O’Callahan v. Parker

PETITIONER:O’Callahan
RESPONDENT:Parker
LOCATION:Circuit Court of Mobile County

DOCKET NO.: 646
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 395 US 258 (1969)
ARGUED: Jan 23, 1969
DECIDED: Jun 02, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – January 23, 1969 in O’Callahan v. Parker

Earl Warren:

Number 646, James F. O’Callahan, petitioner, versus J. J. Parker, warden.

Mr. Rabinowitz.

Victor Rabinowitz:

May it please the Court.

This case is before the Court on a writ of certiorari to the Court of Appeals from the Third Circuit and is limited to a single legal issue which we think is of profound importance to several million young Americans now in the Armed Forces of the United States in relating to the balance between civil and military jurisdiction over them.

Question is a simple one.

Does a Court-martial have jurisdiction in peace time to try a member of the Armed Forces charged with a civilian crime and by that, I mean, a crime which is normally cognizable in the civil courts alleged to have been committed by him off post and off duty.

In this case, the crime is attempted rape but if the Government is right, it could try a member of the Armed Forces for any crime at all including securities violation, violation of the anti-trust laws or anything else.

Unless the Court think that this is a far-fetched example, I learned this morning that a technical sergeant at Myrtle Airbase in South Carolina was convicted just a few days ago of the crime of income tax evasion by a Court-Martial.

The relative role of the military in civilian government has been of considerable concern throughout our history and for that matter throughout the history of England.

Under one hand, the Constitution provides that Congress may make rules for the Government in regulation of the land and naval forces.

On the other hand, it provides for jury trial in an Article 3 Court for grand jury indictment.

In federal cases and most states also have similar provisions, some variation on the grand jury but all of them provide for a trial before a civilian court and for a jury trial.

In this kind of situation, this Court has always taken the position that in order to determine the relationship of these two apparently conflicting provisions or provisions that may conflict in our Constitution, that’s it’s appropriate to look into the historical context, to look at the probable intent of the framers of the Constitution and to determine on the basis of that what rule shall apply.

Now, we differ somewhat with the Government on our view of the history which is not particularly surprising but as we see the history, for over a hundred years of both before and after the adoption of the Constitution, Court-martial jurisdiction was limited both in this country and in England to offenses such as decision, mutiny, striking or scorning a superior officer, tardiness for parade, failure to salute, theft from military stores and a host of other offenses daring and obvious immediate relationship to the army, many of which are not punishable in the civilian courts at all.

These are the kind of offenses and the only kind of offenses listed in the Articles of War adopted by the Continental Congress in 1775, renewed in 1776 and in essence, they are the offenses for which Court-martial jurisdiction was provided in the United States in peace time up until 1916.

It was in the articles of 1916, perhaps an anticipation of another war, but in any event, in 1916, for the first time, Congress provided Court-martial jurisdiction and the Articles of War for the first time defined crimes other than military crimes going to offenses such as rape, murder, assault and similar ordinary, conventional civilian offenses.

Now, the framers of the Constitution obviously did not act in a vacuum as this Court has pointed out on numerous occasions both in handling jury cases such as Patton and particularly in handling military law cases such as Covert against Reid and the many cases that followed that.

The people who framed the constitution were quite aware of the English Revolution.

They were aware of the abuses that they themselves suffered in this very field and it may reasonably be assumed that they wrote the Constitution with this in mind.

English history is I think fairly clear.

In 1627, the petitioner of right addressed to Charles I, complained of the institution of Court-martial for any offense even an offense trying a soldier if that happened in the Courts of England where the civil courts were open and the petition was addressed to the king because the king had directed commissions to go forth and to try members of the Armed Forces although the civilian courts according to the petitioner were perfectly capable of trying these forces, these offenses.

As a result to the petition of right, King Charles withdrew his military commissions but the subject was a matter of considerable conflict between parliament and the stewards for a good while after.

In 1689, after the revolution of 1688, parliament passed the Mutiny Act which for the first time provided by act of parliament at least, trial by Court-Martial, of people in the Armed Forces and the only three offenses that were listed in the Mutiny Act were desertion, sedition and mutiny.

Now, the Act was a very limited duration.

The first act was passed for a single period, for over a period of one single year and Congress and the parliament did over the next century renewed the statute annually.

Each time confining Court-martial jurisdiction for crimes committed within England to crimes that were clearly military in nature of the type mentioned in the Mutiny Act of 1689, the desertion, sedition and disrespect to the superior officer, that sort of thing.

Now, it is true that as the English empire expanded and England took up commitments in foreign countries that Court-martial jurisdiction was exercised over crimes committed by members of the Armed Forces on civilians in foreign countries but only in foreign countries, never in England.

There is some discussion in the authorities indicating and there’s a case in England in about the middle of the 18th century holding that whereas Court-martial jurisdiction within England came under the Mutiny Act and therefore within the area of Congresses, of the parliament’s jurisdiction, Court-martial jurisdiction oversees was within the king’s prerogative and I think that by analogy, we might very well say that whereas Court-martial jurisdiction in the United States in time of peace is quite a different thing from Court-martial jurisdiction in times of war.

And in time of war, Court-martial — an extended Court-martial jurisdiction may perhaps be argued forth as coming within the war power of Congress.

