Noyd v. Bond

PETITIONER:Noyd
RESPONDENT:Bond
LOCATION:apartment

DOCKET NO.: 830
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 395 US 683 (1969)
ARGUED: Apr 24, 1969
DECIDED: Jun 16, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – April 24, 1969 in Noyd v. Bond

Earl Warren:

Number 830, Dale E. Noyd, petitioner versus Charles R. Bond Jr., et al.

Mr. Karpatkin.

Marvin M. Karpatkin:

Mr. Chief Justice, may it please the Court.

The essential question of this case concerns the right of a convicted serviceman to a meaningful appeal.

More specifically, it concerns the power of a military commander to order the immediate confinement of a serviceman convicted by general court-martial and sentenced to a bad conduct dismissal from the service or confinement of one year or more and in title thereby to certain valuable appellate rights to sentence — to order his immediate confinement not withstanding the explicit provision of Article 71 (c) of the Uniform Code of Military Justice which prohibits execution of such sentences prior to the completion of military appellate review.

Under the existing practice of confinement, pending completion of appellate review, the entire sentence may be served prior to final appellate action and the guaranteed right of appeal from serious convictions in the military will be rendered meaningless.

The military and the Government assert this power on the basis of an overstrained conceptual distinction between confinement, pending completion of review and confinement after final approval of sentence.

This right is asserted further in violation of military law without regard to whether or not confinement is necessary to ensure the prisoner’s presence after completion of appellate review.

This is a habeas corpus case and it presents the question of a power to confine a military prisoner prior to the completion of military review in two contexts.

First, the power to confine him at the United States Disciplinary Barracks at Fort Leavenworth, Kansas, a maximum security institution.

And second, the power to confine in a unique status of confinement at Cannon Air Force Base, New Mexico which was especially devised with petitioner after an order attempting to transfer him for confinement of Leavenworth was declared unlawful by the district judge in New Mexico.

There is however a threshold question of habeas corpus jurisdiction raised by the Tenth Circuit’s reversal of the District Court on grounds of alleged failure to exhaust military remedies.

After the decision of the Tenth Circuit when certiorari application was pending in this Court, an application was made to the Circuit Justice for release from confinement pending certiorari.

It was denied first by the Circuit Justice, further application was made in Mr. Justice Douglas and it was granted on December 24, 1968.

In his order, granting the application for release from confinement pending certiorari, Mr. Justice Douglas specified two issues related to exhaustion.

First, whether the doctrine of exhaustion of military remedies applies where the habeas corpus petitioner does not challenge any purported error in the court-martial proceedings themselves.

But rather whether the question — where the question is whether the court-martial convening authority, in this case, the respondent General Bond acted beyond his jurisdiction in attempting to order confinement prior to completion of military appellate review and violation of Article 71 (c) UCMJ.

Also specified by Mr. Justice Douglas in his opinion is the question of the respective scope of review by the Court of Military Appeals and the federal courts on military habeas corpus applications of this nature.

It is necessary to state the facts a bit, may it please the Court in order to indicate the dimensions of the problems involved in this case.

Petitioner, a captain in the Air Force was convicted by a general court-martial at Cannon Air Force Base in New Mexico on March 8, 1968 for violation of Article 90 of the UCMJ.

He was accused and convicted of willful disobedience of a lawful order.

The order he was convicted of violating was that he fly an instructional mission with the student pilot being trained for combat duty in Vietnam.

The principle defense which was sought to be raised of general court-martial was that he had previously applied for classification as a conscientious objector and either separation from the service or reassignment to duties not inconsistent with this conscience that his application was denied because of an error of law on the part of the Secretary of the Air Force and those officers acting in the name of the Secretary of the Air Force.

The error which was alleged was the secretary’s denial of a claim because Captain Noyd was a selective conscientious objector and not a universal pacifist.

I must observed that even though this issue wasn’t before the Court that this is not a wholly frivolous contention as demonstrated by the recent decision of Judge Wyzanski in the Sisson case in the District of Massachusetts which I understand the Solicitor General was taking a direct appeal on to this Court.

However, petitioner was unable to raise that defense that is general court-martial.

The law officer held that the general court-martial was without jurisdiction and the board of review which heard the first appeal from the conviction specifically held that only federal courts had jurisdiction.

The case is now pending in the Court of Military Appeals and will be argued sometime next month.

The criminal proceedings at the general court-martial and the futile attempt to appeal there from where Captain Noyd second unsuccessful attempt to obtain judicial review on whether the secretary’s denial of his conscientious objector application was lawful or unlawful.

The prior attempt was in the case of Noyd against McNamara where the District Court of Colorado and the Tenth Circuit held without reaching the merits that they were jurisdictionally barred from ruling because again the doctrine of exhaustion of military remedies barred them, they so held.

Marvin M. Karpatkin:

And they stated further and the Government so argued before those courts that whether the application for conscientious objection was rightfully or wrongfully denied could not be judicially reviewed in the civilian courts but only as a defense to a court-martial.

And involving as it does the necessity of disobeying an order and raising the issue was wrongful denial.

Certiorari was denied by this Court in Noyd against McNamara in December of 1967.

Thus, the civilian courts directed petitioner to raise his defense in the military courts and the military court said in turn that only the civilian courts had jurisdiction.

The sentence of the general court-martial imposed March 9, 1968 was for dismissal from the service total forfeiture of all pay and allowances and one year’s confinement of odd labor.

On that day, the day the sentence was imposed, petitioner was ordered into immediate confinement at the quarters which he had in Cannon Air Force Base as a senior captain on the list for promotion to major from which list he was removed after he filed the CO application.

He was entitled to reasonably comfortable officer’s residence on base with wife and two infant children.

On May 10, 1968, the convening authority of the general court-martial, the respondent General Bond approved the court-martial findings and sentence and ordered petitioner confined that the Disciplinary Barracks at Fort Leavenworth, Kansas pending the completion of appellate review.

The appendix contains info general court-martial order number 13 which sets forth the convening authority action.

The attempts to implement the convening authorities Leavenworth confinement order led to the instant proceeding.

Potter Stewart:

Who or what was the convening authority, was that the commanding general or?

Marvin M. Karpatkin:

It depends on the —

Potter Stewart:

In this case?

Marvin M. Karpatkin:

— special line of the level of command, Your Honor.

It wasn’t his immediate commander —

Potter Stewart:

In this case?

