Victor Rabinowitz: We have here -- briefly at this point, a situation in which a young man is inducted into the Army, not at his request, serves under fire for a year for which he receives service medals and an honorable separation, returns to civilian life and two years later is inflicted with a very grievous injury because he has alleged to have engaged in lawful political activity before his induction into the Army, before the regulation, which is applicable to him was passed on the basis of a regulation which, I submit, is unconstitutionally vague and all of this in an area involving very fundamental First Amendment freedom. The implications of this are extremely broad, it is in this record, but the fact is, that the Army claims the right, also, to give an undesirable discharge because of political activities engaged in by a man after his separation from the service during the six years of his service in the inactive reserves and there are such cases that are now administratively pending. This means that the United States Army, if this be a valid procedure, is given the right to censor the activities of substantially every young man in the United States up to about the age of 30. They have the right to investigate, look at those activities and if they are contrary to this regulation or any successive regulation, to punish him, to give him an undesirable discharge because those activities are activities of which the Army does not approve. And this is a most stringent form of censorship. I can't think of no agency of the United States government that is less qualified to carry on this function than the United States Army because, certainly, there is nothing in the training of the Army, nothing in the tradition of the Army, that gives it the right to determine whether certain political activities are to be approved or disapproved. To say that this raises serious constitutional questions is, I think, an understatement. Before we get to the constitutional issues involved, however, because I know that this Court would, as always, prefer not to have to pass on them, let us see what is the statutory authority for this extremely broad assertion of authority. Let me say preliminarily that although we have had an Army in this country since, I suppose, 1775 and the Articles of War, as Mr. MacGuineas has said, have been in existence since the Continental Congress passed them and although our Army has operated for almost two centuries now, all during this period of time, it has generally been regarded that a discharge is to be determined, it is a reflection, it is a judgment in the words of this court, a judgment on a man's military service, not on what he did before he got in to the Army or what he did after he was in the Army, but a judgment on his military service. It is a final statement. This man has served honorably. This man has not served honorably. Now we had a sharp break with that history. We have an assertion by the Army of the broadest kind of power, of power to determine and to visit, as I said, extreme penalty on persons who do not live up to its standard of what is proper political conduct. Now if, as I say, the Army had statutory power to do this, we would have to face the constitutional question. But what is statutory power to do it? All that we have in this case is two statutes phrased in the most general language and which appear at page two of petitioner's brief. One is the Act of May 5th, 1950 which says that any enlisted -- all enlisted persons who are discharged from the United States service -- military service of the United States shall get a discharge and that the Secretary of the Army shall prescribe the manner for such discharge. I'm sorry. There are, perhaps, three sections. The second one, Section 248 of the Armed Forces Reserve Act of 1952 which says that the discharge of members of the reserve shall be in accordance with regulations. And finally, the last section set forth at the bottom page 2 which says that if a man gets less than an honorable discharge and undesirable discharge, as in this case, it shall be pursuant to the approved finding of a board of officers. Nothing in here that suggests that Congress intended to give to the Army a general political censorship that the Congress intended by these statutes to make that break with history and to give to the Army the power to exert this vast censorship over 30 years of a young man's life. This is an extreme power indeed. Personally, I doubt whether Congress would have the constitutional power to give the United States Army that right, I don't believe Congress has the power to give anybody that right, but certainly in our system of government, not the United States Army. But if Congress did intend to give Congress that right, it seems to me the -- that the least that could be required under these circumstances is for Congress to say so. And for Congress to give to the Army the right to make political tests, to impose those political tests on a man's preinduction activity and not nearly repeat, which in substance, it has done here the language of statutes which in one form or another had been in effect in the United States since 1775 and in England, before that time. This is a great and important power which the Army is here contending for. If it has that right as a matter of statute, somewhere, there should be statute that says so.
Speaker: Does your argument come down to this of the statute that you say we should construe it as not relating to preinduction or pre-enlistment activity?
Victor Rabinowitz: Yes, sir.
Speaker: Whatever of their nature.
Victor Rabinowitz: Yes, sir.
Speaker: That's in substance.
Victor Rabinowitz: Yes, sir. I should think it should not be related to First Amendment activity at all. But, certainly, for the sake of my case, let us say, preinduction activity.
Speaker: So that if the Army had information to the man who's engaging espionage activities, for example, before his induction, they'd still have to give him an honorable discharge.
Victor Rabinowitz: If they don't want to take him, they don't have to.
Speaker: No, no. I'm not talking about that.
Felix Frankfurter: Having taken it.
Speaker: Having taken it.
Victor Rabinowitz: Certainty. If a man engage -- if a man is guilty of --
Speaker: -- give him an honorable discharge.
