Cases by Issue - Military

Schlesinger, v. Councilman - Oral Argument

Thu, 23 Aug 2012 18:27:10 +0000

Case:

Schlesinger, v. Councilman

Media File:

73-662_19741210-argument.mp3

Related Transcript:

73-662_19741210-argument

Transcript:

Argument of Bork

Chief Justice Warren E. Burger: We'll hear arguments first this morning in number 73-662, Schlesinger against Councilman.

Mr. Solicitor General, you may proceed whenever you're ready.

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

This case is here on writ of certiorari to the Court of Appeals for the Tenth Circuit.

The respondent, Captain Councilman is under Court-Martial charges for violating Article 134 of the Uniform Code of Military Justice, the General Article, by wrongfully selling, transferring, and possessing marijuana.

At the time of the offense, Captain Councilman was off post, off duty, and out of uniform.

Although stationed at Fort Sill, Oklahoma, he was then in his apartment in Langley, Oklahoma.

The sale and transfer of marijuana were to a man who Councilman believed to be an enlisted man also not in uniform and off duty.

He believed him to be a clerk typist at Fort Sill.

He was, in fact, an enlisted undercover agent for the Army's Criminal Investigation Detachment which was investigating a report that the Captain used marijuana at his apartment.

Councilman moved to dismiss the charges against him on the ground that the Court-Martial lacked jurisdiction because the crimes were not service-connected under O'Callahan against Parker.

The presiding military judge denied that motion and Councilman then brought this action to the District Court which, on the grounds of absence of service-connection, permanently enjoined the military authorities from proceeding with the Court-Martial and the Court of Appeals affirmed.

This case put in play two important issues.

The first is the propriety of the District Court's intervention in a pending Court-Martial proceeding.

The second is the rationale and application of the service-connection test for Court-Martial jurisdiction.

These are both issues of serious concern to the government for they bear directly upon the effectiveness of the Armed Forces.

We submit, in the first place, that the District Court should not have interfered with this Court-Martial and the reasons for that conclusion are interrelated.

They are the doctrines we discussed yesterday of comedy and exhaustion of remedies.

We've also contended that the finality provision of the Uniform Code of Military Justice Article 76 precludes review by any mode other than a petition for habeas corpus.

Our arguments yesterday in McLucas against De'Champlain dealt with the principles of exhaustion and comedy-- exhaustion of remedies and comedy and here, as there, we rely upon Younger against Harris and Gusik against Schilder.

The military justice system is a coordinate judicial system with a series of appellate stages through which any conviction must be tested and strained.

The ordinary considerations of avoiding duplication, waste of judicial resources, and so forth apply here as they did in Younger and in Gusik.

Justice Potter Stewart: Is your argument on this branch of the case identical to the arguments you made?

Mr. Bork: Virtually so, Mr. Justice Stewart, except for one point and that is that I wish to distinguish the line of cases Billings against Truesdale and Toth against Quarles and so forth because of the nature of the trial that is required on a service-connection issue and I will just-- I will not repeat the argument about Younger against Harris or Gusik against Schilder in the ordinary consideration.

Justice Potter Stewart: But you're incorporating that by reference.

Mr. Bork: I am, yes.

Justice Potter Stewart: And then you have one additional argument, is that it?

Mr. Bork: That is the nature of a trial required on the service-connection issue.

Justice Potter Stewart: Or at least something additional you need to say in view of those cases, is that it?

Mr. Bork: Yes.

Justice Thurgood Marshall: But isn't there a difference that, here, the claim is that they can't try him at all?

Mr. Bork: That is correct.

That is why I wish to say that it is semantically possible, Mr. Justice Marshall, to make this case sound as if it were similar to Toth against Quarles or Reid against Covert or that line of cases, because it can be put in terms that the question is the military's power to try the man.

But, I think it's quite different from those cases because in those cases the military's lack of power to try the man comes from his status and not from his conduct, and it's a quite simple trial.

In fact, it's solely a legal issue whether the man is a civilian or a military man, whether, if he is a civilian, the military has a constitutional power to try him.

Here, however, the question of the power to try him and it's quite different, I think, when a man is not a civilian but is a military man who is ordinarily subject to military discipline and military jurisdiction and, in addition, when the claim that he may not be tried rests upon the factual details of what he did and where he did it and so forth, because that means that when a service-connection issue is raised, if he can go into a Federal District Court, in many cases, there should be a small trial of the crime to get out the details.

In fact, I think in this case it may be that this stipulation is seriously inadequate.

I don't know.

If District Courts are going to come into these cases, I will advice you as attorneys and military lawyers to make much fuller records than this so we can find out about service-connection much more effectively.

Chief Justice Warren E. Burger: Do you consider it a particular importance that this was a transaction between a captain and an enlisted man who is under his command?

Mr. Bork: I consider that of crucial importance on the service-connection issue, Mr. Chief Justice.

On the jurisdictional issue, however, I don't think that it's-- it bears this directly.

Chief Justice Warren E. Burger: Even though they were off base and out of uniform?

Mr. Bork: Well, I-- by the jurisdictional issue, I meant initially whether a District Court ought ever to entertain a claim like this before the military process has run its course and I think, on a service-connection issue, it ought not.

On-- I think it's clear that it is a service-connected and I will argue to that effect in a moment, but I wish to complete the answer to Mr. Justice Marshall's question.

If you may go into a Civilian Court in advance of a Court-Martial, the Civilian Court in many cases will have to hear the facts of the crime to determine the service-connection issue.

If the Civilian Court determines it is service-connected, you will then go back for a full military trial.

So, you'll have two trials: one civilian and one military.

If the Civilian Court determines it is not service-connected, you will then have two civilian trials: one on the injunctive action and one presumably when the local prosecutor brings a charge under the criminal law, the civilian criminal law.

So, I think there's quite a waste of resources in this kind of a service-connection case which is necessarily a factual case.

If you have it proceed to the military, then you need have only one trial of the fact and a Court looking at habeas corpus later on the service-connection issue.

They rely on the military record.

In addition to that, there is in the service-connection issue necessarily an expert judgment about the effect of the behavior upon the discipline, the morale, the effectiveness of the Armed Forces.

And, I think that judgment initially should be made and illuminated by military tribunals with the expertise.

It may then be reviewed on habeas corpus by a Civilian Court with the issues so-illuminated, and I think that is why this case is a very different kind of a case, both in terms of expertise and in terms of trial of factual matters than the Toth v. Quarles or Billings against Truesdale line of cases, and why the Doctrine of Exhaustion of Remedies and Comedy is particularly appropriate here.

Now, Mr. Chief Justice, you mentioned the issue raised in this case by the fact that the marijuana sale and transfer charges involve the sale and transfer of marijuana by an officer, Captain Councilman, to a man whom he knew to be an enlisted man and the enlisted man he knew understood him to be an officer.

And, I think that makes the first two charges in this case quite clearly service-connected.

O'Callahan and Parker and Relford against Commandant were cases which explicate a number of the criteria that are relevant in judging service-connection, but the Relford opinion explicitly recognizes that those factors are not a closed set.

That's not a codification that, further, is a common law development in this c-- in this field, and I think the O'Callahan case indicates the rationale which guides that common law development of these cases and it grows out of Congress' constitutional power which exists because the exigencies of military discipline require the existence of special Courts with special expertise and special jurisdiction.

So, I think, the offense is service-connected when it bears upon discipline, morale, and the effectiveness of the Armed Forces.

And, when the Armed Forces have a reason of their own, which is distinct from that held in common with civilian society, to be seriously concerned about the offense, and that's certainly true here.

The rationale of service-connection indeed, I think, is very similar to the rationale of Article 134 under which Captain Councilman is charged.

Article 134 prohibits all disorders and neglect to the prejudice of good order and discipline in the Armed Forces.

So, both issues, the jurisdictional and the substantive, the service-connection and disorders and neglects are given meaning by the unique nature of the special needs and the vital mission of the military.

Justice Potter Stewart: In speaking of the differences between this kind of an offense in military society contrasted to what it would be in civilian society, are you concentrating on the military's attitude toward the possession and use of marijuana or are you concentrating on the-- emphasizing on the traditions in the military that officers and enlisted men do not fraternize?

Mr. Bork: Well, Mr. Justice Stewart, those two rationales correspond to the different charges.

I was addressing, initially, the relationship of officer to enlisted man and the destructive impacts of shared criminal behavior upon that relationship.

Justice Potter Stewart: Well, shared behavior of any kind, unless times have changed since I was in the military.

Mr. Bork: Well, I wouldn't say shared behavior of any kind, Mr. Justice Stewart.

Justice Potter Stewart: Off duty, except in the military mission.

Mr. Bork: Socializing or, yes--

Justice Potter Stewart: Except in the military mission.

Mr. Bork: That's true.

I think the service-connection become particularly apparent when the shared behavior is criminal behavior and known to be such by both participants because I think that is particularly destructive to morale and, as word of it spreads around as it will, when an officer engages in this kind of behavior, destructive to the authority of all officers in that commander, indeed, if another commanders hear about it.

But, I intend to address as well the fact that possession of marijuana, irrespective of the relationship to the enlisted man, is also service-connected.

Justice Potter Stewart: So, there are two distinct differences.

Mr. Bork: Two distinct rationales, both of which I think apply to this case and both which I think uphold service-connection.

We have just discussed that it's hardly relevant to the destructive impact of shared criminal behavior between an officer and an enlisted man whether it takes place on post or off post, or in or out of uniform, or on or off duty.

The relationship between those men is effectively destroyed.

As word gets back in this closed society, which the military is quite a close in its society, a society in which has a great deal of gossip and rumor, it will undercut the authority of all officers in that command.

And, I think one need not strain one's imagination to think of a variety of criminal offenses that are wholly destructive of the relationship the Armed Forces must require.

In fact, there may be such offenses which are criminal under the Uniform Code which are not criminal under a State Code.

So that if it occurs in certain jurisdictions, civilian authorities will be without power to prosecute but the military, nevertheless, has a vital interest in seeing that that kind of behavior does not take place between officers and enlisted men.

And, I think that much can hardly be denied.

Justice Potter Stewart: Though, if this had been alcohol as to the matter, I mean alcoholic beverage instead of marijuana?

Mr. Bork: If it had been-- I think fraternizing with an enlisted man might have called for disciplinary activity by the military.

I don't think it would have been a General Court.

I think drinking with an enlisted man is severely discouraged.

It might have called for a reprimand.

If repeated, it might have called for a more serious punishment.

But, since the underlying activity is not in itself criminal, the initial response of the military, I suspect, would have been milder than this.

Justice Harry A. Blackmun: Well, you were drawing the difference between the drunkenness and grass.

Mr. Bork: A distinction-- no, I think the distinction between alcohol and drugs is simply that if we're talking about the use rather than the relationship between the two men is simply that the military, as civilian society, chooses to regard only over use of alcohol as an offense where they tend to regard any use of drugs as an offense, and that's a judgment which I think is essentially a legislative judgment and I think an allowable one.

Justice Harry A. Blackmun: Well, you mentioned just a moment ago that we might be in a jurisdiction where the use of marijuana was not a crime.

Mr. Bork: That is correct.

In fact, we have jurisdictions now I think-- well, one thing is certainly true, Mr. Justice Blackmun, and that is that the treatment of marijuana possession or use by various localities and states varies enormously.

There are-- we've heard of cases where 15 years for a possession of minor amounts of marijuana.

There are other jurisdictions where the offense is almost not prosecuted.

So that the military's distinctive interest in this may be not vindicated at all by the civilian authorities or it may be over-vindicated in some sense, maybe much harsher than the military would chose to treat the matter.

Justice Harry A. Blackmun: But do I understand you, however, to say that if the captain here had gone off base, off duty, and spent the evening in an apartment with an enlisted man and they both hang one on, that this would not be service-connected?

Mr. Bork: No, I didn't suggest that, Mr. Justice Blackmun.

I think it would be.

I was suggesting that the service is a response to an officer having a drink with an enlisted man might be not as-- at the same level of concern and it might justify a milder level of punishment than its response to an activity which is itself criminal and the use of a drug, although it might have a response, a disciplinary response, to fraternization between an officer and enlisted man.

But, fraternization in a criminal activity is a far more serious fraternization and far more destructive of morale and discipline than other forms of fraternization.

Justice Thurgood Marshall: Because, in this case, if the captain had a bottle of whisky, nothing would have happened to him but if he had marijuana he would have been prosecuted.

Mr. Bork: You--

Justice Thurgood Marshall: But now that he associates with anybody.

Mr. Bork: If we're talking about the possession issue alone, that is correct, Mr. Justice Marshall.

The possession of marijuana is certainly treated as a crime by the military, whereas the possession of alcohol is not.

Justice Thurgood Marshall: Whether not with anybody else or not.

Justice William H. Rehnquist: Well, is fraternization itself a crime under the UCMJ?

Mr. Bork: No, I think the-- only if it reaches a level where it does become destructive of discipline.

I suspect that fraternization which was regarded as unseemly would be handled by a word to the officer.

Fraternization which becomes destructive of the relationship which the military must foster will ultimately reach a criminal level in that sense.

Fraternization which involves participation in a criminal activity is obviously a crime, but I wanted to reach the issue of possession because-- and I may say on the other issue, the-- when it is behavior between an officer and an enlisted man that is criminal, the Civilian Courts will never fully vindicate the military's interest because there is no element of any civilian crime which consists of the discipline that-- the discipline-destroying aspect of this relationship.

Now, the charge of possession I think is equally serious and I think equally service-connected.

The military regard the use of drugs as highly detrimental to effective military performance.

They may not be in any individual case.

That is hard to say.

On the average, the military has good reason to know that the use of drugs is highly destructive to the efficacy of the Armed Forces.

Now, it may be that a variety of civilian jurisdictions will ultimately decriminalize marijuana.

It may be that many of them won't.

The military cannot afford to decriminalize marijuana because they think, on a basis of experience, on a basis of evidence that the drug tends to decrease efficacy, and that cannot be tolerated by an army.

Justice Potter Stewart: So, wouldn't alcohol also?

Mr. Bork: It will if overused, yes.

Justice Potter Stewart: And this is off based, wasn't it?

Mr. Bork: That is true, Mr. Justice Stewart, but I suspect that the-- I'm sure that the impact of the drug on personal wellbeing is the same whether you're in uniform, out of uniform, or on base, or off base.

Justice Potter Stewart: Well, same is true with alcohol, isn't it?

Mr. Bork: That's true.

An abuse of alcohol is a military offense off base or on base.

The military regards that as an offense.

Chief Justice Warren E. Burger: Then do you not have the related factor that comes into this picture somewhere, if enlisted men generally get the impression that the officers tolerate the use of marijuana or other drugs which would go to your broad-based argument about maintenance of discipline, would it not?

Mr. Bork: That's right.

It certainly would, Mr. Chief Justice.

I think one must look at this as a widespread problem in the Army.

This is not a problem of Captain Councilman and a few of his off duty peccadilloes.

This is a serious widespread concern to the military.

Now, I think at page 17 of our brief, to illustrate the problem, we have some figures which show how serious the problem is.

And, on page 17 and running around 18, the brief states that, in 2 years, over 86,000 servicemen underwent rehabilitation for drug use and that 48% of those were unable to return to active duty.

Now, that means something like a little over 40,000 men in 2 years were lost of the Army-- of the Armed Forces through drug use, and that is the equivalent of 2 Army divisions being lost without being fired and that' the kind of problem we're talking about and the kind of problem the military faces.

A civilian society, in balancing its values, may decide it doesn't care about efficiency, about effectiveness, and what an individual does to himself is his own concern and there may be a good deal to be said for that individual.

Justice Harry A. Blackmun: Mr. Bork, I noticed you have consistently referred to drug use.

Isn't this a marijuana case?

Mr. Bork: I'm-- yes, it's a marijuana case.

I perhaps should confine it to that, but marijuana, the military thinks as many people think, has some relationship, and not a perfect one but then again not a insignificant one, to other drug use.

And, in itself, is increasingly thought to be harmful and particularly thought to be harmful to motivation.

