Earl Warren: Number 42, John Lee, Petitioner, versus Paul J. Madigan et al. Mr. Rhoads.
Carl L. Rhoads: Honorable Chief Justice and members of the Court. This -- this is an appeal from a decision of the United States Court of Appeals in the Ninth -- Ninth Circuit wherein that Court affirmed the decree of the United States District Court for the Northern District of California, which dismissed the petitioner's petition for a writ of habeas corpus. In order to bring the Court up-to-date, I'd like to briefly relate the facts surrounding this case. The petitioner is now in prison in the Alcatraz Penitentiary, Alcatraz Island California. The petitioner was inducted into the Army in October of 1942. He was sent overseas and in May the 27th, 1945, shortly after the war ended in Europe, he was brought to trial by court -- by a general court-martial which convened in Paris, France and was charged with having been involved in a robbery and an assault. He was convicted by the general court-martial and was sentenced to dishonorable discharge from the Army and 35 years of confinement with hard labor. In 1946, he was returning from Paris, France and was confined to the United States Disciplinary Barracks at Camp Cooke, California which is Lombard, about midway between Los Angeles and San Francisco. In -- on June the 12th, 1947, approximately a year after he had been confined to Lombard Camp Cooke, California for disciplinary --
William J. Brennan, Jr.: That is a military --
Carl L. Rhoads: I'm sorry, Your Honor?
William J. Brennan, Jr.: That was a military prison.
Carl L. Rhoads: It's -- it's a -- what we call a disciplinary barracks, yes, Your Honor.
William J. Brennan, Jr.: It's a military --
Carl L. Rhoads: Yes, it's a military establishment.
Potter Stewart: Are there any other military activities there in addition to the disciplinary barracks?
Carl L. Rhoads: There -- there used to be in World War II, I understand. However, I don't think there is very much there at that time. In 1947 -- June of 1947, approximately a year after he had been admitted there, upon his return from overseas, he was dishonorably discharged from the service. That is a dishonorable discharge was executed and it was mailed to him and placed in his personal file there at Camp Cooke, California. In -- in June of 1949, approximately two years after he was dishonorably discharged, three fellow prisoners stabbed another prisoner to death. The petitioner John Lee took no active part in the affray, whatsoever, as is evidenced by a dying declaration, which for some reason was not admitted into trial in the original court-martial. Although he took no active part in this affray, whatsoever, in fact according to the dying declaration here, that even states that he attempted -- he did what he could to stop it, before, I quote from it either where the victim said, “Lee didn't take no -- Lee didn't do no cutting but he was there. He was trying to tell -- trying to make them stop,” and words to that effect. But, nevertheless, in spite of that --
Speaker: I don't understand it. So, I'm sorry. That it is -- is this dying declaration --
Carl L. Rhoads: Well if I (Voice Overlap) --
Speaker: (Voice Overlap) consider --
Carl L. Rhoads: -- may -- Mr. Justice, they have reason it was not admitted although I say it was a dying declaration. It was not admitted for the reason that the last sentence that -- in the last statement that they had made, before he went into the hospital or --
Speaker: It is part of his brown book --
Carl L. Rhoads: It -- it is attached to the transcript of the record.
Speaker: It is?
Carl L. Rhoads: Yes, Your Honor.
Speaker: It was before it.
Carl L. Rhoads: Yes, it -- it was the -- and it was before the lower court too but was not before the court-martial.
Speaker: I see.
William J. Brennan, Jr.: Does it have any relevance to the issue we have to decide?
Carl L. Rhoads: Is it -- is it relevant --
William J. Brennan, Jr.: Is it relevant to the issue we have to decide?
Carl L. Rhoads: Oh, it -- it is not. It is -- it's only a question of fact, Your Honor. This is a legal question before the Court.
William J. Brennan, Jr.: That's -- all we know is he committed some offense for which he --
Carl L. Rhoads: For which -- for which he was court-martialed --
William J. Brennan, Jr.: Gets court-martialed.
Carl L. Rhoads: He was -- he was dishonorably discharged.
William J. Brennan, Jr.: And then --
Carl L. Rhoads: Two years --
William J. Brennan, Jr.: -- court-martialed again for another offense at Cooke?
Carl L. Rhoads: Yes, which took place some two years after he was dishonorably --
William J. Brennan, Jr.: -- it took -- took place at Cooke?
Carl L. Rhoads: At Camp Cooke, California.
William J. Brennan, Jr.: And -- but there's no -- there was no issue as to whether he was rightly or wrongly convicted is there before us?
Carl L. Rhoads: The -- the only issue before the Court today, Your Honor. There are two issues. The first issue is the interpretation of Article of War 92 which --
William J. Brennan, Jr.: Yes. But it all goes to jurisdiction to try him by court-martial rather than in civil court, isn't that (Voice Overlap) --
Carl L. Rhoads: That's right, Your Honor. That's -- that's right.
William J. Brennan, Jr.: Well then, we're not concerned with the merits or otherwise but the offense for which he was charged though.
