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

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Frederick Bernays Wiener:

— that the 1790s or perhaps referred top those cases, the persons tried were not shown to have any kind of connection with the military.

And of course these instances make understandable what is recorded in the chronicles of the times, the state of endemic conflict between the civil authorities and the military.

Then between 1798 and 1858, we get from that 60-year mountain, mouse of seven trials of civilians.

In five of those seven instances, the Civil Courts were open in the vicinity so that I say that was flagrant disregard of proper boundaries and his history, not the kind of history infused in the Constitution, but the kind of history which consists of the recital of past abuses.

We then come to the Civil War.

Judge Advocate General Holt, whose peculiarly genius gave us the military commission for political opponents which was disposed of in the Milligan case and also that sad monument to passion the trial of the Lincoln conspirators which nobody really likes to mention.

And then with the war over and Holt retired, the question arose in 1877 and then when the Attorney General momentarily lapsed and said “Civilian employees could be trailed by Court Martial,” it was the Judge Advocate General who rushed into the breach and reminded the civil power of the limitations on military authority.

All those opinions are set forth in Appendix C and that same paradox, if the Court please, continues today.

The strongest statement of the unconstitutionality of military trials of civilians in time of peace is in the pages of Winthrop, a man for — who always a mature life was a professional soldier.

And the most vehement arguments in favor of that jurisdiction are presented here in this Court (Inaudible) cases are the civil rights, division of the Department of Justice.

In other words, the military man is anti-militarist and the civil rights division is anti-civil rights.

Hugo L. Black:

Is the brief — special brief by the civil rights division —

Frederick Bernays Wiener:

These briefs and these cases were prepared by and signed by the Assistant Attorney General and the Acting Assistant Attorney General of the civil rights division.

Tom C. Clark:

(Inaudible)

Frederick Bernays Wiener:

They were assigned to that division.

What I think is the — I — I — well, they got the —

Felix Frankfurter:

Do you think the Attorney General should come in and say an act of Congress is unconstitutional?

Frederick Bernays Wiener:

No, he’s got the — of course he’s got to defend it, but it’s — it’s a funny — it’s a funny kind of civil rights that instead of giving substance and content of the Fifteenth Amendment starts hacking away at the Sixth.

Now, these discussions in 1877 are most interesting because they are really the most — the first articulated and reasoned discussion of the constitutional problem and really they lasted for some time and they were followed shortly thereafter by the case of the post trader.

Now, the post trader was the successor to the supplement.

Winthrop who lived contemporaneously with both said so.

The statutes providing for the post trader purported to make him subject to the articles of war.

And so the question was asked if the Judge Advocate General, “Can the post trader be trailed by Court martial?”

And he held in an opinion that was published in three successive additions, ”No, there is no military jurisdiction over the post trader except in time of war on the actual theatre of the Indian War.”

Now that —

Potter Stewart:

Was the post trader employed by the Arm Forces?

Frederick Bernays Wiener:

No, no more than was the Sutler.

He was an independent contractor who made his living selling goods to the soldiers.

In other words, he is the — he is the direct successor of the Sutler who was mentioned in the articles way back.

Now, that ruling was first mentioned three-and-a-half years ago and finally — finally three — now, in the reply brief, the Government admits its acceptance and then you can see why it took him three-and-a-half years to formulate an answer.

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

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Frederick Bernays Wiener:

There isn’t any answer and even what they say is directed not to what was published for three successive additions in print, but to an abstract in the archives.

And that is why basically I have said that I cannot take too seriously as an historical text they rather selective presentation made by my brother.

Felix Frankfurter:

Mr. Wiener, does this matter come up at all during the regime of the general Crowder?

Frederick Bernays Wiener:

Judge Advocate General Crowder went to Congress in 1916, and asked for the 2d jurisdiction and it’s one of the great mysteries of that 1916 revision why he never mentioned Winthrop’s opinion which had been on the books for 20 years saying it was on unconstitutional.

Why he never mentioned the opinions in the 1912 digest of opinions that it just been issued under his own supervision.

That to me is the great mystery.

Now, looking at, he apparently proceeded on one articulated premise, namely this thieving quarter master clerk who got away on the second occupation of Kilburn.

That’s what he had on his mind.

Insofar as I tried to extract these legal premises, he thought first that the Constitution stopped at the water’s edge, that there were no constitutional protections overseas, which of course is law.

He also thought that the Fifth Amendment cases arising in the land of Naval forces was a source of military jurisdiction and while that did had judicial support at that time, it was of course exploded by talk.

And the — the mystery of the Sixteenth Revision is why didn’t — if Crowder had said, “Well, I’ve looked into this gentlemen.

