LEE v. MADIGAN

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Argument of Carl L. Rhoads

Chief Justice Earl Warren: Number 42, John Lee, Petitioner, versus Paul J. Madigan et al.

Mr. Rhoads.

Mr. Carl L. Rhoads: Honorable Chief Justice and members of the Court.

This -- this is an appeal from a decision of the United States Court of Appeals in the Ninth -- Ninth Circuit wherein that Court affirmed the decree of the United States District Court for the Northern District of California, which dismissed the petitioner's petition for a writ of habeas corpus.

In order to bring the Court up-to-date, I'd like to briefly relate the facts surrounding this case.

The petitioner is now in prison in the Alcatraz Penitentiary, Alcatraz Island California.

The petitioner was inducted into the Army in October of 1942.

He was sent overseas and in May the 27th, 1945, shortly after the war ended in Europe, he was brought to trial by court -- by a general court-martial which convened in Paris, France and was charged with having been involved in a robbery and an assault.

He was convicted by the general court-martial and was sentenced to dishonorable discharge from the Army and 35 years of confinement with hard labor.

In 1946, he was returning from Paris, France and was confined to the United States Disciplinary Barracks at Camp Cooke, California which is Lombard, about midway between Los Angeles and San Francisco.

In -- on June the 12th, 1947, approximately a year after he had been confined to Lombard Camp Cooke, California for disciplinary --

Justice William J. Brennan: That is a military --

Mr. Carl L. Rhoads: I'm sorry, Your Honor?

Justice William J. Brennan: That was a military prison.

Mr. Carl L. Rhoads: It's -- it's a -- what we call a disciplinary barracks, yes, Your Honor.

Justice William J. Brennan: It's a military --

Mr. Carl L. Rhoads: Yes, it's a military establishment.

Justice Potter Stewart: Are there any other military activities there in addition to the disciplinary barracks?

Mr. Carl L. Rhoads: There -- there used to be in World War II, I understand.

However, I don't think there is very much there at that time.

In 1947 -- June of 1947, approximately a year after he had been admitted there, upon his return from overseas, he was dishonorably discharged from the service.

That is a dishonorable discharge was executed and it was mailed to him and placed in his personal file there at Camp Cooke, California.

In -- in June of 1949, approximately two years after he was dishonorably discharged, three fellow prisoners stabbed another prisoner to death.

The petitioner John Lee took no active part in the affray, whatsoever, as is evidenced by a dying declaration, which for some reason was not admitted into trial in the original court-martial.

Although he took no active part in this affray, whatsoever, in fact according to the dying declaration here, that even states that he attempted -- he did what he could to stop it, before, I quote from it either where the victim said, “Lee didn't take no -- Lee didn't do no cutting but he was there.

He was trying to tell -- trying to make them stop,” and words to that effect.

But, nevertheless, in spite of that --

Justice John M. Harlan: I don't understand it.

So, I'm sorry.

That it is -- is this dying declaration --

Mr. Carl L. Rhoads: Well if I (Voice Overlap) --

Justice John M. Harlan: (Voice Overlap) consider --

Mr. Carl L. Rhoads: -- may -- Mr. Justice, they have reason it was not admitted although I say it was a dying declaration.

It was not admitted for the reason that the last sentence that -- in the last statement that they had made, before he went into the hospital or --

Justice John M. Harlan: It is part of his brown book --

Mr. Carl L. Rhoads: It -- it is attached to the transcript of the record.

Justice John M. Harlan: It is?

Mr. Carl L. Rhoads: Yes, Your Honor.

Justice John M. Harlan: It was before it.

Mr. Carl L. Rhoads: Yes, it -- it was the -- and it was before the lower court too but was not before the court-martial.

Justice John M. Harlan: I see.

Justice William J. Brennan: Does it have any relevance to the issue we have to decide?

Mr. Carl L. Rhoads: Is it -- is it relevant --

Justice William J. Brennan: Is it relevant to the issue we have to decide?

Mr. Carl L. Rhoads: Oh, it -- it is not.

It is -- it's only a question of fact, Your Honor.

This is a legal question before the Court.

Justice William J. Brennan: That's -- all we know is he committed some offense for which he --

Mr. Carl L. Rhoads: For which -- for which he was court-martialed --

Justice William J. Brennan: Gets court-martialed.

Mr. Carl L. Rhoads: He was -- he was dishonorably discharged.

Justice William J. Brennan: And then --

Mr. Carl L. Rhoads: Two years --

Justice William J. Brennan: -- court-martialed again for another offense at Cooke?

Mr. Carl L. Rhoads: Yes, which took place some two years after he was dishonorably --

Justice William J. Brennan: -- it took -- took place at Cooke?

Mr. Carl L. Rhoads: At Camp Cooke, California.

Justice William J. Brennan: And -- but there's no -- there was no issue as to whether he was rightly or wrongly convicted is there before us?

Mr. Carl L. Rhoads: The -- the only issue before the Court today, Your Honor.

There are two issues.

The first issue is the interpretation of Article of War 92 which --

Justice William J. Brennan: Yes.

But it all goes to jurisdiction to try him by court-martial rather than in civil court, isn't that (Voice Overlap) --

Mr. Carl L. Rhoads: That's right, Your Honor.

That's -- that's right.

Justice William J. Brennan: Well then, we're not concerned with the merits or otherwise but the offense for which he was charged though.

Mr. Carl L. Rhoads: No -- no, Your Honor.

There are two issues before the Court here today, gentlemen.

The first issue is the -- is the interpretation of Article of War 92, which although, in our brief we have stated that really as effect and issue, we have chosen to discuss that first and I'd like to discuss that with you, gentlemen.

And the other issue as to the interpretation of Article 2 (e) will be taken up by Mr. Hannon.

The reason I've two is to discuss 92 first, is because I think the Court will see that if that probably has to be passed upon before they can reach Article 2 (e).

I'd like to read at Article 92 from the 1949 manual for court-martial, which was in effect at the time of this offense for which the petitioner is now serving his life sentence, specifies, “any person, subject to military law, found guilty of murder, shall suffer death or imprisonment for life as a court-martial may direct.”

And then I skip down the part that has -- “but provided that no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of The Union and the District of Columbia in time of peace.”

Justice William O. Douglas: That's rather old commission, isn't it?

Mr. Carl L. Rhoads: Yes.

Justice William O. Douglas: That goes way back?

Mr. Carl L. Rhoads: Yes, Your Honor.

Justice William O. Douglas: The provision.

Mr. Carl L. Rhoads: Yes, it does as it goes back for a long time but it -- it is not incorporated into the 1951 manual, which was passed in May of 1950 and the new uniform code of military justice dropped that provision from -- from the murder and rape.

But it -- but it has been in there for many years prior to the 1951 manual.

The -- the District Court and the Court of Appeals have ruled in this case that on June the 10th, 1949 we were at war.

And we were not -- it was not time of peace within the meaning of Article of War 92.

And so that the general court-martial according to the lower court and the Court of Appeals, did in fact have jurisdiction in the case of John Lee, the petitioner, to try him by general court-martial for the capital offense of murder which was committed in June -- on June the 10th, 1949 and for which he was brought to trial in September of 1949, in -- in Camp Cooke, California where the courts -- the Court -- this Court will take judicial notice of the facts at that time, the courts were open.

We submit, there was -- there was no necessity and there is no reasonable relationship for the Government of the land and naval forces for -- for the -- for John Lee, the petitioner, to be tried by general court-martial in 1949, two years after he had been dishonorably discharged.

And some four years after the wars had ended the -- the war in Europe and also the war in the Far East, the war in the Far East having ended of course on August the 14th, and -- and August 14th, 1945.

I remember it very well.

I was in Okinawa.

I appreciate it.

Chief Justice Earl Warren: When you say the war ended, you mean the cessation of hostility?

Mr. Carl L. Rhoads: The -- there's -- the shooting stopped --

Chief Justice Earl Warren: The shooting stopped.

Mr. Carl L. Rhoads: The shooting stopped and they told us that we were going to wait for our orders to go home.

And that is the point on which the -- the Government had rested their case.

They -- they have made much capital of an old World War I case Kahn versus Anderson 255 U.S. 1.

And they -- they have contended that that case governs the case at bar.

That in that particular case it involved the -- a petitioner who was confined in Fort Leavenworth, Kansas during World War I in July prior to the Armistice in July of 1918 wherein -- wherein this -- this man who was confined at Fort Leavenworth was alleged to have been involved in a murder there at Fort Leavenworth.

He was brought -- he was brought to trial on November the 4th after this offense was committed in -- in July of 1918.

And he was tried by a general court-martial.

The court-martial took about 21 days with the delays and all.

So that the court-martial ended up by -- on November the 25th, 1918.

Of course, the Armistice was signed on November the 11th.

Well, the petitioner then, Anderson, came into court and on a writ of petition -- for writ of habeas corpus and he said that because of the fact that the war had ended, before the sentence was finally handed down, there was a loss of jurisdiction.

And the -- and the Court -- the United States Supreme Court, rightly so stated, “No, that is not so, because we had jurisdiction over -- over the man.

It was in time of war.

The Armistice hadn't even been signed and we continued to have jurisdiction.”

Then they went ahead to say, “In time of peace means peace in the complete sense officially declared.”

Now, that -- that is the case on which the lower court and the Court of Appeals rejected the petition.

I -- I respectfully call the Court's attention to the fact that I think that they've misinterpreted that case, very definitely, because, at first place, it's not at all like the case at bar.

Because in our -- in the case at bar, whereas in -- in the Kahn versus Anderson, the -- the Armistice hadn't even been signed.

In the case at bar, the Armistice had been signed about four -- well, the shooting had stopped about four years earlier.

The Presidential Proclamation was signed in -- on December the 31st, 1946.

And the joint resolution of Congress was passed on July the 25th, 1947, which the army court-martial itself has stated, adopted into the new manual under Article 43, and it states there that the --the joint resolution of Congress of July the 25th, 1947, has the effect of terminating the war to -- with respect to punishment of certain military offenses when committed in time of war.

What they had to do under Article 43, which covers the statute of limitation, would make the determination as to when -- which offenses are committed in time of peace and which are committed in time of war.

The difference being of course, those that are committed in time of -- on time of war, many of these offenses do not have a statute of limitation, but in time of peace they have a three-year statute of limitation.

In that connection, Article 43 (a) says, “A person charged with desertion or absence without leave in time of war or with aiding the enemy, mutiny or murder may be tried and punished at any time without limitation.”

Then it says in (b), “Except as otherwise provided in this article a person charged with desertion in time of peace or any of the offenses punishable under Articles 119 through 132 and they had included offenses -- offenses such as – such as assault, larceny, and various other offenses which apart from being in time of war would have a three-year limitation.”

And the -- and the footnote says, “An absence without leave from 7 March, 1947 to 5 February, 1949, having begun on a date prior to the adoption by Congress of the Joint Resolution of 25 July, 1947, terminating the war with respect to punishment of certain military offenses when committed in time of war was held subject to the operation of Article of War 39.”

In other words, they said, “That because that absence of leave or absence without leave began on 7th -- on the 7th of March, 1947, before the joint resolution of Congress, that it was a wartime, absence without leave.

And hence would not have the three-year statute of limitation.”

