PARKER v. LEVY

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Argument of Bork

Chief Justice Warren E. Burger: We?ll hear arguments next in 73-206, Parker against Levy.

Mr. Solicitor General you may proceed.

Mr. Bork: Mr. Chief Justice, and may it please the Court.

This appeal, which is obviously similar in many respects to the case we?ve just heard concerns even more obviously I think the values I suggested were protected by Article 134 and here Article 133 as well.

The conduct here is specially egregious and I think it is impossible for anybody to say that the appellee here could not have known, must not have known what he was doing was prejudicial to good order and discipline was not the standard of conduct expected of an officer and gentleman and indeed of course he was also convicted under Article 90 for the direct disobedience of the lawful order of the superior commissioned officer.

Upon conviction, Captain Levy was sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor.

Now, Article 90 as I say provides for the punishment of anyone subject to the Uniform Code of Military Justice who willfully disobeys a lawful command of a superior commissioned officer and the specification or charge levied against Captain Levy was that he willfully disobeyed the colonel?s command to establish and operate a phase two training program for Special Forces aide men in dermatology.

And the evidence showed that one of the functions of the hospital to which he was assigned which was Fort Jackson, South Carolina, he went there as soon as he was taken into the service, was to train Special Forces aide men where men capable of giving certain levels of medical service in the field.

Captain Levy was the Chief of the Dermatology Service, in fact he was the only trained dermatologist at that hospital and he had the responsibility to conduct this training.

For a time he did so during early 1966 and then he did so with increasing irregularity and incompleteness.

Reports began to come in to the colonel, Colonel Francey who commanded the hospital the training was not being done adequately.

He investigated and discovered that Captain Levy had by now totally neglected his duties in training aide men.

He called Colonel Levy before him and handed him a written order to conduct the training required.

Captain Levy read the order, announced that he understood it but further announced that he would not obey it because there is medical ethics.

He was told that obedience was nonetheless expected, he persisted in his refusal.

It was interesting in a way because his enlisted subordinates offered to carry out the training for him and he ordered them using his rank as a captain, not to conduct the training of these Special Forces aide men and threatened them with punishment if they disobeyed his order.

The Attorney was determined that nobody was going to receive any training in dermatology in that hospital and he used his rank as an officer to carry out that determination.

He continued to persist over a period of a month or two to obey that order and ultimately disciplinary action in the form of an Article 90 charge was levied against him.

Now, Article 134, as we just heard under which he was also charged prescribes, among other things, as I have said, all disorders and neglects to the prejudice of good order and discipline in the Armed Forces and all conduct and nature to bring discredit upon the Armed Forces.

The specification in Article 133 as I have mentioned as the -- provides punishment for conduct of unbecoming an officer and a gentleman.

The specification under 134 is set forth by pages 8 and 9 of our brief and I shall merely mention some of the statements which he made to enlisted men under his command and to others apparently coming through the clinic.

The statements he made orally contain such sentences as, ?I would refuse to go to Vietnam if ordered to do so.

I do not see why any colored soldier would go to Vietnam.

They should refuse to go to Vietnam and if sent should refuse to fight.

If I were a colored soldier I would refuse to go to Vietnam and if I were a colored soldier and I was sent, I would refuse to fight,? and then he referred of course to Special Forces personnel as liars, thieves, killers of peasants, murderers of women and children and so forth.

The specification under Article 133 is much the same, involves the same allegations of the same kinds of remarks.

The evidence showed that during 1966, while he was on duty in the dermatology clinic, on many occasions, Captain Levy made remarks of this nature.

He engaged in conversations, many of them completely one sided with aide men undergoing training with patients and visitors, he did it in the open, in the presence of enlisted men, of civilian personnel and patients.

He was convicted under Articles 90, 133 and 144 and sentenced, as I have said, he exhausted his appeals on the military.

Ultimately, after much litigation he warned up with a petition for habeas corpus in the United States District Court for the Middle District of Pennsylvania which denied its petition but the Court of Appeals for the Third Circuit reversed, holding Articles 133 and 134 unconstitutionally vague.

It also held, with one Judge, Chief Judge Sykes dissenting that the possibility of prejudice, under Article 90 for the direct disobedience of a lawful order.

Due to the fact that trial have been held under two articles held unconstitutional, required that the Article 90 charge would be overturned and sent back for a new trial.

We brought this case here on appeal.

Now at the outset, I should say that the appellee?s brief raises some 14 numbered points and many of these are, I supposed offered as alternative grounds for affirmance but these were points not addressed or decided by the Court of Appeals for the Third Circuit and we suggest that the proper way to handle this would be that should the Government prevail, on its arguments on 133, 134 and 90, that the proper course should be to remand this case to the Court of Appeals for consideration of all these other points which it did not consider or decide and a decision on those issues.

So I will confine myself to the jurisdictional objections raised here and to the argument about the articles themselves.

Captain Levy raises two jurisdictional objections.

The first one is that this is not properly an appeal to the Supreme Court under 28 United States Code Section 1252.

I don?t -- we have explained that in our brief, I don?t think it requires extensive argument here.

The Court noted that the jurisdictional question was reserved and noting probable jurisdiction.

1252 says that any party may appeal to the Supreme Court from an interlocutory or final judgment of any Court of the United States, holding an act of Congress unconstitutionally and on its face.

It provides for an appeal in this kind of a case, the Court of Appeals as any Court.

An act of Congress has been held unconstitutionally.

The Reviser?s notes indicate that this language was deliberately chosen to allow appeals from any Federal Court decision holding an Act of Congress invalid.

