United States ex rel. Toth v. Quarles

PETITIONER:United States ex rel. Robert W.Toth
RESPONDENT:Donald A. Quarles, Secretary of the Air Force
LOCATION:

DOCKET NO.: 3
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

ARGUED: Feb 08, 1955 / Feb 09, 1955
REARGUED: Oct 13, 1955
DECIDED: Nov 07, 1955

ADVOCATES:
Marvin E. Frankel – for the respondent in the original argument
Simon E. Sobeloff – Solicitor General, Department of Justice, for the respondent in the reargument
William A. Kehoe, Jr. – for the petitioner

Facts of the case

Question

Media for United States ex rel. Toth v. Quarles

Audio Transcription for Oral Reargument – October 13, 1955 in United States ex rel. Toth v. Quarles

Earl Warren:

Number 3 on the calendar, United States of America in relation with Audrey M. Toth versus Donald A. Quarles, Secretary of the United States Air Force.

Mr. Kehoe.

William A. Kehoe, Jr.:

If the Court pleases.

The case at far arose upon the filing of a petition for writ of habeas corpus in the United States District Court for the District of Columbia.

We are here before the Court and the case comes before this Court on a writ of certiorari which was granted to the United States — running to the United States Court of Appeals for the District of Columbia.

The facts of the case very briefly stated are as follows.

Toth, the prisoner on whose behalf of petition was filed in the District Court is an honorably discharged serviceman.

He was discharged from the United States Air Forces on December 8, 1952.Prior to his discharge, he had served in Korea.

From the time of his discharge on December 8, 1952 up until the present time, Toth was then and is a civilian resident of Pittsburgh, Pennsylvania.

As to my understanding that at the present time, he is employed by the City of Pittsburgh.

At the time the incidence, which we will allude to in a minute, occurred he was employed in civilian capacity at a steel plant in Pittsburgh.

On April 8, 1953, there was an accusation filed, a sworn accusation filed against Toth by Colonel Hurst, who was attached to the Fifth Air Force in Korea, alleging and accusing Toth of having committed murder and also accusing him of conspiring to commit murder on or about September 27, 1952 at a time prior to his discharge from the service.

On April 30, 1953, the Acting Secretary of the Air Force ordered the apprehension of Toth and his delivery to the commanding officer of the Fifth Air Force in Korea.

On May 11, 1953, I allude to this fact because of the argument that will subsequently be made about who is Toth’s commanding officer or who could have been Toth’s commanding officer, should be noted that the Secretary of the Air Force ordered him to be delivered to the Commanding General of the Fifth Air Force on May 11, 1953 according to the record.

The Commanding General of the Continental Air Command at Mitchel Air Force Base in New York ordered the apprehension or arrest of Toth.

On May 13, 1953, Toth was arrested by a major and captain, and three air policemen and as they entered his place of employment in Pittsburgh, he was subsequently transported to Korea.

On May 27, at the time the petition for writ of habeas corpus was filed, Toth was in confinement on the order of the Air Forces in Korea and he was in confinement until September 3, 1953 when the District Court sustained the writ of habeas corpus and ordered his discharge.

The issue which is presented to the Court is very broadly stated as whether Congress invalidly enact legislation which would seek the court-martial of a civilian who was not connected with or affiliated in any manner with the Armed Forces and cause such a civilian to be arrested, confined, and transported from Pittsburgh, Pennsylvania, some 13,000 miles to a foreign country of Korea without any hearing of any type, and there to be held for the purposes of a court-martial.

Our case is broken down into three broad parts.

The first part, if we can put it that way is the failure of authority under the Constitution for Congress to enact legislation, looking to the court-martial of a civilian.

The second part is a complete bar in the Constitution under the Fifth and Sixth Amendments.

And the third part, looking to the uniformed code of military justice itself is that there is a casus omissus in the statute.

I would like to make it very clear to the Court a few general statements that Toth at all times, pertinent to the inquiry here, was a civilian.

He is still a civilian.

At the time he was arrested or apprehended by the Air Force police, he was a civilian.

As I stand before the Court this afternoon, he is a civilian.

If when he was arrested, he had worn or was wearing an Air Force uniform or any part of an Air Force uniform which would connect him with the Air Force, he would have been subject and would be presently subject to criminal prosecution in a civil court.

That’s under our code.

He had absolutely no connection with the military forces.

He was not a member of the reserve.

William A. Kehoe, Jr.:

He was not a member of any component parts of the Air Force.

He was receiving no benefit from the Air Force.His connection with the Air Force had completely — been completely severed with his honorable discharge.

