Warren E. Burger: We’ll hear arguments next in 73-1346, McLucas against DeChamplain. Mr. Solicitor General, you may proceed.
Robert H. Bork: Mr. Chief Justice, may it please the Court. This is a direct appeal from the District Court for the District of Columbia. The posture of the case is changed considerably since the brief were filed and I believe the only issue which is now disputed is the question of the power of the District Court to intervene in a court martial for the purpose of controlling a pretrial discovery protective order. The background of the case is this. The appellee is an Air Force master sergeant who was charged by the Air Force with first, conspiring to communicate classified information to an agent of a foreign government, in this case the Soviet Union, in violation of Articles 81 and 134 of the Code of Military Justice and 50 U.S.C. 783 (b). Secondly, failing to obey an Air Force Regulation requiring the reporting of contacts with foreign agents in violation of Article 92 of the Military Code. And third, violating 134, the General Article by copying classified documents in violation of 18 U.S.C. 793 (b) and attempting to deliver such documents to an unauthorized person in violation of 18 U.S.C. 793 (d). This court martial was about to commence when the appellee began an action in the District Court and that Court preliminary enjoined the Air Force from trying appellee Sergeant DeChamplain on any charges laid under Article 134. I think that aspect of the District Court’s order is now out of this case as I discover from his counsel’s brief. But secondly, what is in this case is the District Court’s order that the Air Force are not to try the DeChamplain on any charges whatsoever without granting full and unlimited access to certain classified documents.
William H. Rehnquist: Well, the appealability to District Court’s orders to this Court is still on that case?
Robert H. Bork: That is in the case and I intend to address it. It is not however disputed any longer. I was called by -- on Friday by Mr. Boudin who said that he now agrees that this Court has appellate jurisdiction and I will say a word on the subject because of course that is not a subject to Mr. Boudin and I can’t take out of the case, it’s necessarily in the case. But the order which the background is an order for complete access to 15 documents from the sergeant’s prior trial which are no longer in this trial, the Government does not intend to rely upon those documents as well as to nine documents which are in this trial. And the military order which the District Court found inadequate contemplates that Sergeant DeChamplain his military counsel, his civilian league counsel, one associate, one secretary, a foreign policy expert chosen by him and a classification expert chosen by him shall have access to these nine documents, may make notes but the notes must be left in Air Force custody. And it may be --
Warren E. Burger: And the disclosure is to whom? That is, after these people get them, make them available in the District Court or in the court-martial proceeding?
Robert H. Bork: The District Court orders they may be made available in the court-martial proceeding on these terms.
Warren E. Burger: Not in the District Court?
Robert H. Bork: No, Mr. Chief Justice. The dispute is really about the degree of freedom. The court martial allows in access to these documents and that’s this appeal followed. Now, as I say 134 is no longer in the case, the general article but appellee did raise the question of this Court’s appellate jurisdiction under 28 U.S.C. Section 1252. And we believe that this Court clearly has such jurisdiction. This Court has discussed in the briefs and discussed it on the merits. Section 1252 provides direct review from a District Court in any interlocutory order of any court of United States holding an Act of Congress unconstitutional and this Court did hold Article 134 unconstitutional in any civil action where an officer employee of United States is a party. So, I think the language of Section 1252 covers our case exactly. Now, the argument appellee made before which raised the issue was that he said that the jurisdiction of the District Court which he’d invoked was in fact faulty because a three-judge District Court was required to consider the constitutionality of Article 134. And he then proposed that this case go forward on the merits in the Court of Appeals but I should point out of course that if a three-judge court was required the Court of Appeals would not have appellate jurisdiction either except for the purposes of the Idlewild Bon Voyage Liquor Corporation case cited in the brief makes clear to say that the three-judge court was required and send it back with instructions to convene such a court but it could not hear the merits. Now, we’re not going into a lot of the argument we’ve had on this issue. I think the central point we agree upon, the appellee agreed even on its prior position and we agreed that no three-judge District Court was required. If the constitutional question as to the Article 134 was in substantial and I think that it was insubstantial either on the logic that appellee was then using or on the logic that we were using.
William H. Rehnquist: Well, Mr. Bork, where you're appealing from a judgment holding a federal statute unconstitutional under 1252 you don’t find the counter part of 1253’s language where the right to appeal turns on whether or not three-judge District Court was required, do you?