Carl L. Rhoads: No -- no, Your Honor. There are two issues before the Court here today, gentlemen. The first issue is the -- is the interpretation of Article of War 92, which although, in our brief we have stated that really as effect and issue, we have chosen to discuss that first and I'd like to discuss that with you, gentlemen. And the other issue as to the interpretation of Article 2 (e) will be taken up by Mr. Hannon. The reason I've two is to discuss 92 first, is because I think the Court will see that if that probably has to be passed upon before they can reach Article 2 (e). I'd like to read at Article 92 from the 1949 manual for court-martial, which was in effect at the time of this offense for which the petitioner is now serving his life sentence, specifies, “any person, subject to military law, found guilty of murder, shall suffer death or imprisonment for life as a court-martial may direct.” And then I skip down the part that has -- “but provided that no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of The Union and the District of Columbia in time of peace.”
William O. Douglas: That's rather old commission, isn't it?
Carl L. Rhoads: Yes.
William O. Douglas: That goes way back?
Carl L. Rhoads: Yes, Your Honor.
William O. Douglas: The provision.
Carl L. Rhoads: Yes, it does as it goes back for a long time but it -- it is not incorporated into the 1951 manual, which was passed in May of 1950 and the new uniform code of military justice dropped that provision from -- from the murder and rape. But it -- but it has been in there for many years prior to the 1951 manual. The -- the District Court and the Court of Appeals have ruled in this case that on June the 10th, 1949 we were at war. And we were not -- it was not time of peace within the meaning of Article of War 92. And so that the general court-martial according to the lower court and the Court of Appeals, did in fact have jurisdiction in the case of John Lee, the petitioner, to try him by general court-martial for the capital offense of murder which was committed in June -- on June the 10th, 1949 and for which he was brought to trial in September of 1949, in -- in Camp Cooke, California where the courts -- the Court -- this Court will take judicial notice of the facts at that time, the courts were open. We submit, there was -- there was no necessity and there is no reasonable relationship for the Government of the land and naval forces for -- for the -- for John Lee, the petitioner, to be tried by general court-martial in 1949, two years after he had been dishonorably discharged. And some four years after the wars had ended the -- the war in Europe and also the war in the Far East, the war in the Far East having ended of course on August the 14th, and -- and August 14th, 1945. I remember it very well. I was in Okinawa. I appreciate it.
Earl Warren: When you say the war ended, you mean the cessation of hostility?
Carl L. Rhoads: The -- there's -- the shooting stopped --
Earl Warren: The shooting stopped.
Carl L. Rhoads: The shooting stopped and they told us that we were going to wait for our orders to go home. And that is the point on which the -- the Government had rested their case. They -- they have made much capital of an old World War I case Kahn versus Anderson 255 U.S. 1. And they -- they have contended that that case governs the case at bar. That in that particular case it involved the -- a petitioner who was confined in Fort Leavenworth, Kansas during World War I in July prior to the Armistice in July of 1918 wherein -- wherein this -- this man who was confined at Fort Leavenworth was alleged to have been involved in a murder there at Fort Leavenworth. He was brought -- he was brought to trial on November the 4th after this offense was committed in -- in July of 1918. And he was tried by a general court-martial. The court-martial took about 21 days with the delays and all. So that the court-martial ended up by -- on November the 25th, 1918. Of course, the Armistice was signed on November the 11th. Well, the petitioner then, Anderson, came into court and on a writ of petition -- for writ of habeas corpus and he said that because of the fact that the war had ended, before the sentence was finally handed down, there was a loss of jurisdiction. And the -- and the Court -- the United States Supreme Court, rightly so stated, “No, that is not so, because we had jurisdiction over -- over the man. It was in time of war. The Armistice hadn't even been signed and we continued to have jurisdiction.” Then they went ahead to say, “In time of peace means peace in the complete sense officially declared.” Now, that -- that is the case on which the lower court and the Court of Appeals rejected the petition. I -- I respectfully call the Court's attention to the fact that I think that they've misinterpreted that case, very definitely, because, at first place, it's not at all like the case at bar. Because in our -- in the case at bar, whereas in -- in the Kahn versus Anderson, the -- the Armistice hadn't even been signed. In the case at bar, the Armistice had been signed about four -- well, the shooting had stopped about four years earlier. The Presidential Proclamation was signed in -- on December the 31st, 1946. And the joint resolution of Congress was passed on July the 25th, 1947, which the army court-martial itself has stated, adopted into the new manual under Article 43, and it states there that the --the joint resolution of Congress of July the 25th, 1947, has the effect of terminating the war to -- with respect to punishment of certain military offenses when committed in time of war. What they had to do under Article 43, which covers the statute of limitation, would make the determination as to when -- which offenses are committed in time of peace and which are committed in time of war. The difference being of course, those that are committed in time of -- on time of war, many of these offenses do not have a statute of limitation, but in time of peace they have a three-year statute of limitation. In that connection, Article 43 (a) says, “A person charged with desertion or absence without leave in time of war or with aiding the enemy, mutiny or murder may be tried and punished at any time without limitation.” Then it says in (b), “Except as otherwise provided in this article a person charged with desertion in time of peace or any of the offenses punishable under Articles 119 through 132 and they had included offenses -- offenses such as – such as assault, larceny, and various other offenses which apart from being in time of war would have a three-year limitation.” And the -- and the footnote says, “An absence without leave from 7 March, 1947 to 5 February, 1949, having begun on a date prior to the adoption by Congress of the Joint Resolution of 25 July, 1947, terminating the war with respect