In addition to that, we rely upon the fact that Rule 44 of the Federal Rules of a public procedure prescribes a mechanism for notifying the Attorney General constitutional questions arising in Courts of Appeals.

The purpose is to allow the Attorney General to intervene, if a constitutional question about a Federal statute is raised so that he may then take an appeal from any decision against the constitutionality of a federal statute.

So I think it?s quite clear that we are properly here on an appeal.

I think it is also quite clear that under 28 United States Code Section 2103 that if we?re not properly here by a way of appeal, this should be treated as a petition for certiorari and if you go forward.

But there is one other or two other jurisdictional points raised by appellee.

The first one is that a government attorney filed the notice of appeal in the Third Circuit Court of Appeals and that government attorney was not an attorney of record in this case.

I don?t know why there?s any objection to the filing of notice of appeal.

This case was tried in the District Court in the Middle of the District of Pennsylvania.

The Court of Appeals for the Third Circuit is in the third, in the Eastern District and the Department of Justice ordered the Assistant U.S. Attorney in this Eastern District to file a notice of appeal in the Third Circuit.

He was acting as an agent of the Government and I cannot understand what is wrong with that filing of a notice of appeal since we utterly frivolous objection.

The other objection is that a person certifying the service of the notice of appeal, same man who filed it, was not a member of the bar of this Court.

Now Rule 10 of this Court says that these appeals are to be filed in the Court of Appeals in the manner prescribed by Rule 33 of this Court.

That we did as to the manner prescribed.

The Court of Appeals covering the person who must certify rules will seem to -- the Court of Appeals rules cover the person whom was certifies.

So I take it that Rule 33 is questioned as to persons does not apply to this case.

I don?t think there?s any jurisdictional question, I merely discussed it because when it?s raised and the Court notes that it wants to hear about it, I have had an obligation to talk about it unless there is further reason to discuss it, I assume to passed on to the merits.

We have here an Article 134 argument which is much the same as the argument in the average case, and I like to read the page just like part of that quite briefly.

As Mr. Justice White noted, it would be a little hard to attack the statute facially given the fact that as to certain areas, there are decided cases which say these things fall within 134.

So it would hard to strike it down facially on those grounds.

I would suggest also that the Letter Carriers case and Broadrick against Oklahoma certainly indicate that where the statute applies primarily to non-speech activities, facial invalidation may not be called for, is not called for.

Finally, not only our vagueness and overbreadth eliminated by the fact as we?ve already considered, now, I suggest that it takes less than 30 days when one enters the military to perceive that one is in a new and different culture.

Not only the limiting constructions, the contexts, the military function, all of which is obvious to anybody in it, indeed the people outside it.

I want to repeat the fact, which I think is crucial in this case, and that is it would be impossible to write a detailed Code of Conduct under 134 or the Article 133.

I mentioned in the speech area the why -- since we regulate all conduct in the military, unlike the civilian world which is possible to say make a rifle shot statute and say you won?t do that.

We regulate all conduct in the military world, we want affirmative action out of the military in the way we are doing out of the civilian population.

The military has a defined function, it has a goal.

Civilian society has no single goal.

For that reason we regulate everything towards a defined goal, the goal tells us what conduct violates the achievement of that goal, the fact that everything is regulated makes it impossible to write a detailed code.

We have to use words, which men have common understanding, can understand when they realize what kind of a society they are living in and what its object is.

And I suggest again, there are many areas of life, other than the military where we have found it either impossible or not desirable to write a code.

We have, as I say I suggest the Sherman Act, we have had some partial attempts to codify the Sherman Act, and they either turn out to be tumult on antitrust law which is -- does not guide one the details that turned out to be the Robinson-Patman Act.

And those codifications in themselves turn out to be enormously vague.

So I think we are dealing in an area where it is simply impossible to write the detailed code, the rifle shot series of statutes that we would cover every aspect of allowable conduct in the military.

That being true, I think the kind of articles we have here are inevitable and desirable.

It is --

Justice Byron R. White: How about just on the speech side Mr. Solicitor General, how much would the military lose if 134 was construed or held or redrafted with the proviso provided this will never apply the speech?

Mr. Bork: Justice White I think in that case the military would immediately have to draft.

Justice Byron R. White: I understand that but how much would you lose?

Mr. Bork: A great deal, a great deal.

One might not lose much in a conflict like World War II although it might and although one certainly would run --

Justice Byron R. White: You would have to then draft, do the best you could in drafting some kind of detailed, or a little bit more descriptive statute as to what speech was proscribe?

Mr. Bork: Well I, I frankly, I have tried to think a little bit about what kind of an article one would draft and I frankly think it?s impossible.

If it were possible for strong, legal minds --

Justice Byron R. White: And of course you don?t have to go that far here, do you?

Mr. Bork: I beg your pardon?

Justice Byron R. White: You don?t have to -- Why do you have to meet this issue the way that you are talking about?

If it?s so true as you say it is that this conduct, so clearly violated with this core conduct within 134, is that the end of your case or not?

Mr. Bork: I am tying now to meet the --

Justice Byron R. White: Or do you feel you have to meet an overbreadth argument?

Mr. Bork: I have to meet an overbreadth argument.

Justice Byron R. White: But you?ve already met it, you said.

Mr. Bork: [Laughter Attempt] Perhaps, I am out of a desire to point out that there are a variety of reasons why, how it can be met.

I do wish to suggest that if, over a period of generations.

Justice Byron R. White: Well you must conceive though Mr. Solicitor General, I think the things you did in the average case that there would be a lot of conduct that would be charged under 134 that would be held not to be covered by it.

