McElroy v. United States ex rel. Guagliardo – Oral Argument, Part 1: Wilson v. Bohlender – October 22, 1959 (37)

Media for McElroy v. United States ex rel. Guagliardo

Audio Transcription for Oral Argument, Part 1: McElroy v. United States ex rel. Guagliardo – October 21, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Earl Warren:

Number 37, Bruce Wilson, versus Major General John F. Bohlender, Commander, Fitzsimons Army Hospital.

Mr. Greene.

Harold H. Greene:

May it please the Court.

Although the government is respondent in this case, under stipulation that was approved by the Court, we will argue first.

This case arises out of denial by the District Court for the District of Colorado of a habeas corpus petition filed by this petitioner.

This Court granted certiorari prior to the judgment of the Court of Appeals for the Tenth Circuit.

In 1956, this petitioner was working in Berlin as a civilian employee, as an auditor for the Comptroller Division of the Berlin Command.

He was then living in American Government’s quarters built with occupational funds.

On June 22nd, 1956, he was arrested and served with three charges for the total of seven specifications.

First charge of two specifications of indecent act with children under 16 years of age, the second charge is three specifications of sodomy, and the third charge had two specifications of display of obscene pictures to children under the age of 16.

He was tried on these charges and at the trial, he objected to the jurisdiction of the Court on the ground that he was a civilian and therefore not amenable to the court-martial jurisdiction and his objection was overruled.

He pleaded guilty and was found guilty accordingly.

He was given a sentence of 10 years imprisonment which was subsequently reduced to five years.

The judgment and the sentence were approved by the convening authority by the Board of Review and by the Court of Military Appeals.

Now while the petitioner was serving a sentence at Fitzsimons Army Hospital near Denver, he brought this habeas corpus action and the District Court denied the petition on the ground that Article 2 (11) was constitutional as applied in this case.

This case is largely like the first case, the Guagliardo case that was argued by Mr. Davis, first in the series since this petitioner like Guagliardo was a civilian employee accused of a noncapital offense, but in this case, and we — of course we rely on all the arguments made in that connection, but here, the jurisdiction of the court-martial can be sustained and yet the different and alternative ground.

And that is that the court-martial, the trial, constituted an exercise of the war powers of the Congress as expressed in Article 18 of the Uniform Code.

That article provides in substance that a general court-martial should have jurisdiction to try any person who by the law of war is subject to trial by military tribunal.

As Madsen against Kinsella shows under the law of war any person living in territory occupied by the United States, including American civilians is triable by a military court.

Now petitioner in this case concedes and — one that Berlin is presently under military occupation for all purposes and secondly of military trials may validly be held in that type of territory, and the question that he raises is that this petitioner was not tried on the theory that he was subject to the war powers, but he was tried on the theory that he was a person employed by in the armed forces under Article 2 (11) and that therefore the Government cannot, said, change it to jurisdictional theory at this point in the case.

You might say it was raised previously before the Court of Military Appeals and before the District Court.

Now it must be clearly understood that there is no dispute here about jurisdiction in the sense of power.

The petitioner as I understand the concession agrees that the court-martial had power to try him under Article 18 that is under the will powers of the Congress.

The only question is whether procedurally, that power was exercised in this case by the drawing of the charges.

Now initially, since the — since power has deemed to exist and has been conceded to exist, it’s our position that this is not really a matter for the civil courts of law.

The civil courts will review military judgments only to determine whether they were totally void for one of power not whether procedural irregularities might have existed in the cause of the — in the cause of the exercises of the power.

Procedural questions are for the military courts and for military law.

And the fact that the proposition that only procedural questions and military questions are involved, I think it’s shown by the fact that petitioner in his brief relies wholly on military law and military decisions to show that the exercise power he was —

Felix Frankfurter:

If the power — if the power had been exercised, avowedly as an exercise of the war power would the charges of designated different article?

Harold H. Greene:

Your Honor, the — what the man — what the Court-martial manual provides is this.