Marvin M. Karpatkin:

— but it was the first commander who had court — in general court-martial convening authority; the Commander of 12 Air Force, General Bond.

A habeas corpus petition was filed immediately in the District Court of New Mexico.

Judge Paine acted promptly, he should stay immediately, there was no return by the Government to the habeas corpus petition, no request for additional time in which to file a return.

It was argued and presented purely as a question of law.

There was a hearing within a matter of days briefs and oral argument decision from the Bench on May 23rd written opinion on May 24th which is set forth in the appendix to the effect that Article 71 (c) was violated by the attempted confinement of petitioner at the Disciplinary Barracks of Fort Leavenworth.

However, Judge Paine declined to order complete release from petitioner’s then status of arrest in his residence.

Both sides appeal to the Tenth Circuit.

Early in June of 1968 while the appeal was pending, petitioner and his family were evicted from their residence and special conditions of confinement was setup for petitioner.

He was ordered to move to a room specially prepared for him and the visiting officers quarters and conditions were established which I can best characterize as being a hybrid having certain characteristics of arrest, certain characteristics of imprisonment, and certain characteristics of solitary confinement.

It was arrest in that or at least had resembled arrest in that and there was no lock on his door and he was allowed use of the telephone or TV set of his expense.

It was imprisonment and that all of his activities were strictly regulated.

He was subject to surveillance by Air Force Security Police, permitted to leave his room for meals, chapel or laundry but only under condition similar to those where by a penitentiary prisoner could leave his cell to obtain these services elsewhere in the penitentiary complex.

However, it also had certain attributes of solitary confinement and that posted on his door was a huge sign “Room off limits to military personnel.”

He was not permitted to have exercise except for one and a half hours per week with an approved officer and denied the opportunity of contact with other human beings, fellow prisoners or otherwise which even inmates of the Disciplinary Barracks unless they are in solitary confinement.

Marvin M. Karpatkin:

This unique hybrid status continued from June of 1968 to December 24, 1968 when he was ordered release from confinement by order of Mr. Justice Douglas.

In the interim, the board of review affirmed the court-martial conviction and the Tenth Circuit reversed the District Court of New Mexico in this habeas corpus proceeding.

The Tenth Circuit did not consider the merits.

We respectfully suggest by the citation of cases in footnote 4 of its opinion which is printed in the appendix.

It appears to agree with petitioner’s position that 71 (c) was violated.

The Tenth Circuit held however that it was jurisdictionally barred from ruling once again because of the doctrine of exhaustion of military remedy.

But since petitioner is in confinement, he is entitled under Air Force regulations to credit for good time, he was.

A one year sentence less good time was computed to expire on the 26th of December 1968.

Potter Stewart:

But wouldn’t that be true whether or not he had been in confinement under the provisions of 57 (b)?

That sentence begins when the confinement begins to run and sentence to confinement begins to run as soon as that it is imposed.

Marvin M. Karpatkin:

Mr. Justice Stewart, the sentence doesn’t indeed begin to run.

Potter Stewart:

Whether or not he is confined?

Marvin M. Karpatkin:

Yes, but apparently it took a special ruling from the Judge Advocate General in this case to decide that Captain Noyd was entitled to the time credit and I believe the Government so states in its brief.

Potter Stewart:

Well, —

Marvin M. Karpatkin:

We contend of course —

Potter Stewart:

— so yes, there is yes?

Marvin M. Karpatkin:

Yes, of course.

Potter Stewart:

Yes.

Whether or not he is confined, the sentence begin (Voice Overlap) the sentence finally begins to ran and he is entitled to good time from the —

Marvin M. Karpatkin:

I don’t know what position the Government would take on that.

We take the position of course that he is entitled of good time.

Potter Stewart:

Oh, I understand the Government in the brief is not only to take that position or concede that position but urged that position.

Marvin M. Karpatkin:

Yes, sir.

Potter Stewart:

Everybody confine so it’s — the fact he was confined has nothing to do with the computation of his good time.

Marvin M. Karpatkin:

All that I can say to that Your Honor is that they appears to be nothing specific in Air Force regulations on that point and it required a specific rulings form the Judge Advocate General.

Consequently, because of the possibility that the sentence would expire with good time allowance prior to this Court’s action on the certiorari petition, it was accompanied by release application to avoid the possibility of mootness and I stated before Mr. Justice Douglas on December 24, 1968 granted the application.

In response to the certiorari petition however, the Government submitted a memorandum suggesting mootness and then a further supplemental memorandum further arguing mootness and said, nothing whatsoever in our position to the merits of the case.

However, on January 20, 1969, certiorari was granted and Mr. Justice Douglas’ stay order was specifically continued by this Court.

Now, it is hard to tell if the Government’s continuing to seriously present mootness argument.

It first seemed to argue in the two memoranda which were submitted and Mr. Justice Douglas was without power to interrupt the termination of the sentence.

Marvin M. Karpatkin:

Now, apparently it concedes that Mr. Justice Douglas had the power but it argues what that it is unclear whether Mr. Justice Douglas intended to interrupt the sentence.

With all due respect I suggest that argument is fatuous.

Petition is concerned about mootness was made very, very clear and the release applications presented at first to Mr. Justice White and later to Mr. Justice Douglas.

And obviously, the members of the Court who read it were aware of it.

Now, in the brief presented in this Court, the Government position is somewhat schizophrenic.

One place saying that it is moot, in other place saying maybe it isn’t moot.

And then finally, concluding saying it’s all up to what Mr. Justice Douglas intended and then there is a reference to the decision of this Court in I. L. A. against Philadelphia Marine Trade which reversed the contempt order because in accordance with the decision of this Court.

It was unintelligible, too vague to be understood and defies comprehension.

I respectfully suggest that this characterization to Mr. Justice Douglas is ordered by the Government is completely uncalled for.

If I may reach the preliminary question in this case, the question of exhaustion of military remedies, the Court of Appeals denied relief we hold improperly on grounds of the legislative exhaust military remedies.

The decision of the Tenth Circuit was based on one decision of this Court, Gusik against Schilder in 1950.

I have not been able to find the single instance where the doctrine of Gusik and so many words has been reaffirmed by this Court since then and it has apparently however been held inapplicable in military habeas corpus cases which do not attack court-martial proceedings per se but rather question military jurisdiction.

Abe Fortas:

Well, I’m sorry but I don’t quite get your answer to the Solicitor General’s principle argument on mootness as I understand it which is — that sounds has expired and terminated and the show is over, isn’t that right?

