McElroy v. United States ex rel. Guagliardo

PETITIONER:McElroy
RESPONDENT:United States ex rel. Guagliardo
LOCATION:District Court for the District Court of Columbia

DOCKET NO.: 21
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 361 US 281 (1960)
ARGUED: Oct 21, 1959 / Oct 22, 1959
DECIDED: Jan 18, 1960

Facts of the case

Question

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

    Earl Warren:

    Number 21 McElroy, Secretary of Defense et al, Petitioners versus United States on the relation of Dominic Guagliardo.

    Mr. Davis.

    Oscar H. Davis:

    Mr. Chief Justice, may it please the Court.

    This habeas corpus proceeding, here on writ of certiorari to the Court of Appeals for the District of Colombia Circuit, is the first of four cases now before the Court, involving once again Article 2 (11) of the Uniform Code of Military Justice, which was before the Court two years ago in the Covert case and which — in which Congress sought to empower courts-martial with jurisdiction over dependants and employees, accompanying and serving with the armed forces overseas.

    Of the four cases before the Court, the first, third and fourth involve employees and the second case, immediately succeeding case, involves a dependant.

    Of the four cases, all involved noncapital crimes except the last which is a case of a civilian charged with a capital crime.

    Did you say they were civilian employees of the armed forces?

    Oscar H. Davis:

    Yes sir, a person who is not enlisted or commissioned in the armed forces in that sense.

    And that’s what we’re told former federal — federal status by the Army?

    Oscar H. Davis:

    He is an employee of the Department of the Air Force.

    Respondent is an —

    A contractor on particular job?

    Oscar H. Davis:

    No sir the respondent —

    A fellow who is not in uniform could otherwise leave the Army if he chooses to?

    Oscar H. Davis:

    Well that is our position.

    Respondent —

    Hugo L. Black:

    Is that everybody who works for the Army in the United States and elsewhere?

    Oscar H. Davis:

    No sir I will try to — limit our — our position to people serving the armed forces overseas.

    William J. Brennan, Jr.:

    Can’t you tell me, Mr. Davis, in the pages of each the briefs here in the Court, what the form (Inaudible) —

    Oscar H. Davis:

    They were —

    William J. Brennan, Jr.:

    — the three with civil service —

    Oscar H. Davis:

    Yes they were all civil service employees of the particular armed service involved.

    They were non-employees of contractors or anybody else.

    That is they were directly employed by the Federal Government and each of the three employee cases —

    William J. Brennan, Jr.:

    In other words there are different ways –?

    Oscar H. Davis:

    They were all civil service employees —

    William J. Brennan, Jr.:

    Civil service?

    Oscar H. Davis:

    Well I say civil service generally.

    The respondent here was once called a wage board employee as so many are in the United States.

    He was paid on an hourly basis, but he was in the — he was in the same situation as comparable employees in the United States would be at Air Force installations or Air Force posts here in this country.

    William J. Brennan, Jr.:

    What is the other one?

    Oscar H. Davis:

    In the third case Wilson was also a civil service employee —

    William J. Brennan, Jr.:

    Like the fourth?

    Oscar H. Davis:

    No he was a regular civil service employee and —

    William J. Brennan, Jr.:

    Unless he had some EAF (Inaudible)

    Oscar H. Davis:

    Yes he had I think a GS and that — whatever it is and then — and then the fourth case, the Grisham case, he was an auditor with the corps of engineers stationed ordinarily at Nashville.

    He was on six months temporary duty with the corps of engineers in Orleans, France.

    He also had a GS number.

    William J. Brennan, Jr.:

    Yes.

    Earl Warren:

    Mr. Davis is there anything in the nature of the employment or in the duties in these three employees that would cause you to make any distinction between the two insofar as the legal principles in this case are involved?

    Oscar H. Davis:

    For the three, sir?

    Earl Warren:

    The three employees.

    Oscar H. Davis:

    Yes, well no there — except the one factor that in the Wilson case which is the third case, he was stationed in Berlin and we make a separate argument as to the status of Berlin as being a place where the law of war applies and so that he could have been, he could be court-martialed under that basis of jurisdiction.

    Otherwise there is no difference as to the three employees.

    Guagliardo, the respondent in this case, journeyed to Morocco and he there became an employee of the Air Force Department at Nouasseur Air Base which is near Casa Blanca in Rabat, in Morocco.

    He was an electrical lineman charged with maintaining and keeping the lighting on the airfield there and of course since this was an airfield that was an important and significant post.

    He had a — a — all the status and privileges and benefits of persons accompanying the armed forces overseas.

    That is, although he himself lived in Casa Blanca in an apartment, he had a quarters’ allowance just like many officers do, many higher-grade non-commissioned officers who don’t live on the post, but live in a nearby town.

    He had commissary privileges, exchange privileges, officer club privileges, medical and mail privileges.

    The offense of which he was charged, kept together with two enlisted airmen, was the — was the offense of larceny and conspiracy, to commit larceny of Government-owned goods.

    There were some leatherette goods and olive drab fabric material owned by the Government, the Air Force, on this base, the Nouasseur Air Base Depot in Morocco and he was charged together with these enlisted men with at least two counts of larceny and conspiracy to commit larceny.

    Under the Manual for Courts-Martial the maximum penalty is five years for this — these offenses and there was a trial held.

    He did object to the jurisdiction of the court-martial over him.

    He was found guilty on both counts together with the airmen.

    He was sentenced to three years confinement and a $1000 fine.

    William O. Douglas:

    Were any local civilians involved?

    Oscar H. Davis:

    Yes local civilians, not Americans were involved.

    They were not tried Mr. Justice by the court-martial.