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Harold H. Greene:

That where a charge is brought in the Article 18 under the war power, the charge, the specification alleging the acts would be the same, the acts which constituted the offense.

Now the charge part of the —

Felix Frankfurter:

You mean by that if this were under the war power, the charges against him would nevertheless under Article 134 and 125?

Harold H. Greene:

Yes.

That — that — that charge is —

Felix Frankfurter:

What is introductory recital?

Harold H. Greene:

The introductory recital would be different.

Felix Frankfurter:

By virtue of Article 18, we charge him under 134 and 125.

Harold H. Greene:

Well what the manual specifically provides is that if the charge is brought under Article 18, the charging party introductory clause should state that this offense is a violation of the law of war or that the offense is a violation of the law of war be — and that it is an offense under the local criminal code.

Felix Frankfurter:

Would the punishment, the allowable punishment be different?

Harold H. Greene:

The allowable punishment would not be different.

Felix Frankfurter:

Any other consequences different?

Harold H. Greene:

We can see of no consequences that would be different in any way.

One of our points is that petitioner could not be prejudiced in any way, whatever by this change in the introductory designation or the charges.

Felix Frankfurter:

A piece of paper which alleges the charges because it has on the back where indictments have a clause, whether it would be Article 1 under which charges are brought, you know.

Harold H. Greene:

I don’t know but of course in this case, Your Honor, the introductory clause did provide that this was a violation of Article — of the Article 125 and 134, whatever the article happen to be rather than the — that this was a violation of the law of war.

Felix Frankfurter:

Yes, but as you — as I understood you, you said either there had been a violation of the laws of war, the charges would nevertheless be particularized as under 125 and 134, is that right?

Harold H. Greene:

Well, the — it’s little more complicated than that I think.

Felix Frankfurter:

Elucidated — enlighten me.

Harold H. Greene:

The manual provides that what should be charged if an Article 18 jurisdictional statement is made, it’s a violation of the law of war.

Felix Frankfurter:

In the Article 18 would have been —

Harold H. Greene:

Article 18, I believe is at page 4 of our brief in —

Felix Frankfurter:

Which one, the big one or the —

Harold H. Greene:

No, the Singleton brief —

Felix Frankfurter:

The Wilson brief.

Harold H. Greene:

The Wilson brief —

Felix Frankfurter:

What page?

Harold H. Greene:

Page 4, I believe.

Felix Frankfurter:

Well, that’s —

Harold H. Greene:

It’s the last — last clause on — in that —

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Felix Frankfurter:

Well as I understand that, that incorporates though with the specific crime against which the court-martials — for which the court-martials sit all the enumerated provisions of the articles of war, is that right?

Harold H. Greene:

It enumerates all the offenses which are properly cognizable under the law of war and if — if the —

Felix Frankfurter:

In other words there is the penal code with specific offenses punishable under the — as a matter of war power.

Harold H. Greene:

That’s correct, Mr. Justice Frankfurter.

The war power is —

Felix Frankfurter:

Supposing — and so then as I understand, you correct me, it had been an introduction by virtue of Article 18, we charge the following offenses specified in the articles of war, (Inaudible) 234 and 235, does that admit the argument.

Harold H. Greene:

As I understand, that will admit the argument, yes Your Honor.

William O. Douglas:

But I — I understood your brief saying occupation courts in (Inaudible) is that right?

Harold H. Greene:

There are no occupation courts as such, no courts that which — which are designated occupation courts in which do nothing but try that type of — it has that type of jurisdiction.

But of course, under Article 18, a court-martial is permitted to exercise the role of an occupational court of military commission on occupation court would be the same thing.

William O. Douglas:

Where’s that Article 18?

Harold H. Greene:

Article 18 is at —

William O. Douglas:

Yes, I found it.

Yes.

Harold H. Greene:

It’s the last sentence where it is — it is relevant here.

Now I might say this too that under the manual while —

William O. Douglas:

This thing is about peace time trial like court-martial?

Harold H. Greene:

No.