Mr. Bork: Yes, I don?t think that?s very common.

Justice Byron R. White: Well, you?ve suggested some of those charges weren?t sustained.

Mr. Bork: Some of them, I think about seven of the total were not sustained.

Justice Byron R. White: But they?re nevertheless there are some that you could never imagine to be coming by 134.

Mr. Bork: In that list?

Justice Byron R. White: Well, there would be a lot of conduct that you would say is a [Voice Overlap].

Mr. Bork: Oh that I would say is not covered by 134, quite --

Justice Byron R. White: More than anybody would suspect was coming from?

Mr. Bork: That is quite correct, that is quite correct.

Now 134 clearly does not reach, as we are told by appellees here, any conduct the military does not like.

It clearly does not reach that.

Justice Byron R. White: No.

Mr. Bork: It clearly also is not a catch all.

134 expresses the rational of military discipline and is confined to that.

Nothing to do with conduct, somebody may not like or a catch all and so forth but I, for reasons which I cannot quite articulate, I still wish to express a point.

I mean I can articulate the psychology that impels me to continue to try to distress this point but I think it is crucial to say that all these talk about oh they could write specific articles that covered all these things, is not true.

If this Court, over a period of generations, has struggled with what is clear and present danger and it is the gravity of offense discounted by its improbability and so forth and that is the best that words can do and I suspect it is.

Unknown Speaker: We finally get rid of that, didn?t we?

Mr. Bork: I beg your pardon?

Unknown Speaker: Didn?t we get rid of that?

Mr. Bork: Well, now we have incitement and other formulas but I suggest that if one is going to cover much conduct, one is going to arrive in a form of words which mean something to a man of common understanding about which you can play semantic games with and if you take it completely out of context, completely out of function and completely out of history it was used, you can make it sound vague.

I think this was being done here with 134.

Unknown Speaker: (Inaudible)

Mr. Bork: Article 133, I think is really no different from Article 134 except that it has a faintly quaint ring to it.

I think there?s no doubt as to its meaning.

It applies essentially the same rational as does Article 134 but I suppose it stresses the fact that officers are held to a higher level of conduct than are enlisted men and properly so.

This article refers to the proper standard of conduct for military officers and that too is not defined by any common civilian understanding of what is gentlemanly conduct.

It refers to the conduct expected of an officer because of its military function and because misconduct by an officer is much more damaging to the military than individual misconduct by enlisted men because he is a symbol and he is perceived by more people than is enlisted men.

When he misbehaves, a great many of people see it.

Justice Potter Stewart: So I supposed he is -- you can make the argument that this may be valid even if the other one isn?t because as against the argument that 134 applies to a lot of people who are basically unwilling civilians who?ve been drafted, that would not generally be true about also but --

Mr. Bork: It appears to have been true with Captain Levy, Mr. Justice Stewart.

He was a very unwilling civilian that was drafted.

Justice Potter Stewart: He was drafted.

Mr. Bork: He came in under the very point [Voice Overlap].

Justice Potter Stewart: Well, that plan, yes the [Voice Overlap].

Mr. Bork: He had his induction delayed that he might complete his medical education and the residency.

But I think --

Justice Potter Stewart: There?s a generality, I think.

Mr. Bork: I beg your pardon?

Justice Potter Stewart: I think there?s a generality.

There are more officers are there willingly than are [Voice Overlap].

Mr. Bork: Oh, that?s quite true, that?s quite true.

I do not think the reluctance of some enlisted men to be in the military has any bearing --

Justice Potter Stewart: But the arguments made, that these are basically unwilling civilians we are talking about rather than professional soldiers.

Mr. Bork: Yes, I think that?s true.

Justice Potter Stewart: And time to change since the early 19th Century when the Lions case was decided.

Mr. Bork: I think that is true, that may stress the additional need for Article 134 rather than the contrary.

Justice Potter Stewart: These historic roots of this 133, I will go back to the British Articles of War of 1765 which provided for a discharge in the service which I would suppose could be arguably much more rational.

Officers do presume at least in those days they did and hopefully they still do, know what is expected out of them as officers and they deviate from the conduct of an officer and a gentleman, they should no longer be officers but that?s quite different from making a criminal offense which is now is.

Mr. Bork: I think the answer --

Justice Potter Stewart: The historic roots were different and if you were on your, even if you cheated that polo for your regimental team out in India, it might be conduct unbecoming of an officer and you might be cashiered out of the regiment as an officer.

Mr. Bork: That?s quite true.

Justice Potter Stewart: But to make that sort of thing a criminal offense is quite a --because this has come pretty far from its roots, hasn?t it?

Mr. Bork: It has come pretty far from its roots as a --

Justice Potter Stewart: Not a criminal offense for which he could be sent to prison.

Mr. Bork: That?s quite true and I think that reflects the difference between the British and American experience as I say, the wording in the British experience probably meant that you would be cashiered from your regiment, regardless of its regiment, if you mentioned the lady?s name in the mess.

Justice Potter Stewart: Exactly.

Mr. Bork: As it comes into the American experience, it has adopted by the Continental Congress which I think was not worried about cheating a polo and mentioning a lady?s name in a mess.

It has come to me the conduct, the standard of behavior expected of an officer in light of the military function in context and in light of his greater duties.

Justice Potter Stewart: And leadership responsibilities.

Mr. Bork: And leadership responsibilities.

And I think that has different historic roots.

It does not affect the fact that has evolved into a well understood standard of conduct in the American context.

Some of these statutes, I am told go back to Roman times.