Robert H. Bork: Well, no I hope you find the counterpart in the language but I would assume that if there was no jurisdiction in the District Court there might well be a question about the jurisdiction here, perhaps not. But I think the easiest and shortest way to the resolution of this issue is to show that no three-judge District Court was required and if the problem under the most expensive reading of the substantial question.
Potter Stewart: But therefore the District Court clearly had jurisdiction and that the plain language of 1252 allows an appeal here?
Robert H. Bork: That’s quite correct. The appellee’s argument on this point before was that they did not convene a three-judge District Court because the average decision holding Article 134 unconstitutional was the decision of the DC Circuit and therefore whether it was a three-judge court or to single-judge court made no difference. It must follow the Court of Appeals’ opinion. I think if that’s true then there was no substantial question for a District Court to decide and there is no point in convening a three-judge District Court which must automatically a follow Court of Appeals’ decision. Our argument was somewhat different and it was that -- there was no substantial question because the District Court misunderstood the question before it. It was not a question about the first two sections of Article 134. It was simply a question about the third section which is an assimilative crime statute and as to which nobody claims, there's a problem with constitutionality. So that there was no substantial question before the District Court to decide whether or not the District Court thought so and I think it is indeed the nature of the question rather than the subjective perception of the judge that determine his jurisdiction. But perhaps we need not even go as far as your question suggest Mr. Justice Rehnquist, but I think if one goes that far it’s quite clear that there is appellate jurisdiction in this Court and that -- as I say that is a subject no longer disputed by appellee. And of the only question left as I say is the question of District Court control of the pretrial discovery process of the court martial. And I think it’s quite clear that there is no such power in District Court to intervene at this stage for that purpose. I think the military justice system has a freedom from intervention on such matter similar to that that the state justice systems have and that intervention is justified only when as Younger against Harris would put it -- various bad-faith or harassment and when the party seeking relief is threatened with irreparable injury that is both great in immediate. And this case, the District Court made no such findings as a precondition of its intervention and indeed bad faith or harassment were not even alleged. The fact that the appellee might have to be confined pending the outcome of the military prosecution in any appeals that follow does not constitute, it’s not cognizable as an irreparable injury that's an incident of any criminal process. And if that were grounds for intervention, federal courts would be intervening all of the time in state and military justice appeals systems. I think the decision of this Court rather uniformly show that this rule against intervention by Article III Courts in military proceedings as in state proceedings rest upon a cluster of policy factors. I think some of them are of constitutional dimension and they’re summed up generally in the word exhaustion of remedies and comity. And I think these policies are so strong indeed that the appellee has not been able to point to a single decision of this Court sanctioning an intrusion like this one into the military justice system. It’s an intrusion both unique and as continuing because the terms the District Court’s order contain words which must be construed and the District Court could hold itself available for application to continue to supervise the access to document’s problem. And all of that takes place before the appellee has even been tried much less exhausted his remedies within the military justice system. Now, let me say here that a great deal of the argument in this brief rest upon I think unjustified denigration of the military justice system. There is much argument in the brief in the appellee’s brief that military tribunals do not apply all of the procedures that civilian tribunals do which is quite true but that is not a statement that military tribunals are in anyway lax in applying those procedures which this Court and Congress has an appropriate for them. Similarly, I think in an effort to avoid the plain thrust of cases like Gusik against Schilder and Younger against Harris. The appellee has tried to argue that any remedy he may have in the military system will be futile. And that seems to me a very hard claim for a man who’s been convicted ones by a court martial on an espionage charge and has appealed that conviction and has had it reversed by the Court of Military Review and has had that reversal sustained by the Court of Military Appeals. His real complaint is that he has made three successive petitions for extraordinary relief prior to a second trial and that the Court of Military Appeals has denied them and said that that is extraordinary relief and is not to be use as a substitute for appeal. There's no reason here to think that should he be convicted upon a second court martial that the Court of Military Appeals and indeed the entire military appellate system would not be fully sensitive to his constitutional claims. I will discuss only briefly this Court’s opinion in Gusik against Schilder which is really a much stronger case for intervention by Article III Courts because the man there -- the serviceman there had been convicted and had exhausted all of his military remedies. Afterwards, a new article gave him the right to ask for a discretionary new trial to be given by the Judge Advocate General and that was the only remedy available to him and his chances didn’t look very good, but this Court said that habeas corpus was not available to him until he had exhausted that remedy. It seems to me that he had a much slimmer chance and adequate remedy at law than does the appellee here. The Gusik case itself analogized the requirement of exhaustion of military remedies to the similar requirement of exhaustion of remedies within state court systems and I guess Younger against Harris recently decided by this Court shows the strength of that requirement. There, it was a prosecution of a man under the California Criminal Syndicalism