Heavy uses of--

Justice Harry A. Blackmun: Well, there's some thinking that alcohol also does the same thing.

Mr. Bork: Mr. Justice Blackmun, I think that's correct but I think it's fundamentally a mistake for us to think that if a society has learned to tolerate alcohol over a period of years and punish only its severe abuse in the military, that it then becomes somehow unconstitutional or illegal for that society to make a different judgment about marijuana, whose effects in some respects may be similar and in some respects may be different, but I think it's an allowable legislative judgment that, on a basis of present knowledge and on a basis of the experience we have, marijuana may be regarded by any jurisdiction, civilian or military, as a more serious threat.

The military so regards it, and I think allowably.

In fact, I think much of the contrary feeling to my own about this case rests upon an unarticulated notion that, perhaps, marijuana ought to be decriminalized.

I don't know whether marijuana ought to be decriminalized or not.

I do think that's a judgment for each jurisdiction involved, and the military has made its judgment.

I certainly think it's a very reasonable judgment for the military to make and, therefore, one that not-- ought not to be upset.

This is a massive problem for the military.

They have lost a great deal of efficiency and loss of personnel through the drug problem, of which the marijuana problem is a part.

So, I think both--

Justice Potter Stewart: The alcohol problem must be a part also.

It's a drug, isn't it?

Mr. Bork: Yes, it is a drug, Mr. Justice Stewart.

Justice Potter Stewart: And, in your brief on pages 17 and 18 the two are linked, I noticed, at least by the title of the hearing.

Mr. Bork: Well, the mili-- I'm not quite--

Justice Potter Stewart: On the-- on review of military drug and alcohol programs.

Mr. Bork: Yes.

I'm not quite certain why the subject of alcohol rises here because the military does concern itself with the abuse of alcohol.

Justice Potter Stewart: Well, the-- unless, again, times have changed in the one branch of the military, i.e. the United States Navy, has concerned itself not only with the abuse of alcohol, with any possession of any kind of alcohol--

Mr. Bork: Aboard ship.

Justice Potter Stewart: On any ship of the United States Navy, yes?

Mr. Bork: Aboard ship, that's certainly true, Mr. Justice Stewart, but I think the Navy would take the position that drug possession off base, out of uniform is service-connected, whereas alcohol possession off base, out of uniform they would not regard as service-connected.

And, I think that's an allowable legislative distinction, an allowable judgment.

It's one that our society generally makes and I don't see why it should be denied to the military and I think, indeed, is justified.

For these reasons, I think both because of the relationship between the officer and the enlisted man in a known criminal transaction which the Civilian Courts cannot fully vindicate and the possession issue, which I think the military is entitled to view as service-connected because of its disastrous effect upon efficiency and upon availability of manpower as shown by the statistics.

I think both of these offenses, if the merits of this case are reached contrary to our submission that the District Court had no jurisdiction, require that the judgment be reversed.

Justice Potter Stewart: Is Toth against Quarles an injunction?

That was a habeas corpus, wasn't it?

Mr. Bork: I believe so.

Justice Potter Stewart: It's difficult to tell from the opinion, isn't it?

Mr. Bork: I read that.

I was reading that yesterday trying to tell and, as I recall, Mr. Justice Stewart--

Justice Potter Stewart: Footnote number 2 or 3 or somewhere indicates it was habeas corpus.

Mr. Bork: It was.

Justice Harry A. Blackmun: Mr. Bork, can I ask you one other question.

Apart from this case, do you know of any Civilian Court precedent ruling that marijuana possession is service-connected?

Mr. Bork: A civilian-- I don't know of a-- one of hand, Mr. Justice Blackmun.

That is the-- unfortunately, that is not to say that there might not be one.

Justice Harry A. Blackmun: And do you know of any--

Mr. Bork: The Civilian Courts--

Justice Harry A. Blackmun: Any military case holding that marijuana possession is not service-connected?

Mr. Bork: No, I don't.

There-- I-- In generally-- in general, the Military Courts think it is and Civilian Courts have thought not.

Justice Harry A. Blackmun: No?

Chief Justice Warren E. Burger: Mr. Garrett.

Argument of Nicholas D. Garrett

Mr. Nicholas D. Garrett: Mr. Chief Justice and may it please the members of the Court.

I think that myself and the Court has granted split argument in this case, myself and Mr. Meyers.

He will address himself to the issue of jurisdiction.

I will attempt to address myself to the issue of service-connection as applied to O'Callahan and Relford, the related cases.

I think that the Solicitor General has maybe overstated this case to one extent, in that we will soon have, through the use of military agents, the servicemen of factoring jurisdiction.

And, as Justice Blackmun has pointed out, we now have a situation where the Courts of Military Appeals chains have uniformly held that possession is per se service-connected, and I would suggest that I don't believe that that was the holding of either Relford or O'Callahan wherein the individual rights seem to be at stake at O'Callahan where we had the flagrant use of the military's deciding jurisdiction was available, where the only thing was that he was a member of the service.

There was no other service-connection in an attempted raid off post, out duty, out of uniform.

The Relford case, I think, tried to limit or at least explain some of the factors that the military should look at in determining whether or not service-connection lied, and I think that we find that the military has, just by some means, has determined that marijuana is per se service-connected with-- if you apply any of the factors set out either in O'Callahan or in Relford, you reach a different conclusion.

The only factor that the Relford decision would point to service-connection would be, in this case, the Councilman case, would be that of a victim.

And, I might suggest that, in this case, I'm not sure that victim was the kind of victim that O'Callahan spoke of and that Relford may have expressed itself to.

That is to say, this victim is not engaged in any military activity or duty.

This victim is an undercover agent who was holding himself out by the use of an alias and, in the facts in this thing, Councilman was provided to a party for the very purpose of having met this undercover agent and was held out to be not an undercover agent, but as a clerk typist.

Now, we would then have a-- I think, the Army, stretching this thing, if they stretch it much further to the point that they have reached the fact that if a government instrumentality used, then they may decide this is jurisdiction and I know that the Military Courts of Appeals have uniformly held that it is service-connection, and I could only suggest that after the Army has all the facts before it, as It did in this case by virtue of a 32 hearing which is a hearing prior to the 39 (a) hearing where the evidence is a induced.

Then, at the 39 (a) hearing, the government called witnesses and more evidence was induced and, although the facts in this case are very limited because they were reached by stipulation, they're the entire facts and there will never be any change in the structural circumstance.

The government called witnesses of 39 (a) and if they were present at the hearing before the District Judge and if there were to be additional facts that would be presented, I would suggest they certainly would have called witness before the district judge or would have cause be entered into another stipulation as they did in this instance and as attached to the brief in this matter.

Chief Justice Warren E. Burger: Mr. Garrett, I'm not sure that I understand.

Perhaps I misunderstood your emphasis on the fact that this was a clerk typist but known to the captain as a member of the military force.

Is that correct?

Mr. Nicholas D. Garrett: Yes, that is--

Chief Justice Warren E. Burger: Now, would it make any difference to your case if he'd been a lieutenant, first-lieutenant, second-lieutenant instead of a clerk typist?

Mr. Nicholas D. Garrett: No, I don't--

Chief Justice Warren E. Burger: Or just a man?

Mr. Nicholas D. Garrett: Excuse me, Mr. Chief Justice.

I don't draw that distinction.

What I'm saying is whether the undercover agent is a lieutenant, a captain, or a general even, he is not a “victim” as I think is contemplated by O'Callahan in terms of the test set out in Relford.

I don't know if that answers your question, but I-- perhaps you're getting at the issue that it is a dealing between an officer and an enlisted man, and I can only suggest that the whole offense, if the service-connection test we had mean anything, we are dealing in a society that is-- I mean, the factual situation are everything.

Both people involved, the “victim” and the-- Captain Councilman, everything took place in an area outside of the reservation and he was not-- this agent was not under the command of Captain Councilman, as far as active duty on base.

Captain Councilman was going to the school out there and, of course, the undercover agent was a-- sent for the purpose of this.

Justice Potter Stewart: Mr. Garrett, are you or is your colleague going to address the jurisdictional question?

Mr. Nicholas D. Garrett: Yes, sir.

The-- I think, perhaps, the Court has fairly well-covered those items that-- by questioning.

Those items seem to me to be important in this case and that is to say that public drunkenness is a crime conjurable in the military and in the Civilian Courts.

And, yet, we do not see soldiers that become drunk in the civilian communities dragged into the military system and Court-Martial.

Yet, we see this happening on several instances or in the numerous instances in the case of marijuana.

Now, it seems to me they're applying a different standard and I think that that is a proper standard where they can then ignore by a selective prosecution and ignore the criteria laid out by Relford and O'Callahan.

Chief Justice Warren E. Burger: Do you think it might make a difference if a captain gave a party and then invited a dozen enlisted men and they all made very excessive use of alcohol and, ultimately, the party went public and you had a public count in this criminal act you're talking about.

Do you think that might conceivably be different from the private party?

Mr. Nicholas D. Garrett: I think if the party reached such proportions as according to this where they spew out into the street and there are off post, then I think that then we would apply the Relford test to see if perhaps, there, there was service-connection in your fact situation and there may be, in that instance, and again depending on the facts, there may be service-connection enough where they bring them up on Court-Martial.

Chief Justice Warren E. Burger: Possession of marijuana does not need to be in public in order to be a criminal act, does it?

Mr. Nicholas D. Garrett: No, it does not.

It is against the law both in Oklahoma and in the military to possess marijuana, but I think, here, again either in that instance or your first case involving public drunkenness, I think we need to apply the test in Relford.

And, it may be that, in applying the test in a public drunkenness case, we might have a basis but, as far as detrimental effect in the broad argument that the Solicitor General is using in terms of the use of marijuana having a detrimental effect, I'm sure that alcohol has more than a detrimental effect in this instance.

That is to say that I think probably alcohol is a more severe problem in the Army than is marijuana.

Justice Thurgood Marshall: Is that in this case?

Justice Harry A. Blackmun: How many times in your experience have the Civilian Courts in your state taken over a case of drunkenness of a military person, public drunkenness, many times?

Mr. Nicholas D. Garrett: Yes, it's--

Justice Harry A. Blackmun: Why don't they always turn it over to the military authorities?

Mr. Nicholas D. Garrett: No, they do not.

We live in a military community and public drunk charges are brought against soldiers in our town, I would suggest, at least 100 over the payday periods and they are treated as any other civilian that'd be in the city Courts.

And then, the record is released back to the military that the fact that he was confined in our Civilian Courts but, of course, then there's no jeopardy attached.

It's the only thing they didn't do is make a note of administratively in his serviceman's file.

Justice Harry A. Blackmun: He'd be sentenced for 10 days to the county jail?

Mr. Nicholas D. Garrett: Actually, it's a practical matter and in accordance of $25-50 fine in the civilian community for public drunkenness.

Justice Harry A. Blackmun: Where was the order?

Mr. Nicholas D. Garrett: Fort Sill community is a lot in Oklahoma.

It's a--

Justice Thurgood Marshall: Does that prevent the Army from moving in afterwards?

Mr. Nicholas D. Garrett: Yes, it does, if there is a conviction in the Civilian Court.

Justice Thurgood Marshall: It does?

Mr. Nicholas D. Garrett: Other than administratively, they make a note in a man's file.

Justice Thurgood Marshall: You've got an agreement or something with the law?

Mr. Nicholas D. Garrett: No, sir.

That's just-- there's no way that they can try him again in the military for what took place, I mean if he's tried in the Civilian Courts.

Justice Thurgood Marshall: After he's tried?

Mr. Nicholas D. Garrett: After he's tried or after he pleads guilty.

Justice Thurgood Marshall: But the military could take him, couldn't they, before trial?

Mr. Nicholas D. Garrett: Yes, they could, but they never have.

Justice Thurgood Marshall: They just waive that they still have the right.

Justice Harry A. Blackmun: You better not concede that they could.

Mr. Nicholas D. Garrett: I don't think that they--

Justice Harry A. Blackmun: They'll take away your case.

Mr. Nicholas D. Garrett: Yes, but I'm not sure that they could just come in and take him and try him.

I mean, that's certainly an off post offense without any service-connection unless we completely change what we are.

Justice Thurgood Marshall: Is the possession of the marijuana at all closed, is that an offense?

Do you agree that that is a military offense?

Mr. Nicholas D. Garrett: What?

Justice Thurgood Marshall: The possession of marijuana, while a member of the military took in any place?

Mr. Nicholas D. Garrett: No, only if it takes place within the confines of the base.

Justice Thurgood Marshall: And where do you get that from?

Mr. Nicholas D. Garrett: Well, it seems to me that-- I mean, I'm limiting-- I can say, definitely, if he possesses marijuana on base that is a military offense.

Then, it seems to me, we have then the next.

If a serviceman possession-- possesses marijuana off base, out of uniform, off duty, then it seems to me we will have the other side of the coin.

The military does not have jurisdiction.

And then, I think, as we apply the Relford factors to that, I think it may be we may reach whether they do or don't have jurisdiction.

Justice Thurgood Marshall: If we weren't dealing with a drug in any of the other cases.

Mr. Nicholas D. Garrett: I'm sorry.

I don't understand, sir.

Justice Thurgood Marshall: We weren't dealing with drugs in any of the other cases, were we?

Mr. Nicholas D. Garrett: In the other cases, Relford and O'Callahan?

No, sir, and I don't think--

Justice Thurgood Marshall: We weren't dealing with drugs, but now we're dealing with drugs which the military decided as just that, unlawful and should be stopped.

Mr. Nicholas D. Garrett: I'm not sure that the military-- I'm not sure that the use of drugs or that the military can say that this crime, marijuana, is a different type of crime than any other crime.

In other words, I don't see how we can ascribe some different status to marijuana--

Justice Thurgood Marshall: The possession of money is no crime, but possession of marijuana is.

Mr. Nicholas D. Garrett: Yes.

Justice Thurgood Marshall: Of course it's true, if it's your own money.

Mr. Nicholas D. Garrett: Yes.[Laughter]

Justice Thurgood Marshall: So they couldn't make possession of certain substances a crime and dope is one, narcotics is one, and marijuana is one.

And, you don't say that they can make that a crime to possess it, do you?

You only say they can make it a crime to be caught in the possession of it off the base.

Mr. Nicholas D. Garrett: No, it's a crime to possess marijuana in the military.

It's a crime to possess marijuana in the civilian community.

But, in the issue of jurisdiction, it seems to me, or service-connection, it seems to me that there has to be something more than mere possession off post for the military to now say “we have jurisdiction.”

Justice Thurgood Marshall: Like what something else could it be?

Mr. Nicholas D. Garrett: Captain Councilman, in this case, had mere possession off post.

Justice Thurgood Marshall: He picks an enlisted man and makes a deal to sell him marijuana.

If he'd sold it to a civilian, you might have a different case.

You might, but here is an officer, knowing his rank and knowing the enlisted man's rank, selling him marijuana.

Knowing that they're both military people and knowing their rank, and you don't see any problem with the military?

Mr. Nicholas D. Garrett: Not in terms of the factual situation in this case.

There is not a victim as a-- as such.

This is an undercover agent.

That is, holding him south-- out to be a military man.

If we carry that argument further, it seems to me, we then have, if we have a civilian agent that holds him out to-- holds himself out to be an undercover agent then he, in that instance, would be-- they will find service-connection.

And, I don't think that that's-- that has-- I don't-- I think that's the foggiest interpretation of O'Callahan.

The example I gave is the foggiest interpretation of Relford and O'Callahan.

If the Court please, I see my time has expired and that I would like--

Justice Potter Stewart: Your colleague is going to deal with the jurisdictional question?

Mr. Nicholas D. Garrett: Yes, Your Honor.

Chief Justice Warren E. Burger: Mr. Meyers.

Argument of Orin Christopher Meyers

Mr. Orin Christopher Meyers: Mr. Chief Justice and may it please the Court.

This portion of our argument is devoted to the question of the propriety of the Federal District Court, injunction of the pending Court-Martial.

Our argument here is predicated on this Court finding that there is no service-connection on these facts.