More importantly, he had no commanding officer under any manner, shape or form.

He was completely and fully a civilian.

There was no officer of the Air Force who could order him to go and he would have to go or to come and he would have to come.

There was no one in the Air Force who had any supervision or authority over Toth at all at the time of his apprehension and up until the present time.

I would also like to allude to the fact and make it very clear that the court-martial procedures, which have been in effect in this country since prior to our Constitution, are in no sense to the word “a judicial procedure.”

The purpose of the court-martial is not to give justice.

The purpose of the court-martial is to summarily punish disobedience among the military forces.

This Court has held many years ago that a court-martial and the Army was no — in nowise a part of the judicial branch of the Government.

That was in Dynes versus Hoover, I think was decided in 1827 and during the course of the Civil War in Ex parte Vallandigham, this Court also alluded to the fact that an appeal from a military commission was not a part of our judicial system.

The purpose of a court-martial is to maintain discipline in the ranks.

We say that we would like to emphasize that fact because there’s been allusions in the Government’s brief and allusions as I recall them at the time of the prior argument, that it was a proper function of Congress to pass this Article 3 (a) in the Uniform Code of Military Justice to see that discharged servicemen were meted out justice.

Now, that is not the principle or problem of Congress when it enacts regulations for the Government and regulation of the land and naval forces.

Once the man is discharged from the service, the land and naval forces has no problem in connection with their punishment.

And we say again as we said that the — have said in our brief and said at the time of the previous argument that if the issue which is presented or was presented to Congress was looking to justice then Congress can enact a valid statute which would ensure to an accused the rights guaranteed by the Constitution.

The history of court-martial procedures as we know it in this country or in best of my research would apparently commence with the Mutiny Act, which was passed in Great Britain, 1689 at the time that William of Orange mounted to the throne of England and the Irish truce which were — had served — were — were serving in the Army at that time determines the mutiny against his authority.

The Mutiny Act which was passed in 1689 was for a very brief period of time and it provided for the punishment of soldiers as a court-martial procedure toward mutiny from the Army.

But it starts off in this fashion, the law of England and whereas “No man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law or in any other manner then by the Judgment of his Peeres and according to the knowne and Established Laws of this Realme.”

Yet nevertheless, it being requisite for retaining such forces as are or shall be raised during this exigency of affairs in their duties, an exact discipline be observed, and that soldiers who shall mutiny or stir up sedition, or shall desert the Majesty’s service, be brought to a more exemplary and speedy punishment than the usual forms of law shall allow.

At the time this Mutiny Act, incidentally, the original Mutiny Act was in existence, I think from April until November.

It was the intent of the parliament even in those crucial days to see and to make the statement as a part of the Mutiny Act that the jury trial would not be denied even to the soldier, except in the particular case of mutiny or rebellion.

The Mutiny Act has been in existence I think under various phases and aspects of it in England until 1881.

At the time of the American Revolution, there was an existence to British Articles of War of 1765.

To digress for a minute, it has been stated that both the British Army and the American Army during the time of the revolution had the same — same articles, identical articles for the government of the troops.

And the British Act of 1765 was the Act that governed the British troops at the time of the American Revolution.

That those articles specifically provided that in the event of murder, or capital offense committed by any of the troops, it was the duty of the commanding officer to turn that soldier over the civil magistrate to be tried according to the civil law.

That’s Section 11, Article I of the British Articles of 1765.

And if Your Honors will recall for a moment in the Boston Massacre of 1770, which the British troops fired on the citizens living in Boston and killed I believe some five citizens and the great human cry they raised at that time to have those British soldiers summarily punished and court-martialed.

John Adams came to the defense of the British soldiers and by legitimate means, it was held that those men should be tried in the civil courts of Massachusetts and sometime after the massacre occurred, they were tried in the civil courts of Massachusetts, and the captain in charge of the troops was acquitted by the civil court, a jury trial.

William A. Kehoe, Jr.:

And I believe that the highest penalty meted out by that court was the penalty of manslaughter.

After the British Articles of War, the Continental Congress in Massachusetts passed the Massachusetts Articles of War in 1775.

It’s pretty much the same and identical to the British Articles of War, except that the soldiers had the right who were serving in the Massachusetts colony at that time not to subscribe to those Articles of War if they didn’t see fit.

The Continental Congress in June 30 of 1775 passed the American Articles of War and they were based on the British Articles of 1765.

On September 20th, 1766, the American Articles of War were revised by the Continental Congress and those articles specifically provided that the soldier who committed murder or a capital offense would be turned over to a civilian magistrate for trial.