Victor Rabinowitz: Yes, sir. If a man is guilty of robbery, or rape, or murder, or anything else before he gets in to the Army and the Army takes him, he gets -- he gets an honorable discharge, if his service has been honorable. If he's guilty of espionage, obviously, he should be indicted. He should be convicted and punished accordingly. If, merely, some officer of the Army suspects that he maybe engaged in espionage and if the United States Attorney does not have sufficient evidence to proceed on that, the man is entitled to an honorable discharge if his service is honorable. What -- how he has to answer to the civilian authorities is a matter for the civilian authorities to determine and not for the United States Army.
Felix Frankfurter: What is the reason -- what is the basis for a statement you just made that no matter what offenses, or what misconduct, or what dishonorable habits, if you please, that as to which no information was had until prior to induction but as to which information came later that in such instance, you must get an honorable discharge.
Victor Rabinowitz: Well, it is my understanding that that is the practice of the Army. I don't know of any cases on it but I do know the case -- I do know of this case.
Felix Frankfurter: Now with the case, what is the basis?
Victor Rabinowitz: Well, merely that -- in discussing this with members of -- of -- with representatives of the Army, and I come to many of them in the course of this litigation, they have so advised me. There are cases --
Felix Frankfurter: The reason I asked is if you take this into account (Inaudible). From the cases that have come here, I infer that in a -- in a good many instances, I don't know quantitatively what extent, but in the good -- in good many instances, people are discharged and then later, reenlist. And that's, I take it the function of this -- what is it? DD214.
Victor Rabinowitz: Yes, sir.
Felix Frankfurter: So that when they reenlist, knowledge maybe in existence, if it was not in existence, time of the original enlistment, as I understand your remark, or what you said is, that with such knowledge, take the extreme case of -- suppose by my brother Harlan, that that can't be recorded on a piece of paper so that on reenlistment, it will be brought to the attention of the authorities so that they wouldn't take him in, if they have a right not to take him in. Is that right?
Victor Rabinowitz: I'm not sure what you mean about something -- oh, I suppose it could be recorded on a piece of paper that we have since discovered that this man was guilty of crimes in private life and therefore, we don't think he ought to --
Felix Frankfurter: We will take Justice Harlan's case.
Victor Rabinowitz: Well, I thought that was just -- oh, espionage?
Felix Frankfurter: Yes.
Victor Rabinowitz: That he was guilty or may -- may have been -- of course if he was guilty of espionage.
Felix Frankfurter: You and I are taking, I suppose it's true of everybody, there are a lot of things which we couldn't prove beyond the reasonable doubt that we act on --
Victor Rabinowitz: I should say -- I should say that one branch of the Army would have the right to advise another branch of the Army that, "We don't think this fellow ought to be taken into the Army again because we think he has proclivities in this direction. In any event we don't want -- we don't want to take the chance."
Felix Frankfurter: They couldn't put on in the DD214?
Victor Rabinowitz: I don't think it ought to be on DD -- there must be other means of communication within the Army. DD214 is a semipublic document. I don't believe that these things should be made public if they're intended for inner Army consumption.
Felix Frankfurter: I don't think (Voice Overlap) constitutional distinction between putting it on one piece of paper and not on another paper.
Victor Rabinowitz: There is a -- there is a constitutional distinction between proclaiming something to the public and having something in their -- in their governmental file, just as there is a distinction between the so-called unscreened or unevaluated files of the FBI and what the Government finds as a matter of -- of fact.
Felix Frankfurter: You're often asked with a good deal of sympathy on my part to not to lend a sympathetic ear. You're allowing things on file that can't be made public.
Victor Rabinowitz: Well, I know this problem arises and I don't think it can all be solved in a sentence. Let me just say this, sir. I do know that there are cases in which a man has enlisted in the Army, received an undesirable discharge then accepted for reenlistment, because the Army waived the undesirable discharge, and at the close of his second enlistment, if his service was honorable, the courts had held the -- or the adjutant general has held that he is entitled to an honorable discharge regardless of what may have happened in the course of his first enlistment. I believe there are such cases cited in my brief.
Earl Warren: Mr. MacGuineas.
Donald B. MacGuineas: May it please the Court. In connection with my argument in the prior course -- case, as to what Congress intended by way of review of the character of discharge given a particular soldier. I should like to spend a few minutes directing attention to the Legislative Reorganization Act of 1946 which seems to us most significant in that respect.
Earl Warren: Mr. MacGuineas, before you get into that, may I ask this question? Do you agree that -- that there is nothing in the service conduct or character for this man at that time which bears upon this dishonorable discharge, in other words, that it is all preinduction?
Donald B. MacGuineas: The record discloses only charges relating to overt acts or association in a preinduction period.
Earl Warren: Well, by -- and by that you mean that that's all you and the Army rely on in this case?
Donald B. MacGuineas: It's certainly all that the Government -- the department --
Earl Warren: Yes.
Donald B. MacGuineas: -- relied on.
Earl Warren: Yes.
Donald B. MacGuineas: And I have no reason to think --
Earl Warren: Yes.
Donald B. MacGuineas: -- that there's any other consideration --
Earl Warren: Yes.
Donald B. MacGuineas: --involved.