If the Court does find that there is sufficient service-connection to allowing Court-Martial prosecution in the off post, out of uniform, off duty, etcetera possession and transfer of marijuana, then it is true and I would agree that Captain Councilman should stand trial by Court-Martial.

But if, however, you agree that there was not sufficient service-connection here and that if Captain Councilman is to be tried, he should be tried by civilian authorities instead of military authorities then the Court-Martial has no jurisdiction and has no authority at all to try this man and we have, therefore, no duty to exhaust our remedies within the military system.

Now, this Court--

Justice Potter Stewart: Mr. Meyers, we're not talking about the merits of the case.

I mean, the jurisdictional question, I think, doesn't depend upon the element merits of your claim, does it?

It depends upon the-- whether or not every single Court-Martial can be tested out and advanced in a Federal District Court by way of the punitive defendant, the proof defendant, the Court-Martial defendant bringing, as a plaintiff, an action for an injunction.

Mr. Orin Christopher Meyers: I did intend to reach that, Mr. Justice Stewart.

The way that I intend to reach it is to develop, first of all, whether the military has the jurisdiction to try an individual for a particular offense.

As I was saying, this Court has set out in the O'Callahan opinion a two-step inquiry to determine whether the Military Court has jurisdiction in the first place to try a person.

This two-step inquiry requires asking the question, first of all, is this individual subject to the Uniform Code of Military Justice?

And if that question be answered in the affirmative, then the second question arises.

The second question being, is this particular offense which is alleged here sufficiently service-connected to allow the Military Court to have jurisdiction?

Now, unless both of these questions be answered in the affirmative, then the Military Court has no jurisdiction in the first place to try an individual.

The question then arises if an individual finds himself in this position, that is, about to be deprived of his rights and tried by the military when the military has no jurisdiction, then what does he do?

And, the collateral question, of course, is whether or not the individual must exhaust his remedies within the military system before he can even raise the matter of whether or not the Court-Martial has jurisdiction.

Justice Potter Stewart: Well, it's-- is that the only way to put it?

It really is whether or not a Federal District Court has any jurisdiction at all over this kind of a claim or whether the only function of the Civilian Courts is to deal with habeas corpus applications.

Mr. Orin Christopher Meyers: I think that whether the Civilian Court has jurisdiction at all and when the jurisdiction of the Civilian Court arises depends upon whether or not the Military Court has jurisdiction.

It is my position that if the Military Court has jurisdiction, then the Civilian Court should stay out of it.

However--

Justice Potter Stewart: But it's up to the Civilian Court in an injunctive-- in an action for an injunction to determine the question, you say, up to the Federal--

Mr. Orin Christopher Meyers: I say that--

Justice Potter Stewart: To a Federal District Court?

Mr. Orin Christopher Meyers: Yes, sir.

The Civilian Court--

Justice Potter Stewart: This would mean that in every single case where there's a threat in Court-Martial the defendant could come into a Federal District Court and try this question out in the Federal District Court in an action for an injunction to enjoin the Military Court-Martial, is that right?

Mr. Orin Christopher Meyers: I think that's not correct, although I would say that, certainly, an individual always maintains his constitutional rights and always the Civilian Courts stand ready to protect these constitutional rights that they're infringed.

Justice Potter Stewart: What cases do you have where--

Mr. Orin Christopher Meyers: I-- in Toth versus Quarles which is--

Justice Potter Stewart: Is that an injunctive proceeding?

Mr. Orin Christopher Meyers: That was a habeas corpus proceeding.

Justice Potter Stewart: That's what I thought.

Mr. Orin Christopher Meyers: And, in Toth versus Quarles, a man who, as you recall it, been discharged in the Army.

Justice Potter Stewart: Right.

Mr. Orin Christopher Meyers: He has retired his carrier and was charged for murder.

This Court, applying the two-step test, found service-connection murder in the Army, but the individual is not subject to the Uniform Code of Military Justice.

Therefore, both steps were not met.

Therefore, the military does not have jurisdiction.

Therefore, we do not require the exhaustion of remedies and habeas corpus a proper relief.

Justice William H. Rehnquist: But that was after he had been tried.

The military proceedings were all over in Toth, weren't they?

Justice Potter Stewart: It had taken him up to--

Mr. Orin Christopher Meyers: No, Mr. Justice Rehnquist, the man was taken from Pennsylvania, I believe, back to Korea.

Justice Potter Stewart: Back to Korea.

Mr. Orin Christopher Meyers: To stand trial for murder and, before the military could proceed with the murder trial, the matter was raised by habeas corpus.

Justice Potter Stewart: I think that's correct.

It was a pre-trial habeas corpus.

Mr. Orin Christopher Meyers: I believe you're referring to the facts in Gusik.

Justice William H. Rehnquist: Well, I was thinking of Reid against Covert and Schilder.

Justice Potter Stewart: Right, those were post convictions.

Mr. Orin Christopher Meyers: Reid against Covert was a situation where a military dependent was-- stood accused of murdering her serviceman husband.

Again, this Court, applying the two-step test, found that, okay, service-connection for killing the fellow but the first step fails because the wife is not subject to the Uniform Code of Military Justice.

Therefore, this Court did not require exhaustion of remedies and habeas corpus as a relief.

Justice William H. Rehnquist: But, there in Reid the trial had taken place, hadn't it, in the military--

Mr. Orin Christopher Meyers: I believe not.

Habeas corpus was the remedy and this Court did not require the exhaustion of remedies in Reid.

Justice William H. Rehnquist: But, well-- at any rate, in both-- in Reid, the person was a civilian, were they not?

Mr. Orin Christopher Meyers: In Reid, the person was a civilian, the wife of the serviceman whom she murdered.

Justice Potter Stewart: And the action was one for habeas corpus.

Mr. Orin Christopher Meyers: That's correct.

The third case along these lines is McElroy versus Guagliardo where civilian employees in the military were accused of stealing middle-type property.

Again, the second part of the test, that is service-connection, is probably present.

However, the people were found not to be subject to Uniform Code of Military Justice.

Therefore, exhaustion was not required and the military could not proceed.

Habeas corpus.

Justice Potter Stewart: Was that an injunction?

Mr. Orin Christopher Meyers: Habeas--

Justice Potter Stewart: Was that an action?

Mr. Orin Christopher Meyers: No, sir.

Habeas corpus was the remedy as well.

Justice Potter Stewart: Except for the case that we heard yesterday in Avrech.

Are there any other cases where--

Mr. Orin Christopher Meyers: I do have a file, a case.

Dooley versus Ploger is a Fourth Circuit case.

Justice Potter Stewart: This isn't in your brief, is it?

Mr. Orin Christopher Meyers: Sir?

Justice Potter Stewart: It's not in your brief.

Mr. Orin Christopher Meyers: Dooley versus Ploger, I believe, is cited in the government's brief and also in the amici brief.

Justice Potter Stewart: Dooley?

Mr. Orin Christopher Meyers: Dooley versus Ploger.

Excuse me.

That should be Sedivy versus Richardson, and that case was a case involving the off post, off duty possession of marijuana.

The Circuit Court said that injunctive relief in that case was not proper, and the reason was that the facts were not clearly presented to the Military Court.

So that the Military Court never had the opportunity to determine whether or not there was service-connection and that, I submit, is a significant distinction between the Sedivy case and the facts which are now before this Court.

The government--

Justice Potter Stewart: The way you explain it, it was sort of a decision on the merits.

The General Civilian Court did not refrain from entertaining jurisdiction, the way you explained it.

Mr. Orin Christopher Meyers: The--

Justice Potter Stewart: But just denied the injunction, is that it?

Mr. Orin Christopher Meyers: The Cir-- the District Court allowed an inju-- enjoined the Court-Martial proceedings.

The Circuit Court said the injunction was not proper because--

Justice Potter Stewart: On the merits.

Mr. Orin Christopher Meyers: On the merits, because the military did not have a chance to develop the facts in that particular case.

Justice Potter Stewart: But didn't-- but the Court of Appeals did not say, as you explained it to us, that the District Court was without jurisdiction to consider the matter, did it?

Mr. Orin Christopher Meyers: That is my understanding of the case.

Justice Potter Stewart: Well, I just simply think so.

Mr. Orin Christopher Meyers: I'd like to continue the line that I had started-- continue on the two-step inquiry.

Gusik, I believe, is a case that you're referring to, Mr. Justice Rehnquist, in which the person charged was in the military.

He had already gone through several trials for murder, and he brought the action to this Court asking for habeas corpus and, at that time, a new type of relief was passed by statute I believe.

This Court required him to then go back and exhaust all of those remedies.

I think, properly so because, applying the two-step inquiry, one, the person was subject to the Uniform Code of Military Justice and, two, the offenses he committed, murder of another serviceman in the service, certainly would satisfy the service-connection.

So, on both points of the two-step inquiry, it points toward military jurisdiction and I think, in that situation, a man should be required to exhaust all of his military remedies.

This was basically the same situation in Noyd versus Bond in which an officer refused orders to teach pilots or train pilots for duty in Vietnam.

If you're applying the two-step inquiry, we find a captain in the Army on active duty subject to the Uniform Code refusing an order, certainly a service-connected offense.

The Court properly held then that the man should be required to exhaust his in-military remedies.

The Court also pointed out that in Noyd versus Bond there was a particular question as to a technical interpretation of a language in the Uniform Code of Military Justice.

In a footnote in Noyd versus Bond, this Court cited Toth, Reid, and McElroy, the cases I've just discussed, pointing out that this Court had vindicated the claim of individuals without requiring the exhaustion of military remedies for the reason that this Court did not believe that the expertise of the military extended to the consideration of the types of constitutional claims there presented.

And, moreover, it appeared especially unfair to require exhaustion of military remedies where the complainants raised substantial arguments denying the right of the military to try them at all, and I believe that's where we are here today as well.

Let us--

Unknown Speaker: (Inaudible)

Mr. Orin Christopher Meyers: Sir?

Justice Thurgood Marshall: He is in the military.

Mr. Orin Christopher Meyers: He is in the military, I agree, Your Honor.

Let us apply the two-step inquiry to the facts before us here.

Justice Potter Stewart: And you say that is step one only.

Mr. Orin Christopher Meyers: Step one.

Justice Potter Stewart: And step one is--

Mr. Orin Christopher Meyers: Is this man subject to the Uniform Code of Military Justice?

Certainly, he's a captain on active duty in the Army.

Is this offense sufficiently service-connected to allow Court-Martial jurisdiction?

We feel that, based on this Court's opinion in O'Callahan and Relford applied to the facts in this situation, this offense is clearly not sufficiently service-connected to allow the military to try this man.

Now, we don't say he shouldn't be tried.

What we say is that he should be tried in a Civilian Court where he has his Article 3 and Fifth and Sixth Amendment rights.

Justice Thurgood Marshall: What if one of the other people that Councilman sold heroine to brought it back into the post, would that be military then?

Mr. Orin Christopher Meyers: Let me point out first, Mr. Justice Marshall, we're dealing with marijuana and not heroine.

Now, if Captain Councilman or an individual serviceman off post, off duty, out of uniform sells some controlled substance to another person and that, just by selling it to another person, certainly he's committed a crime, but he should be tried in the Civilian Courts.

If the person to whom he sells it brings it--

Justice Thurgood Marshall: If he brings it back onto the post.

Mr. Orin Christopher Meyers: Then the second man is committed-- has committed the service-connected offense.

The service-connected of--

Justice Thurgood Marshall: Councilman has?

Mr. Orin Christopher Meyers: Councilman has not committed the service-connected offense.

Councilman has--

Justice Thurgood Marshall: So, Councilman sells marijuana at the post on this side of the gate, it's service-connected.

If he sells it on the other side of the gate, it's not.

Yes or no?

Mr. Orin Christopher Meyers: Your Honor, I think the answer to that would have to be yes, all things-- all other things being equal.

Justice Harry A. Blackmun: Why do you say that this is a proper matter for us as a Civil Court when the civilian authorities turned your man over to the military authorities?

And, this is a fact in your case, is it not?

Mr. Orin Christopher Meyers: It is a fact, Mr. Justice Blackmun.

Justice Harry A. Blackmun: And this doesn't jive with your co-council's statement that your local Oklahoma Courts are taking care of these things, do you, day by day?

In my experience, at least my impression anyway, is that the average Civilian Court is eager to have the military take care of their own problems.

Mr. Orin Christopher Meyers: Not in this situation.

Military Courts were fully open for the trial of this particular type of offense.

Justice Harry A. Blackmun: The civilian authorities turned him over to the military.

They didn't want to have anything to do with him.

Mr. Orin Christopher Meyers: They did.

The civilian authorities did turn him over to the military not, I think, because they didn't want anything to do with him.

I don't know why they did it, but I merely say that I know that on many, many occasions the military people are tried in the Civilian Courts for just this type of offense.

It is certainly not the practice of the civilian authorities to turn over people to the military simply because they're in the military for offenses which the military persons commit in the civilian community.

The civilian authorities try them regularly.

Justice Harry A. Blackmun: How many times do you think that New Port knows do the Virginia Courts try public drunkenness of sailors on shore leave?

Mr. Orin Christopher Meyers: I have no idea.

Justice Harry A. Blackmun: To which is it different from Fort Sill?

Mr. Orin Christopher Meyers: Mr. Justice Blackmun, I assure you the situation is different at Fort Sill.

It is the rule that if a serviceman commits an offense--

Justice Harry A. Blackmun: If it's the rule, they wouldn't have turned him over to the Military Courts in this case.

Mr. Orin Christopher Meyers: The military authorities in this particular case particularly requested that Captain Councilman be turned over to them, and I think that the reason is this is a captain.

This is an unusual situation.

There, at least it was to the military, that a captain would be, having something to do with marijuana, I think that perhaps--

Chief Justice Warren E. Burger: In relation with an enlisted man.

Mr. Orin Christopher Meyers: In-- yes.

Justice William H. Rehnquist: Well, is there some basis for thinking that officers are less prone to use marijuana than enlisted men?

Mr. Orin Christopher Meyers: I don't know the answer to that question.

I don't know why the military thinks the way they do, but I merely observed that this is what happens.

Justice Thurgood Marshall: Mr. Meyers, what about this stipulation that many of the military offenders apprehended for drug sales and transfers to scads if a civilian community have been tried by the civilian authorities but some have been tried by the military?

Mr. Orin Christopher Meyers: I merely say that this is-- there were three captains.

There were three captains involved in this particular case.

Justice Thurgood Marshall: We'll they're not talking about this particular case, are they?

Mr. Orin Christopher Meyers: Well, I know that in this particular case--

Justice Thurgood Marshall: In this general statement on page 24, “many of the military offenders apprehended for drug sales and transfers,” that's not talking about this case.

It's talking about the general work of this undercover agent, isn't it?

Mr. Orin Christopher Meyers: That is correct, Your Honor.

The-- sometimes--

Justice Thurgood Marshall: Well, who made the decision as to which ones he gave to the civilian and which one he gave to the military?

Mr. Orin Christopher Meyers: The military.

I see that my time is up.

Chief Justice Warren E. Burger: Your time is up.

Mr. Solicitor General, do you have anything further?

Rebuttal of Bork

Mr. Bork: Mr. Chief Justice, I just wish to respond more fully to Mr. Justice Blackmun's question about the cases.

At the time you asked me, Mr. Justice Blackmun, I was perfectly accurate in saying I did not know of any such cases.

The situation has changed.

On pages 714 and 15 of the government's brief in footnote 4, running over from page 14 to 15, there is a citation of some Civilian Courts that have held drug offenses off post, including a marijuana offense, to be service-connected.

And, in the amicus brief filed by the American Civil Liberties Union on page 14, there is an instance where one military judge held a marijuana offense not to be service-connected.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.

Featured:

Mclucas v. Dechamplain - Oral Argument

Thu, 23 Aug 2012 18:25:45 +0000

Case:

Mclucas v. Dechamplain

Media File:

73-1346_19741209-argument.mp3

Related Transcript:

73-1346_19741209-argument

Transcript:

Argument of Bork

Chief Justice Warren E. Burger: We’ll hear arguments next in 73-1346, McLucas against DeChamplain.