Now, the Government failed to take into consideration some very, very important cases and some of the most important of which are the cases which have handed -- been handed down by the United -- the United States Court of Military Appeals, which by virtue of being a court -- a court which deals specifically with military cases, had come to be expert in that field.

And they have had to pass upon the question of "in time of war" or "in time of peace" because we had this Korean conflict that came on.

And we had the same -- the Presidential Proclamation was passed at the beginning of the Korean conflict, it was of course, in June the 24th, 1950, which stated that these same offenses which otherwise would have been peace time offenses from July the 25th, 1947, became wartime offenses after the Korean conflict started as of June the 24th, 1950.

So that -- many -- the United States Court of Military Appeals has had to pass on many cases involving AWOL which occurred after the Korean conflict.

AWOL which -- and they've -- they've held universally that that's desertion if it occurred after the 24th of June, 1950.

And so that's desertion and because it's desertion, it's desertion because it happened “in time of war.”

The Government in the -- the Government has made much capital of the fact but the Korean conflict was not a war because it -- it wasn't declared to be a war as such.

It wasn't started by Presidential Proclamation and because it wasn't ended by Presidential Proclamation.

But, I -- I submit what the United States Court of Military Appeals and this Honorable Court has also said in the same regard in the -- in the case of Ludecke versus Watkins.

And I'm now reading from -- from page 33 of our brief.

In Ludecke versus Watkins, after a similar issue was before the war or before the Court except that it involves what we call war powers in that particular case.

It -- it involved the -- the power of -- of the aliens, the -- the right of the -- the Government to deport an alien without giving him a due process hearing, Ludecke versus Watkins 335 U.S. 160.

And the -- the Court laid down the rule there, the state of war may be terminated by treaty or legislation or Presidential Proclamation.

And what they -- what they said was any one of these things may terminate the war.

Now, the question is, of course, the Government contends that we -- we never -- we never got out of the war until 1952 when the Japanese Peace Treaty was finally signed and all that -- it was signed in 1951, it became effective in 1952.

But that leaves us with a paradoxical situation.

If we were never -- if we were at war from Pearl Harbor up until 1952, then why is it necessary for -- for the Court -- the Court of Military Appeals in -- in such a large number of cases to rule that we were at war when the Korean conflict started.

It certainly is a paradoxical situation.

It -- they're hanging their case on a mere technicality and not on the actualities of the cases.

But the -- it's very interesting that one of the most -- two of the most recent cases in this connection are cases that -- which have been handed down by the United States Court of Military Appeals on March 15th, 1957, last year.

That's the case of United States versus Shell and United States versus Boston.

In those two cases, this very issue was before -- was before the Court.

When did the time of war for the Korean conflict begin?

When did it end?

Because they again had the question of these offenses which would carry a -- would be capital offenses in time of war.

Murder -- murder over in Korea and desertion.

They held in -- in United States versus Shell and United States versus Boston, and I quote, “In holding that offenses committed during the Korean conflict were perpetrated during a time of war, within the meaning of the language of a code, we reason that war does not result only from a formal declaration of Congress but can exist, in fact, without a declaration, and that its existence is to be determined by the realities of the situation as distinguished from legal license.”

Now, the thing that is especially significant about that case is that they specifically stated that they have -- were overruling their prior holding of September 16th, 1954, three years earlier, wherein that same issue was before the Court.

And they had followed, in that particular case, they had followed Ludecke versus Watkins and Kahn versus Anderson.

They state as -- as well as when United States Ex Rel. Knauff v. Shaughnessy.

But it's very interesting that the court, in this later case, in 1957, in these two cases, specifically said that we overruled our earlier decision which had been based on Kahn versus Anderson.

And -- and they have held in this particular case that -- that the -- when used in military law, the terms, “in time of -- time of war" and "time of peace" constitutes actual peace or war and not technical peace or war.

Now, if we are going to follow the Government's contention, what is going to be the result as far as all of these decisions which have -- had been handed down by the Court of Military Appeals?

If we're going to follow the Government's details and say that we -- we reject -- we reject this distinction, these cases are wrong.

The Court of Military Appeals and every case is wrong if you follow the Government's contention that we be -- we continue to be at war from Pearl Harbor up until the Japanese Peace Treaty passed in 1952.

Chief Justice Earl Warren: Mr. Rhoads, is there any case in the Military Court of Appeals where it is held that between July 1947, the date of the Congressional Resolution, and June 24th, 1950, the beginning of the Korean affair, that the military courts do not have jurisdiction over -- over these people in situations this man has had?

Mr. Carl L. Rhoads: Mr. Chief Justice, I have made a very diligent search trying to find another case wherein the army had tried by court-martial any person, regardless of whether they were discharged or not, where the offense of murder was allegedly committed in the continental United States between the date of July the 25th, 1947 and the beginning of the Korean conflict and I have been unable to find any case whatsoever.

Chief Justice Earl Warren: Have you found any case where he was tried in the civil courts in those circumstances?

Mr. Carl L. Rhoads: I -- offhand I'm not able to cite any cases but -- but I'm sure there has been a number of -- a number of cases.

Chief Justice Earl Warren: During that period?

Mr. Carl L. Rhoads: I -- it just seems to me that I can remember various references to them, although I didn't see any in the book.

I didn't go into that aspect of it much.

It seems to me that I have read about murders having been committed on military posts wherein the men have been tried in the federal courts but I couldn't cite any particular case.

However, in that -- in that connection, here is a -- it's a very interesting case that did come up in -- in 1950.

Of course, at that time we did not have the Court of Military Appeals and we didn't have it until after May 1951.

But in this particular case, this case arose in 1950 -- in 1950 and involved -- it actually involved a question of whether we were at war on the 31st of July 1950.

And the case went up on appeal to the -- what we call the judicial council which was then the judicial council which sat in the office of the Judge Advocate General, something more or less similar to the Board of Reviews which we now have all over.

Of course, as I say we didn't have the Court of Military of Appeals.

In that particular case, the question was whether we were at war or not because we have the -- we have the offense of a -- of a deserter.

And the Court said the background, the extent, and nature of the hostilities between the United States and North Korean Forces on July -- on the 31st of July 1950 and the inevitable results of such hostility is up to that time in terms of casualties, again, matters of common knowledge and therefore proper subject to judicial notice are genuine proof of the existence of a state of public war between the two governments on that date.

And this involved a case of a fellow who deserted from an army camp up in -- up in Fort Lewis, Washington in 1950.

So the question was if -- is it a wartime desertion so that the capital punishment so that he can be -- be disposed of and court-martial may (Inaudible) to being killed or is it a peace time desertion?

And the question was the Court had the rule and the judicial council as early as the 31st of July 1950 which was of course only about two months after the Korean conflict started said that we were in time of war.

Well, interesting in the same connection was a case which came up in -- in May the 8th, 1952 which arose when a soldier was sleeping on his post over in Korea.

And in that particular case the Court said -- they said, “And the interpretation of Congress itself has placed on the hostilities by reestablishing certain wartime rights cause us to believe that when the President and Commander-in-Chief ordered members of the Army to service at the end of the conflict, he involved this country in hostilities to wit and to -- to such an extent that the state of war existed and that Congress, when it used the phrase “in time of war” in the military code, intended to bring -- to apply to that state regardless of whether it was initiated or continued with or without a formal declaration.

Applying the rule which has been laid down in the Reid versus Covert and the Toth decision, I ask this Honorable Court, what is the reasonable relationship between the crime of John Lee, a dishonorably discharged ex-soldier, for the ethical offense of murder which allegedly occurred in June of 1949 by court -- by a general court-martial, instead of taking him over roughly 150 miles to the Federal District Court for the Southern Division of California and trying him by a federal jury where his constitutional rights among others, the fair right to a trial by jury would be respected?

Justice Potter Stewart: Is it clear that would be --

Mr. Carl L. Rhoads: (Voice Overlap) --

Justice Potter Stewart: Is it clear that it would be in a federal -- it would be in a federal rather than a state court?

Mr. Carl L. Rhoads: He would be -- he would be tried --

Justice Potter Stewart: Yeah.

Mr. Carl L. Rhoads: -- Your Honor, in a federal court because --

Justice Potter Stewart: Because it occurred on --

Mr. Carl L. Rhoads: -- it's on -- it's on a federal jurisdiction.

Justice Potter Stewart: Federal jurisdiction.

Mr. Carl L. Rhoads: We contend, Your Honor, that when he is dishonorably discharged he is not serving -- his contract with the Army has been ended.

He's not receiving pay, he can't salute, he can't re-enlist, he has no -- none of the benefits of the -- of a military man.

We -- he doesn't have the benefits but they want him to take the burdens.

They say that he -- he's not a soldier, he can't be buried in Arlington Cemetery, he can't have any of the other myriad of benefits which accrue to a soldier.

But by the same token they say, “But we still have jurisdiction so that we can try him for the capital offense of murder when allegedly committed in the continental United States and we can deny him his fundamental right to a jury trial.”

I submit, Your Honor, it's a violation of due process.

Mr. Hannon will now discuss the constitutionality of Article 2 (e).

Thank you, gentlemen.

Chief Justice Earl Warren: Mr. Hannon.

Argument of Robert Edward Hannon

Mr. Robert Edward Hannon: Chief Justice Warren, members of the Supreme Court, may it please the Court.

My position on this case is as follows.

We contend that since John Lee had been discharged from the Army, he cannot be court-martialed by the Army that the then existent Article 2 (e) of the Articles of War, if interpreted to confer such jurisdiction is unconstitutional.

I think before I start the presentations, it's important to keep several factors in mind.

Primary among those is that here we are speaking of a capital offense.

We're speaking of the offense of murder.

Second, we're speaking of an offense that occurred in continental United States.

It wasn't overseas.

It was right here in the jurisdiction of our local District Courts.

It was an offense that occurred in 1949 and under the world conditions and the local conditions that existed in 1949.

It was a trial by -- of a person who had received and executed dishonorable discharge.

It was a discharge that had been handed to him, differing from the common situation now, where a man is discharged, been given a dishonorable discharge.

They frequently suspend the execution of that discharge until completion of the sentence.That is not this case.

This could --

Justice John M. Harlan: Would the case be different if that had been so?

Mr. Robert Edward Hannon: It would, Your Honor.

The case would be different if it had been suspended dishonorably discharged, because then he would've been in the service.

Here, the discharge was issued, signed and in hand, delivered to the accused, to Mr. Lee.

Lastly, here, we don't have the situation which occurred in the Toth case and the Hirshberg case as far as I know in the Covert and Reid case.

This case, if -- we are not asking the Court to entirely release the accused.

We're asking the Court in effect to turn him over to the Federal District Court for trial.

It is not a case, like in Toth or Hirshberg where that he will escape prosecution if he was released.

He will be tried by the Federal District Court if he's released.

It's an offense within the province of the local Federal District Court.

The Court is aware.

The jurisdiction of court-martials as conferred by the Article 1, Section 8, Clause 14 and that is the only place that the Congress has authority to court-martial or to grant court-martial authority.

That article, of course, to that clause says that, you can try that make rules for the Government in regulation of the land and naval forces.

Then in the Toth case, you stated that this applied to persons who were, “actually members of the armed services.”

In the Reid case you said “persons who are serving in the land and naval forces.”

You, in a footnote, quoted Colonel Winthrop who is highly regarded as the grand father of the Blackstone of Military Law, who said that the law or the Fifth Amendment clearly distinguishes the civil from the military class.