Marvin M. Karpatkin:

That’s what the Solicitor General argued.

Abe Fortas:

Now, what is your reply to that?

Marvin M. Karpatkin:

That first the sentence has — the reply is twofold.

First, that any justice of this Court just as the entire Court has the right to interrupt the sentence for the purpose of preventing the cause from becoming moot and I believe the Government concede to that power —

Abe Fortas:

And you say that just as Mr. Justice Douglas’ order did that?

Marvin M. Karpatkin:

Yes, Your Honor.

Abe Fortas:

How?

Marvin M. Karpatkin:

By ordering that the petitioner be released from confinement.

Abe Fortas:

But under the rule, criminal justice I understand it that the computation of the amount of time that the man has served does not depend on whether he is or he’s not in confinement.

That’s the rule that Justice Stewart is talking about.

Marvin M. Karpatkin:

Yes, Your Honor.

Abe Fortas:

57 (b).

Marvin M. Karpatkin:

57 (b), Your Honor, Article 57 (b) does however provide that time shall not be credited where the sentence is suspended.

Now, the manual for court-martial which has the —

Abe Fortas:

Well, now what suspended the senate as to — that’s not the same thing as releasing a man from confinement, is it?

William O. Douglas:

It says the sentence to confinement.

Marvin M. Karpatkin:

The Article 97 — paragraph 97 (c) of the manual for court-martial which appears in our brief sets forth a series of circumstances where a sentence is considered suspended.

Marvin M. Karpatkin:

And there are — it is evident from the text of the language itself that these were not intended to be an exclusive cataloging.

97 (c), Mr. Justice Fortas, is on pages 6 and 7 of petitioner’s brief.

Now, one of the specifications in this concededly none exhaustive listing is period during which the person undergoing such a sentence is erroneously released from confinement upon his petition for writ of habeas corpus under a court order which is later reversed by competent tribunal shall be excluded in computing the service of the time of the punishment.

The — if I may proceed with the argument on exhaustion, the — there is great significance here in the decision of the Court of Appeals for the District of Columbia affirmed by this Court and the case of United States ex rel. Guagliardo against McElroy.

It was specifically held there that the rule of exhaustion does not apply where military jurisdiction is challenged.

Petitioner in this case is not making a habeas corpus attack on the many errors which he believes occurred in the court-martial.

He is content to exhaust all of his military remedies for that purpose.

Habeas corpus here is sought so that if the errors are redress on appeal he will not have been deprived to that redress by intervening confinement.

When the convening authority, the respondent General Bond attempted to confine Captain Noyd in violation of Article 71 (c), we contend that he acted beyond his jurisdiction.

He certainly had jurisdiction to convene a court-martial to try Captain Noyd.

He had jurisdiction to confine him if the determination was made that it restraint was necessary to insure his presence.

He had jurisdiction to confine him after completion of appellate review but he was totally devoid of jurisdiction to confine prior to the completion of appellate review.

If I may respectfully suggest the entire doctrine of exhaustion of remedies are subject to continuing reexamination these days.

Because of it sometimes wouldn’t application causes rendering — renders the right remediless.

As this Court observed in the case of NLRB against Marine Workers as a result of the region application of the doctrines sometimes the litigant becomes exhausted instead of the remedies.

Our brief cites large number of cases where courts have not required an exhaustion where one, the imposer of sanctions acted beyond his jurisdiction.

Two, the administrative remedy or the remedy which is said one should exhaust is inadequate where the delay of the exhaustion process would cause irreparable injury or where the attempted exhaustion would be a futility.

Indeed, if I may respectfully suggest further that perhaps the entire doctrine of exhaustion of remedies arose and an administrative of law context and an error at 20, 30, 40 years ago when there was an atmosphere of administrative omnipotence.

Our feeling, I believe communicated to me impart when I went to law school that all of the nation’s problems could be solved by administrative agencies and the administrative process and let’s keep the courts out.

But now on a sober second look, the courts are increasingly recognizing and this Court that the judicially developed doctrine of exhaustion of administrative remedies very often causes injustice and must be disregarded where it would cause in justice.

With specific reference to the suggested remedies by the — in the opinion of the court below, it was first suggested that perhaps the normal appellate process should be use.

For the normal appellate process in this case would obviously been ineffective because of a laps of many months between conviction and appellate decisions.

We cited in our brief a number of cases where that was in fact the case.

And I cited that just on a review generally of one volume of a court-martial reports many cases where found where the Court of Military Appeals reverses the conviction only to find that the entire time of confinement has already been served.

Well, it was suggested that an extraordinary writ application should be made to the Court of Military Appeals.

We suggest that this is an inappropriate for number of reasons.

First, of all the Court of Military Appeals which only recognize that it had such jurisdiction within the last year or so would have an extraordinary strain placed on its facilities.

It’s a three-judge appellate tribunal sitting in Washington.

It can handle only a handful of the cases that are presented to it for review.

If it was the court of original and exclusive jurisdiction of military habeas corpus applications for more than 100 federal districts in the territorial United States and in the states which are — and of the States of Alaska and Hawaii and the territories and possessions as well that will be just impossible for the Court of Military Appeals to handle such a law.

Marvin M. Karpatkin:

Furthermore, the nature of habeas corpus as this Court instructed in Johnson against Eisentrager requires the personal presence of the individual of the habeas hearing would obviously be impracticable to place upon the military of this requirement of producing a military prisoner in Washington whenever an application — a petition for writ is filed.

Also, there will be grave difficulties in the face of military prisoners attempting to secure counsel to represent them and if the only place they can appear is the Court in Washington DC.

It’s hard enough for a serviceman to get an attorney willing to bring a petition for writ of habeas corpus in the federal district court.

It will be well impossible to find one ready willing, able, financially equipped to come to Washington.

Then with respect some mention maybe made of the hesitant quality of the practice of the Court of Military Appeals on extraordinary writ applications.

Although, it has asserted that it has the right that is most significant that it is not yet found the occasion to exercise it.

Obviously, the evolution of a new jurisdictional base takes time and it’s only to be welcome that the Court of Military Appeals is asserted that it has its right but it would certainly be ineffective and impracticable to say that if this time in history, the Court of Military Appeals stands ready to listen to and grant relief and habeas corpus applications from military prisoners all over the country.