I do not think that makes them less valid.

Justice Potter Stewart: Better or worst necessarily, yes.

If you say that the -- nowadays, based to 133 and 134 basically, basically the same except that 133 is applicable exclusively to officers, is that right?

Mr. Bork: Yes, I think that?s correct.

133 I might say is typically, not always understand, but typically charged in connection with another article.

Justice Potter Stewart: 133 is?

Mr. Bork: Yes.

Justice Potter Stewart: Now in this case, you say Article 90 and Article 133 and 134 and I think I heard you say that in this case, at least, the conduct, how it thought to violate Article 133 was the same conduct that was thought to violate Article 134.

Don?t you begin getting into double jeopardy problems when you make two offenses out of one, punish, convict somebody for twice, for one.

Mr. Bork: I would doubt that in the ordinary case, Mr. Justice Stewart but it wasn?t true in this case because we had a single punishment for all three.

Justice Potter Stewart: Well you typically do, don?t you, in the military?

It?s a compulsory joinder I think, isn?t there?

Mr. Bork: Yes, but I don?t --

Justice Potter Stewart: Of all charges, even unrelated ones, isn?t there?

Mr. Bork: For trial, I am not clear that there has to be a single punishment awarded that they could not divide the punishments and I am not clear about that, if I am wrong, they had a single punishment for all charges.

Justice Potter Stewart: Well then therefore, that makes it even worse, you can?t tell, can you?

Mr. Bork: Well, I think the common rule as we say it in our brief is that under the -- they are convicted under one valid charge and your sentence is less than the maximum for that charge, it is upheld even though the conviction and two other charges is overturned.

Justice Potter Stewart: Now, sometimes it is.

Justice William J. Brennan: But the Court of Appeals and you don?t, as I have reached brief Mr. Solicitor General, you do not quarrel with it.

I held here that they would not apply the general rule if anyone of the charges is sustained, then it is irrelevant that the other two may be upset if a single sentence will oppose.

Mr. Bork: Mr. Justice Brennan, I -- the due problem.

Justice William J. Brennan: And they wind up here in any case, peculiarity is associated with the sentence imposed by a Military Court, render this case appropriate for disgressionary refusal with private clause and general sentence rule, do you agree with that?

Mr. Bork: No, I certainly didn?t intend to agree with that Mr. Justice Brennan.

Justice William J. Brennan: Well, I just wondered if you?re right on Section 90, then why do we have to get in to 133 or 134?

Mr. Bork: Only because the -- well, you don?t have to necessarily get into 133 and 134 if the Section 90 charge is upheld and the only challenge to adhere.

The only challenge to, I am sorry, there is much, there are many challenges.

The only challenge in the Court of Appeals was that evidence that came in on the other charges might have prejudiced this.

Justice William J. Brennan: But let?s assume we sustain the Section 90 charges independently.

Mr. Bork: Then, need this Court reach the 134 and 133 charges?

No, it need not.

Justice William J. Brennan: Well that?s what you say that you needn?t but the Court of Appeals said you have to even if the 90 charge was good.

Mr. Bork: Well that?s because they reviewed.

The evidence they think prejudice of nature.

Unknown Speaker: No, he --

Unknown Speaker: He reversed the -- he would not follow the clause of rule.

Mr. Bork: Oh, I understand that, I understand that.

I was trying to -- I was suggesting that we?re not to follow that rule.

Unknown Speaker: But what I am asking, if we do sustain the 90 conviction, we are going to have to address what the Court of Appeals did in refusing for that reason not to reach the 133 and 134.

Mr. Bork: You?ll have to address the question of whether that?s right, where this rule can be applied.

Unknown Speaker: That is right.

Have you pleased that?

Mr. Bork: I think we did.

Justice Potter Stewart: Yes, at the end of your brief.

Justice William H. Rehnquist: If Judge Sykes have written the majority opinion in the Court of Appeals, he wouldn?t have had to get any constitutional question whether if he had had another judge within.

Mr. Bork: That?s right.

He would not have.

If he had held the Article 90 conviction in the clause of rule, you would not have had to reach 134 and 133.

On the other hand, unless there is a jurisdictional problem with the Average case, 134 is before the Court anyway, I will quote --

Unknown Speaker: Mr. Solicitor General, if we were to send the case back as having suggested on Article 90 in view of the joinder with 133 and 134, would it be appropriate for the Court of Appeals to reexamine only the sentence?

In other words these three charges we?re trying to gather and there was only one sentence.

As I understand it, the briefing in this case that there really isn?t any dispute as to the failure to obey the order.

So if there have been a trial only on 90, certain defenses were raised but they did not go to the issue of whether or not the order was disobeyed, so my question is whether if it where, if the case were remanded to the Court of Appeals, that would have to be a further remand to the court-martial for retrial on the merits or whether you think only the sentence need be reexamined?

Mr. Bork: The Court of Appeals, if one sent the Article 90 charge back, if you upheld the 134 and 133 convictions, nothing would happen.

In fact, that goes down.

Unknown Speaker: Let?s assume we disagree with the Government on 133 and 134.

Mr. Bork: Then you would have to disagree with the Court of Appeals on the application of the clause of rule too and tell the Court of Appeals.

Well, if you agree with the Court of Appeals in the application of the clause of rule, Article 90 charged would have to get back for retrial in a court-martial.

If you disagreed with the Court of Appeals of the clause of rule, the Article 90 conviction could stand by itself.

Unknown Speaker: But my, my difficulty --

Unknown Speaker: And end this sentence.

Mr. Bork: End this sentence, end this sentence.