Mr. Solicitor General, you may proceed.

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

This is a direct appeal from the District Court for the District of Columbia.

The posture of the case is changed considerably since the brief were filed and I believe the only issue which is now disputed is the question of the power of the District Court to intervene in a court martial for the purpose of controlling a pretrial discovery protective order.

The background of the case is this.

The appellee is an Air Force master sergeant who was charged by the Air Force with first, conspiring to communicate classified information to an agent of a foreign government, in this case the Soviet Union, in violation of Articles 81 and 134 of the Code of Military Justice and 50 U.S.C. 783 (b).

Secondly, failing to obey an Air Force Regulation requiring the reporting of contacts with foreign agents in violation of Article 92 of the Military Code.

And third, violating 134, the General Article by copying classified documents in violation of 18 U.S.C. 793 (b) and attempting to deliver such documents to an unauthorized person in violation of 18 U.S.C. 793 (d).

This court martial was about to commence when the appellee began an action in the District Court and that Court preliminary enjoined the Air Force from trying appellee Sergeant DeChamplain on any charges laid under Article 134.

I think that aspect of the District Court’s order is now out of this case as I discover from his counsel’s brief.

But secondly, what is in this case is the District Court’s order that the Air Force are not to try the DeChamplain on any charges whatsoever without granting full and unlimited access to certain classified documents.

Justice William H. Rehnquist: Well, the appealability to District Court’s orders to this Court is still on that case?

Mr. Bork: That is in the case and I intend to address it.

It is not however disputed any longer.

I was called by -- on Friday by Mr. Boudin who said that he now agrees that this Court has appellate jurisdiction and I will say a word on the subject because of course that is not a subject to Mr. Boudin and I can’t take out of the case, it’s necessarily in the case.

But the order which the background is an order for complete access to 15 documents from the sergeant’s prior trial which are no longer in this trial, the Government does not intend to rely upon those documents as well as to nine documents which are in this trial.

And the military order which the District Court found inadequate contemplates that Sergeant DeChamplain his military counsel, his civilian league counsel, one associate, one secretary, a foreign policy expert chosen by him and a classification expert chosen by him shall have access to these nine documents, may make notes but the notes must be left in Air Force custody.

And it may be --

Chief Justice Warren E. Burger: And the disclosure is to whom?

That is, after these people get them, make them available in the District Court or in the court-martial proceeding?

Mr. Bork: The District Court orders they may be made available in the court-martial proceeding on these terms.

Chief Justice Warren E. Burger: Not in the District Court?

Mr. Bork: No, Mr. Chief Justice.

The dispute is really about the degree of freedom.

The court martial allows in access to these documents and that’s this appeal followed.

Now, as I say 134 is no longer in the case, the general article but appellee did raise the question of this Court’s appellate jurisdiction under 28 U.S.C. Section 1252.

And we believe that this Court clearly has such jurisdiction.

This Court has discussed in the briefs and discussed it on the merits.

Section 1252 provides direct review from a District Court in any interlocutory order of any court of United States holding an Act of Congress unconstitutional and this Court did hold Article 134 unconstitutional in any civil action where an officer employee of United States is a party.

So, I think the language of Section 1252 covers our case exactly.

Now, the argument appellee made before which raised the issue was that he said that the jurisdiction of the District Court which he’d invoked was in fact faulty because a three-judge District Court was required to consider the constitutionality of Article 134.

And he then proposed that this case go forward on the merits in the Court of Appeals but I should point out of course that if a three-judge court was required the Court of Appeals would not have appellate jurisdiction either except for the purposes of the Idlewild Bon Voyage Liquor Corporation case cited in the brief makes clear to say that the three-judge court was required and send it back with instructions to convene such a court but it could not hear the merits.

Now, we’re not going into a lot of the argument we’ve had on this issue.

I think the central point we agree upon, the appellee agreed even on its prior position and we agreed that no three-judge District Court was required.

If the constitutional question as to the Article 134 was in substantial and I think that it was insubstantial either on the logic that appellee was then using or on the logic that we were using.

Justice William H. Rehnquist: Well, Mr. Bork, where you're appealing from a judgment holding a federal statute unconstitutional under 1252 you don’t find the counter part of 1253’s language where the right to appeal turns on whether or not three-judge District Court was required, do you?

Mr. Bork: Well, no I hope you find the counterpart in the language but I would assume that if there was no jurisdiction in the District Court there might well be a question about the jurisdiction here, perhaps not.

But I think the easiest and shortest way to the resolution of this issue is to show that no three-judge District Court was required and if the problem under the most expensive reading of the substantial question.

Justice Potter Stewart: But therefore the District Court clearly had jurisdiction and that the plain language of 1252 allows an appeal here?

Mr. Bork: That’s quite correct.

The appellee’s argument on this point before was that they did not convene a three-judge District Court because the average decision holding Article 134 unconstitutional was the decision of the DC Circuit and therefore whether it was a three-judge court or to single-judge court made no difference.

It must follow the Court of Appeals’ opinion.

I think if that’s true then there was no substantial question for a District Court to decide and there is no point in convening a three-judge District Court which must automatically a follow Court of Appeals’ decision.

Our argument was somewhat different and it was that -- there was no substantial question because the District Court misunderstood the question before it.

It was not a question about the first two sections of Article 134.

It was simply a question about the third section which is an assimilative crime statute and as to which nobody claims, there's a problem with constitutionality.

So that there was no substantial question before the District Court to decide whether or not the District Court thought so and I think it is indeed the nature of the question rather than the subjective perception of the judge that determine his jurisdiction.

But perhaps we need not even go as far as your question suggest Mr. Justice Rehnquist, but I think if one goes that far it’s quite clear that there is appellate jurisdiction in this Court and that -- as I say that is a subject no longer disputed by appellee.

And of the only question left as I say is the question of District Court control of the pretrial discovery process of the court martial.

And I think it’s quite clear that there is no such power in District Court to intervene at this stage for that purpose.

I think the military justice system has a freedom from intervention on such matter similar to that that the state justice systems have and that intervention is justified only when as Younger against Harris would put it -- various bad-faith or harassment and when the party seeking relief is threatened with irreparable injury that is both great in immediate.

And this case, the District Court made no such findings as a precondition of its intervention and indeed bad faith or harassment were not even alleged.

The fact that the appellee might have to be confined pending the outcome of the military prosecution in any appeals that follow does not constitute, it’s not cognizable as an irreparable injury that's an incident of any criminal process.

And if that were grounds for intervention, federal courts would be intervening all of the time in state and military justice appeals systems.

I think the decision of this Court rather uniformly show that this rule against intervention by Article III Courts in military proceedings as in state proceedings rest upon a cluster of policy factors.

I think some of them are of constitutional dimension and they’re summed up generally in the word exhaustion of remedies and comity.

And I think these policies are so strong indeed that the appellee has not been able to point to a single decision of this Court sanctioning an intrusion like this one into the military justice system.

It’s an intrusion both unique and as continuing because the terms the District Court’s order contain words which must be construed and the District Court could hold itself available for application to continue to supervise the access to document’s problem.

And all of that takes place before the appellee has even been tried much less exhausted his remedies within the military justice system.

Now, let me say here that a great deal of the argument in this brief rest upon I think unjustified denigration of the military justice system.

There is much argument in the brief in the appellee’s brief that military tribunals do not apply all of the procedures that civilian tribunals do which is quite true but that is not a statement that military tribunals are in anyway lax in applying those procedures which this Court and Congress has an appropriate for them.

Similarly, I think in an effort to avoid the plain thrust of cases like Gusik against Schilder and Younger against Harris.

The appellee has tried to argue that any remedy he may have in the military system will be futile.

And that seems to me a very hard claim for a man who’s been convicted ones by a court martial on an espionage charge and has appealed that conviction and has had it reversed by the Court of Military Review and has had that reversal sustained by the Court of Military Appeals.

His real complaint is that he has made three successive petitions for extraordinary relief prior to a second trial and that the Court of Military Appeals has denied them and said that that is extraordinary relief and is not to be use as a substitute for appeal.

There's no reason here to think that should he be convicted upon a second court martial that the Court of Military Appeals and indeed the entire military appellate system would not be fully sensitive to his constitutional claims.

I will discuss only briefly this Court’s opinion in Gusik against Schilder which is really a much stronger case for intervention by Article III Courts because the man there -- the serviceman there had been convicted and had exhausted all of his military remedies.

Afterwards, a new article gave him the right to ask for a discretionary new trial to be given by the Judge Advocate General and that was the only remedy available to him and his chances didn’t look very good, but this Court said that habeas corpus was not available to him until he had exhausted that remedy.

It seems to me that he had a much slimmer chance and adequate remedy at law than does the appellee here.

The Gusik case itself analogized the requirement of exhaustion of military remedies to the similar requirement of exhaustion of remedies within state court systems and I guess Younger against Harris recently decided by this Court shows the strength of that requirement.

There, it was a prosecution of a man under the California Criminal Syndicalism Act, an act of dubious constitutionality and he raised the First Amendment claim.

It would seem to me much more compelling than the appellee’s claim here because his conduct alleged is espionage which does not fall under any constitutionally protected area.

But I think if one analyzes Younger and this case will find them parallel in many respects, there is here not the policy of federalism which Younger found important but there is the constitutional power of Congress to make rules for the Armed Forces which are separate.

There is a same document of equity jurisprudence against restraining criminal prosecutions.

There is the same adequate remedy of law and there's the same absence of a showing of irreparable injury.

There is the same need I think to avoid friction and to avoid disruption of the court martial.

I think in considering this case, one ought to consider what the general principle at stake is.

The general principle is really one that would commence a general removal power from courts martial for constitutional issues.

And the court below when appellee here say that since military courts do not have special expertise on such issues, there is no reason to let them decide them without having a federal court intervene to decide them for them.

That would shell the cases back and forth between the Article III system and the military system in a way that it would be so disruptive and so costly for everybody concerned.

It would be better if the Article III Court simply took over court martial rather than did that.

Now the only reply, the appellee has to all of these occurred I think the heart of his reply is at page 51 of his brief where he strides a string of cases, Billings against Truesdell, Toth against Quarles, Reid against Covert, McElroy agianst Guagliardo, and he cites those for the proposition that this Court has repeatedly sanctioned interference with on going military proceedings to correct fundamental of the constitutional errors.

And I think not, I think not those are all cases in which the person seeking to have a federal court intervene successfully claimed not to be a member of the Armed Forces.

The integrity of the military trial process was not at stake and the intervention to prevent the court martial a person who is not even subject to military law is hardly the same kind of disruption.

In fact, those cases can be decided by the status of the person.

He is a civilian not a military in person and then a further legal question of, may a court martial constitutionally try a civilian under these circumstances which is not all the same of taking a person who is concededly subject to court-martial jurisdiction concededly subject to trial and constantly filtering his constitutional claims out of the military system into the federal system perhaps for full appeal and then back into the military system again.

So far as I can make out that’s about all there is to the appellee’s case that it is a constitutional issue and therefore there's no reason why should at the military courts decide before the civilian courts do.

And we’ve seen that the intention of Congress and all of the policy considerations underlying this Court’s decisions run to the contrary.

There is one thing perhaps I should mention and that is that appellees brief mounts in extents of attack upon the constitutionality of Article 76 of the Code which is the finality provision and says that it’s unconstitutional if it’s interpreted to mean that the only collateral attack possible upon a military conviction is by habeas corpus by persons in confinement.

That gets the appellee into Martin against Hunter’s Lessee and Ex parte McCardle in a very exciting group of cases to teach but I think not relevant for today’s discussion.

We cite Article 76 as evidence of congressional intent that the court martial system be generally free in interference, it clearly is that.

We have argued that habeas corpus is the only permissible form of collateral attack but that’s not necessary for decision of the present case because whatever form of collateral attack maybe available Younger against Harris and Gusik against Schilder for the proposition that it takes place after the exhaustion of remedies in the military system.

Justice Byron R. White: With Younger against Harris as we both know was a premise to great deal upon what the court opinion called in capital letters -- our federalism and that (Voice Overlap) that is not an ingredient here.

Mr. Bork: No, I think there is a comparable not a strong but there is a constitutional value which parallels that in Congress as constitutional power provide special rules and hence special courts for the military and I think all of the policy reasons that are mentioned in Younger against Harris as equally applicable here and I think Gusik against Schilder tends to equate the two systems: state system and the military system in terms of nonintervention -- premature intervention by federal courts by Article III courts.

So I have no doubt that the policy of Younger against Harris is fully applicable here and that policy of course was recognized recently in Parisi against Davidson, a case that appellee cites in that string which it’s distinguishable and which this Court takes particular pains to point out that the policy cited in Gusik against Schilder is not being breached.

And I might say, finally about this point that the appellee who is in confinement I think has no standing to raise the issue of whether Article 76 would be unconstitutional if it were applied to somebody who was not in confinement to prevent him from being habeas corpus.

That may be an issue in some case someday when there is such a person who is blocked by Article 76 interpreted that way but I think the appellee has no standing to raise his case for his purposes in this case.

To return to the main point then what we have before us as I say is simply a question of federal court -- we have before the Supreme Court a question of pretrial discovery and a question in a court martial which hasn’t taken place yet and nothing could show more clearly what a massive disruption of a court and branch of military -- of justice we have here.

I think the clear intention of Congress in the clear policy of the cases of this Court is to let this court martial go forward without interruption.

There is no reason to believe that military tribunals will be insensitive to any of the appellee’s claims and should they -- all of them decide against him and incorrectly he has available habeas corpus as it does anybody wrongfully convicted in another system of justice.

Justice Harry A. Blackmun: General Bork, if this case were not pursued in the military system, where would it be venued if it were in the civilian side?

Mr. Bork: Well, I'm not quite clear where it would be Mr. Justice Blackmun because the offense took place overseas.

I don’t know how we would solve the jurisdictional problem if it were not a military took place in Thailand.

And I am not sufficiently versed to say whether or not we could solve the jurisdictional problem and get them into a civilian Article III Court.

I think that’s been tried before without success.

We think for these reasons of the case ought to be reversed in the complaint dismissed.

Justice Harry A. Blackmun: May I ask you one more question before you sit down.

It’s probably totally irrelevant.

But did anyone formally request Judge Parker for the convening of a three-judge court?

Mr. Bork: No, as I understand that appellee says that they thought it was not necessary because the three-judge court would be bound by the Court of Appeals decision in Avrech.

Justice Harry A. Blackmun: Yes.

Mr. Bork: So that it will have no substantial question to decide in any event.

Chief Justice Warren E. Burger: Mr. Boudin

Argument of Leonard B. Boudin

Mr. Leonard B. Boudin: Mr. Chief Justice and may it please the Court.

We have agreed that the issue in this Court’s jurisdiction should be resolved in favor of it for exactly the reason given by Mr. Justice Rehnquist while the application of Stratton and Idlewild in principle could have dictated a different result.

It’s quite true that 1252 is an ambiguous and in the thicket of three-judge court problems that have troubled the court for so long at least and we have come to the conclusion if this is an issue and which should be resolve in favor of the Court’s jurisdiction.

We see three issues here and the second of which is really not been touched upon by my brother.

The first issue is whether the court martial judges refusal to give civilian defense counsel full access to the prior trial record and to the very documents that other subject of these criminal charges with the violation of the Sixth Amendment right to the effect of assistance of counsel going to the question of the jurisdiction of the court martial under Johnson against Zerbst which we radically we did not cite though it seems the clearest case in point.

The second question which is I say, my brother did not develop an argument with whether or not any collateral review of a court martial decision of this kind, court martial action of this kind.

Other than habeas corpus is permissible at some stage of the proceeding and the third issue which is really the central issue as we see it is whether or not given the circumstances in this particular case, the appropriate remedy of collateral review was by injunction.

Now, the issues have to be decided in the reverse order of that dealt with in our brief and in the Government’s brief because the question of collateral review and the nature of it to with is an injunction needed at an early stage is a function of the nature of the constitutional right involved which we discussed in point one, orally three or five in our brief a function of that right and of what actually happened in this case.