I might further say that the Tenth Circuit’s narrow jurisdictional position requiring exhaustion of every conceivable military remedy has caused an apparent conflict between the circuits.

The decisions of the Tenth Circuit in Noyd against McNamara and Noyd against Bond which refuse to consider the merits because of the doctrine of exhaustion of military remedies are directly contrary to the decisions of the Second Circuit and the Fifth Circuit and the Third Circuit which we cite in our brief.

Furthermore, there are large number of cases which the Government does not in anyway seek to explain where federal courts on habeas applications did not require application to the Court of Military Appeals but ruled on the merits.

The Government’s position likewise cast doubt on the recognized practice of utilizing habeas corpus without any requirement of exhaustion in the Court of Military Appeals to test the validity of the induction order and also the validity of an in-service denial of conscientious objector claims for draftees as well as for enlistees.

Finally, if I may turn to the merits of this case which I respectfully suggest present as clearer cases as we say in the brief.

Has there been a violation of Article 71 (c) in this case?

It might first be observed that we are not attacking the military process, we’re not attacking the military appellate process by any means.

Indeed, we regard ourselves as the champions of it.

Our position supports the integrity of the military appellate process for if a commanding officer can effect a de facto execution of a one year prison sentence prior to the completion of the military appellate process in direct violation of an act of Congress, the integrity of the appellate process is serious we compromise if not destroyed.

Our brief traces the development of the military appellate process from the Articles of War, the UCMJ in 1951 and suggest that one of the essential elements in the development of greater rights for the serviceman is the development of further and more refined appellate jurisdiction that the history — part of the history of increasing due process has been the providing of a gap of a space between the Court of First Instance, between the original action and final review by a higher appellate authority.

The consistent interpretation of Article 71 (c) which we have catalogue in a long list of cases in our brief does not show a single instance where the Government’s argument that it can confine prior to the completion of military appellate review in the absence of necessity to secure presence and the Government cites no cases.

At the very least, Judge Paine in the District of New Mexico was right when he held that confinement of Leavenworth would in effect constitute in part at least execution of the sentence.

The only case contrary, the decision of the District of Kansas in Levy against Dillon is a contrary interpretation to 71 (c).

It is now on appeal to the Tenth Circuit, we respectfully suggest that Judge Paine was right and that the District Court of Kansas was wrong.

A distinction is attempted to be made by the Government between the treatment of adjudged prisoners whose sentences have not been finally approved and sentenced prisoners whose sentences have been finally approved.

But we respectfully suggest that the Air Force manual for the guidance of prisoners, the manual applicable to the Institution of the Disciplinary Barracks shows no significant difference whatsoever.

No difference in treatment of male all of which is subject to opening an inspection, I respectfully suggest there’s an error in the footnote in the Government’s brief, no differences in uniform regulations, no differences with regard to visiting, no differences with regard to library privileges and so forth.

It is suggested that there is one difference and that adjudged prisoner is not compelled to work but the manual requires that they be encouraged to do and in fact most of them do so.

However, even if there is a difference in this one area, the essential characteristics of confinement in a maximum security military prisoner are applied equally to adjudged and sentenced prisoners.

There are bars in the windows, there is control of hours of meals, sleep and all other activities, constant surveillance by armed guards, restriction of reading matter, restriction of visitors and the whole host of other specifications in the Leavenworth Manual which we cited in our brief.

I’ll save what time I have remaining for rebuttal, Mr. Chief Justice.

Earl Warren:

Mr. Springer.

James Van R. Springer:

Mr. Chief Justice, may it please the Court.

James Van R. Springer:

Captain Noyd’s Air Force career has in fact given rise to a number of difficult questions about the Government and regulation of the Armed Forces.

Mr. Karpatkin enumerated some of the history of the litigation in which he has been involved.

His principle claim concerning the alleged impropriety and the denial of conscientious objector status to him is now before the Court of Military Appeals.

It may well return to the civil courts and it may well return here but those questions are not involved in the case that is here now.

In contrast, this case involves at bottom what is a rather narrow and highly technical question of military penology.

The nature of the restraints that the Uniform Code of Military Justice permits the military to put upon a serviceman after a court-martial conviction and while he’s in the process of exhausting his military rights to appeal.

Fortuitously, this case comes here with Captain Noyd as the defendant but it might as well have been a more conventional serviceman charged for the routine military offense and of course it’s important to recognize that the legal principles for which the petitioners arguing here are principles that would apply across the board in military cases to any military defendant whether he was charged with desertion or murder or any other crime that could appropriately be tried by a court-martial.

Potter Stewart:

Are there differences — any difference is made by the Uniform Code of Military Justice in this area between officers and enlisted men?

James Van R. Springer:

I believe not in the Code.

In the regulations, there are certain more or less technical distinctions in the treatment that may be given to an officer as distinguished from enlisted man at any particular point.

This of course arises out of the time on distinctions that have existed in the services in those regards.

In our brief and in our —

Potter Stewart:

But these provisions we’re dealing with here primarily are applicable throughout the —

James Van R. Springer:

The general applicability.

Potter Stewart:

— Air Force?

James Van R. Springer:

Yes, throughout the Air Force and of course throughout all the services because it is a Uniform Code.

In our brief and in our submissions, in response to the petition for certiorari, we have raised the suggestion that this case may have become moot because of certain technical rules in the code relating to the service of confinement to the service of military sentences to confinement.

I would suggest unless the Court desires otherwise that we simply refer the Court to what we have said in our brief.

I think there’s a little more that can be said.

In any event, there seems to be agreement on the fact that at the most, Captain Noyd has two days remaining to serve on his sentence to confinement.

William O. Douglas:

Before you leave that question counsel, does it not turn on the last, a part of Article 57 (b) but the periods during which the sentence to confinement is suspended shall be excluded in computing the service?

James Van R. Springer:

I think certainly if the sentence were in fact suspended Mr. Justice Douglas by your order.

William O. Douglas:

Yes, the sentence to confinement?

James Van R. Springer:

Yes, if that have been the effect I think it would certainly follow that the case is not moot and there are two days remaining.

I might just point out in that regard that a recent amendment to Article 57 (b) that is not applicable here but which will become applicable on August 1st of this year.

It does perhaps cast some light on what the meaning of suspension is.

That amendment for the first time introduces something approximating bail in the military and says that a commanding officer may defer service of a sentence to confinement.