Now, the same Congress which enacted — Continental Congress, which enacted the American Articles of War of 1776, also brought into being Article I, Section 8 of the Constitution Clause 14, that the Congress shall make Rules for the Government and Regulation of the land and naval Forces.

That phrase as it is contained in the Constitution is lifted from the Articles of Confederation, word per word, the power of Congress.

And we have the Congress that first started — the Confederate Congress, not the Constitutional Congress but the Congress that was in existence in 1776 that provided or instituted this provision of what Congress should do with respect to the military, specifically providing in the first articles which it adopted that a man who was accused of murder or a capital offense should be turned over to the civil magistrate for trial.

We also know that in England, about that time, the case of Grant versus Gould, it was decided and in that case the issue under then the British Mutiny Acts and their Articles of War was whether — the issue that was presented to the Court was whether or not the accused was a civilian because if he was a civilian, he could not be court-martialed irrespective of whether he had served in the Army before.

Grant versus Gould is reported at 2 Henry Blackstone, page 69, 126 English Reports at 434.

I would also like to make it clear that brings us up to the time the Constitution was adopted.

Now, since the time the Constitution has been adopted, there was never any provision in any Articles of War that a civilian could be tried by the military and looking at the articles that were for the Government and regulation of the navy and the articles that were adopted for the Government and regulation of the army, there was never any provision in any code or any statute that discharge from the service was a bar to subsequent prosecution.

There was the usual statute of limitations contained in the articles of two years or something of that sort, five years.

No statute in the event of murder but there was never any provision in the articles that discharge from the service was a bar, that honorable discharge from the service was a bar, or that dismissal from the service was a bar.

Yet up until the time — up until the present time, in fact, it has been the universal holdings of the courts that discharge of the — from the service is a complete bar to military prosecution for any offense committed in the service prior to the time of discharge.

Up until March 2, 1863, no statute had ever been passed or no allusions were ever made either in this Court or any other court that the military would have jurisdiction over civilians.Then during Civil War days, the 37th Congress at the 3rd Session, the Act of March 2, 1863 was passed.

The first section of that statute specifically states that there were — this was for the emergency that was existing in time of war.

It was a war time measure.

The Senator who introduced the Bill on the floor of the Senate — my recollection is that it was Senator Howard, realized that this field which was in many sections, the first section dealing with embezzlements by troops and officers.

Second section providing that irrespective of discharge, that they were still subject to trial by court-martial.

The third section I believe called for the court-martial by the military of any civilian contractor who embezzled from the United States and then there was another section providing for informer privileges and penalties that would accrue to a person committing fraud against the United States.

The Senator who introduced the legislation in the Senate, Senator Howard in introducing the Bill, stated that there was a question concerning whether the military could court-martial a civilian.

But that was not a problem for the Congress.

That was a problem for the judiciary, the courts to decide.

(Inaudible)

William A. Kehoe, Jr.:

That’s the 12 6960 reference — the Congressional Globe, 37th Congress, 3rd Session, page 952.

To the statute?

I think it’s 12 stats at large 696.

Hugo L. Black:

You have citation?

William A. Kehoe, Jr.:

Yes, we do, Your Honor.

William A. Kehoe, Jr.:

And the allusion, this reference is made to the Congressional Globe.

But we do not allude to what Senator Howard said.

No, sir.

Hugo L. Black:

(Inaudible)

William A. Kehoe, Jr.:

Well, Senator Howard in his statement?

Hugo L. Black:

No.

William A. Kehoe, Jr.:

No?

In the brief?

That’s at page 32, the footnote on page 32.

Now, Senator Howard who was the manager of the Bill, in arguing the Bill before the Senate, they have to the Bill stated that the military could court-martial any contractor who did business with the Army and any contractor who did business with the Army could — could be considered a member of the Armed Forces just as though he was serving in the Army.

Now, this Act of March 2, 1863 is apparently the strongest stone upon which the Government relies in their presentation, saying apparently that this Court should not strike down at this late date, legislation which has been in existence for some 90 years.

And they referred to the case of In re Bogart in the Circuit Court in California.

I think the case was decided about 1872, which stands for the proposition that this Act of Congress was constitutional.

In re Bogart is discussed at some length in our brief.

It stands for the proposition that the Act of March 2, 1863 was constitutional.

It also stands for the proposition that the military can court-martial a civilian at any time, irrespective of whether or not there was an Act of Congress of March 2, 1863 in existence.

