Harmon v. Brucker – Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141)

Media for Harmon v. Brucker

Audio Transcription for Oral Argument, Part 1: Harmon v. Brucker – January 14, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

del

Earl Warren:

Number 141, Howard D. Abramowitz versus Wilber M. Brucker.

Mr. Rabinowitz.

Victor Rabinowitz:

May it please the Court.

The issues in this case are somewhat similar to those in Harmon, but the facts, I think are in some respects materially different and I believe the issues are posed somewhat more shortly.

In 1951, at the age of 21, the petitioner was drafted into the Army.

Earl Warren:

In what date did you say?

Victor Rabinowitz:

1951, when he was 21 years old.

From May 1952 to May 1953, he saw active service as an artilleryman on the Korean battlefront.

And as a result of his services, he was awarded the Korean Service Medal and the United Nations Service Medal.

On June 30, 1953, he received an honorable separation from the active service.

And pursuant to the statute, he was transferred to the enlisted reserves.

He returned to his civilian life and took up the education that had been interrupted by his induction.

Two years later, he received from the Army a letter of allegations charging that before his induction, he had engaged in political activity of the nature that the Court is well familiar with, specifically it was charged that he had been a member of the Communist Party when he was 18 or 19 years old, that he had been a member of Labor Youth League when he was 16 or 17 years old, and that he had subscribed to the work and he’s been a member of some other organization on the attorney general’s list.

He was given an opportunity to have a hearing before an Army Field Board.

He did not accept that opportunity.

In effect, he demurred, saying that as he understood his rights, the Army had no right, constitutional, statutory or in any other way to take action against him now on the basis of lawful pre-induction civilian activity.

Hugo L. Black:

When — when did you say the Army notified?

Victor Rabinowitz:

The Army notified him two year — in 1955, which was two years after he had received an honorable separation from the Armed Forces.

He was still in the reserves.

And on the 13th day of September, he received a certificate suitable in form but not in content of discharge, which says in large letters, undesirable discharge from the Armed Forces of the United States.

And in somewhat smaller letters AR 604-10, which is the security, loyalty regulation of the Army, AR 604-10 applies.

He brought an action in the District Court, lost.

The court below saying merely in a single sentence, it had no authority to review the action of the Army.

He then appealed and the case was argued in the Court of Appeals a few weeks after Harmon.

And the panel that heard the case said that it felt that it was bound by Harmon.

One of the judges, Judge Bazelon, who had dissented in Harmon said, that if you were free to consider the case again, he would dissent again.

And a second of the judges, Judge Fahy said that if he were free to consider the question anew, he would like to consider it anew.

William O. Douglas:

There was no opinion by the district judge?

Victor Rabinowitz:

There was no opinion by the district judge and no opinion by the Court of Appeals either except saying that it is deciding the case on the authority upon it.

The position taken by the Government here is much the same position as that taken below, and it is no accident that the appropriate regulations were not printed in the record or in the government’s brief in the Harmon case or in this case, because the Government’s theory is that it never reaches that question.

Audio Transcription for Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

del

Victor Rabinowitz:

It is not just a fortuitous matter involved with who wrote the brief that the Government took this extreme position with respect to jurisdiction.

The position that Judge Black and Justice Brennan mentioned, namely that no matter what the Army does with respect to a discharge, it cannot be reviewed.

That is not an accident because that is precisely the argument and exactly that same bold form that was made in the District Court that was made in the Court of Appeals and then having prevailed in those two courts.

It is made here in the boldest possible form namely that when the Army issues a discharge, be it in violation of statute, be it in violation of the Constitution, be it in violation of anything.

A civil court has no right to review.

Felix Frankfurter:

Well, don’t make the Government’s position more ridiculous or more extreme than it is.

Their position is not that they can violate the Constitution.

Their position is that under the distribution of powers within the Constitution, the matters are left to the military not subject to civil reviews —

Victor Rabinowitz:

Very well —

Felix Frankfurter:

— that’s a very different thing.

Victor Rabinowitz:

Very well, sir, I’ll accept that — that this Court —

Felix Frankfurter:

Don’t do me a favor, just be active.[Laughter]

Victor Rabinowitz:

This Court doesn’t determine whether the action of the Army is constitutional or not.