    There was some suggestion that they were tried, but I cannot actually say whether it was true, by the local Moroccan Courts.

    There was apparently from the court-martial record, arraigned, and which involved these three, the two airmen and this employee and some local civilians.

    Potter Stewart:

    This was a conspiracy trial or for the substantive offenses?

    Oscar H. Davis:

    They were both, substantive offence of larceny and conspiracy to commit larceny.

    Potter Stewart:

    And they were allegedly local civilians who were parties to a conspiracy?

    Oscar H. Davis:

    Yes.

    On review, his sentence was cut down to two years and the fine was eliminated and the United States Court of Military Appeals denied petition for review.

    He brought habeas corpus here in the District of Columbia.

    Meanwhile I should say he was brought from confinement in Morocco here to the United States pending this habeas corpus proceeding.

    The District Court —

    Tom C. Clark:

    What was the maximum penalty that could have been imposed?

    Oscar H. Davis:

    Five years sir, five years.

    He was not discharged by the District Court and he took an appeal to the Court of Appeals.

    Pending his appeal to the Court of Appeals, the Court of Appeals granted him bail since the Spring of 1958 and he has been on bail since that time.

    The Court of Appeals reversed the judgment of the District Court and ordered that habeas corpus should issue.

    It did not do so on the constitutional grounds which were mooted so much before the Court in the Covert case.

    The Court of Appeals held that the statute, Article 2 (11) was inseparable and therefore that – it’s application in the Covert case, having been shown to be invalid, the whole of the Article’s fell and the Court did not have to decide for itself whether it was invalid as applied to this employee charged with a noncapital offense.

    I shall of course argue that was error.

    As the Court recalls, in the Covert case the Court that this Court had before it, two dependants not employees charged capitally and by virtue of the division of the Court, the only decision of the Court in the Covert case was that those two dependants, servicemen’s wives charged capitally could not be constitutionally tried by court-martial.

    As the Court will recall there was no opinion for the Court.

    Mr. Justice Black rendered an opinion which three other Justices joined and I mention to the Court that in at that opinion, Mr. Justice Black reserved the question of whether there might be other people not in uniform and not enrolled or unlisted who would be subject to court-martial jurisdiction.

    Mr. Justice Frankfurter and Mr. Justice Harlan very specifically limited their concurrences to the subject of dependant wives charged capitally.

    So we think that the Covert case leaves open for this Court the question of the coverage to court-martial jurisdiction of all employees, those charged noncapitally as in this case or capitally as in the fourth case to be heard tomorrow.

    And it also leaves open we believe the question of dependants charged noncapitally as will be the situation and the case to be heard immediately after this one.

    Is this your part of argument that upon the limitations on the Court’s holding in Covert (Inaudible)

    Oscar H. Davis:

    We certainly think that that is certainly true.

    Yes I will turn – I will turn immediately to the question of separability which is the ground on which the Court of Appeals went and as the — as the Court knows, this Court has frequently stated that a statute is separable if the invalid parts are not so intertwined with the other parts that they bring the whole thing crashing down like Samson brought the temple down in the Bible.

    But that’s recognized under the code that is consistent with the rest of the (Inaudible)

    Oscar H. Davis:

    The problem of separability, yes.

    But none of them did.

    Oscar H. Davis:

    None of them get, that’s right sir.

    Felix Frankfurter:

    Are you going to draw anything out of them on this subject?

    Oscar H. Davis:

    Yes on the subject I think that the — I think a certain inference could be drawn Mr. Justice.

    Felix Frankfurter:

    Don’t spend much of your time.

    Oscar H. Davis:

    No that both you and Mr. Justice Harlan carefully limiting your concurrences to the situation then before the Court gave certain rise to the — the very great possibility that the statute might be valid as applied in other circumstances not then before the Court.

    Felix Frankfurter:

    Then you can you give me — you carefully limit yourself with what the opinion had limited to itself?

    Oscar H. Davis:

    I’m taking that advice Mr. Justice I go on to the [Laughter] — to the provisions of Article 2 (11) itself.

    The Court in its discussion of separability has indicated that light can be drawn from the wording of the particular statute and also from the presence or absence of a separability clause and the explicitness of the separability clause.

    We have both factors here.

    We have a statute on page three of Article 2 (11) of the Government’s brief which is not a general statute which says all persons abroad, all American nationals abroad shall be subject to court-martial but as a specific statute —

    Felix Frankfurter:

    But where, to take up sides —

    Oscar H. Davis:

    Page three of the Government’s brief, “A specific statute which covers three classes of persons, persons serving with, employed by or accompanying, the armed forces overseas.”

    In Covert the Court was dealing only with persons accompanying the armed forces overseas.

    It was not dealing with persons serving with, or persons employed by.

    Immediately under that in the Government’s brief there is the separability clause which as the Court will see is a very explicit one.

    It has two parts.

    It provides that if a part of the act is invalid other parts that are severable shall remain in effect and then it provides that if a part of the act is invalid in one or more applications, the remaining applications if severable shall be held to be valid.

    So that we think you have the very strong direction and guidance from Congress in this very explicit separability clause and you will also have the very, the carefully delimited or the carefully separated phrasing of Article 2 (11) itself into different categories of persons.

    (Inaudible) acts of a political source applies to this (Inaudible)

    Oscar H. Davis:

    Yes it clearly applies because all the events took place in 1957 after the Act went into effect.

    (Inaudible)

    Oscar H. Davis:

    In 1954 is when he went to — to a — to serve the Air Force but the offense took place in June 1957 and he was court-martialed in August and September of 1957.

    William J. Brennan, Jr.:

    (Inaudible)

    Oscar H. Davis:

    The Grisham case, the last one and I —

    William J. Brennan, Jr.:

    May be the early one?

