Trop v. Dulles

PETITIONER:Albert L. Trop
RESPONDENT:John Foster Dulles, Secretary of State
LOCATION:Military Stockade

DOCKET NO.: 70
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 356 US 86 (1958)
ARGUED: May 02, 1957
REARGUED: Oct 28, 1957 / Oct 29, 1957
DECIDED: Mar 31, 1958

ADVOCATES:
J. Lee Rankin – Solicitor General, Department of Justice, for the respondent at reargument
Oscar H. Davis – for the respondent at argument
Osmond K. Fraenkel – for the petitioner

Facts of the case

In 1944, United States Army private Albert Trop escaped from a military stockade at Casablanca, Morocco, following his confinement for a disciplinary violation. A day later, Trop willingly surrendered to an army truck headed back to Casablanca. Despite testifying that he “decided to return to the stockade” when he was picked up, a general court martial convicted Trop of desertion and sentenced him to three years at hard labor, loss of all pay and allowances, and a dishonorable discharge. In 1952, Trop applied for a passport. His application was rejected under Section 401(g) of the amended 1940 Nationality Act, on the ground that he lost his citizenship due to his conviction and dishonorable discharge for wartime desertion. After failing to obtain a declaratory judgment that he was a US citizen, from both a district and the Second Circuit Court of Appeals, Trop appealed to the Supreme Court, which granted certiorari.

Question

Did Section 401(g) of the amended 1940 Nationality Act (the “Act”) allow for an unconstitutional punishment by authorizing the expatriation of a citizen convicted of wartime desertion?

Media for Trop v. Dulles

Audio Transcription for Oral Reargument – October 28, 1957 in Trop v. Dulles
Audio Transcription for Oral Argument – May 02, 1957 in Trop v. Dulles

Audio Transcription for Oral Reargument – October 29, 1957 in Trop v. Dulles

Earl Warren:

— Petitioner, versus John Foster Dulles, Secretary of State of the United States.

Mr. Solicitor General.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

To continue my argument with regard to the Trop case, I’d like to first say that the authority for the Act of Congress, 401 subsection (g), consists of the war power, the power to regulate the Government of the armed forces, a power to raise and provide for the support of the armed forces and the Necessary and Proper Clause as it modifies those various powers.

Turning to —

Was the power inherent?

J. Lee Rankin:

I think there is an inherent power but I don’t think it — it has the same problem with regard to foreign affairs, in this case, that there is in Perez and Nishikawa and other cases before the Court.

There’s certainly the inherent power to conduct the affairs of the United States as a sovereign which is also present.

Turning to the facts on page 4 of the transcript, I’d like to call briefly to the Court’s attention the charge three that was involved in the court-martial.

There, it has stated that the 1st Lieutenant Dirr (ph) testified that on May 23rd of the year 1944, and you will recall that this man escaped from confinement.

It wasn’t as though he just left the Army as such.He was in confinement on his first escape on May 9th, 1944, that’s uncontradicted.

Then, after he was brought back on May 22nd, he again escaped and that was the time that the desertion charge was established against him.

Now, in regard to what happened when he was found to have deserted, 1st Lieutenant Dirr (ph) testified that on May 23rd, he was in a truck going from Meknes to Rabat and saw plaintiff who was hold and I think that’s typographical, it should be told him, he was from the hospital and he and a companion boarded the truck and were turned over to the military police in Rabat.

Now, the next line, I think is important to our thinking about this charge of desertion and the seriousness of it.

Earl Warren:

What was his statement, General, to the truck driver that he did what from the hospital?

J. Lee Rankin:

He was from the hospital.

Earl Warren:

Oh, oh, just said he was from.

J. Lee Rankin:

Yes, sir.

And he and a companion boarded the truck and were turned over to the military police in Rabat.

They got in, the next sentence I think is quite important, they got in without any argument and made no attempt to leave the truck.

Now, I don’t seem to think that that language is open to the construction that they were just asked to be taken and voluntarily were going back to get straightened around with their unit because there wouldn’t be any reason for saying that they got in without any argument and made no attempt to leave the truck if it was all voluntary at that time.

Then —

Earl Warren:

Did the truck driver take them into custody?

J. Lee Rankin:

Yes, he took them back.

Earl Warren:

I know.