Earl Warren: I just -- just wanted to be sure of that situation.
Donald B. MacGuineas: Yes. Now, I was -- I was calling your attention to the le -- Legislative Reorganization Act of 1946. And the purpose of that Act was to improve the efficiency of Congress. And to that end, it prohibited the introduction of private bills on three subjects (1) Court claims, (2) Applications to build bridges over navigable streams, and (3) For the correction of military records. Now significantly, with respect to tort claims, at the same Act, Congress established first, with respect the claims up to $1000, a system of administrative authority to settle claims but those claims as well as all claims over $1000 were given an explicit judicial remedy by a suit de novo in the district courts by contrast with respect to the other two types of subject matters to which private bills were prohibited. The only remedy granted with respect to applications to build bridges is, that you must obtain the approval of the Secretary of War, in other words, Congress turned the whole subject matter of building bridges over to the Secretary of War. And with respect to the correction of military records, Congress then established the boards for the correction of the military records and turned over to those boards the claims for the correction of military records. Now, in -- in one instance, Congress creates a judicial remedy explicitly and in the other two instances, creates explicit administrative remedies with no provision for judicial review. That seems to us, highly significant of the intention of Congress. And furthermore, we think that our position is buttressed by the fact that prior to 1944, when the Army Discharge Review Boards, Service Discharge Review Boards were established. The only remedy by which a soldier's discharge certificate could be changed, assuming that the Secretary himself was unwilling to do so, was by Private Act of Congress for generations. Congress had been passing private acts on application of this order to do so. So that also seems to us, to indicate, that Congress felt that the tribunal, the place to go for that was not to the courts but -- after exhaustion of your remedy before the department, to go to Congress itself, certainly, if it had been felt that the courts had jurisdiction to entertain such applications, Congress would not have troubled itself to pass these private bills granting that relief on a piecemeal basis.
Hugo L. Black: Were those passed on account of any other discharge except one in use due to court-martial.
Donald B. MacGuineas: Well, my -- I cannot cite you a specific statute. My understanding is that they were.
Speaker: Can I ask you a question that you haven't addressed yourself to? From the point of view of the -- making rules of the governance of the Armed Forces, what oration is a man's preinduction activities got to the character of the discharge that he is given on leaving the Army?
Donald B. MacGuineas: You mean?
Speaker: From the point of view of making rules with the government of the Armed Forces, what is the relationship of a man's preinduction activities that is before he got into the Army, what relation does that got to the governance of the Armed Forces as regard to character of the certificate of discharge that he's been (Inaudible).
Donald B. MacGuineas: Let us assume a case of a man who is inducted --
Speaker: What has been suggested here, that maybe he wants to reenlist and therefore, he ought to -- the Army ought to know and have a ready piece of paper --
Donald B. MacGuineas: Yes.
Speaker: -- that shows what kind of a fellow he is when he applies for reenlistment, that's what -- what are some of the considerations, what about that?
Donald B. MacGuineas: Well, it seems to me that from the Army's standpoint, the -- the one in important consideration is that the honorable discharge is always been treated as a kind of a -- a badge of merit, a certificate that you've done of finding job.
Speaker: No. But isn't the purpose of the discharge, not to give a fellow a five-day to (Inaudible) or something else just to show that he's out of the Army.
Donald B. MacGuineas: Well, I think, it's the purpose of both.
Speaker: You mean, to give him a --
Donald B. MacGuineas: Give him a -- give him an accolade, as I said before.
Earl Warren: What he did before --
Donald B. MacGuineas: A letter --
Earl Warren: -- he was in the Army?
Donald B. MacGuineas: -- a letter -- no. No. But when the Army says, we think that for one reason or another, it's unsuitable to have this man in the service. It considers that it may draw a distinction between that man and the other man that serves full term and has rendered valuable service to the Army.
Speaker: Or maybe the fellow who has a bad preinduction record, from that point of view, did a splendid job in the Army.
Donald B. MacGuineas: Well, he might get -- he might get an honorable discharge.
Earl Warren: Well, could you arbitrarily give him one -- give him less than an honorable discharge if his conduct was excellent while in -- in the service or something he had done before he went into the service?
Donald B. MacGuineas: Well, if -- if Your Honor's question is, “Is there authority in the Army to judge a man solely on a preinduction act which has no relation to anything to his being in the Army?” I would say, no.
Speaker: Well, that's the question I was asking.
Donald B. MacGuineas: If that's the question --
Speaker: That's the question I was asking you.
Donald B. MacGuineas: -- that's my answer. But --
Speaker: What relationship has the -- has his preinduction activity got to his -- to his service in the Army?
Donald B. MacGuineas: Well, let's assume your -- your own example. A man, after he gets in, has been found or concluded by the Army to have committed actual acts of espionage or treason and the Army says, “Well, we don't want this man in the Army.” Does it -- is it precluded from making any distinction between that man and the man who goes through a full term service and does a fine job?