    Oscar H. Davis:

    That maybe the early one, yes.

    Felix Frankfurter:

    Is the essence of your position that in view of specific severability provisions a segment is given to an applicable severability unless the Court can say that that which fell is so indispensable or indispensably chose inexplicably in this crime is that claimed to remain that you can’t separate them.

    Oscar H. Davis:

    Yes and we would say that you cannot say that here because the categories of the people are different, the history of the relationship of those categories to military jurisdiction is different.

    Felix Frankfurter:

    You have to go a long way to say that Congress has decided it to be opposite?

    Oscar H. Davis:

    Yes Mr. Justice and I am here to say that the Court of Appeals was wrong in doing that.

    One further thing I do have to say on severability is that there is a long and different history of those serving with or employed by the armed forces from those accompanying the armed forces as I shall try to set forth the categories of serving with and employed by, have really been in effect for over two centuries in explicit terms.

    And they were in effect long before the Court Martial Law Revision of 1916 or the Court Martial Revision of 1950, but it was only in 1950 that Congress explicitly put in the category of “accompany.”

    Oscar H. Davis:

    So you would have to say that Congress, in putting in the category of “accompanying,” which — with which the Court dealt in Covert wanted also if that turned out to be invalid on a certain application, to bring down also the old jurisdiction which had been exercised we believe, for over two centuries before the word “accompanying” was inserted in the Court Martial Article in 1916.

    For these reasons, we don’t think that there’s really any substance to the position that the statute is so inseparable that the Court can fail to reach the constitutional issue in this case.

    And there is no other issue aside from severability other than the constitutional issue.

    Our general position on constitutionality is that this statute as applied in this and the succeeding cases stands on Article 1, Section 8, Clause 14 of the Constitution.

    There is a provision for Congress to make rules for the Government and regulation of the land and naval forces.

    I shall try to develop that, but at this point I would like to say that the Court has consistently recognized not only in the recent cases of Toth and then Mr. Justice Black’s opinion in the Covert case, but in the earlier Hawaiian court-martial case of Duncan against Kahanamoku, that persons who are not members of the armed forces, not enlisted or commissioned, do not wear a uniform, can be covered in appropriate circumstances under court-martial jurisdictions.

    Potter Stewart:

    Mr. Davis, is the particular category here — I — it’s under 2 (11) employed by, isn’t it, it’s not serving with.

    Oscar H. Davis:

    Well, it’s both, Mr. Justice.

    People who are employed by are also serving with but the reverse is not true.

    That is a contractor-employee would be serving with the armed forces but he would not be employed by the armed forces.

    In this particular case —

    And this petitioner comes under, you say, each of those two categories.

    Oscar H. Davis:

    Each of those two categories.

    We think that Clause 14 is sufficient to uphold the constitutionality of Article 2 (11) as applied in this case.

    We think that in the light of its history and its purposes, it is unnecessary to invoke the necessary and proper clause.

    But we would invoke it if it were necessary to do so, because we think that the necessary and proper clause does apply to the court-martial Clause, to Clause 14.

    We, of course, believe as the Court indicated in Covert that consideration has to be given to the matter of jury trial and to the Fifth and Sixth Amendments.

    And that the Constitution has to be considered as a whole in determining whether Article 2 (11) is valid as applied in this and the other cases.

    And we have three bases of our argument that the Constitution does permit what was done here.

    And the first is the historical basis with which I shall try mainly to deal.

    And the second is to show that there is a need for this type of military jurisdiction in the world today with American bases and — and posts overseas.

    And that it is appropriate to subject the persons in these cases to such type of jurisdiction.

    And the third half of our argument, the third half is that there are no acceptable alternative methods for dealing with derelictions and crimes committed by these people.

    On the matter of the history and we think the matter of history is significant because it gives content to the constitutional phrase “land and naval forces”.

    We think you determine how, what land and naval forces meant at the time the Constitution was adopted and what it means today by seeing the history as it’s developed since the 17th Century.

    And I should like at the beginning, if I may, to give a general picture or survey of what we think the history shows.

    I have four points to make.

    I’m not certain I will be able to develop each of them as I go along, but I would like at least to put before the Court the four general points that I think are important in this case.

    And the first is, that from at least the middle of the 18th Century, at least the middle of the 18th Century, there has been what I think is a consistent legislation practice covering court-martial jurisdiction of a service connected personnel, service connected personnel particularly employees of the type involved in three of these cases but not solely over those employees.

    There’s been legislation, we think, for two centuries.

    Oscar H. Davis:

    There’s been consistent practice, not every year but over the period of time.

    And the second general proposition I’d like to put before Your Honors is that there was no general hostility at the time before the Constitution was adopted and at the time the adoption of the Constitution and after the Constitution was adopted to this type of court-martial jurisdiction, that is jurisdiction over service connected personnel.

    There was hostility, and this is the hostility upon which our opponents rely almost exclusively.

    There was hostility to the notion of court-martial jurisdiction over inhabitants generally, not service connected personnel, people who were living in the area of a fort or a garrison or around hostilities.

    There was hostility to that kind of court-martial jurisdiction, but there was no hostility, we believe, to court-martial jurisdiction over service connected personnel.

    And further, there was actually so much legislation and so much actual practice of court-martial jurisdiction over civilians as a whole, including service connected personnel witnesses before court-martial and even inhabitants generally, particularly in times of hostilities that we think it cannot be said that there was a — a repugnance or a rejection at the time of the Constitution’s adoption to the notion of civilians being subjected to court-martial jurisdiction.

    We think that that general proposition does not withstand historical analysis.

    Mr. Davis, when you refer to service connected personnel do you draw a distinction between dependents and civilian employees?