Did he take them into custody?

I mean, when — when they got into the — to get them into the truck —

J. Lee Rankin:

Well, the language is —

Earl Warren:

— did it say that?

J. Lee Rankin:

— only that it — they boarded the truck and were turned over to the military police in Rabat.

J. Lee Rankin:

So, whether he was treating it as a custody, I can’t tell from the transcript.

Then the Technical Sergeant Helen Alcock (ph) testified that she was in the truck and that plaintiff and another “willingly guarding the truck although nothing was said and that they were walking in the direction of Rabat” and then this is in the direction of Casablanca and away from Spanish Morocco.

Then the plaintiff himself said, “My organization is now in Italy,” and I think that’s very important in regard to the seriousness of this charge so that he had full knowledge of where his organization was at that time.

“I thought it would be possible for me to rejoin my organization and there I might get a brigade commander that would reopen my case.

At the time that Lieutenant Dirr (ph) picked us up, we had decided to return to the stockade.

The going was tough.

We had no money to speak of, and at the time we were on foot and we were getting cold and hungry.”

That’s the end of the quote and that’s all we have as to what was his purpose and intention.

But it doesn’t appear that there’s any clear intention, any repentance or clear intention to try to go back and straighten out his record and try to perform his duty as a citizen and get back into combat.

Now, if you take into account, in addition to that, the situation that was present, that the Court would take judicial notice of, in Italy in regard to the war, we find that the Axis forces had been defeated in Africa.

The fighting in Italy had proceeded and Naples was taken October 1st, 1943 but the offensive bogged down outside of Cassino, halfway between Naples and Rome where the Nazis had built there Gustav Line.

Now, the problem was to bypass this enemy stronghold and an attack was launched at Anzio on January 22nd, 1944.

But the American and British troops were able only to maintain a beachhead there due to heavy Nazi bombing and shelling.

Of course, we’re all familiar with the great losses that were suffered on that beachhead.

Throughout February, March and April of 1944, the Italian fronts remained stabilized.

It was only local actions taking place.

Then on May 11th, after several weeks of extensive air — aerial bombardment, the allies launched their spring offensive.

Cassino was captured on May 18th, after tough and bitter fighting.

Now, if you relate those dates to that kind of condition in Italy, for he knew his unit was, and the threat to life, his life as well as all the others in his unit, to participating in that combat.

I think you get the picture as the court-martial looked at the situation when they examined this case and saw that this man was absent from confinement, first, and then about 13 days later, May 22nd, he was absent again.

And I think that the conclusion is very fair that it was for the purpose of avoiding this combat.

Now, you take into account the shortage of manpower that we had in this country and the demands that were being met — being made upon our armed forces, wherever they were situated in the world, and the great need for manpower seems to me you also must take into account the fact that under this provision of Section 401 (g), it was provided first that before you come to the proviso, there was an opportunity for the man to proceed before he was — got to the place where there isn’t dishonorable discharge and perform his obligation of citizenship by going — satisfying his superiors in going back to his unit and participating in combat like many others did, who were also involved in this situation.

So, being absent and desertion and —

Earl Warren:

General, is there anything in the record that would fairly support the conclusion that he was deserting to the enemy?

J. Lee Rankin:

No.

Earl Warren:

There’s nothing.

J. Lee Rankin:

Nothing.

We don’t think that is necessary —

Earl Warren:

No.

J. Lee Rankin:

— because we think that the whole history shows that there was — the Congress wasn’t contemplating anything like that.But there’s nothing to show that he was deserting for the enemy that he was trying to be treasonable.

J. Lee Rankin:

We think the record, well supports, the position that he didn’t want to fight for his country and that he was busy trying to do the things that would make it impossible for him to have to risk his life on behalf of this country but not to —

Earl Warren:

What was — what was he in prison for the first time?

J. Lee Rankin:

The record doesn’t show — Mr. Chief Justice.

Earl Warren:

It doesn’t show.

J. Lee Rankin:

So that — but it — there’s no question that what this –not just the AWOL case where a man leaves if he can.

He was confined because of the action and I — there isn’t any question but what the record show that it was — he was properly confined —

Earl Warren:

Yes.

J. Lee Rankin:

— at least there isn’t any charge to the contrary.