They're clearly distinguishable parties.

Colonel Winthrop also said that the law and you quoted in the footnote in the Covert and Reid cases.

You say, that -- or Winthrop says “that the law recognizes no third-class.

You're either in the service or you're not in the service.”

So that brings us down to which class.

Which of these clearly distinguishable classes does a dishonorably discharged prisoner fall into?

Well, we can look at him and look at his status and being in the service is a status.

He has no contract with the military because the military has expressly repudiated his contract.

He performs no duty.

He renders no service.

He receives no pay like Mrs. Smith and Mrs. Covert he is housed with the military but is not part of the military.

I think insofar as Covert -- the -- Lee is in the same situation as where the -- the parties in the Covert and Reid cases.

However, we can go further.

The Army itself has said that a dishonorably discharged prisoner is not a soldier.

Cited in the brief are opinions handed down by the Judge Advocate General.

He stated first, a dishonorable -- dishonorably discharged soldier cannot be tried for unauthorized absence because unauthorized absence contemplates a duty or to be out of place of duty, a dishonorably discharged soldier has no duty.

That's from the Judge Advocate General himself.

He can't be tried for disobedience of orders.

The Judge Advocate General says, “A dishonorably discharged soldier cannot be tried for disobedience of orders because he is not a soldier.”

He is not entitled -- a dishonorably discharged soldier is not entitled to special services, equipment which is bought out of appropriated funds.

He's not entitled to that because according to the Judge Advocate General and that this was also a quote, “he is not a member of the military forces of the United States.”

Lastly, the Attorney General or the Judge Advocate General has held that dishonorably discharged soldier killed by the enemy is not in the status of “killed in action.”

The reason he says and this is a quote, “A dishonorably discharged soldier becomes a civilian even though retained in confinement under sentence of general court-martial.”

So clearly, the Judge Advocate General has held a dishonorably discharged prisoner to be a civilian.

We can go to Colonel Winthrop in his digest to the -- digest of opinions to the Judge Advocate General in 1895.

In that digest, the Colonel in 1895 arrived at the same conclusions or substantially the same conclusions that this Court has in the Hirshberg case and the Toth case, and in the Reid case.

The Colonel insofar as the discharged prisoner is concerned says unequivocally that they are civilians.

The Colonel said that if Section 1361, which was the Section authorizing trial of dishonorably discharged prisoners at that time, if that Section authorized trial of dishonorably discharged prisoners, it was unconstitutional.

The Colonel in his Military Law and Precedents, 1920 held the same thing.

He said that a dishonorably discharged soldier is a civilian.

Now, the Government's argument is this insofar as the necessity if the case is concerned.

The Government says, so we have a man here in a military prison, it's necessary that the military have jurisdiction to court-martial him so as to maintain the discipline and morale of their prisoners.

I submit to you gentlemen of the Court that that is not the case.

The head of a military prison has the same authority as a warden of any prison has.

He can put a person in solitary confinement.

He can do this, that or the other thing to maintain his discipline.

But there is no necessity of trying a man for a capital offense, of murder, when there's a local District Court which could also try him.

Justice John M. Harlan: I understood you to say, (Inaudible) if the sentence had been a dishonorable discharge was to become effective after he served his sentence that you wouldn't be here.

Mr. Robert Edward Hannon: That is correct, Your Honor.

Justice John M. Harlan: Now, what's the constitutional difference?

Mr. Robert Edward Hannon: The constitutional --

Justice John M. Harlan: Explain it to me between that situation and the situation we have now before us.

Mr. Robert Edward Hannon: The difference is this, Your Honor.

In the instance where the discharged -- the dishonorable discharge is suspended, he never receives a discharge.

He is in the service.

He's an actual member of the service having -- not having been discharged until after the completion of his sentence.

In this case, they discharged him and then put him in the --

Justice John M. Harlan: I understand the factual difference, of course, but I'm asking you what you conceive to be the constitutional difference, the legal difference between those two situations?

Mr. Robert Edward Hannon: Well, in a word I would say the constitutional or legal difference being in the one case, he's a member of the service and under the -- the Article 1 can be tried.

In the second instance, he's a civilian, and because he has actually been discharged.

The second instance he's never been actually discharged.

Justice John M. Harlan: Do you think the military has no relation to him in the case that we have because of the way the sentence was framed, is that it?

Mr. Robert Edward Hannon: They have -- they have a relation to him in the sense that the warden of any prison has a relation to a prisoner confined there at.

In other words, the normal authority that a prison warden has over prisoner, but they don't have authority to -- to try him for murder any more than the warden of a normal prison (Voice Overlap) --

Justice John M. Harlan: He's still a part of the military establishment except in the sense that he's not on active duty but he's incarcerated.

Mr. Robert Edward Hannon: Well, I don't think he's a member of the military establishment.

He received no pay.

He has no contract, performs no duties, not entitled to any of the benefits of the military.

He's killed, he's not killed in action.

He receives none of the benefits of a member of the military.

Whereas if -- but there are a lot of different results that evolved to a prisoner who has a suspended discharge while he's serving his sentence.

In the first place, he can go back to active duty when he's -- at the termination of the sentence without being re-enlisted, whereas if a person has an executed dishonorably -- dishonorable discharge, he would have to re-enlist to get back into the service.

Justice John M. Harlan: Do you think at all times and whether he is a soldier, quoting your word?

Mr. Robert Edward Hannon: Yes, Your Honor, I think it's a status of whether or not he maintains the status of a member of the military.

Justice Charles E. Whittaker: But perhaps what you really mean is that he is not in the armed services within the power of Congress to prescribe rules regulating the armed -- the Army and Navy --

Mr. Robert Edward Hannon: That's correct, Your Honor.

Justice Charles E. Whittaker: -- after he's been discharged.

Mr. Robert Edward Hannon: That's correct.

Justice Charles E. Whittaker: That's what you really mean, isn't it?

Mr. Robert Edward Hannon: Yes, Your Honor.

If --

Justice Charles E. Whittaker: In other words, that constitutionally he is within the power of the armed forces under rules prescribed by Congress so long as he's in the Army.

Mr. Robert Edward Hannon: Yes.

But --

Justice Charles E. Whittaker: But when he's been discharged, he's out and there is no constitutional power, is that your argument?

Mr. Robert Edward Hannon: That's correct.

He -- he has -- the Congress can't class the -- he isn't classified in the status of military person or within the land and naval forces.

Returning to the point of the necessity or the possible adverse effect from holding that this man is not amenable to court-martial jurisdiction and that Congress cannot make laws subjecting him to court-martial jurisdiction.

Both the Toth and the Reid case held that mere convenience is not a sufficient reason to deprive a person of his constitutional guarantees, his right to a jury trial, his right to counsel, his right to present an indictment.

The mere convenience is not sufficient to subject him or to deprive him of these rights.

In Reid it was held all persons who are members of the land -- that the Constitution -- the Constitution does not say that all persons who are members of the land and naval services and all other persons whose regulations might have some relation to the maintenance of the land and naval forces.

The Reid case, you said, it must be a member of the land and the naval forces.

You further stated in the Reid case that they cannot use the necessary and proper clause of the Constitution to expand this jurisdiction of Article 1.

The Toth case, I think it's very significant and quoting the language of the Toth case, the Court held that the military jurisdiction or court-martial jurisdiction should be restricted to the narrowest jurisdiction deemed absolutely essential to the maintenance of discipline in the Army.

Now, that raises the question in this case, was the court-martial of John Lee at Camp Cooke for the capital offense of murder, in 1949, in continental United States, absolutely essential to the maintenance of discipline at Camp Cooke?

Or wording it conversely, would there have been a detrimental effect on the discipline of Camp Cooke, to take John Lee, 150 miles to Los Angeles and have him tried by a civilian court there?

Justice Hugo L. Black: Is it -- is this implied, Mr. Hannon that if the answer is yes, either or both of those questions suspends the military (Inaudible)?

Mr. Robert Edward Hannon: If there is reasoning from the Toth case, I would assume that --

Justice William J. Brennan: Well, let's see.

I thought you said before, there's a --

Mr. Robert Edward Hannon: If there's -- if there's an adverse --

Justice William J. Brennan: (Inaudible) -- of course, you answered Mr. Justice Whittaker and Mr. Justice Harlan earlier that it's black and white.

Once he's -- he's discharged from the army, he's out -- he must be a civilian --

Mr. Robert Edward Hannon: He's one or the other.

Justice William J. Brennan: Doesn't usually Congress could give no power to the court for an offense committed at the time that he committed it.

Mr. Robert Edward Hannon: He's either in or he's not in the service.

Justice William J. Brennan: I would say --

Mr. Robert Edward Hannon: If I --

Justice William J. Brennan: -- at that time he committed it, he was not (Voice Overlap) --

Mr. Robert Edward Hannon: At the time of the offense.

Justice William J. Brennan: Well, now what's trial --

Mr. Robert Edward Hannon: Now, this is perhaps falling back or equivocating on that argument, Your Honor.

Justice William J. Brennan: You mean,

Mr. Robert Edward Hannon: Here --

Justice William J. Brennan: (Inaudible) actually giving it --

Mr. Robert Edward Hannon: No.

I think --

Justice William J. Brennan: No?

Mr. Robert Edward Hannon: -- this is more in the line of reasoning for that particular rule.

You weren't in -- in the Toth case it wasn't explicitly answered as to whether it was in or out of the service.

Justice William J. Brennan: Yes, but (Voice Overlap) --

Mr. Robert Edward Hannon: You implied that there might be something --

Justice William J. Brennan: (Voice Overlap) -- while in the service, wasn't it?

Mr. Robert Edward Hannon: Well, I'll put it this way, Your Honor.

I'll say that if the Court finds that there can possibly be a third-class, which is not military and not civilian but is subject to military law, if there is a class, if it's not -- if what Colonel Winthrop said is not followed by the Court, Colonel Winthrop said it has to be one or the other.

The Court in the Toth and in this case has -- has put Colonel Winthrop to that effect in a footnote, but it does not expressly held that you have to be one or the other.

Now, I'm saying that if the Court finds that -- that you might not have to be in the service to be tried by court-martial, in other words, if there's a class of person who was not actually in the service but can still be tried by court-martial.

I'm saying that if that is the case, then the guiding factors there is to whether a person is to rely on the service the, the guiding factor is to whether the -- a person is in that category, if a person not in the service but subject to court-martial jurisdiction, then I think the rule is that that group of persons should be limited to those persons who the Court deems absolutely essential to maintain military discipline, and falling back a step, in other words.

So, that here I don't think that Lee would fall in that category.

I don't think the court-martial of Lee is absolutely essential --

Justice William J. Brennan: In other words --

Mr. Robert Edward Hannon: -- to make this military (Voice Overlap) --

Justice William J. Brennan: -- instead of being at Camp Cooke, if he were at a camp in confinement, let's say in some theater overseas --

Mr. Robert Edward Hannon: I think you might as well reach that --

Justice William J. Brennan: Might have a different case, is that it?

Mr. Robert Edward Hannon: Yes.

Our prime argument goes back to this -- I think, that it's either in the service or not in the service.

If that doesn't work then I think this other thing of -- of whether or not it is essential to military discipline which might be different overseas.

Justice John M. Harlan: Do you --

Mr. Robert Edward Hannon: It's probably is different overseas.

