MCELROY v. GUAGLIARDO

This habeas corpus proceeding, here on writ of certiorari to the Court of Appeals for the District of Colombia Circuit, is the first of four cases now before the Court, involving once again Article 2 (11) of the Uniform Code of Military Justice, which was before the Court two years ago in the Covert case and which -- in which Congress sought to empower courts-martial with jurisdiction over dependants and employees, accompanying and serving with the armed forces overseas.

Of the four cases before the Court, the first, third and fourth involve employees and the second case, immediately succeeding case, involves a dependant.

Of the four cases, all involved noncapital crimes except the last which is a case of a civilian charged with a capital crime.

Justice John M. Harlan: Did you say they were civilian employees of the armed forces?

Mr. Oscar H. Davis: Yes sir, a person who is not enlisted or commissioned in the armed forces in that sense.

Justice John M. Harlan: And that's what we're told former federal -- federal status by the Army?

Mr. Oscar H. Davis: He is an employee of the Department of the Air Force.

Respondent is an --

Justice John M. Harlan: A contractor on particular job?

Mr. Oscar H. Davis: No sir the respondent --

Justice John M. Harlan: A fellow who is not in uniform could otherwise leave the Army if he chooses to?

Mr. Oscar H. Davis: Well that is our position.

Respondent --

Justice Hugo L. Black: Is that everybody who works for the Army in the United States and elsewhere?

Mr. Oscar H. Davis: No sir I will try to -- limit our -- our position to people serving the armed forces overseas.

Justice William J. Brennan: Can't you tell me, Mr. Davis, in the pages of each the briefs here in the Court, what the form (Inaudible) --

Mr. Oscar H. Davis: They were --

Justice William J. Brennan: -- the three with civil service --

Mr. Oscar H. Davis: Yes they were all civil service employees of the particular armed service involved.

They were non-employees of contractors or anybody else.

That is they were directly employed by the Federal Government and each of the three employee cases --

Justice William J. Brennan: In other words there are different ways --?

Mr. Oscar H. Davis: They were all civil service employees --

Justice William J. Brennan: Civil service?

Mr. Oscar H. Davis: Well I say civil service generally.

The respondent here was once called a wage board employee as so many are in the United States.

He was paid on an hourly basis, but he was in the -- he was in the same situation as comparable employees in the United States would be at Air Force installations or Air Force posts here in this country.

Justice William J. Brennan: What is the other one?

Mr. Oscar H. Davis: In the third case Wilson was also a civil service employee --

Justice William J. Brennan: Like the fourth?

Mr. Oscar H. Davis: No he was a regular civil service employee and --

Justice William J. Brennan: Unless he had some EAF (Inaudible)

Mr. Oscar H. Davis: Yes he had I think a GS and that -- whatever it is and then -- and then the fourth case, the Grisham case, he was an auditor with the corps of engineers stationed ordinarily at Nashville.

He was on six months temporary duty with the corps of engineers in Orleans, France.

He also had a GS number.

Justice William J. Brennan: Yes.

Chief Justice Earl Warren: Mr. Davis is there anything in the nature of the employment or in the duties in these three employees that would cause you to make any distinction between the two insofar as the legal principles in this case are involved?

Mr. Oscar H. Davis: For the three, sir?

Chief Justice Earl Warren: The three employees.

Mr. Oscar H. Davis: Yes, well no there -- except the one factor that in the Wilson case which is the third case, he was stationed in Berlin and we make a separate argument as to the status of Berlin as being a place where the law of war applies and so that he could have been, he could be court-martialed under that basis of jurisdiction.

Otherwise there is no difference as to the three employees.

Guagliardo, the respondent in this case, journeyed to Morocco and he there became an employee of the Air Force Department at Nouasseur Air Base which is near Casa Blanca in Rabat, in Morocco.

He was an electrical lineman charged with maintaining and keeping the lighting on the airfield there and of course since this was an airfield that was an important and significant post.

He had a -- a -- all the status and privileges and benefits of persons accompanying the armed forces overseas.

That is, although he himself lived in Casa Blanca in an apartment, he had a quarters' allowance just like many officers do, many higher-grade non-commissioned officers who don't live on the post, but live in a nearby town.

He had commissary privileges, exchange privileges, officer club privileges, medical and mail privileges.

The offense of which he was charged, kept together with two enlisted airmen, was the -- was the offense of larceny and conspiracy, to commit larceny of Government-owned goods.

There were some leatherette goods and olive drab fabric material owned by the Government, the Air Force, on this base, the Nouasseur Air Base Depot in Morocco and he was charged together with these enlisted men with at least two counts of larceny and conspiracy to commit larceny.

Under the Manual for Courts-Martial the maximum penalty is five years for this -- these offenses and there was a trial held.

He did object to the jurisdiction of the court-martial over him.

He was found guilty on both counts together with the airmen.

He was sentenced to three years confinement and a $1000 fine.

Justice William O. Douglas: Were any local civilians involved?

Mr. Oscar H. Davis: Yes local civilians, not Americans were involved.

They were not tried Mr. Justice by the court-martial.

There was some suggestion that they were tried, but I cannot actually say whether it was true, by the local Moroccan Courts.

There was apparently from the court-martial record, arraigned, and which involved these three, the two airmen and this employee and some local civilians.

Justice Potter Stewart: This was a conspiracy trial or for the substantive offenses?

Mr. Oscar H. Davis: They were both, substantive offence of larceny and conspiracy to commit larceny.

Justice Potter Stewart: And they were allegedly local civilians who were parties to a conspiracy?

Mr. Oscar H. Davis: Yes.

On review, his sentence was cut down to two years and the fine was eliminated and the United States Court of Military Appeals denied petition for review.

He brought habeas corpus here in the District of Columbia.

Meanwhile I should say he was brought from confinement in Morocco here to the United States pending this habeas corpus proceeding.

The District Court --

Justice Tom C. Clark: What was the maximum penalty that could have been imposed?

Mr. Oscar H. Davis: Five years sir, five years.

He was not discharged by the District Court and he took an appeal to the Court of Appeals.

Pending his appeal to the Court of Appeals, the Court of Appeals granted him bail since the Spring of 1958 and he has been on bail since that time.

The Court of Appeals reversed the judgment of the District Court and ordered that habeas corpus should issue.

It did not do so on the constitutional grounds which were mooted so much before the Court in the Covert case.

The Court of Appeals held that the statute, Article 2 (11) was inseparable and therefore that – it's application in the Covert case, having been shown to be invalid, the whole of the Article's fell and the Court did not have to decide for itself whether it was invalid as applied to this employee charged with a noncapital offense.

I shall of course argue that was error.

As the Court recalls, in the Covert case the Court that this Court had before it, two dependants not employees charged capitally and by virtue of the division of the Court, the only decision of the Court in the Covert case was that those two dependants, servicemen's wives charged capitally could not be constitutionally tried by court-martial.

As the Court will recall there was no opinion for the Court.

Mr. Justice Black rendered an opinion which three other Justices joined and I mention to the Court that in at that opinion, Mr. Justice Black reserved the question of whether there might be other people not in uniform and not enrolled or unlisted who would be subject to court-martial jurisdiction.

Mr. Justice Frankfurter and Mr. Justice Harlan very specifically limited their concurrences to the subject of dependant wives charged capitally.

So we think that the Covert case leaves open for this Court the question of the coverage to court-martial jurisdiction of all employees, those charged noncapitally as in this case or capitally as in the fourth case to be heard tomorrow.

And it also leaves open we believe the question of dependants charged noncapitally as will be the situation and the case to be heard immediately after this one.

Justice John M. Harlan: Is this your part of argument that upon the limitations on the Court's holding in Covert (Inaudible)

Mr. Oscar H. Davis: We certainly think that that is certainly true.

Yes I will turn – I will turn immediately to the question of separability which is the ground on which the Court of Appeals went and as the -- as the Court knows, this Court has frequently stated that a statute is separable if the invalid parts are not so intertwined with the other parts that they bring the whole thing crashing down like Samson brought the temple down in the Bible.

Justice John M. Harlan: But that's recognized under the code that is consistent with the rest of the (Inaudible)

Mr. Oscar H. Davis: The problem of separability, yes.

Justice John M. Harlan: But none of them did.

Mr. Oscar H. Davis: None of them get, that's right sir.

Justice Felix Frankfurter: Are you going to draw anything out of them on this subject?

Mr. Oscar H. Davis: Yes on the subject I think that the -- I think a certain inference could be drawn Mr. Justice.

Justice Felix Frankfurter: Don't spend much of your time.

Mr. Oscar H. Davis: No that both you and Mr. Justice Harlan carefully limiting your concurrences to the situation then before the Court gave certain rise to the -- the very great possibility that the statute might be valid as applied in other circumstances not then before the Court.

Justice Felix Frankfurter: Then you can you give me -- you carefully limit yourself with what the opinion had limited to itself?

Mr. Oscar H. Davis: I'm taking that advice Mr. Justice I go on to the [Laughter] -- to the provisions of Article 2 (11) itself.

The Court in its discussion of separability has indicated that light can be drawn from the wording of the particular statute and also from the presence or absence of a separability clause and the explicitness of the separability clause.

We have both factors here.

We have a statute on page three of Article 2 (11) of the Government's brief which is not a general statute which says all persons abroad, all American nationals abroad shall be subject to court-martial but as a specific statute --

Justice Felix Frankfurter: But where, to take up sides --

Mr. Oscar H. Davis: Page three of the Government's brief, “A specific statute which covers three classes of persons, persons serving with, employed by or accompanying, the armed forces overseas.”

In Covert the Court was dealing only with persons accompanying the armed forces overseas.

It was not dealing with persons serving with, or persons employed by.

Immediately under that in the Government's brief there is the separability clause which as the Court will see is a very explicit one.

It has two parts.

It provides that if a part of the act is invalid other parts that are severable shall remain in effect and then it provides that if a part of the act is invalid in one or more applications, the remaining applications if severable shall be held to be valid.

So that we think you have the very strong direction and guidance from Congress in this very explicit separability clause and you will also have the very, the carefully delimited or the carefully separated phrasing of Article 2 (11) itself into different categories of persons.

Justice John M. Harlan: (Inaudible) acts of a political source applies to this (Inaudible)

Mr. Oscar H. Davis: Yes it clearly applies because all the events took place in 1957 after the Act went into effect.

Unknown Speaker: (Inaudible)

Mr. Oscar H. Davis: In 1954 is when he went to -- to a -- to serve the Air Force but the offense took place in June 1957 and he was court-martialed in August and September of 1957.

Justice William J. Brennan: (Inaudible)

Mr. Oscar H. Davis: The Grisham case, the last one and I --

Justice William J. Brennan: May be the early one?

Mr. Oscar H. Davis: That maybe the early one, yes.

Justice Felix Frankfurter: Is the essence of your position that in view of specific severability provisions a segment is given to an applicable severability unless the Court can say that that which fell is so indispensable or indispensably chose inexplicably in this crime is that claimed to remain that you can't separate them.

Mr. Oscar H. Davis: Yes and we would say that you cannot say that here because the categories of the people are different, the history of the relationship of those categories to military jurisdiction is different.

Justice Felix Frankfurter: You have to go a long way to say that Congress has decided it to be opposite?

Mr. Oscar H. Davis: Yes Mr. Justice and I am here to say that the Court of Appeals was wrong in doing that.

One further thing I do have to say on severability is that there is a long and different history of those serving with or employed by the armed forces from those accompanying the armed forces as I shall try to set forth the categories of serving with and employed by, have really been in effect for over two centuries in explicit terms.

And they were in effect long before the Court Martial Law Revision of 1916 or the Court Martial Revision of 1950, but it was only in 1950 that Congress explicitly put in the category of “accompany.”

So you would have to say that Congress, in putting in the category of “accompanying,” which -- with which the Court dealt in Covert wanted also if that turned out to be invalid on a certain application, to bring down also the old jurisdiction which had been exercised we believe, for over two centuries before the word “accompanying” was inserted in the Court Martial Article in 1916.

For these reasons, we don't think that there's really any substance to the position that the statute is so inseparable that the Court can fail to reach the constitutional issue in this case.