And the Government would apparently want to adopt the Bogart decision or have this Court adopt the Bogart decision which refers to the Fifth Amendment on the fact that cases in the Fifth Amendment as the word is used in the exception in the Fifth Amendment means nothing more than events.

But going back to this 37th Congress, which adopted the legislation, that’s the Act of March 2, 1863, they also as a part of that same legislation, the same Act, the same statute has a different section, leave it with Section 3 enacted the provision that civilians who did business with the Army and who performed any embezzlement or embezzled any money from the United States would be court-martialed.

That provision was struck down in the case of Ex parte Henderson approximately 1868 and from that day to this, it has never been arisen — it’s heard again.

Now, on March 3, 1863, another statute was approved which had been passed in that same Congress.

It could be called Civil War Draft Act, we will — that was its main tenor and purpose.

But that was the Act — one of the sections of that Act which also set up the very infamous military commissions which existed during the Civil War.

This Court had occasioned to consider the Act of March 3, 1863 through the day after one that we have in issue here or pass it over that’s in issue here and in Ex parte Milligan struck down that statute and up until the present time we had thought, this Court had made it very clear in Ex parte Milligan that the right of a civilian citizen of this country guaranteed him in the Fifth Amendment and the Sixth Amendment could not be deprived by any Act of Congress setting up a military commission or military government.

The third point that we have before the Court is the consideration of the Uniform Code of Military Justice itself.

We previously stated to the Court and stated in our brief and was — as was ruled by the District Court, there is a casus omissus in the Uniform Code of Military Justice.

Article 3 (a), which apparently is the section of the code, the Government says is in jurisdiction provides that irrespective of discharge or change of status that a soldier shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status.

It is our position that there is nothing in Article 3 (a) which permits the military to arrest, apprehend, or confine a civilian.

When Congress said that the military — that this amenability would still — still exist, it didn’t say that the military would have jurisdiction to try a civilian or the honorably discharged soldier.

It merely used the loose words — loose word “amenability.”

There’s nothing in there.

William A. Kehoe, Jr.:

There’s no article of — Article 3 (a) which says anything about jurisdiction over a civilian.

The Court Of Appeals in its opinion states that what Congress intended by that was that discharge would not be an absolution for crime.

We can agree with what the Court of Appeals said.

Article 3 (a) may be an intention of Congress, or a thought of Congress, or a resolution of Congress that discharge will not be an absolution for crime.

But the recognition that discharge is not absolution for crime does not confer jurisdiction on the — over the discharged person.

Irrespective of the Constitution itself, the statute in issue does not confer jurisdiction.

The Air Force, if I may characterize their argument and their position throughout this case, apparently has — playing the old shell game with the Court.

They put three shells up, Article 3 (a), Article 7, and Article 9, and say — says to the Court then to the court below and to the District Court, that jurisdiction over this civilian is in these shells.

You pick up the shell of Article 3 (a), not a reference to jurisdiction.It can’t be interpreted to confer a jurisdiction.

It was no intention in the language to confer jurisdiction.

You pick up the shell of Article 7.

Article 7 calls for the apprehension of various people.

They say apprehension as defined in Article 7 (a), as apprehension is the taking into custody of a person at simple arrest, the arrest that we know in civilian life that every police officer arresting without a warrant has the right to do.

Article 7 (b), any person authorized under regulations governing the Armed Forces to apprehend persons subject to this code or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.

First, we say under Article 7 (b) that Toth a civilian is not one of those persons who are subject to this code.

Article 2 of the Code at least very definitely and completely some 12 categories of persons who are subject to the code and an honorably discharged serviceman is not listed in those categories.

Secondly, Article 7 (b), if it could be stretched to include the arrest — arrest or apprehension of a civilian merely means exactly what it says.

All they can do is take him into custody and then what can they do with him?

The regulations were — which were issued under Article 7 state that they must then turn him over to his commanding officer, the arrested person.

That they cannot do with Toth and in any event, Article 7 has nothing to do with jurisdiction for court-martial by jurisdiction to try by court-martial.

If you pick up the shell of Article 7, you see that there is no jurisdiction to try a civilian.

If we look to Article 9, Article 9 defines arrest and confinement.

States Article 9 (a), confinement is the physical restraint of a person.

And that is what has been done with Toth up until the time in September 3 that his discharge was ordered by the District Judge, he was held in confinement by the Air Force.

(Inaudible)

William A. Kehoe, Jr.:

Article 3 (a).

If Your Honor pleases, we can adopt the language of the Court of Appeals, its — Congress intended that discharge would not be absolution for a crime.

