Earl Warren: Mr. Solicitor General, you may proceed.
J. Lee Rankin: May it please the Court. I should like to try to answer the question about treason briefly so that I won't forget it.
William O. Douglas: Treason?
J. Lee Rankin: Yes. We conceive that the crime of treason would have to be tried in this country for at least before an Article III court, because of the provisions of the Constitution in regard to having two witnesses in open court which we believe would be interpreted to require an Article III court wherein those witnesses would act. We think that's the only crime that would involve that consideration.
Earl Warren: Well, do -- do you mean by that that these people have been tried in something other than a court?
J. Lee Rankin: Well, there's a difference between an Article III court that I -- as -- as I was referring to, Your Honor, which involves lifetime tenure for the judge under the requirements of the Constitution where the judicial power of the United States as being exercised and what the Court has recognized as a legislative court which was applied in the territories that were not --
Earl Warren: Yes.
J. Lee Rankin: -- incorporated that I referred to and the number of -- well, a Court of Claims is another example, Court of Customs in patent appeals is another example of legislative courts where -- as distinguished from the Article III court requiring lifetime tenures of the judge. And the position of the Government is that this Court has consistently held that where the trial is informed territory, the Congress has the power under the Constitution to provide for a legislative court and not an Article III court. But because of the peculiar provisions in the Constitution about treason where it requires two witnesses in open court that that would require not a legislative court but an Article III court as a distinction.
Earl Warren: Suppose an officer of the Army committed treason in the field, would he be tried by a Civil Court?
J. Lee Rankin: I don't believe I could answer that offhand. I --
Earl Warren: Well, wouldn't you have -- wouldn't your answer be the same then about these women if they had -- had committed treason if they were -- if they were to be subjected to court-martial generally under the war power?
J. Lee Rankin: Well, I think there's a difference between the question in the field and in time of war as far as the various articles in the Code are concerned, military code. But if it's a question of proof of treason as that act, I think you'd have to have an Article III court, yes. These women of course were not involved in that crime. We say that that's the only crime that has that coverage by the Constitution, and that all other crimes, the Congress has the power to provide for by a legislative court instead of an Article III court if it sees fit to do so that Congress has the power of properly choosing between the two. And the only other question is whether or not it's inappropriate and not an unreasonable choice is made.
Speaker: Could I ask a question to orient myself on your argument? Are you arguing now that this jurisdiction could be sustained independently of the Ross doctrine that is independently of the supreme opinion of this Court which is other than the Ross doctrine?
J. Lee Rankin: I'm trying to argue that, yes, Mr. Justice.
Speaker: That's -- that's what I understood that you -- after having said what you did at the beginning about the Ross doctrine, everything else has been on the Article I part.
J. Lee Rankin: That's right. I want to make it clear that we were not abandoning that Ross doctrine.
Speaker: I understand that.
J. Lee Rankin: And that we think the power is -- is complete in that doctrine but in addition and beyond that is the provision in regard to the rules for the Government of the Article I, Section 8, Clause 14.
Speaker: That's what I understand.
J. Lee Rankin: And the rest of it was addressed to trying to show that according to the history of common law, both for Britain and the United States, at the time the Constitution was adopted, it was conceived that under that power, the Congress would have the -- under that provision of the Constitution, that Congress would have the power to provide for trial of civilian dependents and civilian employees in the same manners it would members of the military corps themselves. There are number of orders that are part of the orders of the British in regard to these forces that they had in this country that are referred to in the Blumenthal book and we set them forth in footnotes of our brief, in page 28 to our reply brief. And I will not take the time to read them all but they're dated in the 1775 and 1776, in that area of time, and they described time after time, various regulations of the commanders in regard to the women who are associated with these armed forces as well as the settlers and other employees. Now, I want to make it very clear that women at that time or when you -- the word camp follower was used was not conceived as merely hangers on in connection with the army because it often involved as described in some of this historical material, Martha Washington going to Valley Forge and some of the wives of the various British commanders were over here and wives of the troops and commanders and officers throughout, as well as of course, some of the other, but it did not have that connotation solely at all. And there are number of cases described in our brief and also in the Blumenthal book in which we got much in the material in regard to various court-martial actions, the various dates both by the British and the Americans. And I'd like read just briefly from the communication by General Washington with regard to this matter that I think evidence is the reason for the court-martial jurisdiction and the necessity for the discipline that was involved in connection with it in the handling of the troops and trying to win the Revolutionary War. “Dear Sir,” he is writing to the Superintendent of Finance of the Confederation, trying to tell him why he is spending so much money for all of these various purposes including taking care of the expenses for the various dependents that are along with the army. As I never saw and never heard of the resolve of Congress spoken of the Secretary of War as mentioned in your letter of the 21st instance and conceive it a right inherent with command to limit as circumstances and the nature of service may require the proportion of women to the men of an army. I confess I thought myself hurt by the interference of other departments without any previous notice or communication of sentiments with me on the subject. It will appear by having recurrence to my orderly book that an economical attention to the public interest in this case has not been wanting but that upon every return of the number of women called for at different periods when compared with the totality of the army, it has been found that no general rule consisting with American or British customs could be established that would not increase the aggregate amount of issues. And therefore, that it was better to submit through the surplusage in some course than to render the expense greater and the even more extensive by adopting a limitation which would pervade the whole army. Especially to as some of those corps were and still are under particular circumstances, for instance, the regiments of New York which in part are composed of Long Islanders and others who fled with their families when the enemy obtained possession of those places and -- and have no other means of subsistence. The cries of these women, the sufferings of their children and the complaints of their husbands would admit of no alternative. The latter with too much justice remarked, “If pay is withheld from us and provisions from our wives and children, we must all starve together or commit acts which may involve us in ruin. Our wives add they could earn their rations but the soldier, navy officer for whom their wars has not to pay them. In a word, I was obliged to give provisions to the extra women in these regiments or lose by desertion, perhaps to the enemy, some of the oldest and best soldiers in the service.” And then, there are number of cases in which it tells about the difficulties and about the handling of the dependents, the wives and other -- and the settlers in considerable detail. Now, that as I see it, demonstrates the practical problem of the armed services today in trying to handle this situation. The dependents are not sent overseas with these various forces in 63 countries throughout the world today for their own placement. It's because of the need, both in the morale and assistance and aid to the men in the services that they are included in the manner that they are. And it's a different situation, of course these constitutional concepts have to be adjusted to changing times but certainly the same basic reasons that are denoted in the letter of Judge -- George Washington are involved in the problem today of having these people with the armed services in foreign areas.
Hugo L. Black: Do you think its no -- no different, no reason to distinguish the power in time of war and time of peace?
J. Lee Rankin: I think there is some difference. I think that this Court has held that there are broad powers in apparent piece in regard to the preparation for war and carrying on the necessary defense of the country. And the Ashwander case was one example and there are a number that Your Honors are familiar with, I'm sure. And this is peace time in many respects. And also, we must have a ready defense in these 63 areas of the world to have -- to meet any force at any moment, and that's why we've gotten there. And I'm sure this Court recognizes that the combined judgment of the Congress and the executive that is necessary and that's why it's being done. And it's a part of that, of the expense and difficulties that relate to having the dependents of the family there are born by this country because of the need as I conceive it, rather than because of any desire or merely pleasure of these people concerned.
Hugo L. Black: Of course the cost of giving a jury a trial wouldn't -- shouldn't have any weight in connection with this right to an attorney.
J. Lee Rankin: No, not at all. If it was merely a question of cost, well, that would be in -- this Court certainly shouldn't give any regard to it. There are some problems in regard to that, but I'd like to avert to at this moment and that is that defendant suggest that the only answer to this problem is to bring these people back to the United States for trial. I think that's an impossible situation for this country as a sovereign power they have to face in the handling of this problem. If that's the only alternative, it seems to me, it is an impossible.
Earl Warren: Who said that's the only answer to it?
J. Lee Rankin: Do we say that as far as the Government's concerned?
Earl Warren: No, I thought you said that somebody --
J. Lee Rankin: The defendants in their brief.
Earl Warren: Say that's the only answer to it?
J. Lee Rankin: Yes, to bring them back. Now, --
Hugo L. Black: How many civilians are there? How many civilians and soldiers are there abroad, if you're going to serve soldiers -- use soldiers that could be summoned on juries?
J. Lee Rankin: Well, there's 450,000 civilians that are involved in this problem, both dependents --
Hugo L. Black: Right, where the --
J. Lee Rankin: -- and employees.
Hugo L. Black: -- wives -- most of them where their wives are.
J. Lee Rankin: Well, no, that's 450,000 civilians --
Hugo L. Black: Yes, but I have to say, in that area where their wives are in the main.
J. Lee Rankin: The dependents are in the areas where the weapons are.
Hugo L. Black: Where they're -- yes. I thought --
J. Lee Rankin: And that's true, throughout. Now, the problem you have if you try to constitute a jury and get a grand jury and a petit jury in -- say in England, that's the easiest example. Would -- would this Court approve as due process if it was entirely from the group of the military establishment? Or would you require that they have to include a part of the community? And how are we going to be able to exert the power to get a jury in a foreign country by compulsion from a part of that community so as to have a proper cross-section constituted under the rules of this Court as laid down. If you bring them back to this country, you have a question of transportation expenses and so forth. But that should not govern this constitutional question. However, it does have a bearing in regard to petty offenses and whether you are going to have an adequate discipline in the administration of your military forces because --
Speaker: That should bring back the -- may I ask if there's another (Inaudible)
J. Lee Rankin: Well, that's -- the next question is how are you can ever handle your witnesses and the object. I'm sure that this Court would be to try to -- to have a fair trial. There is no advantage in bringing these people back to the United States and have a less fair trial than you could have some place else. And there is no purpose certainly. I'm sure in the minds of this Court in having some other kind of a trial in saying Congress should not have the power to do this and have them subject to court-martial, and thereby, provide a less satisfactory due process trial than the one you have.
Hugo L. Black: Why -- do you -- do you say that as the absolute in this (Inaudible) to provide a less satisfactory?
J. Lee Rankin: No, I say introduced --
Hugo L. Black: England used -- England used jury trial -- juries to try its consular cases for many years, isn't it?
J. Lee Rankin: Yes, but I want to then proceed to the problem of the witnesses. How are we going to get these witnesses to come back to this country for trial?
Hugo L. Black: Have you had any cases where you did bring defendants back here in time before jury for the witnesses brought here from abroad?