So I turn to the first issue namely the effective assistance of counsel.

This is we know, it’s not an abstract issue.

It must be related to the crime charged 18 U.S. 793 and to the prior history of this case.

We must remember that Sergeant DeChamplain was arrested in July of 1971 charged with a violation of the espionage laws among other things in having conspired to deliver a package of 25 documents to a Russian agent in Indochina.

And that he has been since July 3, 1971 in pretrial confinement, in post-trial confinement and now in pretrial confinement and if the course of events follows which is suggested by the Government here he can very well be in three years more confinement until this case is finally adjudicated again by this Court.

Now, as I said the issue in the case of the effective assistance counsel is determined by the nature of the case.

There are some problems that we had in Powell against Alabama where we know the interference that occurred there.

There are other cases such as Moore against Dempsey where you have a mob scene interfering with the effectiveness of a court.

In the present case, so far as the nine documents are concerned just to take those away from the prior trial record.

We have the -- what may probably he’ll be called the core or the corpus delicti of the case.

These are the documents whose transmittal by conspiracy or attempt is the basis of the charges against DeChamplain.

It is these documents that like any other corpus of the crime whether it’s obscenity book or some other analogy that the Court may consider are being restricted so far as access are concerned.

Now, this would be true in any case as I say in which the very core of the case is being preventive from giving counsel full access.

But we have a very special case here and that is the complexity of 18 U.S.C. 793, the espionage laws.

Your Honors touched on the problem without adequate or virtually any briefing several of the opinion of this Court in United States against New York Times or New York Times against United States Pentagon Papers case.

The Supreme Court -- this Court has passed upon the issue in Garren where it said that the matter must be relate to the national offense to be a crime and in United States against Hunter, Chief Judge Learned Hand added another dimension to the problem, increasing the complexity whether or not the material and those documents were in the public domain.

Now, we had a star example a long-winded and notorious example in the Ellsberg case before Judge Byrne where the most elaborate briefing on the question of the meaning of 793 with engaged in was the subject to the very tentative decision by Judge Byrne and with the subject of our being given access to the documents involved the very top secret documents including many that were never given to the New York Times, that were never published anywhere and that Government consistently insisted, hence the charged to the crime related to the national offense.

We were given those documents as Your Honors will see from this record here without any limitation whatsoever except the word of counsel that the following persons not disclose to the Government were entitled to those -- to examine those papers so that they could advice us as consultants.

And so many of them could testify at the trial and not only where some 20 consultants, an experts testifying at the trial but some 40 people staff members, academician, mimeograph operators and a whole core of lawyers more than probably in any other trial were given copies of those papers -- the so-called national defense documents.

In contrast, the military judge here whose decision is final has said first as Your Honors will see from appendix 61 that he doesn’t think it important that the matters relate to national offense and he will not consider expert testimony on the subject strange ruling in light of the decisions of this Court.

And secondly, the military judge has says that I may examine these documents only in the presence of a person with security classification to include defense military counsel assuming that I retain them because it maybe that Mr. DeChamplain and I may decide to proceed alone.

And with case I will have to have a government security agents watch me as I examine these papers.

I may not have a copy of them.

I must examine them at a “secure” location.

I may not take notes or to be fairer I may take notes where they have to be read by the Government’s security people.

Now, this is -- in this day under our system of justice, with all due respect to the military establishment, I have a high regard for it.

I think the U.S. Court of Military Appeals and the uniformed system of justice are a great advancement over the days in Wellington when he referred to the soldiers are scum.

Great advancement but this is what we have today from this military judge in contrast to the whole procedure.

Now, I may say just to add something that the prosecution counsel are under those such limitation, they have a whole record.

They can examine the whole prior record, the nine documents without limitation and the 15 that made up the package of 24.

So, they and the trial judges of the Government can see these things and I may not.

The suggestion that my military counsel may have a recollection of what they saw before or may even reflect it, refresh it by looking at it.

It doesn’t help because they're not allowed to transmit to me.

I note or verbalism the information in these top security documents.

Now, I will have to contrast this with an obscenity case in which its obvious counsel can course many consultants as he wishes to and not being restricted to two consultants and to two lawyers.

I've selected and assisted in my office, I may not have my partner Mr. Rabinowitz.

Look at these papers whatever his advantages over me may be.

So the result is I'm restricted in number, I'm restricted in place, I'm restricted in making copies and the Ellsberg files are still in my office, I've examined them and the national security so far doesn’t seem to have been imperiled.

Now, with respect to the entire trial record, which is a separate but related point, the trial record as I said is available to the prosecution.

We would’ve the right at one time to look at it under Article 54 (c) which deals with appeals but that right no longer exists here.

These documents of the 15 documents in the prior trial record have to be considered as any lawyer would consider them in deciding to try a second case.

And the fact of the Government decides that it will remove in order to keep me from looking at them 15 documents, how do we solve the problem?

Because those documents may very well be important and the transcripts of the early record may very well to be important for me to decide not on the advice of the Government or in its judgment, for me to decide what is exculpatory.

For example Sergeant DeChamplain, they have and they say that the 24 documents to take a hypothetical thing.

The 24 documents were being taken overnight of people, that people have taken it from the national -- Department of Defense overnight for the purpose of studying them and the 15 happened to be very innocent and that the nine gotten there by error.

I don’t know of what am I hypothesizing.

The fact is that under any consideration of Brady and what it means and the Alderman where in many cases we were dealing with things ancillary to the case.

These are the -- this is the prior trial record of the prosecution of a man who spent three and a half years in jail now and promises than more.

Justice Byron R. White: Do I miss -- if I misrecollected Mr. Boudin and maybe you’ve mentioned this that in this second proposed trial the Government is not going to use that.

Mr. Leonard B. Boudin: The Government is not going to use them they can look at them, they may very well rely upon what was in the prior trial record Your Honor is quite right to determine how to cross-examine DeChamplain.

He may want to get out on the witness stand and testify with respect to the 15 because these were 15 separate entries this was a package deal, it was a conspiracy with respect to 24.

I don’t know what the Government is expurgated from the prior record.

Justice Byron R. White: Well, you do know that though they are not making the same charges.

They have eliminated similar charges.

Mr. Leonard B. Boudin: They have eliminated some of the documents and they say that no longer charging with respect to those 15.

Justice Byron R. White: Right.

Mr. Leonard B. Boudin: But the 15 were part of the original conspiracy and I have a right to direct myself to that original conspiracy which was the basis of the charges and to see what there is in the record that they taken away.

I have to depend on them to decide whether not only the documents have they removed it, they’ve deleted, they say, all references to the documents.

As a trial lawyer or appellate lawyer I'm not willing to rely on the Government’s decision as to what was in the prior record.

And that --

Justice Byron R. White: Now, that it is the entire, is the entire record of the first trial sealed?

Mr. Leonard B. Boudin: Sealed for the Government, my military counsel may look at it but they can’t tell me about it.

Justice Byron R. White: The entire record?

Mr. Leonard B. Boudin: Yes.

I'm only entitled to look at that part of the record which deals with the nine documents in this forthcoming procedure and under the limitations involved and of course I'm only allowed to show as I indicated to a few people.

Now this denial, if Your Honors please, isn’t a procedural matter.

It doesn’t go to the weight of the evidence which Your Honors will recall in Burns against Wilson.

A record that was examined very carefully by the Court of Appeals and this Court accepted that very careful judgment of the Court of Appeals from reviewing the evidence.

This is not a case of military expertise as in Noyd.

This is not even a case of a Fourth Amendment right involved in the Schneckloth against Bustamonte case 412 U.S. where the Court distinguished the Fourth Amendment Right from the right to a fair trial with the assistance of counsel.

This is not even the right of the case of an inability to put on a single particular defense -- the insanity one that was referred to in Wetzel.

This is very close, and I mean no adamant version on counsel for the Government.

We’re dealing here rather with civilize society.

This becomes a mask of a trial when counsel is not permitted to see the full record of a first trial that led to his client’s conviction and where all of these handicaps are placed upon counsel.

Now, Your Honors as I said before at the beginning there is one case that I think is critical here because it states basic principle and it was Mr. Justice Black’s very early opinion in the Johnson against Zerbst case where he said and we now go to the question of when you interfere with a court martial, a court’s jurisdiction at the beginning of trial may be lost in the course of proceedings to the failure to complete the court -- complete the court.

Justice William H. Rehnquist: Johnson against Zerbst was federal review of federal court?

Mr. Leonard B. Boudin: Precisely Your Honor and it is quite true.

Complete the court by pro -- but the issue of jurisdictions seems to be fundamental.

Complete the court by providing counsel for an accused was unable to obtain counsel etcetera, etcetera and repeatedly Your Honors will see the words where a counsel is limited as handcuffed one way or the other or counsel is isn’t supplied.

Then, jurisdiction of the Court is affected.

Now, I will pass from this point, passed over the question of collateral review generally which was very thoroughly dealt within our brief and turn to what is the problem raised by the Solicitor General namely why injunctive relief and wasn’t there in Younger case.

In answer to that, I call Your Honor’s attention not only to the majority opinion but to the opinion of Mr. Justice Stewart concurred in by another justice of the Court, Mr. Justice Harlan but limiting myself to the majority opinion or the moment.

First, the principle of federalism as Your Honor Mr. Justice Stewart pointed out was I think central.

I think equally relevant in the case was the fact that there was federal statute, which it didn’t have to decided an application which govern the question of injunctions against state courts.

I think thirdly if we take Younger --

Justice Byron R. White: Yes, but Younger wasn’t based on that statute at all?

Mr. Leonard B. Boudin: No, it was not.

Justice Byron R. White: It could have been?

Mr. Leonard B. Boudin: The court pointed out but it did not mention the statute at the beginning as an indication of federal policy.

Justice William H. Rehnquist: Well, Mitchum against Foster though held that the Civil Rights Act was an exemption to that statute and so it said nonetheless Younger applied independently of the statute and only Younger applied in that kind of a situation?

Mr. Leonard B. Boudin: Right.

That I can’t answer Your Honor because I don’t know the case but if I may pursue the Younger things, limiting myself for the moment to Younger.

In the Younger case, the Court did of course leave open the question of irreparable injury and I do not think one can read Younger as requiring malice on the part of Government to establish irreparable injury.

The Court in Younger was concerned about attacking a statute on its face where you are dealing with two problems as pointed out.

One, it was a statute and a statute of another sovereignty of the states.

And secondly, it was attacking on its face.

Justice Potter Stewart: Well, that was Boyle against Landry in which it was attacked in the United States.

Mr. Leonard B. Boudin: But and the Younger was likewise.

Justice Potter Stewart: Younger was trying to enjoin a trial?

Mr. Leonard B. Boudin: Yes.

It tried to enjoin a trial on a ground that a statute is unconstitutional and this Court said in the majority opinion that constitutionality of the combination of the relative remoteness of the controversy.

The impact on the legislative process of the relief sought and above all the amorphous nature of the required line by nine analysis of the statute used.

I'm quoting from the words of this Court and the problems that veto of a legislative process and I point out we’re dealing here not with the legislative process or the tribunal which should not have the same weight as a state legislature and we have nothing amorphous about this.

This Court knows now as Judge Parker did below exactly the extent of the ineffectiveness of counsel that is predictable in this case and as far as irreparable injury is concerned let us consider what will really happen.

There has already been a trial overturned very properly by the U.S. Court of Military Appeals for constitutional error.

There will be a second trial if this Court on analysis agrees with us at this kind of hampering of counsel which didn’t exist in Copeland, which didn’t exist in Garren, which didn’t exist in Ellsberg, which has existed in no other case, espionage case.

The Copeland was collateral they said before and this kind of limitation upon what counsel can do before a court martial is improper.

Then, they will ultimately be a third -- a second trial -- a third trial because that conviction will be set aside and we’ll be back with the third trial whatever new constitutional problems the Government may oppose by its behavior.

Now, I submit Your Honors --

Justice Potter Stewart: Of course, if they’re irreparable injury is enough then Younger is meaningless because you have to show irreparable injury to get ever get any injunction from any court of equity under any circumstances --

Mr. Leonard B. Boudin: I do not think so, Your Honor.

I rely on --– sorry.

Justice Potter Stewart: That’s just a foundation for ever getting an injunction you have to show irreparable injury and a lack of an adequate remedy at law.

Mr. Leonard B. Boudin: But we also have here the problem of the constitutional right of the defendant and whether or not he is to be tried before a tribunal.

Moore against Dempsey, Johnson against Zerbst and I suspect the Powell against Alabama to occur today this Court would recognize I think in any of those situations that an injunctive relief could be issued even as against the state court.

Your Honors’ opinion, on concurring opinion Younger against Harris which I remind Your Honor is based upon a statute and the concern of attacking a statute is very different here from the concern with respect to a military tribunal or any tribunal.

And Your Honor said, irreparable injury both great and immediate if the statute were patently and flagrantly unconstitutional on its face.

That’s what Your Honor said there in the concurring opinion.

Now, here we do not have the problem of a statute.

We have the problem of what a military tribunal is going to do.

This brings me to the point of the relationship between military tribunals and federal courts on the one hand and on the other hand the relationship between state courts and federal courts.

A different approach has been taken and I think will be taken or should be taken by since I may not predict by this Court when we deal with the question of military tribunals as against state tribunals.

We have to remember that the states as this Court has said and others have said where the original basic repositories of our constitutional rights.

With all the improvements that have occurred in military courts, they are still, they still have the military influence even up to the U.S. Court of Military Appeals.

With all of the tradition, this Court has said several times in Parisi, referred to by the Solicitor General and as said also in Noyd and elsewhere and that runs right through that the line that in terms of military expertise, the courts will defer it to the military.

Justice Thurgood Marshall: Well, as a matter of fact the court said no jurisdiction before Burns, did they?

Mr. Leonard B. Boudin: Exactly.

Justice Thurgood Marshall: Absolutely none in Burns as a recent case?

Mr. Leonard B. Boudin: Burns was a recent case in which the Court examined the record and --

Justice Thurgood Marshall: For the first time?

Mr. Leonard B. Boudin: Yes.

Justice Thurgood Marshall: In a military case?

Mr. Leonard B. Boudin: Exactly.

Exactly and in that case, the Court essentially agreed that there was no merit.

I don’t think the Court was right and I stand by the views expressed by Mr. Justice Frankfurters’ concurring opinion and by the dissenting justices.

I refer Your Honor is particularly that Mr. Justice Frankfurters’ concurring opinion where he adopted the view on jurisdiction that I have just suggested to Your Honors that the denial of counsel and those other errors Mr. Justice Frankfurter was concerned with effects that jurisdiction of a tribunal.

Justice Thurgood Marshall: But the Solicitor General said the habeas corpus is just fine even in this case.

Mr. Leonard B. Boudin: Well, the Solicitor General says habeas corpus is fine even here but we have just gone through to trial and I am suggesting that if collateral review is ever proper and I will accept this concession such as it is that is proper.

This is the time to have the collateral review because our client is presently in present, he didn’t have that Younger against Harris.

Our client has gone through one unconstitutional deprivation of right.

Our client will if Your Honors agree and I think Your Honors will on this substantive issue we are going into a trial and knowing that the tribunal does not have jurisdiction if you accept my premises.

And we are going to have a third trial and we've been denied the relief by the army from imprisonment even pretrial imprisonment under their system and a District Court in a case which we have appealed has affirmed to district judges’ decision even though there’s no danger of a client disappearing.

So, for these reasons, I submit to Your Honor that if you agree that these limitations on counsel unknown to any civilian court, federal or state without precedent at all dealing with the core of the case, dealing with the most complexes statutes, weeks was spent in preparing the proposed charges for Judge Byrne in the Ellsberg case on when 793 applies and bearing in mind the military judge statement that all of these is irrelevant despite Garren, despite Heine.

I submit that if there is a case in our universe in which an injunction is the proper remedy and sometimes it is the proper remedy this case against a military judge not a statute, not a state court this case against the military judge it calls for the injunctive relief we have sought.

I thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Boudin.

Do you have anything further Mr. Solicitor General?