And so, he was absent from a confinement as distinguished from just participation in his army duties.

And then in addition to that, we have the fact in this case that he could have complied with the proviso as many thousands did, hundreds, at least, in which he could have been restored to his unit if he wanted to and satisfied his superiors, carried out his obligation as citizen.

And there — thereby recovering his citizenship.

Now, before getting to the proviso, he could — he would not have lost his citizenship, at all, because at that point if he satisfied his superiors and returned to his unit and fought on behalf of this country, he never would have lost, because there would not have been a dishonorable discharge at that point.

That was held in abeyance, up to the time it was actually entered.

And if you’ll recall, the Section requires both the elements of conviction for desertion by a trial, by military trial and the further element of the dishonorable discharge.

And there were many that were restored to their units at a good period of service, established their satisfactory military action and were not given dishonorable discharge at all.

They were given either general — general discharge or an honorable discharge.

Charles E. Whittaker:

Was it possible for Trop to return to his unit though if he stayed in confinement as ordered?

J. Lee Rankin:

No, but they — often a man that wanted to go back and fight during a period when the country needed soldiers, as it did this man, at this time, there were many of them who were — their sentence was remitted and they’re put back in their unit and they proceed to fight on behalf of their country and made a good record and got honorable discharge or a discharge –general discharge without a dishonorable.

Charles E. Whittaker:

Was that a matter of discretion with the commanding officer as to whether he’d be permitted to do this?

J. Lee Rankin:

Yes, I think it — there isn’t any question to what would be discretionary.

It would depend on his willingness his satisfying them that he would act in good faith and would not be detrimental to the morale of the rest of the troops that he was with.

But we — they all needed men at that time, both in civilian life and military and here was a man that was already on the ground and the practice was to encourage those men to return and do their duties for other countries rather than have them confined and they’ll have to put guards on them and increase the personnel for that purpose.

So, every action and every motive on — of the Army at that time was to get him back into his unit if he was the kind that wanted it at all.

And I think that should be taken into account in considering the fact.

Hugo L. Black:

When does the record show that?

J. Lee Rankin:

It doesn’t.

It is just a — the way everything was run at that time.

I think you should take judicial notice of the shortage of manpower and the situation and the fact this man was located in North Africa, that he was available there and to replace him, you’d have to get someone else moved up to that point.

But this was a staging position where they were moving in to combat, according to the record that we all know about the action in Italy, and therefore his particular unit, he knew was in Italy and it would be the desire to get him there to help in the fight.

Hugo L. Black:

But we can permit the desertion, quite an extraordinary thing even to give them a discretionary right to take a man back.

Hugo L. Black:

And I’m very surprised to lead you to say that they took him back by the thousands that it was in agreement with desertion.

J. Lee Rankin:

Well, they tried to rehabilitate —

Hugo L. Black:

(Voice Overlap) that?

J. Lee Rankin:

— and reinstate him.

Hugo L. Black:

Can you point us to the — any record that shows they took them back by the thousands and they made the disposition of desertion.

J. Lee Rankin:

In the —

Hugo L. Black:

And it’s — just strikes me as rather unusual.

I — I —

J. Lee Rankin:

Well, they —

Hugo L. Black:

— never thought of that.

J. Lee Rankin:

We refer in the brief to the history of this proviso and the reason for it.

Hugo L. Black:

But how was it — how did it operate?

It’s very careful to say they may be permitted by competent military authority to come.

J. Lee Rankin:

Yes.

I want to make it clear.

I don’t claim that they could do it all by themselves.

They had to satisfy their commanding officers that they were or could be rehabilitated.

But the history in Congress showed that that was the purpose of this proviso to make it possible to reinstate these men rather than just have them as a burden upon the Army and have them lose their citizenship and be in confinement and all of those things.

Hugo L. Black:

I suppose you did not state it’s irrelevant to the — to the legal issue of the (Inaudible) because I was just curious of them.

J. Lee Rankin:

Well, it — it — the Congress dealt with it in the history of the — the legislative history pretty carefully and we’ve referred to it in our brief.

So, that they had in mind these numbers of — large number of desertion cases and put the proviso in as you may recall in the legislative history, in 1944, after the 1940 Act.

The proviso was put in, in 1944, for the purpose of taking care of this very kind of situation.