And there is no other issue aside from severability other than the constitutional issue.

Our general position on constitutionality is that this statute as applied in this and the succeeding cases stands on Article 1, Section 8, Clause 14 of the Constitution.

There is a provision for Congress to make rules for the Government and regulation of the land and naval forces.

I shall try to develop that, but at this point I would like to say that the Court has consistently recognized not only in the recent cases of Toth and then Mr. Justice Black's opinion in the Covert case, but in the earlier Hawaiian court-martial case of Duncan against Kahanamoku, that persons who are not members of the armed forces, not enlisted or commissioned, do not wear a uniform, can be covered in appropriate circumstances under court-martial jurisdictions.

Justice Potter Stewart: Mr. Davis, is the particular category here -- I -- it's under 2 (11) employed by, isn't it, it's not serving with.

Mr. Oscar H. Davis: Well, it's both, Mr. Justice.

People who are employed by are also serving with but the reverse is not true.

That is a contractor-employee would be serving with the armed forces but he would not be employed by the armed forces.

In this particular case --

Justice John M. Harlan: And this petitioner comes under, you say, each of those two categories.

Mr. Oscar H. Davis: Each of those two categories.

We think that Clause 14 is sufficient to uphold the constitutionality of Article 2 (11) as applied in this case.

We think that in the light of its history and its purposes, it is unnecessary to invoke the necessary and proper clause.

But we would invoke it if it were necessary to do so, because we think that the necessary and proper clause does apply to the court-martial Clause, to Clause 14.

We, of course, believe as the Court indicated in Covert that consideration has to be given to the matter of jury trial and to the Fifth and Sixth Amendments.

And that the Constitution has to be considered as a whole in determining whether Article 2 (11) is valid as applied in this and the other cases.

And we have three bases of our argument that the Constitution does permit what was done here.

And the first is the historical basis with which I shall try mainly to deal.

And the second is to show that there is a need for this type of military jurisdiction in the world today with American bases and -- and posts overseas.

And that it is appropriate to subject the persons in these cases to such type of jurisdiction.

And the third half of our argument, the third half is that there are no acceptable alternative methods for dealing with derelictions and crimes committed by these people.

On the matter of the history and we think the matter of history is significant because it gives content to the constitutional phrase “land and naval forces”.

We think you determine how, what land and naval forces meant at the time the Constitution was adopted and what it means today by seeing the history as it's developed since the 17th Century.

And I should like at the beginning, if I may, to give a general picture or survey of what we think the history shows.

I have four points to make.

I'm not certain I will be able to develop each of them as I go along, but I would like at least to put before the Court the four general points that I think are important in this case.

And the first is, that from at least the middle of the 18th Century, at least the middle of the 18th Century, there has been what I think is a consistent legislation practice covering court-martial jurisdiction of a service connected personnel, service connected personnel particularly employees of the type involved in three of these cases but not solely over those employees.

There's been legislation, we think, for two centuries.

There's been consistent practice, not every year but over the period of time.

And the second general proposition I'd like to put before Your Honors is that there was no general hostility at the time before the Constitution was adopted and at the time the adoption of the Constitution and after the Constitution was adopted to this type of court-martial jurisdiction, that is jurisdiction over service connected personnel.

There was hostility, and this is the hostility upon which our opponents rely almost exclusively.

There was hostility to the notion of court-martial jurisdiction over inhabitants generally, not service connected personnel, people who were living in the area of a fort or a garrison or around hostilities.

There was hostility to that kind of court-martial jurisdiction, but there was no hostility, we believe, to court-martial jurisdiction over service connected personnel.

And further, there was actually so much legislation and so much actual practice of court-martial jurisdiction over civilians as a whole, including service connected personnel witnesses before court-martial and even inhabitants generally, particularly in times of hostilities that we think it cannot be said that there was a -- a repugnance or a rejection at the time of the Constitution's adoption to the notion of civilians being subjected to court-martial jurisdiction.

We think that that general proposition does not withstand historical analysis.

Justice John M. Harlan: Mr. Davis, when you refer to service connected personnel do you draw a distinction between dependents and civilian employees?

Mr. Oscar H. Davis: We do not, Mr. Justice.

Justice John M. Harlan: I just want to understand what you're asking.

Mr. Oscar H. Davis: I -- a plea of these cases do involve employees --

Justice John M. Harlan: I understand that.

Mr. Oscar H. Davis: -- but we do not draw a distinction.

We think that there are much -- many more of greater instances of actual court-martial jurisdiction exercised over employees and there are many more.

But we think that the exercise of this jurisdiction also goes to show that today, jurisdiction can be exercised over dependent personnel in non-capital cases abroad because of the need to --

Justice John M. Harlan: When you refer to history, you encompass in service connected personnel both dependents and employees?

Mr. Oscar H. Davis: Yes.

I do.

Justice John M. Harlan: Yes, that's what I wanted to --

Justice Potter Stewart: Then here the historical analysis as to non-dependents, do you draw any distinction between those employed by the service and those merely serving with them?

Mr. Oscar H. Davis: I do not, Mr. Justice.

Again, I say that the cases we have here are those employed by the services.

But we think the history does not draw a distinction between those two types of people, but again, there are more instances of court-martial jurisdiction over personnel actually employed by the services than by over other people.

So there are instances of many instances, I think, of court-martial jurisdiction over employees of settlers and other people who are not directly employed by the Government.

Justice Potter Stewart: Nondependent service --

Mr. Oscar H. Davis: Nondependent service connected personnel.

Chief Justice Earl Warren: Mr. Davis, does the history of the situation make any distinction between the type of hostility up to this time?

Mr. Oscar H. Davis: I was coming to that.

Yes.

That -- that -- if I may say that's my fourth point and I will deal with it, Mr. Chief Justice.

My third point is -- if -- I would like to stress this because I think that the briefs filed on the other side particularly the Colonel Weiner's impressive research in the next two cases may obscure the fact that the opponents have not been able to bring forth, we believe, one single affirmative statement of the 18th Century at the time the adoption of the Constitution or before or immediately after contrary to the position we advocate in this case with respect to service connected personnel.

I repeat that.

There is no single solitary statement that we know of that withstands scrutiny, which says that employees and service connected dependents could not be court-martialed at the time that the Constitution was adopted.

There are general statements of hostility to -- to court-martial jurisdiction over inhabitants generally.

Oh yes, there are many of those, but none relating to the particular type of personnel involved in this case.

The only two that the opponents have brought forth are a statement by Lord Mansfield reminiscing about a matter in Gibraltar in 1738.

We deal with that in our reply brief which has been filed with the Court.

And we think we show that in addition to all the other defects at the time Lord Mansfield was talking about, the British parliament had not given court-martial jurisdiction over the -- over that kind of treatment at places overseas, but it did some years later.

It did in the 1750s and 1765 and since that time.

And the last general point that I come to is the one that the Chief Justice mentioned.

We think that history does not make a distinction between wartime or hostilities and peace time.

We think that what the history shows is that the important thing, important factors were two - The direct connection of the person with the armed forces, and two, the need for exercising court-martial jurisdiction over him, particularly the absence of civil jurisdiction at that place.

The absence of civil jurisdiction runs like the golden thread for two centuries through this -- through this entire history, and if I have time perhaps tomorrow --

Justice William O. Douglas: Didn't England at the time or about the time of the American revolution, I'm a little hazy on this, but didn't they have a statute that forbade the British law jury from trying in military courts, civilians in the British army who were stationed in this country?

Mr. Oscar H. Davis: If there was no civil jurisdiction there, I mean if civil jurisdiction was present.

At the same time, they had the statute of 1765 which provides that that statute to which Your Honor refers did not apply in Gibraltar and Malta and other places beyond the seas where our form of (Voice Overlap)

Justice William O. Douglas: In America, purely American precedents I remember it.

Mr. Oscar H. Davis: I don't believe that there was any such a statute.

I think that the general statute of 1765 applied that is where our form of civil -- civil judicatures did not extend --

Justice William O. Douglas: In times of peace.

Mr. Oscar H. Davis: In all times, yes.

Justice William O. Douglas: It all times.

Mr. Oscar H. Davis: In all.

Justice William O. Douglas: Civil employees of the British army in America were not tried -- triable by the military, British military, isn't that --

Mr. Oscar H. Davis: If there was no form of civil judicature enforced.

That is if there were British magistrates around they were not triable, but if -- if British magistrates had not gone to -- were not in a certain section of the region they were not triable, they were triable by court-martial.

We believe that that is the -- the real, the historical antecedent of Article 2 (11) as applied to situations overseas were, of course, our form of civil judicature does not extend.

Going back to the question that Chief Justice asked me, we think that it's --

Justice William O. Douglas: Known that British statute where --

Mr. Oscar H. Davis: Yes.

It's on page 33 -- page 33 and 53 of -- of our brief, Mr. Justice.

Justice Hugo L. Black: Original brief.

Mr. Oscar H. Davis: Of our opening brief in number 21, yes.

Justice Felix Frankfurter: Are you going to be -- are you trying to (Inaudible) arguments --

Mr. Oscar H. Davis: I am not arguing -- I am not arguing the next two cases, Mr. Justice.

Mr. Green is.

I will return for the fourth case.

And perhaps in view of the light I had better conclude at this point with just one or two more words on the subject of wartime, or peace time, which is an important factor in this case, as the Chief Justice has recognized.

And that is, though in the later 19th Century, some writers and even some of the judge advocate generals themselves interpreted this exception for which I am arguing as relating to wartime or hostilities.

We think that that's a mistake in nomenclature, that the real exception is the need for exercising the jurisdiction because there's no civil jurisdiction present at the time.

And of course in the later 19th Century when these writers wrote civil jurisdiction of the United States extended throughout the continental United States.

Colonel Winthrop and the others did not envisage what would happen after the Spanish-American War of 1898.

They thought that since American Civil Jurisdiction covered the entire continental United States, there would be no occasion for exercising this in the field type of jurisdiction within the continental United States because there were courts and magistrates everywhere.

I wouldn't -- I do not believe that they intended to foreclose the Congress from adopting the historical concepts of the new situation which they didn't foresee but which arose after the Spanish-American War, and particularly after World War II when we had large numbers of forces stationed in technical peace time overseas that didn't exist in the 19th Century in any extent.

And I think that the -- those decisions and those writings -- those -- those declarations upon which the other side relies should be limited to the situation of which they were dealing at that time.

Justice John M. Harlan: Could I ask you a question? This is a part of the question earlier.

Since they began to post, has the – have the armed forces have been going right ahead trying noncapital offenses in regular courts?

Mr. Oscar H. Davis: The answer to that is this, Mr. Justice.

They have tried many noncapital offenses.

They had not tried anywhere near the number of trials that they had before Reading and (Inaudible).

Let me say this.

The number of offenses has continued.

They have not decreased, offenses rather than trials the number of offenses that have been committed, but the number of trials has decreased because the armed forces have exhibited a great deal of restraint in the -- in the bringing of these cases to courts.

Justice John M. Harlan: What's happened with the ones who haven't been tried?

You mean, they --

Mr. Oscar H. Davis: It's in most cases --

Justice John M. Harlan: There's nothing --

Mr. Oscar H. Davis: Nothing has happened.

In a few cases they may have been tried by the foreign statute.

Justice Felix Frankfurter: Has the selection of cases been according to types of offenses or what?

What have been the determinants with respect to these?

Mr. Oscar H. Davis: I think that there's been no policy directive within the Department of Defense.

When this case came up it was decided --

Justice Felix Frankfurter: Local commander or --

Mr. Oscar H. Davis: I think under certain guidance from Washington not only by the local commander.

Chief Justice Earl Warren: To what extent, Mr. Davis, have the prosecutions decreased since Covert?

Mr. Oscar H. Davis: They have decreased considerably, Mr. Chief Justice.

As far as we can tell, it's two years, a little over two years since the Covert case was decided.

We have the figures from 1957 and 1958.

Unfortunately we don't have figures for 1959.

In 1957, the total court-martial prosecutions were 76.

Chief Justice Earl Warren: Of civilians.

Mr. Oscar H. Davis: Of civilians, including both dependents and others.

Chief Justice Earl Warren: I see.