to punishment of certain military offenses when committed in time of war was held subject to the operation of Article of War 39.” In other words, they said, “That because that absence of leave or absence without leave began on 7th -- on the 7th of March, 1947, before the joint resolution of Congress, that it was a wartime, absence without leave. And hence would not have the three-year statute of limitation.” Now, the Government failed to take into consideration some very, very important cases and some of the most important of which are the cases which have handed -- been handed down by the United -- the United States Court of Military Appeals, which by virtue of being a court -- a court which deals specifically with military cases, had come to be expert in that field. And they have had to pass upon the question of "in time of war" or "in time of peace" because we had this Korean conflict that came on. And we had the same -- the Presidential Proclamation was passed at the beginning of the Korean conflict, it was of course, in June the 24th, 1950, which stated that these same offenses which otherwise would have been peace time offenses from July the 25th, 1947, became wartime offenses after the Korean conflict started as of June the 24th, 1950. So that -- many -- the United States Court of Military Appeals has had to pass on many cases involving AWOL which occurred after the Korean conflict. AWOL which -- and they've -- they've held universally that that's desertion if it occurred after the 24th of June, 1950. And so that's desertion and because it's desertion, it's desertion because it happened “in time of war.” The Government in the -- the Government has made much capital of the fact but the Korean conflict was not a war because it -- it wasn't declared to be a war as such. It wasn't started by Presidential Proclamation and because it wasn't ended by Presidential Proclamation. But, I -- I submit what the United States Court of Military Appeals and this Honorable Court has also said in the same regard in the -- in the case of Ludecke versus Watkins. And I'm now reading from -- from page 33 of our brief. In Ludecke versus Watkins, after a similar issue was before the war or before the Court except that it involves what we call war powers in that particular case. It -- it involved the -- the power of -- of the aliens, the -- the right of the -- the Government to deport an alien without giving him a due process hearing, Ludecke versus Watkins 335 U.S. 160. And the -- the Court laid down the rule there, the state of war may be terminated by treaty or legislation or Presidential Proclamation. And what they -- what they said was any one of these things may terminate the war. Now, the question is, of course, the Government contends that we -- we never -- we never got out of the war until 1952 when the Japanese Peace Treaty was finally signed and all that -- it was signed in 1951, it became effective in 1952. But that leaves us with a paradoxical situation. If we were never -- if we were at war from Pearl Harbor up until 1952, then why is it necessary for -- for the Court -- the Court of Military Appeals in -- in such a large number of cases to rule that we were at war when the Korean conflict started. It certainly is a paradoxical situation. It -- they're hanging their case on a mere technicality and not on the actualities of the cases. But the -- it's very interesting that one of the most -- two of the most recent cases in this connection are cases that -- which have been handed down by the United States Court of Military Appeals on March 15th, 1957, last year. That's the case of United States versus Shell and United States versus Boston. In those two cases, this very issue was before -- was before the Court. When did the time of war for the Korean conflict begin? When did it end? Because they again had the question of these offenses which would carry a -- would be capital offenses in time of war. Murder -- murder over in Korea and desertion. They held in -- in United States versus Shell and United States versus Boston, and I quote, “In holding that offenses committed during the Korean conflict were perpetrated during a time of war, within the meaning of the language of a code, we reason that war does not result only from a formal declaration of Congress but can exist, in fact, without a declaration, and that its existence is to be determined by the realities of the situation as distinguished from legal license.” Now, the thing that is especially significant about that case is that they specifically stated that they have -- were overruling their prior holding of September 16th, 1954, three years earlier, wherein that same issue was before the Court. And they had followed, in that particular case, they had followed Ludecke versus Watkins and Kahn versus Anderson. They state as -- as well as when United States Ex Rel. Knauff v. Shaughnessy. But it's very interesting that the court, in this later case, in 1957, in these two cases, specifically said that we overruled our earlier decision which had been based on Kahn versus Anderson. And -- and they have held in this particular case that -- that the -- when used in military law, the terms, “in time of -- time of war" and "time of peace" constitutes actual peace or war and not technical peace or war. Now, if we are going to follow the Government's contention, what is going to be the result as far as all of these decisions which have -- had been handed down by the Court of Military Appeals? If we're going to follow the Government's details and say that we -- we reject -- we reject this distinction, these cases are wrong. The Court of Military Appeals and every case is wrong if you follow the Government's contention that we be -- we continue to be at war from Pearl Harbor up until the Japanese Peace Treaty passed in 1952.
Earl Warren: Mr. Rhoads, is there any case in the Military Court of Appeals where it is held that between July 1947, the date of the Congressional Resolution, and June 24th, 1950, the beginning of the Korean affair, that the military courts do not have jurisdiction over -- over these people in situations this man has had?
Carl L. Rhoads: Mr. Chief Justice, I have made a very diligent search trying to find another case wherein the army had tried by court-martial any person, regardless of whether they were discharged or not, where the offense of murder was allegedly committed in the continental United States between the date of July the 25th, 1947 and the beginning of the Korean conflict and I have been unable to find any case whatsoever.
Earl Warren: Have you found any case where he was tried in the civil courts in those circumstances?
Carl L. Rhoads: I -- offhand I'm not able to cite any cases but -- but I'm sure there has been a number of -- a number of cases.
Earl Warren: During that period?