Felix Frankfurter: Under your view with the existing statutes -- could the Commander-in-Chief issue an order today that hereafter, there would be not issue these pieces of paper just during discharge but that each servicemen would get an individual document setting forth the estimate by the Army of the quality of his services and his desirability as a continuing person or future person in the Army?
Donald B. MacGuineas: Well, I should think so. The statute requires that -- that a man shall be discharged but I don't think that needed to be construed, to mean, that he has to be given the particular piece of paper which is he is now given in the present form. And indeed in connection with petitioner in this case, when he was separated from active service, he completed his term of active service, he was not given the regular discharge certificate. He was given this form, DD214, a report of separation which indicated that he was separated honorably and I do -- I think that that's certainly authorized by the statute.
Felix Frankfurter: I have the slightest idea what the answers to these questions are. Could the Commander-in-Chief, tomorrow, provide that every person should get only a DD214?
Donald B. MacGuineas: Well --
Felix Frankfurter: And what other information is contained there on?
Donald B. MacGuineas: Could the -- could the Secretary of the Army promulgate a regulation to that effect, I would think --
Felix Frankfurter: Well, I prefer to say the Commander-in-Chief.
Donald B. MacGuineas: Oh, the President.
Felix Frankfurter: Yes. Well, I said Commander-in-Chief.
Donald B. MacGuineas: I'm sorry. Yes.
Felix Frankfurter: Could he?
Donald B. MacGuineas: I would think he could unless you are to construe the statute which talks about discharge as meaning --
Felix Frankfurter: That's what -- that's the point of my question.
Donald B. MacGuineas: But I would not so construe the statute. Now, may I also --
Earl Warren: I happen to remember that during World War II, the Armed Forces cooperated with prison officials in the -- the various states of the union in such a manner as to get prisoners for very serious crimes paroled on condition that they go into the armed services. I happen to know of a good many prisoners who were accorded that treatment. I happen also to know of a good many of them who came back with honorable discharges but I want to ask you is, could the Army, if it chose to do so, could grant less than an honorable discharge to one of those men whom it took into the service and those -- under those conditions granted that he had served excellently while in the Army and that his character while in the Army was excellent?
Donald B. MacGuineas: I would think not.
Earl Warren: All right. How do you distinguish that from this case?
Donald B. MacGuineas: Well, the distinction that the Army makes with respect to this -- this security case, as I understand it, is that they do not want a man whom they considered to be a security risk in the Armed Forces. And therefore, they want to get rid of it. And therefore, the question -- and Petitioner concedes -- and that, I should like to reiterate. Petitioner concedes that the Army may do that on that ground. And the only --
Earl Warren: May discharge them. Yes.
Donald B. MacGuineas: And the only question is, may they issue to him a piece of paper which accurately reflects the ground on which they did it. Now, may I -- since my time is rather short --
Earl Warren: Well, isn't it a little broader question than that that it isn't a question whether they can -- can give him a discharge which records other than the -- his actual conduct and character as a member of the Armed Forces?
Donald B. MacGuineas: Well, putting those terms, I would not think that the Army could do that.
Earl Warren: Well, how do -- how do you attach that to this young man? Here, you have a young man, 21 years of age, he -- he served honorably in the war, served in combat and was discharged and given -- given the accolade, as you --
Donald B. MacGuineas: Right.
Earl Warren: -- as you said. And then the Army comes back and says when he was 17 years of age and not later than that, he was in some communist or -- or so-called, communist organizations and that from that reason, and that reason alone, he must be given an undesirable discharge. How do you distinguish that when you don't carry this conduct into or through his Army service?
Donald B. MacGuineas: Our petition is this. The Army may dismiss any man whom it deems to be a security risk.
Earl Warren: I don't believe the counsel contest that.
Donald B. MacGuineas: They can concede that.
Earl Warren: I think --
Donald B. MacGuineas: They do.
Earl Warren: -- they agree that you can --
Donald B. MacGuineas: Right.
Earl Warren: -- discharge him --
Donald B. MacGuineas: Now --
Earl Warren: -- any time he wants?
Donald B. MacGuineas: But if the Army is to formulate a conclusion that John Jones is a security risk wholly on the basis of what he did before he went into the service, we do not support the Army's authority to do that.
Earl Warren: Is that (Voice Overlap). Now, wait a minute.
Felix Frankfurter: I beg your pardon.
Earl Warren: I wish you will restate that please --
Donald B. MacGuineas: Yes. I said the Army is entitled to dismiss any man as a security risk.
Earl Warren: Yes.
Donald B. MacGuineas: But if the Army forms that conclusion solely on the basis of preinduction activities that has nothing -- nothing to do with what he did when he was in the service --
Earl Warren: Yes.
Donald B. MacGuineas: -- that we do not support the authority of the Army to do that.
William J. Brennan, Jr.: You're suggesting error in this case then?
Earl Warren: That's -- that's a confession there as I see it.