Act, an act of dubious constitutionality and he raised the First Amendment claim. It would seem to me much more compelling than the appellee’s claim here because his conduct alleged is espionage which does not fall under any constitutionally protected area. But I think if one analyzes Younger and this case will find them parallel in many respects, there is here not the policy of federalism which Younger found important but there is the constitutional power of Congress to make rules for the Armed Forces which are separate. There is a same document of equity jurisprudence against restraining criminal prosecutions. There is the same adequate remedy of law and there's the same absence of a showing of irreparable injury. There is the same need I think to avoid friction and to avoid disruption of the court martial. I think in considering this case, one ought to consider what the general principle at stake is. The general principle is really one that would commence a general removal power from courts martial for constitutional issues. And the court below when appellee here say that since military courts do not have special expertise on such issues, there is no reason to let them decide them without having a federal court intervene to decide them for them. That would shell the cases back and forth between the Article III system and the military system in a way that it would be so disruptive and so costly for everybody concerned. It would be better if the Article III Court simply took over court martial rather than did that. Now the only reply, the appellee has to all of these occurred I think the heart of his reply is at page 51 of his brief where he strides a string of cases, Billings against Truesdell, Toth against Quarles, Reid against Covert, McElroy agianst Guagliardo, and he cites those for the proposition that this Court has repeatedly sanctioned interference with on going military proceedings to correct fundamental of the constitutional errors. And I think not, I think not those are all cases in which the person seeking to have a federal court intervene successfully claimed not to be a member of the Armed Forces. The integrity of the military trial process was not at stake and the intervention to prevent the court martial a person who is not even subject to military law is hardly the same kind of disruption. In fact, those cases can be decided by the status of the person. He is a civilian not a military in person and then a further legal question of, may a court martial constitutionally try a civilian under these circumstances which is not all the same of taking a person who is concededly subject to court-martial jurisdiction concededly subject to trial and constantly filtering his constitutional claims out of the military system into the federal system perhaps for full appeal and then back into the military system again. So far as I can make out that’s about all there is to the appellee’s case that it is a constitutional issue and therefore there's no reason why should at the military courts decide before the civilian courts do. And we’ve seen that the intention of Congress and all of the policy considerations underlying this Court’s decisions run to the contrary. There is one thing perhaps I should mention and that is that appellees brief mounts in extents of attack upon the constitutionality of Article 76 of the Code which is the finality provision and says that it’s unconstitutional if it’s interpreted to mean that the only collateral attack possible upon a military conviction is by habeas corpus by persons in confinement. That gets the appellee into Martin against Hunter’s Lessee and Ex parte McCardle in a very exciting group of cases to teach but I think not relevant for today’s discussion. We cite Article 76 as evidence of congressional intent that the court martial system be generally free in interference, it clearly is that. We have argued that habeas corpus is the only permissible form of collateral attack but that’s not necessary for decision of the present case because whatever form of collateral attack maybe available Younger against Harris and Gusik against Schilder for the proposition that it takes place after the exhaustion of remedies in the military system.
Byron R. White: With Younger against Harris as we both know was a premise to great deal upon what the court opinion called in capital letters -- our federalism and that (Voice Overlap) that is not an ingredient here.
Robert H. Bork: No, I think there is a comparable not a strong but there is a constitutional value which parallels that in Congress as constitutional power provide special rules and hence special courts for the military and I think all of the policy reasons that are mentioned in Younger against Harris as equally applicable here and I think Gusik against Schilder tends to equate the two systems: state system and the military system in terms of nonintervention -- premature intervention by federal courts by Article III courts. So I have no doubt that the policy of Younger against Harris is fully applicable here and that policy of course was recognized recently in Parisi against Davidson, a case that appellee cites in that string which it’s distinguishable and which this Court takes particular pains to point out that the policy cited in Gusik against Schilder is not being breached. And I might say, finally about this point that the appellee who is in confinement I think has no standing to raise the issue of whether Article 76 would be unconstitutional if it were applied to somebody who was not in confinement to prevent him from being habeas corpus. That may be an issue in some case someday when there is such a person who is blocked by Article 76 interpreted that way but I think the appellee has no standing to raise his case for his purposes in this case. To return to the main point then what we have before us as I say is simply a question of federal court -- we have before the Supreme Court a question of pretrial discovery and a question in a court martial which hasn’t taken place yet and nothing could show more clearly what a massive disruption of a court and branch of military -- of justice we have here. I think the clear intention of Congress in the clear policy of the cases of this Court is to let this court martial go forward without interruption. There is no reason to believe that military tribunals will be insensitive to any of the appellee’s claims and should they -- all of them decide against him and incorrectly he has available habeas corpus as it does anybody wrongfully convicted in another system of justice.
