Earl Warren: Number 710, Albert L. Trop versus John Foster Dulles, et al. Mr. Fraenkel.
Osmond K. Fraenkel: May it please the Court. This, also, is a nationality case. It comes here in an action for a declaratory judgment, instituted by the petitioner here after he had been denied a passport. The basis for the denial of the passport was that, in 1944, when he was serving with the armed forces in Casablanca, he had been convicted by court martial of desertion and dishonorably discharged. And therefore, came within subsection (g) of the Nationality Act of 1940 which provides for loss of nationality under such circumstances. In the action, motions for summary judgment were made by both parties. The plaintiff, submitting an affidavit to which was a next state summary of the court martial proceedings. In that affidavit, he stated that he was -- had been then 20 years old, that he had been confined in Casablanca by reason of some breaches of military discipline. That finding, the conditions of his confinement as he says intolerable, he had escaped from confinement, had never left the area controlled by American troops. And on the day following his escape, had surrendered himself. And the excerpt from the court martial proceedings consists of the testimony of the officer to whom he surrendered himself and a Sergeant who accompanied that officer, which stated that petitioner at the time was walking along the road from a place called Meknes which is variously spelled Moknes to Rabat. And as the Atlas indicates, that's going back toward Casablanca, instead of away toward the Spanish-Moroccan border. Petitioner stated at the court martial that he had escaped because of his intolerable conditions and because he had some notion that he might be able to rejoin his own battalion, which have been sent to Italy. In his affidavit, he states that he had no intention to contact the enemy. That he had made no attempt to contact the enemy. That he had no connection with any foreign state of any kind, whatsoever. The judge in the District Court agreed with the parties that there were no issues of fact, no disputed issues of fact, and therefore, that the case was right for decision on summary judgment. In two brief memoranda, which deal with none of the legal questions presented to him, the judge granted the defendant's motion and denied the plaintiffs. The Court of Appeals for the Second Circuit affirmed, and Judge Clark dissenting. The majority in the Court rejected a contention, which I had made on behalf of petitioner that the statute should be construed, to be applicable only to those who desert to the enemy. The Court, feeling that there was no sufficient doubt about the constitutionality of the statute to justify such an interpretation. The Court did not specifically discuss the constitutional questions, other than to recite this Court's decisions in Mackenzie and Savorgnan in repudiation of the notion, which I had advanced to that Court and do not advance here, that nationality cannot be lost absent -- a desire to loose it. That is not my position. My position is that Congress has no power to destroy the nationality of a native-born American, except, one, to consent to a voluntary abjuration of such nationality or accession of other nationality, and two, to regulate dual nationality. My position, being that Congress has no power, either under the broad provisions of the constitution as a sovereign or under the limitations of the constitution found both in the Due Process Clause of the Fifth Amendment and the prohibition against cruel and unusual punishment in the Eighth Amendment, to decree loss of nationality to -- to a native-born citizen because of some act permitted by that citizen, which the Congress may think inimicable, inimical to the interest of the United States where that Act has no relation whatsoever. As I submit in the case at bar, the Act has no such relation to the acquisition of nationality elsewhere or to any manifestation of allegiance to another country, that loss of nationality may not be an instrument of domestic policy, but is an instrument of international policy. Now, perhaps the breadth of my position maybe illustrated if I attempt a brief spectrum of the various provisions of law, which permit or decree loss of nationality. Starting at the clearest point, you have subsections (f) and (i) of the 1940 Act, which provide for loss of nationality where a citizen has abjured, either in this country or elsewhere under certain form. And then, you have the case under subsection (a), where the citizen has formally upheld the nationality of another country. And then, you have the provision which we discussed yesterday, which is no longer in the law, a provision of the 1907 Act, construed in the Mackenzie case where nationality was lost at least temporarily because of marriage to a foreigner, the woman in that case acquiring an additional nationality. I might suggest parenthetically that I think Mackenzie was wrongly decided insofar as it permitted loss of nationality to a person who had not left the United States. I can concede that if a married woman, acquiring nationality elsewhere, those -- the country of that acquired nationality, considerations of possible international embarrassment might arise. But I cannot conceive how they could arise so long as you remained in this country, and therefore, to that extent, I would say that Mackenzie had been wrongly decided. But of course, I didn't go that far in my case. And then, we come to those cases where an oath of allegiance has been taken, although, no formal acquisition of citizenship. And there, I think we enter -- or rather we leave the area of the first category, permissible to Congress, declaration of loss of a nationality here where a nationality elsewhere has been acquired. And we enter the more debatable area of the regulation of dual nationality, which may arise in connection with voting in a foreign election, holding public office, serving in foreign armies or various things of that kind. And there, I recognized that the Government has power to act, but I believe as counsel in the earlier cases before this Court indicated, that Congress has no power to create a conclusive presumption. It could lay down certain conditions under which these acts might constitute loss of nationality, giving an opportunity -- where those conditions indicate a choice of allegiance.However, again, I need not go that far here. Somewhere along this middle area is the case which might arise, where the statute which I am concerned with construed as I had suggested below and as I also suggest here as limited to desertion to the enemy. Because there, although, there would be no acquisition, perhaps, of a new nationality. The act of desertion to the enemy may be so unequivocal as treason would be, so unequivocal, a -- an informal abjuration of allegiance to this country as to justify congressional declaration on the subject.
Felix Frankfurter: I do not know, you probably do, whether Benedict Donald became a citizen of -- of Great Britain as against having then whatever you are, a citizen of New York there before. As I understand you -- what are you --
Osmond K. Fraenkel: No, no, so far as I know he did not. I say --
Felix Frankfurter: So that he did not become a citizen of Great Britain?