And the sentence in the existing Article 57 (b) to which you have referred Mr. Justice Douglas is now amended to read effective August 1, 1969 that periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.

So I would suggest for what it’s worth that that is some perhaps after the fact indication by Congress as to what suspension may have meant.

Abe Fortas:

What do you introduce from that with respect to this case?

James Van R. Springer:

That that the release from confinement is not tantamount to a suspension within the meaning of Article 57 (b) as it reads effective August 1, 1969 or effective in Noyd’s case.

Thurgood Marshall:

Mr. Springer, what’s the reason for serving his sentence while this case is on appeal?

James Van R. Springer:

Is the question, why should the man be in confinement while he is —

Thurgood Marshall:

Why should he be serving his sentence which is on appeal?

James Van R. Springer:

Well, perhaps I have to break that down.

If there are — as there are in the civilian courts of course, provisions allowing a man to be in prison or in confinement pending on appeal.

Thurgood Marshall:

I don’t know of any provision in the civilian court that requires that he stay in prison.

James Van R. Springer:

No and of course we’re not suggesting that the army is required to keep him in prison.

Basically, our position —

Thurgood Marshall:

They did in this case?

James Van R. Springer:

Yes.

Is that act in the case of the civilian trial, there is discretion.

Thurgood Marshall:

But why?

Why in this case?

James Van R. Springer:

Well, there are number of elements that could go in to the commanding officer’s exercise to this discretion, one that has been suggested and conceded by Mr. Karpatkin is the desire to avoid flight.

There are — well the Bail Reform Act of 1966 states as to civilian criminals that in addition to that reason a danger to the community maybe (Voice Overlap).

Thurgood Marshall:

And then what’s danger of fleeing a military installation?

Why couldn’t he be confined to the camp?

James Van R. Springer:

That certainly is what — would be a factor to go into the military commanding officer’s discretion.

I think and my only point here is that there is a discretion, well —

Thurgood Marshall:

My final question is, this case it’s now in the Court of Military Appeals if the petitioner wins he just lost a year or is that a present, am I right?

James Van R. Springer:

Well, of course, he has at the most two days Mr. Justice left to serve on his sentence.

In any event, he has been under an obligation to the service to stay in.

Thurgood Marshall:

No, I said if the they find that he was not convicted legally under the Military Code?

James Van R. Springer:

It is certainly true that in a sense it’s then retroactively no reason for him to have been confined while his appeal was pending.

Of course the — it’s (Voice Overlap) to which civilian criminals are also subject.

Byron R. White:

I thought your instruction of the Military Code was at the sentence run whether he was confined or not?

James Van R. Springer:

Yes, that’s correct Mr. Justice White.

Byron R. White:

Unless there is some foremost suspension of sentence?

James Van R. Springer:

Yes.

James Van R. Springer:

I might suggest which is that he has of course been under some restraints.

Byron R. White:

Well, I know but Mr. Justice Marshall asked you what is the reason for the provision that saying that sentence runs whether you’re confined or not.

Now, let’s assume the case where he is not confined at all on appeal the sentence still runs, why?

James Van R. Springer:

There are number of reasons perhaps there are peculiar rules about the computation of sentences within the service, pretend there are no concurrence sentences.

Byron R. White:

This is one peculiar rule I think that you’re saying and that law seems to say that it just runs —

James Van R. Springer:

Yes.

Byron R. White:

— at the time it’s imposed period whether it’s — whether he is confined or not.

James Van R. Springer:

Yes.

Well, I —

Byron R. White:

Well, why is that?

James Van R. Springer:

This maybe an element of equity that there are no concurrent sentences.

It maybe also that it is in fact I think probably less easy to be released on — to be relieved for serviceman to be relieve of confinement while his appeal is pending under the rules on the manual court-martial that apply here, for that reason it maybe appropriate to say that there is credit in fact.

I must say that this is a question of judgment.

Byron R. White:

Are you really assuming, are you really — what you’re really suggesting that is the sentence runs when he’s confined but it doesn’t run on the other?

James Van R. Springer:

No, it runs one way or another and of course there are these technical problems as to what is confinement and what is not.

We say that in fact the status in which Captain Noyd was though it was undoubtedly unpleasant to him and restricted —

Byron R. White:

Well, what difference does it make for purposes of your mootness argument?

It doesn’t make any difference at all.

James Van R. Springer:

Whether he was in fact confined or that is true and I think there’s no question in whatever that that whatever the reason maybe Article 57 (b) does make a sentence run.

No matter what the treatment —

William O. Douglas:

(Voice Overlap) Well, if 57 (b), why not earlier?

It refers to the suspension of a sentence to confinement and that suspension without sentence to confinement told that the length of the term.

James Van R. Springer:

Yes, but we say certainly in the ordinary case the fact of the matter is not in restraint, does not, is clearly not amount to a suspension.

Now, there is a (Voice Overlap) different question.

Byron R. White:

His confinement which he was sentenced here.

That sentence he was sentence to confinement for a year, wasn’t it?

James Van R. Springer:

Yes, he was.

Byron R. White:

Now that sentence to confinement couldn’t — it couldn’t be executed so called, could it?

James Van R. Springer:

Yes, could not be executed until after the military of that review was —

Byron R. White:

Now, that means he couldn’t be confined?

James Van R. Springer:

He could not be confined at hard labor.

Byron R. White:

Yes, and he couldn’t be confined at hard labor until there has been an affirmance?

James Van R. Springer:

Yes.

I suggest —

Byron R. White:

But, nevertheless until there’s affirmance it’s assumed that he is serving it?

James Van R. Springer:

Serving at only in the technical sense that he receives credit for it not serving in any — in the sense of what he is compelled to do.

We do not derive any —

William O. Douglas:

Well, my order however it may be viewed at this time seems on the face to address itself to the problem of confinement?

James Van R. Springer:

Yes, and of course that is the basis of our mootness argument that confinement and service are in this peculiar code we’re dealing with different things.

We have also urged that the Court of Appeals was right in creating the merits of Captain Noyd’s claim is improperly before the civil courts because of his failure to exhaust the remedy in the military courts that was clearly available to him at the time that he came to the civil courts.

This is an important point, it’s one I would like to return to but I think perhaps it would be helpful if I discuss the merits even though we have two reasons for saying why the merits should not be reached.

I think it perhaps it will put the case and better focus.