Mr. Oscar H. Davis: And in 1958, they were 34.

Chief Justice Earl Warren: But were they before that?

Mr. Oscar H. Davis: Yes.

In 1956, there were 121.

Chief Justice Earl Warren: (Inaudible) is not to be given by (Inaudible)

Mr. Oscar H. Davis: No.

I want to stress -- I want to stress, Mr. Justice that the number of offenses has continued, it hasn't even increased.

We've received the figures on the number of offenses.

The number of court-martials has decreased but not the number of offenses.

Justice Hugo L. Black: I wonder if -- may I ask this question?

I assume that there are 121 cases that should have been tried each of these years of 1957 and 1958, were the difference between 121 and 34 kinds in the courts of the jurisdiction in which these people were in?

Mr. Oscar H. Davis: I would say generally no, sir.

Some of them may have been, but on the whole they were not.

They were not tried at all, in other words.

Justice Potter Stewart: This is generally speaking of less serious offenses.

Mr. Oscar H. Davis: I think on the whole they were less serious offenses.

There was one homicide in which we waived jurisdiction to the German Governor.

They may have included larcenies, Mr. Justice.

When I say -- less serious offenses, I can't -- I don't mean just reckless driving or exceeding the traffic limit.

They may have included some minor larcenies or other things of that type, but there were no -- certainly no capital cases and no homicides.

I believe I did let -- let go unpunished.

Justice Hugo L. Black: Has the army made a recommendation to Congress that it has authorized (Inaudible)

Mr. Oscar H. Davis: The -- the matter was under serious consideration.

Justice Hugo L. Black: Have they made any recommendation?

Mr. Oscar H. Davis: I believe not.

I believe not.

Justice Hugo L. Black: They have in the meantime broadly increased the laws that they have and the arguments in favor of military trials as opposed to civilians?

Mr. Oscar H. Davis: I don't believe the statutes have changed at all, Mr. Justice since the Covert decision.

If I may elaborate a bit just on what you said, they did -- consideration was given to these subjects within the Department of Defense.

As I understand it, the solution arrived at was that there was really from their point of view no acceptable alternative, the court-martial jurisdiction of this type.

And that, they might be compelled by any constitution of adjudication to seek much less satisfactory alternatives, but they did not think that any other alternative --

Justice Hugo L. Black: But aren't there if there was (Inaudible) as I understand it in the direction not try evidence of crime by civilian code but to increase the arguments and improve the opportunities when expanding the military forces at that time?

Mr. Oscar H. Davis: There were no increases in -- in military jurisdiction relating to civilians --

Justice Hugo L. Black: And that tells that increase in jurisdiction that they have not, but you say they considered it and they reached the conclusion that there was no alternative except the trial by the army.

Mr. Oscar H. Davis: I know of no effort -- other efforts, Mr. Justice, unless perhaps you referred to our increased efforts to do historical research spurred on by Colonel Wiener's on --

Justice Hugo L. Black: (Inaudible)

Mr. Oscar H. Davis: I would --

Justice Felix Frankfurter: To put it non-conclusive.

Chief Justice Earl Warren: Mr. Schuchat.

Argument of Michael A. Schuchat

Mr. Michael A. Schuchat: May it please the Court.

It is our position that it is not necessary to reach the constitutional question in this case because it is not possible to separate the unconstitutional portion of the statute from what remains.

Now in -- at page 1 of our brief is set forth Article 2 of the Uniform Code of Military Justice.

I say that because it's not set forth at any place else in full.

And on page 2 of the brief is subparagraph (11) which is the provision involved in this case.

Subparagraph (11) is plain and unambiguous and in order to retain it, in view of the Covert decision it is necessary to insert word for the word “attention” into the language.

It is necessary to insert after the words “accompanying” a phrase saying “except in capital offenses.”

You cannot severe the -- the statutory provision by construing a word in the certain way or by deleting words.

Now the decision of this Court in United States versus Reese and numerous other cases holds that inserting words in the statute is prohibited since this is legislation.

It's not a matter of enforcing the old law, but you would be writing a new law.

Justice John M. Harlan: (Inaudible)

Mr. Michael A. Schuchat: Yes sir.

The -- further, when you consider the congressional intent, we feel that the -- it would seem clear to us that Congress would not want the remaining portion of subparagraph (11) enforced.

As the Court of Appeals put it, the legislature would not be satisfied with what remains.

Justice Felix Frankfurter: How do we know that?

How can we tell?

Mr. Michael A. Schuchat: Well, concededly, it's only through inference, but I'd like to say first of all the Covert decision numerically removed 95% of the people made subject to subparagraph (11) when they were charged with the most serious offenses.

Justice Felix Frankfurter: You mean there are more -- there're capital offenses and there are all the rest of the offenses.

Mr. Michael A. Schuchat: No Your Honor, there are more, there are 455,000 dependents but only 25,000 civilian employees.

So --

Justice Felix Frankfurter: But the instance -- the incident of capital offenses and each of them divided by the (Inaudible)

Mr. Michael A. Schuchat: Well I -- I'm sure there are.

The -- there is -- I've never seen the specific breakdown but of course the -- the capital cases are fewer, but the number of people which were removed when they were charged with the capital offense, 95% of those have been removed by the Covert decision and it would seem -- it seems to me that Congress would not --

Justice Felix Frankfurter: I still don't understand though why that's so.

Mr. Michael A. Schuchat: Because they are civilian dependents.

Justice Felix Frankfurter: I mean I understand that, but why -- am I wrong in thinking the important thing is how many capital offenses are committed as against noncapital offenses.

Mr. Michael A. Schuchat: No Your Honor, you're not wrong there, but I'm -- there are two points, the people who are subject to the --

Justice Felix Frankfurter: I understand that, but even assuming there're so many worldwide electricians, there are fewer crimes -- potentially less than crimes, why commit -- after all the (Inaudible) which is not a common profession worldwide, isn't it?

Mr. Michael A. Schuchat: No, Your Honor.

Now in addition, if there is a congressional intent shown through the statute in the legislative history then all of the people covered by subparagraph (11) should be treated uniformly.

And this, as a result of the Covert case, you cannot do.

And further, the Government's argument in large part of these cases is based upon the practical necessity for having court-martial jurisdiction.

Now the practical necessity, it seems to me, varies from place to place and depending upon the crime involved.

It is one thing to say it's necessary to have court-martial jurisdiction over a wife or an employee in England, let us say, and it's quite a different thing there than it would be say in Antarctica.

Similarly, the Government's arguments for having court-martial jurisdiction to try a civilian dependent or employee for traffic violation are quite different if a security violation were involved.

These reasons -- these policy considerations in how you would redraft subparagraph (11) are of course appropriately left to Congress.

As the Court of Appeals said in this case, Congress has furnished no guide and no criteria as to how the statute should be broken down.

And therefore, it seems to me that this is an appropriate case for the following the rule never to decide a constitutional question unless absolutely necessary.

Such a decision by this Court would leave the Congress free to rewrite the legislation and include criteria which were related more definitely to the security and discipline and effectiveness of the armed forces.

But turning now to the -- however to the constitutional question, the Government --

Chief Justice Earl Warren: Mr. Schuchat I am at -- in that situation all you have is a statute that enumerated certain classes of people who were subject to it and there's no question as to those people that was -- the statute was alright.

Then they amended the statute and added another classification.

And the courts held that that additional classification was bad.

Would that -- would that negate the rest of the statute?

Mr. Michael A. Schuchat: No, Your Honor.

I don't think it would but I' rather --

Chief Justice Earl Warren: Can we not stop that situation?

Mr. Michael A. Schuchat: No.

No we don't because the provision where Congress has said who was subject to the Code are some 12 categories and it's -- it's simply one subparagraph that's involved here.

And the -- by coding what's not severable, you don't do anything to the remaining categories in Article 2 or anything else in the Uniform Code of Military Justice.

It's simply this subparagraph (11) jurisdiction.

Chief Justice Earl Warren: It includes what?

Mr. Michael A. Schuchat: Persons serving with, employed by, or accompanying the armed forces.

Chief Justice Earl Warren: Yes and I don't suppose we held that to accompanying him, people accompanying him were not -- not included in the statute or could not be included constitutionally.

Did that necessarily mean that the others could not be?

Mr. Michael A. Schuchat: No, Your Honor but that is not the effect of Reid versus Covert because Reid versus Covert doesn't strike out the word accompanying.

Reid versus Covert adds to a -- that is how you have to read it.

You have to insert after accompanying except in capital cases.

You see, you've -- you have to insert the words of limitation in subparagraph (11) to confirm it to Reid versus Covert.

If Reid versus Covert had said, “you couldn't try persons accompanying”, then you are -- Your Honor's question is quite true.

You would just be striking the word “accompanying”, but that isn't the situation.

You have to insert words of limitation into subparagraph (11) to retain it.

Chief Justice Earl Warren: Reid versus Covert didn't -- didn't say that it could not -- that they could try people who are not --

Mr. Michael A. Schuchat: Yes, Your Honor I -- I --

Chief Justice Earl Warren: -- on capital offenses.

It's fairly limited to the facts we have there, namely, a capital offense.

Mr. Michael A. Schuchat: Well I'm taking the -- Reid, that's quite true and of course my position on this, that you can't deprive the others either, but on limiting Reid versus Covert to the narrowest ground did not show that there were six justices concurring in.

Now turning now to the -- to the constitutional issue, the Government refers in its briefs to the uniformed personnel and seems to imply that the distinction between Guagliardo and a member of these services is that he doesn't wear a uniform.

At the outset, let me say this is but a small facet of the distinction and probably the least significant is the fact that he doesn't wear a uniform.

In almost all of his relationship to the Air Force, Guagliardo was different from airman.

From the very beginning as a civilian, when he is employed by the Air Force, he takes an oath to discharge the duties of the office of -- on which he is about to enter.

But airman that enlists in the Air Force, he takes an oath to obey the orders of the President and officers appointed over him according to regulations under Uniform Code of Military Justice.

Now Guagliardo was in Morocco because he wanted to go to Morocco.

He went there on his own private transportation with an ordinary passport.

An airman in Morocco was in Morocco because the Air Force sent him to Morocco and he came, of course, by Government transportation without a passport.

In Morocco, Guagliardo lived in the City of Casablanca in a private apartment just the same as any other civilian in Casablanca.

The airman lived on the base.

I should point out that Casablanca is by no means analogous or comparable to the frontier or the wilderness cited in much of the Government's argument of the early -- these early cases.

Casablanca is a modern city.

It has courts, policemen, it's a -- and the Nouasseur Air Depot is in proximity to Casablanca very much as the Washington National Airport is to the City of Washington.

Justice Felix Frankfurter: At different bases of the United States throughout the -- throughout the world, are there bases where the Government has housing facilities for its civilian employees attached to the --

Mr. Michael A. Schuchat: I -- I don't know Your Honor.

I -- I imagine at some places there are though.

I'm sure that some places --

Justice Felix Frankfurter: You couldn't make the picture turn on that.

Mr. Michael A. Schuchat: No.

The -- I think the -- you have to examine the whole relationship.

Now of course the airman is paid a monthly salary and the salary is uniform throughout the world.

Guagliardo was paid an hourly rate.

He got overtime and actually his wage rate varies from place to place throughout the world.

The Government makes much of the fact that the -- Guagliardo's duties were the same as an enlisted man in the Air Force.

Now I, of course, concede that the Air Force has electricians, has enlisted men who are electricians that would do the same sort of thing as Guagliardo, but these enlisted men had considerably other duties to perform.

Besides being an electrician, they are military people.

They march and they drill and they prepare to fight as the -- as the Commander-in-Chief, the President has promulgated the Code of Conduct which says that they are American fighting men, ready to give their life in defense of their country.

Now you can't say that about Guagliardo.

Guagliardo was over there to work as an electrician.

It's quite a different relationship.

Probably the most significant part, distinction between Guagliardo and an enlisted man is that an enlisted man or anyone in the service is constantly under restraint.

He cannot come and go as he pleases.

If he wants to leave the base, he has to get permission.

Guagliardo on the other hand has a job.

He comes to work from shall we say 9 to 5.

Outside of that, his life is his own.