Osmond K. Fraenkel: No, but of course, a person --
Felix Frankfurter: But you say you raised doubt whether this cannot be or could terminate citizenship with order to implication to a person who deserts to the enemy, out of whimsicality, out of disapproval of -- of our participation of war, for any reason you please.
Osmond K. Fraenkel: No, I have -- I haven't raised doubts about desertion to the enemy, Mr. Justice Frankfurter.
Felix Frankfurter: They have not.
Osmond K. Fraenkel: No, I -- I would suggest --
Felix Frankfurter: Although no -- although no acquisition or desire for acquisition of -- of citizenship in another state.
Osmond K. Fraenkel: At -- to take the first case that I mentioned, a formal abjuration of United States citizenship may not result in acquisition of citizenship elsewhere. And under those particular circumstances might result as the voluntary act, deliberate voluntary act of the former American citizen. And I consider treason to be of that character, and I think desertion to the enemy of that character, because while there no citizenship has been acquired elsewhere, the act is of such a character that it can properly be described as abjuration of allegiance. But I say a desertion which in this case is not even the normal desertion of an intent to avoid military service, that the desertion technically defined by the articles of war, namely, absence from a post of duty to avoid unpleasant service and I suppose, escape from confinement comes within that description. It is an unpleasant service to be confined. And in any event, the court martial so found, but it has relation, no conceivable relation to allegiance to the United States. It's an offense. Of course, it's an offense, and it's an offense for which a person deserves to be punished and this man was sentenced to serve at hard labor for a period of years and he served that sentence, so that I come now to that area such as this, to this kind of desertion which has no connection with any foreign country of any sort whatsoever. The statute doesn't even require that desertion occur outside the United States. And of course, the circumstance that this did occur outside of the United States was no voluntary act of this individual. He was taken to Casablanca by the Army. He wasn't there of his own choice, so it's in irrelevance. In any case, there was no contact with the enemy. No intent to have contact with the enemy of any kind whatsoever.
Felix Frankfurter: It's the -- the constitutional position, which you are urging, will you correct me if I misinterpret it. The constitutional position, which you're urging, is that it is for a citizen who wants to hang on to his citizenship and acquire any other or not to be adrift in the world of a stateless person. It's for him to determine the extent to which he will carry out any of the implications of the duty of citizenship.
Osmond K. Fraenkel: It's for him to determine, so long as what he has done. He is not of such a character as to indicate an abjuration of allegiance.
Felix Frankfurter: That's -- that's what I meant.
Osmond K. Fraenkel: Yes.
Felix Frankfurter: It's for him to determine --
Osmond K. Fraenkel: But --
Felix Frankfurter: -- how long he will -- how long he will continue whatever he may deem desirable in the citizenship of the United States. Although, it is for him to determine the extent to which he will carry out any obligations to that citizenship.
Osmond K. Fraenkel: Subject to this Court's final decisions to whether he was right.
Felix Frankfurter: Well, I --
Osmond K. Fraenkel: After all -- no --
Felix Frankfurter: You're -- you're urging us the cause. Of course, this Court has the responsibility of deciding whether you're right or wrong. But what you're urging is, is it fair or not what I stated a minute ago that it's for a citizen to determine how long, or to what extent, or in what way he will exercise the advantages of citizenship and for him to determine the extent to which he will rid himself of those, is that right?
Osmond K. Fraenkel: That is correct. Again, with the qualification that I made a moment ago, up to the point where it is reasonable to suppose that what he has done is as it would be as I suggested in the case of treason or in the case of desertion to the enemy, an abjuration of this allegiance to this country.
Felix Frankfurter: Well, that's an attribution that may not be to the fact. You're saying it's for Congress to attribute to him a purpose which he hasn't got.
Osmond K. Fraenkel: I say that -- that in that area, the attribution has reasonableness. In other areas, it has no reasonableness and the Due Process Clause does restrict the power of Congress over loss of nationality, assuming that it has so brought a power as the Government claims for it. The Government recognizes that the Due Process Clause is a limitation, and if the Due Process Clause means anything, it means that there must be a rational relationship between the objective, which is here allegiance and the particular act involved.
Felix Frankfurter: The objective which is retention of citizenship, not allegiance.
Osmond K. Fraenkel: But --
Felix Frankfurter: You -- once -- once when granted term, I'm not saying you are wrong Mr. Fraenkel. You may be wholly right. I'm trying to get clarity into a difficult subject for myself, not to you or for others. And if one talks and it must be assumed and it's in the area that's likely you're dealing with fictions, with things that maybe opposed to reality.
Osmond K. Fraenkel: Well --
Felix Frankfurter: And if you may attribute that kind of things in Congress, why can't I attribute other purposes to Congress that have relation to the ultimate thing, namely, shall you continue to enjoy citizenship? The constitution doesn't say a thing about allegiance. The constitution doesn't say a thing about any of this.
Osmond K. Fraenkel: Exactly, sir. The Constitution --
Felix Frankfurter: The Constitution merely says that, “A man, who's born in the United States, is born in the United States and ipso facto becomes a citizen.” And as I understand it, subject to correction, there is no difference between a naturalized and natural-born citizen, except he can't become President of the United States and I assume, Vice-President of the United States.
Osmond K. Fraenkel: That is correct, except that I should suppose that Congress in the laws related to naturalization could impose certain conditions which might subsequently affect the naturalized citizen if those were in effect at the time that he became naturalized. And in that respect, have greater power than with a natural-born citizen --
Felix Frankfurter: You raise --
Osmond K. Fraenkel: -- but that's not here.