J. Lee Rankin: We have had cases where we have tried to bring witnesses back and --
Hugo L. Black: You had -- somehow you did, haven't you?
J. Lee Rankin: Yes, and we have to give up some important witnesses and we recently lost the case that we described in the brief because witnesses refused to return. We've had to give up prosecutions because the witnesses would not participate in a tax case recently and the witnesses from Italy that refused to assist and come back to this country for a trial and we have -- I don't think --
Hugo L. Black: How many American civilians are in Italy?
J. Lee Rankin: I don't have that figure before me but I'll try to have it before the --
Earl Warren: General, bearing on the -- on the impossibility of following the procedure of bringing them back and trying them here, you're going to try one of these women here, are you not?
J. Lee Rankin: That's -- that is correct and there are --
Earl Warren: If you -- you can do that with her, why can't it be done with others?
J. Lee Rankin: Well, it seemed to me in considering the problem, you would want to provide a method of trial that would work for more than just one case because of the circumstances that happened to be in that particular case. Now, in the Covert case --
Earl Warren: But it wasn't the circumstances that caused you to -- to try her over here. It was the fact that -- that our case was reversed and you're -- you're up against trying her here, isn't that right? Now, you can try her here and you think -- you think this can be done satisfactorily.
J. Lee Rankin: Well, the reason I think it can be done satisfactorily, Mr. Chief Justice, because the witness has happened to be in this country. But if we had to get those witnesses from the foreign country, we would be -- unless they are willing to come, which in many cases they are not. We have no power of compulsion and we couldn't have a fair trial. And just imagine the situation --
Earl Warren: Haven't we been that way in our state courts for ever since beginning of time that you couldn't bring a witness from another state until recently to -- to testify? All he had to do is to be on the other side of the state line and Government couldn't use him -- couldn't use him but we tried cases just the same.
J. Lee Rankin: Well, I don't think that's quite --
Earl Warren: If they're difficulties -- they're difficulties, I agree, but does that warn us in saying that it's impossible to do it that way?
J. Lee Rankin: I think if you consider that you have no power of compulsion and that generally, the witnesses are away rather than here you have an entirely different situation from which you do in the state courts. They're all -- most of the witnesses, practically, all of them are in the foreign area at the time the crime was committed on a foreign country. Now, some of them might be part of the military force or dependents and so forth and be moved back so that they could -- could assist and participate in the trial and even be compelled to if they were available, but that isn't true in your status. Ordinarily, the crime occurred in the State and most of the witnesses are generally available there.
Earl Warren: Generally, yes.
J. Lee Rankin: Yes, so that you could assume that most of the time, you could get a fair trial. But now, you could imagine in this case, if we were trying to try them and turn the facts around and say we're trying to force them to trial in this country and that they -- they'd come here and say, “We can't get any of our foreign witnesses who can prove that this women didn't commit the crime,” and we have no power of compulsion. The Government doesn't furnishes anyway to bring them in. It doesn't have to, then they would say, “We don't have any kind of a fair trial,” and they would be asking you for a court-martial.
Earl Warren: They could take depositions, couldn't they?
J. Lee Rankin: Well not in a criminal case to -- the Government couldn't.
Earl Warren: No, as you were talking about the defense as I understood it.
J. Lee Rankin: Yes, a defendant could.
Earl Warren: Yes.
J. Lee Rankin: But I would hate the -- my experience in trying cases, I'd hate to have to rely on that in a capital case.
Hugo L. Black: Has the wife or any other member of the family of any soldier ever been tried by court-martial before these women were, in this country since the Constitution was adopted?
Earl Warren: I don't know of any case. We haven't found any. We found these cases prior to the revolutionary period, so --
Earl Warren: General, bearing on the size of this problem, have you -- have you tried to find out how many cases, serious cases of defendants have come to the attention on the authority and have been handled by court-martial under this law.
Hugo L. Black: We have had a -- it's difficult to give a complete break down because some of them have been tried under the -- in the foreign country. They are serious cases. And they have that right if we don't exercise the jurisdiction to obtain a waiver or we're unable to obtain a waiver and so forth. And then, there are a number of cases in regard to those that -- that have been tried by the court-martial. Most of the cases are for the lesser offenses. There, a number of the serious offenses is relatively few, but they're substantial.
Earl Warren: Could you -- could you give us a memorandum on how many cases there are of that kind of serious or -- and moderately serious cases that have been tried by court-martial. I'm speaking now only of dependents, not -- not to civilian employees. Can you do that for us?
J. Lee Rankin: Yes, sir.
Earl Warren: Would -- would you do it?
Felix Frankfurter: There was some figures in the Government's original brief, I believe.
J. Lee Rankin: That's right.
Felix Frankfurter: As of that time.
J. Lee Rankin: We have some --
Felix Frankfurter: I don't mean to --
J. Lee Rankin: -- a little more --
Felix Frankfurter: I don't mean to say we don't need these figures but there were --
J. Lee Rankin: Yes.
Felix Frankfurter: -- there were those figures.
J. Lee Rankin: That's right.
Earl Warren: Were they broken down between employees and dependents? They -- I understood they were not.
Felix Frankfurter: They were civilians, generally.
J. Lee Rankin: Yes.
Earl Warren: Well, that's different. I'm talking about dependents as a problem. I -- I think its one thing, isn't it to -- perhaps as to whether civilian employees of the army are subject to court-martial and because they're connected with the service, quite another thing for dependents who have no connection with the service.
J. Lee Rankin: Well, the --
Earl Warren: Perhaps you don't make the distinction but to --
J. Lee Rankin: Parties have agreed that the --
Earl Warren: -- to my mind, there is some distinction.
J. Lee Rankin: Yes. But there is no constitutional distinction in our controversy back and forth in the briefs. But that doesn't mean we can't try to furnish the information to you. We have furnished a part of it, but recently, the Defense Department furnished some further information about this to the Congress, and we will see that that is also furnished in the Court.
Felix Frankfurter: I intervene merely to suggest that the figures you did give of the total was what might be called very -- not a sizable problem under serious offenses, that is correct, isn't it?
J. Lee Rankin: Well, that is correct, except for this one caveat, if I may utter it and that is that the -- the fact that you have so many trials of offenses does not mean that you might not have a great many more if you didn't have any adequate means to handle the problem. And if we had to bring everybody back to this country for a trial --
Felix Frankfurter: They'd go on -- they'd be stimulated to commit major crimes.
J. Lee Rankin: That's right. That's our argument. And we think it's -- it's very real in this situation.
Hugo L. Black: Are these -- this woman have been tried in England under their law, she'd have a jury, wouldn't she?
J. Lee Rankin: Yes, she would. And I'm sure she could have had that kind of trial if she wanted it at the time.
William O. Douglas: Your figures were isolated to show that all these court-martial cases there were employee cases.
J. Lee Rankin: I think that's generally the case there that the provision for dependents was not generally made so they don't have the same problem there.
Felix Frankfurter: Mr. Solicitor, may I ask you whether there are any general considerations, either formulated or acted upon which lead the Government to let the host country to try taking instead of letting -- having them taken over by us?
J. Lee Rankin: Well, the general considerations under the present relationship of the three is -- are that we should in all cases, by direction of Congress try to have them taken over by us, rather than by the foreign country.
Felix Frankfurter: Is that in that statute?
J. Lee Rankin: It was --
Felix Frankfurter: When you say direction -- how was that manifested?
J. Lee Rankin: I think that was in connection with the approving of the status of forces.
Felix Frankfurter: There were speeches in the Congress in which they were quite outright that an American should be -- when he commits a crime abroad, he should be tried by that country which presumably some of the speakers indicated are all barbaric codes. Some of the speeches in Congress make one wonder where this men really lives as in talking that way about Western Union prudence.
Earl Warren: Well, General, I -- I thought just -- just recently, I read in the paper where we had given up our right to -- to try our people in this situation in Morocco.
J. Lee Rankin: Well, no, that was a different -- that was an extraterritorial court, something like the consular --
Earl Warren: No, my -- my recollection is that after that consular court or whatever you might call it had been abolished by Congress, we entered into a -- a treaty to -- to permit Morocco to try our people over there. And the way I read it, was in connection with the Philippines situation. The Filipinos were complaining that we -- we permitted Japan by treaty to try our citizens. We -- we permitted Morocco by treaty to do it, but we haven't yet done it so far as the Philippines were concerned and they were complaining. Now, I may have misread the -- the news dispatchers but that's the way I read it.
J. Lee Rankin: Well, under the Status of Forces Agreements, they have the power to try the host country -- has the power to try American citizens for whatever crimes occur off the base.
Earl Warren: Yes.
J. Lee Rankin: And that is the pattern all the way through and is also applied to Japan. And I assume it was applied to Morocco, although I'm not familiar with that particular situation. Now, as to those on the base, there is a right of the -- that involves Americans in both the individuals involved before the United States to obtain the trial of the crime. And Congress by resolution has directed that before we can, we tried to obtain that benefit on the assumption or various assumptions. One of them was they couldn't have a fair trial in some of those areas, but also, they are responding to the problem they have to deal with -- with their constituents who are unhappy with a foreign jurisdiction that they're not familiar with. There's a different language and the penalties may be such that are quite disturbing, you'd know they aren't inflicted in a particular situation.
Hugo L. Black: Have you discussed in your brief how we could reconcile adopting your position here which is that women who have never served in the army to be tried by court-martial for crimes committed abroad but that soldiers abroad who commit identically the same crime cannot constitutionally be tried by court-martial after they have left the army?
J. Lee Rankin: We've tried to explain that. We thought we did, and that is when we said that in Toth case, which I think you're --
Hugo L. Black: Yes, I'm little interested in that.
J. Lee Rankin: -- speaking about that the soldier was six months out of the service --
Hugo L. Black: Well, the woman was -- all of her lifetime of service.
J. Lee Rankin: Well, then, if you say that, then you disregard the historical record of the fact that the association of women and civilian employees with the Armed Forces since long before this country was established. And --
Hugo L. Black: Well it -- but there's -- certainly been along the record of trying soldiers in a stronger record than trying wisely --
J. Lee Rankin: Well, they tried both when they had that problem. And that's the history and they did it before --
Hugo L. Black: We'll hear that -- we'll hear from Mr. Wiener on that, (Inaudible) I have just been curious to know how the Court could possibly say that a soldier cannot be tried for committing a crime abroad, wholly because he's been put out of the army, but women who'd never been in the army can be tried by court-martial.