I think that my distinguished predecessor Colonel Winthrop was wrong, I think this is alright for such and such reasons” then we’d be in a different situation, but it was never discussed.

So then we come back to our starting point, namely that military jurisdiction is a question of status.

Without military status, there is no military jurisdiction in time of peace.

Without military status, there is jurisdiction in time of war only in areas in the field.

Now, on practical necessities, here again I think the Government’s arguments would carry more weight if there were fewer omissions.

I think it’s pretty well admitted that there hasn’t been any attempt to restudy this problem beyond — well, let’s see if we can’t get read the Covert limited and future litigations.

They haven’t even plugged the very obvious gap which is that the espionage chapter of Title 18 of the code would not apply to a civilian employee in an overseas military headquarters committing espionage violations, that very obvious gap for which it could be thrown back and tried in a District Court in the First District in which he was found or brought, the espionage act would not cover, an act of espionage by an American civilian in an overseas military headquarters.

They haven’t even plugged that yet and they haven’t explained why it is that these civilians haven’t been militarized.

Well, the Court of hearing show and the appropriation here is a budgetary reason and then take — take this petitioner and his connection and the connection of his offences with the military.

He was found guilty he was charged with.

He pleaded guilty to the substance of seven sex offences.

If they’d been in the District of Columbia, the only area where Congress legislates the order of — had a hearing under the Sexual Psychopath Act, he would be placed in Saint Elizabeth.

Instead of which, he is trailed by Court Martial.

He is sentenced to five years confinement.

It isn’t going to cure him and it isn’t going to protect society and here was an employee who are — an auditor who offered to resign.

Now, what is an auditor so significantly got to do with our military mission?

Again, the Gerard case, if it was proper to turn Gerard over to the Japanese, why isn’t so improper to turn this person over to the German Courts in Berlin?

We certainly trust the German Courts and we could have authorized them to handle this.

Now, I don’t have to spend time on the proposition that necessity is not a constitutional argument, but here they haven’t even made a showing of necessity.

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

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Frederick Bernays Wiener:

It is expediency and it’s the expediency of doing things on the cheap, because it would cost less money to have these persons as civilians when they have them in the service.

And I submit that is not a sound ground for cutting down constitutional protections or for watering down the scope the Sixth Amendment.

And from this it follows, if the Court please, that the judgment below refusing to release this petitioner to be reversed.

Oscar H. Davis:

I have just one point, if it please Court.

Colonel Wiener stated that the offense itself, the substantive offences would be or might be different if charged under the law of war than charged under the uniform code.

I don’t think that’s quite true.

The law of war recognizes as offences all those acts which are condemned as criminal by all — by civilized nations generally.

Now, these particular offences fall in that category because all 50 states of the union and about 15 or 20 countries that — that we have researched condemn this type of conduct.

So, it’s clear the offence is one under the law of war.

Now how the offence would be charged is — is a procedural question.

It can be charged in one or three ways under the law of nations.

It can be charged either particularized in terms of the local criminal code or it can be particularized the (Voice Overlap) —

Felix Frankfurter:

The local meaning?

Oscar H. Davis:

The German Criminal Code in this case or it can be particularized in terms of the common law of war as such by taking the conglomeration of all the — all the offences and all of the civilized nations or it can be particularized in terms of the regulation of the occupying power.

And that was done in this case and that was certainly proper since the person who was involved was with the occupying power.

Felix Frankfurter:

Regulation meaning the Article (Inaudible) also?

Oscar H. Davis:

That’s correct.

The articles would be applicable there too, but I think beyond that, the offence will be the same whether they would be charged under the Uniform Code or under the German Criminal Code or under the law of war generally.

The offence, is the type of offence where the — where the code has very little room for particularization beyond what was done here.

Felix Frankfurter:

Are you telling us that — do you tell us that the soldiers maybe would — would out of his (Inaudible), a soldier maybe charge as for a violation of the law of war in that he violated any particular Section of the Articles of War?

Oscar H. Davis:

Yes, that’s correct.

Felix Frankfurter:

And there are — there are laws of war that are not particularized in the Articles of War aren’t they?

Oscar H. Davis:

That’s right?

Felix Frankfurter:

Are you saying the articles of the laws of war violates or obedient to the laws of war means, the obedience to the special aspects of conduct that pertain to war and also obedient to the articles of war unrelated to the actual conduct of war?

Oscar H. Davis:

No, that’s — that’s what I’m — I’m trying to say.

Felix Frankfurter:

What are — what did you say?

Oscar H. Davis:

Now, I’m trying to say is you have to establish first that the offence is one which is cognizable under the law of war.

Felix Frankfurter:

And either cognizable because it’s one of the articles of war?