Felix Frankfurter: I noticed he did. It's a very dubious problem --
Osmond K. Fraenkel: He did.
Felix Frankfurter: -- whether Congress would say it will make you a citizen and look but the 10 years interest is still as good man as you are today. That raises a very familiar series of question --
Osmond K. Fraenkel: I -- I would -- no --
Felix Frankfurter: -- but possibly, I have a personal interest in that.
Osmond K. Fraenkel: In any event, sir, I would say this. Since this Court has held, and I don't think that it will review that holding in any of these cases that nationality maybe lost under circumstances. Although, the citizen didn't intend subjectively to lose it, as in Savorgnan for instance where his act is contrary to -- or her act is contrary to her on disclosed intention. There can well be an area whereas you can suggest it. Congress lays down a formula, which may be contrary to the subjective intent of the individual. I say Congress may have that power where the act involved is so clearly of the character of a transfer or abjuration of allegiance. That any reasonable man would so conclude that it has no power to do that where the act involved, however, heinous it may be, however, contrary to the laws of the country it may be, has no real connection with allegiance. Now, a person -- a person --
Felix Frankfurter: You're importing that term into the Constitution.
Osmond K. Fraenkel: No. Well, certainly --
Felix Frankfurter: Citizenship isn't an obstruction.
Osmond K. Fraenkel: Certainly on --
Felix Frankfurter: It isn't an obstruction.
Osmond K. Fraenkel: No.
Felix Frankfurter: Citizenship has contents.
Osmond K. Fraenkel: But it's an essential content. I think all of the authorities indicate is the concept of allegiance. Moreover, as many of the authorities indicate, the regulation of nationality is properly speaking only in an international subject. I have taken the liberty to quote to this Court a paragraph, which makes that clear from the writings of an Argentine jurist, who has had a great experience in this area, and who was a professor in Buenos Aires. And he wrote a large number of books on various international law subjects and I think his formulation of it is clearer than that found anywhere else, where he says that, “Nationality is a matter of international law, rights of citizenship a matter of domestic law.” And I know it was a good deal of discussion yesterday about this phrase, “Rights of citizenship in the old 1865 statute,” that Government counsel maintained that that was the equivalent of loss of citizenship and I must concede that there are many cases which so hold. But I do still think that clear thinking, whereas a distinction between the two concepts and that the regulation of nationality is irrelevant to wrongs done by the individual towards the State, until those reach the point which I have -- I don't want to repeat it unnecessarily, heretofore elaborate.
Felix Frankfurter: But I suggest that allegiance doesn't mean merely putting your hand to your heart when the Star-Spangled Banner is played.
Osmond K. Fraenkel: That is correct. And it may well, but I suggest that when Congress uses a catch or term such as desertion, which under the Articles of War can include an occurrence such as -- is the basis for asserted loss of nationality here. That Congress has gone beyond its proper scope. That it has embraced within the concept, act so varies, so unrelated to essential obligation of citizenship.
Felix Frankfurter: Mr. Fraenkel, you need not be reminded. Among the most difficult of all the problems that came before President Lincoln that was compassionate of states was what to do with desertions, not to be enemy but this kind of desertion because that's all -- if enough people do that, there's no country.
Osmond K. Fraenkel: May I suggest with all deference that the desertions involved which led to the adoption of the 1865 statute were not this kind of desertion.
Felix Frankfurter: I'm not talking about those. I'm talking about --
Osmond K. Fraenkel: This -- this will --
Felix Frankfurter: -- the cases that came before Lincoln when he was appealed to for President because a fellow fell asleep at the post.
Osmond K. Fraenkel: Well, that wasn't -- that was of course --
Felix Frankfurter: A very common thing in war, I take it or it is common enough.
Osmond K. Fraenkel: The man who falls asleep I suppose is subject to military discipline, which may result of course in a sentence of death. This particular offense theoretically could have resulted in a sentence of death because it was committed in war time. And Congress has, I suppose, power to provide for death sentences in situations with which this Court is not likely evident in here, and had this petitioner been sentenced to death, I wouldn't be here. He wouldn't be here. But he has been allowed to live and the fact that he might have been sentenced to death and that the President might not commuted his sentence, I submit it has no bearing on the particular problem with which this Court is now confronted with which I'm trying my best to deal. I want to say one other thing briefly and then I would like to reserve a few minutes for rebuttal. The question yesterday also came up of possible deportation of persons, who, by reason of this loss of nationality, might become aliens. And of course, this particular petitioner would become stateless, and as I have argued in my brief, I submit that that would be cruel and an unusual punishment, but I'm living that in my brief. I want to suggest, however, that in this particular petitioner's case, deportation might also result because this petitioner was confined by the Army in Casablanca. And then, he came back to the United States after his dishonorable discharge and the immigration people claimed that his entry into the United States on that occasion was an illegal one because he was then an alien and having no visa. So that if this Court should sustain the judgment below, he would be probably subject to deportation and with -- one of these wonderers because presumably, no country would take him, not that there's anything that matter with him but he isn't a national of any country. There's no reason why any country should take him. As a matter of fact, as a respectable responsible citizen, working for an aviation company and unfortunately there is no way that he can remain an American national, absent a reversal by this Court because the statute provides for a -- restoration of nationality. Only in the one case of restoration to armed service during at time of war which is of course impossible in this case.
Earl Warren: Mr. Davis.