Donald B. MacGuineas: No, Your Honor, by no means.
Earl Warren: Well you just said -- you just said --
Donald B. MacGuineas: What -- what I'm saying is that is not at all the question as to whether that is an issue properly before the District Court which is of course our basic position in this case.
William J. Brennan, Jr.: You mean, you're wrong but the courts can't do anything about it.
Donald B. MacGuineas: That's right.
Earl Warren: You mean you go back to the -- you -- you admit that and then go back to the question of jurisdiction.
Donald B. MacGuineas: That's right.
Earl Warren: All right. Then that's the only issue you have in the case of -- if you lose on jurisdiction then you concede that -- you concede that the petitioner wins?
Donald B. MacGuineas: Well, if -- if I -- if the Court -- let me put it in this way if I may. I don't want not to be answering Your Honor directly. Our position is first that Congress has not invested the District Courts with the function of reviewing the basis for a military discharge or the character of the discharge.
William J. Brennan, Jr.: Well, Mr. MacGuineas, suppose we don't agree with you.
Donald B. MacGuineas: Yes.
William J. Brennan, Jr.: Suppose we think that there is jurisdiction. As I get it on the merits, you're confessing for the Government that the petitioner in this case, at least, should win.
Donald B. MacGuineas: No. Our second position is that under the circumstances of this particular petitioner, there is not a legal injury. There is no justiciable controversy which would enable him to -- properly to maintain an action in the courts.
Speaker: Suppose that we disagree with you on that.
Donald B. MacGuineas: Well, then we would say, certainly, that the Courts even there -- it's assuming some degree of reviewability will not go beyond determining whether the Army acted within its jurisdiction in the sense that it -- the man was in the service and was subject to dismissal and secondly, that he was dismissed by a board which was authorized --
William J. Brennan, Jr.: Suppose we don't agree with that.
Donald B. MacGuineas: Well, if the Court is going to say that it can't review any discharge ever given to a soldier --
William J. Brennan, Jr.: Now we're talking about this one (Voice Overlap) --
Donald B. MacGuineas: Yes. What -- it seems to me that, really, that's what the position the Court has to come to if it disagrees with all of our other legal positions, that the Court, the District Court is free to review any discharge given to any soldier which is not an honorable discharge.
Felix Frankfurter: Let me ask you a question if I --
William J. Brennan, Jr.: Well, may I get the answer for that, Mr. Justice Frankfurter. I want to find out -- now if we disagree with all three of those positions, on the merits of this case, where do you end up?
Donald B. MacGuineas: Well, if -- if that is so, then, as I say, we would not support the specific action of the Secretary in this particular case on this set of facts.
Felix Frankfurter: Let me ask you a question. Do I understand you to say that the Secretary of the Army or Defense --
Speaker: Army.
Felix Frankfurter: Army.
Donald B. MacGuineas: Army.
Felix Frankfurter: -- Secretary for the Army, if he acted confidently or would you regard to what the law allows him to do -- never mind for a minute what seems to me a whole different question where the courts can do something about what wrong some officials may do, that's a very different question. Do I understand you to say that a duly advised, legally advised Secretary for the Army is not within his power to grant -- not to give an honorable discharge for a man whose service, who saw during the record is unexceptionably, if you please, heroic for preinduction activity of the kind now before this Court? Do I understand you to say that he could not if he -- if he were a fair or an informed judge of his powers grant such a -- failed to grant honorable discharge. Is that what you've said in your --?
Donald B. MacGuineas: Yes. I -- I think that --
Felix Frankfurter: Well, then I ask this question. If you said that -- if you say, fully apart from the question of judicial reviewability that this is beyond the legal authority of the Secretary for the Army, why hasn't the Department of Justice so advised the Secretary of Army in this very case?
Donald B. MacGuineas: It has.
Felix Frankfurter: And now you avoid any of the Department of Justice here.
Donald B. MacGuineas: Because this case presents most important questions as to reviewability by the civil courts of military discharges, very important questions. And may I --
Hugo L. Black: Is that the reason why you didn't put these regulations in because you consider them --
Donald B. MacGuineas: Well --
Hugo L. Black: -- irrelevant?
Donald B. MacGuineas: The reason -- primarily, the reason that the regulations were not set forth more extensively in our brief was that the petitioners, both petitioners, concede that there was a compliance with regulations. So, there was no issue before the Court as to whether or not regulations were complied with.
Felix Frankfurter: I -- I (Voice Overlap) I haven't -- I just look up to see whether there are certain cases cited in your brief. So, I don't know what your -- what's in your brief. I can well understand. I can thoroughly understand that the Department of Justice may deem it -- its duty to come before this court and to say, “We are not going to consider any of the merit. We're not going to say a thing about the substantive matters. We are simply going to say that this court, like the lower court, has no jurisdiction period.” I can well understand it and I think there are territories when the department would be dearly in not taking such a position. Now is all -- is that the only position the department is taking here?
Donald B. MacGuineas: I think that's a fair statement to this issue.