Harry A. Blackmun: General Bork, if this case were not pursued in the military system, where would it be venued if it were in the civilian side?
Robert H. Bork: Well, I'm not quite clear where it would be Mr. Justice Blackmun because the offense took place overseas. I don’t know how we would solve the jurisdictional problem if it were not a military took place in Thailand. And I am not sufficiently versed to say whether or not we could solve the jurisdictional problem and get them into a civilian Article III Court. I think that’s been tried before without success. We think for these reasons of the case ought to be reversed in the complaint dismissed.
Harry A. Blackmun: May I ask you one more question before you sit down. It’s probably totally irrelevant. But did anyone formally request Judge Parker for the convening of a three-judge court?
Robert H. Bork: No, as I understand that appellee says that they thought it was not necessary because the three-judge court would be bound by the Court of Appeals decision in Avrech.
Harry A. Blackmun: Yes.
Robert H. Bork: So that it will have no substantial question to decide in any event.
Warren E. Burger: Mr. Boudin
Leonard B. Boudin: Mr. Chief Justice and may it please the Court. We have agreed that the issue in this Court’s jurisdiction should be resolved in favor of it for exactly the reason given by Mr. Justice Rehnquist while the application of Stratton and Idlewild in principle could have dictated a different result. It’s quite true that 1252 is an ambiguous and in the thicket of three-judge court problems that have troubled the court for so long at least and we have come to the conclusion if this is an issue and which should be resolve in favor of the Court’s jurisdiction. We see three issues here and the second of which is really not been touched upon by my brother. The first issue is whether the court martial judges refusal to give civilian defense counsel full access to the prior trial record and to the very documents that other subject of these criminal charges with the violation of the Sixth Amendment right to the effect of assistance of counsel going to the question of the jurisdiction of the court martial under Johnson against Zerbst which we radically we did not cite though it seems the clearest case in point. The second question which is I say, my brother did not develop an argument with whether or not any collateral review of a court martial decision of this kind, court martial action of this kind. Other than habeas corpus is permissible at some stage of the proceeding and the third issue which is really the central issue as we see it is whether or not given the circumstances in this particular case, the appropriate remedy of collateral review was by injunction. Now, the issues have to be decided in the reverse order of that dealt with in our brief and in the Government’s brief because the question of collateral review and the nature of it to with is an injunction needed at an early stage is a function of the nature of the constitutional right involved which we discussed in point one, orally three or five in our brief a function of that right and of what actually happened in this case. So I turn to the first issue namely the effective assistance of counsel. This is we know, it’s not an abstract issue. It must be related to the crime charged 18 U.S. 793 and to the prior history of this case. We must remember that Sergeant DeChamplain was arrested in July of 1971 charged with a violation of the espionage laws among other things in having conspired to deliver a package of 25 documents to a Russian agent in Indochina. And that he has been since July 3, 1971 in pretrial confinement, in post-trial confinement and now in pretrial confinement and if the course of events follows which is suggested by the Government here he can very well be in three years more confinement until this case is finally adjudicated again by this Court. Now, as I said the issue in the case of the effective assistance counsel is determined by the nature of the case. There are some problems that we had in Powell against Alabama where we know the interference that occurred there. There are other cases such as Moore against Dempsey where you have a mob scene interfering with the effectiveness of a court. In the present case, so far as the nine documents are concerned just to take those away from the prior trial record. We have the -- what may probably he’ll be called the core or the corpus delicti of the case. These are the documents whose transmittal by conspiracy or attempt is the basis of the charges against DeChamplain. It is these documents that like any other corpus of the crime whether it’s obscenity book or some other analogy that the Court may consider are being restricted so far as access are concerned. Now, this would be true in any case as I say in which the very core of the case is being preventive from giving counsel full access. But we have a very special case here and that is the complexity of 18 U.S.C. 793, the espionage laws. Your Honors touched on the problem without adequate or virtually any briefing several of the opinion of this Court in United States against New York Times or New York Times against United States Pentagon Papers case. The Supreme Court -- this Court has passed upon the issue in Garren where it said that the matter must be relate to the national offense to be a crime and in United States against Hunter, Chief Judge Learned Hand added another dimension to the problem, increasing the complexity whether or not the material and those documents were in the public domain. Now, we had a star example a long-winded and notorious example in the Ellsberg case before Judge Byrne where the most elaborate briefing on the