Oscar H. Davis: May it please the Court. This case began, because the petitioner asked for a passport from the State Department, and was refused a passport on the ground that he was not an American national. It does not involve any issue of deportation. The record, which is before this Court, does not mention the facts, which Mr. Fraenkel just stated as to possible deportation, and I frankly do not know whether they are true or not because the record does not even show how this man came back to the United States.
Felix Frankfurter: But the -- the declaratory judgment -- the judgment which is before us, either for confirmation or reversal is --
Oscar H. Davis: That he is not a citizen.
Felix Frankfurter: That he is not citizen.
Oscar H. Davis: But that does not automatically make him deportable.
Felix Frankfurter: No, no, but is the starting point. He is --
Oscar H. Davis: Yes, that's right.
Felix Frankfurter: And therefore, not a citizen, and therefore, subject to the immigration laws, is that right?
Oscar H. Davis: That -- that's right. The only thing I was trying to point out, Mr. Justice Frankfurter, is that Congress has not passed a statute, which says, “That any person who becomes expatriated shall be deported.”
Felix Frankfurter: No, no, that wasn't the suggestion merely. The suggestion was he may be subject to the immigration law and on some other counts.
Oscar H. Davis: Well, that's right but I am not certain that he is. I do not know and the record that not bare or have any light on the --
Felix Frankfurter: But I suggest, as I understood Mr. Fraenkel, he was merely pointing out the potential dangers.
Oscar H. Davis: There is a potential danger but it is not certain, at least on this record.
William J. Brennan, Jr.: Mr. Davis, before you start your argument, do you -- does the Government have any statistics to indicate how many deserters from domestic military facilities during the war who were dishonorably discharged? I don't mean in the war of theater but from camps here in the United States.
Oscar H. Davis: I do not have them available, Mr. Justice Brennan. I -- I hazard the assertion and I think it's substantially correct that deserters within the United States, in fact, even most deserters abroad, were restored to duty after a period of -- of disciplinary training at -- in one of the --
William J. Brennan, Jr.: Am I correct that -- as to any who were not and who were convicted of desertion within the United States, they also have lost their citizenship under this provision?
Oscar H. Davis: Yes, they do. I would point out further in -- in part of my colloquy with Justice Frankfurter that they would not be subject to deportation.
William J. Brennan, Jr.: Well, I can appreciate that, but where are they then?
Oscar H. Davis: They are stateless citizens as a person who renounced his citizenship in the United States would be. Many Japanese-Americans during the war renounced their citizenship. A great many of those have been set aside as done under duress, but some of them have not. And as to those who have not been set aside, those which have not been set aside under duress -- as under duress and who are not also Japanese nationals, they are stateless persons. Garry Davis, the well-known personality is a stateless person, though, he now, I think, lives in the United States.
Felix Frankfurter: Did I -- but he is subject to the immigration laws?
Oscar H. Davis: Garry Davis is --
Felix Frankfurter: I don't mean about him -- I don't want to -- like a stateless person.
Oscar H. Davis: Well, if he doesn't leave the United States, he would not be, unless -- unless --
Felix Frankfurter: Well, I know he can stay but he can't -- but when he comes in, he's --
Oscar H. Davis: That's right.
William J. Brennan, Jr.: But I gather those that I had in mind just means I can never leave the United States?
Oscar H. Davis: I would -- yes, I think that's the theory that serves --
William J. Brennan, Jr.: They could never get back in, but --
Oscar H. Davis: That -- that is right.
William J. Brennan, Jr.: And they could never leave it legally in any event because they can never get a visa.
Oscar H. Davis: Well, they -- they could get some kind of identification in the State Department but it may very well be that they would be denied entry on coming back, unless they had some papers from some other country.
Felix Frankfurter: Do I -- do the stateless persons resident of the United States have anything like an Nansen passport?
Oscar H. Davis: I do not --
Felix Frankfurter: (Voice Overlap) --
Oscar H. Davis: I don't know -- I don't know, Mr. Justice Frankfurter. The facts of the case which appear only from the record are -- I'd like to state them a little more in detail as Mr. Fraenkel did. The petitioner was in the Army and he went with his unit to Casablanca in North Africa. There, in March of 1944, he committed some offense for which he was tried and convicted by a general court martial. The record doesn't indicate what it was, but it was sufficiently serious so that he could be tried and convicted by general court martial and he was confined. He was transferred to the station hospital. And on May 9, he escaped from the station hospital, and either came back or was apprehended shortly thereafter. And --
Earl Warren: Which was it? Do you know?
Oscar H. Davis: On May 9th? I'm not --
Earl Warren: No.
Oscar H. Davis: I don't know.
Earl Warren: Which was it? Was he apprehended or --
Oscar H. Davis: On May 9th, I don't know --
Earl Warren: The record doesn't show.