Felix Frankfurter: All right then I (Voice Overlap) --
Earl Warren: It's taken an hour and a half almost, to the argument in the great deal of cause (Inaudible) to -- to -- for us to ascertain that.
Donald B. MacGuineas: Well, I hope Your Honor is not suggesting that I have evaded any questions along that line. I've been trying to spend as much time as I can to argue the positions which we do assert.
Felix Frankfurter: Is that also true on the first case, that it's merely a denial of the jurisdiction period?
Donald B. MacGuineas: Yes. We make no distinction in that respect between --
Felix Frankfurter: Well, I understand -- that isn't my question. I haven't put it clearly. I understand that you make -- that you take a flat precision that the action by the military authority in granting or denying discharges or in defining the character of the piece of paper which a discharge he gets is not subject to judicial review. I understand that. I understand the -- I think. I understand the reasons behind that contention. But I want to know, is that the only position -- the only question you put in both cases?
Donald B. MacGuineas: No. There is the secondary question in both cases that on the facts of these cases, have these petitioners demonstrated a type of legal injury --
Felix Frankfurter: All right. I --
Donald B. MacGuineas: -- which is --
Felix Frankfurter: -- put that aside.
Donald B. MacGuineas: justiciable --
Felix Frankfurter: There's no standing here. But you do not go beyond those two questions.
Donald B. MacGuineas: Well, we do --
Felix Frankfurter: Is that right?
Donald B. MacGuineas: We do show --
Felix Frankfurter: Meaning there is no legal right enforceable and be at any event, the judiciary can't intrude into this territory.
Donald B. MacGuineas: In connection with the discussion of those issues, we show in our brief, and I regret my time for argument will not permit me to show, that what in the first place, that there is not here any basis for saying that the statute does not confer untrammeled discretion on the Secretary of the Army to decide the type of discharge as a matter of statutory interpretation. We think plainly a statute which says that a man shall only be discharged in accordance with regulations prescribed by the Secretary (Voice Overlap) --
Felix Frankfurter: But you answered this morning, you are quite unequivocal --
William O. Douglas: I didn't hear the answer to that question.
Donald B. MacGuineas: We think that the statute does confer on the Secretary of the Army the untrammeled discretion to decide the type of discharge to be given to a particular man as a matter of statutory (Voice Overlap) --
Felix Frankfurter: But you said this morning that that makes no difference, that the action --
Donald B. MacGuineas: Yes.
Felix Frankfurter: -- of the Secretary of the Army is unreviewable --
Donald B. MacGuineas: Yes.
Felix Frankfurter: -- even though it explicitly departs from the statute.
Donald B. MacGuineas: Oh, I did say that.
Felix Frankfurter: All right.
Donald B. MacGuineas: Now, may I -- at a few moments of my -- remaining to me, call to the Courts attention in connection with the counsel's argument that he thinks that the applicable statute here which is the Armed Forces Reserve Act of 1952 did not contemplate a discharge for security considerations. And we set forth on our brief, at the beginning of page 28, statements from the legislative history which shows explicitly that the bill originally contained a provision that a discharge, less than an honorable discharge could be given for security reasons without a hearing, if the interest of the government require. And that furthermore, there was at one stage a provision in the bill to the effect that a discharge specifically could be discharged for security reasons. That specific statement was in the bill. So, there's no question that Congress was aware that this statute, the applicable one to petitioner in this case, would be used or might be used by the Secretary of the Army to discharge a man because he deemed him a security risk.
Felix Frankfurter: Mr. MacGuineas, this Court has held in an opinion with which I do not happen to agree that the -- that the -- even the explicit confession of error by Solicitor General cannot be taken, that this Court must decide questions of law but what you've said is so important, in my view, that I for one with the Chief Justice's permission, would very much like without questioning what you've said to have the Solicitor General over his own signature state explicitly the scope of the confession you've made.