Carl L. Rhoads: I -- it just seems to me that I can remember various references to them, although I didn't see any in the book. I didn't go into that aspect of it much. It seems to me that I have read about murders having been committed on military posts wherein the men have been tried in the federal courts but I couldn't cite any particular case. However, in that -- in that connection, here is a -- it's a very interesting case that did come up in -- in 1950. Of course, at that time we did not have the Court of Military Appeals and we didn't have it until after May 1951. But in this particular case, this case arose in 1950 -- in 1950 and involved -- it actually involved a question of whether we were at war on the 31st of July 1950. And the case went up on appeal to the -- what we call the judicial council which was then the judicial council which sat in the office of the Judge Advocate General, something more or less similar to the Board of Reviews which we now have all over. Of course, as I say we didn't have the Court of Military of Appeals. In that particular case, the question was whether we were at war or not because we have the -- we have the offense of a -- of a deserter. And the Court said the background, the extent, and nature of the hostilities between the United States and North Korean Forces on July -- on the 31st of July 1950 and the inevitable results of such hostility is up to that time in terms of casualties, again, matters of common knowledge and therefore proper subject to judicial notice are genuine proof of the existence of a state of public war between the two governments on that date. And this involved a case of a fellow who deserted from an army camp up in -- up in Fort Lewis, Washington in 1950. So the question was if -- is it a wartime desertion so that the capital punishment so that he can be -- be disposed of and court-martial may (Inaudible) to being killed or is it a peace time desertion? And the question was the Court had the rule and the judicial council as early as the 31st of July 1950 which was of course only about two months after the Korean conflict started said that we were in time of war. Well, interesting in the same connection was a case which came up in -- in May the 8th, 1952 which arose when a soldier was sleeping on his post over in Korea. And in that particular case the Court said -- they said, “And the interpretation of Congress itself has placed on the hostilities by reestablishing certain wartime rights cause us to believe that when the President and Commander-in-Chief ordered members of the Army to service at the end of the conflict, he involved this country in hostilities to wit and to -- to such an extent that the state of war existed and that Congress, when it used the phrase “in time of war” in the military code, intended to bring -- to apply to that state regardless of whether it was initiated or continued with or without a formal declaration. Applying the rule which has been laid down in the Reid versus Covert and the Toth decision, I ask this Honorable Court, what is the reasonable relationship between the crime of John Lee, a dishonorably discharged ex-soldier, for the ethical offense of murder which allegedly occurred in June of 1949 by court -- by a general court-martial, instead of taking him over roughly 150 miles to the Federal District Court for the Southern Division of California and trying him by a federal jury where his constitutional rights among others, the fair right to a trial by jury would be respected?
Potter Stewart: Is it clear that would be --
Carl L. Rhoads: (Voice Overlap) --
Potter Stewart: Is it clear that it would be in a federal -- it would be in a federal rather than a state court?
Carl L. Rhoads: He would be -- he would be tried --
Potter Stewart: Yeah.
Carl L. Rhoads: -- Your Honor, in a federal court because --
Potter Stewart: Because it occurred on --
Carl L. Rhoads: -- it's on -- it's on a federal jurisdiction.
Potter Stewart: Federal jurisdiction.
Carl L. Rhoads: We contend, Your Honor, that when he is dishonorably discharged he is not serving -- his contract with the Army has been ended. He's not receiving pay, he can't salute, he can't re-enlist, he has no -- none of the benefits of the -- of a military man. We -- he doesn't have the benefits but they want him to take the burdens. They say that he -- he's not a soldier, he can't be buried in Arlington Cemetery, he can't have any of the other myriad of benefits which accrue to a soldier. But by the same token they say, “But we still have jurisdiction so that we can try him for the capital offense of murder when allegedly committed in the continental United States and we can deny him his fundamental right to a jury trial.” I submit, Your Honor, it's a violation of due process. Mr. Hannon will now discuss the constitutionality of Article 2 (e). Thank you, gentlemen.
Earl Warren: Mr. Hannon.
Robert Edward Hannon: Chief Justice Warren, members of the Supreme Court, may it please the Court. My position on this case is as follows. We contend that since John Lee had been discharged from the Army, he cannot be court-martialed by the Army that the then existent Article 2 (e) of the Articles of War, if interpreted to confer such jurisdiction is unconstitutional. I think before I start the presentations, it's important to keep several factors in mind. Primary among those is that here we are speaking of a capital offense. We're speaking of the offense of murder. Second, we're speaking of an offense that occurred in continental United States. It wasn't overseas. It was right here in the jurisdiction of our local District Courts. It was an offense that occurred in 1949 and under the world conditions and the local conditions that existed in 1949. It was a trial by -- of a person who had received and executed dishonorable discharge. It was a discharge that had been handed to him, differing from the common situation now, where a man is discharged, been given a dishonorable discharge. They frequently suspend the execution of that discharge until completion of the sentence.That is not this case. This could --
Speaker: Would the case be different if that had been so?