Unknown Speaker: Well my difficulty, Mr. Solicitor General is reading me a brief on top of 48.

I do not see that you addressed the closing question.

We submit, however that even if 133 and 134 were held on constitution, which means you want us to address the question of the constitutionality 133 and 134.

My suggestion is that if the clause of rule were applicable here and we were to sustain the Article 90 conviction, we do not have to reach the constitutionality of this.

Mr. Bork: I quite agree with that.

Unknown Speaker: But we will have to say that the Court of Appeals was wrong in thinking that this was a case in which it could exercise its discretion to refuse to apply the clause of rule.

Mr. Bork: I agree with that.

I think I have sufficiently discussed the facial invalidation question in terms of Letter Carriers case, the impossibility of draft in a code.

The fact that 133, like 134 is given meaning by the military function and context and indeed, here Captain Levy was warned with and argued with concerning his behavior and part of the 133 charge was that he not only disobeyed an order which was an Article 90 charge but went back for the enlisted men and announced to them he had disobeyed an order and would not obey it, which was a 133 charge.

Chief Justice Warren E. Burger: Mr. Morgan.

Argument of Charles Morgan, Jr.

Mr. Charles Morgan, Jr.: Mr. Chief Justice, and may it please the Court.

I think first we should go to the problem that developed in Orloff versus Willoughby which is, the Government noted there, the Supreme Court did that the parties in this Court changed their position as nimbly as if dancing a quad drill.

In this particular case, in the light of the fact that we were just discussing the Article 90 charge, I think it?s appropriate to go to the record in the case where the prosecutors state in the record that the order charge is directly related to, and this is a quote, directly related to and intertwined with the factual basis for the other charges.

Now what the prosecutor did in the trial was to take the additional two charges we had that were dismissed and he used those two charges plus these two pure speech charges and use those charges from the opening statement to the closing argument to demonstrate Levy?s opposition to the war which went to the question of intent and willfulness on the disobedience of the order.

It?s so limited the defense in the presentation of its case that the Court of Appeals considering that question and incidentally all questions relating to the order charged were submitted to the Court of Appeals and those were before the Court of Appeals as they were before the District Court and as we advised the Solicitor General in motion to dismiss or affirm, they would be presented by us because they are implicit in his request that the conviction under Article 90 be affirmed.

Now, that's first.

Justice Potter Stewart: The place you get convictions under Article 90 confirmed are reversed as in the Court of Military Appeals.

This is a habeas corpus giving a Federal District Court very, very limited jurisdiction not to review the trial errors but this is purely a jurisdictional attack, isn?t it?

This isn?t a matter of affirming or reversing Article 90 conviction, that?s the function of the Court of Military Appeals, isn?t it?

Mr. Charles Morgan, Jr.: It?s a question of affirming or reversing the Court of Appeals of course.

Justice Potter Stewart: Right.

This is civil action, this is federal habeas corpus.

Mr. Charles Morgan, Jr.: Surely.

Justice Potter Stewart: And a good deal of what?s in your brief I suggest is just not open to a Federal District Court or Federal Court of Appeals under the system of Military Justice as it?s been developed in this country.

Mr. Charles Morgan, Jr.: Well, I suggest that it not only is but it necessarily has to be Let me give you an example, under the order charge at court-martial, Dr. Levy contended that the reason he could not obey the order and there?s no evidence contrary to this, absolutely none.

The Colonel said that Levy said, ?I decline the order.

What those grounds ethical?

And Levy, a physician, this is not a fellow just standing in a Dermatology Clinic at Fort Jackson, South Carolina, refusing to train medical person.

He trained everybody, he trained doctors, he trained all medical personnel except one batch and they were combat troops and he said he had an ethical right not to train them and the law officer would not allow that as a defense and then we get the Whelchel v. McDonald which divest them of jurisdiction.

And beyond that Levy also said, he says, ?I will not train Special Forces because (a) and I think we should go to Roe v. Wade and Doe v. Bolton and the abortion cases and I think --

Justice Potter Stewart: Those aren?t three cases.

Those are two.

Roe against Wade and Doe against Bolton are the abortion case.

Mr. Charles Morgan, Jr.: That?s right.

Justice Potter Stewart: (Voice overlap) Not and the abortion cases.

Mr. Charles Morgan, Jr.: The abortion cases, with respect to the question of medical ethics because it appears to me from those cases that no one can be ordered for instance, even though abortions are now legal in the constitution.

No one can be ordered to perform an abortion and all Levy says, he comes into the Army, as the Solicitor General pointed out, under the doctor?s draft, all doctors are drafted, 100% of them most in the United States, they even waive at this time.

They even waive physical requirements.

He has no previous military frame.

The argument and the brief which talk about previous military training are just out of the blue.

I mean he doesn?t have any in the record clear to disclose that.

He comes into the service on July 13, as I recall or the 9, he gets to Fort Jackson, he is immediately put in charge of the dermatology clinic and that is where he stays.

He is given 16 hours of military training at the outside on a Saturday morning and during that period of time, it may have gone to 26 hours.

He almost shoots the sergeant, teaching him how to shoot the pistol and beyond that there is just absolutely no evidence of any notice or anything else but here?s Levy in the dermatology clinic and sent to him, our people who he discovers over a period of time are, as he states, ?killers of women and children, murderers of peasants.?

Now when he looks at Special Forces, he says I will not train combat troops.

(a) They are combat troops, I am a doctor and I am bound by an oath to train only medical personnel and he says (b), they are using medicine for political and military purposes and it is undisputed.

