of the unit were charged, despite explicit recommendations by the two Inspector Generals who investigated these events that charges be brought against two specific officers. Major Kneeland Snow, the battalion commander on the night of August 23, 1917, was later promoted by the Army.

The Nesbit, Washington, and Tillman courts-martial are replete with significant due process failures, in addition to the execution of the original thirteen death sentences without outside review. The unreviewed executions resulted in a national outcry. In an attempt to prevent such hasty executions from recurring during World War I, the Army implemented General Order No. 7 on January 17, 1918, prohibiting the implementation of any sentence to death or dishonorable discharge without review by the Army Judge Advocate General. The decision to execute the thirteen soldiers with no review or opportunity to seek clemency was legal, but General Ruckman's decision violated long-standing Army tradition and was never intended to operate within the United States--far from an active battlefield. The executions were criticized in Congress and roiled the African-American community. Nevertheless, prominent African-American leaders decided to “close ranks” with the U.S. Government and support the war effort against the enemy in Europe. Few military lawyers know of these trials--let alone that they contributed to the development of the first appellate process in U.S. military law, and fewer still know of the racial prejudice that permeated the trials and their aftermath.

On October 27, 2020, the authors of this essay, working with the Houston branch of the NAACP and South Texas College of Law Houston, petitioned the Secretary of the Army for posthumous clemency for all 110 soldiers convicted in these three courts-martial based on the egregious due process failures in the three trials. The Petition specifically asked that the characterizations of discharges be upgraded to honorable. On December 5, 2021, an Addendum to this Petition was submitted to the Secretary seeking both the upgrading of all characterizations of service to honorable and the forwarding of the Petition and Addendum to the Army Board for the Correction of Military Records (ABCMR). The Petition and Addendum asked that the ABCMR determine if all convictions from the three courts-martial should be overturned based on the numerous serious identified flaws, and requested the Army to review the clemency request “through the lens of its values, which have been enduring and founded upon honor, respect, integrity, and loyalty.”

A similar clemency request was granted by the Army in 2007 for forty-one African-American soldiers convicted in the 1944 court-martial United States v. Alston based on due process flaws that were remarkably similar to, but far less egregious than those present in the three Houston courts-martial. United States v. Nesbit, the first of these trials, is the largest court-martial in U.S. history and a seminal example of inequity in the administration of military justice--for no one seriously contends that had the defendants been white, the due process irregularities and unreviewed executions would have been countenanced by either the Army or the nation. The two later trials only compounded the inequities which we describe below. Because these soldiers deserve the loyalty of the Army and the nation they served in peace and war, the Petition and Addendum asked the Army itself to correct the injustice experienced by the 110 convicted soldiers.

As a reflection of American society, integration of the U.S. armed forces has been “detailed and often dependent on the political, social, and cultural context of the [relevant] era.” Prior to the twentieth century, African-Americans served in every American conflict. Five thousand black soldiers served alongside white soldiers in the Revolutionary Army. The Louisiana Free Men of Color served with Andrew Jackson's forces during the Battle of New Orleans. One hundred eighty-six thousand black servicemembers fought in the Union Army and 30,000 in the Union Navy during the Civil War. In every conflict, labor necessities drove the acceptance of African-American soldiers into the ranks. Despite the realities of the racially segregated society and military in which they served, African-American servicemen were subject to the same system of military justice as their white counterparts.

Following the Civil War, Congress authorized permanent all-black regiments in the U.S. Army, in which in 1869 became the 9th and 10th Cavalry and the 24th and 25th Infantry Regiments. These units served proudly on the frontier in the Indian Wars, in the Spanish-American War with Teddy Roosevelt's forces in Cuba, and during the Philippine Insurrection.

Life after the Civil War also brought changes to the Navy. Given the circumstances of being in the Navy, it was not atypical for African-Americans to serve alongside whites in integrated settings. African-Americans constituted 20-30 percent of America's Navy. However, these numbers sharply declined in the twentieth century as the Navy began to restrict the majority of African-American service to staffing the galley or working the engine room. Despite the fall in the proportion of black sailors in World War I to only 1.2 percent of the Navy's total enlistment, “a few black gunner's mates, torpedomen, machinist mates, and the like continued to serve in the 1930's” because their reenlistment had never been barred.

As the nation entered World War I in April 1917, the United States implemented its first national conscription. “[I]ts active Army consisted of only 126,000 soldiers, 10,000 of whom were African-American troops belonging to the four segregated black regiments of the Regular Army ... and the various support branches.” In August 1917, the War Department “approved a plan to create sixteen new black regiments to absorb 45,000 newly drafted black soldiers ....” Although almost 400,000 African-Americans would serve in the U.S. Army in World War I, the events in Houston, Texas on August 23, 1917, drastically altered these plans and delayed the integration of the U.S. military by a generation.

In August 1917, 652 men of the 3rd Battalion, 24th Infantry Regiment were deployed to Houston to guard the construction of Camp Logan, which was intended to be used as a training center for World War I's mobilization. Lieutenant Colonel William Newman, the battalion's commanding officer, sought to have these orders changed based on his past experience commanding black troops in Jim Crow Texas. He wrote:

I had already had an unfortunate experience when I was in command of two companies of the 24th Infantry at Del Rio, Texas, April 1916, when a colored soldier was killed by a Texas Ranger for no other reason than that he was a colored man; that it angered Texans to see colored men in the uniform of a soldier.

Newman's concerns were well founded. He was well aware of the pervasive racist attitudes held by white Texans regarding black soldiers. “[B]etween 1900 and 1917 at least five major incidents of racially motivated violence involving black soldiers occurred in the Texas cities of El Paso, Del Rio, San Antonio, Brownsville, and Waco.” Houston was to be no different for the soldiers of the 24th Infantry. They were to face a far more dangerous situation as they deployed to Houston--Jim Crow's hometown.

[. . .]

The original Petition and its Addendum asked the Army to remedy these fundamental failures of injustice by upgrading the characterization of service for all 110 convicted soldiers and to follow its own process by forwarding the Petition and Addendum to the Army Board for the Correction of Military Records to evaluate whether overturning of all convictions obtained in the three flawed courts-martial is merited. In January 2022, the Secretary of the Army did just that. The Clemency Petition is currently being reviewed by the ABCMR to determine if the fundamental due process flaws that permeate these three trials merit the overturning of the convictions of all 110 soldiers of the 3rd Battalion, 24th Infantry Regiment. In our view, this remedy is more than merited if we as a nation and as an Army are to “ensur[e] that every soldier who swears to defend the Constitution is guaranteed its foundational promise, equal justice under the law.”

Dru Brenner-Beck is an attorney who consults and writes on international law and the law of armed conflict and the Guantánamo military commissions

John A. Haymond is a historian who researches, writes, and teaches in the fields of conflict history, social justice issues, and the history of military law.

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