This particular offense and the issue presented before us was committed in time of peace.

Victor Rabinowitz:

It was in 1956, it was in the territory of Hawaii, the civil courts were open, there was no war, it was one of the periods in our recent history in which there didn’t to be a war and the issue is not an issue of the war power of Congress but rather an issue of the Congress’ power to take away from persons in the Armed Forces the right of trial by jury and the other protections of the Constitution.

Byron R. White:

You see no escape on the Constitutional issue?

Victor Rabinowitz:

Well, I don’t —

Byron R. White:

Cite it.

Victor Rabinowitz:

I really see no escape.

I think that the statute is clear.

The statute asserts jurisdiction over everybody in the Armed Forces and I really have difficulty in avoiding the constitutional issue.

I think and I’ll come to that in a moment Your Honor that there may be several different views of the constitutional issue as Your Honor suggested in the concurring opinion in Covert but that there is a constitutional issue here, it seems to me is unavoidable.

Now, when the columnist drew the Constitution, it is perfectly obvious that this was a matter of considerable importance to them.

And as a matter of fact, the declaration of independence contains a reference to the fact in one of the complaints listed against the king was that he had asserted military jurisdiction over crimes committed by the Armed Forces, by the English soldiers on civilians in the United States or what was then the colony.

And this was protested against and I might say that throughout history, there have been two parallel lines here.

Under one hand, there has been the complaint of the civilian that the army will take jurisdiction and provide what the Constitution — what the declaration of independence called a mock trial, thus permitting the military to abuse the civilians by trying them in accordance with presumably more lenient rules.

On the other hand, there has been similar complain, I should say opposite complaint but arising out of the same context that the army will provide for the soldier a more strict and a more difficult form of punishment than he would get in the civilian courts because he does not have in the army right of trial by jury, right to a civilian court and the right to a grand jury indictment and I think the fact is that both of these things may happen and it is to avoid both of these things that we think civilian jurisdiction are to be given.

Now, the articles of war adopted in 1776 remained unchanged so far as this particular subject is concerned until the Enrolment Act of 1863 in the midst of the civil war when for the first time Congress passed a statute giving some degree of military jurisdiction over crimes committed, over civilian crimes.

That was specifically confined to time of war and this Court held in the Coleman case and in a series of cases that followed it that Congress intended by that statute to give jurisdiction of the military only in cases where the civilian courts were not operating.

The leading case of course is Coleman against Tennessee where the issue arose as to who had jurisdiction over a crime committed by a member of the union forces in the then occupied territory of Tennessee, there were then no civilian courts operating, certainly no civilian courts of the United States.

There may have been civilian courts of the confederacy operating.

The Court said it would be absurd to say that a soldier in the union army could be tried by a civilian federal court, by a confederate civilian court and held that the army had military jurisdiction over that crime.

But this Court has repeatedly since that time interpreted the 1863 Act applying only where armies were actually in the field and where civilian courts were not open.

As I say, it was not until 1916 that the articles of war were amended to cover the — substantially the situation that we have now.

Now, although this case is one of first impression and the Court has never decided this precise issue.

As a matter of fact, there are only three or four decisions even in the Courts of Appeals on this issue.

The Court —

(Inaudible)

Victor Rabinowitz:

No sir.

I think there are only two circuits that have passed on this, the Third Circuit and one other.

I don’t recall which and they both came to the same conclusion without very much of a discussion.

I think they just assumed that without any constitutional discussion at all in any of the cases.

They merely went to the articles of war, noted that the articles of war did give jurisdiction over this sort of offense and proceeded from that point.

I don’t know of a single case and I’ve check the records where they’re available where any of these was raised by counsel.

Victor Rabinowitz:

Now, in the tough case, in Covert against Reid and Kinsella against Singleton and McElroy case and Lee against Madigan and a whole series of cases that were decided, most of them after the second world war.

The Court touched upon a similar issue.

Discussed not testified — discussed at very great length on some of the issue namely the jurisdiction of the Court-martial over people who were not members of the Armed Forces and the history is quite familiar to this Court and I won’t go into those cases now except to note that there was one theme which it seems to me ran through all of those cases and that was the very deep concern shown by all of the members of the Court to prevent too broad an extension of military jurisdiction.

And the Court felt that unlike the Commerce Clause or other provisions of the Constitution, which have been given a very broad interpretation that here so far as this clause was concerned, the Constitution would be given a very narrow interpretation and that view, as I say, was expressed in the — in Covert against Reid where the Court said every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts and more important, acts as a deprivation of the right to jury trial and other treasured constitutional protection.

In Lee against Madigan, also, the Court indicated its reluctance to give military tribunals authority to try people for non-military offenses and so we are face to face with this problem now and it seems to us that on the basis of the history that we have before us there is no justification for extending jurisdiction of the Court-martial over persons who try ordinary, conventional, civilian crimes where the courts are open, perfectly capable of handling the case where there are no extraordinary circumstance such as war or some similar event to make it impossible for these people to be handed over to the civilian courts for trial and as a matter of fact, the government in its brief says that some 80% of these cases are tried in the civilian courts but apparently there are 20% that are not.

Byron R. White:

Now, where is it that you’re drawing the line?