question of the meaning of 793 with engaged in was the subject to the very tentative decision by Judge Byrne and with the subject of our being given access to the documents involved the very top secret documents including many that were never given to the New York Times, that were never published anywhere and that Government consistently insisted, hence the charged to the crime related to the national offense. We were given those documents as Your Honors will see from this record here without any limitation whatsoever except the word of counsel that the following persons not disclose to the Government were entitled to those -- to examine those papers so that they could advice us as consultants. And so many of them could testify at the trial and not only where some 20 consultants, an experts testifying at the trial but some 40 people staff members, academician, mimeograph operators and a whole core of lawyers more than probably in any other trial were given copies of those papers -- the so-called national defense documents. In contrast, the military judge here whose decision is final has said first as Your Honors will see from appendix 61 that he doesn’t think it important that the matters relate to national offense and he will not consider expert testimony on the subject strange ruling in light of the decisions of this Court. And secondly, the military judge has says that I may examine these documents only in the presence of a person with security classification to include defense military counsel assuming that I retain them because it maybe that Mr. DeChamplain and I may decide to proceed alone. And with case I will have to have a government security agents watch me as I examine these papers. I may not have a copy of them. I must examine them at a “secure” location. I may not take notes or to be fairer I may take notes where they have to be read by the Government’s security people. Now, this is -- in this day under our system of justice, with all due respect to the military establishment, I have a high regard for it. I think the U.S. Court of Military Appeals and the uniformed system of justice are a great advancement over the days in Wellington when he referred to the soldiers are scum. Great advancement but this is what we have today from this military judge in contrast to the whole procedure. Now, I may say just to add something that the prosecution counsel are under those such limitation, they have a whole record. They can examine the whole prior record, the nine documents without limitation and the 15 that made up the package of 24. So, they and the trial judges of the Government can see these things and I may not. The suggestion that my military counsel may have a recollection of what they saw before or may even reflect it, refresh it by looking at it. It doesn’t help because they're not allowed to transmit to me. I note or verbalism the information in these top security documents. Now, I will have to contrast this with an obscenity case in which its obvious counsel can course many consultants as he wishes to and not being restricted to two consultants and to two lawyers. I've selected and assisted in my office, I may not have my partner Mr. Rabinowitz. Look at these papers whatever his advantages over me may be. So the result is I'm restricted in number, I'm restricted in place, I'm restricted in making copies and the Ellsberg files are still in my office, I've examined them and the national security so far doesn’t seem to have been imperiled. Now, with respect to the entire trial record, which is a separate but related point, the trial record as I said is available to the prosecution. We would’ve the right at one time to look at it under Article 54 (c) which deals with appeals but that right no longer exists here. These documents of the 15 documents in the prior trial record have to be considered as any lawyer would consider them in deciding to try a second case. And the fact of the Government decides that it will remove in order to keep me from looking at them 15 documents, how do we solve the problem? Because those documents may very well be important and the transcripts of the early record may very well to be important for me to decide not on the advice of the Government or in its judgment, for me to decide what is exculpatory. For example Sergeant DeChamplain, they have and they say that the 24 documents to take a hypothetical thing. The 24 documents were being taken overnight of people, that people have taken it from the national -- Department of Defense overnight for the purpose of studying them and the 15 happened to be very innocent and that the nine gotten there by error. I don’t know of what am I hypothesizing. The fact is that under any consideration of Brady and what it means and the Alderman where in many cases we were dealing with things ancillary to the case. These are the -- this is the prior trial record of the prosecution of a man who spent three and a half years in jail now and promises than more.
Byron R. White: Do I miss -- if I misrecollected Mr. Boudin and maybe you’ve mentioned this that in this second proposed trial the Government is not going to use that.
Leonard B. Boudin: The Government is not going to use them they can look at them, they may very well rely upon what was in the prior trial record Your Honor is quite right to determine how to cross-examine DeChamplain. He may want to get out on the witness stand and testify with respect to the 15 because these were 15 separate entries this was a package deal, it was a conspiracy with respect to 24. I don’t know what the Government is expurgated from the prior record.
Byron R. White: Well, you do know that though they are not making the same charges. They have eliminated similar charges.