That’s the declaration of a policy.

That is our conclusion on Article 3 (a).

It may have been Congress’ intention, the intention of Congress to confer jurisdiction over a discharged serviceman.

William A. Kehoe, Jr.:

But with all due respect to the Congress, they didn’t do so and that is our position with respect to that.

If you examine the three articles in question, which are the only articles that the Air Force can rely on, look at each one of them, you’ll see that there is no jurisdiction to court-martial this civilian.

And the — in its brief, the Government practically concedes that as reference to commanding officer in Article 9 that Toth cannot have a commanding officer.

He is a civilian.

He has no commanding officer.

They say, “Where will we find the commanding officer?”

You will look to the regulations.

But they did not cite a regulation.

And we respectfully submit to the Court there are no the regulations which would permit the confinement or trial of Toth.

We also respectfully submit to the Court that under the Uniform Code of Military Justice, the President has no authority to promulgate any such regulation or regulations.

The authority is not given to the President and it is the Congress who has the authority to make rules for the Government and regulation of the land and naval forces.

We respectfully submit to the Court that under — when this Act of Congress is broadly looked at, the Court will see that Congress is devoid of authority under Section 1 of the Constitution to enact any legislation that would look to court-martial of a civilian.

When we look to the Fifth and Sixth Amendment, we’d see that there is a complete bar to the court-martial and deprivation of the right of a civilian.

Harold Burton:

Mr. Kehoe, while you’re on that section, that Article 9 and the commanding officer, the language doesn’t say confinement by his commanding officer, it says by a commanding officer to whose authority he is subject.

Is that a possible interpretation as a commanding officer in a military field who has authority over a civilian could maybe in his area?

William A. Kehoe, Jr.:

That’s correct, Your Honor.

It can be interpreted that way and I think that is the reasonable interpretation to name.

Harold Burton:

So he doesn’t have to have his commanding officer?

A commanding officer has authority there?

William A. Kehoe, Jr.:

That’s right.

Of course Toth was not connected with the military and had no commanding officer, and was subject to no commanding officer.

Harold Burton:

No, but he was a civilian who was in the area that did have a commanding officer?

William A. Kehoe, Jr.:

Not at the time his confinement was ordered, if Your Honor please.

He was in Pittsburgh.

Now — oh, you mean, was there a commanding officer in charge of Pittsburgh?

Harold Burton:

No, the commanding officer that had authority over the jail or to whatever it may — it might be if he was around the area.

I mean, the point that I was making, they continually said that he had no commanding officer.

Well, I suppose a civilian doesn’t have a commanding officer, a commanding — but a civilian is subject to the authority of a commanding officer in the area where the civilian happens to be.

William A. Kehoe, Jr.:

I’ve misunderstood your original question, Your Honor.

There are civilians who are affiliated with the Armed Forces such as a camp follower type that a person who signs a contract with the Army could go to Korea and perform some engineering functions or something like that sort.

William A. Kehoe, Jr.:

They are subject to a commanding officer when they’re working in that particular area.

Harold Burton:

There is —

William A. Kehoe, Jr.:

That is the type of civilian I thought Your Honor had referenced to.

Harold Burton:

No, I’m talking about an ordinary civilian but he happens to be on a military reservation made a civilian and there is a commanding officer there who has authority over the area.

And I thought that might be what this is talking about rather than talking about his having a commanding officer (Voice Overlap) —

William A. Kehoe, Jr.:

Well, Your Honor, that’s like saying as I stand before Your Honor this morning as a civilian that the commandant of a Military District of Washington is my commanding officer and I respectfully submit to the Court that he has absolutely no authority over me.

Harold Burton:

Well, the — the commanding officer of the Military District here is not your commanding officer.

He is a commanding officer of this area.

You happened to be here and on a certain subject, if you went over in his front yard, you’ll be subject to his authority.

William A. Kehoe, Jr.:

But the only persons that he can command in this area are people in uniform, subject to his command.

Harold Burton:

But if you find yourself over on his front porch, well then you’re in an area that’s subject to his authority?

William A. Kehoe, Jr.:

In that sense, yes.

Harold Burton:

That’s what I’m talking about.

William A. Kehoe, Jr.:

When we look again at the Uniform Code as the Board of Act of Congress, if we can call it that, this business of concurring jurisdiction to try and honorably discharged serviceman and the deprivation of the rights guaranteed in the Fifth and Sixth Amendments, I believe the best example that we have of that is the fact that there is no — absolutely no provision in the code for admission to bail.