I take it, I take it military offenses in either peace or war, you had to put on one side to draw the line.

Victor Rabinowitz:

Well, if our military offenses we mean this sort of thing which is directly and immediately concerned with the military, yes.

In peace or war, I would say that there is a long tradition of Court-martial jurisdiction.

Byron R. White:

So what about — what about so-called civilian crimes in time of war?

Victor Rabinowitz:

Well, I would argue if I had to that if the crime is committed in this country where the civilian courts are open and are available that they ought to be tried in the civilian courts in that case also because I don’t see any particular reason why a soldier who is drunk and disorderly in a camp in the United States should be tried by a military court just because there happens to be a war 5000 miles away.

So —

Byron R. White:

You wouldn’t — you wouldn’t distinguish in any of these arguments between crimes, all crimes are the same, would be — should be treated the same?

Victor Rabinowitz:

As long as they are non-military crimes, yes, I would say, they should all be treated the same.

Now, it is obvious —

Thurgood Marshall:

How about assault and batter between two G.I.’s.

Victor Rabinowitz:

If they go into town and they get drunk and there’s a fight.

Thurgood Marshall:

In uniform.

Victor Rabinowitz:

I don’t see that it makes any difference.

I don’t see any reason why the civil courts aren’t perfectly capable of handling that kind of situation.

Thurgood Marshall:

Well, don’t you think the army has an interest in stopping their men from brawling in uniform?

Victor Rabinowitz:

I think the army has an interest and not just as I think that the army has an interest in same toward the wives of soldiers, servicemen, stationed abroad don’t kill their husbands.

I think the army has an interest in that.

Thurgood Marshall:

But the wives don’t have uniforms on?

Victor Rabinowitz:

Pardon me.

Thurgood Marshall:

The wives don’t have uniforms on.

Victor Rabinowitz:

I don’t think that that really should be the decisive issue in determining whether or not a man is to be deprived of a jury trial and the other protection of a civilian trial.

Thurgood Marshall:

Well then.

I would assume that they were brawling on the post, they’d be entitled to a jury trial too.

Victor Rabinowitz:

I don’t — I don’t think so.

Victor Rabinowitz:

I admit that a line has to be drawn somewhere and that seems to be a reasonable way to draw the line.

I can understand that on the post there are lots of things —

Thurgood Marshall:

What about drawing the line when he’s not in uniform?

Victor Rabinowitz:

No, I don’t think I would draw the line on whether he’s in uniform.

I’m sure that sergeant whatever his name was, was probably in uniform when he filled out a forced income tax return but I don’t think that that has to do — determines the question as to whether he should be tried in a civilian — in a civilian court or not.

Earl Warren:

To some indications in this field, hasn’t had been the question of status rather than where the crime has been committed.

Victor Rabinowitz:

Yes, well, so far the cases have all revolved on the question of the status of the offender.

In this case, I suppose, it might be said that the issue is the nature of the offense as to whether it’s what we’ve been calling a military offense or a civilian offense.

Now, I will admit in response to what Justice Marshall said that there is an area — any areas, there isn’t almost all legal questions which is marginal but if I had to draw the line, I would say that if it is committed off post, it may be committed a thousand miles from post.

It may be committed on Time Square.

I don’t think that there is any reason why the civilian authorities cannot try such a case and why such a white persons engaged in that kind of a brawl in or out of uniform should not be subjected to the military, to the civilian authority.

Potter Stewart:

Does your argument extend to people in the military service who were overseas in time of peace.

Victor Rabinowitz:

Well, I think that’s a much more difficult problem.

Potter Stewart:

Well, I think so too.

I was asking you a question.

Victor Rabinowitz:

And I’m — I would say that there is a much better argument for Court-martial jurisdiction there.

Although even there, as Your Honor may know, in many, many cases, these matters are determined — let me just interrupt one more.

I assume that what we are talking about is when you say in time of peace, we’re not talking about the United States Army as an occupying force.

We’re rather talking about American troops stationed at an air base in Germany for example or something.

There’s a difference where the army is in even though it may be technically in time of peace where the army is in this as a military —

Potter Stewart:

Well, I would suppose, there’s at least a factual if not a theoretical difference between a soldier in South Vietnam and one in London, England today for instance.

Victor Rabinowitz:

Yes and that’s right.

But where the — in most cases, I believe this matter is handled now, currently, is handled by treaty.

There is no doubt that if we look at this historically, the United States has always asserted the right to try people who commit crimes abroad by — in, well, by techniques, by message other than civilian trial and the whole in re Ross and in Schiller cases, controversy was involved in that and that also was I think affected to some extent by Covert against Reid.

I would be inclined to think and I think this is a matter of policy perhaps rather than a constitutional matter or perhaps the constitutional matter as well that under such cases, the civilian courts of the country in which the crime is committed should try the case.

But that is not this case and I really can’t explore all of these problems to there outer limits because I think that the facts do vary from time to time and as a matter of policy and as a matter of treaty law, I do think that in most cases, these persons are tried in the courts of the country in which the crime is committed.

Potter Stewart:

I should think Mr. Rabinowitz and just thinking out loud, if you will, that your argument — your constitutional argument would necessarily extend to military people overseas in time of peace who commit basically whether civilian crimes.