Because the Colonel who set up the program said that is exactly what they are doing, he thought it didn?t work good than bad and throughout the record that?s the case.

Justice Byron R. White: Mr. Morgan, as a matter of curiosity, what was his dermatological training that he had and secondly, that he was to give these aide people?

Mr. Charles Morgan, Jr.: The dermatological training that he had was that he had completed medical school, completed his residency under the ?Berry Plan? and he then came into the service.

Justice Byron R. White: Period. That?s all he had?

Mr. Charles Morgan, Jr.: He took his boards I think approximately a year after he got into the service.

Justice Byron R. White: Is the board certified?

Does the record show this?

Mr. Charles Morgan, Jr.: Yes, he board certified just prior to the time or around the time of the order on the --

Justice Byron R. White: Did he ever practice dermatology?

Mr. Charles Morgan, Jr.: Privately?

Not prior to his entry into the service.

Justice Byron R. White: And what was his supposed training of these, in dermatology, these aide people, was it to cure people or the opposite as I think you have just inferred.

Mr. Charles Morgan, Jr.: Well, what I am saying is his purpose was to train people, to treat people and what was he to train them to treat?

Problems from impetigo to gonorrhea, syphilis, the bulk of the work in the clinic related to venereal disease.

There were 17,500 patient visits a year.

Now of those patient visits, most of them are the largest segment related to venereal disease.

In that group of patients who came, there were two categories, service and non-service dependents.

They could be women, others.

Levy objected and he had other additional medical grounds, number one physician-patient privilege. He said, ?I can?t train these folks."

"I can?t train.?

He couldn?t train the people without the aide men watching.

This was applicatory training.

Now there was not teaching, in the ordinary sense, it is doctor?s walking through with Special Forces aide men, a class of up to ten, as I recalled it and they were to stand and stare at the patients.

Now in the record, I mean there is one clearly -- clear place where another physician from the city came in and was performing the training when Levy was not there and they had a Mrs. Helton, and Mrs. Helton --

Justice Byron R. White: Well, I am just examining his ethical posture which you told me about the dermatologist being in effect, syphilologist, this of course is routine, always has been.

Mr. Charles Morgan, Jr.: Yes, but --

Justice Byron R. White: But I am trying to find out what he found so unethical about treating natives or enlisted people or officers to protect themselves against venereal disease or to effect cures of once they have them.

Mr. Charles Morgan, Jr.: Right, let me go to that.

First, I mentioned Mrs. Helton, I will briefly cover that, here is a woman patient who ten people are suppose to watch and do go in and watch troops and she has just disturbed to death and everyone asked her consent.

A lot of Levy's patients were women.

The second thing is he was to train them in medical usages where they were to be able to go into the field with certain kinds of diseases, not with a doctor over them.

No medical supervision with an aide team and Special Forces.

They were to go out and carry drugs ranging from penicillin to chloromycin, and they were to go into the village and the record is clear on this as sort of the point man for the A team.

Their job was not to give the A team itself medical care primarily but to give it to the civilians who they recruited and the civilian, the regular defense groups of up to 1500 persons and they were to provide them with medical care but this was the on tray point into the village.

What did they not do ethically?

They could not maintain (a) control over the patients; (b) they could be ordered away by their non-military, by non-medical personnel; (c) they had complete control and as paramedics did not work subject to medical supervision in the field; (d) they used medicine, according to the testimony of the man who devised the program himself, they used the medicine as the on tray for a recruitment technique primarily in the villages; and lastly, it was undisputed that they were cross-trained, each of them and were primarily, combat soldiers rather than medical personnel. Now --

Chief Justice Warren E. Burger: Would he have regarded it as unethical, a violation of his Hippocratic Oath to treat one of these men who had some disease?

Mr. Charles Morgan, Jr.: No, nor did he consider a violation of ethics for him to train them in first day.

All people he said, you know, that there was no question about that.

Treat as a physician, yes.

Train in first aid, yes, but this was more advanced medical training.

Chief Justice Warren E. Burger: He just didn?t like what they were going to do with the training after they have got it?

Mr. Charles Morgan, Jr.: Well, I think both, he knew that if they got the training, that they did not work on their medical supervision, there was some statement made about it sporadically trained and that sort of thing.

This is a learning process that he is going through talking with Special Forces aide men amongst others.

He finally comes to taking these positions that he takes orally, never on a public speech by the way but only in the clinic.

And as he did, he learned what they did and what they were doing with medicine and what they were trained to do.

You see, unlike Dr. Levy who did not go to Fort Sam, Houston for military training when he got into service, Special Forces started there, then the aide men came up and they came next to Fort Jackson.

Then from Fort Jackson, they went to Fort Bragg where finally they operated on a dog and then they went out to the field.

And Dr. Levy knew all that by the time he disobeyed the order and he knew that his ethical obligation was not to train, other than medical personnel in medicine.

That?s combat troops, and secondly not to train people who would misuse the medicine that they were given, they use it for political, or the kinds of purposes and that is pretty clear that that?s an ethical concern.

The problem with the Army is they do not recognize medical ethics including the privilege.

Chief Justice Warren E. Burger: What specific part of the Hippocratic Oath is it that you rely on?

Mr. Charles Morgan, Jr.: Hippocratic Oath?

I think we set it forth at page 55 as I recall in my brief, I am just trying to --

Chief Justice Warren E. Burger: 55?

Mr. Charles Morgan, Jr.: I think so, Your Honor.

Chief Justice Warren E. Burger: I didn?t mark it when --

Mr. Charles Morgan, Jr.: Let me see here.

Yes, page 55 and on 56 we set up the specific part.