Justice John M. Harlan: Do you think that's the test, constitutional test, of whether it's rational for Congress to conclude as it has since 1873, that a person situated as this man is should be subject to -- should be subject to military discipline.

Do you would think that the test is whether it's essential to the preservation of military discipline?

Mr. Robert Edward Hannon: That -- that Your Honor is our second argument.

Our first argument is he has to be one or the other, he's either in or he's not in.

Justice John M. Harlan: But I --

Mr. Robert Edward Hannon: If he's not in regardless of the situation he shouldn't be tried by court-martial.

Our second argument is if the Court doesn't buy that argument then going back --

Justice John M. Harlan: I understand that.

Mr. Robert Edward Hannon: -- one step further.

Then if there is a third-class, part military and part civil, then the test should be absolutely essential for military discipline --

Justice John M. Harlan: In other words we have supply that it's absolutely essential to military discipline --

Mr. Robert Edward Hannon: That's the word --

Justice John M. Harlan: -- if we reject your first branch of the argument.

Mr. Robert Edward Hannon: Yes, Your Honor.

That's the wording from the Toth case.

We don't feel that in this case that there was any -- it was absolutely essential for military discipline to try a man for murder at Camp Cooke, California rather than taking it to the Federal District Court.

Very last -- quickly, I'd like to touch on the question, which is going to be presented to you by the Government I'm sure, and that is the case of Kahn versus Anderson.

Admittedly Kahn versus Anderson is the thorn in our side.

The Kahn versus Anderson decision was handed down in 1920 by the United States Supreme Court.

However, I think there are a number of things that distinguish Kahn versus Anderson in this case.

First, if not most important, I think there's a question in the Kahn versus Anderson case as to whether or not it was an executed dishonorable discharge.

The court said, “whether or not there was an executed dishonorable discharge it doesn't make any difference.”

The most important factor of the Kahn case is this.

The Kahn case was based on prior cases.

It was based on Carter versus McClaughry Ex parte Wildman and -- and the Craig case.

It was based on those three prior cases.

Now, first of all, if you take the Carter decision, the Carter decision does not hold that the military does not have jurisdiction of -- the military has jurisdictions to try and discharge prisoners.

So far as the Carter case is concerned, that is strictly dicta.

The Carter case holds nothing more than Coleman versus Tennessee, that is, that once a court-martial has started, once the man has been arrested with a view to court-martial, the military maintains jurisdiction over him up until a completion of his sentence.

Captain Carter in the Carter case said that he was tried, convicted, given a dismissal, and five years confinement.

He said after the Court gave him the dismissal, they lost their jurisdiction to carry out the confinement part of the sentence.

The Carter case stands for nothing more than a continuing jurisdiction.

Once jurisdiction attaches, it continues to the completion of the sentence, confinement or otherwise.

In the -- in a statement in the Carter case to the effect that -- the military has jurisdiction to try to discharge prisoners is purely dicta.

There's another argument, this Wildman case and the other case, were based I think to a degree and so as the -- the Khan versus Anderson was based to a degree on the Fifth Amendment argument that the Congress derives authority from the Fifth Amendment to try or to give to the military court-martial jurisdiction over offenses which arise in the service.

This Court in both the Toth and in the Reid case has expressly stated that the Fifth Amendment confers no -- no authority to Congress to confer military jurisdiction.

One other point, the counsel in the Kahn case failed to point out to the Court in that case that the Judge Advocate General himself felt that there was no jurisdiction or that the Article 1361 of the revised statutes was unconstitutional.

Counsel failed to point that out to the Court.

Another point in the Kahn case is that the offense in the Kahn case occurred in time of actual war.

It occurred during the actual shooting war of World War I.

Here, the offense occurred in 1949, which we contend was a time of peace in the actual sense, if not in the technical offense.

I thank Your Honors.

Chief Justice Earl Warren: Mr. Davis.

Argument of John F. Davis

Mr. John F. Davis: Mr. Chief Justice, if the Court please.

Because of the limited time which is left before the Court rises for the day, I would like to turn my attention to the construction problem of Article 92, the time of peace matter rather than dealing with the constitutional issue which has just been discussed.

I think that in the limited time we may be able to deal with the question of construction.

Now, the timetable which we have to have in mind in connection with whether or not this homicide took place in time of peace is as follows.

The incident occurred on June 10, 1949.

Armistices had been signed in both Europe and in Japan in 1945, and the President had proclaimed the end of hostilities as of the close of 1946.

However, the final peace previews and the proclamations of peace were not -- were not issued until -- for Europe 1951, and for Japan 1952.

So that our question here is, in the light of this timetable what did Congress mean when it wrote “time of peace” into Article 92?

Now, this is purely a question of construction, and I want to emphasize this because I think it draws a distinction between this type of case and the type of case which deals with war powers.

There are a group of cases in which the Court has had to consider whether or not Congress had power to take certain action.

And it has power, the Court says, in time of -- in time of war which it does not have in time of peace because of the war powers specifically granted by the Constitution.

But this does not mean that Congress by making its own definition of war or peace can extend its powers indefinitely.

The Court must look at the definitions it uses, the declarations it makes, and determine whether there -- whether they fall within the realm of reason because otherwise Congress could by its own act extend its own war powers which it cannot do.

But here, the power of -- or the power of the Army to court-martial does not depend upon whether or not there's war or peace.

Congress could have said that they -- and in fact, does say in the present Articles of War, that murder may be court-martialed in time of peace as well as in time of war.

So our sole question is, what does Congress mean not what was -- what were its powers?

Now, I suggest it is abundantly clear with respect to Article 92 that Congress did not intend to terminate court-martial jurisdiction prior to the final promulgation of peace, neither the Congress nor the President.

When the President made his proclamation of the end of hostilities, he was keenly aware of the problems of wartime legislation.

And in the proclamation, he specifically stated that the state of war was to be continued, which was done with the idea that there were statutes dealing with war power and that he did not intend his proclamation to affect them.

Then in 1947, Congress deliberately terminated the effectiveness of certain provisions of its statutes which would be effective during time of war.

And in doing this it went through an incredibly long list of statutes dealing with war powers, and it selected from them, individual statutes which it said are no longer necessary to be -- to be continued in effect.

And it's interesting in this respect to note that it selected certain of the articles of war, of these same articles of war, which we have before us.

And considered that, as to them, the war should no longer be continued in effect.

One of these -- one of these articles was the article dealing with desertion which carries a different punishment in time of war than in time of peace.

And for the purposes of construction of that article, Congress specifically stated that we now would consider it is no longer necessary to consider it a time of war.

The -- we have made reference to the articles which were terminated on page 45 of -- of our brief and we have listed also some of the other articles from the footnote which are dependent upon time of war or time of peace and which Congress specifically decided to -- not to affect by this declaration.

Now, this Court has recognized the authority of Congress to define peace and war for the purposes of the articles of war themselves.

I would refer the Court to a rather old case, McElrath against the United States 102 U.S. 426 which is cited in our brief.

By the power of the President which was limited to the time of war to dismiss officers without court-martial, court -- court-martial was upheld in a period between the end of open hostilities in the civil war and before the proclamation of the President that the war has been completed which came out in August of 1966.

The specific question before the Court in that case was, was it proper for the President to exert these powers at this time?

And there they said that the purpose of the -- of the -- of the statute was to have total peace, that's what Congress had meant and there was not total peace until the President had issued the actual proclamation.

Then we have the case of Kahn against Anderson.

And in Kahn against Anderson, again, the question came up whether the war had been concluded.

There are difference in -- differences in the facts between that case and this with respect to the termination of war.

In fact, the -- the petitioner in that case claimed that it wasn't a question of when the homicide took place but it was a question of the jurisdiction of the court-martial and that the court-martial terminated with -- with the time of peace.

This appears to be an extraordinary reading of the -- of the language of the statute but it's the way he read it.

And the Court in passing upon it, said that they must consider it -- must consider that the time of peace did not come until there was total peace and that the Armistice in 1900 -- in November 11, 1918 did not achieve total peace.

And then we come to the -- to the cases which were cited by petitioner with respect to the Korean conflict and with respect to the Court of Military Justice.

I think there's nothing inconsistent in those cases with the position that we take here.

The -- the reasoning of those cases is precisely the kind of reasoning that we have in this case.

The facts of -- are very different because you didn't have a declared war, you had a -- had a war which resulted as -- as from international action.

And in that case like the -- in effect hold, that the war was terminated not when they stopped fighting and the Court will remember there was a period of uneasy truce while negotiations were going on.

But that for the purposes of the Korean conflict it -- it ended at the time of the United Nations agreement which terminated those hostilities being no declaration of war there was no occasion for -- for a proclamation of peace.

And I do not find in -- in those cases anything, although petitioner finds competent and I find nothing in those cases which in any way is inconsistent with the position which we take here.

The Chief Justice asked whether there were decisions by the Court of Military Appeals which supported the position of the petitioner.

I think it's unlikely we will find those because of the fact that the Court of Military -- that the 1950 uniform code, which sets up the Court of Military Appeals became effective on May 31, 1951, and the period when one could appeal to the Court of Military Appeals is 30 days from the final judgment and it's unlikely that it might come up collaterally.

And I can't say that there are no cases which deal with the period that Your Honor suggested but it's unlikely, and I know of none that have come up in the Court of Military Appeals with respect to that issue.

Justice John M. Harlan: Do you know of any (Inaudible)

Mr. John F. Davis: During that period?

In my mind I tried to think from the Court was asking I don't -- my mind doesn't advert to any.

I will -- during the recess, I'll see if -- I'll search my memory and see if there's anything more than I could find on that.

But I -- I don't think of any at the moment.

Chief Justice Earl Warren: We'll recess now Mr. Davis.

Print this transcript Transcript: 

Argument of John F. Davis

Chief Justice Earl Warren: Number 42, John Lee, Petitioner, versus Paul J. Madigan.

Mr. Davis, you may continue.

Mr. John F. Davis: Mr. Chief Justice, if the Court please.

I shall turn my attention now to the issue with respect to the jurisdiction of courts-martial.

All the soldiers who have been adjudged guilty by previous court-martials dishonorably discharged and imprisoned and who commit offenses while they are in the custody of the Army in the disciplinary barracks.

Now, this issue is purely constitutional.

No argument has been advanced that the Article of War, which is presently involved, number -- Article 2 (e) of the 1920 articles does not specifically and intentionally apply to this petitioner.

There is no -- there is no doubt the Congress intended to give the military the power to exercise court-martial jurisdiction of this type of prisoner.

The only question is whether or not it constitutionally could give the Army this power.

Not only does the present article clearly attempt to give jurisdiction to the court-martials but this has been so for a good many years.

The first provision providing for this type of jurisdiction was in 1863 when the first military prisons were established.

It's present in the Uniform Code, the present Uniform Code which is in effect today with respect to all of the armed forces.

The same type of jurisdiction is -- is given to courts-martial if it can be given.

When the -- when the Army discontinued, and I don't know why, but when they discontinued their -- their prisons and began to send the men who are under the court-martials sentence back to the guardhouses back in 1898, the Secretary of War wrote a letter to Congress saying that this terminated the jurisdiction which the Army had previously had which was particularized with respect to army prisons and that he felt the Congress should enact legislation to give the Army general jurisdiction of discharged soldiers while they were still in custody whether in prisons or in guardhouses or anywhere else within the Army's jurisdiction.