It has to do with — the law of war as the Madsen case I think shows applies not just in war time, but applies in occupied territory.

And in the Madsen case, it was stated specifically that the power to punish offenses arising under the law of war does not expire with the cessation of hostilities but continues during the occupation.

Mrs. Madsen was tried in Germany during the occupation long after the war had — the Germany had finished.

William O. Douglas:

Do you think for that purposes doctrine of Madsen applies in 1956.

Harold H. Greene:

Well the doctrine —

William O. Douglas:

Relief.

Harold H. Greene:

The doctrine of Madsen applies in Berlin because Berlin is — as occupied today as Germany — as West Germany was when Mrs. Madsen was tried.

And as I say the — there is no dispute about that fact so far as petitioner is concerned.

Now, I want to say this to — if we have any misunderstanding.

While the manual provides that the introductory clause of the charges should charge that a violation of the law of war had occurred, the manual also provided if instead of charging a violation of the law of war a specific article is alleged to have been violated as here Article 134 and 125, this would not affect the jurisdiction of the court-martial.

So under military law itself, the manual of court-martial has provided that this type of pleading that was — that was filed in this case would be perfectly sufficient to charge an offense — to charge a jurisdictional basis for the trial of the offenses both under the 2 (11) Clause and under Article 18.

Now, I might say too that the military law has been authoritatively stated by the case of United States against Schultz in which the Court of Military Appeals was confronted with precisely this same situation.

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Harold H. Greene:

There a — an employee of an officer’s club in Japan was tried on the theory that he was, of course, employed by the armed forces and therefore amenable to court-martial jurisdiction under Article 2 (11).

It was — the Court held, the Court of Military Appeals held that this jurisdiction could not be sustained under Article 2 (11) because he was not in fact employed by the armed forces.

But in view of the fact that Japan was occupied territory, the Court said that jurisdictional although specifically laid under Article 2 (11) could be sustained under the war powers of the Congress the same as we’re contending here.

William O. Douglas:

As I read your Footnote 13, the Berlin is not — is not an occupied territory.

It’s — it’s by the — your executive order — I haven’t read the executive order but the one you cite there seems to take Berlin out of the occupied zone.

So —

Harold H. Greene:

Well —

William O. Douglas:

— responsibilities were vested by the President and the Chief of United States Diplomatic Mission.

Harold H. Greene:

The mere fact that the agent of the occupation is the ambassador doesn’t alter the fact of occupation.

We had the same situation in Germany where the — where the powers, the occupying powers were exercised, not by a General of the Army but by high — by a civilian High Commissioner and still Germany was held to be occupied territory.

In other words, territory maybe occupied by the American Forces notwithstanding the fact that the senior official who exercises the power of occupation is a civilian rather than a military person.

William O. Douglas:

But that — that’s an end to military government and I thought that Madsen was based upon military government.

Maybe I haven’t read it recently but maybe I’m wrong about that.

Harold H. Greene:

No.

I don’t think Madsen was rested specifically on military government.

It rested on the fact of occupation.

In other words, it depends on who has sovereignty in that area.

The sovereignty in West Germany at the time of the occupation was not that of the German Federal Republic, it was —

William O. Douglas:

It was — it was our military.

Harold H. Greene:

It was our — it was the United States, whether it was military or civilian, the United States was exercising full powers in Germany just as the United States is exercising powers at the present time in Berlin rather than the German City Government.

The —

Hugo L. Black:

You mean the sovereignty exercise in there by the United States now?

Harold H. Greene:

Well, the allied kommandantura is composed of the three powers, but the three powers have the ultimate sovereignty since they have the power at anytime the countermand the veto and to change any of the regulations that may be passed by the Berlin city government and they have the ultimate authority in Berlin to prescribe regulations of their own and they would supersede and to that extent void anything that might be passed by the local government.

Efforts were made at the time when the Bonn constitution was adapted in West Germany to make that constitution applicable to Berlin.