Robert Edward Hannon: It would, Your Honor. The case would be different if it had been suspended dishonorably discharged, because then he would've been in the service. Here, the discharge was issued, signed and in hand, delivered to the accused, to Mr. Lee. Lastly, here, we don't have the situation which occurred in the Toth case and the Hirshberg case as far as I know in the Covert and Reid case. This case, if -- we are not asking the Court to entirely release the accused. We're asking the Court in effect to turn him over to the Federal District Court for trial. It is not a case, like in Toth or Hirshberg where that he will escape prosecution if he was released. He will be tried by the Federal District Court if he's released. It's an offense within the province of the local Federal District Court. The Court is aware. The jurisdiction of court-martials as conferred by the Article 1, Section 8, Clause 14 and that is the only place that the Congress has authority to court-martial or to grant court-martial authority. That article, of course, to that clause says that, you can try that make rules for the Government in regulation of the land and naval forces. Then in the Toth case, you stated that this applied to persons who were, “actually members of the armed services.” In the Reid case you said “persons who are serving in the land and naval forces.” You, in a footnote, quoted Colonel Winthrop who is highly regarded as the grand father of the Blackstone of Military Law, who said that the law or the Fifth Amendment clearly distinguishes the civil from the military class. They're clearly distinguishable parties. Colonel Winthrop also said that the law and you quoted in the footnote in the Covert and Reid cases. You say, that -- or Winthrop says “that the law recognizes no third-class. You're either in the service or you're not in the service.” So that brings us down to which class. Which of these clearly distinguishable classes does a dishonorably discharged prisoner fall into? Well, we can look at him and look at his status and being in the service is a status. He has no contract with the military because the military has expressly repudiated his contract. He performs no duty. He renders no service. He receives no pay like Mrs. Smith and Mrs. Covert he is housed with the military but is not part of the military. I think insofar as Covert -- the -- Lee is in the same situation as where the -- the parties in the Covert and Reid cases. However, we can go further. The Army itself has said that a dishonorably discharged prisoner is not a soldier. Cited in the brief are opinions handed down by the Judge Advocate General. He stated first, a dishonorable -- dishonorably discharged soldier cannot be tried for unauthorized absence because unauthorized absence contemplates a duty or to be out of place of duty, a dishonorably discharged soldier has no duty. That's from the Judge Advocate General himself. He can't be tried for disobedience of orders. The Judge Advocate General says, “A dishonorably discharged soldier cannot be tried for disobedience of orders because he is not a soldier.” He is not entitled -- a dishonorably discharged soldier is not entitled to special services, equipment which is bought out of appropriated funds. He's not entitled to that because according to the Judge Advocate General and that this was also a quote, “he is not a member of the military forces of the United States.” Lastly, the Attorney General or the Judge Advocate General has held that dishonorably discharged soldier killed by the enemy is not in the status of “killed in action.” The reason he says and this is a quote, “A dishonorably discharged soldier becomes a civilian even though retained in confinement under sentence of general court-martial.” So clearly, the Judge Advocate General has held a dishonorably discharged prisoner to be a civilian. We can go to Colonel Winthrop in his digest to the -- digest of opinions to the Judge Advocate General in 1895. In that digest, the Colonel in 1895 arrived at the same conclusions or substantially the same conclusions that this Court has in the Hirshberg case and the Toth case, and in the Reid case. The Colonel insofar as the discharged prisoner is concerned says unequivocally that they are civilians. The Colonel said that if Section 1361, which was the Section authorizing trial of dishonorably discharged prisoners at that time, if that Section authorized trial of dishonorably discharged prisoners, it was unconstitutional. The Colonel in his Military Law and Precedents, 1920 held the same thing. He said that a dishonorably discharged soldier is a civilian. Now, the Government's argument is this insofar as the necessity if the case is concerned. The Government says, so we have a man here in a military prison, it's necessary that the military have jurisdiction to court-martial him so as to maintain the discipline and morale of their prisoners. I submit to you gentlemen of the Court that that is not the case. The head of a military prison has the same authority as a warden of any prison has. He can put a person in solitary confinement. He can do this, that or the other thing to maintain his discipline. But there is no necessity of trying a man for a capital offense, of murder, when there's a local District Court which could also try him.
Speaker: I understood you to say, (Inaudible) if the sentence had been a dishonorable discharge was to become effective after he served his sentence that you wouldn't be here.
Robert Edward Hannon: That is correct, Your Honor.
Speaker: Now, what's the constitutional difference?
Robert Edward Hannon: The constitutional --
Speaker: Explain it to me between that situation and the situation we have now before us.
Robert Edward Hannon: The difference is this, Your Honor. In the instance where the discharged -- the dishonorable discharge is suspended, he never receives a discharge. He is in the service. He's an actual member of the service having -- not having been discharged until after the completion of his sentence. In this case, they discharged him and then put him in the --
Speaker: I understand the factual difference, of course, but I'm asking you what you conceive to be the constitutional difference, the legal difference between those two situations?
Robert Edward Hannon: Well, in a word I would say the constitutional or legal difference being in the one case, he's a member of the service and under the -- the Article 1 can be tried. In the second instance, he's a civilian, and because he has actually been discharged. The second instance he's never been actually discharged.
Speaker: Do you think the military has no relation to him in the case that we have because of the way the sentence was framed, is that it?
Robert Edward Hannon: They have -- they have a relation to him in the sense that the warden of any prison has a relation to a prisoner confined there at. In other words, the normal authority that a prison warden has over prisoner, but they don't have authority to -- to try him for murder any more than the warden of a normal prison (Voice Overlap) --
Speaker: He's still a part of the military establishment except in the sense that he's not on active duty but he's incarcerated.