    Oscar H. Davis:

    We do not, Mr. Justice.

    I just want to understand what you’re asking.

    Oscar H. Davis:

    I — a plea of these cases do involve employees —

    I understand that.

    Oscar H. Davis:

    — but we do not draw a distinction.

    We think that there are much — many more of greater instances of actual court-martial jurisdiction exercised over employees and there are many more.

    But we think that the exercise of this jurisdiction also goes to show that today, jurisdiction can be exercised over dependent personnel in non-capital cases abroad because of the need to —

    When you refer to history, you encompass in service connected personnel both dependents and employees?

    Oscar H. Davis:

    Yes.

    I do.

    Yes, that’s what I wanted to —

    Potter Stewart:

    Then here the historical analysis as to non-dependents, do you draw any distinction between those employed by the service and those merely serving with them?

    Oscar H. Davis:

    I do not, Mr. Justice.

    Again, I say that the cases we have here are those employed by the services.

    But we think the history does not draw a distinction between those two types of people, but again, there are more instances of court-martial jurisdiction over personnel actually employed by the services than by over other people.

    So there are instances of many instances, I think, of court-martial jurisdiction over employees of settlers and other people who are not directly employed by the Government.

    Potter Stewart:

    Nondependent service —

    Oscar H. Davis:

    Nondependent service connected personnel.

    Earl Warren:

    Mr. Davis, does the history of the situation make any distinction between the type of hostility up to this time?

    Oscar H. Davis:

    I was coming to that.

    Yes.

    That — that — if I may say that’s my fourth point and I will deal with it, Mr. Chief Justice.

    Oscar H. Davis:

    My third point is — if — I would like to stress this because I think that the briefs filed on the other side particularly the Colonel Weiner’s impressive research in the next two cases may obscure the fact that the opponents have not been able to bring forth, we believe, one single affirmative statement of the 18th Century at the time the adoption of the Constitution or before or immediately after contrary to the position we advocate in this case with respect to service connected personnel.

    I repeat that.

    There is no single solitary statement that we know of that withstands scrutiny, which says that employees and service connected dependents could not be court-martialed at the time that the Constitution was adopted.

    There are general statements of hostility to — to court-martial jurisdiction over inhabitants generally.

    Oh yes, there are many of those, but none relating to the particular type of personnel involved in this case.

    The only two that the opponents have brought forth are a statement by Lord Mansfield reminiscing about a matter in Gibraltar in 1738.

    We deal with that in our reply brief which has been filed with the Court.

    And we think we show that in addition to all the other defects at the time Lord Mansfield was talking about, the British parliament had not given court-martial jurisdiction over the — over that kind of treatment at places overseas, but it did some years later.

    It did in the 1750s and 1765 and since that time.

    And the last general point that I come to is the one that the Chief Justice mentioned.

    We think that history does not make a distinction between wartime or hostilities and peace time.

    We think that what the history shows is that the important thing, important factors were two – The direct connection of the person with the armed forces, and two, the need for exercising court-martial jurisdiction over him, particularly the absence of civil jurisdiction at that place.

    The absence of civil jurisdiction runs like the golden thread for two centuries through this — through this entire history, and if I have time perhaps tomorrow —

    William O. Douglas:

    Didn’t England at the time or about the time of the American revolution, I’m a little hazy on this, but didn’t they have a statute that forbade the British law jury from trying in military courts, civilians in the British army who were stationed in this country?

    Oscar H. Davis:

    If there was no civil jurisdiction there, I mean if civil jurisdiction was present.

    At the same time, they had the statute of 1765 which provides that that statute to which Your Honor refers did not apply in Gibraltar and Malta and other places beyond the seas where our form of (Voice Overlap)

    William O. Douglas:

    In America, purely American precedents I remember it.

    Oscar H. Davis:

    I don’t believe that there was any such a statute.

    I think that the general statute of 1765 applied that is where our form of civil — civil judicatures did not extend —

    William O. Douglas:

    In times of peace.

    Oscar H. Davis:

    In all times, yes.

    William O. Douglas:

    It all times.

    Oscar H. Davis:

    In all.

    William O. Douglas:

    Civil employees of the British army in America were not tried — triable by the military, British military, isn’t that —

    Oscar H. Davis:

    If there was no form of civil judicature enforced.

    That is if there were British magistrates around they were not triable, but if — if British magistrates had not gone to — were not in a certain section of the region they were not triable, they were triable by court-martial.

    We believe that that is the — the real, the historical antecedent of Article 2 (11) as applied to situations overseas were, of course, our form of civil judicature does not extend.

    Going back to the question that Chief Justice asked me, we think that it’s —

    William O. Douglas:

    Known that British statute where —

    Oscar H. Davis:

    Yes.

    Oscar H. Davis:

    It’s on page 33 — page 33 and 53 of — of our brief, Mr. Justice.

    Hugo L. Black:

    Original brief.

    Oscar H. Davis:

    Of our opening brief in number 21, yes.

    Felix Frankfurter:

    Are you going to be — are you trying to (Inaudible) arguments —

    Oscar H. Davis:

    I am not arguing — I am not arguing the next two cases, Mr. Justice.

    Mr. Green is.

    I will return for the fourth case.

    And perhaps in view of the light I had better conclude at this point with just one or two more words on the subject of wartime, or peace time, which is an important factor in this case, as the Chief Justice has recognized.

    And that is, though in the later 19th Century, some writers and even some of the judge advocate generals themselves interpreted this exception for which I am arguing as relating to wartime or hostilities.

    We think that that’s a mistake in nomenclature, that the real exception is the need for exercising the jurisdiction because there’s no civil jurisdiction present at the time.