That determination is made by the Secretary of the Army.

That is the Government’s position.

The Secretary of the Army having made this determination, no civil court can review it.

Now, im not going to argue against that —

Felix Frankfurter:

There are things that are not reviewable in Court.

Of course, the United States can do a lot of things.

It can send the militia into a place and not be subject to review by the courts, 100 years ago or more than that.

Victor Rabinowitz:

I don’t know whether (Voice Overlap) —

Felix Frankfurter:

— all sorts of things.

Let’s not get into that.

Victor Rabinowitz:

But — very well, very well, sir.

I think that in this —

Felix Frankfurter:

— this case is not so bad that you have to be inaccurate.

Victor Rabinowitz:

I think — well, I don’t think I’m inaccurate, sir.

So far as —

Felix Frankfurter:

You are inaccurate if you say the Government contends that they can indulge in unconstitutional action.

Victor Rabinowitz:

Well, the Government contends that a court has no right to review.

Audio Transcription for Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

del

Felix Frankfurter:

That’s a very different case.

Victor Rabinowitz:

Yes, I accept it.

I’ve accepted that modification.

The Government contends that no court has the right to review its activities whether they be in violation of statute or not.

Now, I contend that there is no authority for that extreme position that this Court has, on frequent occasions, reviewed the action of the Army in habeas corpus cases for example and other cases that are cited in the brief that the Government has reviewed the action of all other arms of the Government including the President of the United States beyond (Inaudible) case, and that there is no justification in our constitutional scheme.

And no suggestion in the law that says that the Army is above review by the courts and that the Army, I believe, alone of all of the agencies of the Government is not subject to review on constitutional grounds by the District Courts and ultimately by this Court.

Charles E. Whittaker:

(Inaudible) the lack of right of a soldier to obey the order of his commanding officer, would you?

Victor Rabinowitz:

Oh, of course not.

And I think that Justice Frankfurter in the memorandum filed in the Burns against Wilson pointed out that due process in an Army is not anything like or may not, maybe quite different from due process in civilian life.

And that there are many rights that a soldier does not have that a civilian does have.

But there are standards in both the Army, there maybe different standards but there are standards in both which I submit a Court and this Court has ultimately a right to review.

Because the Government takes this position, as I say, it never reaches the question of whether the regulations are constitutional or unconstitutional.

And therefore, I found it unnecessary to refer to the regulations in any extent in its brief.

The second position taken by the Government is that there is no justiciable controversy here.

And there is no justiciable controversy because the petitioner has not been injured.

There is no significant injury here.

Well, I don’t believe that that argument had any place in Harmon but it certainly has no place in this case, because there is a vast difference in legal rights between an employ — between a soldier who has an honorable discharge and a soldier who has an undesirable discharge.

In my reply brief, I have set forth as an Appendix a chart.

This is a chart that was submitted to a congressional committee by Secretary of Defense Wilson.

And it sets forth all of the benefits to which shows soldiers are entitled depending on whether their discharge is honorable, general, undesirable, a bad conduct, dishonorable and so forth.

William O. Douglas:

Where’s that chart?

Victor Rabinowitz:

That chart is in Appendix 8 of the reply brief filed by the petitioner.

And Your Honors will know that there are a number of benefits listed to which a soldier with an honorable discharge is entitled, to which a soldier with an undesirable discharge is not eligible and there are many benefits.

In fact, all of the benefits that are administered by the Veterans Administration to which a soldier with an honorable discharge is eligible as a matter of rank, but a soldier with an undesirable discharge is entitled only after agency review of the facts, presumably as a matter of agency discretion.

Now, there is a great deal of difference between being entitled, for example, to hospitalization benefits or a veteran’s pension, or other veteran’s rights, as a matter of right and being entitled to them only after the exercise of agency discretion especially in a case such as this where extraordinarily sympathetic action by the agency is not likely to be unaccountable.

As a matter of fact, the Army in its regulation, the Navy in its regulations and the Air Force in its regulations, all point out that an undesirable discharge will result in very serious injury to the man who receives it.

And that a soldier who gets an undesirable discharge may expect to encounter very serious handicaps in his civilian life in any case in which the character of a discharge is important.