He isn't regulated by the Air Force whereas, contrasted to that the airman in the Air Force is regulated.

Continually he is regulated and he's continually under restraint.

He has to have permission.

If Guagliardo decided he wanted to go fishing, he goes fishing.

There's no civil or criminal liability attached to it, he simply takes -- takes off and loses a day's pay.

If an enlisted man decides he wants to go fishing for one day, he's absent without leave or he's possibly guilty of desertion.

And of course, Guagliardo could, at any time, quit.

An enlisted man cannot quit.

Justice Hugo L. Black: What's the difference?

Is he subject to military court-martial in violations of the military law yet that they do not now have a law that allows the Army to try the persons (Inaudible) could not do this?

Mr. Michael A. Schuchat: Well I don't know how he could desert -- he doesn't have that relationship that -- that he could --

Justice Hugo L. Black: What you were saying is that he has the right now, in the law (Inaudible) can go fishing if he wants to and he could also not work, but if the army has the right as court martial subject to military law, that wouldn't make him subject to same kind of (Inaudible).

Mr. Michael A. Schuchat: Well possibly, they could but they would be -- he would no longer be -- he would have the same status that he -- that he has now.

He would no longer simply be working for the -- for the Air Force.

Justice Hugo L. Black: You say the offense -- the day it happened that -- here.

Mr. Michael A. Schuchat: Probably.

Justice Hugo L. Black: And that should be considered as to whether he should be -- whether he can be considered and subject to court-martial?

Mr. Michael A. Schuchat: No.

I'm saying this shows that he doesn't have the relationship to the Air Force such that he should be considered the same as though he were an enlisted man.

The Government's argument is that although he's not a member of the Air Force, he's so intimately connected and his relationship with them is such that he should be constitutionally in the same position as though he were an enlisted man in the Air Force.

Justice Hugo L. Black: Suppose they amended the regulations and provided that -- that he is subject to the punishment and we have two words as we have it (Inaudible) and that he has to be there in a certain hour, if he doesn't come within time then he is court-martialed.

Would that change his present status from the arguments you've made?

Mr. Michael A. Schuchat: What it would seem to me it would.

It would -- it would change him into an enlisted man.

I -- probably --

Justice Hugo L. Black: In fact you would say -- you would say then that he'd be the same as an enlisted man and everything but (Inaudible)

Mr. Michael A. Schuchat: Well if -- if you add a few more things to that, you are making him into a member of the armed forces but he isn't.

He -- he doesn't-- he doesn't agree that he will abide by the orders and the regulations.

All he says he's going to do what he -- joins what he -- when he goes to work is that he's going to work as an electrician.

He doesn't agree to --

Justice Hugo L. Black: Does he have a written contract?

Mr. Michael A. Schuchat: I -- I don't know, Your Honor.

I believe there is a civil service form which he signs when he starts work.

This -- it's --

Justice Hugo L. Black: But that's not in the record.

Mr. Michael A. Schuchat: He -- it's referred to in our brief and that's the same form signed by all civil service employees everywhere not simply abroad.

Justice Hugo L. Black: As far as the record shows if he sends the employee at will now -- now or immediately he starts working (Inaudible) working months?

Mr. Michael A. Schuchat: Yes, sir, except --

Justice Hugo L. Black: Is that -- is that the status he appears to be in as far as the record is concerned?

Mr. Michael A. Schuchat: Except that as he may have certain rights of -- under civil service, but that is he might have certain reemployment rights.

The Air Force, I believe, could fire him at anytime but he -- because of a reduction in force in Morocco, but I -- he may have certain rights to get reemployed elsewhere if there were a -- there were a position open.

Justice Hugo L. Black: That's because of civil service?

Mr. Michael A. Schuchat: That's because of civil service.

Justice Hugo L. Black: Will he be under civil service?

Mr. Michael A. Schuchat: Yes sir.

He has a wage board classification and he's a -- has permanent civil service status.

Chief Justice Earl Warren: Well, suppose there's no change in the law and the regulations, but there was a change in the situation and the exigencies of the situation demanded that the security of most of everybody working that would -- would have to be under -- under discipline.

Would the army have the right to discipline him under those circumstances and -- and compel him to come and go only when they said so, or --

Mr. Michael A. Schuchat: Well --

Chief Justice Earl Warren: -- or put many hours as the -- as the Government of the army required or do a lot of other things that -- that would put him in the same category as a -- as a serviceman?

Mr. Michael A. Schuchat: Well that -- they -- such a situation might arise and the Government might say that, but he could quit --

Chief Justice Earl Warren: (Voice Overlap) is it likely to arise anytime, isn't that why they there?

Mr. Michael A. Schuchat: No I don't think so.

If those situations arose, he would be still be, as a civilian he can quit.

He can -- the army or the Air Force could say, “Now if you're going to work here as an electrician, you have to do one, two, three, four.

And if he was going to continue, he might have to do those things, but he could quit.

He could say well in that case, I don't want to be an electrician here.

I want to go some place else and there is nothing that Air Force could do to him and that's the big distinction between Guagliardo and an enlisted man.

An enlisted man can't say, “I don't want to do it.”

Chief Justice Earl Warren: But do you think if he was over there and that command was attacked and he was the only lineman that they had that he could say, “Well, I'm not going to do anymore duty as a lineman and leave for home?

Mr. Michael A. Schuchat: No sir, because that would be time of war.

Chief Justice Earl Warren: Well it might not be war.

It might race, or something of that kind to fall short of war, but it might -- it might call for a very tight discipline and very tight security for all who are connected with the post.

Mr. Michael A. Schuchat: Well I -- I don't think that the time of war category, for instance at Pearl Harbor, it didn't wait until Congress declared war the next day.

The civilians were subject to court-martial right away and I think the same situation will be true in the -- the same would be true in the situation you pose.

Chief Justice Earl Warren: Well over in that part of the world, they're not having war, but they are having race on the time which I read in the newspapers and people are getting injured and killed.

I imagine that sometimes, it calls for a very, very strict discipline on the part of the personnel, wouldn't this man be -- could this man be subject to --

Mr. Michael A. Schuchat: Well that now --

Chief Justice Earl Warren: -- discipline --

Mr. Michael A. Schuchat: Now I think --

Chief Justice Earl Warren: -- before the -- working for the army?

Mr. Michael A. Schuchat: I think that the answer is this.

There's one thing, of course, the base commander has authority to regulate things on the base.

The base commander could say, “If you can't -- we're going to have a blackout here” where he's going to turn their lights out or something like that.

That's one thing, but it's quite a different thing to say that the civilian employee can be tried by court-martial for not obeying it.

The -- I -- the base --

Chief Justice Earl Warren: Wouldn't he be telling they have to live on the base?

Mr. Michael A. Schuchat: Well -- he could make it a condition of his employment.

Chief Justice Earl Warren: Do you think that's the only controlling of just saying either -- either you live on the base or you quit regardless of the exigency of the situation?

Mr. Michael A. Schuchat: Right.

So long as the exigencies did not amount to war.

Chief Justice Earl Warren: Yes.

But I thought -- that's what I thought --

Mr. Michael A. Schuchat: Because --

Chief Justice Earl Warren: -- was one of your positions.

Mr. Michael A. Schuchat: -- because you're transforming him into what I conceive to be a civilian.

That that's of the essence of being a civilian is that he can quit and if you're -- you're -- you're --

Justice Hugo L. Black: If that's (Inaudible) as long as you can provide but you can't (Inaudible) provided the soldiers are these for three years.

If they are in the civilian realm I don't think that -- that the time will be (Inaudible) is drawing the distinction here if that should be the (Inaudible)

Print this transcript Transcript:

Argument of Michael A. Schuchat

Chief Justice Earl Warren: Number 21, McElroy, Secretary of Defense, et al., Petitioners, versus United States, in relation of Dominic Guagliardo.

Mr. Schuchat, you may proceed.

Mr. Michael A. Schuchat: Mr. Chief Justice, may it please the Court.

At the recess yesterday, I was pointing out the fact that a soldier cannot quit whereas a civilian employees such Guagliardo has the privilege of quitting his employment.

And Mr. Justice Black in part what the situation would be if there were enlistment at will rather than enlistment for a fixed term.

Now the -- of course as the hypothetical question changes the facts, but even in that situation, a soldier would be subject to discipline and would have -- have to obey orders whereas his situation would be different from Guagliardo who was simply an employee.

The relationship of Guagliardo to the service is simply an employer-employee relationship.

In fact until after World War II, it was never thought that the relationship was such that it should subject him to court-martial jurisdiction.

Illustrative of that is the decision of this Court in Duncan versus Kahanamoku.

In that case which involved the military's power to court-martial in Hawaii in time of war, that petitioner Duncan was a civilian employee of the navy who was a ship bidder at the Navy Yard at Pearl Harbor.

He was -- and precisely -- had precisely the same status as Guagliardo.

The other petitioner was a civilian stockbroker, named White.

Now White's crime was embezzling some stock belonging to another civilian.

Duncan's crime was engaging with -- in a brawl with the marine sentry at the gate of Pearl Harbor Navy Yard.

This Court said that they were both civilians not connected with the service and entitled to the rights of civilians.

Now, it seems to me that if the navy could not court-martial Duncan in time of war in Hawaii then certainly the Air Force cannot court-martial Guagliardo and Morocco in time of peace.

Now I will pass over the historical problem because I think it's necessary to read the historical material cited in the briefs.

I don't have a time here, but if -- I think that when read the materials, you will be convince that there is no historical precedent for this type of jurisdiction, but essentially the Government's case is predicated on necessity.

They say that the practical necessity overrides everything else and justifies the jurisdiction.

Our position is that the necessity is irrelevant, but assuming that the necessity is considered, the Government has not made out a case of necessity such as would justify this extraordinary jurisdiction.

The Government's case for necessity is based primarily on the replies which it received from various military commanders throughout the world which were reprinted in one of its briefs in the Covert case.

And this -- these replies are adopted again in this case.

Now if you examine the replies of the various military commanders whose -- which are printed in those briefs, you will see that the primary problem which they have consists of black market offenses and traffic offenses.

This is -- this is over 80% of the number of crimes.

Now it's obvious that a traffic offense is a problem of the host country.

It's a violation of a host country's laws and will be prosecuted by the host country.

Similarly, black market offenses are violations of the host country's laws.

They're probably not even a violation of the United States law and they will be prosecuted by the host country.

Of course, the United States is concerned that our people, any American abroad not violate the law and that we are concerned with the economic condition of our allies where we have troop stationed, but this is not primarily the concern of the defense department and it certainly should not give rise to court-martial jurisdiction.

Now the Government then points to cases such as security cases, involving classified information.

These cases are obviously extremely rare.

They can very easily be prosecuted in the United States.

I say that they're rare not because I have the figures, because the figures have never been made known, but if they were of any real concern to the Defense Department, the Defense Department after the Covert decision would have gone to Congress and would have had the slight change in the statute which was probably necessary to make them triable in the United States.

And in addition, it would seem to me that in offense involving disclosure of classified information abroad is so serious that it should be tried in an Article 3 Court.

Now, the Government also contends that cases involving only United States citizens or only property of the United States will not be tried by the host country.

They say that the host country won't be interested in it.

The fact of the matter is that is this is proven in the very cases which were before this Court now.

In Guagliardo, the crime involved stealing property of the United States.

The Morocco Nationals who were charged with the conspiracy were tried by the Moroccan Government.

Certainly, disapproving the thought that they're allies are not interested in people who steal from the United States.

So far as crimes involving only Americans, the -- the facts in the Grisham case, which is the fourth case before Your Honors, will show that the French Government was -- was quite reluctant to let the American military try them and had Grisham not been court-martial, he would have certainly been tried by the French Government.

Justice Felix Frankfurter: But it wasn't -- insofar as this argument is relevant on either side, wasn't there a very strong, a powerful feeling in Congress against trial that the Americans could be tried by -- by our tribunals against their being tried under what was rather, I thought a rather chauvinistic attitude on the part of many Congressmen that you can't get their trials in -- in the various host countries.

Mr. Michael A. Schuchat: There -- there was -- such sentiment of course was voiced in Congress not at the time that Uniformed Code of Military Justice --

Justice Felix Frankfurter: No.

