# O'Callahan v. Parker (395 U.S. 258)/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
395 U.S. 258
James F. O'CALLAHAN, Petitioner, v. J. J. PARKER, Warden.
Certiorari to the United States Court of Appeals for the Third Circuit
No. 646. Argued: January 23, 1969. --- Decided: June 2, 1969.
Mr. Justice Douglas delivered the opinion of the Court.
Petitioner, then a sergeant in the United States Army, was stationed in July 1956, at Fort Shafter, Oahu, in the Territory of Hawaii. On the night of July 20, while on an evening pass, petitioner and a friend left the post dressed in civilian clothes and went into Honolulu. After a few beers in the bar of a hotel, petitioner entered the residential part of the hotel where he broke into the room of a young girl and assaulted and attempted to rape her. While fleeing from her room onto Waikiki Beach, he was apprehended by a hotel security officer who delivered him to the Honolulu city police for questioning. After determining that he was a member of the Armed Forces, the city police delivered petitioner to the military police. After extensive interrogation, petitioner confessed and was placed in military confinement.
Petitioner was charged with attempted rape, housebreaking, and assault with intent to rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice. He was tried by court-martial, convicted on all counts, and given a sentence of 10 years' imprisonment at hard labor, forfeiture of all pay and allowances, and dishonorable discharge. His conviction was affirmed by the Army Board of Review and, subsequently, by the United States Court of Military Appeals.
Under confinement at the United States Penitentiary at Lewisburg, Pennsylvania, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging, inter alia, that the court-martial was without jurisdiction to try him for nonmilitary offenses committed off-post while on an evening pass. The District Court denied relief without considering the issue on the merits, and the Court of Appeals for the Third Circuit affirmed. This Court granted certiorari limited to the question:
'Does a court-martial, held under the Articles of War, Tit. 10, U.S.C. § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?' 393 U.S. 822, 89 S.Ct. 177, 21 L.Ed.2d 93.
The Constitution gives Congress power to 'make Rules for the Government and Regulation of the land and naval Forces,' Art. I § 88 cl. 14, and it recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply. The Fifth Amendment specifically exempts 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger' from the requirement of prosecution by indictment and from the right to trial by jury. (Emphasis supplied.) See Ex parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 2, 16, 87 L.Ed. 3. The result has been the establishment and development of a system of military justice with fundamental differences from the practices in the civilian courts.
If the case does not arise 'in the land or naval forces,' then the accused gets first, the benefit of an indictment by a grand jury and second, a trial by jury before a civilian court as guaranteed by the Sixth Amendment and by Art. III, § 2, of the Constitution which provides: in part:
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.'
Those civil rights are the constitutional stakes in the present litigation. What we wrote in United States, ex rel. Toth v. Quarles, 350 U.S. 11, 17-18, 76 S.Ct. 1, 5-6, 100 L.Ed. 8, is worth emphasis:
'We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
'Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.'
A court-martial is tried, not by a jury of the defendant's peers which must decide unanimously, but by a panel of officers empowered to act by a two-thirds vote. The presiding officer at a court-martial is not a judge whose objectivity and independence are protected by tenure and undiminishable salary and nurtured by the judicial tradition, but is a military law officer. Substantially different rules of evidence and procedure apply in military trials. Apart from those differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger.
A court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved.
That a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants, is necessary to an effective national defense establishment, few would deny. But the justification for such a system rests on the special needs of the military, and history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty. This Court, mindful of the genuine need for special military courts, has recognized their propriety in their appropriate sphere, e.g., Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, but in examining the reach of their jurisdiction, it has recognized that
'There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. * * *
'Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to 'the least possible power adequate to the end proposed." United States ex rel. Toth v. Quarles, 350 U.S. 11, 22-23, 76 S.Ct. 1, 8, 100 L.Ed. 8.
While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court-martialed, courts-martial as an institution are singularly inept in dealing with the nice subleties of constitutional law. Article 134, already quoted, punishes as a crime 'all disorders and neglects to the prejudice of good order and discipline in the armed forces.' Does this satisfy the standards of vaguencess as developed by the civil courts? It is not enough to say that a court-martial may be reversed on appeal. One of the benefits of a civilian trial is that the trap of Article 134 may be avoided by a declaratory judgment proceeding or otherwise. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while a military trial is marked by the age-old manifest destiny of retributive justice.
As recently stated: 'None of the travesties of justice perpetrated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.' Glasser, Justice and Captain Levy, 12 Columbia Forum 46, 49 (1969).