Mr. Karpatkin’s argument, at least orally, rests largely upon his interpretation of Article 71 (c) of the Code which is the provision that prohibits the execution of a sentence until it has been completely reviewed by the military courts and in the case of an officer such as Captain Noyd by the Service Secretary.

He says that for this reason the order directing that Captain Noyd be sent to the special officer facilities at for Leavenworth was an improper order.

I think the first thing that should be said about that is that whatever else may be moot in this case certainly the order sending Captain Noyd purporting to send Captain Noyd to Leavenworth is now moot.

The regulations that govern such matters make it clear that no man can be sent to a Disciplinary Barracks unless he has six months remaining to serve on his sentence.

Now, even if this case is not moot, it appears to be a great that there are only two days left.

So, for that reason, I think that the Leavenworth order which has been suspended is ever since it was shortly after was issued by the order of the District Court and to stay by the Tenth Circuit of its mandate.

I would suggest that that order is not as a practical matter in issue in this case.

William O. Douglas:

It wasn’t restored after the District Court order was vacated?

James Van R. Springer:

No, Mr. Justice.

The District Court said, don’t send him to Leavenworth but do whatever else you want this Tenth Circuit reversed that and said that the case should not have been entertained but has state its mandate pending this Court’s action so that order has remained unfair.

In any event —

Potter Stewart:

Didn’t the convening authority withdraw that order then there is something here?

James Van R. Springer:

No, I believe not as technical matter Mr. Justice Douglas.

There have been certain subsequent orders about the confinement that has in fact taken its place.

Potter Stewart:

That one has never actually withdrawn by the original (Voice Overlap).

James Van R. Springer:

No, it’s simply by operation of the Court’s Order.

In any event, we would suggest as we point out in our brief that the District Court’s disposition of the Leavenworth order reflected either a misunderstanding again of what is highly technical provision in the military law as to what execution is or else perhaps in this matter is not discussed very in much detail in the District Court’s opinion, a misunderstanding of the nature of the confinement to which Captain Noyd would have been subjected had he been at Leavenworth.

There are in fact separate facilities with very separate treatment for officers awaiting appeal, they’re very separate and different from the facilities and treatment they are given to regular prisoners at Leavenworth.

James Van R. Springer:

It has been the standard practice to send so-called adjudged officers awaiting appeal to Leavenworth rather than retaining them at their basis because of the special problems that the status of an officer creates with respect to restraints on his base.

This has been upheld in the case of Captain Levy and we submit that it was not an abuse of discretion or an execution the sentence in this case.

But as I’ve said, I don’t think we have to reach the Leavenworth order.

So that reduces the case on the merits if the merit should’ve been reached to the petitioner’s claim that the restraint to which he was subjected at Cannon Air Force Base where he has been stationed at the pertinent times exceeded what the Uniform Code of Military Justice permits.

I believe it’s accurate to say that the petitioner concedes that some restraint of a convicted person and convicted officer while his appeal pending is permissible.

So the real question here is whether the restraint that was imposed upon Captain Noyd by his arrest in quarters was a proper restraint.

The answer to at least to the legal principles that govern the question of the restraint that is allowed require the locating and interpreting of a number of different provisions of the Uniform Code of Military Justice and the manual for courts-martial which of course is an executive order technically of the President and of course has the force of law.

It is — the manual is promulgated by the President under a provision of the Uniform Code, Article 36 which is somewhat like the rules enabling act that has permitted this Court to promulgate the rules of civil and criminal procedure.

It’s the direction of the president to provide for the procedure in cases before courts-martial.

Now, there is nothing in the Code itself, the statutory code we submit that that speaks expressly to the question of restraint of a convicted prisoner or convicted individual while his appeal is pending.

But there are certain provisions in the manual which do speak directly to this.

First, is Article — is paragraph 21 (d) of the manual which provides that upon notification of the result of a court-martial trial the commanding officer of the defendant in that trial will take prompt and appropriate action with respect to the restraint of the person tried.

Such action, and I continue to quote, “depending upon the circumstances may involve the immediate release of the person from any restraint or the imposition of any necessary restraint pending final action on the case.”

In its most recent statement on this question of custody pending an appeal of the Levy case some two years ago, the Court of Military Appeals held that although there is no such thing as bail in the sense that we understand it in the military system.

This section of the manual does give the commanding officer of the defendant a discretion to determine what custody if any custody is appropriate following the conviction.

And the Court of Military Appeals in that Levy case although it denied Captain Levy release made it very clear that it would review the exercise of that discretion by the commanding officer involved in each case that brought to it on habeas corpus and would reverse the commander’s action if the discretion was abused.

The first step of review of a court-martial conviction is — has been indicated approval by the commanding — by the convening authority, in this case the Commander of the Twelfth Air Force General Bond and there are provisions — there’s a provision relating to restraint following this stage.

And that provision is paragraph 89 (c) of the manual for courts-martial that directs the convening authority to “provide in his action for the temporary custody of the accused pending final disposition of the case upon further appellate review and that further review is review by the Board of Review which has taken place in this case and by the Court of Military Appeals, the civilian court — a court with civilian members which action is still pending in Captain Noyd’s case.”

One other provision of the manual relates to custody pending appeal and that is paragraph 18 (b) (3) of the manual which provides that no punishment other than restraint imposed in accordance with regulations may be imposed upon an accused while his appeal is pending.

We think it is clear as the Court of Military Appeals has held that these provisions of the manual issued by the President pursuant to statutory authority provide a basis for appropriate restraint pending a military appeal.

Now, petitioner contends that a provision of the code does in fact relate to this Article 13 which says that the arrest or confinement of a person “being held for trial or the result of trial may not be any more rigorous than the circumstance required to insure his presence.”

He interprets the result of trial to include appellate review.

This, we think is wrong if nothing else in light of the caption of that article Uniform Code of Military Justice which says punishment prohibited before trial and in fact there are other places in the manual whether it was made clear that the result of the trial means what in common sense term you would think it was me the result of the trial proceeding itself not the further steps of appeal.

Potter Stewart:

Then isn’t it entirely total logical, they are repetitious if it was just being held for trial or trial —

James Van R. Springer:

I suppose result of trial could mean while the jury is out when the trial proceeding itself is over and you’re waiting for the decision that will result from that trial proceeding.

The court-martial was still in progress but in some sense the trial perhaps may be over it.

Potter Stewart:

I see.

James Van R. Springer:

In any event, we suggest that the rule for which petitioner contends in this interpretation is a startling one.