    And of course in the later 19th Century when these writers wrote civil jurisdiction of the United States extended throughout the continental United States.

    Colonel Winthrop and the others did not envisage what would happen after the Spanish-American War of 1898.

    They thought that since American Civil Jurisdiction covered the entire continental United States, there would be no occasion for exercising this in the field type of jurisdiction within the continental United States because there were courts and magistrates everywhere.

    I wouldn’t — I do not believe that they intended to foreclose the Congress from adopting the historical concepts of the new situation which they didn’t foresee but which arose after the Spanish-American War, and particularly after World War II when we had large numbers of forces stationed in technical peace time overseas that didn’t exist in the 19th Century in any extent.

    And I think that the — those decisions and those writings — those — those declarations upon which the other side relies should be limited to the situation of which they were dealing at that time.

    Could I ask you a question? This is a part of the question earlier.

    Since they began to post, has the – have the armed forces have been going right ahead trying noncapital offenses in regular courts?

    Oscar H. Davis:

    The answer to that is this, Mr. Justice.

    They have tried many noncapital offenses.

    They had not tried anywhere near the number of trials that they had before Reading and (Inaudible).

    Let me say this.

    The number of offenses has continued.

    They have not decreased, offenses rather than trials the number of offenses that have been committed, but the number of trials has decreased because the armed forces have exhibited a great deal of restraint in the — in the bringing of these cases to courts.

    What’s happened with the ones who haven’t been tried?

    You mean, they —

    Oscar H. Davis:

    It’s in most cases —

    There’s nothing —

    Oscar H. Davis:

    Nothing has happened.

    In a few cases they may have been tried by the foreign statute.

    Felix Frankfurter:

    Has the selection of cases been according to types of offenses or what?

    Felix Frankfurter:

    What have been the determinants with respect to these?

    Oscar H. Davis:

    I think that there’s been no policy directive within the Department of Defense.

    When this case came up it was decided —

    Felix Frankfurter:

    Local commander or —

    Oscar H. Davis:

    I think under certain guidance from Washington not only by the local commander.

    Earl Warren:

    To what extent, Mr. Davis, have the prosecutions decreased since Covert?

    Oscar H. Davis:

    They have decreased considerably, Mr. Chief Justice.

    As far as we can tell, it’s two years, a little over two years since the Covert case was decided.

    We have the figures from 1957 and 1958.

    Unfortunately we don’t have figures for 1959.

    In 1957, the total court-martial prosecutions were 76.

    Earl Warren:

    Of civilians.

    Oscar H. Davis:

    Of civilians, including both dependents and others.

    Earl Warren:

    I see.

    Oscar H. Davis:

    And in 1958, they were 34.

    Earl Warren:

    But were they before that?

    Oscar H. Davis:

    Yes.

    In 1956, there were 121.

    Earl Warren:

    (Inaudible) is not to be given by (Inaudible)

    Oscar H. Davis:

    No.

    I want to stress — I want to stress, Mr. Justice that the number of offenses has continued, it hasn’t even increased.

    We’ve received the figures on the number of offenses.

    The number of court-martials has decreased but not the number of offenses.

    Hugo L. Black:

    I wonder if — may I ask this question?

    I assume that there are 121 cases that should have been tried each of these years of 1957 and 1958, were the difference between 121 and 34 kinds in the courts of the jurisdiction in which these people were in?

    Oscar H. Davis:

    I would say generally no, sir.

    Some of them may have been, but on the whole they were not.

    They were not tried at all, in other words.

    Potter Stewart:

    This is generally speaking of less serious offenses.

    Oscar H. Davis:

    I think on the whole they were less serious offenses.

    Oscar H. Davis:

    There was one homicide in which we waived jurisdiction to the German Governor.

    They may have included larcenies, Mr. Justice.

    When I say — less serious offenses, I can’t — I don’t mean just reckless driving or exceeding the traffic limit.

    They may have included some minor larcenies or other things of that type, but there were no — certainly no capital cases and no homicides.

    I believe I did let — let go unpunished.

    Hugo L. Black:

    Has the army made a recommendation to Congress that it has authorized (Inaudible)

    Oscar H. Davis:

    The — the matter was under serious consideration.

    Hugo L. Black:

    Have they made any recommendation?

    Oscar H. Davis:

    I believe not.

    Hugo L. Black:

    They have in the meantime broadly increased the laws that they have and the arguments in favor of military trials as opposed to civilians?

    Oscar H. Davis:

    I don’t believe the statutes have changed at all, Mr. Justice since the Covert decision.

    If I may elaborate a bit just on what you said, they did — consideration was given to these subjects within the Department of Defense.

    As I understand it, the solution arrived at was that there was really from their point of view no acceptable alternative, the court-martial jurisdiction of this type.

    And that, they might be compelled by any constitution of adjudication to seek much less satisfactory alternatives, but they did not think that any other alternative —

    Hugo L. Black:

    But aren’t there if there was (Inaudible) as I understand it in the direction not try evidence of crime by civilian code but to increase the arguments and improve the opportunities when expanding the military forces at that time?

    Oscar H. Davis:

    There were no increases in — in military jurisdiction relating to civilians —

    Hugo L. Black:

    And that tells that increase in jurisdiction that they have not, but you say they considered it and they reached the conclusion that there was no alternative except the trial by the army.

    Oscar H. Davis:

    I know of no effort — other efforts, Mr. Justice, unless perhaps you referred to our increased efforts to do historical research spurred on by Colonel Wiener’s on —

    Hugo L. Black:

    (Inaudible)

    Oscar H. Davis:

    I would —

    Felix Frankfurter:

    To put it non-conclusive.

    Earl Warren:

    Mr. Schuchat.

    Michael A. Schuchat:

    May it please the Court.