And so, I think in light of that, you have to take into consideration the — the fair assumption here that this man just wasn’t subject to rehabilitation and didn’t want to be rehabilitated.

Hugo L. Black:

I don’t think we can do that part of the decision.

J. Lee Rankin:

Well —

Hugo L. Black:

(Voice Overlap)

J. Lee Rankin:

— we think it’s open to that —

Hugo L. Black:

It might be also —

J. Lee Rankin:

— construction.

Hugo L. Black:

— it might be also thought that when he’s already been in jail once and got away again, there’s (Inaudible) once and got away again, the — the usual feeling of the Army for a man of that kind particularly at war time was up at the top and he’s probably nowhere and — and he couldn’t get in, wouldn’t that be just as reasonable [Laughs] as the evidence of this?

Hugo L. Black:

I don’t think it’s really so.

Felix Frankfurter:

What was the magnitude of the desertions in number?

Have we got figures on that approximately?

J. Lee Rankin:

The history shows thousands.

That’s all that I — that it was referred to in —

Felix Frankfurter:

That it was a sizeable amount, was it?

J. Lee Rankin:

Oh yes.

It was so serious that the commanders were instructed to warn all the soldiers in their units of the seriousness of it, of the seriousness of the penalties for it.

And the President went so far as to issue a proclamation in which he removed the tie on the penalty, the penalty that could be imposed.

Felix Frankfurter:

What was the tie?

J. Lee Rankin:

Well —

Felix Frankfurter:

Death, was it?

J. Lee Rankin:

Yes.

So it was possible to award the penalty of death.

Felix Frankfurter:

We know — we know that Lincoln had a great deal of qualms and compassion and worries about that in that famous sentence to which he told, “I’ll send a young lad to death whether the fellow instigated him to do this, I can’t do anything with it.”

J. Lee Rankin:

That’s right.

And I’m sure that President Roosevelt when he did that didn’t do it without regard for the seriousness of the situation.

Earl Warren:

Mr. General, are there any — any reports — any Government reports that show how many people were or how many soldiers did desert and how many were convicted of court — by court-martial and how many were — were — have their citizenship restored.

Would the Army — any army report show that?

J. Lee Rankin:

I haven’t inquired but I could —

Earl Warren:

Do you know?

J. Lee Rankin:

— if the Court would like to have me.

Earl Warren:

If there are any — if there are any such, I wonder if you’d be good enough to get it for us.

J. Lee Rankin:

I’ll try to.

Earl Warren:

Thank you very much.

Mr. Fraenkel.

Osmond K. Fraenkel:

This rather hypothetical account of what Trop might have done under the difficult circumstances of 1944 seems to me wholly out of place in this case, has nothing to do with the legal principles involved.

Moreover, I think it’s a reconstruction that has no substance.

In fact, bear in mind that the reviewing authorities criticized the leniency of the three-year confinement at hard labor in this case.

Can anyone suppose that under those circumstances they would have yielded to importunities to sentence the — remitted altogether and he’d be sent back particularly in view of the fact that before the court-martial, he testified that his escape was motivated by his desire to get back to his unit who’s fighting in Italy.

Osmond K. Fraenkel:

Well, I will leave that because I don’t think it touches the issues in this case.

Felix Frankfurter:

May I — may I put to your hypothetical case if it may not be unfairly hypothetical.

Suppose, unfairly hypothetical but I don’t think under declared certain acts.

But suppose Congress made desertion, an offense punishable like an — civilly by the ordinary form of indictment , a trial by jury, upon the return of a soldier or bringing back the soldier and affix as a punishment the term of years plus the abrogation of said citizenship.

Would that be unconstitutional?

Osmond K. Fraenkel:

I would say yes.

I would say there was a lack of rational connection and I would also say that was cruel and unusual punishment in the view taken by Judge Clark in the Second Circuit.

Felix Frankfurter:

Well, tell me.

I ought to know but I don’t.

Is there — is the consequence of certain conviction loss of citizenship?

Osmond K. Fraenkel:

No.

Felix Frankfurter:

Never?

Osmond K. Fraenkel:

Not as such.

Felix Frankfurter:

What do you mean by that?