Rebuttal of Bork

Mr. Bork: Just to make the observation Mr. Chief Justice that in this case, there is no charge that anything in military done has done has not been done in good faith and that what is being told to us here is that we must take this case in a rather hypothetical basis now and discuss the constitutional issue had we followed this procedural all the way through.

Mr. -- Sergeant DeChamplain’s original court martial would’ve been stopped while we litigate that the use of his statements in the first court martial up through this Court’s and then went back to the court martial.

Justice Potter Stewart: Is the entire record of that original trial under seal?

Mr. Bork: I believe it is Your Honor on a need to know basis.

Justice Potter Stewart: Everything?

Mr. Bork: It is and the -- nothing that the documents used in that original trial because of the access problem are not going to be use 15 that were not going to be use in this trial and that only nine documents are going to be used in this trial.

My point is simply is although Mr. Boudin complains about the necessity to go up to a court martial and have an appeal and come back and be retried.

That happens in many systems of the justice and the alternative he offers us is federal court intervention whenever the constitutional issue arises in a court martial.

So that you will have massive disruptions perhaps never complete these trials.

Chief Justice Warren E. Burger: Would it be fair to say Mr. Solicitor General unless has been said so far in this case that the more sensitive the material involved in an alleged espionage case the less possibility there is of successful prosecution?

Mr. Bork: Well, if the rule is, Mr. Chief Justice, that no limitation of any source upon the use of notes is ever possible then of course it follows that more sensitive the material the less possible it is ever to prosecute anybody because if sensible limitations can’t be use upon the review with which the documents flow to the world and which notes are allowed out to flows to the world then I think prosecution is often impossible.

I regret that I was not in the Ellsberg case and cannot draw parallels between the protective order there and the protective order here perhaps the documents were of different sensitivities.

Justice Lewis F. Powell: Mr. Solicitor General, what restrictions if any were imposed with respect to the nine documents that are to be used in the trial?

Mr. Bork: The restrictions as a matter stands now Sergeant DeChamplain -- the military restrictions imposed by Sergeant DeChamplain his military counsel, his civilian league counsel, one associate I believe, one secretary, one foreign policy expert and one classification systems expert may all have access to the documents.

They may not take the documents home with them, they can work on them under Air Force with the documents have remained in Air Force custody in that sense.

They may work on the documents there, they may make notes.

The notes if they are sensitive must be left in Air Force custody as I understand it.

I don’t think Mr. Boudin suggested that Air Force would be reading his notes.

I suppose that there can be a protective order worked out so that doesn’t happen.

But there is considerable access to these documents by a counsel, military and civilian by the client and by experts.

Now, it may turn out ultimately when if this case is tried and facts are all developed, it may turn out that some court will think that not an adequate access.

I don’t think that question and be decided on this kind of a record at this time and that’s a very strong argument against intervening -- having a federal court intervene to try to solve it that problem now before --

Justice Thurgood Marshall: General Bork, it’s not that it’s important but why have the secretary look at it, he can't copy it?

Mr. Bork: Well, you can --

Justice Thurgood Marshall: You have a call on that?

Mr. Bork: I think Mr. Justice Marshall that they can make notes and I suppose the secretary can take dictation from it if they wish and write the notes up.

I suppose that's the reason, I suppose it's a -- an effort to --

Justice Thurgood Marshall: Secretary has very low clearance of -- I just don’t understand why the secretary agreed, not that it’s important to this case.

Mr. Bork: Well, I don’t know why they negotiated the secretary into the deal Mr. Justice Marshall.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Parisi v. Davidson - Oral Argument

Thu, 23 Aug 2012 18:19:18 +0000

Case:

Parisi v. Davidson

Related Transcript:

70-91_19711020-argument

Transcript:

Argument of Richard Goff

Chief Justice Warren E. Burger: Parisi against Davidson.

You may proceed whenever you are ready counsel.

Mr. Richard Goff: Mr. Chief Justice may it please the Court.

Trying to pick up where we left off yesterday.

The government has pointed out in its brief that the various branches of the armed services have promulgated regulations, which provide for an elaborate administrative review machinery of conscientious objector application.

Now, in this case, the petitioner in cases like a petitioner has already completed an exhausted that elaborate administrative review of machinery.

It is important to focus on the fact that his habeas corpus petition challenges and seeks review of the validity of that administrative determination.

It is not a situation like was present in the Gusik case or the case of Noyd v. Bond, which the petitioner in habeas corpus.

And, the petitioner was brought to challenge and seek review of alleged invalidity or asserted errors in the military criminal proceedings which were pending against the petitioner.

Here, on the other hand, the petitioner asserts in Court a right to discharge of the conscientious objector, which right is independent of those criminal proceeding.

It is not depended on any invalidity of those proceedings.

But, rather it arises from the wrongful administrative denial of his application for discharges of conscientious objector without basis and fact.

So the government’s reliance on the exhaustion of court-martial that was required in Noyd v. Bond and in Gusik v. Shilder.

We believe it is completely inapplicable and I think the government itself recognized this only two years ago.

In a memorandum, which the Solicitor General submitted to this Court in the case of Craycroft v. Ferrall, a memorandum which we were not able to discover until yesterday that in clerk's office.

But, in that particular case the department -- the Solicitor General stated very specifically Department of Justice had determined to withdraw its support of the position previously urged in the brief in our position in Noyd v. McNamara that military judicial remedies must be exhausted before resort by a serviceman with conscientious objector claims to civilian courts.

Unknown Speaker: Is there a reference to that in the governments brief?

Just to remember that.

Mr. Richard Goff: I think the government’s brief, as I recall refers to the Craycroft situation as one in which the government at that time withdrew its insistence that -- or any reliance on the proposition that a conscientious objector applicant must resort to the military correction boards before seeking review in a federal courts.

I would like to continue quoting, if I may from --

Unknown Speaker: I want to be sure that we have what you are quoting from--if that is the one we want to look at later.

Mr. Richard Goff: Well, I do not think it is in the appendix or in the appendix to the government’s brief Your Honor.

What it is in the memorandum of the Solicitor General in Craycroft v. Ferrall number 718 miscellaneous October 23, 1969 and in that memorandum the Solicitor General stated that nothing in this policy undermines the general rule urged by the government and adopted by this Court in Noyd v. Bond that military prisoners must ordinarily exhaust all available remedies within the particular service before seeking review on a habeas corpus petition in a federal civilian court.

Unknown Speaker: Where is the -- in what state is the administrative procedure application?

Mr. Richard Goff: The application in this particular case, Your Honor.

Unknown Speaker: For--

Mr. Richard Goff: Parisi case?

Unknown Speaker: Yes.

Mr. Richard Goff: Well, in the Parisi case--

Unknown Speaker: Is that been exhausted--

Mr. Richard Goff: The administrative process has been completely exhausted.

Parisi had even exhausted the requirement for the Ninth Circuit was then imposing of also applying to the army board for correction of military records.

Unknown Speaker: Yes, but beyond that he can go where?

Mr. Richard Goff: Beyond that he can go nowhere within the administrative process and under accepted doctrine of the federal courts he has the right to come in to the court on habeas corpus to review the validity of that administrative denial.

Unknown Speaker: On a conviction, he can go through the -–

Mr. Richard Goff: On a conviction, the case is presently under submission for the court of military review.

Unknown Speaker: From there he can go --

Mr. Richard Goff: The conviction referring, he would have an appeal -- I understand that there is not as a right, but at least to right to seek in appeal from the court of the military appeals.

Unknown Speaker: And, the court of military appeals exercised sort of certiorari jurisdiction?

Mr. Richard Goff: That is my understanding Your Honor, yes.

The Department of Justice did say, and this is the key point into this last memorandum.

It is simply our view shared by the Department of Defense that resort to Court’s Marshall should not be required before we do judicial review of a conscientious objector claim can be obtained.

Now, I recognized the right of the government to change its mind.

But, I really think they were right the first time, because I would submit that the exhaustion requirement, which they would now seek to impose, that is the demand exhaust military criminal proceedings against him.

In the first place serves none of the purposes, which underlie the exhaustion requirement, as it has been previously been developed by this Court.

The government has conceded that requiring resort to Court-martial remedy would not serve any purpose of allowing an administrative agency or the military tribunal to develop a fact record, to exercise administrative discretion, to apply any expertise to factual questions or even to special questions of military law.

Such was -- as was also emphasized by this Court in Noyd v. Bond.

Furthermore, the requiring resort to Court-martial on this here, it is not necessary to avoid a judicial intrusion into -- or judicial intrusion upon or preemption of an agency to which either congress or the military has confided the primary responsibility for deciding or reviewing the basic question, which is now being presented to the federal court.

The agency was responsible to decide that question.

That is the secretary of the army has already decided it and we now seek in federal court, the review of that particular determination, so there is no effort here to disrupt the administrative decision making scheme, which has been set up by the statute.

In fact, if the government were serious about the claim that exhaustion is necessary to avoid conflict with the military or to allow the military to correct its own errors.

Then, I would have thought that the government would have continued to insist that a serviceman appealed to the army board for correction of the military records after the secretary of the army has denied his claim for conscientious objection.

But, as we know in Craycroft the government expressly conceded that such appeal was not necessary and followed the Brooks versus Clifford decision, which held that you require a petitioner to undergo the delay some four months going to that kind of a board would work really intolerable interference with his right to come into Court and have access to the Court on habeas corpus for swift review of the validity of the administrative denial of its conscientious objection claims.

Finally, I would like to point out that the exhaustion requirements was the government lives assert here would operate in a very random hit or miss and rather discriminatory manner.

For example, obviously resort to Court-martial on this would not be required in those cases and we sited some in our brief as examples, where after the administrative denial of the conscientious objector application is taken place, the military itself chooses not to insist on ordering a man to a new duty assignment or revokes pending orders.

So, that the man can come into Court and present his habeas corpus petition.

Nor would be applicable where in cases, and we have also cited examples, where although a military defense had been committed and the military and its discretion decides not to press the charges.

Furthermore, the government has conceded that it would be applicable under its standard only in those cases where the Court-martial might be willing to entertain the defense.

And this results in some rather perverse distinction because apparently means that the right of quick federal review on habeas corpus would be available to the man who jumps the gun and commits the military offense, before his application for field discharge has been finally processed and denied, but would not be available to the man who waits until after it is denied and then commits this offense.

Similarly, if apparently would be available to the man who disobeys a simple order, such as to put on your uniform or to cut the weeds behind the post building.

But, apparently would not be available and the writ would be suspended as to someone who disobeys a more serious order, such as to go to Vietnam.

And what it all boils down to, I think is that the army’s denial of the application could be completely without basis in fact.

Totally wrongful and the man would have a clear right to come into Federal Court on habeas corpus to get released and yet a military commander, by subsequently giving that man an order of a particular kind.

Apparently, a rather major kind and then going ahead and prosecuting a man for the disobedience of that order, could effectively bring about a suspension of the right to go to Federal Court.

But, now, of the course, the man could obey the order and then apparently he would not -- his right would not be suspended.

I think that only demonstrates another perverse aspect of the exhaustion requirement which the government seeks to require.

Namely that operates most harshly on those whose conscientious objector convictions are most sincere, because in this case for example if Parisi has been willing to compromise, what he felt were his conscientious objector beliefs and obeyed this particular order, then under the government’s position and under the Court of Appeals position he would been able to come into Court and according to both the Court of Appeals and the government it seems quite likely in this record that he would have received a relief on the merit that he was seeking.

Unknown Speaker: Well, this order was totally consistent, I understand with the tentative conclusion at least of the Ninth Circuit Justice.

Justice Douglas that such an order would not put him any closer to acting military activities, is that correct?

And he would not -- he knew that.

Mr. Richard Goff: That is correct and it is consistent with those tentative conclusions.

But, I think that if we were to say, first of all what we were trying to do at that particular time was to get either the District Judge or the Circuit Justices or Justice Douglas to exercise discretionary power to grant temporary injunctive relief, which obviously depends on several factors such as the likelihood of success on the merits, of balancing the conveniences in determination, whether there is other adequate relief and to say, that our failure to get that relief before there had been any kind of determination on the merits of his conscientious objector claim, should later operate in effect to bar him from getting into Court to review the merits of that claim.

I think would be totally anomalous, I think Justice Douglas in his own decision said, if it were clear that applicant would win on the merits or further protective order at this time would be appropriate.

Well, it was not clear at that time.

But, I submit that the failure to get temporary relief should not operate.

First, to bar the man from eventually coming into Court and having his claim as conscientious objector determined on the merits.

Furthermore--

Unknown Speaker: It caused me a little bit trouble here that this disobedience of an order, was something separate and apart from his conscientious objector claims.

At least in the tentative view of those members of the judiciary who had said his moving him to Vietnam to continue this holy non military activity in the army, that was not inconsistent with his conscientious objector claim and not -- no different from his caring on the same basic non military activity with the army here state side.

Mr. Richard Goff: You Honor, I realized that those with the tentative conclusions of the justices who passed on the application, I would submit that no one other than Mr. Parisi himself could finally make the determination as to whether that order did in fact violate his conscientious objector beliefs.

He has stated in an application --

Unknown Speaker: But if the order had been, what if the order had been totally unrelated to any conceivable claim of conscientious objection, such as could pick up that toothbrush or could have that cigarette butt.

Mr. Richard Goff: Well, apparently in that case the government would concede that since the defense of conscientious objection or wrongful denial of conscientious objector application would not be entertained by the Court-martial, that the man would have a perfect right to come into federal court and have the administrative denial of his application reviewed.

Unknown Speaker: Well, in the mean time there were -- let us assume my kind of case and there was a prosecution for willful failure to disobey a lawful order.

Then, if he won in the United States District Court on habeas corpus then he could never be prosecuted for that because he could be a civilian.

Mr. Richard Goff: Alright, all I am suggesting Your Honor is that the basic thing that (Voice Overlap)

Unknown Speaker: I wonder-- I would like to appreciate an answer to my question in your own way --

Mr. Richard Goff: I would give you an answer for that question.

The basic thing that we think that a man has the right to under any circumstances, regardless of the pending military criminal proceedings against him is a right to immediate review in the federal court of the wrongfulness or the validity of the administrative denial of his conscientious objector application.

Now, if the Court does make the incrimination, if the application would deny that basis in fact, then we would say that the question of what kind of relief the District Court is to grant after having made that determination and if the Court for example would have found that it is quite clear that an order to a new duty assignment would not had been given to the man, had the military originally granted his application, as it should have done, then I think it would be quite arguable to District Court that the right of discharge ought to be recognized and should cut across in the military criminal prosecution.

On the other hand, if the District Court found that the man disobeyed an order which the Court--or which the army could have given to him, even while they were processing him out, is the distinction that suggested by the government by itself also, I might add--then the Court might well say, the right to discharge shall be recognized.

But, it shall be subject to the military prosecution against him.

Unknown Speaker: Intervening military prosecution?

Mr. Richard Goff: I think that is a perfectly sensible resolution of this particular problem.

I think our brief discusses also, the fact that in addition to the government's failure to show any compelling government interest, supporting the suspension of the right to habeas corpus in this case, they have also completely failed to show either an available or adequate remedy to seek the kind of relief the petitioner does seek in the District Court and for the reason stated in brief and today in oral arguments, we respectfully request that the decision of the Ninth Circuit be reversed and the case be remanded.

So, the petitioner finally can have his day in Court on the merits of his claim.

Unknown Speaker: Mr. Goff, would you have the same argument if the crime he was accused of, the military crime, he had committed was stealing a car or murder?

Mr. Richard Goff: Yes, I would Your Honor.

I would make the same argument that the right to come into Court, to have the Court review the wrongfulness of the denial of the discharge application should be recognized right now.

And, that the question of what to do about that prosecution for stealing the car is the question which pertains to the relief of the District Court is going to grant.

I think that the Ninth Circuit is quite clearly recognized that in its recent Bacher v. Makimer (ph) of the McNamara case, cited in our reply brief which said that even if the right to discharge would not be immediate that the Court should immediately review the underlying claim of the wrongfulness of denial of conscientious objector application and then under the habeas corpus statute should impose the case--

Unknown Speaker: Presumably conviction of a -- for such a crime would mean a discharge anyway and dishonorable?