No.

Mr. Michael A. Schuchat: -- was passed.

Justice Felix Frankfurter: I'm not talking about -- having the source of the State of the Court for agreement --

Mr. Michael A. Schuchat: Yes.

Justice Felix Frankfurter: -- that they were very unwilling to give permissive jurisdiction of the host countries.

Wasn't there a very strong feeling that's been involved?

Mr. Michael A. Schuchat: There was and I agree that it's quite chauvinistic in the -- I will point out in this --

Justice Felix Frankfurter: That doesn't make it less congressional because it's chauvinistic.

Mr. Michael A. Schuchat: No sir.

I would point out to Your Honor that so far as Morocco was concerned, in 1956, the United States Government with congressional approval gave up its consulate court in Morocco subjecting all for the first time.

Subjecting Americans to Moroccan courts and it would seem to me this happened in 1956.

It would seem to me the Government cannot now come in and somehow say that the Moroccans dispense an inferior brand of justice, and it's wrong to subject the Americans to Moroccan courts because we could very easily have retained that jurisdiction.

Justice Felix Frankfurter: I think you're taking a lot of territory where you take it very easily.

That involves a lot of other factors that under our present consideration about the whole -- the whole problem with capitulation that there's --

Mr. Michael A. Schuchat: Yes Your Honor, but -- but it's indicative that the Moroccan justice was not so inferior as --

Justice Felix Frankfurter: I didn't suggest it was.

Chief Justice Earl Warren: As a matter of curiosity, what happened to the defendants who were tried in the Morocco courts?

Mr. Michael A. Schuchat: That is not in the record, Mr. Chief Justice.

Now, the -- the Government also has no explanation for why employees of the Defense Department abroad should be treated differently from other employees of the United States abroad.

Foreign nationals who were employed by the Defense Department abroad and there are a very large number, the Government disputes to figure of a 188,000 which I found in the congressional record, but in any event, it's a very substantial number.

These people do precisely the same work as many -- as Guagliardo and many others.

They have the same access to our basis as Guagliardo does and the Government has no court-martial jurisdiction over them.

And the Government -- the armed forces abroad are able to carry out their function and carry out their mission without this court-martial jurisdiction.

Similarly there are large numbers of Americans employed by other agencies of the United States.

The -- the figure from the congressional record is 60,000 which the Government says is inflative, but in any event it's a very large number.

These other departments of the Government do not have court-martial jurisdiction.

They've never had court-martial jurisdiction.

They're able to carry out their functions without court-martial jurisdiction.

In addition --

Chief Justice Earl Warren: Finish your finish your statement.

Mr. Michael A. Schuchat: In addition, of course, there are -- there are also Americans who are abroad as tourists and Americans abroad employed by private concerns who are as always subject to the foreign country's jurisdiction.

Chief Justice Earl Warren: I understand that you say that about 160,000 department of defense civilians over there who are not considered as subject to court-martial and who are tried by the Court's elimination over that?

Mr. Michael A. Schuchat: That -- that's right, Mr. Chief Justice.

It's -- the figure I had was 188,000.

Chief Justice Earl Warren: 188, very well.

Print this transcript Transcript:

Argument of Harold H. Greene

Chief Justice Earl Warren: Number 37, Bruce Wilson, versus Major General John F. Bohlender, Commander, Fitzsimons Army Hospital.

Mr. Greene.

Mr. Harold H. Greene: May it please the Court.

Although the government is respondent in this case, under stipulation that was approved by the Court, we will argue first.

This case arises out of denial by the District Court for the District of Colorado of a habeas corpus petition filed by this petitioner.

This Court granted certiorari prior to the judgment of the Court of Appeals for the Tenth Circuit.

In 1956, this petitioner was working in Berlin as a civilian employee, as an auditor for the Comptroller Division of the Berlin Command.

He was then living in American Government's quarters built with occupational funds.

On June 22nd, 1956, he was arrested and served with three charges for the total of seven specifications.

First charge of two specifications of indecent act with children under 16 years of age, the second charge is three specifications of sodomy, and the third charge had two specifications of display of obscene pictures to children under the age of 16.

He was tried on these charges and at the trial, he objected to the jurisdiction of the Court on the ground that he was a civilian and therefore not amenable to the court-martial jurisdiction and his objection was overruled.

He pleaded guilty and was found guilty accordingly.

He was given a sentence of 10 years imprisonment which was subsequently reduced to five years.

The judgment and the sentence were approved by the convening authority by the Board of Review and by the Court of Military Appeals.

Now while the petitioner was serving a sentence at Fitzsimons Army Hospital near Denver, he brought this habeas corpus action and the District Court denied the petition on the ground that Article 2 (11) was constitutional as applied in this case.

This case is largely like the first case, the Guagliardo case that was argued by Mr. Davis, first in the series since this petitioner like Guagliardo was a civilian employee accused of a noncapital offense, but in this case, and we -- of course we rely on all the arguments made in that connection, but here, the jurisdiction of the court-martial can be sustained and yet the different and alternative ground.

And that is that the court-martial, the trial, constituted an exercise of the war powers of the Congress as expressed in Article 18 of the Uniform Code.

That article provides in substance that a general court-martial should have jurisdiction to try any person who by the law of war is subject to trial by military tribunal.

As Madsen against Kinsella shows under the law of war any person living in territory occupied by the United States, including American civilians is triable by a military court.

Now petitioner in this case concedes and -- one that Berlin is presently under military occupation for all purposes and secondly of military trials may validly be held in that type of territory, and the question that he raises is that this petitioner was not tried on the theory that he was subject to the war powers, but he was tried on the theory that he was a person employed by in the armed forces under Article 2 (11) and that therefore the Government cannot, said, change it to jurisdictional theory at this point in the case.

You might say it was raised previously before the Court of Military Appeals and before the District Court.

Now it must be clearly understood that there is no dispute here about jurisdiction in the sense of power.

The petitioner as I understand the concession agrees that the court-martial had power to try him under Article 18 that is under the will powers of the Congress.

The only question is whether procedurally, that power was exercised in this case by the drawing of the charges.

Now initially, since the -- since power has deemed to exist and has been conceded to exist, it's our position that this is not really a matter for the civil courts of law.

The civil courts will review military judgments only to determine whether they were totally void for one of power not whether procedural irregularities might have existed in the cause of the -- in the cause of the exercises of the power.

Procedural questions are for the military courts and for military law.

And the fact that the proposition that only procedural questions and military questions are involved, I think it's shown by the fact that petitioner in his brief relies wholly on military law and military decisions to show that the exercise power he was --

Justice Felix Frankfurter: If the power -- if the power had been exercised, avowedly as an exercise of the war power would the charges of designated different article?

Mr. Harold H. Greene: Your Honor, the -- what the man -- what the Court-martial manual provides is this.

That where a charge is brought in the Article 18 under the war power, the charge, the specification alleging the acts would be the same, the acts which constituted the offense.

Now the charge part of the --

Justice Felix Frankfurter: You mean by that if this were under the war power, the charges against him would nevertheless under Article 134 and 125?

Mr. Harold H. Greene: Yes.

Yes.

That -- that -- that charge is --

Justice Felix Frankfurter: What is introductory recital?

Mr. Harold H. Greene: The introductory recital would be different.

Justice Felix Frankfurter: By virtue of Article 18, we charge him under 134 and 125.

Mr. Harold H. Greene: Well what the manual specifically provides is that if the charge is brought under Article 18, the charging party introductory clause should state that this offense is a violation of the law of war or that the offense is a violation of the law of war be -- and that it is an offense under the local criminal code.

Justice Felix Frankfurter: Would the punishment, the allowable punishment be different?

Mr. Harold H. Greene: The allowable punishment would not be different.

Justice Felix Frankfurter: Any other consequences different?

Mr. Harold H. Greene: We can see of no consequences that would be different in any way.

One of our points is that petitioner could not be prejudiced in any way, whatever by this change in the introductory designation or the charges.

Justice Felix Frankfurter: A piece of paper which alleges the charges because it has on the back where indictments have a clause, whether it would be Article 1 under which charges are brought, you know.

Mr. Harold H. Greene: I don't know but of course in this case, Your Honor, the introductory clause did provide that this was a violation of Article -- of the Article 125 and 134, whatever the article happen to be rather than the -- that this was a violation of the law of war.

Justice Felix Frankfurter: Yes, but as you -- as I understood you, you said either there had been a violation of the laws of war, the charges would nevertheless be particularized as under 125 and 134, is that right?

Mr. Harold H. Greene: Well, the -- it's little more complicated than that I think.

Justice Felix Frankfurter: Elucidated -- enlighten me.

Mr. Harold H. Greene: The manual provides that what should be charged if an Article 18 jurisdictional statement is made, it's a violation of the law of war.

Justice Felix Frankfurter: In the Article 18 would have been --

Mr. Harold H. Greene: Article 18, I believe is at page 4 of our brief in --

Justice Felix Frankfurter: Which one, the big one or the --

Mr. Harold H. Greene: No, the Singleton brief --

Justice Felix Frankfurter: The Wilson brief.

Mr. Harold H. Greene: The Wilson brief --

Justice Felix Frankfurter: What page?

Mr. Harold H. Greene: Page 4, I believe.

Justice Felix Frankfurter: Well, that's --

Mr. Harold H. Greene: It's the last -- last clause on -- in that --

Justice Felix Frankfurter: Well as I understand that, that incorporates though with the specific crime against which the court-martials -- for which the court-martials sit all the enumerated provisions of the articles of war, is that right?

Mr. Harold H. Greene: It enumerates all the offenses which are properly cognizable under the law of war and if -- if the --

Justice Felix Frankfurter: In other words there is the penal code with specific offenses punishable under the -- as a matter of war power.

Mr. Harold H. Greene: That's correct, Mr. Justice Frankfurter.

The war power is --

Justice Felix Frankfurter: Supposing -- and so then as I understand, you correct me, it had been an introduction by virtue of Article 18, we charge the following offenses specified in the articles of war, (Inaudible) 234 and 235, does that admit the argument.

Mr. Harold H. Greene: As I understand, that will admit the argument, yes Your Honor.

Justice William O. Douglas: But I -- I understood your brief saying occupation courts in (Inaudible) is that right?

Mr. Harold H. Greene: There are no occupation courts as such, no courts that which -- which are designated occupation courts in which do nothing but try that type of -- it has that type of jurisdiction.

But of course, under Article 18, a court-martial is permitted to exercise the role of an occupational court of military commission on occupation court would be the same thing.

Justice William O. Douglas: Where's that Article 18?

Mr. Harold H. Greene: Article 18 is at --

Justice William O. Douglas: Yes, I found it.

Yes.

Mr. Harold H. Greene: It's the last sentence where it is -- it is relevant here.

Now I might say this too that under the manual while --

Justice William O. Douglas: This thing is about peace time trial like court-martial?

Mr. Harold H. Greene: No.

It has to do with -- the law of war as the Madsen case I think shows applies not just in war time, but applies in occupied territory.

And in the Madsen case, it was stated specifically that the power to punish offenses arising under the law of war does not expire with the cessation of hostilities but continues during the occupation.

Mrs. Madsen was tried in Germany during the occupation long after the war had -- the Germany had finished.

Justice William O. Douglas: Do you think for that purposes doctrine of Madsen applies in 1956.

Mr. Harold H. Greene: Well the doctrine --

Justice William O. Douglas: Relief.

Mr. Harold H. Greene: The doctrine of Madsen applies in Berlin because Berlin is -- as occupied today as Germany -- as West Germany was when Mrs. Madsen was tried.

And as I say the -- there is no dispute about that fact so far as petitioner is concerned.

Now, I want to say this to -- if we have any misunderstanding.

While the manual provides that the introductory clause of the charges should charge that a violation of the law of war had occurred, the manual also provided if instead of charging a violation of the law of war a specific article is alleged to have been violated as here Article 134 and 125, this would not affect the jurisdiction of the court-martial.

So under military law itself, the manual of court-martial has provided that this type of pleading that was -- that was filed in this case would be perfectly sufficient to charge an offense -- to charge a jurisdictional basis for the trial of the offenses both under the 2 (11) Clause and under Article 18.