J. Lee Rankin: Well, we think that they were so closely identified.
Hugo L. Black: Not as closely as the soldier?
J. Lee Rankin: Well, after he's six months out, he just isn't identified at all. That's our answer to that.
Earl Warren: General, supposed this -- this woman who was convicted in England by court-martial, had not lived on the cantonments, suppose she had lived in a downtown apartment in -- in London and had not taken advantage of the -- of the post exchanged rights and the hospital rights and -- and the other things that the right to get rent at the cantonment. Suppose she chose to live in an apartment down in the center of London, would she still have been subjected to court-martial?
J. Lee Rankin: Well, it depends upon how you fix the facts if she really isn't a dependent.
Earl Warren: Oh, yes. Yes, she's a -- she's a wife of an army also. Let us say the same circumstance you've got here except that she happens to be living in an apartment downtown by choice rather than to live in the army camp.
J. Lee Rankin: Well, if she's participating in all of the army in the same ways, she then by all of the historical traditions is a part of that military unit, even though she happens to be located right outside the enclave or clear down in some greater distance. There are so many elements of the benefits and the participation that she has as a part of the military activity. Now, if you'd exclude her from all of that, then that would be something else but I don't think the mere location across the enclave or some miles away would not change the legal situation.
Earl Warren: There was no requirement when she went over there that she was obliged to live on the enclave.
J. Lee Rankin: No, that was a benefit to her.
Earl Warren: A benefit to her.
J. Lee Rankin: Yes.
Earl Warren: Yes.
J. Lee Rankin: And that was through during the revolutionary period --
Earl Warren: Yes.
J. Lee Rankin: -- and prior. They didn't all live in the enclave, they lived in the towns.
Earl Warren: Yes. And of course, they would have the -- she'd have very much the same benefits if her husband was stationed in this country and she lived on the enclave.
J. Lee Rankin: That's true.
Speaker: Could I ask you a question? Oh, excuse me Mr. Chief Justice.
Earl Warren: Oh, I'm finished.
Speaker: Assuming that the Article I powers held to apply to his dependent, do you think it necessarily follows that she can be tried by a court-martial even though one would agree with your position that she doesn't have to be tried before a jury. In other words, does it follow automatically from saying that the Article I power exist if the court-martial jurisdiction exist, as distinguished from a civilian judge without a jury?
J. Lee Rankin: No, I don't think it's automatic. I think it's a question of whether the use of that power in this manner is reasonable and not arbitrary in the opinion of the Court, in relation to the constitutional power. Now, it seems to me that involves a question of what kind of protections are provided, how they are compared with the protections historically, and whether the Court regard it as a fair trial or due process. This Court has recognized court-martials as due process actions and I don't think the mere fact that you call the court-martial a military court or an X-court makes it constitutional or not constitutional. It's a question of what kind of an exercise of power Congress is trying to make --
Speaker: You make no question (Voice Overlap) --
J. Lee Rankin: -- what the historical position was with regard to that whether it's exempt, and whether or not that is a proper, reasonable, and not arbitrary, exercise to that power. Now you might think that a Civil Court of some kind differently constitutes without a jury or a grand jury, was a better idea. But I don't think that's the question in this case. I think Congress has the right once you find the power to exercise it under Article I, or under the In re Ross theory or under the general sovereign power of the United States or under the war power. If you find the power is there, then the choice as long as it's not unreasonable arbitrary ought to be after the Congress.
Stanley Reed: Suppose you -- the army said that her wife wanted to go overseas with her husband that she had to enlist, you were saying, they wouldn't pay her any money to perform the same duties or whatever duties she's performing that they didn't perform in this case, would that change the situation?
J. Lee Rankin: Well, if you would require that, there's no question of what that case would be one, it would be subject to court-martial. The problem would be from a practical stand point, whether he could -- Congress or the Court will wish to impose on the defense establishment in necessity of forcing the woman into enlistment in order to have her disciplined and have proper control of the armed force. I don't think that it would be a reasonable approached to say that it's legal one way and not legal the other way as far as the desirability. Certainly, if she is a member of the armed forces, I think there could be no question about it.
Stanley Reed: Do you think they had a paper transaction of that type then there wouldn't be any question?
J. Lee Rankin: That might be.
Earl Warren: General --
Hugo L. Black: Have you discussed -- excuse me.
Earl Warren: Pardon me, go ahead.
Hugo L. Black: Have you discussed in your history -- have you stated in your history, when was the first time in this country even a soldier could be tried for the civilian crime of murder?
J. Lee Rankin: I don't recall that we have dealt with it just that way but I'll be glad to furnish a memo in that regard if you like.
Hugo L. Black: I think you would find it was about 1863?
Earl Warren: General, while we're dealing with dependents, suppose this was a child, clearly a juvenile, he committed the -- a serious crime over in England, would you try the child before a court-martial?
J. Lee Rankin: Well, it seems to me if you're getting back then to the question not of power but whether you think it's desirable. Now, if that child was tried in this country, it could not have a jury trial in many states. It might -- it would be required in the federal court. It couldn't have 12 jurors. It couldn't have a grand jury indictment, and yet, you'd say that was perfectly legal.
Earl Warren: Well, it could -- it could if he was -- if he was to be treated as a criminal. It's only whether -- as I understand it, it's only where the state waives his right to treat the -- the juvenile as a criminal, and treats him as a ward of the -- of the Court that it can discipline him, but it cannot. They could both consider him as a -- try him as a criminal, and do it other than by jury.
J. Lee Rankin: Well, yes but Mr. Chief Justice, what I was calling attention to is, this Court has approved in a number of cases, the fact that state -- states under the Fourteenth Amendment are not required to have 12 jurors like you are required in a federal court.
Earl Warren: Yes.
J. Lee Rankin: And they're not required to have an indictment by a grand jury, like you're required in a federal court. And yet, that is the kind of due process that would be -- they would receive in a number of the states in the union. I'd like to reserve the rest --
Earl Warren: Yes, you may. Colonel Wiener.
Frederick Bernays Wiener: If the Court please. I come here for the second time to urge that nothing in the Constitution of the United States authorizes the trial of a civilian woman by court-martial in time of peace. But before I address myself to the Constitution, I wish first to show that no such power can be derived outside the Constitution that the fact that a foreign country may consent to our taking the offender home, or even trying the offender on foreign soil, does not in and of itself confer any jurisdiction on our courts. And there are two illustrations of that in this Court. One is the Wiltberger case. Wiltberger killed a sailor on board an American ship anchored off the shore of some Chinese river before the days of extraterritoriality. He was brought home for trial and this Court held in the 5 of Wheaton that since no act of Congress reached his offense, he went free. And the second illustration is Toth. Toth was taken to Korea for trial. Korea made no demand for his surrender although he had killed a Korean national. Toth was going to be tried by an American court-martial and this Court held that no such jurisdiction could be conferred on that tribunal. And the second point is that the jurisdiction asserted in Article 2 (11) of the Uniform Code was always based on our law as the legislative history shows. The subject 2 clause was intended only to avoid conflict. It was intended as a limitation to avoid international complications, not as a conditional grant and the best proof of that is the other woman, the British woman, Mrs. Billhardt (ph) who was tried by an American court-martial in a Eritrea, if you please. Certainly, no treaty there, no agreement, she was sentenced to life imprisonment. In order to get her into (Inaudible), she had to be paroled by the Attorney General and she is now serving a life sentence there. And the third point is that the NATO Treaties didn't purport to enlarge our military jurisdiction. I agree with the Government, we should regard these cases in the light of the NATO or NATO-like agreements instead of these temporary agreements. It's perfectly clear from Article VII of the NATO Status of Forces Agreement that we were given the right to exercise such military jurisdiction as we have by our law. It didn't purport to enlarge our jurisdiction and it couldn't have done so because if these people were not triable by military law as a -- as a matter of the limitations of our Constitution, no treaty could remove those Constitution -- those limitations. And in that connection, I'd like to read only two sentences from the brief the Government filed two terms ago in the Katz case. The basic axiom is that as a sovereign state, the United State possesses in its dealing with other states, all of the normal powers of a fully independent nation, subject to constitutional limitations like the Bill of Rights which governed all exercise of governmental authority in this country. And again, together with statutes and treaties, executive agreements are subject to the Bill of Rights and the other clauses of the Constitution which protect all Americans from the excesses of official authority. Now, I submit that that is a doctrine too fundamental to be put on or taken off like a dress shirt as occasion may require. The Bill of Rights is a limitation on all federal power where -- wherever it's exerted and even if you leave the word treaty power and talk about the power to conduct foreign relations, that power can only be exercised within the limitations of the Bill of Rights. And insofar as the military needs of the international community to which resort is made are relevant, those needs can be satisfied by us, only subject to our own constitutional limitations. So, I come back to the Constitution, which is the source of all power. We must bottom this asserted power to try by court-martial civilian women and civilian children on some grant of power in the Constitution. Now, before I get to what may be regarded as doctrine of considerations, I'd like to explore briefly some of the so-called practical considerations which appear in the Government's briefs. Some of them are just lawyers' talk in briefs. Some of them are letters from overseas commanders, plainly and literally self-serving letters from the very officers whose powers are here called in question. This Court has never in going outside of the record to find materials of a -- facts of general knowledge has never looked to self-serving documents of this nature and more importantly, those materials are wholly unsatisfactory in several important respects. Let's take first dependents. The Government argued, “Well, we've got to try these poor girls by court-martial otherwise, they will be thrust into some foreign court.” And we pointed out that under the NATO Status of Forces Agreement, all offenses by civilian dependents, not just offenses outside the camp, all offenses by civilian dependents are given to the foreign country as having primary jurisdiction.
Earl Warren: And not without regard whether on United States enclave or not?
Frederick Bernays Wiener: Exactly, and without regard to the victim of their offenses. Any of a primary jurisdiction over all offenses by civilian dependents is conceded to the receiving state by the NATO treaty and the Government replies to that. Well, it's the best deal we could get.
Felix Frankfurter: But what that means is that if England in response to its public opinion, things that murders committed by American civilians living at the Hotel Savoy should be tried at the Old Bailey, they may stand on that?