Mr. Richard Goff: Well, I think at the right starting Court of course is the right to - -an order directing the army to discharge and has the conscientious objector.

Unknown Speaker: Yes, but he has committed a crime which is unrelated to the conscientious objector.

Mr. Richard Goff: I think again, this is a kind of question that the Court could get into determining what relief to give a man.

I think that as the Ninth Circuit had said the Court shall make the basic determination on the merits and shall then dispose off the case on just as required.

I think that we can allow our District Judges to adopt appropriate remedies to take into account these varying circumstances which might come up.

The basic right to review is what we seek in this Court.

Chief Justice Warren E. Burger: Thank you Mr. Goff.

Mr. Bray.

Argument of William Terry Bray

Mr. William Terry Bray: Mr. Chief Justice and may it please the Court.

At the outset let me emphasize that the government’s position does not attempt to support the denial of petitioner’s right for review in the civilian courts at some point in time, the question rather is when should that review occur.

Specifically, the question is whether the District Court erred in the exercise of its discretion by deferring action on the petitioner’s habeas corpus claim pending the completion of military judicial proceedings, where those proceedings had before them the very issue which had been presented in the habeas corpus proceeding and where it was reasonably to be expected that the military not only would pass on that, but that if it accepted the petitioner’s position, the petitioner would receive all of the relief, which he sought in the District Court.

This, we think brings into play the traditional doctrine of exhaustion of military remedies which this Court explained both in Gusik and later in Noyd versus Bond and that the decision below is quite appropriate and should be affirmed.

Chief Justice Warren E. Burger: Well, the administrative remedy had been exhausted?

Mr. William Terry Bray: That is correct.

However, at the time the administrative remedies were exhausted and when the habeas corpus action came before the District Court for its action on the merits.

The petitioner had committed a Court-martial offense and that offense was inextricably caught up with his claim to be a conscientious objector and indeed the military has always taken the position in this case that that order would be an unlawful order and thus, he would not be subject to Court-martial.

If he were improperly denied his conscientious objector application would be a (Voice Overlap) process.

Unknown Speaker: Mr. Bray, what if instead of the -- an order to go Vietnam, the violation of an order to go to Vietnam, what if the military prosecution had been as my brother White suggested before, stealing the money from a fellow soldier, what would your position be, and if otherwise everything was as it is in this case?

Mr. William Terry Bray: There would be no need then to stay the habeas corpus action, with respect to essentially collateral review of the administrative determination by the military.

Because the military system itself would not be engaged in collateral review of that same decision.

That really is what we are saying is happening here.

The military judiciary--

Unknown Speaker: What would be the result in my hypothetical--?

Mr. William Terry Bray: The result if he were convicted of murder --

Unknown Speaker: No, just, had there been a conviction and it was on appeal, as I say all the other fact as they are in this case except that the offense which he was charged was stealing, was larceny rather than violation of an order to go Vietnam.

Mr. William Terry Bray: The position of the military is that if the civilian courts ordered his discharge from the army, he would be discharged immediately.

Even if he were under Senate's confined convention.

Unknown Speaker: What would your position be in my hypothetical case with respect to the timing of the habeas corpus hearing in the federal district court?

All it is that outside of your argument, that the only issue here is one of timing, is one of plan.

Mr. William Terry Bray: It could be heard immediately without any waiting at all for the proceedings in the military system.

Unknown Speaker: Well, now in this case as I understand it, according at least to the tentative view of the Circuit Justice and of the others who passed on, this order was not inconsistent with his claim of conscientious objection and so, to that extent it is equivalent in law to the offense of stealing and it is unrelated to his claim of conscientious objection.

That is what Mr. Justice Douglas in effect held tentatively at Circuit Justice.

Mr. William Terry Bray: As a tentative matter however, our position is that the determination is not final at that point and further that the lawfulness of the order is not premised strictly on whether or not the order conflicts with his conscientious objector status, but, rather whether the order was given as a direct result of the denial of that conscientious objector status.

Unknown Speaker: Well, any violation in the service would be direct or indirect result of the army's refusal to let him out.

He would not be in the army to receive an order to pick up a cigarette if he had been released as a conscientious objector, would he?

Mr. William Terry Bray: That is not quite right, because even if he were granted his application as administrative matter, there would still be a period of time during which he would be processed for a discharge, and during that period of time he is subject to the type of order which we say would not be the type that would delay civil proceedings.

He would have to wear a uniform during that period of time.

He would have to clean up his quarters during that period of time.

He would have to cit the grass if told to do so during that period of time.

That is the distinction we think between the two.

The Court of Military Appeals, highest Military Court has held that the type of order which is subject to challenge on the ground that the administrative proceeding was without basis and fact, is one that grows directly out of and is based on the administrative decision.

No change in duty station, that if the type of order that he is involved here, would ever be given --

Unknown Speaker: Except I wonder if he should try to interpose the defense of -- as he did in this court-martial proceeding and it was disallowed, because the trial Court held that there was a basis and fact for the administrative decision.

Not allowing his conscientious objector claim, but I suppose on appeal, it could very well be argued that this not a relevant defense to this order anyway since it is already been held by this one member of this Court in a tentative way that the order was quite consistent with his conscientious objector claim.

And therefore, disobedience of the order, he cannot justify disobedience of the order on the basis of his conscientious objection.

Mr. William Terry Bray: Whether or not the order was within the confines of his conscientious scruples is not the test.

The test rather is whether the order grew out of the denial of the application and even though it maybe completely consistent as the judiciary -- the civilian judiciary has tentatively decided with his claim to be a conscientious objector.

Nevertheless, it is subjected to being defended on the basis that it would not have been given, but for this administrative decision and that administrative decision is without basis and fact.

Justice Thurgood Marshall: (Inaudible) in that case he had put in no defense in the court-martial?

Mr. William Terry Bray: If he put in no defense in this case, our position generally I think would be that there should be an opportunity for him to do so, once it is beyond the point where it could be brought into the military proceedings then, there would be no exhaustion required beyond that point.

That would mean at the very least that a decision would have to be rendered by the court-martial, given an order that could be challenged on this ground for such as the order --

Justice Thurgood Marshall: If he had not put in any defense, would he still be barred from the habeas corpus?

Mr. William Terry Bray: Until the point in time when he was unable to put in that defense, yes.

Justice Thurgood Marshall: No, this is not unable, he just said I will not put in any defense, then how can you say that grows out of the order?

Grows out of the seal business.

Mr. William Terry Bray: What grows is out of the seal business is--

Justice Thurgood Marshall: How could you say if then, he puts in no defense?

Mr. William Terry Bray: What grows out of it if his refusal to obey the order.

Now, he chooses not the defend his disobedience of the order on that ground, then after the court-martial has handed down its judgment against him.

Then, the civilian courts could go forward with it and indeed I might point out that that is essentially--

Unknown Speaker: (Inaudible) the military conviction?

Mr. William Terry Bray: That conviction, yes they could if they found that the order there was one that grew out of (Voice Overlap)

Unknown Speaker: So, you are merely saying the defendant then has the choice of the forum.

Mr. William Terry Bray: No, I am not suggesting that.

Unknown Speaker: You can either putting his defense in the military court, which is he then -- it must be exhausted there or he can forgo the defense and take the risk and go to the federal court, which defends that aside his court-martial conviction.

Mr. William Terry Bray: It could, now that would bring up I think the different question whether because he had willfully failed to raise a possible remedy within the military system, he should be barred from bringing it into the civilian courts.

That is not our case and that is not my position at this point in time.

Frankly, I do not know what position would be of the government if that situation should be presented.

Our position is that he has defended in this case and indeed the issue not only was argued to his court-martial.

But was--or is before the court of military review and he is defending the lawfulness of his order on the ground that it was directly a result of the administrative denial and the collateral attack on that administrative denial on the basis in fact test is before the military tribunals.

That we think is the traditional circumstance in which this Court has approved the lower courts in their awaiting the outcome of the military decision before going forward on the precise issue that is involved before the military?

This of course essentially is grounded on considerations of comity.

The Court has frequently stated that civilian court should not intervene, if there is an available remedy within the military court system and if that remedy might provide the relief which the petitioners is seeking in the civilian courts.

The reason of course is that the petitioner may well be successful in the military courts and in that event it would be absolutely no need for the civilian courts to get involved at all, thus avoiding any needless friction between the two separate judicial systems.

Further, this is not, at this point in time, a situation where the civilian court has said they cannot act on this matter.

It rather, truly is more on only of timing.

In this case, the issue is involved in the military proceedings, the court-martial proceedings, which are in the Military Judicial Courts and decision there on precisely the same standard as is supplied in the civilian courts can be expected.

And, the decision below only is to await that decision before it goes forward.

Justice Byron R. White: Would you have the same position as there has been though -- the military offense until he has exhausted his administrative remedies on military and is entirely habeas corpus and the petition is gone to hearings, then he commits an offense and a court-martial proceeding begins.

Mr. William Terry Bray: Our position there I believe Mr. Justice White, would be that he can go ahead and get heard and decide in the--

Justice Byron R. White: Well, in this difficult traditional argument about comity between --

Mr. William Terry Bray: That is right, that is it all it is at this point in time.

That is all it is ever been.

Justice Byron R. White: Whether it is just sort of -- whoever gets there first or conservation of judicial resort --

Mr. William Terry Bray: Principally, that is what involved.

We believe there are some additional factors involved but that is the basic one, which was before this Court in Gusik and Noyd versus Bond.

Unknown Speaker: How about res judicata, generally speaking that is a doctrine that is inapplicable to habeas corpus, as we both know, but the defense to the court-martial is not a habeas corpus and let us assume that it was determined by the Court of the Military Appeals that the defense is invalid, because there was a basis in fact for the administrative denial of his conscientious objector claim.

Now, that would be in a case between the United States and--that between the United States Army and this man, Parisi.

Now, could have that any res judicata effect in a subsequent habeas corpus hearing in the federal district courts?

Mr. William Terry Bray: The policy of the military, as stated that we think, properly stated in the regulation in our appendix.

When a civilian court determines that a serviceman was improperly denied discharge without a basis and fact, the military system will discharge him on that ground, regardless of the outcome of the military litigation.

Unknown Speaker: So this is the opposite --

Mr. William Terry Bray: No, I am saying that even if there were --

Unknown Speaker: A final determination.

Mr. William Terry Bray: A final determination from the Court of Military Appeals and then the civilian courts held that he was entitled to discharge -- the military would discharge.

Indeed, the Goguen decision that also is reproduced in our appendix, involved a very similar circumstance where the claim had been denied through the court of military review and was pending in the Court of Military Appeals when the civilian court acted and the Court of Military Appeals dismissed the suit on the ground that the issue had been decided by the civilian courts and a fellowship therefore be discharged.

Unknown Speaker: It was in my case, I am assuming a prior determination by the Court of the Military Appeals that there is a basis in fact.

Mr. William Terry Bray: The same result would follow, the servicemen would be discharged on the basis of the civilian court's order.

Unknown Speaker: And, how about -- would the army interpose the defense to the habeas corpus action and he sort of reached to a counter defense?

Mr. William Terry Bray: That has not been -- either their policy as stated by the regulation or their policy in practice.

They have processed the discharge properly in those circumstances.

Unknown Speaker: Well, I am talking about that conviction in our case, the Parisi's case, there has been a conviction.

Let us assume now it is affirmed on appeal all the way up and upon a finding that there was in fact, a basis for denying his conscientious objector claim.

Now, you say this case involves only a matter of plan, a matter of timing.

So now, the federal habeas corpus proceeding goes forward in the federal district court with the army command and say, “Mr. District Judge we have a defense to this action, because it has been determined by the highest military authority that there was a basis in fact for denying this man discharge.”

Mr. William Terry Bray: They have not done that and as a matter of their --

Unknown Speaker: (Inaudible)

Mr. William Terry Bray: Could they do that?

Unknown Speaker: What is the function of habeas (Inaudible)

Mr. William Terry Bray: There suppose could be an argument made that once that the two systems are completely autonomous and once a decision has been made in the military system, it cannot be reviewed in the civilian courts, at all.

We do not make that argument in this case.

Unknown Speaker: (Inaudible)

Mr. William Terry Bray: That is correct.

Justice William J. Brennan: It only reads that point --Is the government suggesting that habeas would not be available --

Mr. William Terry Bray: Absolutely not Mr. Justice Brennan that is a--

Justice William J. Brennan: I would think that you admit frankly, you could not make that argument.

Mr. William Terry Bray: We certainly have not and we would not--

Unknown Speaker: Why do you even suggest that it might --?

Alright now, --

Mr. William Terry Bray: I do not mean to suggest that it is about my client.

The position of the government is that even though a decision had been handed down by the Court of the Military Appeals, the highest Court that would not be binding in the subsequent habeas corpus action in the district court, the civilian district court.

And, that the Court then could order, could find that there was no basis in fact, in order of discharge and if the army would properly discharge the fellow on that basis.

Unknown Speaker: This is where you abduct your theory and tomorrow the man could exhaust every military administrative procedure on a serial claim and loses, and notifies that he is going for habeas, all you have to do is to transfer him to Vietnam.

Mr. William Terry Bray: I do not think that is right for -- let me explain to you, this case I think indicates what the remedy should and would be in that circumstance.

The military man is not going to be subjected to orders that -- or should not be subjected to orders, which are inconsistent with his claimed status.

Here, the District Court tried to protect him on that basis and entered a protective order barring the army from ordering him to do things of a greater degree than what he was doing.

Psychological counseling.

He was going to Vietnam to be a psychological counselor and the civilian judiciary by the Ninth Circuit and by the Circuit Justice determined that was no greater burden on him than what he had been doing in California.

And thus, refused to stay the order.

If on the other hand, he was given an order to use an example to go take a rifle training or something of that sort --

Justice Thurgood Marshall: Your only point of denying the federal court jurisdiction on habeas corpus is of the fact that he has been questioned, right?

Mr. William Terry Bray: That is right.

Now, it is not a denial--

Justice Thurgood Marshall: So, that is if in the future any time somebody wants to go on to federal court, is through court-martial, is that right?

Mr. William Terry Bray: Mr. Justice Marshall let me suggest --

Justice Thurgood Marshall: I hope you do not mean that.

Mr. William Terry Bray: That is not what I mean.

Justice Thurgood Marshall: You should not.

Mr. William Terry Bray: For two reasons, first of all, the army -- there are means of challenging the army’s order before he is subjected to court-martial just as the petitioner here attempted to do and then unilaterally, on his own, he decided that the order could not be obeyed by him and did not obey it.

After the civilian courts had an opportunity to review it and refused to stay it.

Secondly, the order involved here is one that grew directly out of the army’s denial of his application.

They would not have transferred him to Vietnam or anywhere else for that matter.

If so long as that application was pending.

Thus the order itself is inextricably caught up in the claim and for that reason he can defend it.

And, for that reason the military courts have decided to accept a collateral challenge to a administrative determination within the military and consider whether or not that administrative action has any basis in fact.

That of course is precisely the issue which he is presenting to the civilian courts now by means of habeas corpus and we think the military court should be able to go forward.

There are -- I think some other reasons that involved here besides the comity alone, which suggest letting the military system run its course before the Court below acts as it has done.

Chief Justice Warren E. Burger: Before you get to that, Mr. Bray.

Could he lawfully be transferred, once a habeas corpus proceeding had commenced?

Mr. William Terry Bray: Subject to that Court’s control, yes sir just as what happened here.

Chief Justice Warren E. Burger: But without that court's control, he could not be transferred to Vietnam after he started the habeas corpus proceeding, could he?

Mr. William Terry Bray: I believe he could.

There is nothing that would prevent the military from transferring him wherever it is all fit, so long as its -- either its regulations did not prohibit and they would not in that circumstance to my knowledge.

Chief Justice Warren E. Burger: But, the rules have something to say about that, about transfers, certainly by the criminal case is generally.

Mr. William Terry Bray: Well, of course here the petitioner sought to have his transfer stayed, because he was concerned that the Courts would loss jurisdiction, which would seem to me to imply that he did not have anything other than a Court order to keep him from being transferred.