But at that time, the three Western powers made a reservation to the Bonn constitution making it quite clear that the Bonn constitution could not apply in Berlin because the three powers wanted to preserve in Berlin their rights of occupation which, of course, they assert now in international negotiations all over the world as United States is contending now, that we are in fact occupying Berlin as a legal proposition.

And it’s true that they’re not only occupying its legal proposition, the troops are there.

There is a general who is in charge of the occupying troops in Berlin although the technical —

William O. Douglas:

Well, the troops are here at Fort McNair, they’re everywhere to this country but that doesn’t make us a — under the military government.

I don’t get this — you shock me as to what I apparently agreed to in Madsen.

Harold H. Greene:

Well, the — I don’t think the distinction can be drawn between the — it cannot be based on the fact as to who the senior official happens to be.

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Harold H. Greene:

The mere fact that the senior official happens to be at the same time the ambassador of the United States and Bonn and also the — the senior official so far as the Berlin government is concerned, that can’t — I don’t think that can be the test of whether Berlin is an occupied territory or not.

Berlin is occupied by the United States by virtue of the fact the United States exercised ultimate power there.

Felix Frankfurter:

Is the in controversy between you and —

Harold H. Greene:

It is not in controversy as —

Felix Frankfurter:

(Inaudible)

Harold H. Greene:

As I understand, that the petitioner concedes that Berlin is occupied territory for all purposes.

Felix Frankfurter:

I thought that’s the position, the part of United States has been taking quite internationally all these months that the original — the original legal doctrine, the arrangement by which we are now in Berlin is not a big difference than it was when it was officially signed, is that right?

Harold H. Greene:

That’s the position —

William O. Douglas:

I didn’t know we had a question for the policy here.

This — this involves the rights of American citizen to be tried by one tribunal over another and I thought (Inaudible) in Madsen was that this was a military government in control and I thought the military government had ended.

May — maybe I’m wrong?

Harold H. Greene:

Well, as I say.

As I — as I interpret the cases not just Madsen of course and the other cases, the fact which gives rise to an application of the law of war is the fact of occupation where the Government is military government or civilian government in the sense that the ultimate, the highest official is a high commissioner or an ambassador rather than an Army General, doesn’t alter the fact of occupation.

If the fact of occupation, the fact as to — as to the sovereignty which is being exercise by the United States there in Berlin as occupied territory which really determines the applicability of the law of war.

Felix Frankfurter:

I again ask you, does Mr. Weiner deny all these?

Harold H. Greene:

He does not —

Hugo L. Black:

Is that binding on us?

Harold H. Greene:

No, I — but —

Hugo L. Black:

I didn’t suppose the war —

Felix Frankfurter:

I didn’t ask whether it’s binding, I just wanted to know whether he’s consented or not —

Harold H. Greene:

Now, I’d like to say this too that aside from the —

William O. Douglas:

I haven’t read Mr. Weiner’s brief.

I just looked.

He does say (Inaudible) petitioner’s trial by court-martial cannot be sustained as an exercise in military government jurisdiction over him, of course, he can speak for himself, right?

Harold H. Greene:

Well, as I —

William O. Douglas:

He realized that we had a military government still in Berlin and I thought it was a shock to me.

Harold H. Greene:

I don’t want to interpret what his brief means but as I understand that he does not contest the fact of occupation or the fact of military trials could be had there.

His point — his point simply is that that’s not what was done in this case, that we didn’t try this petitioner under the law of war.

We tried him under Article 2 (11) as a person employed by the armed forces and that is according to the petitioner the vice and the defect in this proceeding.

Now, a second point is made by the petitioner and that is that the fact that only connected civilians, persons connected with the armed forces — with the occupation forces —

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Felix Frankfurter:

Well, the second point and the controversy is that may — in the fact to which I’m going to align but I don’t know what to do, but I inferred that he isn’t driving whatever it is other than 20 pages on the single question that the court-martial charges didn’t specifically state they were under Article 18.

Harold H. Greene:

No Your Honor, in most —

Felix Frankfurter:

He’s going to the whole merit, isn’t he, that this was not that — that as a matter of military law, article of war or not, 18 or not, this was not in the field, isn’t that it?