Robert Edward Hannon: Well, I don't think he's a member of the military establishment. He received no pay. He has no contract, performs no duties, not entitled to any of the benefits of the military. He's killed, he's not killed in action. He receives none of the benefits of a member of the military. Whereas if -- but there are a lot of different results that evolved to a prisoner who has a suspended discharge while he's serving his sentence. In the first place, he can go back to active duty when he's -- at the termination of the sentence without being re-enlisted, whereas if a person has an executed dishonorably -- dishonorable discharge, he would have to re-enlist to get back into the service.
Speaker: Do you think at all times and whether he is a soldier, quoting your word?
Robert Edward Hannon: Yes, Your Honor, I think it's a status of whether or not he maintains the status of a member of the military.
Charles E. Whittaker: But perhaps what you really mean is that he is not in the armed services within the power of Congress to prescribe rules regulating the armed -- the Army and Navy --
Robert Edward Hannon: That's correct, Your Honor.
Charles E. Whittaker: -- after he's been discharged.
Robert Edward Hannon: That's correct.
Charles E. Whittaker: That's what you really mean, isn't it?
Robert Edward Hannon: Yes, Your Honor. If --
Charles E. Whittaker: In other words, that constitutionally he is within the power of the armed forces under rules prescribed by Congress so long as he's in the Army.
Robert Edward Hannon: Yes. But --
Charles E. Whittaker: But when he's been discharged, he's out and there is no constitutional power, is that your argument?
Robert Edward Hannon: That's correct. He -- he has -- the Congress can't class the -- he isn't classified in the status of military person or within the land and naval forces. Returning to the point of the necessity or the possible adverse effect from holding that this man is not amenable to court-martial jurisdiction and that Congress cannot make laws subjecting him to court-martial jurisdiction. Both the Toth and the Reid case held that mere convenience is not a sufficient reason to deprive a person of his constitutional guarantees, his right to a jury trial, his right to counsel, his right to present an indictment. The mere convenience is not sufficient to subject him or to deprive him of these rights. In Reid it was held all persons who are members of the land -- that the Constitution -- the Constitution does not say that all persons who are members of the land and naval services and all other persons whose regulations might have some relation to the maintenance of the land and naval forces. The Reid case, you said, it must be a member of the land and the naval forces. You further stated in the Reid case that they cannot use the necessary and proper clause of the Constitution to expand this jurisdiction of Article 1. The Toth case, I think it's very significant and quoting the language of the Toth case, the Court held that the military jurisdiction or court-martial jurisdiction should be restricted to the narrowest jurisdiction deemed absolutely essential to the maintenance of discipline in the Army. Now, that raises the question in this case, was the court-martial of John Lee at Camp Cooke for the capital offense of murder, in 1949, in continental United States, absolutely essential to the maintenance of discipline at Camp Cooke? Or wording it conversely, would there have been a detrimental effect on the discipline of Camp Cooke, to take John Lee, 150 miles to Los Angeles and have him tried by a civilian court there?
Hugo L. Black: Is it -- is this implied, Mr. Hannon that if the answer is yes, either or both of those questions suspends the military (Inaudible)?
Robert Edward Hannon: If there is reasoning from the Toth case, I would assume that --
William J. Brennan, Jr.: Well, let's see. I thought you said before, there's a --
Robert Edward Hannon: If there's -- if there's an adverse --
William J. Brennan, Jr.: (Inaudible) -- of course, you answered Mr. Justice Whittaker and Mr. Justice Harlan earlier that it's black and white. Once he's -- he's discharged from the army, he's out -- he must be a civilian --
Robert Edward Hannon: He's one or the other.
William J. Brennan, Jr.: Doesn't usually Congress could give no power to the court for an offense committed at the time that he committed it.
Robert Edward Hannon: He's either in or he's not in the service.
William J. Brennan, Jr.: I would say --
Robert Edward Hannon: If I --
William J. Brennan, Jr.: -- at that time he committed it, he was not (Voice Overlap) --
Robert Edward Hannon: At the time of the offense.
William J. Brennan, Jr.: Well, now what's trial --
Robert Edward Hannon: Now, this is perhaps falling back or equivocating on that argument, Your Honor.
William J. Brennan, Jr.: You mean,
Robert Edward Hannon: Here --
William J. Brennan, Jr.: (Inaudible) actually giving it --
Robert Edward Hannon: No. I think --
William J. Brennan, Jr.: No?
Robert Edward Hannon: -- this is more in the line of reasoning for that particular rule. You weren't in -- in the Toth case it wasn't explicitly answered as to whether it was in or out of the service.
William J. Brennan, Jr.: Yes, but (Voice Overlap) --
Robert Edward Hannon: You implied that there might be something --
William J. Brennan, Jr.: (Voice Overlap) -- while in the service, wasn't it?