    It is our position that it is not necessary to reach the constitutional question in this case because it is not possible to separate the unconstitutional portion of the statute from what remains.

    Now in — at page 1 of our brief is set forth Article 2 of the Uniform Code of Military Justice.

    I say that because it’s not set forth at any place else in full.

    And on page 2 of the brief is subparagraph (11) which is the provision involved in this case.

    Subparagraph (11) is plain and unambiguous and in order to retain it, in view of the Covert decision it is necessary to insert word for the word “attention” into the language.

    It is necessary to insert after the words “accompanying” a phrase saying “except in capital offenses.”

    You cannot severe the — the statutory provision by construing a word in the certain way or by deleting words.

    Michael A. Schuchat:

    Now the decision of this Court in United States versus Reese and numerous other cases holds that inserting words in the statute is prohibited since this is legislation.

    It’s not a matter of enforcing the old law, but you would be writing a new law.

    (Inaudible)

    Michael A. Schuchat:

    Yes sir.

    The — further, when you consider the congressional intent, we feel that the — it would seem clear to us that Congress would not want the remaining portion of subparagraph (11) enforced.

    As the Court of Appeals put it, the legislature would not be satisfied with what remains.

    Felix Frankfurter:

    How do we know that?

    How can we tell?

    Michael A. Schuchat:

    Well, concededly, it’s only through inference, but I’d like to say first of all the Covert decision numerically removed 95% of the people made subject to subparagraph (11) when they were charged with the most serious offenses.

    Felix Frankfurter:

    You mean there are more — there’re capital offenses and there are all the rest of the offenses.

    Michael A. Schuchat:

    No Your Honor, there are more, there are 455,000 dependents but only 25,000 civilian employees.

    So —

    Felix Frankfurter:

    But the instance — the incident of capital offenses and each of them divided by the (Inaudible)

    Michael A. Schuchat:

    Well I — I’m sure there are.

    The — there is — I’ve never seen the specific breakdown but of course the — the capital cases are fewer, but the number of people which were removed when they were charged with the capital offense, 95% of those have been removed by the Covert decision and it would seem — it seems to me that Congress would not —

    Felix Frankfurter:

    I still don’t understand though why that’s so.

    Michael A. Schuchat:

    Because they are civilian dependents.

    Felix Frankfurter:

    I mean I understand that, but why — am I wrong in thinking the important thing is how many capital offenses are committed as against noncapital offenses.

    Michael A. Schuchat:

    No Your Honor, you’re not wrong there, but I’m — there are two points, the people who are subject to the —

    Felix Frankfurter:

    I understand that, but even assuming there’re so many worldwide electricians, there are fewer crimes — potentially less than crimes, why commit — after all the (Inaudible) which is not a common profession worldwide, isn’t it?

    Michael A. Schuchat:

    No, Your Honor.

    Now in addition, if there is a congressional intent shown through the statute in the legislative history then all of the people covered by subparagraph (11) should be treated uniformly.

    And this, as a result of the Covert case, you cannot do.

    And further, the Government’s argument in large part of these cases is based upon the practical necessity for having court-martial jurisdiction.

    Now the practical necessity, it seems to me, varies from place to place and depending upon the crime involved.

    It is one thing to say it’s necessary to have court-martial jurisdiction over a wife or an employee in England, let us say, and it’s quite a different thing there than it would be say in Antarctica.

    Similarly, the Government’s arguments for having court-martial jurisdiction to try a civilian dependent or employee for traffic violation are quite different if a security violation were involved.

    These reasons — these policy considerations in how you would redraft subparagraph (11) are of course appropriately left to Congress.

    As the Court of Appeals said in this case, Congress has furnished no guide and no criteria as to how the statute should be broken down.

    And therefore, it seems to me that this is an appropriate case for the following the rule never to decide a constitutional question unless absolutely necessary.

    Michael A. Schuchat:

    Such a decision by this Court would leave the Congress free to rewrite the legislation and include criteria which were related more definitely to the security and discipline and effectiveness of the armed forces.

    But turning now to the — however to the constitutional question, the Government —

    Earl Warren:

    Mr. Schuchat I am at — in that situation all you have is a statute that enumerated certain classes of people who were subject to it and there’s no question as to those people that was — the statute was alright.

    Then they amended the statute and added another classification.

    And the courts held that that additional classification was bad.

    Would that — would that negate the rest of the statute?

    Michael A. Schuchat:

    No, Your Honor.

    I don’t think it would but I’ rather —

    Earl Warren:

    Can we not stop that situation?

    Michael A. Schuchat:

    No.

    No we don’t because the provision where Congress has said who was subject to the Code are some 12 categories and it’s — it’s simply one subparagraph that’s involved here.

    And the — by coding what’s not severable, you don’t do anything to the remaining categories in Article 2 or anything else in the Uniform Code of Military Justice.

    It’s simply this subparagraph (11) jurisdiction.

    Earl Warren:

    It includes what?

    Michael A. Schuchat:

    Persons serving with, employed by, or accompanying the armed forces.

    Earl Warren:

    Yes and I don’t suppose we held that to accompanying him, people accompanying him were not — not included in the statute or could not be included constitutionally.

    Did that necessarily mean that the others could not be?

    Michael A. Schuchat:

    No, Your Honor but that is not the effect of Reid versus Covert because Reid versus Covert doesn’t strike out the word accompanying.

    Reid versus Covert adds to a — that is how you have to read it.

    You have to insert after accompanying except in capital cases.

    You see, you’ve — you have to insert the words of limitation in subparagraph (11) to confirm it to Reid versus Covert.

    If Reid versus Covert had said, “you couldn’t try persons accompanying”, then you are — Your Honor’s question is quite true.