Harold H. Greene:

No, Your Honor.

He is most of that brief is devoted to the problem of where this was a proper exercise of jurisdiction under Article 2 (11) whether this person was an employee of the armed forces.

Felix Frankfurter:

That the procedural — from the procedural point isn’t decisive of this case, is it?

Harold H. Greene:

Well, if we can, we can, if we can sustain the jurisdiction under either of the two theories, in other words, assuming that we are correct that on this procedural point, he could be tried under Article 18 then it doesn’t really make any difference —

Felix Frankfurter:

Does he admit that that it could be if it had been properly laid?

Harold H. Greene:

That is my understanding, yes Your Honor.

Now if we are correct in that, then we need never to determine whether he is also correct or incorrect on the basis of Article 2 (11).

If you were in Guagliardo on this point you are arguing, this is simply a standby point.

Harold H. Greene:

That is correct.

This is an alternative argument that this could be sustained as, jurisdiction here it could be sustained in either on the Article 2 (11) if Guagliardo is decided in the Government’s favor or if Guagliardo was decided against the Government then we say that the jurisdiction can be sustained under Article 18 in any event.

Now, the subsidiary point that’s being made in connection with the Article 18 argument with the argument that he was being tried here under the law of war is that to try him in that fashion was denial of due process in that, not all persons in Berlin are presently being tried by military courts.

The only persons admittedly who are being tried by military courts — well, are persons who are actually in uniform and persons who are connected with the armed forces as employees or dependents.

And the Allied Kommandatura Law number seven which is here involved, this is a third category of persons who might commit offenses against the allies or against the military authorities there.

So it is said that this is an unlawful, unjust discrimination to single out this category of service connected civilians of civilians, of employees and dependents who are there with there with the American armed forces single them out for a trial under this war power under Article 18 and not to try all of the civilian population of West Berlin, including American tourists and any other persons who might come there.

It seems to us that even if the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, as read into the Due Process Clause, if it could be applied in that type of situation as broadly as it would here and I think the Quirin case and the Yamashita case goes undoubtedly in that proposition.

Even in that event, a case of unlawful discrimination has not been made out historically and throughout the ages.

Persons who were actually with the occupying force either as soldiers or persons employed by the occupying force have been exempt from local criminal jurisdiction of the courts of the occupied country.

Winthrop recognizes this.

Other text writers have recognized this.

This has been the practice throughout the ages and therefore this type of discrimination, this kind of distinction that’s being made with the persons connected with the occupation who were tried in the courts of the occupying power and other persons who were not connected with the occupation who were being tried in the local courts seems to us is — cannot be construed as unlawful discrimination in violation of due process even — given that concept the very broader scope that could be imagined.

Earl Warren:

Colonel Mr. Wiener.

Frederick Bernays Wiener:

If the Court please, I would like to deal briefly with the Berlin matter and then take up most of my time on the 2 (11) argument.

The petitioner has no desire whatever to involve Your Honors in the Berlin crisis.

I think that we’re bound by the determination of the political department that Berlin is occupied territory and I don’t question for a minute that military courts can function in occupied territory.

In Madsen versus Kinsella teaches that the President acts by virtue of his position as Commander-in-Chief and even acts through military agencies or civilian agencies as he deems best.

I don’t question that.

Our position is that this wasn’t a military government trial.

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Frederick Bernays Wiener:

This — when we gave up the occupation in West Germany, we gave up the incidence of occupation in Berlin.

There are no occupation courts functioning.

They have never functioned since May 5, 1955.

The only civilians who have been tried have been the accompanying 2 (11) civilians and they have been tried under 2 (11).

Now, what have we here?

We have here a collateral attack on the jurisdiction of the tribunal of limited jurisdiction.

The jurisdiction of that tribunal must appear on the proceedings.

It is not necessary to prove all of the proceedings.

Let us say we have the normal court-martial Gusik against Schilder.