Victor Rabinowitz:

I think that is probably so.

Potter Stewart:

Larceny and rape and murder and theft and assault and battery against say the local civilian population or members of it.

Victor Rabinowitz:

Yes sir, if we all assume that in re Ross, it’s no longer the law, I think that is probable.

Thurgood Marshall:

Mr. Rabinowitz, your constitutional right to jury trial, is that what you’re talking about?

Victor Rabinowitz:

Constitutional right to a jury trial —

Thurgood Marshall:

Well, where do you get that overseas?

Well, it may be that he’ll have to be brought back to the United States and there are provisions in the statute for the trial.

William O. Douglas:

There are also treaties that govern the disposition of cases back.

Victor Rabinowitz:

Yes sir, it’s my understanding that almost all of these situations are covered by treaties.

I think some of them are mentioned in the Government’s brief.

William O. Douglas:

Well, I was just wondering why you give that point up about overseas.

Victor Rabinowitz:

Well, if I gave anything up, Your Honor, with an over sought side.

I didn’t intend to — I intend to give out anything up but there are of course provisions in the statutes providing for the trial in the United States of crimes which are committed abroad.

Now, of course, what has to be a crime against the United States and if an American — well, let’s see the hypothesis that we’re making here.

We’re assuming that an American soldier for example assaults or steals money from an English civilian or from a German civilian, he being stationed there.

Potter Stewart:

It gets a bit circular doesn’t it?

It might — in your submission, it might not even be a crime against the United States.

Victor Rabinowitz:

It might not even be a crime against the United States, yes sir.

Now, I — the Government doesn’t agree — doesn’t agree with this analysis at all.

It takes the position that under the general article of the Articles of War which is set forth at page 5 of my brief.

Court-martials have always tried civilian crimes, always from the very beginning.

The article says although not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the Armed Forces.

All conduct of a nature to being discredit upon the Armed Forces and crimes and offenses not capital may be subjected to a general or summary Court-martial and I must say that the tax evasion case that I referred to a few moments ago was tried under this section.

Now, I’m not going to raise the question of whether that section isn’t so vague that it could hardly be upheld today but the citations, the references quoted by the Government and it was really a magnificent bit of research, all 115 cases or so listed in the appendix are suppose to be cases in which the general article was used to punish civilian crimes.

Now, they start in 1775 and for example the first one is that a soldier was charged with stealing and the next one says, a soldier robbed Dr. Foster, general hospital, the third one says, soldier stole a hat from Captain Waterman (ph).

Now, these descriptions are so brief that you can’t tell it all whether the men were on duty or off duty at the time of the offense.

One thing we can be sure, that the civilian courts were not open because these crimes took place in General Washington’s army in 1775 in Cambridge, the first one, three weeks after the Battle of Bunker’s Hill.

In 1776 in New York, in 1777 in Morristown, in 1778 at Valleywood at Friedrichsburg, a New York town and then after the Treaty of Paris, they moved to the frontier where there are series of offenses against Indians.

Now, no one is talking about the kind of a case where the army is on the military — in the course of a military campaign in the United States or where there’s a frontier battle going on.

Those situations are — there are no resemblances at all to the situation and I think we’re then talking about the war power, we have a situation which is really quite different.

I might say that Winthrop in his authoritative work comes to a completely different conclusion with respect to the general article.

He says, it was never used except very, very sporadically on the frontier but aside from that, it was never used except to punish offenses of a military nature.

Now, if the history is not conclusive, then mindful of Mr. Justice Harlan’s concurrence in Covert, I would like just to note this.

Victor Rabinowitz:

In that opinion, the justice said that the crucial question is and I quote “which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities and the possible alternatives which Congress had before it?”

Now, while that might have been a closed question in cases like Covert and Kinsella, there’s nothing close about it here.

The particular circumstances of the cases — case is that a soldier goes off base, off duty, commits a crime against a civilian in Hawaii.

There’s no reason at all why Hawaiian court can’t try him.

The practical necessities are exactly the same and the possible alternatives are obvious.

No reason, no compelling reason in policy, no reason why the Constitution should not apply appeals in this case.

Now, here of course, the Government also disagrees.

It says, the right of the soldier to be tried in the army community, that’s the community he lives in and that’s the community he should be tried in.

Well, I wonder whether an average, non-commissioned officer tried by a Court-martial consisting of ranking officers, senior officers frequently officers with the rank of colonel or major or captain is being tried “in the army community”.

The Government says, there may be different standards in the army.

Well, of course, there may be different standards in the army.

That’s precisely what the difficulty is.

If the standards in the army are more strict than the standards in the community at large, then the soldier, we think, has a right to complain because he committed his crime in the community and not in the army.

And if the standards in the army are less strict than we think that the community has a right to complain because the soldier should not be permitted to come into town, into the civilian community, commit crimes and then be excused because the army doesn’t think those crimes are very serious.Now, there’s one other point — well, I would just refer Your Honors to —

Earl Warren:

You can make it briefly if you wish.

Victor Rabinowitz:

Just very briefly and that was raised in point two of my brief namely, some question as to whether Congress has the power to punish this crime at all or in other words, the crime as the crime of rape.