The mere fact that petitioner was at the time of his offense and of his court-martial on active duty in the Armed Forces does not automatically dispose of this case under our prior decisions.
We have held in a series of decisions that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times of both the offense and the trial. Thus, discharged soldiers cannot be court-martialed for offenses committed while in service. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8. Similarly, neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282; Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279; nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, may be tried by court-martial.
These cases decide that courts-martial have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the connection between their offense and the concerns of military discipline. From these cases, the Government invites us to draw the conclusion that once it is established that the accused is a member of the Armed Forces, lack of relationship between the offense and identifiable military interests is irrelevant to the jurisdiction of a court-martial.
The fact that courts-martial have no jurisdiction over nonsoldiers, whatever their offense, does not necessarily imply that they have unlimited jurisdiction over soldiers, regardless of the nature of the offenses charged. Nor do the cases of this Court suggest any such interpretation. The Government emphasizes that these decisions-especially Kinsella v. Singleton-establish that liability to trial by court-martial is a question of 'status' 'whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces." 361 U.S., at 241, 80 S.Ct., at 301. But that is merely the beginning of the inquiry, not its end. 'Status' is necessary for jurisdiction; but it does not follow that ascertainment of 'status' completes the inquiry, regardless of the nature, time, and place of the offense.
Both in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion. Abuses of the court-martial power were an important grievance of the parliamentary forces in the English constitutional crises of the 17th century. The resolution of that conflict came with the acceptance by William and Mary of the Bill of Rights in 1689 which established that in the future, Parliament, not the Crown, would have the power to define the jurisdiction of courts-martial. 1 W. & M., Sess. 2, c. 2. The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes.
Parliament, possessed at last of final power in the matter, was quick to authorize, subject to annual renewal, maintenance of a standing army and to give authority for trial by court-martial of certain crimes closely related to military discipline. But Parliament's new power over courts-martial was exercised only very sparingly to ordain military jurisdiction over acts which were also offenses at common law. The first of the annual mutiny acts, 1 W. & M., c. 5, set the tone. It established the general rule that
'noe Man may be forejudged of Life or Limbe, or subjected to any kinde of punishment by Martiall Law or in any other manner than by the Judgment of his Peeres and according to the knowne and Established Laws of this Realme.'
And it proceeded to grant courts-martial jurisdiction only over mutiny, sedition, and desertion. In all other respects, military personnel were to be subject other manner than by the Judgment of
The jurisdiction of British courts-martial over military offenses which were also common-law felonies was from time to time extended, but, with the exception of one year, there was never any general military jurisdiction to try soldiers for ordinary crimes committed in the British Isles. It was, therefore, the rule in Britain at the time of the American Revolution that a soldier could not be tried by court-martial for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court. Evasion and erosion of the principle that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not military, courts, if any were available, were among the grievances protested by the American Colonists.
Early American practice followed the British model. The Continental Congress, in enacting articles of war in 1776, emphasized the importance of military authority cooperating to insure that soldiers who commt ted crimes were brought to justice. But it is clear from the context of the provision it enacted that it expected the trials would be in civil courts. The 'general article,' which punished '(a)ll crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war,' was interpreted to embrace only crimes the commission of which had some direct impact on military discipline. Winthrop *1123. While practice was not altogether consistent, during the 19th century court-martial convictions for ordinary civil crimes were from time to time set aside by the reviewing authority on the ground that the charges recited only a violation of the general criminal law and failed to state a military offense. Id., *1124, nn. 82, 88.
During the Civil War, Congress provided for military trial of certain civil offenses without regard to their effect on order and discipline, but the act applied only 'in time of war, insurrection, or rebellion.' Act of Mar. 3, 1863, c. 75, § 30, 12 Stat. 736; Rev.Stat. § 1342, Art. 58 (1874). In 1916, on the eve of World War I, the Articles of War were revised, 39 Stat. 650, to provide for military trial, even in peacetime, of certain specific civilian crimes committed by persons 'subject to military law' and the general article, Art. 96, was modified to provide for military trial of 'all crimes or offenses not capital.' In 1950, the Uniform Code of Military Justice extended military jurisdiction to capital crimes as well.