Oscar H. Davis: The record show, I believe. It shows that he returned. On May 22nd, he escaped again. He claims that he surrendered. We do not have the full court martial proceedings, but even he did surrender, he indicates that he did because he was tired and cold, and we were having a tough time on foot and the going was getting tough. That -- so he -- he came back into military custody, I think on May 23rd and he was convicted by a general court martial and sentenced to three years confinement, and also, to have a dishonorable discharge. The convening authority affirmed the sentence, although, it said it was inadequate but it suspended the execution of the dishonorable discharge until release from confinement. Now, Section 401 (g), which is involved in this case, has a restoration provision.The Court will find it on page 2 of the Government's brief. This restoration provides that if you -- at first, I should say that the loss of nationality is a result, not only of conviction for desertion by a court martial, but also, the execution of the dishonorable discharge. It does not occur until the execution of the dishonorable discharge, and it also provides that if you're restored to duty during time of war, you shall not lose your citizenship. This petitioner was not restored to duty and we don't know why. One can only guess on the basis of this record which indicates that the unit which he left or from which he was taken because of his crime was then engaged in fighting in Italy in the spring of 1944. Possibly, perhaps, his two escapes from confinement within the short time and possibly his -- his activities and conduct during confinement, but actually, we don't know. The statute, 401 (g), goes back like the draft evasion statute, which is being discussed yesterday to the Act of 1865, the Act which was passed in March of 1865. And one of Mr. Justice Frankfurter's questions to Mr. Fraenkel evoked in my mind a bit of history, which I believe should be given to the Court. That Act was passed at a time when this confederacy was collapsing. There was no fear, no large fear that the northern soldiers would desert the confederacy. There was a great deal of fear that they would desert to Canada or go home before the -- the war had been completed. That was the theory which Congress had in mind when it enacted the statute which provided for loss of citizenship for draft evasion and desertion. And it wasn't at all related to fear that these people would desert to the enemy, to the confederacy. It was a fact that they would -- that the Army would collapse. That there wouldn't be any people left, unless this people continued to serve in the Army, as they should until peace was finally declared and they were released in orderly fashion.
Felix Frankfurter: Mr. Davis, was there much of a congressional history about the 1865 Act? And if so, you made reference to it in your -- in your brief.
Oscar H. Davis: No, we have not. There isn't very much and -- but we haven't even made reference to the -- the formal indications in -- in the congressional record of those (Inaudible). On the face of it --
Felix Frankfurter: Who proposed that, the drastic -- the drastic Stanton?
Oscar H. Davis: I'm unable to say, Mr. Justice.
Felix Frankfurter: All right.
William O. Douglas: Suppose this man got a presidential pardon, would -- what would happen then?
Oscar H. Davis: I -- I would suggest that the basis of -- of history that that would mean that he would be restored to a nationality.
William O. Douglas: Does the Act cover that expressly?
Oscar H. Davis: No, it does not. It does not now cover it expressly. It didn't even before under the 1865 Act, but there is a bit of history on that, as I mentioned yesterday, when the statute was amended in 1912 to provide -- so that it wouldn't be operative for desertions and draft evasion in peacetime. Congress at the same time provided that the President could pardon those previously subjected to the Act who had been found guilty of draft desertion or draft evasion or desertion during peacetime. That was the specific provision regarding to peacetime persons.
Felix Frankfurter: Mr. -- Mr. Davis, do you mean to suggest though that pardoning automatically carries with it the restoration of citizenship, does it?
Oscar H. Davis: Not ordinary pardoning but I think -- at least, I have the authority of Secretary of War Stimson, who, when he proposed this provision in 1944, said that the citizenship could be restored by pardon as it was done --
Felix Frankfurter: All right.
Oscar H. Davis: -- by -- by President Coolidge. In fact, fill out a detail to us.
Felix Frankfurter: I mean as a matter of no importance, but I think if the President has usually stated it in pardon with full restoration of the citizenship, I think the records in the Department of the Attorney General who reports that each year. There is that provision, there is usually a -- or an addition to that.
Oscar H. Davis: Yes, I'm -- I'm talking about a pardon related directly to this particular statute. In 1920 --
William O. Douglas: (Voice Overlap) that emphasizes that this is in a -- really, and truly a part of punishment.
Oscar H. Davis: No, I don't think it is. It's a disability and I think that the President has the power to relieve from disability just as well from those things, which are -- are punishments in a criminal sense. In 1924, President Coolidge, as I think I mentioned yesterday, did pardoned those deserters who deserted after the armistice of 1911.
Felix Frankfurter: But if it isn't in the statute, if the statute doesn't make that, then whatever the consequences follow a pardon or the normal consequences in regard to presidential pardons generally.
Oscar H. Davis: Yes, and I -- that's why I stated it in -- in a potential sense that I did because there is some history and it is not been not affirmatively decided by this or by any other court.
Earl Warren: But you made a distinction as I understood it yesterday between rights of citizenship that are restored by pardon --
Oscar H. Davis: That -- That's right.
Earl Warren: -- and citizenship itself.
Oscar H. Davis: Yes, but I'm suggesting --
Earl Warren: Then -- then -- but today, apparently, you -- you equate them?
Oscar H. Davis: No. What I'm saying is that the President can do both, Mr. Chief Justice. I suggest that he may be able to do both, that he can restore the rights of citizenship in relation to voting and the other things but that he may also be able to restore citizenship itself as I --
Earl Warren: Well, I thought you said in response to -- to Justice Frankfurter that he was doing the equivalent of what he does in other cases of pardon (Voice Overlap) --
Oscar H. Davis: No, I meant to say that there was this --
Earl Warren: -- towards citizenship.
Oscar H. Davis: No. If I did, I didn't make myself clear. I meant to say that what he -- that -- that the power that he was exercising was a power which was directed to these specific provisions, the draft evasion and desertion statute. And in relation to those, he may have a greater power than he would have or he may be able to exercise a greater power than he ordinarily does in other cases. And as I said that Secretary of War Stimson, when he proposed the restoration provision in 1944 said, "Citizenship may be restored by presidential pardon, granted in each individual case or by proclamation as it was done by the pardon proclamation of President Coolidge.”
Felix Frankfurter: But that's choice to counterfeiters, any federal offense.
Oscar H. Davis: That -- that may be so, but --
Earl Warren: Well, what -- what power is given to the President to -- to make a person a citizen of the United States if he is not a citizen of the United States?