Robert Edward Hannon: Well, I'll put it this way, Your Honor. I'll say that if the Court finds that there can possibly be a third-class, which is not military and not civilian but is subject to military law, if there is a class, if it's not -- if what Colonel Winthrop said is not followed by the Court, Colonel Winthrop said it has to be one or the other. The Court in the Toth and in this case has -- has put Colonel Winthrop to that effect in a footnote, but it does not expressly held that you have to be one or the other. Now, I'm saying that if the Court finds that -- that you might not have to be in the service to be tried by court-martial, in other words, if there's a class of person who was not actually in the service but can still be tried by court-martial. I'm saying that if that is the case, then the guiding factors there is to whether a person is to rely on the service the, the guiding factor is to whether the -- a person is in that category, if a person not in the service but subject to court-martial jurisdiction, then I think the rule is that that group of persons should be limited to those persons who the Court deems absolutely essential to maintain military discipline, and falling back a step, in other words. So, that here I don't think that Lee would fall in that category. I don't think the court-martial of Lee is absolutely essential --
William J. Brennan, Jr.: In other words --
Robert Edward Hannon: -- to make this military (Voice Overlap) --
William J. Brennan, Jr.: -- instead of being at Camp Cooke, if he were at a camp in confinement, let's say in some theater overseas --
Robert Edward Hannon: I think you might as well reach that --
William J. Brennan, Jr.: Might have a different case, is that it?
Robert Edward Hannon: Yes. Our prime argument goes back to this -- I think, that it's either in the service or not in the service. If that doesn't work then I think this other thing of -- of whether or not it is essential to military discipline which might be different overseas.
Speaker: Do you --
Robert Edward Hannon: It's probably is different overseas.
Speaker: Do you think that's the test, constitutional test, of whether it's rational for Congress to conclude as it has since 1873, that a person situated as this man is should be subject to -- should be subject to military discipline. Do you would think that the test is whether it's essential to the preservation of military discipline?
Robert Edward Hannon: That -- that Your Honor is our second argument. Our first argument is he has to be one or the other, he's either in or he's not in.
Speaker: But I --
Robert Edward Hannon: If he's not in regardless of the situation he shouldn't be tried by court-martial. Our second argument is if the Court doesn't buy that argument then going back --
Speaker: I understand that.
Robert Edward Hannon: -- one step further. Then if there is a third-class, part military and part civil, then the test should be absolutely essential for military discipline --
Speaker: In other words we have supply that it's absolutely essential to military discipline --
Robert Edward Hannon: That's the word --
Speaker: -- if we reject your first branch of the argument.
Robert Edward Hannon: Yes, Your Honor. That's the wording from the Toth case. We don't feel that in this case that there was any -- it was absolutely essential for military discipline to try a man for murder at Camp Cooke, California rather than taking it to the Federal District Court. Very last -- quickly, I'd like to touch on the question, which is going to be presented to you by the Government I'm sure, and that is the case of Kahn versus Anderson. Admittedly Kahn versus Anderson is the thorn in our side. The Kahn versus Anderson decision was handed down in 1920 by the United States Supreme Court. However, I think there are a number of things that distinguish Kahn versus Anderson in this case. First, if not most important, I think there's a question in the Kahn versus Anderson case as to whether or not it was an executed dishonorable discharge. The court said, “whether or not there was an executed dishonorable discharge it doesn't make any difference.” The most important factor of the Kahn case is this. The Kahn case was based on prior cases. It was based on Carter versus McClaughry Ex parte Wildman and -- and the Craig case. It was based on those three prior cases. Now, first of all, if you take the Carter decision, the Carter decision does not hold that the military does not have jurisdiction of -- the military has jurisdictions to try and discharge prisoners. So far as the Carter case is concerned, that is strictly dicta. The Carter case holds nothing more than Coleman versus Tennessee, that is, that once a court-martial has started, once the man has been arrested with a view to court-martial, the military maintains jurisdiction over him up until a completion of his sentence. Captain Carter in the Carter case said that he was tried, convicted, given a dismissal, and five years confinement. He said after the Court gave him the dismissal, they lost their jurisdiction to carry out the confinement part of the sentence. The Carter case stands for nothing more than a continuing jurisdiction. Once jurisdiction attaches, it continues to the completion of the sentence, confinement or otherwise. In the -- in a statement in the Carter case to the effect that -- the military has jurisdiction to try to discharge prisoners is purely dicta. There's another argument, this Wildman case and the other case, were based I think to a degree and so as the -- the Khan versus Anderson was based to a degree on the Fifth Amendment argument that the Congress derives authority from the Fifth Amendment to try or to give to the military court-martial jurisdiction over offenses which arise in the service. This Court in both the Toth and in the Reid case has expressly stated that the Fifth Amendment confers no -- no authority to Congress to confer military jurisdiction. One other point, the counsel in the Kahn case failed to point out to the Court in that case that the Judge Advocate General himself felt that there was no jurisdiction or that the Article 1361 of the revised statutes was unconstitutional. Counsel failed to point that out to the Court. Another point in the Kahn case is that the offense in the Kahn case occurred in time of actual war. It occurred during the actual shooting war of World War I. Here, the offense occurred in 1949, which we contend was a time of peace in the actual sense, if not in the technical offense. I thank Your Honors.
Earl Warren: Mr. Davis.