We have concluded that the crime to be under military jurisdiction must be service connected, lest 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits on an indictment by a grand jury and a trial by a jury of his peers. The power of Congress to make 'Rules for the Government and Regulation of the land and naval Forces,' Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights. We were advised on oral argument that Art. 134 is construed by the military to give it power to try a member of the armed services for income tax evasion. This article has been called 'a catch-all' that 'incorporates almost every Federal penal statute into the Uniform Code.' R. Everett, Military Justice in the Armed Forces of the United States 68-69 (1956). The catalogue of cases put within reach of the military is indeed long; and we see no way of saving to servicemen and servicewomen in any case the benefits of indictment and of trial by jury, if we conclude that this petitioner was properly tried by court-martial.
In the present case petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection-not even the remotest one-between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control, as are some of our far-flung outposts.
Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post, or the integrity of military property.
We have accordingly decided that since petitioner's crimes were not service connected, he could not be tried by court-martial but rather was entitled to trial by the civilian courts.
Reversed.
Mr. Justice Harlan, whom Mr. Justice Stewart and Mr. Justice White join, dissenting.

## Notes

* ↑ Article 80 of the Uniform Code of Military Justice (10 U.S.C. § 880) provides in part:
* ↑ Under Art. 25(c) of the Uniform Code of Military Justice, 10 U.S.C. § 825(c), at least one-third of the members of the court-martial trying an enlisted man are required to be enlisted men if the accused requests that enlisted personnel be included in the court-martial. In practice usually only senior enlisted personnel, i.e., noncommissioned officers, are selected. See United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3, motion for leave to file petition for certiorari denied, 380 U.S. 970, 85 S.Ct. 1349, 14 L.Ed.2d 281. See generally Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Catholic U.L.Rev. 171 (1966).
* ↑ At the time petitioner was tried, a general court-martial was presided over by a 'law officer,' who was required to be a member of the bar and certified by the Judge Advocate General for duty as a law officer. U.C.M.J. Art. 26(a). The 'law officer' could be a direct subordinate of the convening authority. Manual for Courts-Martial, United States, 1951, g(1). The Military Justice Act of 1968, 82 Stat. 1335, establishes a system of 'military judges' intended to insure that where possible the presidig officer of a court-martial will be a professional military judge, not directly subordinate to the convening authority.
* ↑ For example, in a court-martial, the access of the defense to compulsory process for obtaining evidence and witnesses is, to a significant extent, dependent on the approval of the prosecution. United States v. Harvey, 8 U.S.C.M.A. 538, 25 C.M.R. 42, approving Manual for Courts-Martial, United States, 1951, 115a. See Melnick, The Defendant's Right to Obtain Evidence: An Examination of the Military Viewpoint, 29 Mil.L.Rev. 1 (1965).
* ↑ See, e.g., the cases listed in Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S.Res.No. 260, 87th Cong., 2d Sess., 780-781 (1962), in each of which the Court of Military Appeal reversed court-martial convictions on the ground of excessive command influence.
* ↑ See Reid v. Covert, 354 U.S. 1, 36, 77 S.Ct. 1222, 1240, 1 L.Ed.2d 1148.
* ↑ For sobering accounts of the impact of so-called military justice on civil rights of members of the Armed Services see Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S.Res.No.260, 87th Cong., 2d Sess., Feb. 20 and 21, March 1, 2, 6, 9, and 12, 1962; Joint Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Am ed Services Committee, 89th Cong., 2d Sess., on S. 745 et al., Pt. 1, Jan. 18, 19, 25, and 26, March 1, 2, and 3, 1966, and Pt. 2. For a newly enacted Military Justice Act see 82 Stat. 1335. And see Summary-Report of Hearings on Constitutional Rights of Military Personnel, by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S.Res.No. 58, 88th Cong., 1st Sess. (1963) (Comm.Print).
* ↑ The record of historical concern over the scope of court-martial u risdiction is extensively reviewed in Mr. Justice Black's opinion for a plurality of the Court in Reid v. Covert, 354 U.S. 1, 23-30, 77 S.Ct. 1222, 1233-1237, 1 L.Ed.2d 1148. See also, Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand.L.Rev. 435, 441-449 (1960); F. Wiener, Civilians Under Military Justice (1967) (hereinafter cited as Wiener).
* ↑ See Reid v. Covert, 354 U.S. 1, 23-26, 77 S.Ct. 1222, 1233 1235, 1 L.Ed.2d 1148.
* ↑ See Wiener c. 1.