There is nothing in the statute that talks about rape in connection with military and rape is a crime which is normally punished by the state and the mere fact that a man happens to be in the Armed Forces would not seem to me to give the Government the right to punish him before he commits rape, to put it in another way, and as I say, developed in the brief.

Congress can make it a crime to embezzle property of the United States but I do not think that Congress could make it a crime which said that anyone who is a federal employee and who commits embezzlement anywhere is guilty of a federal crime and I think that’s what has been attempted here.

This is discussed in the Mason case where the Court discusses a crime of murder in these circumstances and I rest on that.

Earl Warren:

Mr. Springer.

James Van R. Springer:

Mr. Chief Justice, may it please the Court.

I think it’s important that in this case, what we are discussing is a constitutional grant of jurisdiction to the Congress to legislate.

Clause 14 of Section 8 of Article I provides that Congress has the jurisdiction to make rules for the Government in regulation of the land and naval forces.

It’s our position that this power permitted Congress to legislate the specific provisions of the Uniform Code of military justice upon which Sergeant O’Callahan was convicted.

We submit that Congress does have a concurrent jurisdiction with the civil authorities to punish offenses committed by military personnel who are in active military status without limitation as to whether or not the offenses are committed on a military post or on duty.

In fact, the Uniform Code of military justice and the Articles of War of 1916 which in substances were effect until 1950 when the code was enacted had quite and have quite detail provisions relating to so-called non-military offenses.

The code includes, of course, the offenses in question in this case, rape or attempted rape, assault, house breaking and also covers specifically most of the other principal offenses that servicemen might commit against the civilian communities such as murder, larceny, bad check offenses, drunken driving, reckless driving, disorderly conduct, breech of the peace.

As Mr. Rabinowitz has suggested, this jurisdiction has been exercised and is being exercised in a great many cases that arise both in the United States and abroad.

In the United States, there are working arrangements between the military and the civil authorities, both the Department of Justice and state and local authorities which divide up the concurring jurisdiction that exists under the Uniform Code.

Generally speaking, the military does turn offenders against the civil laws over to the civil authorities if the civil authorities request it.

Thurgood Marshall:

But in this case, the civil authorities had him.

James Van R. Springer:

The civil authorities had him and turned him over to the military police —

Thurgood Marshall:

That’s right.

James Van R. Springer:

— who proceeded with the case.

Those —

Thurgood Marshall:

Getting back to the old theory about interfering with the king’s peace, how was the United States peace interfered with in the case?

James Van R. Springer:

Well, Mr. Justice Marshall, I would suggest that the test perhaps should be framed in terms of the Constitution with stops the Government and regulation of the land and naval forces.

We submit that one aspect of the Government in regulation of the land and naval forces is a reasonable amount of control by those forces over the behavior of their members when they’re, so to speak, turn loose on the civilian community in which they’re stationed.

Thurgood Marshall:

Would your position be — would your position be the same today if a G.I. shot and killed the governor of Hawaii that Hawaii wouldn’t have a chance to try him?

James Van R. Springer:

No, well, of course, what I’m saying is that there is an exclusive military jurisdiction.

We say that there is a concurrent jurisdiction.

This case does not present —

Thurgood Marshall:

Well, what would the odds be?

Do you know?

James Van R. Springer:

The odds as to what would happen in that, I’m sure the case would be handled by the civilian authorities.

Thurgood Marshall:

Why are you sure?

James Van R. Springer:

Well, there are — the policy of the army and of the services is that ordinarily upon request offenders against the civilian laws will be turned over to the civilian authorities.

I’m sure that policy —

Thurgood Marshall:

Well, but it has to be a request.

James Van R. Springer:

Yes but I’m sure there are — there would be a request in such a case.

Thurgood Marshall:

The G.I.– the G.I.’s constitutional right to a jury trial depends on who makes a request.

James Van R. Springer:

Yes.

Yes, that’s certainly is the consequence of the existence of this concurrent military jurisdiction.

And by 85% of the cases within the United States in the year 1967, the civilian authorities in fact did take jurisdiction over serious offenses.

But there were something like 750 cases, serious cases where the military authorities did prosecute and there are many war cases and I believe much harder proportion of less serious offenses.

Overseas in 1967, although our status of forces agreements do give jurisdiction to the local authorities where American men are stationed in almost all cases except for cases involving only American personnel and cases involving crimes committed while on duty.

In those overseas cases, there were some 18,000 military prosecutions in the year 1967, so that we submit that this is a broad jurisdiction, a broadly exercised jurisdiction that’s at stake.

One as to which there are apparently smoothly operating arrangements between civilian and military authorities and we submit that the Constitution does not require this jurisdiction to be given up by the military.

Abe Fortas:

Are there any limitations as you see them on power of Congress under Article I, Section 8, Clause 14?

James Van R. Springer:

As for — you’re thinking perhaps of the tax evasion case.

Abe Fortas:

No, I’m just saying generally to — what is your view of the tax evasion case?

James Van R. Springer:

First of all, I think that there might well be a statutory question there.

Abe Fortas:

Well, that would come I take it that that would might come under the 10 U.S.C. Section 934, all of disorders and neglects of the prejudice of good order and discipline in the Armed Forces or conduct of a nature to bring discredit upon the armed forces.

I suppose if it’s broad, it will be broad under that.