If we examine this case, unless the District Court at the time the Government indicated its intention to appeal, had put Toth on a bail bond, an appeal bond he would still be held in confinement for some two years by the Air Force, no means of livelihood, no means of supporting his family, no means of hiring attorneys or counsel, no means even of buying cigarettes, has no money at all.

Now, the — as my understanding, I don’t have a citation to the case that the Court of Military Appeals had before it a soldier, man in service who is requesting the right of bail, no provision in the code.

And the Court of Appeals said there’s no necessity for any such provision in the Uniform Code of Military Justice because the soldier doesn’t need bail.

He is receiving his pay when he is in confinement.

His family, if he’s — if he’s supporting his family from his pay, is being taken care of.

He is being fed.

He is being clothed.

His insurance and all his other benefits that he gets as a serviceman keep accruing to him when he’s in confinement awaiting trial.

He is much different than a civilian.

Not only that, but he doesn’t need money for attorneys.

Attorneys are appointed by the service involved.

So all the benefits that a civilian would get by being allowed to go free on bail, the soldier is not deprived of that, other than his freedom and that is apparently was not important to the Court of Military Appeals.

Now, we respectfully submit that the — that one little example, the fact that Congress would not have a section in here permitting an honorably discharged civilian to go free on bail pending the time of trial shows that this legislation was not well fought out and that Article 3 (a) does not serve the purpose which the Government says that it does.

Earl Warren:

Mr. Solicitor General.

Simon E. Sobeloff:

May it please the Court.

Of course if the statement to the question, as announced by my Brother is correct, there’s no problem before this Court.

Simon E. Sobeloff:

He states the question in some language like this.

Can the Air Force arrest a civilian in no way connected with the military service at anytime pertinent to the case?

And he has no difficulty in arising there’s a negative answer, and I agree with him.

If this were the case of military service attempting to exert jurisdiction over a civilian, who at no time had any connection with the military, at no pertinent time, I would agree with its conclusion.

This is not such a case, this is a case of a man who while in the military service is a — it is said he’s discharged, committed a murder and the question is entirely different from what he states.

It’s a question whether having been in the military service at the time of the alleged offense and not being subject to any accountability in any civil court, federal or state, whether under such circumstances Congress could validly, as it attempted, grant military jurisdiction to trial.

(Inaudible)

Simon E. Sobeloff:

Both the alternatives were presented to the congressional committee and very cogent arguments were made both ways, but there was no constitutional compulsion on Congress to adopt the method that they now seem to prefer, namely, a trial in the Civil Court.

I have no doubt that Congress could constitutionally have said that a soldier while in the service commits an offense and is discharged, shall be answerable in a federal court or in a state court.

Certainly in the federal court after his discharge, but they could equally, validly say they shall continue to be applicable to the military jurisdiction after his discharge, despite his discharge provided and these are the provisions they put in there.

Provided it is an offense of sufficient magnitude, namely, where the charge — where the penalty maybe five years or more.

Provided that you observe the limitations provisions, he gets the benefits of that and provided that there was no civil court that can entertain the charge.

Hugo L. Black:

Rather they could do that if it’s a question we have to decide.

Simon E. Sobeloff:

That is the — that is I think the only real question here.

I’m not going to take the time now to deal with some of these subsidiary questions of procedure.

If there is time I’ll — I’ll come to that.

But I think I’d better — first of all, say a few words about the facts to distinguish this actual case from the perfectly imaginative one that has been presented here, and then I want to go to this main constitutional question.

This is not the case of somebody being shanghaied from civilian life to answer military terms.

This man and two others were according to the charge and according to the — on the page of the case that’s in this record, involved in the murder of a civilian Korean while they where soldiers.

And on a military reservation or military base, two of the men involved were tried according to military law and received their penalty.

This man has not been, because the charge — the circumstances were not discovered until after he had been discharged, some weeks after he’s been discharged.

The others were still in the service and they were answered.

Now, what are the facts as to surrounding his arrest?

Much has been spoken here and in the brief more has said by the man being carried to a long distance to answer charges.

Earl Warren:

But the others convicted the general —

Simon E. Sobeloff:

The others were convicted.

Earl Warren:

Are they in prison now?

Simon E. Sobeloff:

I don’t know, I think they have served their time and are discharged.

I — I think they got comparatively light sentences.

I think both of them.

Simon E. Sobeloff:

Certainly, one of them has been discharged, perhaps both.

And there is no reason in fairness or in justice, and there’s nothing in the Constitution or in the — or in the Fifth Amendment when properly interpreted and related to this thing that prevents treating the three alike.