Frederick Bernays Wiener: Exactly. Now then, we said there are very few cases of court-martial trials of civilian dependents. Out of almost 10,000 cases in the Court of Military Appeals, there have only been four and two of them are here. We still don't know, we still don't know how many civilian dependents have been tried by court-martial. The Government says, "Well, there are about 500 offenses and we got waivers out of 420." But they don't say how many were actually tried by American court-martial and I will be very much interested in seeing the memorandum which the Chief Justice has requested because I don't think there will be many. So, is it the -- is it the urge to punish crime that is the motivating factor here or is it the urge to control and discipline the women? I suggest that it is the latter because the first has been provided. Now, we get to the civilian employees and we said, “Yes, we -- there are 23,000 American civilian employees overseas.” What military reason is there why you need civilians to do military work? And we said pointing to the budget for the appropriations hearing in the committee reports in similar legislative material, the only reason they've got civilians doing military work overseas is budgetary, it costs a little less. Now, whether these modern budgets give us more bang for the buck is of course not a justiciable issue, but whether they give us less constitutional protection for a buck is. We said there's no breakdown of these 23,000 civilians. How many of them are clerks and shoppers? Our understanding is most of more in the lower brackets. Well, we still get no breakdown although it's finally conceded that some 40% are in class five or lower, but we do get some figures on people who aren't even civilian employees of the United States who are just employees of contractors and technical representatives. And as the Government argues, the only alternative trial by court-martial is no trial at all for two reasons. Many of these offenses are not offenses against foreign law and many others are not offenses against the general criminal law and we say, “Well, what about the alien employees of the Department of Defense overseas?” There are 15 times as many alien civilian employees as American civilian employees and the Government says, “Oh well, we don't let them near the classified papers.” And then, we ask, “What about the civilians at military installations in the United States? Every one of which from the Pentagon down is infested by civilian who works cheek by jaw, side by side with the persons in uniform.” “Oh,” says the Government, “we have a U.S. Commissioner and he tries traffic offenses.” Well, now, that's a pretty agile broken field running, but this is an appellate court, not the Rose Bowl. And I submit that these materials are utterly unreliable as a basis performing a -- a judicial judgment on what is necessary or what is reasonable, but more importantly, this is not a question of reasonableness or of legislative judgment. It is a matter that has been placed beyond the scope of legislative judgment by the Constitution. And I will illustrate by the cases Mr. Solicitor has referred to, the state cases that say, you don't have to have indictment or jury trial. Well, now, it's perfectly reasonable to say in California that “We will prosecute by information instead of indictment” or to say in Utah, “We will only put eight men on a criminal jury.” That is perfectly reasonable and therefore, it does not contravene the Due Process Clause. But you certainly couldn't justify similar procedures in a federal court on the ground that it is reasonable and reasonable Congressmen might conclude that this is a better way to do it, because federal action is governed by the Bill of Rights. Now, what we're dealing with here is the extended jury trial and even more importantly, a boundary between civil and military jurisdiction and to ascertain that, you use other techniques. You resort to history, to the precedents, to the practice, best illustration, best reasoned illustration. In the Crawford case, this Court held in the 212 U.S. that you couldn't use government employees on a criminal jury. In the Wood case in the 299, that was overruled, why? Because the Government showed by resort to historical materials from the days of Black-Leather-Folios and law of French that a king-servant wasn't per se ineligible to be a juror. That is the technique that you used. Now, everything, history, precedents and practice and I will go into the history in -- at some length because of the materials that have been adduced here. All three unite against this military jurisdiction over civilian wives in time of peace. And first -- first, I looked at Clause 14 of Article 8 -- Article I Section 8, “The power to make rules for the Government and regulation of the land and naval forces.” I will call that by way of short-hand through out the Clause 14 power. Well, the first blush impression is that the power to govern the armed forces is not a power to govern wives of the armed forces, because they're not a part of the armed forces. They're not members of the armed forces. True, when they marry a service man, marriage is a contract that creates a status. Enlistment is a contract that creates a status, but when the chaplain marries the girl, he isn't acting as recruiting sergeant. And what about the children, why do the children become subject to military law just because papa wears a soldier suit? Now, that first blush impression that the land and naval forces doesn't include the wives and children of the land and naval forces is confirmed by detailed study and such study leads to the conclusion that military jurisdiction is a matter of status, except for a very limited class of civilians. Now, historically --
Speaker: Mr. Wiener, do you -- I understand the Solicitor General to say that it was common ground between both of you that as far as constitutional power is concern no distinction was to be made between civilian employees of the army and dependents.
Frederick Bernays Wiener: I would -- that is substantially so subject perhaps to this reservation. I'm dealing only with wives here but -- at the beginning, when this -- when I commenced this litigation, I felt that possibly you could make a distinction based on functional connection. But the deeper I went into it, the deeper -- the more convinced I was if the line is drawn on status and therefore functional connection -- therefore, although a military jurisdiction asserted over a person is not functionally connected was broader than over at persons who were so connected. There wasn't any justification for the other either in time of peace, because traditionally, the only civilian subject to court-martial jurisdiction were under three very distinct limitations. The first was functional connection. The second was it had to be in time of war or actual hostility and the third had -- was that it had to be in the field that is to say in the theater of war or actual hostility. As I point out later, the extension from person serving with which implied functional connection and from retainers to the camp which implied some degree at least of functional connection to persons merely accompanying, so that the mother-in-law would be subject to the miliary jurisdiction if she stayed long enough as the curious legislative history of the code indicates. There was an extension, but -- but I think that when you go into it, it -- that jurisdiction over evens functionally connected persons can't be properly or constitutionally exercised in time of peace.
Speaker: In other words, if you had a civilian or electrician here employed by the army, your position would be the same --
Frederick Bernays Wiener: Exactly.
Speaker: That's right.
Frederick Bernays Wiener: Exactly, yes. So that the traditional jurisdiction was limited by occupation by time and by place and of course these women aren't in either. And those limitations were never extended whenever they were called in question, the post trader, the contractor, the clerks and Winthrop. Winthrop did say after 30 years study of the subject of military law that any statute which attempts to subject the civilian to military jurisdiction in time of peace is necessarily unconstitutional. Now, I come to this so-called historical material presented as newly discovered.
Felix Frankfurter: Before you go to that, I'd like to ask you whether assuming everything you say so that these are -- they haven't the status. They're not part of the armed force. What of the doctrine that is often resorted to or what are the considerations in constitutional construction that you may sweep into an exercise of power to some -- a number of situations that are not explicitly within the granted power in order to give effectiveness to the granted power?
Frederick Bernays Wiener: Not in the -- I'll give a short answer now and then discuss it at length under the Necessary and Proper Clause. The answer is you can not sweep beyond the 1789 boundary of jury trial. On that, I am -- on common ground with the Solution General. Now --
William O. Douglas: Does the history of this military code draw any light on this problem?
Frederick Bernays Wiener: Yes, yes, definitely.
William O. Douglas: They -- I've been reading the hearings, you appeared, didn't you, as witness?
Frederick Bernays Wiener: Yes -- yes Your Honor. The history --
William O. Douglas: Did you address yourself to this question?
Frederick Bernays Wiener: No, I did not.
William O. Douglas: Was there any indication by the Committee that was considering the Bill as to their purpose in drafting this provision of the Code?
Frederick Bernays Wiener: Yes, their purpose was to carry forward what had been Article of War 2 (d) since 1960. Nobody sensed a constitutional issue. In the language which the draftsman of the Committee once used in a classroom in my hearing, they didn't even know enough to be confused. As a matter of fact, they were so unaware of the Rasmussen case and the requirement for a jury trial in Alaska that they obligedly included the bar allusions within Article 2 (11) because they said, “Oh well, a civil system isn't -- was available.”
William O. Douglas: Was Professor Morgan one of the draftsmen?
Frederick Bernays Wiener: He was the draftsman. And -- and his -- he had disposed of this --
William O. Douglas: He -- he knew quite a little bit about constitutional law.
Frederick Bernays Wiener: Not on this -- not in this field, Mr. Justice. Not in this field and I will -- I will explain why. He said and he's imprint on it. He said -- the Fifth Amendment says, “Not members of the land and naval forces, but cases arising in the land and naval forces.”
William O. Douglas: That's his article, the Minnesota Law Review?
Frederick Bernays Wiener: Exactly. He assumed and he had plenty of company and lower court decisions his way. He assumed that it was only a question of cases arising and in other words, he looked on the Fifth Amendment as a grant of court-martial power. Now, Toth of that course exploded that.
William O. Douglas: Yes --
Frederick Bernays Wiener: I -- I regard --
William O. Douglas: I had a problem getting it. Was there any discussion of the constitutional -- I haven't finished the material.
Frederick Bernays Wiener: No, it wasn't -- there wasn't a whisper on it. Nobody had any question. Here is the sort of things.
William O. Douglas: The major hearings were in the -- before the House, weren't they?
Frederick Bernays Wiener: Yes, sir, that is correct. Nobody raised this question. Nobody saw a constitutional question even in attempting to apply military trials --
Felix Frankfurter: It doesn't --
Frederick Bernays Wiener: -- to be a solution.
Felix Frankfurter: That doesn't prove it, but it was so clear that no question would be raised.
Frederick Bernays Wiener: No, it's -- and here is the discussion which I think are on the floor. Mr. Kemp, Senator Kemp is asking a question about this and incidentally this quotation disposes of the notion that Congress was making a conscious choice between competing jurisdictional ideas. Mr. Kemp, “I should like to ask a question in regard to subsection 11 of Article 2 to which the Senator has just made reference. Am I correct in interpreting subsection 11 to mean that a wife who accompanies her husband who is a member of the armed forces to appoint outside the continental limits of the United States would be subject to this Code?” And Senator Keith Hoffer who is in charge of the Bill said, “If a wife accompanies her husband outside the continental limits of the United States and outside the territories listed in subsection 11, she will be subject to the Uniform Code as presented in this Bill just as she is subject to the military code today.” Nobody raised their thought or -- or any conception that there was even a constitutional question. Now on 3 (a) -- on 3 (a) which was condemned in Toth, there was a discussion. They had -- a question was raised as to its constitutionality. But on this, they just went blithely along. This has been in -- on the books since 1916. We'll extend it slightly even including part of a (Inaudible) There just wasn't any constitutional discussion at all on this until we left it.
Felix Frankfurter: And there wasn't much in 1916?