Leonard B. Boudin: They have eliminated some of the documents and they say that no longer charging with respect to those 15.
Byron R. White: Right.
Leonard B. Boudin: But the 15 were part of the original conspiracy and I have a right to direct myself to that original conspiracy which was the basis of the charges and to see what there is in the record that they taken away. I have to depend on them to decide whether not only the documents have they removed it, they’ve deleted, they say, all references to the documents. As a trial lawyer or appellate lawyer I'm not willing to rely on the Government’s decision as to what was in the prior record. And that --
Byron R. White: Now, that it is the entire, is the entire record of the first trial sealed?
Leonard B. Boudin: Sealed for the Government, my military counsel may look at it but they can’t tell me about it.
Byron R. White: The entire record?
Leonard B. Boudin: Yes. I'm only entitled to look at that part of the record which deals with the nine documents in this forthcoming procedure and under the limitations involved and of course I'm only allowed to show as I indicated to a few people. Now this denial, if Your Honors please, isn’t a procedural matter. It doesn’t go to the weight of the evidence which Your Honors will recall in Burns against Wilson. A record that was examined very carefully by the Court of Appeals and this Court accepted that very careful judgment of the Court of Appeals from reviewing the evidence. This is not a case of military expertise as in Noyd. This is not even a case of a Fourth Amendment right involved in the Schneckloth against Bustamonte case 412 U.S. where the Court distinguished the Fourth Amendment Right from the right to a fair trial with the assistance of counsel. This is not even the right of the case of an inability to put on a single particular defense -- the insanity one that was referred to in Wetzel. This is very close, and I mean no adamant version on counsel for the Government. We’re dealing here rather with civilize society. This becomes a mask of a trial when counsel is not permitted to see the full record of a first trial that led to his client’s conviction and where all of these handicaps are placed upon counsel. Now, Your Honors as I said before at the beginning there is one case that I think is critical here because it states basic principle and it was Mr. Justice Black’s very early opinion in the Johnson against Zerbst case where he said and we now go to the question of when you interfere with a court martial, a court’s jurisdiction at the beginning of trial may be lost in the course of proceedings to the failure to complete the court -- complete the court.
William H. Rehnquist: Johnson against Zerbst was federal review of federal court?
Leonard B. Boudin: Precisely Your Honor and it is quite true. Complete the court by pro -- but the issue of jurisdictions seems to be fundamental. Complete the court by providing counsel for an accused was unable to obtain counsel etcetera, etcetera and repeatedly Your Honors will see the words where a counsel is limited as handcuffed one way or the other or counsel is isn’t supplied. Then, jurisdiction of the Court is affected. Now, I will pass from this point, passed over the question of collateral review generally which was very thoroughly dealt within our brief and turn to what is the problem raised by the Solicitor General namely why injunctive relief and wasn’t there in Younger case. In answer to that, I call Your Honor’s attention not only to the majority opinion but to the opinion of Mr. Justice Stewart concurred in by another justice of the Court, Mr. Justice Harlan but limiting myself to the majority opinion or the moment. First, the principle of federalism as Your Honor Mr. Justice Stewart pointed out was I think central. I think equally relevant in the case was the fact that there was federal statute, which it didn’t have to decided an application which govern the question of injunctions against state courts. I think thirdly if we take Younger --
Byron R. White: Yes, but Younger wasn’t based on that statute at all?
Leonard B. Boudin: No, it was not.
Byron R. White: It could have been?
Leonard B. Boudin: The court pointed out but it did not mention the statute at the beginning as an indication of federal policy.
William H. Rehnquist: Well, Mitchum against Foster though held that the Civil Rights Act was an exemption to that statute and so it said nonetheless Younger applied independently of the statute and only Younger applied in that kind of a situation?
Leonard B. Boudin: Right. That I can’t answer Your Honor because I don’t know the case but if I may pursue the Younger things, limiting myself for the moment to Younger. In the Younger case, the Court did of course leave open the question of irreparable injury and I do not think one can read Younger as requiring malice on the part of Government to establish irreparable injury. The Court in Younger was concerned about attacking a statute on its face where you are dealing with two problems as pointed out. One, it was a statute and a statute of another sovereignty of the states. And secondly, it was attacking on its face.
Potter Stewart: Well, that was Boyle against Landry in which it was attacked in the United States.
Leonard B. Boudin: But and the Younger was likewise.
Potter Stewart: Younger was trying to enjoin a trial?