?I swear that according to my ability and my judgment I will keep this stipulation.

If I preset lecture and every other mode of instruction I will -- acknowledge of the art, the disciples bound by stipulation of, according to the law of medicine but to no others, whatever I may see or hear in the lives of men which will not be spoken of a broad eye will not divulge as reckoning all that, that all such should be kept secret.?

And the very training, the nature of the training was that these fellows just walked into the clinic and stared down at these patients and watched them treat patients in the most personal situations.

Justice Byron R. White: Are you saying then that paramedical people are, in there increasing use these days is contrary to the Hippocratic Oath?

Mr. Charles Morgan, Jr.: No.

The use of paramedical people is fine as long as they are subject to medical supervision but these people were (a) not subject to medical supervision and (b) didn?t use paramedical treatment for paramedical purposes as even a primary purpose.

They use it for a combat.

The military are glad in the field and recruit people purpose.

Justice William H. Rehnquist: And how do you get from this to the constitution?

Mr. Charles Morgan, Jr.: How do I get from this to the constitution?

I do it easily through Whelchel v. McDonald which said that if a defense is not allowed and that case it was an insanity defense that that divest the court-martial jurisdiction on that basis [Voice Overlap] on the First Amendment.

Justice William H. Rehnquist: The defense that the constitution requires to be allowed.

Mr. Charles Morgan, Jr.: Oh, the First Amendment.

Justice William H. Rehnquist: The First Amendment requires that he would be permitted to present his objection to this use of paramedics before the court-martial?

Mr. Charles Morgan, Jr.: That he would be allowed to present his ethical concern and reason for declining the order.

Now first, Mr. Justice Rehnquist, he?s brought into the service, after Orloff versus Willoughby, as a physician.

Since the 1800s, physicians can only be brought in as officers in (a) since Orloff v. Willoughby, they can only be used in medical capacities.

Levy cannot be ordered to take a gun, shoot and do those kinds of things.

He is not subject to that kind of concern.

Now what he says is I am entitled as a doctor to act -- practice as a doctor and I am protected with the First Amendment and I think he is under Roe and under Doe.

I think we?re getting to that certainly on those two cases.

I do want to mention that Dr. Levy was tried and convicted as you well know for conduct unbecoming of an officer and gentleman.

Now, there is no clear and present danger there, you do not have to show any damage there, all you do is -- and remember these are pure speech charges, the conduct charge, the order charge is one thing, the rest of the charge is of pure speech, he is not doing anything but talking, just talking.

And where is he talking, he is talking to the dermatology clinic, he is not like how the case in the military decided after this that said a man can be prosecuted under 133 for carrying a sign in a public demonstration.

He is in a private clinic.

There are utmost 13 people who have heard anyone of the statements.

In one conversation four folks heard him.

Now he is in private.

All of these arguments about the Army and writing statutes and that sort of thing and that would be fine if the military was willing to give up what it? got.

And what?s it got?

It?s got for its people the right to run for political office.

Now, when you start talking about statutes, I want to mention two things.

First, if it is too difficult to write, then it is too difficult for a serviceman to understand if it is not written.

And the second thing is, that Army regulation 600-20 paragraph 423 says a serviceman ?have a right to express their opinions privately and informally on all political subjects and candidates and to become candidates for public office.?

Now what the Army presently has, Mr. Chief Justice Burger, you were asking about debating societies.

It looks to me like under this Army regulation you can have folks in the same company, going out and running against each other.

Now, I think if you are going to regulate speech, you cannot have your cake and eat it too in the Army and that is what they got now.

Chief Justice Warren E. Burger: As I follow his application of the Hippocratic Rule.

He is taking the position as a doctor that it?s better for the people out in the countryside to have no medical assistance at all, rather than to have medical assistance of paramedical people that he would train.

Is that right?

Is that about it?

Mr. Charles Morgan, Jr.: Not really, it?s that is only a part of it and of course that?s a medical question, as far as, whether it? better or worse like if you gave everybody a penicillin shot , would the world be better off or not and some doctors would argue either way.

In this case we brought forward the following witnesses:

John Mayer (ph), Dr. Saddap (ph), Peter Bourne of the Walter Reed Institute of Research and they came forward, these physicians and they said this is an appropriate ethical concern.

They said we recognize this and physicians who were in the Army said if they had Levy?s factual knowledge if what he knew was true, Dr. Mauer and others, they would not give training.

Now the concern was just not to how this treatment came on the field, for instance Dr. Bourne came to a different conclusion on ethical concerns.

He thought it went the other way in as far as he personally was concerned.

But the question was, may the physician for a valid ethical concern as with most ethics, is it right or wrong, is another question.

And Levy?s position primarily was not that the people out in the field were worst off or better off with medicine.

Levy?s position was that they were military personnel using medicine for military and political purposes and that (b) would never know whether they were better off with or without it and throughout the record it is quite interesting to go back and see what Special Forces have testified about the quality of medical care out there in the field.

They are saying they go in and they use words like panax, witch doctors and acupuncturists, doctors with needles, I am not so sure those folks, myself when I got there, were better off.

Chief Justice Warren E. Burger: Well, the question really comes down to whether that is a judgment that the subordinate officers in the military are free to make, isn?t that what this case comes to?

Mr. Charles Morgan, Jr.: As to whether doctors or subordinate officers in the military are free.

Yes, there is no question that you can?t to that to a chaplain, there?s no question that there?s an attorney-client privilege in the military but there is no physician-patient privilege recognized and doctors are different and the nature of their works there.