If on court-martial Gusik says that he isn’t soldier, you say I am private company A of the 29th Infantry, you haven’t proved I am.

You didn’t prove it in the court-martial record then on collateral attack you can show his enlistment papers.

In other words, you can establish on collateral attack the truth of the necessary jurisdictional allegations in the challenged proceedings, but what you can’t do is to change the record.

In Givens v. Zerbst in the 255 United States it was very plainly said, “Nothing being done here changes the record.”

Now, what the Government is attempting to do here is to sustain the jurisdiction over this petitioner on a ground that was not set forth in the proceedings and on the ground that wasn’t taken by the Court of Military Appeals which represents the ultimate views of the military judicial system.

Felix Frankfurter:

May I ask this if you clearly answer, could it have been broad under Article 18?

Frederick Bernays Wiener:

I think it could, but for one — but for one fact I think it would be discriminatory.

If you show, if you show, in other words that the only people tried under Article 18 is limited 2 (11) then I think that’d be a ground for saying —

Felix Frankfurter:

Apart from that.

Frederick Bernays Wiener:

— apart from that —

Felix Frankfurter:

Part of those, there would have been — there was follow.

Frederick Bernays Wiener:

I think there was because it was occupied territory.

Felix Frankfurter:

You’re offering me that this isn’t — this isn’t like Williams against the United States of procedure meant —

Frederick Bernays Wiener:

No.

Felix Frankfurter:

Wrong designation —

Frederick Bernays Wiener:

Not at all.

Felix Frankfurter:

— of the statute.

Frederick Bernays Wiener:

Not at all.

Felix Frankfurter:

But the tribunal itself was not constituted according to the jurisdiction on which it is now sought to sustain the sentence.

Frederick Bernays Wiener:

Well, I would say that the accused wasn’t designated because it’s not a question of the wrong designation because the military law is the same if you alleged the wrong article it doesn’t make any difference.

The question is, do you allege facts?

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Frederick Bernays Wiener:

And it isn’t whether you say this is under Article 18 or anything.

The question is what facts do you alleged?

Well the only facts alleged were that this accused a person serving with employed by and accompanying the armed forces without the continental limits of the US.

Well, that was Article 2 (11) in its earlier pre-1957.

Felix Frankfurter:

But it’s been going on, on this piece of paper to set forth whereas United States was non-occupying power in Berlin, et cetera.

This tribunal is constituted in the exercise of the power — but the authorities going from the power of occupation.

Does that (Inaudible)

Frederick Bernays Wiener:

Well, I think you would have had to say a person subject to the laws of war, alright and that’s what they didn’t say.

And you can’t, you can’t do a switch when you’re on collateral attack.

You’re bound by the record that was made and sustained.

Also in answer to your question Mr. Justice Frankfurter, what about the allegations?

Well, now there are normally two heads of jurisdiction for a military government court, three heads.

One is the laws of war.

Let us say spying or maltreating the occupying, interfering with the functions of the occupying body.

And then there is — the laws of war of the local laws which are being violated.

And then, there would be any local ordinances of the occupying power as in — what’s that case from Puerto Rico, Neely versus Henkel.

Neely violated an order of the American Commander in Puerto Rico, but here the allegation is that he violated certain provisions of the Uniform Code, which by those terms are limited to, that is they make punishable conduct by a person subject to this Code.

So that you just don’t find within the four quarters of the document anything to establish the jurisdictional basis requisite on collateral attack.

In other words, they haven’t — it was only when they’ve got up here that they made the big drive to try to see if they could sustain it as something which it never was from the beginning.

Felix Frankfurter:

If there are this, may I ask this, if they had charged him as one subject to the laws of war, would the substantive offenses for which he would then be prosecuted as under the laws of war had been Articles 225 and 234.

Frederick Bernays Wiener:

No.

They would not.

Felix Frankfurter:

Well what could he have been —

Frederick Bernays Wiener:

Well, he would have —

Felix Frankfurter:

— constituted for?

Frederick Bernays Wiener:

He would have to be charge with the (Inaudible) for Berlin or a violation of the laws of war.