James Van R. Springer:

I’m quite sure that was what it was brought under and not knowing the case.

But as I say, there may be some questions which I don’t think are raised in this case.

It’s just how, how that article could be applied.

Abe Fortas:

You particularize that and I don’t want to —

James Van R. Springer:

But as —

Abe Fortas:

But I’ll tell you to comment on another case but I would like to know whether you think there are any restrictions of congressional power under Article I, Section 8 and if so, what are they because that clause empower of Congress to make rules for the Government in regulation of the land and naval forces.

Now, does that, in effect mean that Congress can set up a separate set of — a comprehensive set of separate rules for members of the Armed Forces, if not, what are the limitations?

James Van R. Springer:

I think it probably does mean that but I think we don’t have to go that far in this case.

Abe Fortas:

Well, maybe we do.

Maybe we do.

Maybe I do, so I’d like to know from you directly, you think that Congress could set up a totally, totally comprehensive set of rules to Government conduct of individuals by virtue of their status in the armed forces, to be separated in a pact?

James Van R. Springer:

I think that does have to follow from the broad language that’s in the Constitution itself.

But as I say, this is a — this case is not.

Abe Fortas:

I understand that.

James Van R. Springer:

As extreme a case.

Abe Fortas:

I understand that there, alright, but what I’m trying to — I think you’ve answered my question, you say that Congress could like any rules, whatever, either one in two, that those rules be and I suppose those rules could be preclusive of civilian authority.

James Van R. Springer:

Again, we don’t have a preclusion case here.

That would be, I think, of a troublesome case if it were.

Abe Fortas:

If you are going to try to confine a discussion here to this particular case, you’re going to leave me substantially without your — the benefit of your assistance.

James Van R. Springer:

I think I would have to say that if the military or if Congress purported to preclude state jurisdiction over some of these crimes that would certainly be a difficult case.

Abe Fortas:

But what does this —

James Van R. Springer:

I think the question here, is I think framed and perhaps to my mind, should be restricted to the question whether legislation can as the plaintiff asserts, deprive the individual defendant of his jury right.

It’s not a jurisdictional fight between the military authorities and the states.

Abe Fortas:

Well then, you say that Congress could not under this constitutional provision set up a system of rules that would be preclusive of the civilian authority in some respect.

I’m trying to find out what the phrase “Government in regulation of the land and naval forces” means in terms of your submission as counsel for the Government.

James Van R. Springer:

Well, I do have to confess that I’m troubled and I hate to make a commitment as to the most extreme application that this could be given.

James Van R. Springer:

It may well be that in certain areas —

Abe Fortas:

Is there any First Amendment limitation upon the power of Congress?

James Van R. Springer:

Under these articles?

Yes, I believe there is and in fact the Court of Military Justice draw any suggestions from this Court’s opinion in Burns and Wilson had said that the Constitution does in general apply to the military men and to the procedure in military trials.

Abe Fortas:

So that the First Amendment does restrict this.

How about the Sixth Amendment?

James Van R. Springer:

As to the right to jury trial, I think it’s — it has been established that the grant to jurisdiction to Congress and the clause 14 is inconsistent with it.

Abe Fortas:

How about the right to confrontation of witnesses?

James Van R. Springer:

That is a case which in fact has within the last couple of years have risen in the Court of Military Bills, the Court of Military Bill does held that that right does in fact exist.

Under the Constitution?

Yes.

The Court of Military Bills has said as flatly I think as could be said that the Constitution operates directly upon military.

Abe Fortas:

Then I’ll ask you one more question then I’m finished.

I take it then from what you’ve said that it is your submission, Article I, Section 8 Clause 14, authorizes Congress to make a complete set of criminal rules, what we ordinarily refer to as criminal rules applicable to the persons by virtue of their status as members of the land and naval forces of the United States.

James Van R. Springer:

Yeah.

Abe Fortas:

That would include for example the power of Congress to make it a crime and not to submit their income tax returns on time.

James Van R. Springer:

I think — I think I would have to say that it would be our position apparently to go that far, though of course, I would say again that I don’t think it necessary to go that far to decide this case or really the general problem raised by this case.

Abe Fortas:

You and I think, maybe we think definitely because I have to think beyond the limits of the individual case.

I guess you do too, don’t you really?

James Van R. Springer:

Yes indeed and of course this case does involve a general principle but it does not involve the further most exercised of jurisdiction that might be conceived of.

The question is then whether the Government in regulation of the land and naval forces can encompass activities by soldiers beyond what in a narrow sense can be called military, obedience to orders, behavior information and things like that.

We submit that there are good reasons why this jurisdiction should go further.

Activities, actions of the kind in question of this case do have in a very real sense a military jurisdiction, a military significance that makes them a proper concern of the military forces.

The fundamental factor here is the fact that the military is and always has been in our society a kind of a unique community that is governed by rules and customs of its own and is separate from the civilian community and in some respects alien to it.

The real community of the people in the services is the community of other people in the services.

It’s not the civilian community where a particular military base with its transient personnel happens to be located.

Of course, the existence of the military unit in a civilian community presents certain problems for that community.

Military people in fact are often a different kind of — a different make up of ages and attitudes.