The Court refused to stay it on the ground one that army agreed to bring him back into the Judicial District if he won on appeal and further under the protective order that the Court is previously in.

Unknown Speaker: He has been ordered to be transferred to Florida or some other place, without any increase in (Inaudible) and he refused that orders and then the army that he was court-marshaled, whether that would be the (Inaudible)?

Mr. William Terry Bray: The army’s position is that no duty station transfer will be ordered --

Unknown Speaker: In just a matter of--

Mr. William Terry Bray: To a CO.

Unknown Speaker: It is just a matter of military law.

Mr. William Terry Bray: That is right.

Unknown Speaker: Is it a regulation or--?

Mr. William Terry Bray: It is a regulation.

Unknown Speaker: Well, may I ask you Mr. Bray.

Mr. William Terry Bray: Yes, sir.

Unknown Speaker: I guess for federal detention, the habeas remedy is available, not alone for constitutional denial for those who have the violation to Federal Laws, then how they affect (Inaudible).

Have you suggested that the habeas remedy would be available to -- after he had exhausted the administrative remedies and the court-martial remedy and all of that, would be available, at that point in time, to review this.

Now, what would be the claim in habeas, that the determination and court-martial has violated a constitutional right or a statute--the Federal Statute, what would it be?

Mr. William Terry Bray: The claim would be the same as has been made at this point in time that is that the administrative determination was without basis in fact and that the order which in sued and for which disobedience of which he was convicted, grew directly out of that.

Unknown Speaker: Well, I know -- what did that stem from, it, must be a basis in fact or a denial of conscientious objector.

Is that constitutional or is that --?

Mr. William Terry Bray: Yes, the claim is that without a basis in fact he has been denied Due Process of law and that has been accepted in the Courts, at this point in time, but we are not disputing it here.

Unknown Speaker: What is the source of the setting aside the court-martial conviction that the CO claim is sustained, is that a fact -- I guess that was basically the court-martial enforcing a military regulation.

Mr. William Terry Bray: That is correct, the court-martial’s attitude is that if the order grew out of the administrative denial and that is without basis in fact then the order itself--

Unknown Speaker: Well, is that regulation to enforce a statute --

Mr. William Terry Bray: I would presume it would, yes sir.

The regulation is binding on the military statute.

Unknown Speaker: What handle under the federal habeas corpus then bring the suit?

Mr. William Terry Bray: Speaking of course for petitioner here, but my understanding of his position is and this has been accepted in the Courts generally that the denial of administrative remedy available within the military that does not have basis in fact is a denial of the due process.

That is a constitutional claim that entitles to him to have it set aside.

But, we have not as I say I challenged that in this Court or elsewhere at this point in time.

The other aspects of this, which indicate to us that the district court below was quite proper in awaiting the outcome, of course are tied up in the fact that this is a court-martial proceeding that the petitioner did on his own decide to disobey an order that he had received prior approval at least in the sense of refusing to stay it by the civilian system.

And, that this goes to the very heart of what a military system is all about and the obedience and duty that are necessary to that system.

The military should be able to go forward with its disciplinary actions and try to decide the issue itself.

Further, the underlying issue of course is the administration of the army’s regulations.

The military law that is involved in this case, while the military courts do not have any peculiar expertise with respect to the basis in fact test.

A test that it will be applied in the collateral review of the administrative determination, they do, we submit, have expertise with regard to the military generally and the military's administration of its regulations and thus, might well be able to bring knowledge to bare on this questions, as well as give guidelines that might promote uniformity within the military itself or the administration of this regulation.

All of which suggests that the military be allowed to go forward.

Further, we are not persuaded by the petitioner’s arguments that there has been a wrongful denial here and such that it should be set aside.

First, let me emphasize that this is not a question.

This is not a case in which the court-martial proceedings had not been brought when the habeas corpus action came before the Court for its action.

Here, the petitioner had disobeyed the order and the court-martial was imminent at the time the district court considered the habeas corpus petition on its merits.

While the Court have previously stated its consideration of it that had been in terms of letting the administrative proceedings run their course and that was a matter, separate and apart from the court-martial itself.

Now, this of course distinguishes this case from the Second Circuit's case of Hammond versus Lenfest.

And, our policy is in agreement with the Hammond position.

That is that where they are no court-martial proceedings pending, there is no exhaustion required within the military tribunals.

That is shown in our appendix, I believe it is at page 61 and that is our policy position on this that we will not require that, but we consider the two cases significantly different.

Secondly, the delay involved in this case of course is inherent in the exhaustion doctrine itself.

The whole purpose of it as a part of this case is merely to postpone, the action by the civilian courts, until such time as the military has a chance to clean its own house if that is required.

If a mistake has been made and to pass on the same issue that is before the civilian courts.

The underlying issue of the validity of the administrative determination, whether or not the petitioner is a conscientious objector of course is very much alive.

It is not conceded by us at this point in time and it is not conceded on this record that he is entitled to his conscientious objector claim.

That is still a matter before competent tribunals, all be it military ones at this point in time in our judgment.

Just as it was at the time the stay was denied by Mr. Justice Douglas in December of 1969.

Finally, the delay which a petitioner has gone through here is something which we do not find particularly burdensome on him, because, the order of District Court of course, has been enforced throughout this period, he could not have been subjected to government -- I beg your pardon, military duties any greater than his psychological counseling duties at the time this all started.

Further--

Unknown Speaker: Where is he now?

Mr. William Terry Bray: Where is he now?

He is at home now, to my knowledge.

At least he is not on any military reservation precinct to orders.

He has finished serving his confinement which was remitted partially and his own excess leave status, which means that he is outside of the military in present time, although subject to its jurisdiction, until such time as the decision from the military tribunals is final.

Unknown Speaker: They are getting paid?

Mr. William Terry Bray: Is he getting paid?

I do not believe if he is getting paid.

This excess leave status does not count, is not charged against him as leave time.

It is not credited against his service in the military and I would understand from that he is not paid during the time either.

There would have been means, whereby he could have gotten out of confinement during his time, had he sought to do so.

The records, we have been able to check, indicate that he did not seek to do so.

Although, the standard on which he would have done so, is essentially a discretionary one up to his commanding officer both wherever he is held in confinement.

As well as, the convening authority so long as it has jurisdiction over it.

Yet he could have applied for that and did not.

In any event, as I say the confinement is not what he was complaining of, it was rather activities inconsistent with the CO claim.

Lastly, if I can mention briefly, we do think of course that there are remedies within the military system for petitioner, both with respect to the consideration of the issue, which he has brought before the Court.

We think it is beyond doubt that issue will be considered in the military tribunals as it has so far been considered.

It was considered on the merits by the court-martial itself, while that authority found that it was -- that the administrative denial was not an abuse of discretion.

We think it has -- for all practical purposes, which essentially the same is the basis in fact and it is very clear that the Court before which the appeal is now pending, the Court of military review will consider on that test.

Unknown Speaker: On what test?

Mr. William Terry Bray: On the basis and fact test.

The Goguen decision, which is in our appendix, very clearly states that--

Unknown Speaker: I am not clear at all about that, I assumed you have covered it from your brief, but I miss something, I have been looking for -- the military standard of conscientious objector and our decision in (Inaudible).

Mr. William Terry Bray: It is covered in our brief and also covered in the Goguen decision which is reproduced as appendix D at our brief and the base, the test, which the military will apply, this has been a developing area, the regulations themselves are very recent origin having coming into being in 1962.

But, the test has developed and it is very clear now that the test that will be applied is a basis and fact test, exactly the same as that applied in the civilian courts.

That is the holding of Goguen that it will --

Justice William O. Douglas: There is nothing in the record I see is on page 40, in the appendix, that is the letter from the alleged General, Major -- that has a flavor of different kind of a test.

Mr. William Terry Bray: Let me refer you to page 39, as well Mr. Justice Douglas and particularly that footnote.

While the court-martial itself --

Chief Justice Warren E. Burger: Is page 39 of the brief or --

Mr. William Terry Bray: Yes, sir I am sorry.

Are you referring to the appendix?

I am referring to our brief at pages 39 and 40.

While the court-martial itself stated that it would consider this as not being an arbitrary unreasonable abuse of discretion, as we say there, we do not think that really is any different from a basis and fact test and in any event that is the matter which undoubtedly will be corrected if any error would be committed there by the court of military review, which is fully competent to correct this, since is really a legal decision.

Unknown Speaker: That is a certiorari jurisdiction?

Mr. William Terry Bray: No, no.

The court of military review is a mandatory review and that is where (Voice Overlap)

Unknown Speaker: On conscientious objector?

Mr. William Terry Bray: Yes, well it has chosen -- it had stated that it will review conscientious objector claims, also as a mandatory matter and that is where the case is now.

That the certiorari type jurisdiction is in the Court of Military Appeals, the third step in the proceedings.

But the Goguen decision, in our appendix, is a court of military review.

The same Court before which he now has his appeal pending and it is clear from that decision that the test will be precisely the same as that applied on the civilian courts.

Lastly, we think that the he will, as a practical matter, receive the relief.

He is requested in the district court.

If he wins in the military courts, he will be discharged.

We think that not only as a matter of our regulations, but also as a matter of the Court's supervisory powers in any event the District Court here has retained jurisdiction only until the court-martial is final.

That would occur when the decision -- when a filed decision is reached in the military tribunals and at that point in time if he has not gotten the relief he wishes, surely the District Court would grant it to him.

Unknown Speaker: (Inaudible)

Mr. William Terry Bray: Yes, sir.

Unknown Speaker: (Inaudible) puzzled about, what kind of habeas this is?

This is certainly not 2225.

Mr. William Terry Bray: As I say, I am not sure what kind of habeas it is by virtue of the fact that the petitioner -- that is the petitioner’s case.

My understanding of the basis on which this was brought in the Court is -- that he has been denied Due Process of law, because the administrative determination is without basis and fact.

Unknown Speaker: The reason I asked is 2255 requires a selective procedure under that section --

Mr. William Terry Bray: It is not a 2225--

Unknown Speaker: In any Court by the Congress.

Mr. William Terry Bray: Counsel advises that the action was brought under section 2241.

Unknown Speaker: That is the original habeas?

Mr. William Terry Bray: Yes, sir.

Unknown Speaker: Why the military court established (Inaudible)?

Mr. William Terry Bray: Yes sir, they are certainly are.

Unknown Speaker: On the basis of 2225 --

Mr. William Terry Bray: The articles reproduced in our appendix that established these courts.

Articles 66 and 67 as military courts and these are holdings to that fact.

Unknown Speaker: Well, why is habeas corpus -- I am just -- I am not judging in the -- but on page 55 it is said that application for an habeas corpus will not be entertained unless, the 2255 -- the 2255 remedy has been sought in the Court would sentence those --

Mr. William Terry Bray: Well, this is not an attack on the court-martial.

This is an attack on the administrative determination and our position is that the collateral attack on the administrative determination is pending in the military courts in connection with a court-martial proceeding.

And, that comity as well as other consideration suggests that the civilian courts not act until that is completed.

Unknown Speaker: This is a habeas corpus.

I appreciate you are being asked in a way to speak for your brother on the other side.

But, I assume this is brought under Title 28, the United States Code 2241.

Mr. William Terry Bray: That is correct.

Am I advised by counsel?

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Bray, Mr. Goff you have one minute to enlarge that a little bit, I will give you three, if you need it.

Rebuttal of Richard Goff

Mr. Richard Goff: Thank Your Honor.

Counsel has said that the only question here is when can petitioner get access to the federal court on habeas corpus to review his claim.

The petitioner on May 22, 1969 first submitted to the army his application for a discharge of the conscientious objector.

The processing of that application continued until November 1969 when it was denied.

It was after that the petitioner tried to come into federal court and secure the swift, prompt adjudication of the legality of the contention which is contemplated by the habeas corpus statute.

The delay is incident to requiring resort to the court-martial process would be several months before trial for in this case.

Several months until such time, the court of military review can review the case.

I realize at that time, it is perhaps more in this case than it usually be.

But, in many cases cited by the governments, the delay has been at least a year from the court-martial until review by the Court of military review and in our view and of course, beyond that to the Court of military Appeals and only if the Court of Military Appeals point if it all can the petitioner ever get the discharge, which he seeks in the federal court promptly.

And, it is very doubtful in our view that if he ever did get a discharge.

Administrative discharge is result of the court-martial process.

Unknown Speaker: What would you say those times of the administrative procedure through this Office of the Secretary has been completed by what date?

Mr. Richard Goff: In this case those procedures were completed by November 1969.

Unknown Speaker: On what basis is the habeas --

Mr. Richard Goff: The habeas was filed almost immediately, but that was suspended, because under the --

Unknown Speaker: Yes, I trying to get the date.

Mr. Richard Goff: The habeas was filed late in November 1969.

Unknown Speaker: Now, when was the order -- disobedience of which he was court-martialed?

Mr. Richard Goff: That was in December of 1969.

Unknown Speaker: After the filling of the habeas corpus?

Mr. Richard Goff: After the filling of the habeas corpus petition.

Unknown Speaker: So, there is the habeas petition then which pending when the order was issued, he disobeyed the order and then the court-martial proceedings.

Mr. Richard Goff: That is correct and it was not until the denial by the Army Board for correction of military records, that under the Ninth Circuit's view at that time, he was able to comeback in the federal court to seek review on the merits and it was that time he was meant by the Government's stay in motion.

Unknown Speaker: The suspension was because that he had not gone to the board for correction --

Mr. Richard Goff: At that time and until very recently in their Bacher versus Makimer (ph) opinion, the Ninth Circuit required the serviceman, even after denial by the Secretary of the Army to go on appeal to the Army Board for correction.

Unknown Speaker: Now, before the proceedings before that board had been completed that the order was issue and he disobeyed it.

Mr. Richard Goff: That is correct, Your Honor.

Unknown Speaker: And so while that was pending before the board for correction of military regulation --

Mr. Richard Goff: That is correct, because ironically the military regulation (Voice Overlap)

Unknown Speaker: Had the court-martial begun before that board had completed its proceeding?

Mr. Richard Goff: I think the charges had been lodged and the petitioner was incarcerated into stockade.

The trial did not occur--incidentally the trial did not occur until after district court’s order in this case, so certainly at the time of the district court’s order, the petitioner was not at that time advancing this defense in the court-martial proceeding.

I think it would have been extremely imprudent for him to fail to do so, under to the terms of district courts order.

But again, the whole possibility--

Unknown Speaker: Was very--the military proceeding had begun --

Mr. Richard Goff: The charges had been preferred.

The trial took place shortly after District Court's order staying these particular proceeding.

Unknown Speaker: When was the court-martial conviction?

Mr. Richard Goff: Court-martial conviction, as I recall would be April of 1970.

Unknown Speaker: 1970?

Mr. Richard Goff: That is correct.

Unknown Speaker: And it is still pending on the military court review, there has been a great deal of delay there why?

Mr. Richard Goff: There has been some delay, Your Honor is the result of extension in the time sought by petitioner's counsel.

We do not represent, but he does have other counsel, who had sought extensions.

But, even absence of those extensions, it seems to us just looking at many cases, the government had decided, an 11 to 12 month delay is not unusual at all.

And, we think that that kind of delay is completely inconsistent with the purpose of the writ of habeas corpus.

Unknown Speaker: Yes, but the -- and these extension is sought by the petitioners counsel, who ought to understand, there is not -- different counsel for what on what grounds or for what --

Mr. Richard Goff: I understand that the extensions were sought on the ground that he simply had not any time yet to complete the brief and to present it to the Court.

Unknown Speaker: That Court is not being asked to stay -- pending the determination of this case, is it or is not it?

Mr. Richard Goff: No is not.

The case is under submission, petitioner’s counsel did waive oral argument, so the case is under submission I think for two months and the letter in the appendix estimates that September at least -- I am sorry as of an earlier time, two to four months delay could be expected.

Chief Justice Warren E. Burger: Thank you Mr. Goff, Mr. Bray.

The case is submitted.

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