Oscar H. Davis: Mr. Chief Justice, I -- I don't feel that my case depends upon -- on this suggestion. I'm --
Earl Warren: But you said it could.
Oscar H. Davis: No, I said -- I said that I believe that it could, that it hadn't -- that there had been no determination about it. I present the -- the facts of history in which there -- of President Coolidge and of Secretary Stimson thought that it could be. You -- one can say that the presidential power is broad enough so that he can do away with it and grant amnesty against any disability, which has been imposed by law of Congress, and if that is so, then the presidential power extends that far. If it does not extend that far, then of course he could not restore citizenship.
Earl Warren: But I guess he wouldn't be an American.He wouldn't be an American as you have said.
Oscar H. Davis: Well, yes, but the President can of course pardon others who weren't American. He can pardon the aliens --
Felix Frankfurter: (Voice Overlap) the exercise of the pardoning power is that power to accomplish retroactivity, the lack of talk in the case about wiping it out just as he could nullify judgment. Certainly, the United States has no power to nullify a judgment. That he could wipe out as such. However, I don't think your case --
Oscar H. Davis: No, I -- I don't think that. I would --
Earl Warren: Let me ask you this, Mr. Davis. You -- you think that the President in the case of this kind, by giving a man a pardon, could restore his citizenship. Now, let me ask you about a -- a case where there has been a voluntary abandonment of citizenship. Could the President restore that person by his act to American citizenship?
Oscar H. Davis: It may -- it may be, I am not certain if -- I think that's a much weaker case because there, there has been no -- what the President would be doing here would be wiping out in a sense or -- or wiping out the consequences of a conviction for desertion and the statute says that a dishonorable discharge, plus a conviction of desertion leads to loss of nationality. That would not -- they would not be that -- those factors in the case you mentioned.
Earl Warren: Now, let's take the case that just went ahead of this one, the Japanese case, --
Oscar H. Davis: Yes, now --
Earl Warren: -- where a man joined the -- or was conscript to the Japanese Army. You say now that he is not an American.
Oscar H. Davis: That's right.
Earl Warren: Has the President any power to give him American citizenship?
Oscar H. Davis: I suggest, sir, that there is a possibility that that is so. I don't think --
Earl Warren: Based -- based upon what power of the President?
Oscar H. Davis: The power to pardon. I suggest that that --
Earl Warren: But he isn't convicted to any offense.
Oscar H. Davis: No, that's right but if disability --
Earl Warren: What -- what is he going to pardon?
Oscar H. Davis: A disability has been imposed upon him.
Earl Warren: Can -- can this -- can the President pardon him for a disability?
Oscar H. Davis: I am not certain of this, Mr. Chief Justice, and I don't think that this -- the constitutionality of the statute rests upon it. In answer to a question from the bench, I tried to give whatever history there was on -- on the subject with relation to this particular statute, the 1865 statute as to which it has been exercised. I -- I might mention the same connection that Congress is aware that -- that these various expatriation statutes may very well lead to harsh consequences because both after World War I and after World War II, it has passed special ameliorative legislation. The President have passed a special statute, saying that “Any person who voted in a -- in a foreign country which was not an enemy country, could get his citizenship back by a short-form naturalization proceeding if he did it within one year of August 15th, 1946. Petitioner Perez, in the first of these cases, could have wiped -- got -- if voting abroad had been his only act of expatriation could have become re-naturalized or naturalized under that provision if he had made application for it. There had also been provisions for those who had served in the armed forces of non-enemy countries. It's a short form naturalization proceedings for those who have served in the armed forces of -- of non-enemy countries, that of course does not include Italy, Japan and Germany. And there was this special statute for those who voted after the War in the elections in Italy and in Japan. These special statutes are on the books and they have been availed of by a great many people who lost their nationality.
William O. Douglas: I've been going through the -- the house debates in -- on the Expatriation Act of 1954 and there's a strong indication there that the -- that the -- those who were debating used this Act as -- as a part of a criminal code almost, as applying additional punishment for heinous acts as they said. And secondly --
Oscar H. Davis: Well --
William O. Douglas: -- that the President would have no -- would have no power, but --
Oscar H. Davis: I understand there was some indication of that. The case -- cases before the Court now do not involve that Act, do not involve even the -- of the Act of -- of 1952. They involved the Act of 1940 as to which there are no similar -- there is no similar history and particularly, with relation to this statute, the Section of the statute which is now before the Court, 401 (g). I should -- I should -- I believe I should point out to the Court that as passed in 1940, the statute provided simply that anyone who deserted the military or naval force of the United States, provided he was convicted by a court martial should lose his nationality. In 1944, the War Department, mostly because of the -- a man who deserts the armed forces in this country, as Mr. Justice Brennan mentioned, came to Congress and asked that the statute be changed, so that it -- going to effect only when the -- a dishonorable discharge was executed and to provide the provision for restoration which is printed in the Government's brief at page 2. And this statute was enacted at that time. This particular restoration provision, I think, in and of itself shows the whole -- entire inadequacy of petitioner's view that this statute should be limited to desertion to the enemy. There are various grounds for rejecting that interpretation. It's completely unpermissible. It is not within the bounds of -- of appropriate interpretation of the statute. First place as I said, the parent statute, the 1865 statute shows from its history that it was related to desertions, not to the enemy but to home or the country.
William J. Brennan, Jr.: Well, would you understand Mr. Fraenkel's argument as directed to interpretation, instruction of this statute?
Oscar H. Davis: Yes, Mr. Justice Brennan. And I think he has two arguments. One, that it's invalid, but if it is not invalid, it should to be interpreted as relating only to desertions to the enemy and as that -- in that respect would not apply to the petitioner here who did desert to the enemy.