Hugo L. Black:

But that doesn’t solve your problem, does it?

Simon E. Sobeloff:

No, that doesn’t solve the problem, but I say preliminarily in answer to the Chief Justice’s question, the other two where tried.

This man was not tried simply because of this — pursuant to circumstance that he has been discharged in the mean time.

I’m only contrasting this to the case of a civilian who is being brought into military jurisdiction this is —

Hugo L. Black:

(Inaudible)

Simon E. Sobeloff:

But he was not a civilian at the time of the events.

Now —

Hugo L. Black:

If the — if this statute was valid, it wouldn’t have made any difference so far as the argument is heard.

Whether this murder has been committed during the First World War and the Second World War.

Simon E. Sobeloff:

It would because the —

Hugo L. Black:

Is that — that —

Simon E. Sobeloff:

— statute —

Hugo L. Black:

— statute of limitation?

Simon E. Sobeloff:

Yes, specifically there is a reference.

The Section 3 (a) says, “Subject — subject to the provisions of Article 43.”

Now, Article — Article 43 is a limitations article.

Article 43 is the limitations article.

Hugo L. Black:

What is the limitation?

Simon E. Sobeloff:

Now, I don’t know whether there’s a limitations for murder and I don’t think there’s a limitation for murder in any civil court.

But there, limitations would apply.

He would get the benefit of limitation.

Hugo L. Black:

(Inaudible) this doesn’t make any difference whether the crime committed during the First or Second World War, the provision is that the Government, as counsel, call the man before the court-martial and try him by jury.

Simon E. Sobeloff:

I — I agree that if there is no limitations for that particular kind of a crime, he doesn’t get the benefit of it.

But if there is limitations, he gets the benefit of it under 3 (a) but that’s a —

Harold Burton:

There’s quite a number of — of which there are no limitations (Inaudible)

Simon E. Sobeloff:

I — I suppose there are some serious contrast.

There are such crimes in civil law.

Earl Warren:

Who was the commanding officer of — back in the World War I be?

Harold Burton:

Now, commanding officer, as Mr. Justice Burton pointed out, does not mean the man who at the time of the war, time of battle in giving the orders.

A commanding officer means a commanding officer — an officer who is in command in that situation at the time of the execution of the order.

This code provides for the issuance of an authority to arrest, an order of arrest by the acting — by the Secretary of the Air Force in person.

That’s a safeguard so that not every Tom, Dick and Harry under service can undertake to do it.

And as in other situations, he issues it to the commanding officer of the Fifth Air Force whatever it was, and the authority is delegated from officer to officer until you get the arresting squad.

You have the same thing in civil law.

Earl Warren:

But the commanding officer —

Harold Burton:

The commanding officer —

Earl Warren:

— is the (Voice Overlap) —

Simon E. Sobeloff:

The commanding officer would be whoever under the rules and regulations of the service is — or in an orderly fashion delegated to do it.

Then if you examine the — the record on pages 75 to 78, you have every step in regular military channels that accounts for the issuance of the order in the first place by the Acting Secretary of the Air Force down to the squad that was actually — that actually undertook his arrest.

Now, get back to the discovery of this offense.

There was —

Earl Warren:

May I — may I —

Simon E. Sobeloff:

Certainly.

Earl Warren:

— just ask you this.

I — I was wondering if — if they meant the Secretary of the Air Force, why wouldn’t they say the Secretary of the Air Force instead of the commanding officer?

Simon E. Sobeloff:

No.

The Secretary of the Air Force is the man who must authorize it.

The commanding officer is referred to in this connection on page 41 or 40 of our brief, defined Article 7 on page 40 and Article — on page 41 Article 7 (c) — 9 (c), an officer, a warrant officer or a civilian subject to this code, or to trial thereunder.

In passing I want to emphasize that there is something more than a civilian subject to the code, it provide — it covers not only a civilian subject to the code, that is in his daily light as regulated by the code, but it also includes a person who is subject to trial under the code.

That language or to trial thereunder was inserted in this statute, in this Section and in the preceding Section 7 (b), which is on the preceding page or to trial thereunder.

In the Act of 1950 at the same time that 3 (a) was passed, in other words, it was made coordinate so that when they granted by 3 (a) authority to the military, to continue jurisdiction for the purpose of trial over a military person, who before is discharged and committed an offense.

They also said that these provisions as to procedure shall apply to — not only to the civilian subject to the code, which is a class that had always traditionally been subject to the code, but also this new class or those who are subject to trial here under the code.