Now I want to mention this to you, as far as conduct unbecoming an officer, a gentleman is concerned.

There was a case in 1827 in which the court-martial decided that the conduct of an admiral, the first Jewish Commodore rather in the Navy, Admiral Commodore Uriah Levy, they decided then that the conduct of a dual over honor was conduct unbecoming an officer but not that of a gentleman.

Now, I submit to you that even on the face of the statute, if you take its words at fair meaning, conduct unbecoming an officer can also be sometimes itself.

Conduct becoming a gentleman.

And that the statute in its very words are mutually inconsistent and that in this case for instance, have they charged Dr. Levy?s conduct of not allowing Special Forces to walk in and stare at his woman-patients, that under that circumstance lots of us would consider the conduct would have been appropriate with respect to a gentleman but not an officer.

With respect to 134 and 133, there is no question in this record whether Dr. Levy did not have the notice that the appellant?s case is based on.

He came into the service, he did not get the training other Army doctors get.

They did not take him to Fort Sam Houston.

They brought him in and they put him in the clinic.

Throughout the case, there?s no -- there?s not an iota of evidence that Levy knew what was prohibited or what wasn?t prohibited under 133 or 134.

Now beyond that, the Army regulation says that he may express his opinion privately and informally on all political subjects and candidates and to become candidates for public officers.

Where did he express his opinion?

He did it in his office.

Now what was Levy doing in his spare time?

He didn?t join the Officer?s Club, that?s in the record.

He went out and participated, and vote a registration campaigns in civil rights work in civilian clothes off post, off based.

And we have been attempting a civilian counsel with a clearance for top secret in another military case to get our hands on the very G2-A that the colonel testified, he upgraded the charges after reading.

He based the upgrading of charges from Article 15 to a general court-martial after he read the G2-A.

They gave us 80 pages.

They gave our military counsel 180 pages and said he could not tell me what was in it.

And we know now because they wrote the District Court that 25 pages came from non-Army sources and had to get released on that and everything down the line but the very charges Colonel Francey testified were based upon the G2-A and his reading of it and he upgraded it on that basis.

Now, this -- with respect to Broadrick and with respect to Letter Carriers, it seems to me that Levy complies completely with the requirements of that case and that this case is quite appropriate for judgment.

In Broadrick and in Letter Carriers, you have a statute which goes to political activity and in effect to political speech.

In this case, you have a statute which goes to everything and does so by its nature and because that is what the service wanted.

We can stand up here and talk about defining and doing this and that but the very purpose for 133 and 134 is, to catch all its catch 22.

They say that the purpose of it is to get all sorts of conduct.

To talk about the findings, that is not what the military wants with.

Not only does it not want to -- it doesn?t want to tell you about political speech, it wants to keep its political speech under its regulations and it wants to keep the right for its people to run for office.

Now, Letter Carriers didn?t do that, Broadrick didn?t do that, and neither of those two cases say in the least anything which in any way, inhibits the right of Dr. Levy to strike down these two statutes on behalf of himself, not on behalf of some conduct for someone else.

Now, I want to -- words are harsh, Dr. Levy used. Not so harsh in retrospect as they were back then.

He was on overseas at a military post.

He had not been through ever basic training.

He was at Fort Jackson, South Carolina in a dermatology clinic.

He didn?t want to be there but he was there and he was a good doctor, the records, not a question about that.

Unknown Speaker: Where did he have his residency?

Mr. Charles Morgan, Jr.: At the NYU in Bellevue, as I recall it or downstate, I am not quite sure what the words mean but it?s in New York City.

The prosecutor never took a position, we all noticed at the trial.

If you will go to page 2497 of the record, the prosecutor says of course the Government?s position is like any law, the provisions of the Uniform Code are without specific notification binding on any individual in the military service.

It?s only when we get here that the quad drills stands.

Now, I -- the case presents many questions but the one thing that the case does not present is a doctor who refused to train medical personnel.

The one thing that the case does not present is a circumstance wherein a person was convicted, wherein a person was convicted for anything other than his political beliefs and beliefs that were thrust upon him and charged against him by Colonel Henry Franklin Francey.

I have an extract in the record as to what this loyalty means and what this affection means in the brief, perhaps, that will demonstrate appropriately that tremendous confusion that can occur with the use of words that nobody knows the meaning of.

But I know the meaning of a three-year sentence which he received and the meaning of that sentence was that these officers with no standard for judgment and a prosecutor with no standard for judgment and a colonel who testified on the basis of an undisclosed-A, he was charged in this fellow with being disloyal.

That they took those charges and catapulted them up and the only thing that was conduct unbecoming an officer or a gentleman in the entire case, and the only discredit that came to the service was the court-martial process in the fact that it occurred.

It seemed to me that the officer who testified David Travis at that time perhaps the most decorated American in Vietnam combat soldier, who said, ?Sure I have been at Fort Jackson,? and he was black ?and I?ve been with Dr. Levy and he?s talked to me and I?ve disagreed with him.?

But he says, ?That?s what I am in Vietnam fighting for.?

His free expression then I asked him, ?And where do you go from here??

And he said, ?Back to Vietnam.?

I submit to you that that is really what this case is all about.

It?s the right of a person to express themselves freely, in private, to practice medicine, and to give the military their very best even if they don?t want to and maybe those problems will go away, now that we?ve come to the position that we do not have a drafted military service, but a voluntary military service.

And perhaps, I don?t know that will result in some military men when they are entering the service, giving up some of those rights of civilians.

If it does and they are going to write a statute, they better get away from saying military men can run for office and discuss privately any political matters that come to their minds.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.