Now, I might say too that the military law has been authoritatively stated by the case of United States against Schultz in which the Court of Military Appeals was confronted with precisely this same situation.

There a -- an employee of an officer's club in Japan was tried on the theory that he was, of course, employed by the armed forces and therefore amenable to court-martial jurisdiction under Article 2 (11).

It was -- the Court held, the Court of Military Appeals held that this jurisdiction could not be sustained under Article 2 (11) because he was not in fact employed by the armed forces.

But in view of the fact that Japan was occupied territory, the Court said that jurisdictional although specifically laid under Article 2 (11) could be sustained under the war powers of the Congress the same as we're contending here.

Justice William O. Douglas: As I read your Footnote 13, the Berlin is not -- is not an occupied territory.

It's -- it's by the -- your executive order -- I haven't read the executive order but the one you cite there seems to take Berlin out of the occupied zone.

So --

Mr. Harold H. Greene: Well --

Justice William O. Douglas: -- responsibilities were vested by the President and the Chief of United States Diplomatic Mission.

Mr. Harold H. Greene: The mere fact that the agent of the occupation is the ambassador doesn't alter the fact of occupation.

We had the same situation in Germany where the -- where the powers, the occupying powers were exercised, not by a General of the Army but by high -- by a civilian High Commissioner and still Germany was held to be occupied territory.

In other words, territory maybe occupied by the American Forces notwithstanding the fact that the senior official who exercises the power of occupation is a civilian rather than a military person.

Justice William O. Douglas: But that -- that's an end to military government and I thought that Madsen was based upon military government.

Maybe I haven't read it recently but maybe I'm wrong about that.

Mr. Harold H. Greene: No.

I don't think Madsen was rested specifically on military government.

It rested on the fact of occupation.

In other words, it depends on who has sovereignty in that area.

The sovereignty in West Germany at the time of the occupation was not that of the German Federal Republic, it was --

Justice William O. Douglas: It was -- it was our military.

Mr. Harold H. Greene: It was our -- it was the United States, whether it was military or civilian, the United States was exercising full powers in Germany just as the United States is exercising powers at the present time in Berlin rather than the German City Government.

The --

Justice Hugo L. Black: You mean the sovereignty exercise in there by the United States now?

Mr. Harold H. Greene: Well, the allied kommandantura is composed of the three powers, but the three powers have the ultimate sovereignty since they have the power at anytime the countermand the veto and to change any of the regulations that may be passed by the Berlin city government and they have the ultimate authority in Berlin to prescribe regulations of their own and they would supersede and to that extent void anything that might be passed by the local government.

Efforts were made at the time when the Bonn constitution was adapted in West Germany to make that constitution applicable to Berlin.

But at that time, the three Western powers made a reservation to the Bonn constitution making it quite clear that the Bonn constitution could not apply in Berlin because the three powers wanted to preserve in Berlin their rights of occupation which, of course, they assert now in international negotiations all over the world as United States is contending now, that we are in fact occupying Berlin as a legal proposition.

And it's true that they're not only occupying its legal proposition, the troops are there.

There is a general who is in charge of the occupying troops in Berlin although the technical --

Justice William O. Douglas: Well, the troops are here at Fort McNair, they're everywhere to this country but that doesn't make us a -- under the military government.

I don't get this -- you shock me as to what I apparently agreed to in Madsen.

Mr. Harold H. Greene: Well, the -- I don't think the distinction can be drawn between the -- it cannot be based on the fact as to who the senior official happens to be.

The mere fact that the senior official happens to be at the same time the ambassador of the United States and Bonn and also the -- the senior official so far as the Berlin government is concerned, that can't -- I don't think that can be the test of whether Berlin is an occupied territory or not.

Berlin is occupied by the United States by virtue of the fact the United States exercised ultimate power there.

Justice Felix Frankfurter: Is the in controversy between you and --

Mr. Harold H. Greene: It is not in controversy as --

Justice Felix Frankfurter: (Inaudible)

Mr. Harold H. Greene: As I understand, that the petitioner concedes that Berlin is occupied territory for all purposes.

Justice Felix Frankfurter: I thought that's the position, the part of United States has been taking quite internationally all these months that the original -- the original legal doctrine, the arrangement by which we are now in Berlin is not a big difference than it was when it was officially signed, is that right?

Mr. Harold H. Greene: That's the position --

Justice William O. Douglas: I didn't know we had a question for the policy here.

This -- this involves the rights of American citizen to be tried by one tribunal over another and I thought (Inaudible) in Madsen was that this was a military government in control and I thought the military government had ended.

May -- maybe I'm wrong?

Mr. Harold H. Greene: Well, as I say.

As I -- as I interpret the cases not just Madsen of course and the other cases, the fact which gives rise to an application of the law of war is the fact of occupation where the Government is military government or civilian government in the sense that the ultimate, the highest official is a high commissioner or an ambassador rather than an Army General, doesn't alter the fact of occupation.

If the fact of occupation, the fact as to -- as to the sovereignty which is being exercise by the United States there in Berlin as occupied territory which really determines the applicability of the law of war.

Justice Felix Frankfurter: I again ask you, does Mr. Weiner deny all these?

Mr. Harold H. Greene: He does not --

Justice Hugo L. Black: Is that binding on us?

Mr. Harold H. Greene: No, I -- but --

Justice Hugo L. Black: I didn't suppose the war --

Justice Felix Frankfurter: I didn't ask whether it's binding, I just wanted to know whether he's consented or not --

Mr. Harold H. Greene: Now, I'd like to say this too that aside from the --

Justice William O. Douglas: I haven't read Mr. Weiner's brief.

I just looked.

He does say (Inaudible) petitioner's trial by court-martial cannot be sustained as an exercise in military government jurisdiction over him, of course, he can speak for himself, right?

Mr. Harold H. Greene: Well, as I --

Justice William O. Douglas: He realized that we had a military government still in Berlin and I thought it was a shock to me.

Mr. Harold H. Greene: I don't want to interpret what his brief means but as I understand that he does not contest the fact of occupation or the fact of military trials could be had there.

His point -- his point simply is that that's not what was done in this case, that we didn't try this petitioner under the law of war.

We tried him under Article 2 (11) as a person employed by the armed forces and that is according to the petitioner the vice and the defect in this proceeding.

Now, a second point is made by the petitioner and that is that the fact that only connected civilians, persons connected with the armed forces -- with the occupation forces --

Justice Felix Frankfurter: Well, the second point and the controversy is that may -- in the fact to which I'm going to align but I don't know what to do, but I inferred that he isn't driving whatever it is other than 20 pages on the single question that the court-martial charges didn't specifically state they were under Article 18.

Mr. Harold H. Greene: No Your Honor, in most --

Justice Felix Frankfurter: He's going to the whole merit, isn't he, that this was not that -- that as a matter of military law, article of war or not, 18 or not, this was not in the field, isn't that it?

Mr. Harold H. Greene: No, Your Honor.

He is most of that brief is devoted to the problem of where this was a proper exercise of jurisdiction under Article 2 (11) whether this person was an employee of the armed forces.

Justice Felix Frankfurter: That the procedural -- from the procedural point isn't decisive of this case, is it?

Mr. Harold H. Greene: Well, if we can, we can, if we can sustain the jurisdiction under either of the two theories, in other words, assuming that we are correct that on this procedural point, he could be tried under Article 18 then it doesn't really make any difference --

Justice Felix Frankfurter: Does he admit that that it could be if it had been properly laid?

Mr. Harold H. Greene: That is my understanding, yes Your Honor.

Now if we are correct in that, then we need never to determine whether he is also correct or incorrect on the basis of Article 2 (11).

Justice John M. Harlan: If you were in Guagliardo on this point you are arguing, this is simply a standby point.

Mr. Harold H. Greene: That is correct.

This is an alternative argument that this could be sustained as, jurisdiction here it could be sustained in either on the Article 2 (11) if Guagliardo is decided in the Government's favor or if Guagliardo was decided against the Government then we say that the jurisdiction can be sustained under Article 18 in any event.

Now, the subsidiary point that's being made in connection with the Article 18 argument with the argument that he was being tried here under the law of war is that to try him in that fashion was denial of due process in that, not all persons in Berlin are presently being tried by military courts.

The only persons admittedly who are being tried by military courts -- well, are persons who are actually in uniform and persons who are connected with the armed forces as employees or dependents.

And the Allied Kommandatura Law number seven which is here involved, this is a third category of persons who might commit offenses against the allies or against the military authorities there.

So it is said that this is an unlawful, unjust discrimination to single out this category of service connected civilians of civilians, of employees and dependents who are there with there with the American armed forces single them out for a trial under this war power under Article 18 and not to try all of the civilian population of West Berlin, including American tourists and any other persons who might come there.

It seems to us that even if the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, as read into the Due Process Clause, if it could be applied in that type of situation as broadly as it would here and I think the Quirin case and the Yamashita case goes undoubtedly in that proposition.

Even in that event, a case of unlawful discrimination has not been made out historically and throughout the ages.

Persons who were actually with the occupying force either as soldiers or persons employed by the occupying force have been exempt from local criminal jurisdiction of the courts of the occupied country.

Winthrop recognizes this.

Other text writers have recognized this.

This has been the practice throughout the ages and therefore this type of discrimination, this kind of distinction that's being made with the persons connected with the occupation who were tried in the courts of the occupying power and other persons who were not connected with the occupation who were being tried in the local courts seems to us is -- cannot be construed as unlawful discrimination in violation of due process even -- given that concept the very broader scope that could be imagined.

Chief Justice Earl Warren: Colonel Mr. Wiener.

Argument of Frederick Bernays Wiener

Mr. Frederick Bernays Wiener: If the Court please, I would like to deal briefly with the Berlin matter and then take up most of my time on the 2 (11) argument.

The petitioner has no desire whatever to involve Your Honors in the Berlin crisis.

I think that we're bound by the determination of the political department that Berlin is occupied territory and I don't question for a minute that military courts can function in occupied territory.

In Madsen versus Kinsella teaches that the President acts by virtue of his position as Commander-in-Chief and even acts through military agencies or civilian agencies as he deems best.

I don't question that.

Our position is that this wasn't a military government trial.

This -- when we gave up the occupation in West Germany, we gave up the incidence of occupation in Berlin.

There are no occupation courts functioning.

They have never functioned since May 5, 1955.

The only civilians who have been tried have been the accompanying 2 (11) civilians and they have been tried under 2 (11).

Now, what have we here?

We have here a collateral attack on the jurisdiction of the tribunal of limited jurisdiction.

The jurisdiction of that tribunal must appear on the proceedings.

It is not necessary to prove all of the proceedings.

Let us say we have the normal court-martial Gusik against Schilder.

If on court-martial Gusik says that he isn't soldier, you say I am private company A of the 29th Infantry, you haven't proved I am.

You didn't prove it in the court-martial record then on collateral attack you can show his enlistment papers.

In other words, you can establish on collateral attack the truth of the necessary jurisdictional allegations in the challenged proceedings, but what you can't do is to change the record.

In Givens v. Zerbst in the 255 United States it was very plainly said, “Nothing being done here changes the record.”

Now, what the Government is attempting to do here is to sustain the jurisdiction over this petitioner on a ground that was not set forth in the proceedings and on the ground that wasn't taken by the Court of Military Appeals which represents the ultimate views of the military judicial system.

Justice Felix Frankfurter: May I ask this if you clearly answer, could it have been broad under Article 18?

Mr. Frederick Bernays Wiener: I think it could, but for one -- but for one fact I think it would be discriminatory.

If you show, if you show, in other words that the only people tried under Article 18 is limited 2 (11) then I think that'd be a ground for saying --

Justice Felix Frankfurter: Apart from that.

Mr. Frederick Bernays Wiener: -- apart from that --

Justice Felix Frankfurter: Part of those, there would have been -- there was follow.

Mr. Frederick Bernays Wiener: I think there was because it was occupied territory.

Justice Felix Frankfurter: You're offering me that this isn't -- this isn't like Williams against the United States of procedure meant --

Mr. Frederick Bernays Wiener: No.

No.