Leonard B. Boudin: Yes. It tried to enjoin a trial on a ground that a statute is unconstitutional and this Court said in the majority opinion that constitutionality of the combination of the relative remoteness of the controversy. The impact on the legislative process of the relief sought and above all the amorphous nature of the required line by nine analysis of the statute used. I'm quoting from the words of this Court and the problems that veto of a legislative process and I point out we’re dealing here not with the legislative process or the tribunal which should not have the same weight as a state legislature and we have nothing amorphous about this. This Court knows now as Judge Parker did below exactly the extent of the ineffectiveness of counsel that is predictable in this case and as far as irreparable injury is concerned let us consider what will really happen. There has already been a trial overturned very properly by the U.S. Court of Military Appeals for constitutional error. There will be a second trial if this Court on analysis agrees with us at this kind of hampering of counsel which didn’t exist in Copeland, which didn’t exist in Garren, which didn’t exist in Ellsberg, which has existed in no other case, espionage case. The Copeland was collateral they said before and this kind of limitation upon what counsel can do before a court martial is improper. Then, they will ultimately be a third -- a second trial -- a third trial because that conviction will be set aside and we’ll be back with the third trial whatever new constitutional problems the Government may oppose by its behavior. Now, I submit Your Honors --
Potter Stewart: Of course, if they’re irreparable injury is enough then Younger is meaningless because you have to show irreparable injury to get ever get any injunction from any court of equity under any circumstances --
Leonard B. Boudin: I do not think so, Your Honor. I rely on --– sorry.
Potter Stewart: That’s just a foundation for ever getting an injunction you have to show irreparable injury and a lack of an adequate remedy at law.
Leonard B. Boudin: But we also have here the problem of the constitutional right of the defendant and whether or not he is to be tried before a tribunal. Moore against Dempsey, Johnson against Zerbst and I suspect the Powell against Alabama to occur today this Court would recognize I think in any of those situations that an injunctive relief could be issued even as against the state court. Your Honors’ opinion, on concurring opinion Younger against Harris which I remind Your Honor is based upon a statute and the concern of attacking a statute is very different here from the concern with respect to a military tribunal or any tribunal. And Your Honor said, irreparable injury both great and immediate if the statute were patently and flagrantly unconstitutional on its face. That’s what Your Honor said there in the concurring opinion. Now, here we do not have the problem of a statute. We have the problem of what a military tribunal is going to do. This brings me to the point of the relationship between military tribunals and federal courts on the one hand and on the other hand the relationship between state courts and federal courts. A different approach has been taken and I think will be taken or should be taken by since I may not predict by this Court when we deal with the question of military tribunals as against state tribunals. We have to remember that the states as this Court has said and others have said where the original basic repositories of our constitutional rights. With all the improvements that have occurred in military courts, they are still, they still have the military influence even up to the U.S. Court of Military Appeals. With all of the tradition, this Court has said several times in Parisi, referred to by the Solicitor General and as said also in Noyd and elsewhere and that runs right through that the line that in terms of military expertise, the courts will defer it to the military.
Thurgood Marshall: Well, as a matter of fact the court said no jurisdiction before Burns, did they?
Leonard B. Boudin: Exactly.
Thurgood Marshall: Absolutely none in Burns as a recent case?
Leonard B. Boudin: Burns was a recent case in which the Court examined the record and --
Thurgood Marshall: For the first time?
Leonard B. Boudin: Yes.
Thurgood Marshall: In a military case?
Leonard B. Boudin: Exactly. Exactly and in that case, the Court essentially agreed that there was no merit. I don’t think the Court was right and I stand by the views expressed by Mr. Justice Frankfurters’ concurring opinion and by the dissenting justices. I refer Your Honor is particularly that Mr. Justice Frankfurters’ concurring opinion where he adopted the view on jurisdiction that I have just suggested to Your Honors that the denial of counsel and those other errors Mr. Justice Frankfurter was concerned with effects that jurisdiction of a tribunal.
Thurgood Marshall: But the Solicitor General said the habeas corpus is just fine even in this case.
