ESTABLISHMENT OF MILITARY JUSTICE .

74 1
sate General, it appears that Gen . Bethel opposed the principle of General
Orders, No . 84, in that it took from the reviewing authority the finality o f
decision reposed in him by the thirty-seventh article of war . Gen . Bethe l
did not believe that the Acting Judge Advocate General had any authority t o
decide as a matter of law what shall be the effect of competent testimony, o r
what weight is to be given it, or to determine what competent evidence shall ,
and what shall net, be deemed sufficiently convincing to support a conviction .
Quoting from the thirty-seventh article of war as follows :
" The proceedings of a court-martial shall not be held invalid, nor the find-
ings or sentence disapproved, in any ease on the ground of improper admis-
sion or rejection of evidence or for any error as to any matter of pleading o r
procedure unless in the opinion of the reviewing or confirming authority ;
after an examination of the entire proceedings it shall appear that the error
complained of has incuriously affected the substantial rights of an accused . "
Gen . Bethel stated that the above provision of law was so clear as to require
no comment ; that the reviewing or confirming authority is the officer author-
ized to approve or confirm the sentence ; and that decision as to the effect o f
the improper admission of evidence rests with him, and can not be made b y
any other person .
Gen . Bethel's letter was forwarded by the Chief of Staff, American Expedi- ,
tionary Forces (acting for the commander in chief), to the War Department ,
by indorsement, as follows :
" The remarks of the Judge Advocate, American Expeditionary Forces, i n
this letter are concurred in and decision is requested . "
A copy of Gen . Bethel's letter was, at the same time, transmitted to Gen . -
Kreger, Acting Judge Advocate General, American Expeditionary Forces, s o
that he might submit to the Judge Advocate General his views, which he sli d
in a letter dated November 16, the concluding paragraph of which was as fol-
lows (Exhibit 105) :
" Gen . Bethel's communication, in effect, calls into question the legal validit y
of General Orders, 7, War Department, 1918, as amended by Section IV ,
General Orders, 84, War Department, 1918 . In my opinion that order is wel l
founded upon section 1199. Revised Statutes, and upon the power of the Presi-
dent, acting through the Secretary of War, to order a sentence to be execute d
only in mitigated form, or to forbid its execution entirely . However, it seem s
entirely unnecessary for me to discuss the validity of the order in question .
That, no doubt, was fully considered by your office and by the Secretary o f
War before the order was issued . "
There was no further opposition from either Gen . Pershing or Gen. Bethel .
They acquiesced in the action of the War Department . In this connection i t
should be stated, however, that on March 25, 1919, Paragraph IV, General
Orders, No . 84, was amended by Paragraph I, General Orders, No . 41 (Exhibi t
106), so as to bring it within the law as interpreted by the Secretary of War .
8. Alleged relief of Gen. Ansell from duty in connection with the administra-
tion of military justice .In his letter of February 17, 1919, to the Hon . John L.
Burnett, House of Representatives, Gen . Ansell stated, referring to his memo-
randum of November 10 . 1917, to the Secretary of War (Exhibit 69. p . 3) :
" Thereupon I was relieved of my duties in connection with the administratio n
of military justice, and these were taken over by the Judge Advocate General i n
person . Consequently, from the middle of November, 1917, to the middle of
July, 1918, I was not charged with any duty or responsibility in connectio n
with the administration of military justice, nor was I consulted either b y
the Secretary of War or the Judge Advocate General upon matters affectin g
the administration of military justice . "
It will be recalled that, in his letter of November 18, 1917 (Exhibit 65) . to th e
Secretary of War, Gen . Crowder stated that he would be able to assume hi s
duties as active head of the Judge Advocate General's Department, and that h e
could devote to those duties one-half of his time . Gen . Crowder found,
however, that, due to the increased demand for men under the draft, his dutie s
as Provost Marshal General were such as to occupy the greater part of hi s
time, and that he was not able to devote any considerable portion thereof t o
the Office of the Judge Advocate General . In his testimony Gen . Crowde r
further states that his recollection was that Gen . Ansell continued with undi-
minished authority in handling all matters arising in the section of militar y
justice, and determined himself what cases would be passed up to the Judg e
Advocate General as needing the latter's personal attention . He recalled no
instruction, either from himself or the Secretary of War, curtailing the au-