He said that it was difficult to maintain discipline unless the Army had authority to enlarge the sentences through court-martial of prisoners who were subject to their control, and it was then that the Congress enacted the Code of 1898 which provided that, and I quote, it's on page 30 of our brief, the first general provision in the court -- in the Articles of War dealing with this question of jurisdiction and it said, "Soldiers sentenced by court-martial to dishonorable discharged and confinement shall, until discharged from such confinement, remain subject to the Articles of War and other laws relating to the administration of military justice."

And this law remained on the books in this form and go, I think it was 1916 when the Congress enacted the same provision in its present form which provide simply that it shall extend to -- the military jurisdiction shall extend to "all persons under sentence adjudged by courts-martial".

Justice William J. Brennan: Well, do you mean that might apply even if you're confined to a (Inaudible) because that's not the case here.

Mr. John F. Davis: That's not the case.

This language doesn't -- I -- it would be a different case and this language would seem to include it but I'm not sure about what the legislative history behind it and what's happened second.

Justice William J. Brennan: Well, now, how -- how was it -- is it Lee now confined at Alcatraz?

Mr. John F. Davis: He is now confined in -- in Alcatraz.

And under the present Articles of War, Uniform Code, he would not be subject to military jurisdiction because the present article say under -- under -- and I don't quote exactly but they feel with confinement by the military authorities themselves.

Justice William J. Brennan: There is no question that at the time of this offense -- Camp Cooke, is that what it was?

Mr. John F. Davis: The Camp Cooke.

Justice William J. Brennan: That was exclusively military.

Mr. John F. Davis: That's right.

It was run by the military.

It was --

Justice William J. Brennan: Well, the army only or --

Mr. John F. Davis: It was army only.

It was a branch -- branch of the disciplinary barracks at Fort Lauderdale.

Chief Justice Earl Warren: But if he committed the same crime now, he would be tried in a District Court.

Mr. John F. Davis: That's right.

He would not be subjected --

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: -- to military discipline at that time.

Justice Potter Stewart: Were there any other military activities going on at Camp Cooke at the time of this offense?

Mr. John F. Davis: I'm not fully familiar with the activities at that place.

I -- as far as this man is concern, the -- there were disciplinary barracks there which were exclusively disciplinary barracks and whether there were other activities in the camp, I -- I don't know.

But as far as this man was concerned, he was -- he was only subject to disciplinary barracks.

Justice William J. Brennan: Were the personnel charged with the administration and operation of -- of these disciplinary barracks?

Were they all military personnel?

Mr. John F. Davis: They are all military personnel.

That is right.

By law, the -- the provisions with respect to the disciplinary barracks is set up in Article 10 of the -- of the Code in -- in Chapter 10 of the Code.

And they provide that it shall be run by the Army.

And the -- although it is a -- is a detention place, there is a good deal of the -- of the color of army life attached to it.

The -- there is an attempt to rehabilitate prisoners and make them fit for the Army again with some military training.

Actually, some of the prisoners are organized as infantry would be and they have their own non-commission officers in the prison.

They call them upside-down and upside-down corporals and that kind of thing.

I don't mean that they are non-commissioned officers but their -- their operations are run along that line.

Justice Potter Stewart: Does the record show anything of -- as to whether this petitioner was in that kind of an activity?

Mr. John F. Davis: Well, there is attached -- there is a part of the record, the court-martial record of the thing, and it shows that this -- this particular petitioner was actually locked up in a cell because it would be difficult -- he was a danger, he was dangerous to other -- other prisoners.

There had been many disciplinary problems with respect to him, and he was actually very closely confined.

Justice Potter Stewart: So the record affirmatively shows that he -- he was not in any of this quasi-military activity that you've been --

Mr. John F. Davis: Well, I --

Justice Potter Stewart: -- talking about.

Mr. John F. Davis: I -- I can't say that it -- I cannot say that it is (Voice Overlap) --

Justice Potter Stewart: Certainly if you're locked up in a cell you can --

Mr. John F. Davis: -- at least that he was locked up --

Justice Potter Stewart: Yes.

Mr. John F. Davis: -- considerably.

Justice John M. Harlan: Mr. Davis, I wasn't quite I understood your answer to the Chief Justice.

You say that if he committed the crime now, he could not be tried by court-martial, that's by a virtue of the fact that he is confined in Alcatraz, a civilian prisoner and not because the statute has been changed in respect to military --

Mr. John F. Davis: Well --

Justice John M. Harlan: -- establishments, is it not?

Mr. John F. Davis: Well --

Justice John M. Harlan: Or --

Mr. John F. Davis: -- I -- I evaded the question about what would have happened if the statute hadn't been changed.

This -- the -- the statute has been changed --

Justice John M. Harlan: Yes.

Mr. John F. Davis: -- then he is in Alcatraz so there's --

Justice John M. Harlan: Yes.

Mr. John F. Davis: -- no question at the present time that he would have to go to a civilian court.

If the statute had not been changed, the language of the statute says all persons under sentence are judged by courts-martial and --

Justice John M. Harlan: Now, that -- that --

Mr. John F. Davis: -- it would appear to be broad enough perhaps to cover a civilian (Voice Overlap) --

Justice John M. Harlan: That isn't my question.

If a soldier is confined to an exclusively military prison at the present time, he's still would be subject to court-martial jurisdiction?

Mr. John F. Davis: Oh, absolutely.

Oh, yes.

Justice John M. Harlan: That's all I --

Mr. John F. Davis: That is -- that is also provided in the -- in the --

Justice John M. Harlan: Yes.

Mr. John F. Davis: -- Uniform Code.

Justice John M. Harlan: The present statute.

Mr. John F. Davis: That's right.

Chief Justice Earl Warren: Mr. Davis, may I pursue that just one step farther.

Now, let's say in 1949 at the time the second offense happened, the one for which he is prosecuted here, he had been confined in the -- in Alcatraz.

Mr. John F. Davis: If he had been --

Chief Justice Earl Warren: If he had been confined in Alcatraz and had committed the same crime at the same time, would -- would the Army have had jurisdiction over him to try him or would have been essential for him to be tried in the District Court in San Francisco?

Mr. John F. Davis: I don't know the answer to that question, Mr. Chief Justice.

I don't know of any authority on it.

The law, the law would read all persons under sentence adjudged by court-martial would be subject to military discipline, would be separate -- subject to court-martial.

And it would seem to include a man that was in a civilian prison.

But whether it would receive a construction because of the law that went before that said clearly dealt with situations while they were under military control and that is clearly the intent of the statute whether there will be a limitation that into it, I do not know.

There's no authority on it so far as I know.

Justice William J. Brennan: Do we know, Mr. Davis, whether in 1949, it was sometimes the practice to confine men like this to civilian prison?

Mr. John F. Davis: Oh, yes.

There were specific provisions and regulations with respect to permitting them to be confined in -- in ordinary prisons when they were the type -- at that time, the statute provided that they could be confined in prisons, the -- the federal prison system or even state prison systems where federal prisoners could be confined there, when they were guilty of the type of crime and for a period of years which made it appropriate for them to be confined in -- in an ordinary prison.

They tried to distinguish between people that were felons with criminals in the ordinary sense and people that they would -- could rehabilitate to make soldiers out of them.

Chief Justice Earl Warren: Well, is the statute any different now or -- or the same?

Mr. John F. Davis: Well, I think the practice isn't different, the statute is different.

Now, the statute gives authority without direction so that they can be defined either in military disciplinary barracks, all federal prisons depending upon regulations by the -- by the armed forces.

And I think the policy is the same but the statute isn't as explicit as it used to be.

Justice Hugo L. Black: You have the statutes that were changed printed in your brief?

Mr. John F. Davis: On where they should be -- in --

Justice Hugo L. Black: Yes.

Mr. John F. Davis: -- confined?

Justice Hugo L. Black: Now.

Mr. John F. Davis: No, I don't have that.

Justice Hugo L. Black: (Voice Overlap) to be in -- when they should -- can be tried by court-martial.

Mr. John F. Davis: Oh, when they can be -- yes, that appears, I think, at page 1 of our arguments.

It's not page 1 of the brief, but page 1 of the argument.

Justice Hugo L. Black: You don't have it two together as it was and is (Voice Overlap) --

Mr. John F. Davis: No, but -- but it's very easy.

The -- the way it is -- the way it was, the way it's before this Court, it appears in page 2 of the brief which says “all persons under sentence adjudged by courts-martial”.

That appears at page 2 down at the bottom.

The way it is now in the Uniform Code of Military Justice appears at page 8 of our brief and it's now Section 2 (7) of the Uniform Code of Military Justice and it provides for jurisdiction of persons in custody of the armed forces serving a sentence imposed by a court-martial.

Justice Hugo L. Black: Is there any history connected to that thing?

What's the --

Mr. John F. Davis: Not that I know of.

I think that's what the -- I think that's what the -- the previous section meant.

And that because the 1898 statute, which I read to the Court a minute ago and which appears at page 30 of our brief, carries that same thought of the -- in the custody of the Army but precedes and succeeds this 1916 provision or 1920, the one that's before us now, all speak of custody of the -- of the Army.

And in fact, whaty Secretary of War Alger asked for was why they were in custody of -- of the armies that the whole purpose of it is -- is about.

Justice Hugo L. Black: What's the difference -- what -- what's explained to be the difference in power when the -- the -- in a state -- confined in a state prison, confined in a military prison?

Mr. John F. Davis: Well, the military just have ceded jurisdiction off with the custody of a man they no longer have the problems of -- of maintaining discipline.

Then they've handed it --

Justice Hugo L. Black: (Voice Overlap) Tied all together with the idea of discipline.

Mr. John F. Davis: That -- that was the basic reason for having the statute -- to having -- giving this jurisdiction as Secretary of -- of War Alger requested it, yes.

And Alger controlled prisoners under their -- under their custody.

They felt they needed to have the power of the court-martial.

Justice Hugo L. Black: What reason did he give why the -- it can be better disciplinary action for court-martial and signed in the Court?

Mr. John F. Davis: Well, he didn't -- he didn't draw any comparison.

The statement which he made and it was sent to the House Committee involved in this matter is printed in our brief at page 28.

And he merely stated that he felt that it was necessary in order to prevent insubordination in order not to impair the effect of military imprisonment to give this power to the Army.

And he drew no comparisons with the -- with civilians.

Justice Hugo L. Black: That's the -- this is -- you quoted here practically everything that's relevant to you?

Have you?

Mr. John F. Davis: Yes, I think so.

I -- I've read --

Justice Hugo L. Black: Well, I --

Mr. John F. Davis: -- the entire letter.

It's a short letter but it's --

Justice Hugo L. Black: That's the only thing that you -- that you --

Mr. John F. Davis: That's right, that's right.

There is no comparison drawn.

I mean, it -- he didn't draw any comparison here anymore than he would have as to the difference between military jurisdiction, court-martial jurisdiction and -- and civilian jurisdiction with respect to other members of the Army.

I mean, he felt that the Army should be given disciplinary powers if it becomes necessary but -- but --

Justice Hugo L. Black: But if -- but if it's based on the fact that discipline requires the -- that jurisdiction to be exercised, that's not a question then of how he felt about the general power, it's -- he --

Mr. John F. Davis: No, he was dealing --

Justice Hugo L. Black: -- he based it on that side.