There are frequently young people without local ties, without family roots in the community who in their free time do as a matter of practical fact create problems for that community and I think that that community rightly looks to the military to maintain some degree of control over what these people do in the community and of course a general discipline is something that’s of enormous significance to an effectively functioning army and I think to the extent that soldiers at sometimes are off duty what they do during those off duty hours does have an impact on the operation of the military force and the existence of an effective discipline.

One factor involved in civilian punishment of military offenders against the civilian laws is that those civilian punishments, the delays in civilian trials may well interfere with the operation of a military unit by making a man unavailable for transfer, unavailable for the performance of his military duties.

James Van R. Springer:

The army has special facilities, special abilities because of the nature of the community that it is for the punishment and the rehabilitation of member of the forces who may have gone astray.

In fact, because of the possibilities for limited restraint, it may well be that an appropriate punishment for a military man can be much more lenient than any punishment that would be available to the civilian courts and the civilian authorities.

Finally, a point that Mr. Raboniwitz has pointed to —

Under what (Inaudible)

James Van R. Springer:

Yes, in fact, the Articles of War in general as to most to these current — as to all but two or three simply say as a matter of statute that the punishment shall be as Court-martial shall direct.

Now, the manual for Court-martial which is in form an executive order of the president specifies maximum penalties.

Generally, I believe not minimum penalties.

Thurgood Marshall:

Is the penalty, maximum penalty for rape death, still?

James Van R. Springer:

Under the —

Thurgood Marshall:

Manual.

James Van R. Springer:

Under the Uniform Code, I think in the case of rape, I think the code says something about that.

Thurgood Marshall:

What is it?

James Van R. Springer:

Of course this is not a rape.

This in fact was an attempted rape case.

Thurgood Marshall:

What was the crime, what was this maximum sentence for attempted rape in Hawaii at that time?

James Van R. Springer:

That, I’m sorry, I do not know, Mr. Justice.

Thurgood Marshall:

Well, isn’t not —

Potter Stewart:

Here’s on page 4 of the petitioner’s brief.

James Van R. Springer:

Well, in fact, the maximum penalty available under the military law in this case was 25 years.

(Inaudible)

James Van R. Springer:

No, I would suspect that something of that magnitude which certainly have been available under any civilian law that I’m familiar with.

I think there is a very real practical point here that the factors that basically underlie the jury right, the right of an individual to be tried and judged by members of his community don’t fully apply in practical fact in the case of a military man who against his will is often dragged to a community where he has no ties or he doesn’t want to be in where in fact, they’re made for one reason or another be a strong community bias against him.

So, I’m suggesting, there may be some cases where in fact the military man does benefit from a military trial as distinguished from a civilian trial.

Thurgood Marshall:

Have you ever been to a Court-Martial?

James Van R. Springer:

No I have not.

Thurgood Marshall:

Now, I see why you said it.

James Van R. Springer:

But in fact I’m told and of course this is nothing in the record to support this that generally a comparison of the cases of civilian crimes tried by Court-martials with those tried by civilian courts indicates that more lenient penalties are given out generally by the Court-martial and this I’m sure is conditioned by the fact that a more lenient penalty can in some cases be effective against the military man where that kind of penalty wouldn’t make sense in the state.

Thurgood Marshall:

They almost uniformly are cut when they go up to it.

James Van R. Springer:

I’m sorry.

Thurgood Marshall:

They cut him when they go up on appeal too?

Thurgood Marshall:

Usually —

James Van R. Springer:

Yes that’s certainly — there are several stages of review within the military scheme and the sentences can in fact be reviewed all the way up to the top within the military.

Along this line, I think it is important to bear in mind that the Uniform Code and specifically the approach that has been taken by the Court of Military Appeals does assure military men virtually all of the constitutional rights that existing civil trials except of course for the requirement of indictment and the right to a trial by jury.

With respect to the history upon which the petitioner put so much weight, we think that the research that is reflected in our brief does in fact show that the framers of the Constitution were familiar with or had reason to be familiar with the fact that Court-martials contemporaneously were being used to punish crimes which could not be regarded as purely military in the sense for which the petitioner contends.

To be sure, some of the crimes listed in the appendix to our brief, it may be a little hard to tell which they were but there are certainly a great many of them as to which it is clear that they were what the petitioner would call non-military or civilian offenses.

For example, cashing a bad check in a civilian restaurant, rioting in town, fraud, assault of the civilian, I think it’s fair to say that you simply can’t say that the provision in the 1916 Articles of War laying out specific jurisdiction over specific non-military crimes were something noble.

This is something that existed prior to the ratification of the Constitution and in fact existed over the years under the general article of the Articles of War up until 1916.

So, it’s not a new jurisdiction.

It’s one that must have been on the contemplation of the framers.

(Inaudible)

James Van R. Springer:

In fact, this was done by the army.

Some of the records — most of them, I believe, appear in the national archives.

(Inaudible)

James Van R. Springer:

Well, yes.

Generally, it’s the national archives.

At least — there’s one instance at least where it’s the library at WestPoint or some of the records kept at WestPoint but most of these are available in the archives.

I think, although, it’s right to say that this is a case of first impression in this Court, it is important to consider this case in the light of the cases where the Court has considered certainly not unrelated question of jurisdiction over civilians.