John F . Davis: Mr. Chief Justice, if the Court please. Because of the limited time which is left before the Court rises for the day, I would like to turn my attention to the construction problem of Article 92, the time of peace matter rather than dealing with the constitutional issue which has just been discussed. I think that in the limited time we may be able to deal with the question of construction. Now, the timetable which we have to have in mind in connection with whether or not this homicide took place in time of peace is as follows. The incident occurred on June 10, 1949. Armistices had been signed in both Europe and in Japan in 1945, and the President had proclaimed the end of hostilities as of the close of 1946. However, the final peace previews and the proclamations of peace were not -- were not issued until -- for Europe 1951, and for Japan 1952. So that our question here is, in the light of this timetable what did Congress mean when it wrote “time of peace” into Article 92? Now, this is purely a question of construction, and I want to emphasize this because I think it draws a distinction between this type of case and the type of case which deals with war powers. There are a group of cases in which the Court has had to consider whether or not Congress had power to take certain action. And it has power, the Court says, in time of -- in time of war which it does not have in time of peace because of the war powers specifically granted by the Constitution. But this does not mean that Congress by making its own definition of war or peace can extend its powers indefinitely. The Court must look at the definitions it uses, the declarations it makes, and determine whether there -- whether they fall within the realm of reason because otherwise Congress could by its own act extend its own war powers which it cannot do. But here, the power of -- or the power of the Army to court-martial does not depend upon whether or not there's war or peace. Congress could have said that they -- and in fact, does say in the present Articles of War, that murder may be court-martialed in time of peace as well as in time of war. So our sole question is, what does Congress mean not what was -- what were its powers? Now, I suggest it is abundantly clear with respect to Article 92 that Congress did not intend to terminate court-martial jurisdiction prior to the final promulgation of peace, neither the Congress nor the President. When the President made his proclamation of the end of hostilities, he was keenly aware of the problems of wartime legislation. And in the proclamation, he specifically stated that the state of war was to be continued, which was done with the idea that there were statutes dealing with war power and that he did not intend his proclamation to affect them. Then in 1947, Congress deliberately terminated the effectiveness of certain provisions of its statutes which would be effective during time of war. And in doing this it went through an incredibly long list of statutes dealing with war powers, and it selected from them, individual statutes which it said are no longer necessary to be -- to be continued in effect. And it's interesting in this respect to note that it selected certain of the articles of war, of these same articles of war, which we have before us. And considered that, as to them, the war should no longer be continued in effect. One of these -- one of these articles was the article dealing with desertion which carries a different punishment in time of war than in time of peace. And for the purposes of construction of that article, Congress specifically stated that we now would consider it is no longer necessary to consider it a time of war. The -- we have made reference to the articles which were terminated on page 45 of -- of our brief and we have listed also some of the other articles from the footnote which are dependent upon time of war or time of peace and which Congress specifically decided to -- not to affect by this declaration. Now, this Court has recognized the authority of Congress to define peace and war for the purposes of the articles of war themselves. I would refer the Court to a rather old case, McElrath against the United States 102 U.S. 426 which is cited in our brief. By the power of the President which was limited to the time of war to dismiss officers without court-martial, court -- court-martial was upheld in a period between the end of open hostilities in the civil war and before the proclamation of the President that the war has been completed which came out in August of 1966. The specific question before the Court in that case was, was it proper for the President to exert these powers at this time? And there they said that the purpose of the -- of the -- of the statute was to have total peace, that's what Congress had meant and there was not total peace until the President had issued the actual proclamation. Then we have the case of Kahn against Anderson. And in Kahn against Anderson, again, the question came up whether the war had been concluded. There are difference in -- differences in the facts between that case and this with respect to the termination of war. In fact, the -- the petitioner in that case claimed that it wasn't a question of when the homicide took place but it was a question of the jurisdiction of the court-martial and that the court-martial terminated with -- with the time of peace. This appears to be an extraordinary reading of the -- of the language of the statute but it's the way he read it. And the Court in passing upon it, said that they must consider it -- must consider that the time of peace did not come until there was total peace and that the Armistice in 1900 -- in November 11, 1918 did not achieve total peace. And then we come to the -- to the cases which were cited by petitioner with respect to the Korean conflict and with respect to the Court of Military Justice. I think there's nothing inconsistent in those cases with the position that we take here. The -- the reasoning of those cases is precisely the kind of reasoning that we have in this case. The facts of -- are very different because you didn't have a declared war, you had a -- had a war which resulted as -- as from international action. And in that case like the -- in effect hold, that the war was terminated not when they stopped fighting and the Court will remember there was a period of uneasy truce while negotiations were going on. But that for the purposes of the Korean conflict it -- it ended at the time of the United Nations agreement which terminated those hostilities being no declaration of war there was no occasion for -- for a proclamation of peace. And I do not find in -- in those cases anything, although petitioner finds competent and I find nothing in those cases which in any way is inconsistent with the position which we take here. The Chief Justice asked whether there were decisions by the Court of Military Appeals which supported the position of the petitioner. I think it's unlikely we will find those because of the fact that the Court of Military -- that the 1950 uniform code, which sets up the Court of Military Appeals became effective on May 31, 1951, and the period when one could appeal to the Court of Military Appeals is 30 days from the final judgment and it's unlikely that it might come up collaterally. And I can't say that there are no cases which deal with the period that Your Honor suggested but it's unlikely, and I know of none that have come up in the Court of Military Appeals with respect to that issue.
Speaker: Do you know of any (Inaudible)
John F . Davis: During that period? In my mind I tried to think from the Court was asking I don't -- my mind doesn't advert to any. I will -- during the recess, I'll see if -- I'll search my memory and see if there's anything more than I could find on that. But I -- I don't think of any at the moment.
Earl Warren: We'll recess now Mr. Davis.