William J. Brennan, Jr.: Apart from the point of invalidity?
Oscar H. Davis: Yes, I think he would say that because of the constitutional doubt. The Court should restrain -- construe the statute as relating on desertion to the enemy.
William J. Brennan, Jr.: Well, that's the way I understand it.
Oscar H. Davis: Yes, but I -- I would try to point that this is one of those cases in which the Court cannot accept that alternative because the countervailing arguments are so strong that the statute cannot be interpreted in that way. And I'd like if I may to run through them with these various arguments that we think they are very strong. The first is the -- the basic historical one that the parent statute did not relate only to desertions to the enemy. The second is the fact that the statute relates to desertion, which is a military crime, talks about the conviction by a court-martial. Now, in military law, desertion is wholly -- desertion to the enemy is wholly irrelevant. The whole -- the whole question is whether you have deserted the armed forces of the United States and it is not part of the crime at all that you went over to the enemy or you didn't. And when Congress refers to the term which were -- since the beginning of our country has been known in military law and uses -- says that a conviction by a court-martial shall be adequate conviction for this crime. It must be referring to the military crime of desertion, which does not refer desertion to the enemy. And second, there's the -- third rather, there is the provision for restoration, which I mentioned just a few moments ago. If the statute were limited to desertion to the enemy, it would be highly unlikely that there would be any provision for restoration, because any man who deserted to the enemy would be highly unlikely to come back to the forces of the United States, and if he did, it would be highly unlikely that anyone want to restore him to service. So, the whole provision for restoration wouldn't make sense, even if one didn't look at the legislative history, which I'll come to in a minute. It wouldn't make sense at all if the statute were initially limited to desertion to the enemy. And the forth factor is that, if this were a statute with limited to desertion to the enemy, it would be equivalent to treason provision. And there's another provision in the statute, providing for loss of nationality for treason, that's Section 401 (h), and if -- if Mr. Fraenkel's view of the interpretation of the statute were correct, there would hardly be any difference between 401 (g), the desertion statute and 401 (h), the treason statute. Another factor is that Congress specifically provided in this Nationality Act of 1940 that most of the acts of expatriation would not take effect with respect to loss of nationality, unless they are performed abroad or the person went abroad. It -- it made some exceptions to that and one of the specific exceptions made was this provision 401 (g), relating to desertion. It specifically provided that except as provided in subsection (g) and so forth, expatriation shall not result until you go abroad or an act is done abroad. And that fact indicates very clearly that they were referring to desertions within the United States, and of course, it was highly unlikely that desertions to the enemy would occur within the United States. And fourth, and perhaps, most persuasive of all is the legislative history of the restoration provision which was enacted in January 1944, in which -- to which we have referred at page 9 of our brief in this case. That makes it, I think, irrefutably clear that Congress was concerned, not with man who deserted to the enemy, which at that time there were very few. But if the great large mass of soldiers who were deserted in this country from training camps and so forth or who were deserted from training camps in England or abroad and they were -- they were interested in making sure that these people would not lose their nationality and that they would be -- if they were competent able fellows would be restored to duty. And it -- I think it is impossible to read that legislative history and to conclude that this Section 401 (g) as it stood at the time it -- it affected this petitioner could possibly be construed as limited only to desertion to the enemy.
William J. Brennan, Jr.: Mr. Davis, you referred to the desertion as a military crime?
Oscar H. Davis: Yes.
William J. Brennan, Jr.: Do you suppose that Congress could deprive a felon committed -- convict of a civil crime of his nationality and citizenship?
Oscar H. Davis: I think it would depend upon the nature of the crime. I think -- as I said yesterday that it's -- it's a question of when.
William J. Brennan, Jr.: Well, let's -- let's suppose it were a crime of murder for which he gets a life sentence. Did the Congress say that everyone convicted of the crime of murder shall be thereby deprived of his nationality and citizenship?
Oscar H. Davis: I can't give a category glance, Mr. Justice Brennan, because it depends upon how -- what one considers to be the obligations of citizenship, the prime obligations of citizenship. I think Congress can provide that conviction of a civil crime for invading or avoiding the prime obligations of citizenship can lead to loss of nationality, as it did in the draft evasion statute which is under discretion yesterday.
William J. Brennan, Jr.: Is that not -- that -- that might not be the case to deal perhaps in the crime of murder.
Oscar H. Davis: I am not certain and I cannot say that that is a prime obligation of citizenship.
William J. Brennan, Jr.: Well, I suppose if it were -- suppose there were conviction of the -- of a crime of election frauds.
Oscar H. Davis: Again, one would have to weigh the rationality of a judgment based upon the materials which were before Congress and on which it acted of the conclusion that an election fraud, a person who commits an election fraud has violated one of the cardinal or one of the prime obligations of -- of citizenship.
William J. Brennan, Jr.: Doesn't it?
Oscar H. Davis: Well, I don't have that case here.
William J. Brennan, Jr.: Well, then, let's assume -- let's assume that the Government -- that the Congress could with reason, as I would suppose it could, conclude that election frauds were violations of one of the prime obligations of citizenship.
Oscar H. Davis: If -- if that conclusion is raised, then I think that there is power in Congress to impose laws of nationality on someone who has committed that kind of -- that kind of crime.
William J. Brennan, Jr.: Well, then -- then your -- your -- the Government's distinction then is whether or not the particular conviction, whether it's a military offense or of a civil offense.