Justice Felix Frankfurter: Wrong designation --

Mr. Frederick Bernays Wiener: Not at all.

Justice Felix Frankfurter: -- of the statute.

Mr. Frederick Bernays Wiener: Not at all.

Justice Felix Frankfurter: But the tribunal itself was not constituted according to the jurisdiction on which it is now sought to sustain the sentence.

Mr. Frederick Bernays Wiener: Well, I would say that the accused wasn't designated because it's not a question of the wrong designation because the military law is the same if you alleged the wrong article it doesn't make any difference.

The question is, do you allege facts?

And it isn't whether you say this is under Article 18 or anything.

The question is what facts do you alleged?

Well the only facts alleged were that this accused a person serving with employed by and accompanying the armed forces without the continental limits of the US.

Well, that was Article 2 (11) in its earlier pre-1957.

Justice Felix Frankfurter: But it's been going on, on this piece of paper to set forth whereas United States was non-occupying power in Berlin, et cetera.

This tribunal is constituted in the exercise of the power -- but the authorities going from the power of occupation.

Does that (Inaudible)

Mr. Frederick Bernays Wiener: Well, I think you would have had to say a person subject to the laws of war, alright and that's what they didn't say.

And you can't, you can't do a switch when you're on collateral attack.

You're bound by the record that was made and sustained.

Also in answer to your question Mr. Justice Frankfurter, what about the allegations?

Well, now there are normally two heads of jurisdiction for a military government court, three heads.

One is the laws of war.

Let us say spying or maltreating the occupying, interfering with the functions of the occupying body.

And then there is -- the laws of war of the local laws which are being violated.

And then, there would be any local ordinances of the occupying power as in -- what's that case from Puerto Rico, Neely versus Henkel.

Neely violated an order of the American Commander in Puerto Rico, but here the allegation is that he violated certain provisions of the Uniform Code, which by those terms are limited to, that is they make punishable conduct by a person subject to this Code.

So that you just don't find within the four quarters of the document anything to establish the jurisdictional basis requisite on collateral attack.

In other words, they haven't -- it was only when they've got up here that they made the big drive to try to see if they could sustain it as something which it never was from the beginning.

Justice Felix Frankfurter: If there are this, may I ask this, if they had charged him as one subject to the laws of war, would the substantive offenses for which he would then be prosecuted as under the laws of war had been Articles 225 and 234.

Mr. Frederick Bernays Wiener: No.

No.

They would not.

Justice Felix Frankfurter: Well what could he have been --

Mr. Frederick Bernays Wiener: Well, he would have --

Justice Felix Frankfurter: -- constituted for?

Mr. Frederick Bernays Wiener: He would have to be charge with the (Inaudible) for Berlin or a violation of the laws of war.

Now these somewhat pathological offenses with which he was charged won't be found in groceries or bad tailor --

Justice Felix Frankfurter: You mean this would be the laws -- violating the laws of war is an offense and not these offenses particularized would be as it were bill of particulars?

Mr. Frederick Bernays Wiener: Yes, yes.

In other words, there are three headings of possible jurisdiction.

One violation of the common law of war shooting prisoners, sniping at the troops, any interference with the occupation, second violation of the municipal law, murder, any of the more conventional offenses, and third, violation of the occupying commander's orders, curfew for instance, that's all.

But when you particularized it by saying that this is a violation of an article of a code which in terms makes punishable only conduct by persons subject to the code, you have what this started out to be and what it finished out pass in the military system a prosecution under the Uniform Code for someone under 2 (11) and that brings us to 2 (11).

Now, I want to take up as I've indicated in the previous argument the Government said in 1957 there is no difference between civilian employees and civilian dependents.

It's a question of state.

In time of peace -- in time of war and in the field there is no question, but not in time of peace.

And I would like to go into that much of views field of history and I propose to cover all of it.

There maybe some dispute whether the sampling technique helps the posters arrive at accurate predictions.

That is disputed, but there's no dispute.

There can be no dispute, but the sampling technique is not adapted to historical generalizations.

And I will try to touch all the points.

Now I think and that, Mr. Justice Frankfurter, is what makes this so long.

It's mostly history.

Justice Felix Frankfurter: I wasn't complaining, I'm just noting.

Mr. Frederick Bernays Wiener: But there is no consistent practice in what was subjectively regarded as time of piece of trying accompanying civilians, but apart from a number of essentially episodic instances many of which were flagrantly and palpably illegal on their face.

Now in the continental army, yes, civilian employees were tried.

Well, there is a classic example of -- in time of war in the field then there were other civilians tried by the army for what appeared to be war offenses.

The Government cited one.

I found about 34 additional and also found that as Washington's writing shows these people were not tried on the articles of war but on the results of Congress.

And then the Government says, “Well those are all irrelevant.”

Well, considering that they started with the first one, I think that's a little unfair.

As a matter of fact, that's unkind because here, I did their homework for them but at any rate, this was a war time jurisdiction.

It was not time of peace.

Now, do we have any expressions, contemporaneous expressions of what the policy and the thinking was around that time?

And the answer is yes.

In 1765, the British parliament passed an act and this was the infamous parliament that passed the Stamp Act, they passed the Mutiny Act for North America in which they said that anybody found in this vast western wilderness which was just been conquered from the French who commits offenses shall be apprehended by the officer commanding his majesty's troops and forthwith taken into the nearest settled province or colony there to be dealt with according to the law of that colony as though his offense have been committed there and the only right the misgrant laws was the right of venue in a place where there weren't many people.

All right, 1787, the 11 of July, two proposals come before the continental Congress.

One is the first draft of the northwest ordinance and the second is the report by the secretary at war, General Knox saying, “There are a lot of people here in the Northwest Territory who were committing depredations against Indians and that starts Indian wars.

I suggest that we try and punish these people.

I have the military officer, the commander of the troops try and punish these people.”

Two days later, the northwest ordinance was passed.

The Knox report went to a Committee and the Committee said, “Well, let us have these offenders against the Indians tried by court-martials subject to the law of martial as though they were enlisted soldiers.

Well, that was passed to another committee and the other committee came back and said, well, ordinarily, yes, civil offenses should be dealt with by the civil magistrate but until a civil government is established and crimes are punished by anybody who injures the Indians should be tried by court-martial as though he were an enlisted soldier.

And that rested in the file and no action was taken.

In other words, even though there was to be a hiatus of 14 months because the first governor didn't take over for a year and no crimes act was passed in the Northwest Territory for another two months.

In preference to military jurisdiction over civilians, Congress preferred a hiatus of law and order.

Justice Potter Stewart: Kernel Wiener, it's true though, isn't it, that the fizzle then was to extend military jurisdiction not simply over as employed by or serving with the armed services but over all the civilians in the northwest territory.

Mr. Frederick Bernays Wiener: It was a --

Justice Potter Stewart: Why not related to the armed services?

Mr. Frederick Bernays Wiener: It was a generalized military jurisdiction, yes.

Now, Mr. Davis said yesterday, there is no affirmative statement in the debates and in the ratifying conventions to the effect that land and naval forces doesn't include military trials of the accompanying civilians.

Well, I think the notion that land and naval forces meant trying civilians in time of peace was just too fantastic to have occurred to anyone as little bit like they all saw the boy who complains to his mother.

“But mommy, you didn't tell me I shouldn't put beans in my ears.”

Nobody could think of anything so fantastic.

And if they had looked in number 83 of the federal list, Hamilton said trial by jury remains unimpaired.

Well, that brings us to the 1790s and I found in the manuscripts in my Appendix D a number of trials of civilians under the aegis of General Wayne and General Wilkins, most of them under General Wayne.

Well, now of course, the 1790s and terms of our concepts were a time of peace.

In terms of the concepts of the mid 19th Century, they were a time of peace except where the Indians were actually being shot at out in the Northwest Territory.

But then in studying the military cases in the 1790s, I came across something that puzzled me because under AW 2 of 1786, any death sentence in time of piece had to be referred to Congress until 1796.

And yet, in these records manuscript and otherwise, I find that General Wayne ordered death sentences into execution in the 1790s before the transfer of power came.

And I thought, how can he do that?

Was he disregarding the articles of war?

When they reported it to Knox, the Secretary of War incidentally, well, I'll come to that later and Knox was a man who went strictly according to the book in military matters.

And then I went through the statutes at large and the journals of the continental Congress and the state paper, is there anything that transferred the power from the Congress to the commanding general to execute these death sentences in the field?

And I didn't find anything and the only way that those executions would have been legal would have been in time of war and then the light dawned.

They thought it was a time of war and Secretary of War Pickering who succeeded Knox said in 1795, since the commencement of the Indian war, the United States have been in a situation that excluded the idea of its being a time of peace.

In other words, putting ourselves into the minds of the people of the 1790s, they thought -- they thought it was a time of war.

So that the --

Justice Potter Stewart: And that these cases arise after the Treaty of Greenville?

Mr. Frederick Bernays Wiener: Most of them beforehand, most of them beforehand.

Justice Potter Stewart: It's certainly after the Battle of Fallen Timbers in the Treaty of Greenville --

Mr. Frederick Bernays Wiener: After Greenville, after Greenville, there's no question it was time of peace and after that, you get only episodic cases.

And you get the sort of lawlessness that Wilkinson perpetrated at Detroit where a man committed an offense that was denounced by an act of Congress and Wilkinson issued an order against him and he was just a citizen unconnected with the military.

And he tried him by court-martial and had him lashed with a wired cat of nine tails.

Now those things are just plainly illegal.

You have Anthony Wayne in setting up a military OPA in Pittsburgh because the market is forestalled.

And this, at a time, at a time when Washington was enjoining on the military, their narrow functions, and the Government says, “Oh well, but Wayne was the superior military authority.

He was the highest officer there was.”

Yes, he was the highest military officer but there was a Secretary of War and there was the President and what Wayne did in many of these instances was just palpably illegal.

Many times, where the civil courts were functioning, certainly nothing -- certainly nothing from which you can derive the threat that the Government seeks to find that it's alright when the civil courts aren't functioning.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript:

Argument of Frederick Bernays Wiener

Mr. Frederick Bernays Wiener: -- that the 1790s or perhaps referred top those cases, the persons tried were not shown to have any kind of connection with the military.

And of course these instances make understandable what is recorded in the chronicles of the times, the state of endemic conflict between the civil authorities and the military.

Then between 1798 and 1858, we get from that 60-year mountain, mouse of seven trials of civilians.

In five of those seven instances, the Civil Courts were open in the vicinity so that I say that was flagrant disregard of proper boundaries and his history, not the kind of history infused in the Constitution, but the kind of history which consists of the recital of past abuses.

We then come to the Civil War.

Judge Advocate General Holt, whose peculiarly genius gave us the military commission for political opponents which was disposed of in the Milligan case and also that sad monument to passion the trial of the Lincoln conspirators which nobody really likes to mention.

And then with the war over and Holt retired, the question arose in 1877 and then when the Attorney General momentarily lapsed and said “Civilian employees could be trailed by Court Martial,” it was the Judge Advocate General who rushed into the breach and reminded the civil power of the limitations on military authority.

All those opinions are set forth in Appendix C and that same paradox, if the Court please, continues today.

The strongest statement of the unconstitutionality of military trials of civilians in time of peace is in the pages of Winthrop, a man for -- who always a mature life was a professional soldier.

And the most vehement arguments in favor of that jurisdiction are presented here in this Court (Inaudible) cases are the civil rights, division of the Department of Justice.

In other words, the military man is anti-militarist and the civil rights division is anti-civil rights.

Justice Hugo L. Black: Is the brief -- special brief by the civil rights division --

Mr. Frederick Bernays Wiener: These briefs and these cases were prepared by and signed by the Assistant Attorney General and the Acting Assistant Attorney General of the civil rights division.

Justice Tom C. Clark: (Inaudible)

Mr. Frederick Bernays Wiener: They were assigned to that division.

What I think is the -- I -- I -- well, they got the --

Justice Felix Frankfurter: Do you think the Attorney General should come in and say an act of Congress is unconstitutional?

Mr. Frederick Bernays Wiener: No, he's got the -- of course he's got to defend it, but it's -- it's a funny -- it's a funny kind of civil rights that instead of giving substance and content of the Fifteenth Amendment starts hacking away at the Sixth.