Mr. John F. Davis: -- he was dealing with this particular aspect of it.

There is no question of it.

Now --

Chief Justice Earl Warren: Well, do you -- Mr. Davis, do you think that the law could be -- respecting an individual, could be changed by the policy of the Department as to whether he should be retained in a -- in a military prison for 35 years in a case like this or whether he -- he should be sent to Alcatraz or -- or San Quentin Prison, the state prison in California.

Do you believe that it should be left to -- to the Army to decide whether it should retain jurisdiction over a man all his life depending on whether they kept him in a military establishment or whether they send him to -- to prison of that kind?

Mr. John F. Davis: Well, I think that gets back to the question of whether it is reasonable for Congress to give the armed forces the discretion as to whether to keep the man in a disciplinary barrack or send him on to a federal prison.

If they are going to give the Army that authority, as they did and as they still do, why, then, it would seem appropriate to give the -- the authorities who are going to maintain -- who are going to be responsible for maintaining the order in response to the powers to maintain it, and the Army doesn't need that power with respect to prisoners who are in the federal prison.

Chief Justice Earl Warren: May I ask what the policy was so far as sending him to civilian prisons?Was it to -- to send those who were less dangerous or those who were more dangerous to state penitentiary?

Mr. John F. Davis: I don't think it does so much with -- with -- it may be that it was more dangerous but it dealt more with the nature of their crime.

If they were people who were -- I hesitate to use this kind of term, but were bad people who would corrupt other prisoners, who were delinquent in the sense that they were -- would be locked up in a civilian light and -- and kept from contaminating other people, the idea of one is -- if they were felons, real felons, they should be sent to federal prisons.

This is spelled out in some detail in -- in the statute.

I don't think I -- I don't think I cite that statute in the -- in my brief but it's readily available in the -- it appears in the Articles of War, and I can find it in a minute.

Chief Justice Earl Warren: The reason I asked the question, this man got a pretty severe sentence for -- for his crime.

The first time was 35 years.

Pretty bad crime that he committed, wasn't it or was it?

Mr. John F. Davis: That's right.

Chief Justice Earl Warren: So I'm wondering on -- on what basis they would -- they would keep him in --

Mr. John F. Davis: Reading -- reading --

Chief Justice Earl Warren: -- military prison or send him -- send him to a state prison?

Mr. John F. Davis: -- reading the record in this case, I wondered the same thing.

I mean, it seems as though this -- if they did send people to -- to civilian prisons as though this was the type of case they might well have done.

But they -- they found the judgment.

He was court-martialed in -- the first time in Europe and -- and France, I believe.

And they may have had a policy.

There may have been so many, I don't know.

But anyway, they -- they did decide to -- to -- at that time, they make a determination that can't be changed afterwards.

They can't change the place of imprisonment after it is designated by the officer making the executing sentence.

Chief Justice Earl Warren: They can't transfer him back to a -- to a military prison?

Mr. John F. Davis: They couldn't at that time under the law as it read at that time.

What they can do under the present regulations, I don't know.

But as far as this man is concerned, a case before this Court, the executing authority stated prior to the imprisonment.

And there was no authority thereafter that changed as imprisonment for putting in a federal prison.

He had to stay in the military barrack.

He could be shift from one -- shifted from one military barrack, detention barrack to another disciplinary barracks to another but he couldn't be sent to a federal prison after that.

Chief Justice Earl Warren: Well, when this man was sentenced done on this second charge then he was sentenced to Alcatraz, was he?

Mr. John F. Davis: That's -- well, no, he was -- he was actually sentenced to death by the -- by the court-martial and it was commuted by the President and at that time, he was sent to Alcatraz.

Chief Justice Earl Warren: By -- by the order of the --

Mr. John F. Davis: By the order of the execution of offense.

Right.

But that was on the second -- on the second --

Chief Justice Earl Warren: Yes, yes.

Mr. John F. Davis: -- offense.

Justice William J. Brennan: Mr. Davis, I'm not sure it's highly relevant but if there were no court-martial jurisdiction for this offense of murder and there had to be trial on the civil court, what would be the substantive offense of murder?

Not the provision of Article 92, I take it, as to punishment and such but something else would have --

Mr. John F. Davis: Well -- well, I think he would be punished in federal courts as -- for under the assimilative crimes statute --

Justice William J. Brennan: (Voice Overlap) California.

Mr. John F. Davis: I -- I think that is so.

There may be a -- I -- I couldn't answer your question because I don't know the answer to it but I am guessing that it would either be under the assimilative crimes statute or else, there would be, and I haven't looked at it, some specific federal regulation dealing with homicide on -- in this type of government establishment.

Justice William J. Brennan: This Assimilative Crimes Act in a State like Michigan made quite a difference, wouldn't it, whether it's tried by court-martial or by civil court?

Where --

Mr. John F. Davis: Well, it would --

Justice William J. Brennan: -- Michigan has no death penalty.

Mr. John F. Davis: Well, that's right.

In many States, I thought, they wouldn't have a death penalty.

It'd make a great deal of difference in many ways whether he is tried in --in the court-martial of the civil -- civilian court, criminal courts.

Justice Hugo L. Black: That's -- I don't quite get the -- if this is the only reason they give, I'm -- I can't quite understand the premise on which he says that this was encouraged insubordination, if you're going to have to look at the reasonableness of it.

What he says is to announce to the prisoner that no matter what he may do, he cannot have the term of it in confinement extended as a direct encouragement insubordination and must impair the effect of military imprisonment as an exemplary punishment but he could be punished and could be sentenced to death.

Why?

Why would that -- encouraged him to insubordination to be tried?

On -- what is the basis for that?

Mr. John F. Davis: Oh, I -- I think what -- what Secretary Alger was saying is this, and he wasn't dealing of course specifically with capital -- capital crimes, he was dealing generally with problems of jurisdiction with respect to the behavior of military prisoners.

And I think what he was -- meant that he is saying was if we have no authority to court-martial with these prisoners, all that we can do in order to maintain discipline is to make them uncomfortable, do solitary confinement, labor, things like that.

There is no way that we can -- under our system, under our powers, there is no way that we can hold any larger cover with their heads so as to keep them in order.

And he said we have had it in the military prisons because in the previous law that had been given, we have -- we no longer have it because they're sending them to the guardhouses.

Now, in -- in order to maintain our discipline, we -- we need to continue this power.

Now --

Justice Hugo L. Black: (Voice Overlap) --

Mr. John F. Davis: -- it is quite true, it's quite true, Your Honor, that with respect to -- with respect to capital crimes, murder, things that would be crimes in the jurisdiction that they would be subject to civilian criminal trials and he doesn't address himself to whether or not that would be an appropriate way to deal with this situation.

He -- he merely felt that the army needed this authority.

Justice Hugo L. Black: But the minor things that you are speaking about, they -- they would have anyhow.

Mr. John F. Davis: For they would have -- they would have the ordinary jailers' jurisdiction to maintain order, yes.

Justice Hugo L. Black: But a source?

Mr. John F. Davis: But they would have no power to extend the sentence.

Justice Hugo L. Black: Well, they couldn't extend it --

Mr. John F. Davis: That's right.

Justice Hugo L. Black: --but the courts would have power to extend it.

Mr. John F. Davis: Yes, but he felt it's --

Justice Hugo L. Black: They will be (Inaudible) to be punished.

Mr. John F. Davis: -- he felt it's necessary for --

Justice Hugo L. Black: What -- what he -- virtue would there be in a or deter would there be that you can imagine the man knowing that he is going -- if he's going to be sentenced for 10 years, that in one instance, he's going to be sentenced under military judgment, in another instance, by conviction for a jury.

Mr. John F. Davis: Well, I -- I don't know that there would be any great difference.

The -- the Secretary of War Alger felt that the military having jurisdiction of soldiers, the military should have this jurisdiction of these people.

Justice Hugo L. Black: No, there -- there's no doubt about that.

He felt they should have --

Mr. John F. Davis: And whether that's -- I'm not sure that he --

Justice Hugo L. Black: But his reason was this.

Mr. John F. Davis: I'm not sure that the question of constitutionality depends upon whether this is absolutely necessary.

I mean they come to this question of constitutionality and -- and I want to discuss that.

Justice Hugo L. Black: Well, I thought you're discussing it now (Voice Overlap) --

Mr. John F. Davis: Yes, I was but I didn't get to this -- but you have assumed in your -- in your question, I believe, that in order to uphold this power, it is necessary for this Court to find that there's no other way of handling this problem.

Justice Hugo L. Black: I took your -- I took your words, reasonably related to the extension of the jurisdiction.

Mr. John F. Davis: Well, I --

Justice Hugo L. Black: And if the reasonable -- if you have to depend on the idea that somehow, it's a greater punishment for a man to have a military judgment over him than a -- than a civil judgment, I don't quite get it.

Mr. John F. Davis: Well, I -- I wouldn't base my argument on that -- on that necessity, Mr. Justice Black.

I -- I think that's -- I think this background is necessary to understand why they asked for it but I -- I think that the authority, the authority of Congress to pass this law is and under its laws to make rules for the Government in regulation of the land and naval forces, and that looked at fairly and squarely, this man is a -- is in the land and naval forces of the United States and therefore, this is the military authority to exercise this type of jurisdiction.

Justice Hugo L. Black: Could they call him to fight?

Mr. John F. Davis: No, they could not call him to fight.

Justice Hugo L. Black: Could they call on to participate in any way, in any military activity?

Mr. John F. Davis: Yes, they could.

They could put in under the -- under the system there.

They can have the military training in these -- in these camps.

It's one of the -- one of the statutory purposes of the camp.

Justice Hugo L. Black: Could he that as a prisoner or as a soldier?

Mr. John F. Davis: Well, he is -- he is not -- he'd do it as a prisoner or as -- he'd do it in this capacity which he is in, in this -- in this disciplinary barrack.

I don't -- I don't want to make a conclusion one way or the other.

That is my -- my argument is that he is a member of the armed forces.

Now, this Court has had this very question, this precise question under this precise Article of War before it before in Kahn against Anderson after the First World War.

And the facts in that case are almost precisely the same as -- as the facts in this case with respect to the question of jurisdiction.

And in that case, the same arguments as to lack of -- of constitutional power will presented to this Court, and the Court found that this did fall within the powers of Congress with respect to the -- to the government of the land and naval forces.

And that finding of the Court was buttressed by Court of Appeals' decisions which preceded it, dicta of the Supreme Court itself which preceded it and it has been followed thereafter in the Courts of Appeals.

The only authority to the contrary so far as I know on this question of jurisdiction is Colonel Winthrop.

Colonel Winthrop, in his -- in his book, definitely says that there is no jurisdiction in this type of case.

Now, undoubtedly, undoubtedly, the reason that we have troubled with this case today is because of the decisions of this Court in the Toth case and in Reid against Covert.

And I don't have to tell the Court that these -- on the facts, those cases are -- are clearly distinguishable from this.Our question is whether in theory, they cover it.

The -- the Reid against Covert case, of course, dealt with the wife -- the wife of an officer -- of an -- of an officer who had never -- the wife had never been in the army services and the question was whether because she was -- along with the army services whether she was closely enough connected to be within the military power.

And the Toth case on the other hand dealt with a -- with a soldier who had been retuned to civilian life.

The -- the Army had -- not only discharged him but had released any authority over in McCulloch and they attempted to regain their authority.