And if that is true of an undesirable discharge, generally, it is particularly true of an undesirable discharge which is not granted pursuant to the Army’s loyalty security regulations.

It means government employment is closed to him forever.

It means that most large employers or many large employers will not employ him.

Audio Transcription for Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

del

Victor Rabinowitz:

It means that in the case of a professional as of the case of the petitioner here, his opportunities for employment are very, very, sharply curtailed.

And defense department representatives have admitted this very thing in Government in congressional hearings.

Mr. Fenton appearing as a representative of the — of the Defense Department said that the consequences of an undesirable discharge are indeed deep.

It was the word that he used.

More than any of these or perhaps a part of all of this is what this Court has referred to as the Badge of Infamy that is placed on any person who in these days is ranked as being suspect for one reason or another with the possibility that he has at one time or another engaged in subversive activity and to say that this is so trivial.

This is so unimportant that it does not even give a man a right to come into court and seek judicial relief is I think contrary to bank, contrary to life and it’s contrary to what this Court has done.

And he —

William J. Brennan, Jr.:

You mean active or inactive reserve on the —

Victor Rabinowitz:

He was in the inactive reserve.

William J. Brennan, Jr.:

Well, in fact — actual fact, he is not doing any military chores at all?

Victor Rabinowitz:

In actual fact, his only obligation was to respond if the President should call him and the President has a right to call the inactive reserve in time of war or grave national emergency, that did not happen nor has it happened since the close of the war and he was for all intents and purposes a civilian.

He did not have to report.

He did not have to undergo any training.

He didn’t have to do anything.

William J. Brennan, Jr.:

And his party membership was admitted?

Victor Rabinowitz:

His party membership is not admitted, that was a demur in effect.

The membership was alleged to have been in 1948 and 1949 I think or 1949 and 1950 —

William J. Brennan, Jr.:

Did he ever have an opportunity to —

Victor Rabinowitz:

He had an opportunity to go to a hearing.

The Army offered him a hearing.

He declined the hearing saying that the charges would not — would not be sufficient, even if it’s true.

William J. Brennan, Jr.:

Well, what is the finding as to when the membership was?

You mentioned the year — when he was 18 or 19.

Victor Rabinowitz:

The charge — there is no finding.

The charge is that he was a member of the Communist Party in 1948 and 1949.

William J. Brennan, Jr.:

Of the in service men?

Victor Rabinowitz:

No.

All of this was pre-induction.

There is no charge at all of any activity after his induction into the Army.

William J. Brennan, Jr.:

Now, is that party membership and alleged party membership of 1948 or 1949 or other charges as well?

Audio Transcription for Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

del

Victor Rabinowitz:

Yes, there were other charges.

Party membership in 1948 and 1949, a member of the Labor Youth League which is identified as an organization cited by the Attorney General of the United States as a Communist front from 1949 —

William O. Douglas:

Where is this?

Where — where is this?

Victor Rabinowitz:

This appears at page 6 of the record.

Earl Warren:

How old would he have been in 1948?

Victor Rabinowitz:

In 1948, he was 17 years old.

Earl Warren:

That’s when he was alleged to have been a member of the party?

Victor Rabinowitz:

1948 and 1949, yes, sir.

Could I ask you a question?

First of all, when he was first visiting separately in the service, before he went into enlisted reserve, he got an honorable discharge.

Victor Rabinowitz:

He got an — well, it is called an honorable separation and it doesn’t result in a certificate like this that results in one of those forms DD-214 that was referred to before.

I see.

In others it was something more common in the due course —

Victor Rabinowitz:

That’s right.

Then, when he went in to the enlisted reserve and they serve him with this notice, he made an application — he got then a — he got then an undesirable discharge.

Victor Rabinowitz:

Yes, sir.

Now, did he have a hearing of any kind before that was issued?

Victor Rabinowitz:

He was offered a hearing.

He was given an alternative.

They said either you can have a hearing or you can respond in writing or you can retire.

You can resign.

You can give up your right place in the reserves except that if you give up your place in the reserves, you’re going to get an undesirable discharge.

So he was given three alternatives.

They — they are — they appear at pages 8 and 9 of the record.