Donald B. MacGuineas: Well, we will do that in the supplemental memorandum which we have indicated that we will submit. Now, if I may turn a moment to our other question of justiciability. What I say will specifically deal with Abramowitz but it applies a fortiori to Harmon. Abramowitz has the honorable separation from active service. That gives him all federal benefits. He is not deprived of any right to veteran's pensions or hospitalization or anything else that a veteran gets and of course, it's also true beyond question that Harmon gets all federal benefits by virtue of his general discharge. So, petitioners are driven back to resort to a denial, alleged denial of benefits under the New York statutes where they reside. In the first place, they do not correctly cite the statutes. No New York statute uses the words “honorable discharge.” It speaks of honorably discharge soldiers and I have and we're allowed with the Court, verbatim copies of an opinion of the Attorney General of New York, explicitly construing one of those statutes and saying that as long as the soldier does have a dishonorable discharge, he is entitled to the benefits of the New York veteran statute. In other words, the opinion recognizes the distinction in terms between an honorable discharge and a general discharge. And the Attorney General of New York says, “It doesn't make any difference. Whichever one he has is sufficient for purposes of New York benefits.” And -- so that even quite apart from the question as to whether there's any likelihood that these Petitioners would ever apply for those benefits or if so, that they would be denied. And the fact is, we have an authoritative ruling by the New York authorities that they are eligible. The only other question on which petitions rely for justiciability is the so-called question of stigma. They equate a decision by determination that a soldier is a security risk with the comments made by this Court in Joint Anti-Fascist and Peters v.Hobby that a stigma attaches to a characterization of disloyalty. We think that is stretching those cases beyond reason and all of those cases significantly, with one exception, that's Joint Anti-Fascist, every one of those cases depended for its justiciability not upon any question of stigma. They were questions of employees who had actually been discharged, allegedly contrary to the law or statute and, of course, this Court has always said, there is District Court justiciability of that kind of case or some of them are even criminal content convictions like the Watkins case. Of course, there's no question of justiciablity. Now, the one case which is not fit in that mode is Joint Anti-Fascist. And there, justiciability was rested on the fact that what was on the pleadings necessarily construed by this court as an unauthorized and an arbitrary public designation by the Attorney General of an organization, as a communist organization, was defamatory and that that kind of defamation gave justiciablity. Now, in the first place, that counsel made some comments about this being -- this certificates being a public document. They are not a public document. The fact is, that under Army regulations, if a man writes to the Army and says, ”I want to hire John Jones,” what kind of a discharge certificate did he get or what kind of a report of separation? The Army will not give that information. That information is given only to the soldier himself so that it's --
Charles E. Whittaker: (Inaudible)
Donald B. MacGuineas: Well, that maybe but the point is the publication, if there be any, is by the soldier and not by the Government. So that scarcely can be defamation when the publication is not by the alleged defamer.
Felix Frankfurter: Will you give it to him for his secret archive?
Donald B. MacGuineas: We give it to him for whatever purpose he wishes.
Felix Frankfurter: Well (Voice Overlap) in a real world. You give it to him because it has importance in the commerce of the world does -- don't you?
Donald B. MacGuineas: But I think that's a very vital distinction even in an ordinary slanderous case -- case. Suppose I write a slanderous letter to X but I just show it to X and nobody else and X chooses to publish it to the world or to show it to his employer. He doesn't have a claim of defamation against me because I made no publication.
Felix Frankfurter: But if you send such a -- what you call private letter to a channel which you know it has to go through six people before it gets the recipient, you're charged with notice of the fact.
Donald B. MacGuineas: Well --
Felix Frankfurter: And the discharge isn't quite a private document, is it?
Donald B. MacGuineas: Well, I think, it is a private document in the sense that it isn't -- it's certainly not a public document. The public is not entitled to know it and will not be given it.
Charles E. Whittaker: Mr. MacGuineas, on that score, let's just compare was the calling of everyday garden variety of state statutes referring the giving of service letters. Now, there's no publication in the sense of the livelihood law when the employer writes the letter and hands it to the employees, as the statute requires, but this letter must to restate the reason for the separation and when the employee goes to get another job, he asked -- he's asked to see and must produce slightly or he won't be employed to the service letter. Did not -- did not in the -- it comes to a matter on the service letter injure him and give him standing to sue damages result?
Donald B. MacGuineas: I think not within the scope of any decision that this Court has rendered even in this field. And I don't -- and I shouldn't say this field, but even in the loyalty field which is certainly much more stigmatic than what we have here because after all, security risk doesn't mean that a man is disloyal, it means that the Army does not choose to rely upon him, to keep his mouth shut or whatever. So we think that there is here a very substantial question of common law justiciability which, to us, should prevent the Court from reaching any of the contentions advanced by the petitioners.
Hugo L. Black: May I ask you one question on that -- on that particular point? I have before me the Act which authorizes the creation of the Army. It provides that one who satisfactorily performed his service, satisfactorily to the Army, must get his job back when he gets back from the Army --
Donald B. MacGuineas: Oh, yes I -- I'm generally familiar with that statute.
Hugo L. Black: Even with the government or with private employees, they can do that. The machinery set up per block should be given. What about a man who gets an undesirable discharge? Could that be considered as satisfactory to the -- its services is satisfactory to the Army?
Donald B. MacGuineas: Well, I would assume not but that didn't -- doesn't seem to me to go to my point of justiciability.
Hugo L. Black: I understood you to say, you're trying to show that the New York -- he would not suffer?
Donald B. MacGuineas: Yes.
Hugo L. Black: Under the New York law but --
Donald B. MacGuineas: Well --
Hugo L. Black: -- does not in fact at itself show that he must perform his services of satisfactory to the Army --
Donald B. MacGuineas: Well --
Hugo L. Black: -- in order to get the benefits conferred by that act.
Donald B. MacGuineas: As far as the New York benefits are concerned --
Hugo L. Black: I'm -- I'm not talking about New York. I'm talking about federally.