Now, these discussions in 1877 are most interesting because they are really the most -- the first articulated and reasoned discussion of the constitutional problem and really they lasted for some time and they were followed shortly thereafter by the case of the post trader.

Now, the post trader was the successor to the supplement.

Winthrop who lived contemporaneously with both said so.

The statutes providing for the post trader purported to make him subject to the articles of war.

And so the question was asked if the Judge Advocate General, “Can the post trader be trailed by Court martial?”

And he held in an opinion that was published in three successive additions, ”No, there is no military jurisdiction over the post trader except in time of war on the actual theatre of the Indian War.”

Now that --

Justice Potter Stewart: Was the post trader employed by the Arm Forces?

Mr. Frederick Bernays Wiener: No, no more than was the Sutler.

He was an independent contractor who made his living selling goods to the soldiers.

In other words, he is the -- he is the direct successor of the Sutler who was mentioned in the articles way back.

Now, that ruling was first mentioned three-and-a-half years ago and finally -- finally three -- now, in the reply brief, the Government admits its acceptance and then you can see why it took him three-and-a-half years to formulate an answer.

There isn't any answer and even what they say is directed not to what was published for three successive additions in print, but to an abstract in the archives.

And that is why basically I have said that I cannot take too seriously as an historical text they rather selective presentation made by my brother.

Justice Felix Frankfurter: Mr. Wiener, does this matter come up at all during the regime of the general Crowder?

Mr. Frederick Bernays Wiener: Judge Advocate General Crowder went to Congress in 1916, and asked for the 2d jurisdiction and it's one of the great mysteries of that 1916 revision why he never mentioned Winthrop's opinion which had been on the books for 20 years saying it was on unconstitutional.

Why he never mentioned the opinions in the 1912 digest of opinions that it just been issued under his own supervision.

That to me is the great mystery.

Now, looking at, he apparently proceeded on one articulated premise, namely this thieving quarter master clerk who got away on the second occupation of Kilburn.

That's what he had on his mind.

Insofar as I tried to extract these legal premises, he thought first that the Constitution stopped at the water's edge, that there were no constitutional protections overseas, which of course is law.

He also thought that the Fifth Amendment cases arising in the land of Naval forces was a source of military jurisdiction and while that did had judicial support at that time, it was of course exploded by talk.

And the -- the mystery of the Sixteenth Revision is why didn't -- if Crowder had said, “Well, I've looked into this gentlemen.

I think that my distinguished predecessor Colonel Winthrop was wrong, I think this is alright for such and such reasons” then we'd be in a different situation, but it was never discussed.

So then we come back to our starting point, namely that military jurisdiction is a question of status.

Without military status, there is no military jurisdiction in time of peace.

Without military status, there is jurisdiction in time of war only in areas in the field.

Now, on practical necessities, here again I think the Government's arguments would carry more weight if there were fewer omissions.

I think it's pretty well admitted that there hasn't been any attempt to restudy this problem beyond -- well, let's see if we can't get read the Covert limited and future litigations.

They haven't even plugged the very obvious gap which is that the espionage chapter of Title 18 of the code would not apply to a civilian employee in an overseas military headquarters committing espionage violations, that very obvious gap for which it could be thrown back and tried in a District Court in the First District in which he was found or brought, the espionage act would not cover, an act of espionage by an American civilian in an overseas military headquarters.

They haven't even plugged that yet and they haven't explained why it is that these civilians haven't been militarized.

Well, the Court of hearing show and the appropriation here is a budgetary reason and then take -- take this petitioner and his connection and the connection of his offences with the military.

He was found guilty he was charged with.

He pleaded guilty to the substance of seven sex offences.

If they'd been in the District of Columbia, the only area where Congress legislates the order of -- had a hearing under the Sexual Psychopath Act, he would be placed in Saint Elizabeth.

Instead of which, he is trailed by Court Martial.

He is sentenced to five years confinement.

It isn't going to cure him and it isn't going to protect society and here was an employee who are -- an auditor who offered to resign.

Now, what is an auditor so significantly got to do with our military mission?

Again, the Gerard case, if it was proper to turn Gerard over to the Japanese, why isn't so improper to turn this person over to the German Courts in Berlin?

We certainly trust the German Courts and we could have authorized them to handle this.

Now, I don't have to spend time on the proposition that necessity is not a constitutional argument, but here they haven't even made a showing of necessity.

It is expediency and it's the expediency of doing things on the cheap, because it would cost less money to have these persons as civilians when they have them in the service.

And I submit that is not a sound ground for cutting down constitutional protections or for watering down the scope the Sixth Amendment.

And from this it follows, if the Court please, that the judgment below refusing to release this petitioner to be reversed.

Argument of Oscar H. Davis

Mr. Oscar H. Davis: I have just one point, if it please Court.

Colonel Wiener stated that the offense itself, the substantive offences would be or might be different if charged under the law of war than charged under the uniform code.

I don't think that's quite true.

The law of war recognizes as offences all those acts which are condemned as criminal by all -- by civilized nations generally.

Now, these particular offences fall in that category because all 50 states of the union and about 15 or 20 countries that -- that we have researched condemn this type of conduct.

So, it's clear the offence is one under the law of war.

Now how the offence would be charged is -- is a procedural question.

It can be charged in one or three ways under the law of nations.

It can be charged either particularized in terms of the local criminal code or it can be particularized the (Voice Overlap) --

Justice Felix Frankfurter: The local meaning?

Mr. Oscar H. Davis: The German Criminal Code in this case or it can be particularized in terms of the common law of war as such by taking the conglomeration of all the -- all the offences and all of the civilized nations or it can be particularized in terms of the regulation of the occupying power.

And that was done in this case and that was certainly proper since the person who was involved was with the occupying power.

Justice Felix Frankfurter: Regulation meaning the Article (Inaudible) also?

Mr. Oscar H. Davis: That's correct.

The articles would be applicable there too, but I think beyond that, the offence will be the same whether they would be charged under the Uniform Code or under the German Criminal Code or under the law of war generally.

The offence, is the type of offence where the -- where the code has very little room for particularization beyond what was done here.

Justice Felix Frankfurter: Are you telling us that -- do you tell us that the soldiers maybe would -- would out of his (Inaudible), a soldier maybe charge as for a violation of the law of war in that he violated any particular Section of the Articles of War?

Mr. Oscar H. Davis: Yes, that's correct.

Justice Felix Frankfurter: And there are -- there are laws of war that are not particularized in the Articles of War aren't they?

Mr. Oscar H. Davis: That's right?

Justice Felix Frankfurter: Are you saying the articles of the laws of war violates or obedient to the laws of war means, the obedience to the special aspects of conduct that pertain to war and also obedient to the articles of war unrelated to the actual conduct of war?

Mr. Oscar H. Davis: No, that's -- that's what I'm -- I'm trying to say.

Justice Felix Frankfurter: What are -- what did you say?

Mr. Oscar H. Davis: Now, I'm trying to say is you have to establish first that the offence is one which is cognizable under the law of war.

Justice Felix Frankfurter: And either cognizable because it's one of the articles of war?

Mr. Oscar H. Davis: No, it's not cognizable because --

Justice Felix Frankfurter: And how do you know which to pick and which not pick?

Mr. Oscar H. Davis: That has to be established independently depending on what is condemned under the criminal codes of civilized nations generally and once that is determined then it becomes merely a matter under which --

Justice Felix Frankfurter: But it condemned by a civilize nation as a matter of civil law to --

Mr. Oscar H. Davis: No, I would -- I would say not, because it would not.

Justice Felix Frankfurter: That if anything that it's so-called civilized nations of world condemn as criminal conduct would that be prosecuted for -- as a violation of the laws of war?

Mr. Oscar H. Davis: That is correct.

Justice Hugo L. Black: Is there an article of war that says that?

Mr. Oscar H. Davis: Well, Article 18 is the one we depend on.

It states that a Court Martial should have jurisdiction to prosecute offence under the law of war.

Justice Felix Frankfurter: What is contained (Inaudible) --

Mr. Oscar H. Davis: What is contained --

Justice Felix Frankfurter: -- is -- is this amorphous body of a prohibition?

Mr. Oscar H. Davis: The law of war is -- is like the common law and the Court was dealing with that.

Justice Hugo L. Black: But is doesn't quite say that.

The difficulty at a rather early date it was held that common law (Inaudible)

Mr. Oscar H. Davis: Well, it is like the common law used to be.

It is not -- it is not -- in other words, it doesn't have a written code.

It is -- it is a common law which has grown out of experience and out of the practices of the nation of the civilizations.

Justice William J. Brennan: (Inaudible) particular offences in many places are (Inaudible)

Mr. Oscar H. Davis: I think that's -- that's incorrect.

All those -- all those places that we have been able to find that is all 50 states of the union, the District of Columbia, Puerto Rico the Virgin Islands, many of the nations of the world, Italy, German, France, England, Canada, India, and Republic of China, all of them treat this as a criminal.

Now, it's true in the District of Columbia they have a Sexual Psychopath Act and persons can be put in the mental -- at the hospital under the Sexual Psychopath Act, but that is not in lieu of criminal punishment for these types of offences.

The charges for those offences remain pending and technically, the person can be prosecuted after his -- if -- if -- after he is cured in the mental hospital, but all of the states and all of the countries, we have been able to find condemn these practices as a violation of their criminal laws and punish accordingly.

Justice Felix Frankfurter: Did Winthrop say what you said that laws of war include not merely conduct related to the conduct of war and in relation to war such as the offences for which the Nurnberg trial which tried the Nazi members but also that which in the acceptance of the civilized war of this Criminal Act.

They're unrelated having those special relationships with or significance toward to the war.

Mr. Oscar H. Davis: It -- it definitely says -- yes Mr. Justice.

Justice Hugo L. Black: Is it your argument -- I want to be sure that I understand your argument on this point is based on the fact that there is no prohibition written by Congress in the articles of war.

No statute against this saying as a crime, but that you say that the Court you should look to the civilized nations of the world in order to sustain a conviction to this man for a crime which Congress have not described.

Mr. Oscar H. Davis: That has traditionally been --

Justice Hugo L. Black: I mean is that --

Mr. Oscar H. Davis: Yes.

That's --

Justice Hugo L. Black: -- is that the argument?

Mr. Oscar H. Davis: Yes sir.

Justice Felix Frankfurter: And you say that because Congress has made it an offence, it had given Court-Martial jurisdiction, which one is it, 18?

Mr. Oscar H. Davis: Article 18.

Justice Felix Frankfurter: Eighteen as -- as proscribed any person by law are subject to trial to by law of war.

In other words law of war absorbs all this undefined and on particularized misconduct.

Mr. Oscar H. Davis: That's what this Court said in the Quirin case.

The Court said in the Quirin case that that Congress could crystalize all these offences by cognizance of under law of war or it could simply adopt the law of war as it exists and that's what they have done then and that's what -- has done by virtue of (Voice Overlap) --

Justice Hugo L. Black: I think that the Court has held that both admiralty and as to the common law of crime while there is an admiralty, a body of law, I have understood it to say that the mere fact that there was an intimation of body of law, could not -- could not be enforced in this country unless it had been adapted in this country as a statute, as law.

Mr. Oscar H. Davis: Well --

Justice Hugo L. Black: I didn't say that.

That just means to say that that is a law, either by the Court under the definition of the rule (Inaudible)

Mr. Oscar H. Davis: As I understand it by the adapting the law of war as such, Congress has in effect adapted all of -- all of the offences which are properly cognizable under the law of war as offences against the United States.

Justice Hugo L. Black: Which are not codified in the words.

Mr. Oscar H. Davis: Which are not?

Justice Hugo L. Black: Not codified anyway.

Mr. Oscar H. Davis: Which are not codified --

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MCELROY v. GUAGLIARDO. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1950-1959/1959/1959_21>.

MCELROY v. GUAGLIARDO, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1950-1959/1959/1959_21 (last visited April 27, 2013).

"MCELROY v. GUAGLIARDO," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1950-1959/1959/1959_21.

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MCELROY v. GUAGLIARDO