In the Toth case, as a matter of fact, there is a footnote which refers to the type of jurisdiction which is involved in this case.

It refers to the case of Kahn against Anderson, which I mentioned a minute ago, and without, in any way, testing any question upon its authority, recognizes that that is a decision of -- of this Court.

I think that it really advances our argument very little for the petitioner to rely on Colonel Winthrop's assertion that a dishonorable -- dishonorably discharged prisoner is a civilian and therefore not subject to jurisdiction.

I think that this is really only a -- a way of stating a conclusion.

There's no question that a dishonorable discharge terminates military benefits generally but whether it ends the power to impose discipline as such is the very question which is before this Court, and we could turn this argument around and say that since one of the -- one of the vital test of membership might well be whether a person is subject to discipline at the very fact that there is an imposition of discipline over these prisoners makes them members of the armed forces.

The -- the Army as -- has, as a matter of fact, has coupled dishonorable discharges with the discipline of imprisonment for -- for many years.

And this Court is specifically recognized that the coupling of a dishonorable discharge and an imprisonment is -- is not an inconsistent act and that the military forces have authority to do this.

So that I think it is clear beyond any question that there is no intent.

There is no intent on the part of the armed forces to sever the disciplinary relationship between the soldier and the armed forces when they sentenced him to dishonorable discharge and imprisonment for a period of years.

They specifically wished to maintain the -- the disciplinary relationship over him.

Justice John M. Harlan: Where those two aspects of a sentence part of the same physical document?

Mr. John F. Davis: Well --

Justice John M. Harlan: Part of the judgment of the court-martial?

Mr. John F. Davis: Yes.

Well, I won't be sure I answer your question correctly.

The sentence has these two elements in it.

There is a separate dishonorable -- then the man is in prison then a dishonorable discharge of a document which is called a dishonorable discharge, I haven't seen it but I -- I think this is so, a document is filled out in proper places and forwarded to his fine.

Justice John M. Harlan: The judgment of the court-martial included in it imprisonment and dishonorable discharge.

Mr. John F. Davis: That is right.

Justice John M. Harlan: And what you are suggesting, I take it, from your argument now is that the point of substance looking at this thing, the discharge should be reviewed just as if it had written into it, “Your discharge is honorably,” and at the same time served 20 years for --

Mr. John F. Davis: Yes.

Justice John M. Harlan: -- whatever it is, for this for this crime.

Mr. John F. Davis: Yes, and I'm suggesting that when these are coupled together in this way, it shows an intent that the dishonorable discharge shall not terminate the disciplinary powers terminate the relationship between the member of the armed forces and the armed forces by being executed, otherwise, the -- he would presumably be released from -- from prisons and said have no authority even to hold him in that prison.

Chief Justice Earl Warren: What?

Justice Hugo L. Black: I noticed you recognize in your correction of your sentence that there is probably a difference between determination of all relationship as to the man who has been in the Army and a termination of his relationship as a member of the Army.

Mr. John F. Davis: Well, the reason I think I phrased made -- changed my phraseology is --

Justice Hugo L. Black: I thought it was wise.

Mr. John F. Davis: -- that there is not question that a dishonorable discharge ends a great many of the aspects of a man's military career.

The very purpose of a dishonorable discharge is to make this man no longer subject to getting pay, pension rights, the honorable status of a member of going to defend, going to fight for the -- for the people.

I mean --

Justice Hugo L. Black: Or any other service.

Mr. John F. Davis: Except there is -- I suggest to Your Honor that there is no intention to release this man from the custody from the jurisdiction of the Army.

Justice Hugo L. Black: Well, that's -- it's -- supposing that's true, that seems to be the only thing the Court said in the Kahn case.

I can find no reason except that.

Mr. John F. Davis: There is a little more.

Justice Hugo L. Black: And was there a discharge there?

Mr. John F. Davis: Well, the Court said it made no difference.

Justice Hugo L. Black: I understand that, but was there any?

Mr. John F. Davis: I don't know.

Justice Hugo L. Black: I think not.

Mr. John F. Davis: I don't know whether there was (Voice Overlap) --

Justice Hugo L. Black: And I understand that --

Mr. John F. Davis: -- it was -- the Court didn't determine.

Justice Hugo L. Black: -- that -- that the Court just brightly admit from the fact that they had -- they charged, that he was a military prisoner to the statement and that settled it and which was frequently the case in the -- some of the opinions.

And that is settled, its being a military prisoner, they had jurisdiction.

Mr. John F. Davis: Well, whether or not a man is still a member or in the armed forces, it's -- it's sometimes not easy to determine.

This is one aspect of the case which we have before us.

But there are -- there are many situations where the man can't be sent to -- to fight overseas, can't be ought to do this, can't be ought to do that.

I think one of the prime examples, one of the things that strikes me is the question with respect to prisoners of war who are also subject under the law to -- to army court-martial.

Now, prisoners of war, of course, guilty of no crime whatsoever, I mean, they kept in, enemy soldiers who have been captured.And under -- in the national convention, they are entitled to many rights and -- and privileges as prisoners of war but they are also subject to military court-martial.

Justice Hugo L. Black: (Inaudible)

Mr. John F. Davis: They -- yes, of course, they'd --

Justice Hugo L. Black: So he had not been part of the army (Inaudible)

Mr. John F. Davis: But they -- but -- but these are not punished under the war power, Your Honor.

These are power -- these -- these people are subject to the -- the military disciplines under the power to -- to govern the -- the land and naval forces of the United States.

And --

Justice Hugo L. Black: But that's (Inaudible)

Mr. John F. Davis: I -- I don't mean to (Inaudible) war angled through thoroughly but I (Inaudible) prisoner of war in this country (Inaudible) with respect to the Constitution.

He has a -- he has a -- if -- if he is in the -- just as any alien in this country is, he is entitled to the protection of the Constitution.

And in order to have authority to try these men by court-martial with the -- with the methods, the procedures which are followed there and are not applicable to civilian, I think it is necessary to find that pro tanto and to a certain extent, a prisoner of war too is part of our -- of our own land and naval forces.

Justice Hugo L. Black: (Inaudible) that says a prisoner of war who has never been here taking in fight, fighting against this country who haven't come here and never has been a part of the armed forces, they can try him, I understand, but a soldier who has been a part of the armed forces but they put out and who has been in this country all his life can be tried by them too on that ground.

Mr. John F. Davis: You mean like in the Toth situation?

Justice Hugo L. Black: Like a man -- this -- this man here who's been discharged and not a part of it merely because they decide to keep him in prison for a crime that he has committed when he was under their jurisdiction.

Mr. John F. Davis: I think -- I must -- I must say that -- I think we mustn't assume that he is no longer a part.

I think that is our question whether he is so -- he is so -- he is now so intimately connected so closely associated to the aspects of military life impinged on him so thoroughly that he is still in the armed forces.

In my argument is based on the fact that he is still in the armed forces while is in the --

Justice Hugo L. Black: Is any statute that's ever been passed in the country and draft law or anywhere else that says that a -- and that's I presumed settled the status as a folio, I'm not talking about now as a prisoner, that indicates that the Army can take a man in and keep him there beyond the term of service of other people who get in as a soldier and after he's been discharged?

Mr. John F. Davis: After he has been discharged?

Justice Hugo L. Black: Yes, after he's been discharged.

Mr. John F. Davis: Well, I --

Justice Hugo L. Black: Can he put -- can the Army project the term of his service over his objection or even with his objection?

Mr. John F. Davis: You mean aside from the -- this particular issue which is before us, which is precisely --

Justice Hugo L. Black: This issue -- this issue to me is quite a difference because it's the power over prisoner.

So which kind of trial a prisoner will have who is no longer a soldier?

Mr. John F. Davis: Well, I -- I think there is no question that the terms of service frequently changed with respect to officers as far as I know with respect to enlisted men in time of war as I -- and that one subject to military discipline if it's necessary for the protection of the -- the country.

And this, I haven't checked again but I would -- my recollection is that during World War II, the question of when one would be released was in the hands of the armed forces rather than a matter of contract between the individual and the -- certainly with respect to officers applies.

Justice Hugo L. Black: As officers who volunteered their services and went in and the statute provided they should be there for some term or some fixed -- something fixed by the statute.

Mr. John F. Davis: That's --

Justice Hugo L. Black: What I'm asking is if there's any of the statute that ever been passed that indicates that the Army can keep an enlisted man.

Mr. John F. Davis: Oh, I would have to check whether there was any (Inaudible) of -- of enlistment during the war.

I don't know whether an enlisted man -- how -- how that applies (Inaudible)

Chief Justice Earl Warren: Mr. Davis, was there a uniform policy at the time this man was -- was sentenced concerning the issuance of dishonorable discharge?

And if so, was that policy consistent with what they did here?

Did they -- did they always issue the -- the dishonorable discharge transmitted to the -- to the defendant and then put it in his files?

Mr. John F. Davis: That was the customary way to handle this type of situation there.

But to give you a little full answer, I want to say that in certain cases, there was a suspension of the execution of the discharge in order to determine whether or not the soldier could be rehabilitated and returned to the armed forces.

Chief Justice Earl Warren: Was that in the judgment against him or was that in the -- in the --

Mr. John F. Davis: That's in the execution, I believe.

I think that was not in the -- I think that wasn't in the -- I'm sure it wasn't in the sentence.

That was in the execution of the sentence that they would suspend it and -- and try to get the man back into the service.

Actually what --

Chief Justice Earl Warren: Were -- and were not stated in the -- is that stated in the execution or -- or was it --

Mr. John F. Davis: Yes, the execution in -- in the -- the officer who would execute the sentence was -- withhold this development and tell -- who would determine whether or not the man could be rehabilitated.

Chief Justice Earl Warren: As a matter of discretion within?

Mr. John F. Davis: As a matter of discretion under regulations, I presume.

Chief Justice Earl Warren: Then we take this particular case if the officer who executed this judgment against this defendant was to hold this thing in his hands throughout the 35 years if the man was serving his percent that he could determine.

He could determine if and when or at all this man was to -- to get his -- his dishonorable discharge and -- and be detached from the service or whether he should have remained in.

Mr. John F. Davis: Well, in this -- in this type of case where the long term of imprisonment, the provision would -- would rather be that the discharged would be executed and then if the term of imprisonment for a good behavior because the man proved that he was going to be a good soldier, if the term of imprisonment was -- was reduced as the armed forces had -- had the right to do, by then, he would be reenlisted and the reenlistment would take effect for the unexpired portion of this prior enlistment.

There'd be a -- actual reenlistment in that so --

Chief Justice Earl Warren: Well, now --

Mr. John F. Davis: And that's provided, I may say, in the statute itself.

I mean, that's -- that's what the law contemplated.

Chief Justice Earl Warren: As to the withholding or the immediate issuance of his discharge --

Mr. John F. Davis: Oh --

Chief Justice Earl Warren: -- that's in the statute?

Mr. John F. Davis: No, this -- this procedure for reenlisting a man, a -- a prisoner who has -- who has proved that he has rehabilitated.

Chief Justice Earl Warren: Yes, but is anything said in that statute or in any of the regulations concerning the time that his dishonorable discharge shall be issued and served upon?

Mr. John F. Davis: Not that I know of.

Chief Justice Earl Warren: That becomes a matter of policy with the executing officers.