    You would just be striking the word “accompanying”, but that isn’t the situation.

    You have to insert words of limitation into subparagraph (11) to retain it.

    Earl Warren:

    Reid versus Covert didn’t — didn’t say that it could not — that they could try people who are not —

    Michael A. Schuchat:

    Yes, Your Honor I — I —

    Earl Warren:

    — on capital offenses.

    It’s fairly limited to the facts we have there, namely, a capital offense.

    Michael A. Schuchat:

    Well I’m taking the — Reid, that’s quite true and of course my position on this, that you can’t deprive the others either, but on limiting Reid versus Covert to the narrowest ground did not show that there were six justices concurring in.

    Now turning now to the — to the constitutional issue, the Government refers in its briefs to the uniformed personnel and seems to imply that the distinction between Guagliardo and a member of these services is that he doesn’t wear a uniform.

    Michael A. Schuchat:

    At the outset, let me say this is but a small facet of the distinction and probably the least significant is the fact that he doesn’t wear a uniform.

    In almost all of his relationship to the Air Force, Guagliardo was different from airman.

    From the very beginning as a civilian, when he is employed by the Air Force, he takes an oath to discharge the duties of the office of — on which he is about to enter.

    But airman that enlists in the Air Force, he takes an oath to obey the orders of the President and officers appointed over him according to regulations under Uniform Code of Military Justice.

    Now Guagliardo was in Morocco because he wanted to go to Morocco.

    He went there on his own private transportation with an ordinary passport.

    An airman in Morocco was in Morocco because the Air Force sent him to Morocco and he came, of course, by Government transportation without a passport.

    In Morocco, Guagliardo lived in the City of Casablanca in a private apartment just the same as any other civilian in Casablanca.

    The airman lived on the base.

    I should point out that Casablanca is by no means analogous or comparable to the frontier or the wilderness cited in much of the Government’s argument of the early — these early cases.

    Casablanca is a modern city.

    It has courts, policemen, it’s a — and the Nouasseur Air Depot is in proximity to Casablanca very much as the Washington National Airport is to the City of Washington.

    Felix Frankfurter:

    At different bases of the United States throughout the — throughout the world, are there bases where the Government has housing facilities for its civilian employees attached to the —

    Michael A. Schuchat:

    I — I don’t know Your Honor.

    I — I imagine at some places there are though.

    I’m sure that some places —

    Felix Frankfurter:

    You couldn’t make the picture turn on that.

    Michael A. Schuchat:

    No.

    The — I think the — you have to examine the whole relationship.

    Now of course the airman is paid a monthly salary and the salary is uniform throughout the world.

    Guagliardo was paid an hourly rate.

    He got overtime and actually his wage rate varies from place to place throughout the world.

    The Government makes much of the fact that the — Guagliardo’s duties were the same as an enlisted man in the Air Force.

    Now I, of course, concede that the Air Force has electricians, has enlisted men who are electricians that would do the same sort of thing as Guagliardo, but these enlisted men had considerably other duties to perform.

    Besides being an electrician, they are military people.

    They march and they drill and they prepare to fight as the — as the Commander-in-Chief, the President has promulgated the Code of Conduct which says that they are American fighting men, ready to give their life in defense of their country.

    Now you can’t say that about Guagliardo.

    Guagliardo was over there to work as an electrician.

    It’s quite a different relationship.

    Probably the most significant part, distinction between Guagliardo and an enlisted man is that an enlisted man or anyone in the service is constantly under restraint.

    Michael A. Schuchat:

    He cannot come and go as he pleases.

    If he wants to leave the base, he has to get permission.

    Guagliardo on the other hand has a job.

    He comes to work from shall we say 9 to 5.

    Outside of that, his life is his own.

    He isn’t regulated by the Air Force whereas, contrasted to that the airman in the Air Force is regulated.

    Continually he is regulated and he’s continually under restraint.

    He has to have permission.

    If Guagliardo decided he wanted to go fishing, he goes fishing.

    There’s no civil or criminal liability attached to it, he simply takes — takes off and loses a day’s pay.

    If an enlisted man decides he wants to go fishing for one day, he’s absent without leave or he’s possibly guilty of desertion.

    And of course, Guagliardo could, at any time, quit.

    An enlisted man cannot quit.

    Hugo L. Black:

    What’s the difference?

    Is he subject to military court-martial in violations of the military law yet that they do not now have a law that allows the Army to try the persons (Inaudible) could not do this?

    Michael A. Schuchat:

    Well I don’t know how he could desert — he doesn’t have that relationship that — that he could —

    Hugo L. Black:

    What you were saying is that he has the right now, in the law (Inaudible) can go fishing if he wants to and he could also not work, but if the army has the right as court martial subject to military law, that wouldn’t make him subject to same kind of (Inaudible).

    Michael A. Schuchat:

    Well possibly, they could but they would be — he would no longer be — he would have the same status that he — that he has now.

    He would no longer simply be working for the — for the Air Force.

    Hugo L. Black:

    You say the offense — the day it happened that — here.

    Michael A. Schuchat:

    Probably.

    Hugo L. Black:

    And that should be considered as to whether he should be — whether he can be considered and subject to court-martial?

    Michael A. Schuchat:

    No.

    I’m saying this shows that he doesn’t have the relationship to the Air Force such that he should be considered the same as though he were an enlisted man.

    The Government’s argument is that although he’s not a member of the Air Force, he’s so intimately connected and his relationship with them is such that he should be constitutionally in the same position as though he were an enlisted man in the Air Force.

    Hugo L. Black:

    Suppose they amended the regulations and provided that — that he is subject to the punishment and we have two words as we have it (Inaudible) and that he has to be there in a certain hour, if he doesn’t come within time then he is court-martialed.