Osmond K. Fraenkel:

We — well, there are no provisions in the United States penal law which contain additional penalties involving loss of citizenship although there are and I have referred to them in my brief, quite a number of such provisions which involve loss of various rights such as the right to hold office.

There are, in the Nationality Act, a number of sections which do provide loss of citizenship following convictions for certain crimes —

Felix Frankfurter:

And, I don’t —

Osmond K. Fraenkel:

— which have not yet come before this Court, insofar as I know, have never yet been invoked.

Conviction of advocacy of the overthrow of the Government under the Smith Act is one of such crimes.

Felix Frankfurter:

Am I wrong in recalling in the days when I used to look at such things in the back of the report of the Attorney General, a list of exercising into the pardoning power by the President?

Am I wrong in recalling numerous instances in entering with the restoration of citizenship?

Osmond K. Fraenkel:

Yes.

Felix Frankfurter:

I’m wrong?

Osmond K. Fraenkel:

(Voice Overlap) no.

Felix Frankfurter:

On this?

Osmond K. Fraenkel:

No, no, you’re not wrong.

Restoration of citizenship rights was what was meant.

In other words, that brings us back perhaps to the semantics of the statute of 1865 which spoke of the loss of the rights of citizenship which was generally interpreted, meaning the loss of the right to vote and to hold office.

Although there are other authorities as the Solicitor General mentioned yesterday which — made that phrase equivalent with the loss of nationality.

Now, it is true that President Coolidge, I’ve been informed, signed an amnesty act dealing with the deserters in World War I which purported to restore to them the nationality which they may have lost under — remnants of the Act of 1865.

Osmond K. Fraenkel:

But as far as I know, no case has yet arisen where, as the result of conviction for crime, a person has lost his nationality although, as I said, there are certain provisions of law which it’s ultimately sustained, here, when they do become tested would have that result.

Felix Frankfurter:

The Smith Act isn’t the originator of that provision.

Osmond K. Fraenkel:

Oh, no.

This was a very recent amendment to the Nationality Act, as a matter of fact.

The — the one dealing with conviction on the Smith Act is one of the latest additions to the Nationality Act.

It didn’t exist in the Nationality Act of 1940 the — which we are here concerned.

I want —

Harold Burton:

Can you draw a line between a statute that is — if you think about the loss of — of nationality and the — and the effect that we should bring about the loss of many — many rights of — of citizenship —

Osmond K. Fraenkel:

Oh yes.

Harold Burton:

(Inaudible)

Osmond K. Fraenkel:

Oh yes.

Harold Burton:

(Inaudible)

Osmond K. Fraenkel:

There is no constitutional right to hold office and Congress has a considerable control over a determination as to who shall hold federal office.

There is, we submit, a constitutional right to be a citizen.

And the control of —

Felix Frankfurter:

The person has the right to vote.

The limitation upon it is — is not bad.

Osmond K. Fraenkel:

Well, I have always doubted the interpretation of the 1865 Act which had anything to do with the right to vote but that was never tested for the reason parenthetically that in the first place, the qualifications for the right to vote are state determined and they’re not federally determined.

Hugo L. Black:

Mr. Fraenkel, is your position there get down to this?

I’m not sure of that.

That for a crime, a man could be deprived of the right to vote, could be deprived of a number of other rights with the connections of — by living in this country as a citizen does.But that he cannot be made in the State live.

Osmond K. Fraenkel:

That’s right.

Hugo L. Black:

So, it’s the Constitution makes him a citizen of the country?

Osmond K. Fraenkel:

I say, he —

Hugo L. Black:

And therefore, protects him from being banished as a punishment for a crime or for anything else.

Osmond K. Fraenkel:

Yes.

That is my position.

Hugo L. Black:

And that’s your position?

Osmond K. Fraenkel:

Yes.

Felix Frankfurter:

Does denial of — the withdrawal of citizenship equal banishment?

Osmond K. Fraenkel:

No, no.

But it does equal —

Felix Frankfurter:

(Voice Overlap) —

Osmond K. Fraenkel:

— it does —

Felix Frankfurter:

(Voice Overlap) —

Osmond K. Fraenkel:

It does create.

It does —

Felix Frankfurter:

How about court penalty other than this case, sir?

Osmond K. Fraenkel:

It does create a condition of statelessness —

Felix Frankfurter:

What does the law —

Osmond K. Fraenkel:

— list in the situation here present where there is involved no connection whatever with any foreign country.