Frederick Bernays Wiener: There was none in 1916 and all that General Crowder, who was a distinguished military lawyer, all that General Crowder apparently had on his mind was the fact that at thieving quartermaster clerk who had been in Cuba, in the second intervention under Governor Magoon escaped back to the United States and got off Scot-free because he was covered by an amnesty proclamation, and that is all that he ever had on his mind. There wasn't -- there has never been in the Congress, there has never been in the Congress a word about the constitutional validity of Article 2 (11) or of any credit. I turn now to the so-called historical materials and when I -- after I read them, I filed this reply with a red cover to flag the other untrustworthiness of the materials. The Government relied on a discussion in the Continental Congress in 1786 and said, “See, here is the law that the Continental Congress passed in 1786.” That is the statute that never was. It wasn't passed. Now, today, the Government has filed this and said, “Well, maybe it wasn't a law and they take me to test for what I've said, and they are correct in criticizing me.” If I had researched for a little further, I could and should have pointed out that not only didn't in this provision that they rely on it in their brief, passed the Continental Congress 12 days later when the 1786 Articles of War were adopted. It repealed the similar provision that had been in the 1776 articles. Well, now, let's get to Mr. Blumenthal. And if he is the lawyer, he is not listed in (Inaudible) I assume he's a diligent (Inaudible) historian. Women Camp Followers of the American Revolution and this proves only what a good many have known that the most enduring and durable alliance of all is between Mars and Venus. All of these -- all of these -- were war time cases.All of them were war time cases in the field. Two, there are three British trials of wives.One was in the Boston in December 1775 when General Washington and his Continental Army had battled up the British there. So plainly, that was the war situation if indeed it wasn't in modern concepts to martial law situation. And then there were two trials of wives in Canada in the 1760s when Canada was occupied territory, because in French sovereignty, the French still had title to those provinces. To answer the question Mr. Justice Black asked, when was the first American wife tried by court-martial. There are no authenticated instances of such trials in the American service in this book or anywhere else, and it wasn't until 1950, 175 years after Washington took the man to the Continental Army that the cluster of American arms was tarnished by any such performance. Now, let me just deal briefly with some of the other historical materials. There's reference to the fact that the Coast Guard which used to be known of course as the Revenue Cutter Service had civilian seamen on board public vessels and the implication of course is that these civilian seamen, notwithstanding their civilian status were subject to trial by court-martial. That is a mistaken implication because the Revenue Cutter Services never had court-martial jurisdiction of any kind until 1906. Then, there is -- there are dug out of the archives some trials of settlers in the 1920s and 1930s, not in the field. And it is said, “This shows that the practice was broader than Winthrop indicate.” Well now, there were three instances at the time when the army didn't have a lawyer and when the question came up after the settler had become the post trader. The Judge Advocate General of the Army held there's no such jurisdiction. He is not a camp follower because he can only have camp followers in time of war.
William O. Douglas: Is that the Mexican border case?
Frederick Bernays Wiener: No, Your Honor, that is (Inaudible) Indians. It's at pages 46 to 47 of the white brief, it's set forth in full. Then, the Government very conveniently sets forth, I'm awfully glad they did in Appendix B of their reply brief on re-argument beginning at page 86. Two opinions of the Judge Advocate General in full, which we only had in digested form and as their text is reflected in Winthrop. And they make it perfectly clear that the civilian settler retainers to the camp jurisdiction of the American Articles of War that was there beginning in 1775 was limited to a time of war or actual hostilities and was limited to a situation in the field when the troops were engaged in defensive our offensive operations. The argument seems to be, the argument seems to be that because that opinion refers to a few trials which took place earlier and condemns those trials, therefore, the condemned practice is to be taken as more correctly establishing the law than the opinion which condemned it. That goes under the name of history. Well, now, that being sought when the constitutional convention adopted Clause 14, verbatim from the Articles of Confederation, can it be supposed that anybody read in those words land and naval forces an expansible jurisdiction? When Your Honors recall that even the provision for a standing army under the army clause of the Constitution was denounced as unconstitutional in the first Congress, is it reasonable to suppose that if anyone had ever imagined that clause to be an expansible concept, capable of including within a sweep women and children that some of the valuable articulate and imaginative anti-federalists wouldn't have screamed to high heaven, all through the ratifying conventions just impossible? There, it is correct to say that with only scattered exceptions, there were no actual civilian trials by court-martial in time of peace with approval of higher authority before 1941 that there was no trial of a wife by court-martial until 1950 and that even those first trials with military government trials because they took place in occupied territory. Now, the conclusion that the Clause 14 power doesn't reach these two women follows from anyone of three independent bases. And the first is a contemporaneous long, continued construction of the constitutional provision. The second is that we look for our boundaries of jury trial, the situation as it existed in 1789. And third, whenever that boundary was sought to be extended, in the Milligan case, in Duncan against Kahanamoku and in the Toth case, the attempt has failed, and I'm happy to see that it hasn't succeeded here again. Now, is that Clause 14 power, it's varied by anything in the Necessary and Proper Clause? In the Toth case, it was squarely held in the negative. Toth case, the Court said, “That power is not enlarged by Necessary and Proper.” We show that no one ever thought so in 1789. We show that no one ever thought so after McCulloch against Maryland that demonstrated the potentialities of that clause. We show that no military man who certainly wouldn't be backward about asserting military jurisdiction ever thought so for a century afterwards and here is the reason. The Necessary and Proper Clause after all is the doctrine of implied powers. But the Necessary and Proper Clause doesn't dilute specific personal guarantees because after all the Bill of Rights amends Clause 18 of Section 8 of Article I just as much as it amends everything else in the Constitution. And if we go back -- if we go back to what the great Chief Justice said in McCulloch against Maryland and I'll just read a single sentence which has really foreshadowed the entire development of the Necessary and Proper Clause that the end be legitimate. Let it be within the scope of the Constitution and all means which are appropriate which are plainly adopted to that end which are not prohibited but consist with the letter and spirit of the Constitution, our Constitution. Now, our position is that to try by court-martials, civilian women in time of peace who weren't so triable at the time of the adoption of the Constitution is not a legitimate and is not within the scope of the Constitution, is twice prohibited by the Constitution and is utterly inconsistent with both the letter and the spirit of the Constitution, and that brings us back to the Toth conclusion. And as I have said in response to questions put by Mr. Justice Douglas, nobody, -- nobody ever raised the constitutional question when this jurisdiction over civilians was first extended and that was in 1916 as to all free limitations. From functional connection, they went to accompanying. From war, they went to peace and from theater of operations they went to outside the continental limits of the United States. In the briefs, there is considerable discussion as to whether the wives and children outside the United States are part of the armed forces. I think it's an attempt to semanticize the men to a military status and certainly so far as the civilian dependents are concerned, that attempt necessarily breaks down in the face of the NATO provisions which put them in a separate category and don't give them as much -- don't subject them to as much American jurisdiction as civilian employees or members of the forces. And I was prepared to argue as I've argued in the briefs that they are no more members of the land and naval forces than the women who are quartered with their husbands on any army post or air force base or naval station in the United States. And then, I must confess, I was -- I was amazed when the Solicitor General said that it's only a question of legislative judgment that anytime Congress wants to subject the good ladies in Fort Myer to trial by court-martial, they can do so. I suggest to my learned friend that he examine the Sixth Amendment and read it over just once.
Speaker: While the war was on, could these people have been tried in England if they had been under court-martial there?
Frederick Bernays Wiener: I would -- I would say Mr. Justice that England during the war was in the field.
Speaker: I would suppose --
Frederick Bernays Wiener: I'm not --
Speaker: Do you think they could be?
Frederick Bernays Wiener: It's -- it's only a theoretical because there were no wives there unless they happen to have some other military status. But I would say that -- that England which was a base for the -- the largest amphibious invasion of history, which was subject to enemy bombardment, enemy bombing, I wouldn't have any difficulty in saying that was in the field and that anyone accompanying the armies there was in the field, was subject to trial and was with --- within the traditional limitations.
Speaker: The English courts were open and functioning all through the war, all through the bombardment?
Frederick Bernays Wiener: Well, that would be a question of -- of English constitutional law whether a -- an English civilian working for the forces could be so tried. But I think from our point of view, if we had these people actually there, the newspaper correspondence, I would say that they were within the field and -- and within the traditional limitations.
Speaker: Could they have ceded jurisdiction to us?
Frederick Bernays Wiener: Well, whether England -- whatever England ceded would have no effect on our jurisdiction. I mean, all that England could do was say that they did -- wouldn't cede jurisdiction. They would consent to our exercise of jurisdiction, but whether we had jurisdiction would depend on our law. But I would have no hesitation in saying that England was in the field during World War II so far as our forces were concerned.
Speaker: What about then and during the Korean War?
Frederick Bernays Wiener: I -- that was not in the field. It was too far back. They let wives over. Korea, yes, probably even Southern Korea. They never let dependents go there.
Speaker: Weren't the troops moved out to Japan?
Frederick Bernays Wiener: Yes, and the troops were moved out of the San Francisco Port and the -- the orders were given from the Pentagon. But -- but Japan was too far back. Japan was too far back and the best proof of it is that in the Covert case that they didn't even try to defend on that -- I'm sorry, I misspoke -- in the Dorothy Krueger Smith case, there was no attempt to defend that the trial level on the basis that Japan was in the field within the meaning of that jurisdiction. Well, now, if we can't rest this power on Clause 14, where can we find it? What about the consular courts? Well, the consular court as Judge Hudson said is a more abundant historical jurisdiction. It's rather ironic that Congress and the President repealed it and disposed of it in the very year that it was relied on here to support something else.
William O. Douglas: Do you mean the Morocco Court?
Frederick Bernays Wiener: Yes, Your Honor. There -- there's no more consular jurisdiction, those statutes have been repealed. There's no more extraterritorial consular jurisdiction exercised by the United States anywhere. That went out last -- the statute was passed joint resolution on August. It was given up on October. It's all out the window now as a matter of history. Is it possible to sustain that jurisdiction? Well, it isn't possible to do it on the ground in which it was placed In re Ross.
Speaker: Before you go on to that, could I ask you a question?
Frederick Bernays Wiener: Certainly.
Speaker: Am I correct on the thinking -- in thinking that the English, the British have given court-martial jurisdiction recently to --
Frederick Bernays Wiener: Yes, beginning the first --
Speaker: -- dependants?
Frederick Bernays Wiener: Beginning the first of this year. But of course, they're not bound by constitutional limitations.
Speaker: Who organized that?
William O. Douglas: What was the question?