Now these somewhat pathological offenses with which he was charged won’t be found in groceries or bad tailor —

Felix Frankfurter:

You mean this would be the laws — violating the laws of war is an offense and not these offenses particularized would be as it were bill of particulars?

Frederick Bernays Wiener:

Yes, yes.

In other words, there are three headings of possible jurisdiction.

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Frederick Bernays Wiener:

One violation of the common law of war shooting prisoners, sniping at the troops, any interference with the occupation, second violation of the municipal law, murder, any of the more conventional offenses, and third, violation of the occupying commander’s orders, curfew for instance, that’s all.

But when you particularized it by saying that this is a violation of an article of a code which in terms makes punishable only conduct by persons subject to the code, you have what this started out to be and what it finished out pass in the military system a prosecution under the Uniform Code for someone under 2 (11) and that brings us to 2 (11).

Now, I want to take up as I’ve indicated in the previous argument the Government said in 1957 there is no difference between civilian employees and civilian dependents.

It’s a question of state.

In time of peace — in time of war and in the field there is no question, but not in time of peace.

And I would like to go into that much of views field of history and I propose to cover all of it.

There maybe some dispute whether the sampling technique helps the posters arrive at accurate predictions.

That is disputed, but there’s no dispute.

There can be no dispute, but the sampling technique is not adapted to historical generalizations.

And I will try to touch all the points.

Now I think and that, Mr. Justice Frankfurter, is what makes this so long.

It’s mostly history.

Felix Frankfurter:

I wasn’t complaining, I’m just noting.

Frederick Bernays Wiener:

But there is no consistent practice in what was subjectively regarded as time of piece of trying accompanying civilians, but apart from a number of essentially episodic instances many of which were flagrantly and palpably illegal on their face.

Now in the continental army, yes, civilian employees were tried.

Well, there is a classic example of — in time of war in the field then there were other civilians tried by the army for what appeared to be war offenses.

The Government cited one.

I found about 34 additional and also found that as Washington’s writing shows these people were not tried on the articles of war but on the results of Congress.

And then the Government says, “Well those are all irrelevant.”

Well, considering that they started with the first one, I think that’s a little unfair.

As a matter of fact, that’s unkind because here, I did their homework for them but at any rate, this was a war time jurisdiction.

It was not time of peace.

Now, do we have any expressions, contemporaneous expressions of what the policy and the thinking was around that time?

And the answer is yes.

In 1765, the British parliament passed an act and this was the infamous parliament that passed the Stamp Act, they passed the Mutiny Act for North America in which they said that anybody found in this vast western wilderness which was just been conquered from the French who commits offenses shall be apprehended by the officer commanding his majesty’s troops and forthwith taken into the nearest settled province or colony there to be dealt with according to the law of that colony as though his offense have been committed there and the only right the misgrant laws was the right of venue in a place where there weren’t many people.

All right, 1787, the 11 of July, two proposals come before the continental Congress.

One is the first draft of the northwest ordinance and the second is the report by the secretary at war, General Knox saying, “There are a lot of people here in the Northwest Territory who were committing depredations against Indians and that starts Indian wars.

I suggest that we try and punish these people.

I have the military officer, the commander of the troops try and punish these people.”

Two days later, the northwest ordinance was passed.

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Frederick Bernays Wiener:

The Knox report went to a Committee and the Committee said, “Well, let us have these offenders against the Indians tried by court-martials subject to the law of martial as though they were enlisted soldiers.

Well, that was passed to another committee and the other committee came back and said, well, ordinarily, yes, civil offenses should be dealt with by the civil magistrate but until a civil government is established and crimes are punished by anybody who injures the Indians should be tried by court-martial as though he were an enlisted soldier.

And that rested in the file and no action was taken.

In other words, even though there was to be a hiatus of 14 months because the first governor didn’t take over for a year and no crimes act was passed in the Northwest Territory for another two months.

In preference to military jurisdiction over civilians, Congress preferred a hiatus of law and order.