Abe Fortas:

Mr. Springer, may I ask you this, let’s suppose that a member of the Armed Forces in civilian uniform while on furlough, cashed a bad check in a store in a civilian community, now, is it your construction of the Constitution that a Court-martial jurisdiction would be authorized?

James Van R. Springer:

Yes.

Abe Fortas:

Have I made myself clear?

James Van R. Springer:

Yes.

Though I would — there is perhaps a distinction as to the location of the offense but I would have to submit that —

Abe Fortas:

What do you mean by that?

James Van R. Springer:

I think —

Abe Fortas:

I’m stating to you that it was a check cashed in a store.

I particularized it.

Let’s suppose it was a clothing store, men’s clothing store on the corner of Maine and Madison in Memphis, Tennessee.

James Van R. Springer:

Mr. Justice, my only, — I think conceivably a line could be drawn according to whether the soldier in question was stationed in the Memphis community or was stationed for example in Hawaii.

Abe Fortas:

I suppose he was —

I’m not asking you that.

Abe Fortas:

I’m asking you for your constitutional theory.

Does the phrase “Government in regulation of the sea and land forces of the United States” authorized, constitutionally authorized Congress by a statute to provide for the prosecution of this man in civilian clothes for this particular offense.

James Van R. Springer:

Yes I think it does but I can see that a distinction could be drawn as to the scope of the jurisdiction to govern and regulate the land and naval forces according to the geographic distance perhaps between where the individual was stationed and where he commits his crimes.

I think there is a —

Abe Fortas:

On what theory?

James Van R. Springer:

I think —

Abe Fortas:

You would have to take the position if I understand you that if a distinction were drawn, it would be incorrect, it would be in violation of the Constitution, do you or do you not say that?

James Van R. Springer:

I say that the jurisdiction extends that far but I think I can say, one might say that the government and regulation of the land and naval forces properly includes the relationship between a military unit and the community in which it is located but perhaps not the relationship between —

Abe Fortas:

You don’t take that position?

James Van R. Springer:

No, I’m not — I’m not insisting on that position.

No I think that —

Abe Fortas:

Does that make any difference to you whether a man was on furlough or whether he was just a — whether he was AWOL or whether he was just out for a night on the town?

James Van R. Springer:

It does not but I could conceive that it might to someone else.

I think one of the problems in this case of course is if you draw, try to draw a circle around military offenses, what is a military offense?

To take the problem of rape, is rape of a lack in uniform on a military post, a military offense or not?

And I think you can play with all of these various factors and I think the problem is not an easy one to find.

Abe Fortas:

It’s not — that’s not one of the questions.

It’s a lead question, isn’t it?

James Van R. Springer:

Yes, it certainly a question that necessarily follows from the position that the petitioner is putting forth in this case.

Some other possible —

Earl Warren:

If you are correct that there can be a constitutional difference, what limits do you ask us to put upon on this thing?

James Van R. Springer:

Well, I think — I think the Constitution does have to be read as leaving it to the judgment of the legislature of Congress as to how far this jurisdiction shall extend.

Now, that there is an absolute jurisdiction.

Earl Warren:

In other word, as long as the Congress authorizes, then there is no constitutional question?

James Van R. Springer:

Yes, but I think if you say anything shorter there, even if you just say as to rape of a civilian, there’s no jurisdiction, I think you are necessarily in the question of where the line does exist.

If you say there is no limit other than the good judgment of the legislature, then you don’t have this problem of course.

But I think it’s not easy to define what is a military defense, military offense, even if you try to do it quite narrowly.

I think that is a problem that necessarily —

Hugo L. Black:

Like your argument, I don’t suppose that you are so far as framers of the (Inaudible) Congress and that it interpret the language of the constitution not in space with that regard and there’s nothing inconsistent (Inaudible)

James Van R. Springer:

Yes, that’s certainly is Mr. Justice.

Hugo L. Black:

I think I answered the Chief Justice’s question, my Brother Fortas’ question, you have to stand as an appellee.

James Van R. Springer:

Yes I do, though I think we might in this particular case even come under a less sweeping statement of the limit of the jurisdiction.

Hugo L. Black:

I might be wrong in the given case, some of the academic screw congressional statutes in the Articles of War and army regulations and the (Inaudible).

James Van R. Springer:

Yes sir, in our position, that does rest upon the existence of a jurisdiction that is limited only by the good sense of the legislature and of course that I think is — that was the historical issue in England I think realistically whether the king should be able to determine the jurisdiction of courts-martial or whether parliament did.

The one thing that our Constitution decided was that it was the legislature and not the executive which would have the authority to determine this jurisdiction but I think that the jurisdiction given the legislature was a broad one.

Of course that although admittedly it was a different issue, that’s what this Court said in Kinsella against Singleton.

It said, the test is the status of the accused, whether or not he was a military man when he committed the crime and when he was tried.

I think it’s very hard to understand the case decided at the same as Kinsella involving civilian employees who were by all tests in affect operating as members of the military forces.

In McElroy against Guagliardo, the Court said that although a civilian was in this working relationship with the jury, since he did not have military status, there was not Court-martial jurisdiction over him.

I think that any test other than status makes it very hard to understand the distinction that was drawn in that case.

Earl Warren:

Very well.