Frederick Bernays Wiener: The question was whether the British had conferred a 2 (11) jurisdiction on courts-martial and the answer is yes, effective the first of this year. And I -- and I was about to add that of course they have no written Constitution in both the Toth and Hirschberg cases that would have arisen differently if they had come up under English law. The ground for sustaining the consular trial given in Ross was that the Constitution can have no operation in a foreign country. We know that that's a stand up because that this Court later said, “The Constitution of the United States is in enforced whenever and wherever the power of our Government is exercised,” so that does in Ross. And then there was a query, I think in Mr. Justice Frankfurter's opinion last June, “Can't it be said that the consular court that tried Ross was exercising Japanese judicial power?” And if you look at the consular court proceedings, that does in Ross either because he was an American officer. He derived his power from an American statute and then in his warrants and on the entire proceedings, they recited a reliance on Acts of Congress. The only basis I think -- the only basis on which it is possible to sustain the consular jurisdiction is that it is free Constitution that it goes back to the Treaty with Morocco at 1786 which was ratified to the continental Congress while the constitutional convention was in session. So that in other words, the person tried by a consul can't claim a jury because it was pre-constitutional, but that's the very reason why these women can't be tried by court-martial because these women in their status in time of peace were not triable by a court-martial in time of peace. And I have elsewhere in the brief discussed the very great differences between general extraterritoriality such as what's involved in Ross and military extraterritoriality relegate that rather complicated background discussion to my brief, and will only say that in military extraterritoriality, however far it extends, the fact that the foreign sovereign confers it doesn't automatically confer jurisdiction on us and Toth of course proves them. Now, I address myself to the question of legislative courts, and that I would like to cover at some length. First of all, I think that until last June, nobody ever considered a court-martial to be a legislative court. That was regarded as an executive agency and it was so regarded for two functional reasons. In the first place, the court-martial is created by the order of an executive officer, generally a military officer. And in the second place, the court-martial requires the approval of the appointing officer to give validity to each judgment. That is still so under the code. There is nothing on which the appellate processes can operate until the convening authority has acted on the judgment and dismissal -- death in general officer cases, there must also be action, further action by the Secretary or the President to give validity to the judgments. So, they're not legislative courts. By their very nature, they're executive courts. But assuming for purposes of argument that courts-martial are legislative courts does not help solve the problem. We think not, because at the basis of legislative courts, as Your Honors said in Bakelite is that other articles invest Congress with powers in the exertion of which it may create inferior courts and clothe them with functions deemed essential or helpful in carrying those powers into execution. So that if a court-martial is a legislative court, it must be a court created under the Clause 14 power which brings us right back to where we started. Moreover, and this is a point on which I fear the Government's arguments have always been confused. The question of legislative versus constitutional court doesn't solve the question of jury trial. Take Alaska, a plaintiff. The Alaskan courts are legislative courts. The judges don't have life tenure. Their salaries can be reduced. They can be removed by the President for cause but the defendant, the criminal defendant in Alaska is entitled to a jury trial. And I see no reason incidentally why a man can't be tried for treason. And the U.S. Court for Alaska or the U.S. Court in Puerto Rico or the U.S. Court of the territory of Hawaii. Article III has to do with the judges' tenure and his salary and his removability. It doesn't have anything to do with a jury trial. Furthermore, in the three insular cases relied on by the Court last June, Mankichi, Dorr and Balzac, those were not courts created by Congress. Those were insular courts that had long existed whose existence was recognized by Congress, and the decision went on the grounds, simply on the ground, we will not inflict on these offshore possessions with a long non-common law jury heritage, something that has its roots deep in the institutions and the processes of common law country. And I don't think and I have read and reread those cases many times since June. I don't think there's anything in them to support the proposition that all of the Bill of Rights stops at the water's edge. Now, we know that Guam which is an unincorporated territory, the Courts at the Ninth Circuit has held that there is right to a grand jury and it can't be taken away retroactively. We know that in the Philippines and in Puerto Rico, the protections against double jeopardy and against cruel and unusual punishment had been given effect. We know that --
Felix Frankfurter: That's because of the Organic Act.
Frederick Bernays Wiener: Yes, but the Organic Act provisions were construed as though they were constructional provisions and there is certainly language in the cases which suggest that those are privileges that couldn't have been taken away even if they hadn't been specifically set forth in the Organic Act. Now, take the matter of bail. How can you justify depriving civilians of bail? If you subject them to military law, you deprive them of bail. There's no such thing as bail in military law. Even the -- the offshore territories always had bail, even the consular courts had a system of bail. And I would say that the absence of bail in the military system really emphasizes the other inappropriateness of trying civilians by military courts, and I ask the question. What is there in the Constitution that justifies withdrawing that guarantee from these women simply because they're married to servicemen and they're living with them overseas? Where is the source of power? Let's talk about legislative choice. Well, as the colloquy between Senators Kemp and Keith Hoffer which I've read shows, Congress made no choice, no conscious choice, it was simply continuing in essence a military jurisdiction that was always on the books. But in any event, I will say, it is not a legitimate legislative choice to subject to trial by court-martial persons who don't fall within Clause 14, for two reasons, both of which I will develop in the course of the argument. The first is that courts-martial are necessarily regulated by the executive. Now, the President can legislate for those whom he commands. He is the Commander-in-Chief and every order has a -- implies a legislative content. And I'm not troubled by his ordering the armed forces about it. He is their Commander-in-Chief. It's his business to give orders. That's what a commander is. But he's not the Commander-in-Chief of the civilian wives and as I will demonstrate in more detail, unless -- unless you give the President to these broad uncanalized legislative powers, you don't really have a system of military law. And the second which I will also develop at greater length is that military trial of civilians is inconsistent with our institutions and foreign to our traditions. And no other power, no other power authorizes this trial. This was time of peace. It wasn't an occupied territory case. It wasn't the Madsen v. Kinsella situation. The Madsen v. Kinsella wasn't cited last June in the opinion because it was plainly irrelevant, a very different proposition. And the War Power, we submit would be unavailing here twice, twice before this Court. The War Power has been relied upon to extend military jurisdiction over civilians. Twice the attempt has met with defeat, Ex parte Milligan, Duncan against Kahanamoku. Now, there's some talk in the briefs about the combination of powers, combination of powers. Well, yes, if you're writing a brief or writing an opinion, there are many situations in which you can say, “Well, this can be supported on this clause and that clause and the other clause.” It's very easy to write that and it makes sense that way. But here, we're dealing with two powers which are severely insufficient. The Clause 14 power is insufficient because these women aren't part of the land and naval forces. The treaty power, the power to conduct foreign relations is insufficient because you can't make a valid treaty that will conflict with the Bill of Rights. How then do you get a sufficiency out of those two individual insufficient powers? We say that even in constitutional law, the whole isn't greater than the sum of its parts? Now, as a matter of fact, unless you can put these trials under Clause 14, it is impossible to support them. One reason is perhaps it'll complicate it for oral argument. Absent Clause 14, what has made these acts crimes? There's no problem in the Ross case. Ross violated R.S. 5339, murder on board in an American vessel. So the only problem was, could you try him before the consul on the spot or did you have to wait until the ship got back to San Francisco? What law did these people violate? Well, Article 118, Uniform Code, which reads, “Any person subject to this Code.” Well, how can you make these women subject to this Code unless you're prepared to say that you're acting under the Clause 14 power? The Clause -- if the Clause 14 power is adequate to -- to make accompanying wives subject to a Uniform Code of military justice, then you have no problem, but it's only under Clause 14 and it's only --
Speaker: (Inaudible)
Frederick Bernays Wiener: Well, if she enlisted in the army, if she enlisted, then she'd be a member of the land and naval forces, if it was a genuine enlistment. After all, in the old Grimley case, the 137 U.S., Grimley said, “Well, he signed something and he took an oath, but he didn't know what he was doing.” Well, they said, “Look, (Inaudible), you're -- you're in the army.” The difficulty is the one that the Solicitor General has pointed out. You would find very few wives that would care to enlist.
Speaker: Let's --
Frederick Bernays Wiener: They --
Speaker: -- assume they did, let's assume they (Inaudible)
Frederick Bernays Wiener: Well, if they are prepared to sign a contract that will change their status, I wouldn't be troubled because suppose you have a wife who's -- who doesn't want to go to the Café Clutch party, she wants to do something. She wants to enlist in the (Inaudible) and she enlists. Well, that subjects her to military law regardless of her marital status or where she's living if the wife at Fort Myer tires of the round of parties and luncheons, and who wants to do KP and be somebody's secretary and she enlists then she's subject to military law, but these -- these women didn't enlist. The only contract they signed was the marriage license.
Speaker: But my question was (Inaudible) were they interested in that, the Army?
Frederick Bernays Wiener: Well, I -- I think, Mr. Justice that you have a hard time getting the Army to agree to accept enlistment. You'd have to have an entirely different legislation because normally when someone enlists, they are entitled to pay. And the Andrews case, I think the 240 of U.S. says nobody can waive the pay. And it's not enough to say, "Well, we won't call on you to do any work." If they're enlisted, they are entitled to pay and the deprival of pay, they have to pass an Act of Congress and if you erred any such proposal, I rather suspect, although, I don't proposed to be -- I don't -- I'm no expert on what is -- happens on the other side of the Capitol Plaza. I suspect that kind of legislation would have a difficult slate.
Speaker: They won't have to be decide whether they take it.