What did he do?

Victor Rabinowitz:

He chose the second of the alternatives namely to respond in writing and his response in writing, that’s what appears at pages 8 and 9 of the record.

His response in writing says that the allegations since they were allegations of lawful political activity prior to discharge would not justify an undesirable — prior to induction.

I’m sorry.

It would not justify an action, any action on the part of the Army.

Audio Transcription for Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

del

Victor Rabinowitz:

And therefore, he chose not to respond in any way.

That’s what you call the demurrer.

Victor Rabinowitz:

That is what I call in effect a demurrer.

He said even if the charges were true, it would not justify the granting of any kind of an undesirable discharge by the Army because my military service was honorable.

I received an honorable separation from the Armed Forces and all of this is pre-induction.

So for the purposes of the case, he in effect admitted for the purpose.

Victor Rabinowitz:

Well purposes of the — well, the purpose (Voice Overlap) —

— thats is the charges.

Victor Rabinowitz:

Yes, sir.

For purposes of the case as any demurrer, I say this would be an admission.

Then he filed an application apparently for a correction of the —

Victor Rabinowitz:

Oh, yes.

He went through the administrative procedures in the Army which are prerequisites to the bringing of the lawsuit or at least for the Court.

He exhausted his administrative remedies to use the usual expression and having done that he —

William J. Brennan, Jr.:

Did I understand you to say there would have been a hiatus between the receipt of the honorable separation, is that what you call it?

Victor Rabinowitz:

Yes, sir.

William J. Brennan, Jr.:

And the discharge.

Is that —

Victor Rabinowitz:

Two years — between two years.

William J. Brennan, Jr.:

Is that the — is that the usual course why — why is that, if you know?

Victor Rabinowitz:

Well, I’m not sure if I understood the question.

William J. Brennan, Jr.:

Well, what I mean is —

Victor Rabinowitz:

Oh, normally there is —

William J. Brennan, Jr.:

I don’t understand this business of two separate documents, an honorable separation and later a discharge.

Victor Rabinowitz:

On the current practice, you don’t get a discharge until you have finished your service in the reserves.

William J. Brennan, Jr.:

I see.

Victor Rabinowitz:

Which is I think six years after your separation from active service.

William J. Brennan, Jr.:

That answers it.

Victor Rabinowitz:

So there is a six-year lapse normally.

Where is the piece of paper itself with the undesirable discharge, where do you find that?

Audio Transcription for Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

del

Victor Rabinowitz:

It appears at record, page 10.

Now, by referring to any of those hieroglyphics there, can you there refer the security — security discharge?

Victor Rabinowitz:

Well, I suggest that any personnel officer, any Civil Service Commission, any Veteran’s Administration representative, anybody who is knowledgeable in these things would recognize that as being the Army loyalty security regulation.

That’s AR 604-10?

Victor Rabinowitz:

Yes, sir.

And that is — that appears incidentally in the petitioner’s brief as an appendix beginning on page 37, at least development portions of it appears at page 37.

And that regulation as Your Honors will see is what may be characterized as a typical loyalty security regulation.

It sets forth a series of criteria and standard which begin at page 40 of the appendix.

Among the criteria that are listed are a number of standards beginning at page 41 which are contained language which is characteristic of all loyalty, security and regulations.

The word subversive appears in substantially every one of these criteria that becomes a sin or at least a criteria to establish or continue a sympathetic association with anybody who — any representative of foreign nation or whose interest maybe in amicable to the United States or any person who advocates the use of force or violence.

It refers to membership in or affiliation or sympathetic association with any subversive organization.

It refers to participation in the activities of an organization as a front for a subversive organization.

Generally speaking, it contains the usual kind of criteria which we find in a much more — much more extreme form than this Court for example discussed in the Watkins and Sweezy cases where there were some discussions of the use of the word like Un-American and subversive.

Clearly, this regulation is so vague that it could not possibly have given notice to anyone as to what activities he could have engaged in lawfully.

And as a matter of fact, may I just finish the sentence?

As a matter of fact, the notice wouldn’t have been any good even if it had been cleared because this regulation wasn’t passed until long after this man was inducted into the Army.

Earl Warren:

We’ll recess now.