Donald B. MacGuineas: No. It's -- it's clear that as to Abramowitz, he is entitled to federal benefits because he did perform his active service satisfactorily and that's what counts as far as federal benefits are concerned.
Hugo L. Black: The statute which -- the statute which we've had before in another case, previously, authorizes people who satisfactorily perform their services to the Army to give -- to get their job back.
Donald B. MacGuineas: In this petitioner, it is my belief, could get his job back because --
Hugo L. Black: Even though his -- discharge is undesirable?
Donald B. MacGuineas: -- because he can rely on his first discharge from active service which was honorable, and that is not their benefit if not taken away --
Hugo L. Black: Well, is it still in effect?
Donald B. MacGuineas: Certainly.
Hugo L. Black: You mean both on that effect?
Donald B. MacGuineas: Yes, surely. And it's the first one, the discharge (Voice Overlap) --
Hugo L. Black: One -- one of them is undesirable and then the other one is an honorable discharge.
Donald B. MacGuineas: From two different capacities. There's no inconsistency because they're discharges from two different capacities in the military establishment. I believe my time has expired.
Speaker: Could I ask you one -- one question? Do you consider this from a far reaching case from the Government's point of view?
Donald B. MacGuineas: Yes. We think most so because we are unable to read petitioner's contentions in any like other than saying that really, although he doesn't put it this baldly, that really the civil courts are entitled to pass.
Speaker: Well, forget about the civil courts (Voice Overlap) --
Donald B. MacGuineas: Well -- well, that's what's most important to the Government.
Speaker: The question I'm putting to you is this. I understood you to say that the Department of Justice by the Army that unless you could win this case, I'm putting it in substance, on the basis of your jurisdictional point, you had to advice the Army that they had no business to issue certificates other than certificates of honorable discharge, where the events on which they rely were totally -- totally before the man was inducted into the Army.
Donald B. MacGuineas: Well, the Solicitor General --
Speaker: Is that right?
Donald B. MacGuineas: -- took the position that he would not advance to this Court a contention that that was a proper and reasonable thing for the Solicitor General to do.
William J. Brennan, Jr.: And what's beyond that Mr. MacGuineas. You said that justice had so advised the Army.
Donald B. MacGuineas: That's right.
William J. Brennan, Jr.: That's as I understood you.
Donald B. MacGuineas: That's right.
William J. Brennan, Jr.: And is that the fact? And not withstanding that advice? Is the Army still following this practice?
Donald B. MacGuineas: I cannot say as to that question. I do not know.
Earl Warren: Mr. MacGuiness, I think it will not be necessary for you to get in writing avouchment from the Solicitor General for your position here you've stated, and I'm sure you've state it frankly and you may -- you may not --
Donald B. MacGuineas: But --
Earl Warren: -- be required to do that.
Donald B. MacGuineas: We may still submit the supplemental memorandum discussed in the prior case in which we will give the court copies of regulations which are not set forth --
Earl Warren: Yes.
Donald B. MacGuineas: -- with the record.
Earl Warren: Yes, if you will please.
Donald B. MacGuineas: Be glad to Your Honor.
Earl Warren: That calls for any response? Mr. Abramowitz, you may of course respond to that.
Felix Frankfurter: Mr. MacGuineas, will you be good enough to communicate the Solicitor General the colloquy that you and I had on the subject of your authority to make these confessions?
Donald B. MacGuineas: I'm sure that -- that communication will come into other channels but it would come to (Voice Overlap) --
Felix Frankfurter: I'm asking you to make it -- I'm asking you (Voice Overlap) --
Hugo L. Black: Mr. MacGuineas, what is your position in the Attorney General's Department?
Donald B. MacGuineas: I'm an attorney in the civil division which handles these cases in both the lower court.
Hugo L. Black: This type of cases?
Donald B. MacGuineas: This -- this type of cases generally and these particular cases and was assigned this case by the Solicitor General.
Felix Frankfurter: Were you instructed to make the confession that you -- to the extent that you've made them?
Donald B. MacGuineas: Well, yes. Certainly, Your Honor.
Felix Frankfurter: You say -- you say then that the Solicitor -- Solicitor General instructed you to make these confess -- confessions?
Donald B. MacGuineas: No.
Felix Frankfurter: Because if that's so then I don't see why the Chief Justice said, “We spent all this time.” Well you didn't say that in the --
Donald B. MacGuineas: No.
Felix Frankfurter: -- just before you got on your feet.
Donald B. MacGuineas: No. The Solicitor General said that if that question was raised by the Court, if the Court deemed that material, I was to state fairly and honestly the Solicitor General's position which I have done to the best of my ability.
Earl Warren: Yes. And -- as I said to you a moment ago the -- the Court does not call for a written avouchment for your position.
Donald B. MacGuineas: I appreciate your expression of confidence. You might understand --
Felix Frankfurter: But I -- I never had any doubt about that but you thought you said what was right but the department when it confesses error does so in writing.