Frederick Bernays Wiener: The -- the real difficulty under is that unless you proceed under Clause 14, you can't support the delegation to the President under the Uniform Code which alone makes that Code workable. He has got the power to prescribe rules of procedure. He has the power to prescribe limits of punishment. He has the power to define military offenses. He has the power to prescribe rules of evidence. He has the power to fix standards of legal responsibility, and he only has to follow the rule applicable except in criminal cases in U.S. District Courts as far as he finds practicum. Now, the only issue in both these cases was whether these women were legally responsible by reason of insanity and as the printed records in this case showed those issues turned on the terms of the manual for courts-martial prescribed by the President and the terms of the manual entitles psychiatry in military law prescribed by two of the service secretaries. Now, if the accused in both cases had been a member of the land and naval forces, I for one would not be troubled by that kind of uncanalized delegation of legislative power because the President is their Commander-in-Chief but he isn't Commander-in-Chief of civilian wives. And the President doesn't have this kind of uncontrolled, uncanalized legislative power over the conduct of civilian wives so that what he says determines whether they are acquitted, whether they go to jail or whether they have another trial. So that the more -- and this is by way of conclusion, the more this problem is (Inaudible), the more you must reach the conclusion that these trials cannot be supported, except as an exercise of the Clause 14 power. In other words, the deeper you go into, the longer you study, the more you are bound to arrive at the conclusion that the only way, if there is a way to support these trials is on the basis on which the prosecutions were instituted and the basis on which these cases were defended at the trial level. Now, it is always necessary to bear in mind that military law, even with the ameliorations in McCulloch still involves a substantial curtailment of protections available to civilians generally. Fifth and -- Fourth and Fifth Amendments are substantially diluted at military law. There is no right to confrontation at military law. In answer to the Chief Justice's question, why can Mrs. Covert now be retried here? The reason is the prior testimony can be used. This is a trial by court-martial. The prior testimony of the English witnesses can be used without producing those witnesses here or sending her back to England. And that as I have said, there is no bail at military law. Now, there were some references by the Solicitor General to the NATO reservations. The second Senate reservation to the basic NATO decree is where a person subject to the military jurisdiction of the United States is to be tried by the authorities of a receiving state, under the treaty, the commanding officer of the Armed Forces of the U.S. in such state shall examine the laws of such state with particular reference to the procedural safeguards contained in the Constitution of the United States. What about the procedural safeguards for these women that are contained in the constitution of the United States that are absent from the Uniform Code of Military Justice?
Felix Frankfurter: What does the Military Code provide in regard to publicity of a trial?
Frederick Bernays Wiener: Open trial and I think they have the Court of Military Appeals recently. Open trial except in cases of indecency or security and I think there was a recent case where the Court of Military Appeals set aside a conviction behind closed doors.
Felix Frankfurter: But that's -- that's merely administrative. That's determined by the Code. I mean, is it statutorily or may the person change it, the Commander-in-Chief?
Frederick Bernays Wiener: I am -- yes, because it's set forth and the basic provisions are in the manual. But even more important, it is not yet clear, it is not yet clear that the person who is subject to military law has any constitutional protections at all. And it's very unclear whether the person subject to military law can obtain the same kind of collateral review of his constitutional contentions that are available to a civilian. Now, we know at the scope of collateral review for -- alleged constitutional deprivation is here. Johnson v. Zerbst, Leyra v. Denno, but when I have the (Inaudible) case here, this term Number 533 trying to equate collateral review in a Court of Claims, military case with the civilian cases, certiorari was denied. And of course, I'm comforted by the thought that certiorari denied means nothing except to the losing litigant. But the point is that we still don't know whether if these women are subject to military law and they claimed an infringement of their constitutional rights, they have any right of the same kind of collateral review that they would have if they've been tried in a state or federal court. Now, I am not troubled by the fact that we deny many freedoms to those in uniform because after all, the whole purpose, the whole purpose of a military code is to be a deterrent disciplinary force that will send thousands of people obediently to their death if need be. But what is there in the Constitution that empowers the withholding of those freedoms and of those protections from civilian women and civilian children? The Government has never yet faced up to the question of what you do with the teenage child who killed someone. What do you do with him? He is subject to trial by court-martial under all these arguments. He is a defendant. We don't even know what is the age of criminal responsibility. Of course, it isn't covered in the code of the manual, those aren't adopted. Those aren't provisions adopted to trial of children. But to return to the basic question, what is there in the Constitution that permits all these protections to be withdrawn from these women simply because they're overseas with their husbands and rationed by the armed forces? That question, if the Court please, has not yet been answered from any source. The fact of the matter is that military file of civilians is utterly foreign to our condition. And if we go back to the petition of right in 1628, rather than Mr. Blumenthal's letter in the back of the Government's brief and I want to say, I cannot accept that hearsay letter. It was written in response to a request. The gentleman says, "I hope this is what you want." Apparently, it was because they printed it. He's not listed in our Martindale-Hubbell so he is not a lawyer. And it doesn't give any documentation and I just can't accept that as setting forth the practice anymore than I can accept the -- the talk given by the lady vice president of the local historical society about the legends of the neighborhood. You go back -- go back to the petition of right. Go back to the -- go back to the declaration of independence. Go to our constitutional convention. Go to the ratifying conventions where we had this endemic struggle over -- is militia enough or do we have to -- do we dare have a standing army in time of peace and that's still a live question. The current National Guard controversy is the heritage of that old, instinctive fear of the standing army. But turning specifically to these trials now under consideration, they've always been struck down by this Court whenever the 1789 boundaries of jury trial had been exceeded. Yes, there were trials by military commission in the civil war until the Milligan case came along. The Lincoln conspirators were tried by military commission here in the district. I think in retrospect that was probably is greater block on our history of the assassination itself and it's -- thereafter that you get in the pages of Winthrop in the jag opinions that are set forth in Appendix B, the latest Government brief. You get the spirit of legality, the -- the military in strict placing itself. Self disciplining itself in strict subordination to the civil power and to the clauses of the Constitution, and when the martial law case came up in Duncan against Kahanamoku, martial law in Hawaii, there was a tenable narrow ground sent forth in Chief Justice Stone's opinion. He said, “I don't think there was enough necessity here to warrant it,” but the majority of the Court put it on the broader ground that this is inconsistent with our tradition because there is a change in the boundary. And if you want a laboratory test of whether it is desirable to shift that boundary, then I recommend a reading of these rather short records in this case and you'll see how these women were dealt with and ask yourselves as you read the short record. This isn't the big record of trial by court-martial, this are just the appellate opinions. I'd like Your Honors to ask yourselves as you read those opinions, whether in any American civil court, federal, or state, or territorial, these women would have been treated this way with the same result. I say that to sustain these trials does violence to the tradition of the founders. It does violence to the Constitution. It does violence to the heritage of all its expositors up to now. But perhaps more immediately, pertinent is the circumstance to -- that to sustain these trials is utterly inconsistent with Toth. Now, Toth was not in the United States when the writ was sought on his behalf. He was in Korea. He was on foreign soil. Congress plainly intended to reach his case. Toth plainly had violated Article 118, UCMJ, because he was the person subject to this Code when he killed that poor Korean. He was accompanying the forces overseas and their jurisdiction wasn't lessened by the fact that he'd been brought there forcibly. Now, the rationale of last June's opinion, that Congress can punish crimes committed abroad can put the accused on trial before American courts-martial that it doesn't have to extend them to trial by jury. That rationale was certainly is fully applicable to Toth as it was to these women.
William O. Douglas: (Inaudible)
Frederick Bernays Wiener: Well, I would say as the Solicitor General said two years ago, we think the constitutional case is if anything clearer for the court-martial of Toth who was a soldier at the time of his offense than it is for a civilian accompanying the armed forces. I would have less difficulty in saying that the power to govern the land and naval forces includes the power to punish someone who was a member of those forces when he committed his offense and try him by court-martial when his offense was discovered afterwards, than to say that the power to govern the armed forces includes a power of disciplining the wives of members of those forces.
William O. Douglas: (Inaudible)
Frederick Bernays Wiener: Well I -- I do not --
William O. Douglas: (Inaudible)
Frederick Bernays Wiener: I -- I don't quarrel necessarily. Of course, I don't quarrel with the Toth case. What I'm saying is that the Toth reason that -- that the reasoning last June in these cases would have reached Toth. And I think it would have reached him even if the Red Hat had been sought when he was still in the United States, when he was fighting extradition because under the rationale of last June, he would have been fighting extradition to a legislative court. There's never been any problem about that. We've had extradition to legislative courts since the 1790. And there's no problem about extraditing him to a Military Government Court. That's nearly the ankle. That's all it is. And so, I say again, it was the reasoning of the Court's opinion last June was ample to withhold Toth. I would like now to refer briefly to a point that was not argued last year. I very much hope Your Honors will never have reason to come to it. But on the assumption that the jurisdiction has upheld, I put the proposition that it was lost in the Covert case. She is to be retried in the District of Columbia, unless the opinion is set aside. He is to be retried in the District of Columbia at Bolling Field Air Force Base, literally within the shadow of the capitol dome. Now, I don't question in any degree that this rehearing is the continuation of the original proceeding. I've never questioned that. I couldn't question it of course. But how, I ask, how can you support the military trial of a civilian in the District of Columbia? Last June, the Court said, “We hold only that military jurisdiction, once validly attached continues until final disposition of the case.” Now, where there has been an expiration of a term of enlistment or the termination of a commission by operation of law with no affirmative act by the Government in either instance, then it's perfectly clear that military jurisdiction does contain. But ever since 1862, the military rulings have been consistent on this one point, that whenever military status is destroyed by affirmative act of the Government at any stage of the proceedings, at any stage of the proceedings, military jurisdiction is gone. Now, the only assumption on which Mrs. Covert could have been subject to military jurisdiction was while she was accompanying the forces overseas. Now, that is a military jurisdiction, geographically limited in space just as the traditional military jurisdiction over civilians from the Continental Congress down to 1960 was limited in time. Now, when the Government removed her back to within the continental limits of the United States, that jurisdiction was gone. And once her conviction was set aside as it was, she wasn't subject to trial by court-martial anymore. And the same result follows when you compare the custody provisions of the Uniform Code with the provisions of the former Articles of War. Under Article of War 2 (e) of 1916 on, I'll get a very short provision so I'll quote them accurately. Under the Articles of War, all persons under sentence of judge by courts-martial were subject to military law and it didn't make any difference where the place of confinement was. The question was what court? What kind of tribunal imposed the sentence? And if it -- they were serving a sentence by court-martial, they were subject to military law no matter where that was being served. But in the Uniform Code, Article 2 (7), it makes the Code applicable only to all persons in custody of the armed forces serving a sentence imposed by court-martial. And when they are no longer under the custody of the armed forces, then Article 58 (a) of the Uniform Code says, “Persons confined in a penal or correctional institution not under the control of one of the armed forces shall be subject to the same discipline and treatment as persons confined or committed by the Courts of the United States and so forth.” So that when Mrs. Covert was placed in civilian custody, when she was first in the custody of the Department of Justice in Alderson, there in the custody of the D.C. Government of the District Jail and then on the custody of Department of Health, Education and so forth when she was at Saint Elizabeth. When she was placed in civilian custody by the very terms of the express and explicit terms of the Uniform Code, she was no longer subject to military law. And having been placed there, the jurisdiction terminated and when the conviction was set aside, she couldn't be tried again. Now, there's a talk in the briefs about well -- the Air Force indicated an intent to retain jurisdiction over her by confining her. Well, I don't think it's particularly helpful to attempt to attribute intent to collective organization, but if anyone thinks that it's -- in any degree helpful to talk in those terms, then I would respond that one intends the natural and probable consequences of -- of one's act and that when you put a military prisoner in a civilian institution that are no longer military prisoners. Now, of course, this kind of consequence wouldn't follow if you put a soldier in one of Mr. J.V. Bennett's lodging places, because he would stil have a military status even if his enlistment there expired, if his enlistment had expired possibly that would be some problem but if his discharge hadn't been executed, his status wouldn't be changed and there you have a further illustration of the inappropriateness of this Uniform Code of Military Justice as an instrumentality of dealing with civilians. Now, let's go to some documented history again. The last civilian woman tried by military tribunal in the District of Columbia was Mrs. Surratt in 1865, and Mrs. Surratt did what Mrs. Covert did. She got a writ of habeas corpus from a judge here at the courthouse. And now, what was the response that the Government made to that judge's writ of habeas corpus on behalf of Mrs. Surratt? An executive order signed by the President with suspending the privilege of the writ. That is in -- then fit from stenographic report of the trial of the Lincoln conspirators at page 250, not in the Blumenthal letter. Pretty shocking, isn't it, pretty shocking that when the judge issues a writ of habeas corpus in a specific case that he's met with an executive order suspending the writ. But wouldn't it be more shocking if a woman were now to be tried by a court-martial in the District of Columbia with the blessing of this Court and its approval. If Your Honors please, I've tried to argue this case with some degree of objectivity. I've tried to put out in mind as nearly as I can the callous and somewhat obtuse cruelty with which these two women were treated because I felt that I could best discharge my duties to this Court as well as my duty to them by dealing with this as a question of constitutional law which calls for research and reflection and cogitation. I can't conceal my concern over the seriousness of what's involved because this -- this is about as fundamental an issue as has ever come before this Court and certainly more vital and fundamental in the constitutional sense than any that's been here for some years. And it's fundamental and vital because it poses in start immediacy the question of how far we may properly brace ourselves to withstand an assault from without and yet perhaps sow the seeds of our own disintegration within. Because we have here, I think for the first time the question involving the impact on the one hand of the supposed needs of the garrison state upon on the other the immutable principles of a free nation. That's a quotation, “the immutable principles of a free nation,” not from the writings of some cloistered libertarian philosopher, but from the institution of the order of the Cincinnati which was founded in 1783 by the revolutionary officers who had pledged their lives and shed their blood that this country might be born. And I think we will be aided in the resolution of that problem by considering two sentences from the late Mr. Justice Cardozo's immortal classic, “The Nature of the Judicial Process.” The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles by enshrining them in Constitutions, and consecrating to the task of their protection, a body of defenders. By conscious or subconscious influence, the presence of this restraining power, aloof in the background, but nonetheless, always in reserve, tends to stabilize and rationalize the legislative judgment to infuse it with the glow of principle, to hold the standard aloft invisible for those who must run the race and keep the faith.” If Your Honors please, I have been enrolled among the body of defenders. I hope this Court will keep the faith.