Banishment is an additional point and —

Hugo L. Black:

What does the law provide with reference to a noncitizen to the right to stay in this country (Inaudible)

Osmond K. Fraenkel:

Well, there’s a whole —

Hugo L. Black:

— in the State.

Osmond K. Fraenkel:

— there’s a whole host of grounds for deportation, of course.

But we’re not involved in that yet.

May I add only two other things in —

Hugo L. Black:

Deportation relates to alienation.

Osmond K. Fraenkel:

That’s right.

It is —

Felix Frankfurter:

That a man is deprived of citizenship doesn’t necessarily, to my logical — such hap — such a fast hap for logic means that he becomes an alien.

Osmond K. Fraenkel:

Well, I don’t know.

I don’t see it.

Felix Frankfurter:

Not a stateless person may not be an alien and the fact that he’s deprived of citizenship doesn’t mean that if he sought to be deported —

Osmond K. Fraenkel:

In my —

Felix Frankfurter:

— that — that he can be deported —

Osmond K. Fraenkel:

— my innocent — I’m —

Felix Frankfurter:

— under all —

Osmond K. Fraenkel:

I’m —

Felix Frankfurter:

— all different steps.

Osmond K. Fraenkel:

Deporting is another matter.

But —

Felix Frankfurter:

Certainly it is.

Osmond K. Fraenkel:

— as far as being an alien is concerned, my — my innocence, I thought a person was either a citizen or an alien.

He couldn’t be —

Felix Frankfurter:

That’s why we used the word —

Osmond K. Fraenkel:

— anything in between.

Felix Frankfurter:

— “stateless”.

That’s why we used the word “stateless”.

Osmond K. Fraenkel:

About the stateless because he’s not a citizen of any other country.

But he’s still an alien in respect to this country, two other things briefly, if I may.

Felix Frankfurter:

We’ll probably get in that, Mr. Fraenkel.

Osmond K. Fraenkel:

Well —

Felix Frankfurter:

We’ll probably (Voice Overlap) —

Osmond K. Fraenkel:

I’m trying now unfortunately with this white light staring at me to deal with it, unless I’m given a few minutes indulgence.

As to the statistics which are on the brief in the Perez case, I suggest they are meaningless because I believe they are statistics only of people whom the lightning struck, that is people who applied for passports so were accorded the boarders, not the numerous people who may have been convicted of court-martial for desertion and given dishonorable discharges.

Moreover, I think it should be kept in mind that I doubt whether even the military authorities, many of them realized what was happening.

And that loss of nationality would result.

Certainly, the soldier, ordinary soldier knew nothing about it.

And finally, reference was made yesterday to the so-called trial de novo under 503.

Of course, trial de novo is a misnomer.

There is a judicial hearing.

In this particular case, there would be no issue of fact to be determined at the hearing, the identity of the individual being conceded.

All of the facts are record facts.

So the additional hearing would deal only with questions of law which we’ve raised and which fortunately we’re able to present here.So that it isn’t a trial in a full sense.

There is no retrial, for instance, of the issue of desertion.

That is determined by the court-martial conviction.

It’s not open under 503.

So, we — as to the war power, we submit the war power in this context is no greater than the power to meet our criminal justice and that therefore the penalty of loss of nationality has no rational relation with the conduct of the armed forces.

Osmond K. Fraenkel:

It has rational relation with foreign affairs and with no other aspect of our existence as a sovereign so that no inherent power exists to deal with that subject outside the realm of international relations which is not in any respect involved in this case.

Tom C. Clark:

Mr. Fraenkel, the only question I asked you (Inaudible) has been taking your time.

Now, reverting back to the pardoning power of the President, assume that the President will pardon Trop for his court-martial, what would happen to (Inaudible)

Osmond K. Fraenkel:

Well, as I’ve said, President Coolidge — Coolidge purported to do just that to restore nationality.

I’ll doubt if the legal effect of it was — was never questioned.

I doubted for the reason that it is not the offense for which the disqualification here is imposed but the dishonorable discharge and I don’t know any pardoning power in the President which can change a dishonorable discharge into different kind of discharge.

Tom C. Clark:

You crossed the pardon?