Leonard B. Boudin: Well, the Solicitor General says habeas corpus is fine even here but we have just gone through to trial and I am suggesting that if collateral review is ever proper and I will accept this concession such as it is that is proper. This is the time to have the collateral review because our client is presently in present, he didn’t have that Younger against Harris. Our client has gone through one unconstitutional deprivation of right. Our client will if Your Honors agree and I think Your Honors will on this substantive issue we are going into a trial and knowing that the tribunal does not have jurisdiction if you accept my premises. And we are going to have a third trial and we've been denied the relief by the army from imprisonment even pretrial imprisonment under their system and a District Court in a case which we have appealed has affirmed to district judges’ decision even though there’s no danger of a client disappearing. So, for these reasons, I submit to Your Honor that if you agree that these limitations on counsel unknown to any civilian court, federal or state without precedent at all dealing with the core of the case, dealing with the most complexes statutes, weeks was spent in preparing the proposed charges for Judge Byrne in the Ellsberg case on when 793 applies and bearing in mind the military judge statement that all of these is irrelevant despite Garren, despite Heine. I submit that if there is a case in our universe in which an injunction is the proper remedy and sometimes it is the proper remedy this case against a military judge not a statute, not a state court this case against the military judge it calls for the injunctive relief we have sought. I thank you, Your Honor.
Warren E. Burger: Thank you Mr. Boudin. Do you have anything further Mr. Solicitor General?
Robert H. Bork: Just to make the observation Mr. Chief Justice that in this case, there is no charge that anything in military done has done has not been done in good faith and that what is being told to us here is that we must take this case in a rather hypothetical basis now and discuss the constitutional issue had we followed this procedural all the way through. Mr. -- Sergeant DeChamplain’s original court martial would’ve been stopped while we litigate that the use of his statements in the first court martial up through this Court’s and then went back to the court martial.
Potter Stewart: Is the entire record of that original trial under seal?
Robert H. Bork: I believe it is Your Honor on a need to know basis.
Potter Stewart: Everything?
Robert H. Bork: It is and the -- nothing that the documents used in that original trial because of the access problem are not going to be use 15 that were not going to be use in this trial and that only nine documents are going to be used in this trial. My point is simply is although Mr. Boudin complains about the necessity to go up to a court martial and have an appeal and come back and be retried. That happens in many systems of the justice and the alternative he offers us is federal court intervention whenever the constitutional issue arises in a court martial. So that you will have massive disruptions perhaps never complete these trials.
Warren E. Burger: Would it be fair to say Mr. Solicitor General unless has been said so far in this case that the more sensitive the material involved in an alleged espionage case the less possibility there is of successful prosecution?
Robert H. Bork: Well, if the rule is, Mr. Chief Justice, that no limitation of any source upon the use of notes is ever possible then of course it follows that more sensitive the material the less possible it is ever to prosecute anybody because if sensible limitations can’t be use upon the review with which the documents flow to the world and which notes are allowed out to flows to the world then I think prosecution is often impossible. I regret that I was not in the Ellsberg case and cannot draw parallels between the protective order there and the protective order here perhaps the documents were of different sensitivities.
Lewis F. Powell, Jr.: Mr. Solicitor General, what restrictions if any were imposed with respect to the nine documents that are to be used in the trial?
Robert H. Bork: The restrictions as a matter stands now Sergeant DeChamplain -- the military restrictions imposed by Sergeant DeChamplain his military counsel, his civilian league counsel, one associate I believe, one secretary, one foreign policy expert and one classification systems expert may all have access to the documents. They may not take the documents home with them, they can work on them under Air Force with the documents have remained in Air Force custody in that sense. They may work on the documents there, they may make notes. The notes if they are sensitive must be left in Air Force custody as I understand it. I don’t think Mr. Boudin suggested that Air Force would be reading his notes. I suppose that there can be a protective order worked out so that doesn’t happen. But there is considerable access to these documents by a counsel, military and civilian by the client and by experts. Now, it may turn out ultimately when if this case is tried and facts are all developed, it may turn out that some court will think that not an adequate access. I don’t think that question and be decided on this kind of a record at this time and that’s a very strong argument against intervening -- having a federal court intervene to try to solve it that problem now before --
Thurgood Marshall: General Bork, it’s not that it’s important but why have the secretary look at it, he can't copy it?
Robert H. Bork: Well, you can --
Thurgood Marshall: You have a call on that?
Robert H. Bork: I think Mr. Justice Marshall that they can make notes and I suppose the secretary can take dictation from it if they wish and write the notes up. I suppose that's the reason, I suppose it's a -- an effort to --
Thurgood Marshall: Secretary has very low clearance of -- I just don’t understand why the secretary agreed, not that it’s important to this case.
Robert H. Bork: Well, I don’t know why they negotiated the secretary into the deal Mr. Justice Marshall.
Warren E. Burger: Thank you gentlemen. The case is submitted.