* ↑ The Mutiny Act of 1720, 7 Geo. 1, c. 6, provided that a soldier could be court-martialed for 'any Capital Crime, or * * * any Violence or Offense against the Person, Estate, or Property of any of the Subjects of this Kingdom, which is punishable by the known Laws of the Land' unless the civil authorities within eight days of the offense demanded that the accused soldier be turned over to them for trial. In November 1720, the law officers of the Army relied on this new provision of the Mutiny Act to give an opinion that it was proper to try a soldier in Scotland-where ordinary civil courts were functioning-by court-martial for an offense which would have been murder if prosecuted in the civil courts. See Wiener 245-246. The very next year-perhaps in response to that ruling, Wiener 14-the provision was eliminated and did not reappear. The 1721 Act and its successors provided for military trial of common-law crimes only where ordinary civil courts were unavailable. See Prichard, The Army Act and Murder Abroad, 1954 Camb.L.J. 232; Wiener 14, 24-28.
* ↑ Failure to produce a soldier for civil trial was military offense by the officer concerned. E.g., British Articles of War of 1765, § 11, Art. 1, reprinted in W. Winthrop, Military Law and Precedents *1448, *1456 (2d ed. 1896, 1920 reprint) (hereinafter cited as Winthrop).
* ↑ See Reid v. Covert, 354 U.S. 1, 27-28 and n. 49, 77 S.Ct. 1222, 1236, 1 L.Ed.2d 1148.
* ↑ In its brief the Government lists a large number of courts-martial in the very early days of the Nation which it claims indicate that military trial for civil offenses was common in that period. The facts of the cases, as reflected in the brief summaries which are available to us, suggest no such conclusion. In almost every case summarized, it appears that some special military interest existed. Many are peculiarly military crimes desertions, assaults on and thefts from other soldiers, and stealing government property. While those acts might also be felonies, by the time of the Revolutionary War offenses such as these long had been defined as distinctively military crimes in the Mutiny Acts. Many of the remainder are identifiably prosecutions for abusing military position by plundering the civil population or abusing its women while on duty. Many of the other cases in which the offense is stealing or assault on an individual were perhaps of this sort also, especially where the victim is referred to as 'inhabitant'. Most of the rest simply recite the offender and the offense and give no basis for judging the relationship of the offense to military discipline. Those few which do appear to involve civilian crimes in clearly civilian settings appear also to have been committed by officers. In the 18th century at least the 'honor' of an officer was thought to give a specific military connection to a crime otherwise without military significance. Moreover, all those courts-martial held between 1773 and 1783 were for the trial of acts committed in wartime and, given the pattern of fighting in those days, in the immediate theater of operations.
* ↑ 1776 Articles of War, § 10, Art. 1, reprinted in Winthrop *1494.
* ↑ Cf. Ex parte Mason, 105 U.S. 696, 698, 26 L.Ed. 1213, in which the Court, sustaining a court-martial conviction, under the general article of a military guard who killed a prisoner, said, '(s)hooting with intent to kill is a civil crime, but shooting by a soldier of the army standing guard over a prison, with intent to kill a prisoner confined therein, is not only a crime against society, but an atrocious breach of military discipline.'
* ↑ Larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding by shooting or stabbing with an intent to commit murder, rape, or assault and battery with an intent to commit rape. e v.Stat. § 1342, Art. 58 (1874).
* ↑ It has been suggested, at various times, that the phrase 'when in actual service in time of War or public danger' should be read to require a grand jury indictment in all cases 'arising in the land or naval forces, or in the Militia,' except when the defendant is in 'service in time of War or public danger.' It was decided at a very early date, however, that the above clause modifies only 'Militia.' Thus, the generally accepted rule is that indictment by grand jury is never necessary 'in cases arising in the land or naval forces' but is necessary for members of the militia, except when they have been 'called into the actual Service of the United States' (Art. II, § 2, U.S.Const.) 'to execute the Laws of the Union, suppress Insurrections and repel Invasions.' Art. I, § 8, U.S.Const.
* ↑ Winthrop in commenting on the phrase 'to the prejudice of good order and military discipline' in a predecessor article to Article 134 said:
'A crime, therefore, to be cognizable by a court-martial under this Article, must have been committed under such circumstances as to have directly offended against the government and discipline of the military state. Thus such crimes as theft from or robbery of an officer, soldier, post trader, or camp-follower; forgery of the name of an officer, and manslaughter, assault with intent to kill, mayhem, or battery, committed upon a military person; inasmuch as they directly affect military relations and prejudice military discipline, may properly be-as they frequently have been-the subject of charges under the present Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post, or in breach or violation of a military duty or order, they are not in general to be regarded as within the description of the Article, but are to be treated as civil rather than military offenses.' Pp. *1124-*1125.
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