It does mean that in the military despite that they were well recognized disciplinary needs of the military a convicted serviceman could not be subjected to restraints pending appeal that are allowed in the case of a civilian prisoner convicted by a civilian court while his — civilian appeals are pending.

I think that he would have to have a very clear statement by Congress that this was truly intended before we should accept such an unusual proposition.

Hugo L. Black:

Is that the crucial question in your (Inaudible)?

James Van R. Springer:

Well, I was going to say I don’t think it is but that is a question, a question is what — the question at this point is what are the legal standards that should be applied —

Hugo L. Black:

What would you consider is the crucial saying the question?

James Van R. Springer:

Apart from mootness and apart from exhaustion, I think the question is whether and assuming we have to reach the merits, the question is whether there has been or petitioner’s claim is really that there has been an abuse of discretion in determining what kind of restraint is appropriate.

Hugo L. Black:

(Inaudible)

James Van R. Springer:

Yes.

Hugo L. Black:

And your position is — the Government’s position is he is not entitled to bail or be released as a matter of right?

James Van R. Springer:

No, but he is entitled to a reasonable exercise of the discretion of the commanding officers.

Hugo L. Black:

And what is that difference today?

James Van R. Springer:

On this point Mr. Justice Black, I confess I don’t see a difference except they say the standard is different, the standard is the Article 13 standard which is whether this a risk of flight.

Hugo L. Black:

Beyond there’s difference in between years whether the exercise of person’s right.

James Van R. Springer:

I would certainly say that is what the case when you boil that down the last time that is what it boils down to and on that of course we would say that it’s not appropriate for civilian court at least on the facts of this case a case of this kind to review that discretion of the military officers.

Hugo L. Black:

Your position is that the Government has a right if it chooses to do so in his discretion to keep the man in prison while his appeal is waiting action by the higher authorities?

James Van R. Springer:

Yes, but I should add one further thing and this gets me into the exhaustion point.

That discretion is reviewable by the Court of Military Appeals which is of course with civilian members that was established for the expressed purpose of giving a kind of civilian review of the rights of serviceman.

That court has a supervisory power over the operation of Military Justice and it’s a power that it has articulated itself and recognized and I think that that supervisory power gives it perhaps a good deal more discretion than I would say a civilian court has.

A good deal of more latitude than a civilian court has in reviewing the discretion of the military officers.

I think this Court has recognized that its supervisory power over the federal criminal justice gives that good deal more power than for example it’s more strictly legal authority over state of criminal justice.

Thurgood Marshall:

Approximately, how long does it take to process the case through the Military Court of Appeals?

James Van R. Springer:

Well, in this case — well, for the remedy that we are suggesting here habeas corpus, it takes no longer than habeas corpus in the civilian court and the fact that is what happened in Levy’s case.

Thurgood Marshall:

Well, how does the regular one take?

James Van R. Springer:

Regular review —

Thurgood Marshall:

Over a year, isn’t it?

James Van R. Springer:

I would say yes certainly it’s —

Thurgood Marshall:

So that anybody with one year sentence he might just well forget about it.

James Van R. Springer:

Well, except Mr. Justice Marshall and this is the military remedy to which we really point.

There is this remedy of habeas corpus in the Court of Military Appeals which can be had as promptly as civilian habeas corpus.

Thurgood Marshall:

Is the military lawyer for the military prisoner required to go for habeas corpus?

James Van R. Springer:

This is an uncharted area.

I would suggest now Mr. Justice Marshall that just and perhaps more so than in the case of the civilian courts, the Court of Military Appeals certainly has the power upon receipt of a petition —

Thurgood Marshall:

I’m not talking — well, I would suggest that the military lawyer for the military prisoner would really be an outstanding one if he did go for habeas corpus.

James Van R. Springer:

Well, I think perhaps depending on as in any case, the applications of a lawyer depend upon how the law —

Thurgood Marshall:

But approximately how many writs of habeas corpus are filed a year?

James Van R. Springer:

In the Court of Military Appeals?

Thurgood Marshall:

Yes, sir.

James Van R. Springer:

I think there have been relatively few this far.

Thurgood Marshall:

Well, —

James Van R. Springer:

Because that’s not of course a — the petition —

Thurgood Marshall:

That could be right.

James Van R. Springer:

But I suggest that there is no reason why Captain Noyd could not have file such a petition or why if the case is not moot he could not file such a petition now.

I think he can get more relief from the Court of Military Appeals because of its supervisory power.

And I would also suggest in accordance with familiar principles of exhaustion of remedies and other where areas and in light of what is obviously a highly technical question here there is good reason why the expert court that is charged with working out these matters in Military Justice should ask upon them before a civilian court is asked to come in with relatively little guidance other than normally the guidance that civilian counsel can give it.

Hugo L. Black:

How long has he been confined in that?

James Van R. Springer:

It was — of the order of nine months that he was in this restrain state arrest in quarters.

Of course if assuming that he had gone of the Court of Military Appeals when he went to the civilian court, he could’ve been out as he could’ve been in the case of a civilian habeas corpus within the matter of perhaps a week or two.

Abe Fortas:

What is a Government’s position with respect to the power of a district judge let us say federal district judge to direct that prisoner held on the court-martial to be released pending further procedures?

James Van R. Springer:

Well, I think that would depend upon the nature of the question that he raises.

Mr. Karpatkin has referred to the Reid and Covert line of cases where the claim is that the military has no jurisdiction to try this.

And I might say that I think if the same of the O’Callahan case which is now pending.

Abe Fortas:

I understand that but suppose it’s not that?

James Van R. Springer:

If it’s not a question of jurisdictional power —

Abe Fortas:

Suppose it’s a question of alleged misapplication of statutory remedy or statutory right denial of statutory right.

James Van R. Springer:

Well, if this and of course be —

Abe Fortas:

(Voice Overlap) — the allegation here?

James Van R. Springer:

In a military trial or in here has not in the trial but in one of the incidental areas related to trial.

We would suggest that the position is the same as to exhaustion.

The military remedy should be exhausted.

Abe Fortas:

You mean that the district judge, suppose he says comes in to District Court and says, my court-martial proceeding has been concluded, have been found guilty, I’ve gone to the Court of Military Justice and ask to be released pending their review, the have denied it, I come here ask to be released pending completion of the administrative process.