Potter Stewart:

Kernel Wiener, it’s true though, isn’t it, that the fizzle then was to extend military jurisdiction not simply over as employed by or serving with the armed services but over all the civilians in the northwest territory.

Frederick Bernays Wiener:

It was a —

Potter Stewart:

Why not related to the armed services?

Frederick Bernays Wiener:

It was a generalized military jurisdiction, yes.

Now, Mr. Davis said yesterday, there is no affirmative statement in the debates and in the ratifying conventions to the effect that land and naval forces doesn’t include military trials of the accompanying civilians.

Well, I think the notion that land and naval forces meant trying civilians in time of peace was just too fantastic to have occurred to anyone as little bit like they all saw the boy who complains to his mother.

“But mommy, you didn’t tell me I shouldn’t put beans in my ears.”

Nobody could think of anything so fantastic.

And if they had looked in number 83 of the federal list, Hamilton said trial by jury remains unimpaired.

Well, that brings us to the 1790s and I found in the manuscripts in my Appendix D a number of trials of civilians under the aegis of General Wayne and General Wilkins, most of them under General Wayne.

Well, now of course, the 1790s and terms of our concepts were a time of peace.

In terms of the concepts of the mid 19th Century, they were a time of peace except where the Indians were actually being shot at out in the Northwest Territory.

But then in studying the military cases in the 1790s, I came across something that puzzled me because under AW 2 of 1786, any death sentence in time of piece had to be referred to Congress until 1796.

And yet, in these records manuscript and otherwise, I find that General Wayne ordered death sentences into execution in the 1790s before the transfer of power came.

And I thought, how can he do that?

Was he disregarding the articles of war?

When they reported it to Knox, the Secretary of War incidentally, well, I’ll come to that later and Knox was a man who went strictly according to the book in military matters.

And then I went through the statutes at large and the journals of the continental Congress and the state paper, is there anything that transferred the power from the Congress to the commanding general to execute these death sentences in the field?

And I didn’t find anything and the only way that those executions would have been legal would have been in time of war and then the light dawned.

They thought it was a time of war and Secretary of War Pickering who succeeded Knox said in 1795, since the commencement of the Indian war, the United States have been in a situation that excluded the idea of its being a time of peace.

In other words, putting ourselves into the minds of the people of the 1790s, they thought — they thought it was a time of war.

So that the —

Potter Stewart:

And that these cases arise after the Treaty of Greenville?

Frederick Bernays Wiener:

Most of them beforehand, most of them beforehand.

Potter Stewart:

It’s certainly after the Battle of Fallen Timbers in the Treaty of Greenville —

Audio Transcription for Oral Argument, Part 2: McElroy v. United States ex rel. Guagliardo – October 22, 1959 (21) in McElroy v. United States ex rel. Guagliardo
Audio Transcription for Oral Argument, Part 2: Wilson v. Bohlender – October 22, 1959 (37) in McElroy v. United States ex rel. Guagliardo

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Frederick Bernays Wiener:

After Greenville, after Greenville, there’s no question it was time of peace and after that, you get only episodic cases.

And you get the sort of lawlessness that Wilkinson perpetrated at Detroit where a man committed an offense that was denounced by an act of Congress and Wilkinson issued an order against him and he was just a citizen unconnected with the military.

And he tried him by court-martial and had him lashed with a wired cat of nine tails.

Now those things are just plainly illegal.

You have Anthony Wayne in setting up a military OPA in Pittsburgh because the market is forestalled.

And this, at a time, at a time when Washington was enjoining on the military, their narrow functions, and the Government says, “Oh well, but Wayne was the superior military authority.

He was the highest officer there was.”

Yes, he was the highest military officer but there was a Secretary of War and there was the President and what Wayne did in many of these instances was just palpably illegal.

Many times, where the civil courts were functioning, certainly nothing — certainly nothing from which you can derive the threat that the Government seeks to find that it’s alright when the civil courts aren’t functioning.

Earl Warren:

We’ll recess now.