Mr. John F. Davis: Yes, I'm sure there were directions with respect to it, but I don't -- I don't know.

Chief Justice Earl Warren: Directions coming from where?

Mr. John F. Davis: From the army -- from the barrack officers (Inaudible) of the Secretary of the Army.

I may say that in one side of these cases is -- as -- as I analyze the basis, it's very different from the Reid case, Reid against Covert case or Toth in that here, we have, I believe, no attempt by Congress to expand -- expand the area of its jurisdiction.

It's -- it's rather a matter of carrying through jurisdiction which is specifically and -- and concededly granted to it with -- with respect to armed members of the armed forces to carry this thing -- to carry that very jurisdiction through until determination of their imprisonment.

Now, I think when I was talking about whether Congress intended to -- I'm turning now to the point I was discussing last night about Article 92 which limits the military jurisdiction of a murder to -- so that it excludes “in time of peace”, and I think I neglected to mention one thing which I think is -- is rather important and that is that when Congress amended the Articles of War in 1948, it specifically recognized that with respect to the Articles of War, the war was still in progress, and it did this in connection with Article 53 providing for applications for new trials.

And there was a thought that maybe during hostilities, many court-martials have been hurriedly conducted and that it was appropriate to give soldiers who had gone through those court-martials a chance to have them looked at in more calm -- in a -- in a more calm atmosphere.

And so in Article 53, they gave soldiers opportunity to petition for new trials under Article 53, and they limited the time there.

And they limited it to -- within one year after the termination of the war sometime in the future.

They recognize the war was still in existence and they were giving this right in the future until one year after determination of the war.

And again in 1950, when the Uniform Code of Military Justice was -- was adopted, again, Congress, in dealing with applications for new trials, specifically recognized that with respect to the Articles of War, peace had not been achieved.

Chief Justice Earl Warren: Mr. Hannon.

Argument of Robert Edward Hannon

Mr. Robert Edward Hannon: Mr. Chief Justice, members of the Court, may it please the Court.

First, I'll deal with the question of time of peace and time of war.I think in this regard, we're based, of course, with the Kahn decision.

However, I'd like to call the Court's attention to Justice Black's dissent in the Ludecke case.

That is found in our brief on page 30.

Justice Hugo L. Black: Well, unfortunately, that doesn't question the law.

Mr. Robert Edward Hannon: Well, I think -- I think the idea expressed --

Justice Hugo L. Black: (Inaudible)

Mr. Robert Edward Hannon: [Laughs] Well, I think, Justice Black, in -- in regards to this particular issue, that is the crux of it, and I think that is the law that has been since that time adopted.

It says that in interpreting any statue as to when we have time of peace and when we have time of war, you can't just blandly say that such and such a date will always terminate a war.

I think that you have to look to the -- the intent behind the statute.

The reason for the statute that Congress had in mind as it just is said in such cases we are called upon -- in such cases, we are called on to interpret the statute as best as we can so as to carry out the purpose of Congress in connection with particular right the statute was intended to protect.

I think that decision -- that idea has also been followed by the -- the Court of Military Appeals and the --

Justice William J. Brennan: Well, Mr. Hannon, I don't understand (Inaudible)

Mr. Robert Edward Hannon: Well, I think the Kahn case disagrees with that.

The Kahn case says that it means peace in the complete sense officially declared and then the Kahn case goes on to say or imply that nothing but a peace treaty can terminate war.

And I think that various things can terminate local war for various statutes.

I don't think you can't point in advance that anyone thing and say, “Well, in all cases, a peace treaty must necessarily terminates the war.”

Justice William J. Brennan: I -- I didn't understand.

I -- Mr. Davis' argument may --

Mr. Robert Edward Hannon: Well, my --

Justice William J. Brennan: (Voice Overlap) but I thought what he was suggesting was that for the purpose of this statute, Congress had in mind that in any event, the story is not -- the war had not ended, not necessarily that it was the date of -- as of official termination.

Mr. Robert Edward Hannon: Well, I think that if we can assume that well, I --

Justice William J. Brennan: I don't want --

Mr. Robert Edward Hannon: [Laughs]

Justice William J. Brennan: I don't assume --

Mr. Robert Edward Hannon: (Voice Overlap) --

Justice William J. Brennan: (Voice Overlap) that's why I understood, Mr. Davis.

Mr. Robert Edward Hannon: Well, in this -- I think in any event, that that is now the law or appears to be the law that you must look at the particular purpose Congress had in mind in enacting the statute or the right that they sought to protect.

Well, under this 92nd Article of War, we can look at it and has -- well, what did -- what right was Congress trying to protect by saying that the military could not try a person for murder in time of peace but right where they're trying to protect.

Well, they were obviously saying if it's a murder case, a very important capital offense turn him over to the civilians to try where he'll have his constitutional rights.

I think that's the obvious purpose that Congress had in this statute.

So that boils down to the question -- well, of course, conversely, by stating that, the Congress had in mind that there would be certain times when it wouldn't be expedient to turn murder cases over to the civilian courts where the constitutional guarantees prevail.

Certain times, when it wouldn't work, those certain times are mentioned in the Article, number one, if it's outside the continental United States.

Well, if it's outside the continental United States, your alternatives there are either try him by court-martial or turn him over to the foreign jurisdiction.

Now, the other occasion is in time of war.

We won't turn a murder case over to civilians.

Well, obviously in time of war, they mean, I think, like this Court is held, when the courts are closed, the idea of the Milligan case and the Hawaiian cases, it's -- when the courts are closed, there is no civilian court where the man could be tried for murder so therefore, try him by court-martial.

Now, taking one step further from that, what was the condition in California in 1949 that precluded him from having his constitutional guarantees by a trial in civilian court?

It would -- could it be said that Congress, in setting up this statute, contemplated that a situation like 1949 would be time of war or would you say that Congress in enacting Article of War 92 thought that it was a technical state of war that would control?

I don't think so.

I think that Congress was dealing with actualities when they talked the time of peace and time of war.

And the actualities in California in 1949 certainly were a time of peace.

That has been the decision of the Court of Military Appeals in the Shell and Bussmann cases.

The lower court -- the Bussmann case which is a recent Court of Military Appeals' decision says that in Korea, we arrived at a time of war in purposes of the Articles of the Code when they stop shooting, when the armies -- this was signed.

The lower court attempts to distinguish this by saying, “Well, in Korea, there was no declaration of war.

Therefore, there does not have to be a treaty to terminate this war.”

But -- and the answer for that, “For one thing, you could say there was no treaty after World War II for six years.

What's to say, there won't be a treaty after Korea within six years.”

And secondarily, I don't think from reading the Bussmann case, you can get such a narrow meaning from it.

I'm quoting from page 37 of the brief where the Court of Military Appeals says, “And that Congress, when it used the phrase ‘in time of war' in the Military Code intended that phrase to apply to that state regardless of whether or not it was initiated or continued or -- with or without formal declaration.”

I think the Court of Military Appeals is squarely held that incidentally, there is a further case from the Court of Military Appeals which just came down and it's not cited in our brief, it's United States versus Carr, and it's 23 CMR 273.

In that case, the Court of Military --

Justice Potter Stewart: Can you give us the citation again?

Mr. Robert Edward Hannon: Yes, Your Honor.

It's 23 CMR 273.

Justice Potter Stewart: Thank you.

Mr. Robert Edward Hannon: That case, the Court of Military Appeals says, “In those cases, this Court concluded that upon the cessation of hostilities in Korea on July 27, 1953, pursuant to the armistice a state of war no longer exists for purposes of military law.

Thus, it is crystal clear that the inception of the accused absence occurred in time of peace.”

The accused went on unauthorized absence on August 3rd, 1953 less than a month after the armistice.

They said that he went on unauthorized absence in time of peace.

Quickly carrying over to the second portion of the argument, that is as to the constitutionality of Article 2 (e).

Here, we are speaking of 2 (e) under the 1920 Code.We are not speaking under the present Uniform Code of Military Justice but the 2 (e) under the existing code.

Number one, it should be pointed out that the first enactment of that 2 (e) in 1898, the bill was entitled an amendment to the Summary Court Act.

A summary court is a court that can give up to three months jurisdiction.

Obviously, what they intended was to give to the military prison warden jurisdiction similar to what a -- any prison warden has.

Now, I think that this --

Chief Justice Earl Warren: Did the article remain that way?

Mr. Robert Edward Hannon: No, Your honor, I don't think that it was subsequently went into the Code.

And in the code, it's just another article under the jurisdictional aspects of it.

But initially, it was and these letters back and forth that counsel quoted were under that heading, amendment to the Summary Court Act.

I think that the argument boils at to two parts.Number one, and this was the same problem I had problems with yesterday, on reflection, I think it because to the constitutionality, it boils it to two parts.

I'm running over, Your Honor.

It's --

Chief Justice Earl Warren: No, no, you have three to four minutes more until the red light comes in.

Mr. Robert Edward Hannon: Right.

I think first of all, we can determine was he in the armed forces or was he a member of the armed forces?

Now, if -- on that particular argument, if he -- the -- he has no contract, he wears no uniform, he receives no pay, he performs no services, he can't be sent to war, he has none of the incidence of a member in the status or a person of the status of a member of the military.

The Army itself, as I pointed out yesterday, has said he is not a soldier, and Winthrop said he is not a soldier.

But there is some indication or perhaps there is a third class, a class that is not entirely in the service yet.

He is subject to jurisdiction.

I think then that even if there is such a class, if the Court is not prepared to say that you're either in or out, if there is a third class, this man wouldn't fall on that third class because that third class apparently is predicated on the idea that his control over him is absolutely essential to the maintenance of military discipline.

Now, what is the -- what is the absolute necessity for having court-martial jurisdiction for a capital offense over a man confined in California in 1949?

The need isn't there.

This third class, if it exists, is a class that is based on need apparently.

That's the only reason for it in any event.

And if there is no -- in this case, there is no need nor in the case of a dishonorably discharged prisoner confined in the United States.

There is no need to set up a third class which is part military and part civil.

But I think, in my opinion, there is no such third class that the person is either in the status of a member of the armed services or he is in the status of a civilian.

Justice Hugo L. Black: You have to take on that part and say that there is no third class?

Mr. Robert Edward Hannon: No, Your Honor, I don't think he --

Justice Hugo L. Black: (Voice Overlap) what's called the CB and not a --not a soldier though or somebody who just doesn't work under the Army?

Mr. Robert Edward Hannon: Well, I think a CB would be -- he is enlisted.

He has a contract with the --

Justice Hugo L. Black: Well, suppose he is not in the -- suppose there's no paper enlisted, but he take (Inaudible)8 he goes to the Army and he is part of it.

Suppose they decide not to have him enlisted and not use those papers.

Mr. Robert Edward Hannon: In my opinion, Your Honor, he is a civilian.

Justice Hugo L. Black: Civilian?

Mr. Robert Edward Hannon: However, it isn't essential --

Rebuttal of John F. Davis

Mr. John F. Davis: Well --

Rebuttal of Robert Edward Hannon

Mr. Robert Edward Hannon: -- for our case to go that far.

Justice Hugo L. Black: -- is that -- is that a part of your case here?

Mr. Robert Edward Hannon: No, Your Honor, we don't have to go that far.

We could say that there is a third class that is -- that is not in that -- this man is not in that third class.

I thank you, Your Honor.