    Would that change his present status from the arguments you’ve made?

    Michael A. Schuchat:

    What it would seem to me it would.

    It would — it would change him into an enlisted man.

    I — probably —

    Hugo L. Black:

    In fact you would say — you would say then that he’d be the same as an enlisted man and everything but (Inaudible)

    Michael A. Schuchat:

    Well if — if you add a few more things to that, you are making him into a member of the armed forces but he isn’t.

    He — he doesn’t– he doesn’t agree that he will abide by the orders and the regulations.

    All he says he’s going to do what he — joins what he — when he goes to work is that he’s going to work as an electrician.

    He doesn’t agree to —

    Hugo L. Black:

    Does he have a written contract?

    Michael A. Schuchat:

    I — I don’t know, Your Honor.

    I believe there is a civil service form which he signs when he starts work.

    This — it’s —

    Hugo L. Black:

    But that’s not in the record.

    Michael A. Schuchat:

    He — it’s referred to in our brief and that’s the same form signed by all civil service employees everywhere not simply abroad.

    Hugo L. Black:

    As far as the record shows if he sends the employee at will now — now or immediately he starts working (Inaudible) working months?

    Michael A. Schuchat:

    Yes, sir, except —

    Hugo L. Black:

    Is that — is that the status he appears to be in as far as the record is concerned?

    Michael A. Schuchat:

    Except that as he may have certain rights of — under civil service, but that is he might have certain reemployment rights.

    The Air Force, I believe, could fire him at anytime but he — because of a reduction in force in Morocco, but I — he may have certain rights to get reemployed elsewhere if there were a — there were a position open.

    Hugo L. Black:

    That’s because of civil service?

    Michael A. Schuchat:

    That’s because of civil service.

    Hugo L. Black:

    Will he be under civil service?

    Michael A. Schuchat:

    Yes sir.

    He has a wage board classification and he’s a — has permanent civil service status.

    Earl Warren:

    Well, suppose there’s no change in the law and the regulations, but there was a change in the situation and the exigencies of the situation demanded that the security of most of everybody working that would — would have to be under — under discipline.

    Would the army have the right to discipline him under those circumstances and — and compel him to come and go only when they said so, or —

    Michael A. Schuchat:

    Well —

    Earl Warren:

    — or put many hours as the — as the Government of the army required or do a lot of other things that — that would put him in the same category as a — as a serviceman?

    Michael A. Schuchat:

    Well that — they — such a situation might arise and the Government might say that, but he could quit —

    Earl Warren:

    (Voice Overlap) is it likely to arise anytime, isn’t that why they there?

    Michael A. Schuchat:

    No I don’t think so.

    If those situations arose, he would be still be, as a civilian he can quit.

    He can — the army or the Air Force could say, “Now if you’re going to work here as an electrician, you have to do one, two, three, four.

    Michael A. Schuchat:

    And if he was going to continue, he might have to do those things, but he could quit.

    He could say well in that case, I don’t want to be an electrician here.

    I want to go some place else and there is nothing that Air Force could do to him and that’s the big distinction between Guagliardo and an enlisted man.

    An enlisted man can’t say, “I don’t want to do it.”

    Earl Warren:

    But do you think if he was over there and that command was attacked and he was the only lineman that they had that he could say, “Well, I’m not going to do anymore duty as a lineman and leave for home?

    Michael A. Schuchat:

    No sir, because that would be time of war.

    Earl Warren:

    Well it might not be war.

    It might race, or something of that kind to fall short of war, but it might — it might call for a very tight discipline and very tight security for all who are connected with the post.

    Michael A. Schuchat:

    Well I — I don’t think that the time of war category, for instance at Pearl Harbor, it didn’t wait until Congress declared war the next day.

    The civilians were subject to court-martial right away and I think the same situation will be true in the — the same would be true in the situation you pose.

    Earl Warren:

    Well over in that part of the world, they’re not having war, but they are having race on the time which I read in the newspapers and people are getting injured and killed.

    I imagine that sometimes, it calls for a very, very strict discipline on the part of the personnel, wouldn’t this man be — could this man be subject to —

    Michael A. Schuchat:

    Well that now —

    Earl Warren:

    — discipline —

    Michael A. Schuchat:

    Now I think —

    Earl Warren:

    — before the — working for the army?

    Michael A. Schuchat:

    I think that the answer is this.

    There’s one thing, of course, the base commander has authority to regulate things on the base.

    The base commander could say, “If you can’t — we’re going to have a blackout here” where he’s going to turn their lights out or something like that.

    That’s one thing, but it’s quite a different thing to say that the civilian employee can be tried by court-martial for not obeying it.

    The — I — the base —

    Earl Warren:

    Wouldn’t he be telling they have to live on the base?

    Michael A. Schuchat:

    Well — he could make it a condition of his employment.

    Earl Warren:

    Do you think that’s the only controlling of just saying either — either you live on the base or you quit regardless of the exigency of the situation?

    Michael A. Schuchat:

    Right.

    So long as the exigencies did not amount to war.

    Earl Warren:

    Yes.

    But I thought — that’s what I thought —

    Michael A. Schuchat:

    Because —

    Earl Warren:

    — was one of your positions.

    Michael A. Schuchat:

    — because you’re transforming him into what I conceive to be a civilian.

    That that’s of the essence of being a civilian is that he can quit and if you’re — you’re — you’re —

    Hugo L. Black:

    If that’s (Inaudible) as long as you can provide but you can’t (Inaudible) provided the soldiers are these for three years.

    If they are in the civilian realm I don’t think that — that the time will be (Inaudible) is drawing the distinction here if that should be the (Inaudible)