Books Marching in Place

Harper and Row: 234 pages; $6.95.

WHAT WOULD happen to a National Guardsman if he was ordered to fire on student protestors and refused? That, according to Robert Sherill, would depend on a lot of things. It would depend first, on how angry his superiors were: second, on whether the soldier had ever been connected with any left-of-center political groups; third, on how dramatically the press played the incident and the inevitable court-martial; and fourth, on whether any influential civilian figure decided the trial was producing too much heat to permit the military to have its way.

The guardsman's fate would not depend on whether the order to shoot was justified by threats to the troops' safety, or on whether his firing would contribute to the continuation of a criminal war in Southeast Asia (criminal by the standards of the Nuremberg trials, that is). Nor would it depend, in all probability, on whether the soldier was psychotic, mentally retarded, or hard-of-hearing.

Military justice, in other words, can be counted on to be arbitrary, brutal and repressive, and Robert Sherill does not have to play with hypothetical cases to prove it. His cleverly titled new book. Military Justice is to Justice as Military Music is to Music, relates at a quick, journalistic clip enough examples of judicial miscarriage to confirm anyone's worst fears. The Washington editor of The Nation. Sherill is more thought-provoking than thoughtful in this fast-reading study of the Armed Forces' system of justice. But if the volume turns up few surprises, it conveys much that is worth knowing and feeling-and Sherill is very good at placing us right in the defendant's chair.

If for nothing else. Sherill's study is valuable for its fascinating reconstruction of two of the most notorious recent court-martials: the trial of the "Presidio 27." who staged a peaceful protest in a west coast military stockade to protest inhumane prison conditions: and the court-martial of Captain Howard Levy, the Army doctor who was sent to prison for refusing to train Green Beret medical corpsmen.

THE PLOTS of these two stories are pretty well known. Though Sherill retells them in perfect seriousness, he cannot escape communicating the sense of farce-deadly comedy-which must have pervaded the court rooms in which these 28 men were heard and sentenced. For the Army is so blatant in its injustices, and so primitive in its thinking that the procedings quickly become drippy with melodrama. This isn't Sherill's fault. It is a function of the startling incompetence of so many lower level army officers, and the Armed Forces' supreme sense of self-confidence.

In both of these instances, brilliant young defense attorneys (only last summer a revised Uniform Code of Military Justice guaranteed defendants representation) managed to trap hostile witnesses into contradicting their own testimony and that of others. In both instances they also managed to elicit evidence that the Army had purposely forced the defendants into disobedience, or else refused to take simple steps to head off their action.

In Levy's case, for instance, defense attorneys made it quite clear that Levy's commander ordered him to train Green Beret aidmen only after he learned Levy had said he would refuse to work with them, and before Levy's base had any formal program for training Berets. A formal program was hastily concocted in the middle of the court-martial, the day before one of Levy's fellow physicians was scheduled to testify.

The real reasons behind the Presidio and Levy court-martials had to do with discipline and politics. Discipline is what the Service wants more than anything else from its men, and independent political thought is one of the gravest conceivable dangers to discipline. Not surprisingly, the Army gets paranoid as soon as a serviceman's politics drift left of far right. Levy, for instance, combined his questioning of the war effort with civil rights work in Mississippi. The Pesidio defendants had the bad luck of sitting in two days after a major west coast anti-war protest in October. 1968. Imagining some connection between the "mutiny" and anti-war politics, the Army came down hard on the dissidents.

Court-martials, in fact, hardly try to give the appearance of impartial tribunals. Though commanders are officially forbidden from influencing proceedings within their jurisdiction, they can dictate the results of any trial in any number of subtle and not-so-subtle ways. They usually appoint military judges for court martials-and thus control the promotions of the key figure in judicial proceedings. They also appoint juries. Court-martials, like military music, are instruments of enforced conformity, rather than fine instruments for protecting the rights of the accused. They serve the convenience of the army.

All this is not very startling, nor is Sherill's bleak picture of the obstacles to reforming the system of military justice. Pointing out that changing the way the army handles its own discipline would require a revolution in its structure and mentality, Sherill suggests the obvious solutions. Move important cases into the civilian courts. Tighten up the Uniform Code of Military Justice to get rid of the vague language that sanctions arbitrary sallies against the constitutional rights of servicemen-sections like Article 134 which prohibits "all conduct of a nature to bring discredit upon the armed forces." Sherill is also well aware that with the House and Senate Armed Services Committees in tight control of congressional action on the Armed Forces, the prospects of even minor reforms-much less the overhaul suggested above-are meagre. Sherill, therefore, wraps up his volume with an appeal to "public opinion." apologizing for using the hackneyed phrase.

The lesson he doesn't draw is that no society rotting at its roots can expect to maintain the discipline and the civil rights of its armed forces simultaneously. The best cement for any fighting body is belief in the rightness of the fight. The Israelis and the North Vietnamese have shown the power of conviction. It will be some time before the United States can have the luxury of a military free of repression.