James Van R. Springer:

Certainly Mr. Justice, the civilian court would have jurisdiction to entertain that claim as to whether or not it should give relief we would suggest that the old standard in Burns and Wilson is still the standard under the law of this Court that should apply.

The question is whether or not the military courts gave fair consideration to the serviceman’s claim.

Abe Fortas:

But you would say that the power does exist?

James Van R. Springer:

Certainly, the power once there has — well, the power exists I think in any event, I think the case should not be entertained as a matter of some kind of judicial discretion and there has not been exhaustion when there has been exhaustion clearly there is power and let it just (Voice Overlap) —

Abe Fortas:

Now, you and I understand that we’re talking about the case like this one where the allegation is that there has been a denial of statutory right.

Now, the question of jurisdiction and then in that case you nevertheless take the position that there is power —

James Van R. Springer:

Yes.

Abe Fortas:

— in the District Court even though I understand what you say about the —

James Van R. Springer:

I find it difficult.

Abe Fortas:

— that’s right they have exercised.

James Van R. Springer:

I find it difficult to concede that in this case with the nature of the claims to be candid that there would be any room left for civilian court to do any thing after assuming that the Court of Military Appeals.

William O. Douglas:

But if you assume, if you start off would be with an order shipping him to Leavenworth and then you read the Article 13 which says that the confinement after the jury or after the trial presumably appending exhaustion shall be no more rigorous than the circumstances required to ensure his presence beginning to deep water, don’t you?

James Van R. Springer:

Well, of course —

William O. Douglas:

Because sending him to Leavenworth is certainly more rigorous than what is needed to require his presence.

James Van R. Springer:

Well, of course the first — in the first place Mr. Justice Douglas, we do say that Article 13 does not apply to the post-conviction period pending appeal.

William O. Douglas:

But it says while being held for trial or the result of trial.

James Van R. Springer:

Yes, but for one thing looking at the heading of that section where it says no punishment before trial.

We suggest that that provision of the code does not govern the period when appellate review is pending.

In any event, the question is of course the question whether or not discretion was abused and that —

William O. Douglas:

I never think what the discretion is abused whether the standard to ensure his presence was abused if 13 apply?

James Van R. Springer:

Yes but I say it’s a matter of discretion with the appropriate commander to determine a matter reviewable discretion.

Of course to determine what is necessary to keep this prisoner from fleeing.

Now, for example in the case of Captain Levy, the — I believe the District Court in Kansas has held that has reviewed it and determined that that was a permissible exercise of discretion.

This of course, in light of the fact, that the man was an officer that there are as practical matter and most —

William O. Douglas:

But do you suggest that 13 (b) read as if it did not include the words or the result of trial?

James Van R. Springer:

Oh!

I’m suggesting that the words as a result of trial not be read to encompass the extended period when appellate processes are in course.

I suggest it’s a strain reading to say that when this Court grant certiorari and —

William O. Douglas:

(Voice Overlap) it’s a strain reading for me to eliminate or from Article 13 the result of trial.

James Van R. Springer:

Yes, and I — there one other point I would make in this regard again is that — it’s a strange result if the military in fact is more restricted than the restraint it can impose pending appeal than other civilian authorities while civilian appeals are pending because —

William O. Douglas:

Well, to insure his presence has the flavor of our bond provision, release on bond and recognizance and all that to insure his presence.

James Van R. Springer:

Yes, but my point here is that where in the civilian system whereas I believe it’s correct to say that before trial the only reason for keeping a man in custody is to assure his presence following a conviction and pending an appeal there are other applicable standards in the statute for example danger to the community and things like that.

William O. Douglas:

But curiously 13 combines both.

James Van R. Springer:

Yes, if it applies but I suggest that that perhaps startling result is one reason why 13 should not be so read.

Earl Warren:

Mr. Karpatkin.

Marvin M. Karpatkin:

Thank you, Mr. Chief Justice.

I should first observe that I was — I believe reliably informed by responsible officer in the Judge Advocate General’s Department of the Air Force that the Air Force still regards the Leavenworth Order as in effect and that they are not and that they do not believe that they are limited by the six-month proviso for service of the — for service of time at Leavenworth because it applies from the day of the issuance of the order.

I don’t believe that they would practically try to shift Captain Noyd there for two days but they do regard the order as being in legal effect.

William O. Douglas:

And that’s what his counsel says technically it’s still in effect.

Marvin M. Karpatkin:

Yes, the — I’m surprised that the Solicitor General’s recent statement because it seems to be in direct conflict with words in his brief.

Referring to two decisions of the Court of Military Appeals, the cases of Teague and (Inaudible) on page 52 of the Government’s brief while those cases do find express statutory support in Article 13 for imposing conviction restraint.

They do not hold that the permissible grounds for pretrial restraints are also the only justification for post-trial restraint.

I believe he’s coming to this Court now and making a completely different argument.

Now, he says it provides no basis whatsoever for post-conviction restraint.

I think that what we have here is an assertion by the Government of raw naked power to imprison a convicted prisoner prior to the completion of his appellate process without stating any justification whatsoever.

There was no return to the petition for the writ here.

There was no statement by the Government of any desire to present evidence.

No attempt was made to show that the conditions of Captain Noyd’s confinement at any time either at Leavenworth or anywhere else were necessary to insure his presence of trial.

The civilian cases which are cited in the Solicitor General’s brief involved an addition to insuring presence of trial where an appeal was frivolous or dilatory or like in the Carbo case where the substantial probability of danger to witnesses.

Now, surely nothing like that is even remotely involved in this case.

The Government in effect concedes that no such showing could be made and indeed no such showing could be made.

The prosecutor at the trial and everybody involved in Captain Noyd’s tortuous legal proceedings have considered from beginning to the end his excellent character and sincerity and that there is no danger of his doing anything of the nature of flight.

In essence, I respectfully suggest the Government is arguing that there was a right to preventative detention under these circumstances even without any showing that the detention is necessary.

The Government is arguing that there was a right to punish without an offense being committed, without any charge, without any trial and without any conviction.

I respectfully suggest that this process which is apparently been going on in the military for many years where just automatically somebody has sent off to jail as soon he’s convicted regardless of his appeals that finally a case involving this issue has reached this Honorable Court and that this I respectfully suggest is the appropriate time for this Court to advise the military and to advise the population that not only can the military not violate the Constitution but they certainly cannot violate their own Uniform Code of Military Justice which apparently they have been flagrantly doing for the last 15 years.

Thank you very much.