Oscar H. Davis:

No, it’s not cognizable because —

Felix Frankfurter:

And how do you know which to pick and which not pick?

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

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Oscar H. Davis:

That has to be established independently depending on what is condemned under the criminal codes of civilized nations generally and once that is determined then it becomes merely a matter under which —

Felix Frankfurter:

But it condemned by a civilize nation as a matter of civil law to —

Oscar H. Davis:

No, I would — I would say not, because it would not.

Felix Frankfurter:

That if anything that it’s so-called civilized nations of world condemn as criminal conduct would that be prosecuted for — as a violation of the laws of war?

Oscar H. Davis:

That is correct.

Hugo L. Black:

Is there an article of war that says that?

Oscar H. Davis:

Well, Article 18 is the one we depend on.

It states that a Court Martial should have jurisdiction to prosecute offence under the law of war.

Felix Frankfurter:

What is contained (Inaudible) —

Oscar H. Davis:

What is contained —

Felix Frankfurter:

— is — is this amorphous body of a prohibition?

Oscar H. Davis:

The law of war is — is like the common law and the Court was dealing with that.

Hugo L. Black:

But is doesn’t quite say that.

The difficulty at a rather early date it was held that common law (Inaudible)

Oscar H. Davis:

Well, it is like the common law used to be.

It is not — it is not — in other words, it doesn’t have a written code.

It is — it is a common law which has grown out of experience and out of the practices of the nation of the civilizations.

William J. Brennan, Jr.:

(Inaudible) particular offences in many places are (Inaudible)

Oscar H. Davis:

I think that’s — that’s incorrect.

All those — all those places that we have been able to find that is all 50 states of the union, the District of Columbia, Puerto Rico the Virgin Islands, many of the nations of the world, Italy, German, France, England, Canada, India, and Republic of China, all of them treat this as a criminal.

Now, it’s true in the District of Columbia they have a Sexual Psychopath Act and persons can be put in the mental — at the hospital under the Sexual Psychopath Act, but that is not in lieu of criminal punishment for these types of offences.

The charges for those offences remain pending and technically, the person can be prosecuted after his — if — if — after he is cured in the mental hospital, but all of the states and all of the countries, we have been able to find condemn these practices as a violation of their criminal laws and punish accordingly.

Felix Frankfurter:

Did Winthrop say what you said that laws of war include not merely conduct related to the conduct of war and in relation to war such as the offences for which the Nurnberg trial which tried the Nazi members but also that which in the acceptance of the civilized war of this Criminal Act.

They’re unrelated having those special relationships with or significance toward to the war.

Oscar H. Davis:

It — it definitely says — yes Mr. Justice.

Hugo L. Black:

Is it your argument — I want to be sure that I understand your argument on this point is based on the fact that there is no prohibition written by Congress in the articles of war.

No statute against this saying as a crime, but that you say that the Court you should look to the civilized nations of the world in order to sustain a conviction to this man for a crime which Congress have not described.

Oscar H. Davis:

That has traditionally been —

Hugo L. Black:

I mean is that —

Oscar H. Davis:

Yes.

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

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Oscar H. Davis:

That’s —

Hugo L. Black:

— is that the argument?

Oscar H. Davis:

Yes sir.

Felix Frankfurter:

And you say that because Congress has made it an offence, it had given Court-Martial jurisdiction, which one is it, 18?

Oscar H. Davis:

Article 18.

Felix Frankfurter:

Eighteen as — as proscribed any person by law are subject to trial to by law of war.

In other words law of war absorbs all this undefined and on particularized misconduct.

Oscar H. Davis:

That’s what this Court said in the Quirin case.

The Court said in the Quirin case that that Congress could crystalize all these offences by cognizance of under law of war or it could simply adopt the law of war as it exists and that’s what they have done then and that’s what — has done by virtue of (Voice Overlap) —

Hugo L. Black:

I think that the Court has held that both admiralty and as to the common law of crime while there is an admiralty, a body of law, I have understood it to say that the mere fact that there was an intimation of body of law, could not — could not be enforced in this country unless it had been adapted in this country as a statute, as law.

Oscar H. Davis:

Well —

Hugo L. Black:

I didn’t say that.

That just means to say that that is a law, either by the Court under the definition of the rule (Inaudible)

Oscar H. Davis:

As I understand it by the adapting the law of war as such, Congress has in effect adapted all of — all of the offences which are properly cognizable under the law of war as offences against the United States.

Hugo L. Black:

Which are not codified in the words.

Oscar H. Davis:

Which are not?

Hugo L. Black:

Not codified anyway.

Oscar H. Davis:

Which are not codified —