Oscar H. Davis: Particular conduct because --
William J. Brennan, Jr.: That's right --
Oscar H. Davis: -- in the case --
William J. Brennan, Jr.: particular conduct, whether --
Oscar H. Davis: -- in the other --
William J. Brennan, Jr.: -- it happens to be a military or a civil crime indicates what, in respect of investigation.
Oscar H. Davis: Well, there are two factors. One, that Congress can take into account in the field of citizenship two general sets of factors. One is relations with foreign countries and the things that lead to embroilment with foreign countries, things that may lead to clash of nationality, clash of allegiance. That's one set of -- set of factors. The other -- the second set of factors are those things which are inconsistent with the cardinal or prime elements of American citizenship.
William J. Brennan, Jr.: And in that case, you think that no distinction will be made between civil and criminal -- civil and military offenses?
Oscar H. Davis: That's right.
William J. Brennan, Jr.: I -- I was interested because apparently, Senator McCarran doesn't agree with you. I noticed that this --
Oscar H. Davis: There were -- there were certain things said in the 1954 debates which --
William J. Brennan, Jr.: This has not any reference to that but I noticed that he said that he thinks a serious doubt about the constitutional right of the Congress to deprive a man of the citizenship as a criminal penalty, depriving a felon of the civil rights, but of course, an accepted thing.
Oscar H. Davis: Well, yes.
William J. Brennan, Jr.: But depriving a felon of a citizenship which means his basic nationality is an entirely different matter.
Oscar H. Davis: I think there's nothing inconsistent with what I have said. We are not saying that loss of nationality is a penalty. We are saying it is a disability, a consequence which Congress has imposed as a result of a conviction in this case for a desertion. And I think that's what Senator McCarran was saying there because he was --
William J. Brennan, Jr.: I think what he was saying here that was at least as to a civil crime, you can't -- you may deprive him of rights of citizenship but you can't deprive him of nationality, whether or not it happens to relate too.
Oscar H. Davis: Senator McCarran was in that particular situation, the sponsor of a bill, which did seem to deprive of nationality, people who have been convicted of violations of the Smith Act, which is a civil crime.
William O. Douglas: But he provided some amendments, didn't he, to resolve these troubles?
Oscar H. Davis: Yes, but the Act, I believe as -- as enacted was satisfactory to him and it did provide that a person who was convicted of violation of the Smith Act should lose his nationality perspectively, not retroactively.
Hugo L. Black: Do you think there's any problem in connection with -- assuming that the Government can deprive people of citizenship, as citizen, do you think there's any problem in connection whether that should be done --
Oscar H. Davis: Yes.
Hugo L. Black: -- by a civil trial or military trial?
Oscar H. Davis: I think there is a problem -- no, as far as civil or military trial, no, I do not, Mr. Justice Black. I think for the crime of desertion, which is a military crime a court-martial conviction is -- is due process and has always been considered as such throughout our history.
Hugo L. Black: Assuming that's true, that punishment that will be inflicted will be the loss of citizenship.
Oscar H. Davis: Well --
Hugo L. Black: We trust that to the army, rather than to the public court?
Oscar H. Davis: I would not agree it's punishment, but the consequence -- the consequence follows from the conviction, and if the conviction is adequate and is sustained and there is a review, as the Court knows from the cases which were recently argued. If the conviction is sustained, I think there is no constitutional objection to Congress imposing loss of citizenship as a result of that conviction. Now, this as I say was done in 1865. The statute of 1865 did not say anything about conviction. It was interpreted by this Court as to -- to impose loss of citizenship upon conviction by court-martial and -- but Kurtz against Moffitt case in -- in which Mr. Justice Breyer wrote the opinion, refers -- make this clear that it could only be conviction by a court-martial which lead to the loss of citizenship, because only a court-martial would have jurisdiction of the crime of desertion. So, I think that added to whatever we can say here as a de novo matter, there is the -- the clause, the very witty clause of 92 years of history. And that particular statute was in effect, as I say in the closing months of the civil war. It was in effect during World War I and the present statute, 401 (g) -- Section 401 (g), it was in effect during World War II. So --
Hugo L. Black: Is that upon of the same aspects allowed here, the court martial for the crime of traitors with the Army or businessmen?
Oscar H. Davis: I do not know, Mr. Justice. There was a -- it was a large Act and this is one Section, Section 15 I believe.
Earl Warren: Mr. Fraenkel.
Osmond K. Fraenkel: I'll briefly say this. I don't think it makes very much difference when you call it disability or punishment. Its consequences are the same. I would like to point out, however, in answer to what Mr. Justice Black --
Felix Frankfurter: It makes no difference unless by using the word “punishment”, you imply that we drag in provisions of the Bill of Rights.
Osmond K. Fraenkel: Well, I think provisions of the Bill of Rights belong in -- in any case, certainly the --
Felix Frankfurter: What I'm talking about --
Osmond K. Fraenkel: -- the Fifth Amendment.
Felix Frankfurter: I'm talking about the difference between due process and the procedural requirements of punishments for crime. They are very different (Voice Overlap) --
Osmond K. Fraenkel: Oh, yes. I'm not -- no, but I do wanted to make this thought with the Court. The statute does not impose loss of nationality, merely because of the court-martial conviction. There is an additional condition imposed, namely, that there'll be a dishonorable discharge by the Army. And to that extent, I might suggest that an element has entered into here, which is wholly outside of any volition on the part of the person involved. You have a -- it indicates where a man has done an act which -- for which he may be convicted and let's take the chances of that being established, it is an independent, non-civilian, mental operation which has to be imposed here. Namely, the dishonorable discharge and that I should be -- it doesn't lead the case in a somewhat different posture. Thank you.