Earl Warren: Mr. Solicitor General.
J. Lee Rankin: May it please the Court. I should like to call attention first to one statement of defendant's counsel that these women in 1789 would be entitled to a jury trial. There is no basis for any such statement where a crime of this character committed in a foreign land that there wouldn't be any provision for a jury trial. If they have been tried in many of the countries that are involved in this problem of the 63 various locations where we have our armed forces, there would be no jury trial over the laws of those countries. There would be only question that we have here would be only whether they should be tried under the laws, whatever they may be of that foreign country or whether they would be tried by the provision that Congress has made for their trial in court-martial. There is no question but what in many cases that character of the trial if they would be -- they would obtain by reason of the request in military to obtain jurisdiction and have a court-martial would be infinitely more due process, more of a fair trial than they would have in many of the different situations. That is not true with regard to England. It's probably not true in Japan in view of the Revised Code of a criminal law that they have. But there is no question under the law at what -- at the time, 1789 would be no jury trial whatsoever for these women in foreign country by reason of their American law. There is a difficult problem in regard to the question in appeal. And when change occurred in our national history, we believe from our research that is set forth in the briefs that for a great period of time, adds up to about Ex parte Milligan in fact there wasn't any question of what the right to trial in the field in regard to dependents and employees. It was clearly recognized, the court-martial under the law of the United States. We quote a -- an opinion by J. Holt, the Judge Advocate General, November 15th 1866 in which he says, “It is held by this bureau and has been the general usage of the service in times of peace that a detachment of troops as an army in the field went on the march for the post remote from civil jurisdiction and that is the test. It has been a custom and is held to be advisable that civil employees, settlers and camp followers, when guilty of crimes known to the civil law to turn the parties over to the Court's rule of sanity in which the crimes were committed. For minor offenses against good orders and discipline, it has been the custom to expel the parties from the army. If however, it is sought to punish civil employees in New Mexico for crimes committed at a post where there are no civil courts of which -- before which they can be tried, it is held that they can be brought to trial before a general court-martial as they must be considered as serving with an army in the field and therefore within the provision of the 60th Article War.” Now, after Ex parte Milligan, we set forth the opinions of the Judge Advocate General. There was a change in the attitude, but that didn't change what the practice and treatment was as a matter of history in the country prior to that time, and although that case did not hold in regard -- had no holding in regard to courts-martial because it dealt with the military commission, it did nevertheless cause the military the Judge Advocate Generals to take a different position. But if you examine what they were considering, they were considering the persons in charge of military cemeteries, and civilian employees working in connection with the quartermaster, and those were entirely different cases from these questions involved in the case of this kind. It was generally recognized at that time too that the element that was necessary in regard to civil jurisdiction had four in the field. That is that there'll be no civil jurisdiction available. It had disappeared throughout the country, and as a matter of fact, there was civil jurisdiction available throughout the land and the country had progressed to that point. So that it wasn't possible after that day to find an area where you had a military force who is out in the field under the definition and there was no civil jurisdiction available. We think that in the consideration of the question of the Necessary and Proper Clause that the Constitution of the -- the Constitutional Convention, very carefully considered how they can control the military. And that in developing the various provisions of the Constitution, different ideas were advanced as to how they should be done. In fact, there were different resolutions in which they want to limit the army, standing army to 2000 men and all kinds of proposals because of the abuses that they were resenting in -- at the hands of the British. But all of them were rejected and it was finally determined that the method that would sound by which to control this problem of the military was to place it in the hands of a legislature, of a legislative branch of Congress that would respond to the will of the people. And all of the other proposals were rejected. But in the explanation that Hamilton gave of the reason for the selection of the -- of that type of control in -- in the Federals, he made it very clear that the purpose was that no one could possibly foresee all of the problems and exigencies that a country would face in its defense. And therefore, that it should be -- the power should be broadened up to be adoptable to the various contingencies that might occur over the years. And a perfect example of that as I see it is the Air Force where there is no predictions, no provision of any character in the Constitution that would contemplate or expels up the naval force, expels up land forces that nobody referred in anyway to an Air Force and yet certainly, it's -- we can't question of what this military courts-martial have jurisdiction over the Air Force.
Hugo L. Black: You would -- you wouldn't say that Air Force is not a part of the Armed Forces, I'd imagine they wouldn't like that.
J. Lee Rankin: Well --
Hugo L. Black: I think they consider they're rather important part of the armed forces.
J. Lee Rankin: The references are the land and naval forces, and it didn't say anything about Air Forces in the Constitution.
Hugo L. Black: Whether -- the plane has to start from the land and go back to the land.
J. Lee Rankin: Yes, I concede that. But I think that that's -- you have to have some -- you have to recognize the proper application of the Necessary and Proper Clause in order to cover the Air Force, but it seems rather obvious to me that it does. And I certainly, I'm not going to stand before this Court and ever say that once you find a delegated authority that the Necessary and Proper Clause cannot be applied to give this Government the power that's necessary and proper to apply.
Hugo L. Black: Where do you find the delegated authority in the Constitution which says that the military at any time can ever exercise authority over anybody except members of the land and naval forces?
J. Lee Rankin: Well, I go back to the proposition that under the Article I, Section 8, Clause 14, you have the power and under the history of what the conditions were before the Constitution was adopted, the dependents, civilian dependents and the civilian people who are assisting the army, employees, were all considered a part of that military contingent. And once you -- if you recognize that as what the history was and that they were court-martialed, placed subject to those various obligations, orders and directions of the military, then they are part of the military contingent and subject to that law. That's where I find it.
Hugo L. Black: Is it that -- did Hamilton indicate in anyway or did anybody connect it with the Constitution, indicated anything they've said about the Constitution on any debate anywhere that the army would ever have the right to try wise independence of soldiers? I have looked forth and couldn't find it, I wonder if you found it?
J. Lee Rankin: No, I found no place where anybody said that they would have that right. I found that there was the practice that it got -- gone on for a long period of years in the British troops as it went out on to some degree and was common in the American revolutionary period. And it was the history of that period out of 55 members of the Constitutional Convention, 35 were either officers or members of the Armed Forces of the United States, part of the revolutionary army so that I can't believe that those people who aren't familiar with those practices that were going on all about them in which they are part of it during that period.
Hugo L. Black: As I recalled it, those debates showed a very part of the activity to a standing army at all, is that right?
J. Lee Rankin: That's right. They wanted it, limited it to 2000.
Hugo L. Black: And the idea was, the only way to get away from there with too much power, or purge by someone was, they wouldn't have a standing army and they'd forbid it. They would have -- only depend on people drawn from the states as a part of the National Guard. Then they compromised or decided to get in by giving them the very -- just what you say words, military -- they have rules. They could have rules, the Governor, the land and naval forces. But there, as I call recall it, the big result of which and all the way through that, not merely for giving them power to try civilian but have a standing army at all.
J. Lee Rankin: Well, that's true but they didn't want to leave this country without any defense --
Hugo L. Black: No.
J. Lee Rankin: -- and they had placed them --
Hugo L. Black: And probably from what I read, they didn't want to leave the civilians without any defense from the army.
J. Lee Rankin: Well, I think that's right, too. And they thought the way to protect them was to place their trust and confidence in the Congress, the legislative body.
Hugo L. Black: Did -- did anybody say that about the power to try civilians, any debates?
J. Lee Rankin: No. But they did say it very clearly about this general power to regulating control of the military.