In that way and this is no shell game, it’s a familiar practice, a familiar technique when you interpret a statute, to interpret not only one section, to interpret all the sections to see if they hang together.

This particular provision, giving the benefit of the procedures to those who are subject to trial under the code, as well as who are subject to regulation under the code, to life under the code like soldiers and civilians in army camps.

This provision was adopted at the same time they’re created and it seems to me that you’ve got to read those three together to — for it to make any sense.

It shows that Congress intended not only to make a declaration of policy, they shall be amenable.

Amenable then to do nothing about it?

No, amenable and is subject to these other provisions.

Simon E. Sobeloff:

If you read 7 (a), 7 (b), and 9 (c), and you see that they were tailored to cover people like Toth, to cover people who were being made subject to trial under the Military Code.

Earl Warren:

But is there anything here, General, to indicate where he should be tried?

Simon E. Sobeloff:

No, sir.

Earl Warren:

Where civilian should be tried in the event that he is brought back?

Simon E. Sobeloff:

No, sir.

And historically —

Earl Warren:

Are there any (Inaudible)

Simon E. Sobeloff:

— there have been — no, sir.

There have been civilians who, traditionally, have been subject to trial under the Military Code.

In their case too, there is no provision, as there is no provision in the case of the soldier where he’s to be tried.

The military jurisdiction is not divided into districts, like the civil jurisdiction.

They can be tried anywhere and when they — this man is made subject to that code, he can be tried anywhere.

Now, where was he tried?

After all, lets — let’s not — we shouldn’t talk about an abstract case, let’s talk about this case.

This man was taken back and forth, trial in the place of the alleged offense where the witnesses were and this Court has said in the case — there was one case where a man objected to being extradited to Cuba, while the American’s troops where there.

He wanted to be tried by a military commission, an American Military Commission, and he objected to being tried under Spanish justice.

This Court said there is no constitutional right of that sort.

It’s perfectly in accordance with our sense of justice and law for a man to be tried in the place of the alleged offense, and that’s all that was happening here.

Now, I want to clear away any suggestion because the brief is full of this and they talk about this man being spirited away to some distant place.

He was notified of his rights.

He was given every opportunity to employ counsel.

He was told he could communicate with his family, he did communicate with his father, he told his father he didn’t want any lawyer.

They told him he could have military lawyers and he could have civil lawyers.

They did assign him a military lawyer and later civil lawyer — a civil lawyer was gotten for him by his family.

Again and again he was told of his right, he didn’t want to.

When he got to Korea, he was asked, “Do you want — do you want to get your own lawyer, a civil lawyer?

You want to communicate with the chaplain?”

He says, “I don’t need any civil lawyer, I’ll be satisfied with a military lawyer and as for the chaplain, my mother will pay for him.”

I mean throughout this record, you’ll get the feeling that this is not a case where an outrage has been committed by seizing a civilian and subjecting him through a strange system, and where he was taken to a distant place that had no relation to the alleged offense.

It’s a case of a man who while in the military service committed an offense.

Simon E. Sobeloff:

It’s true that since then he was removed, immediately discharged from the service but he comes directly under this 3 (a), which was intended to reach such cases.

The Hollohan case, which is notorious, is a case where a man — where people is — are escaping justice, civil or military, because of a lapse in the statutes as they were before 3 (a) was adopted.

And 3 (a) was adopted simply not to get — let people get away with murder and it says that where there is a civil court that can entertain the charge, fine, then 3 (a) doesn’t apply.

(Inaudible)

Simon E. Sobeloff:

It doesn’t — it — I won’t concede that it has no relation to discipline.

I think it has a very direct relation to discipline for soldiers to know that if they commit offenses, they’ll be answerable, even though they are discharged.

Of course Congress could have provided that in such case it shall go to the civil court, but they’re not limited to that.

Secondly, even if it does not relate directly to military discipline, it relates to cases arising in the armed forces and that’s what Congress is given authority under Article 1 of the Constitution to regulate in its own way that has historically done that.

And — I meant, the Fifth Amendment, which is invoked here and which is said to require indictment and jury trial, itself contains an exception as broad as the original grants of Congress for — to authorize military trial.

It says except in cases arising in the Army, I forgot the precise word, but it was broad as Article 1.

So you have here a case where Congress in the broad grant of power under the Constitution.

Now, we don’t have to go into the question as to whether the Fifth Amendment guarantees even such a person due process in other respects.

There’s no point raised here that he wasn’t given due process.

If you look at the Military Code, you’ll find every provision that a defendant is entitled to in civil life, accorded him except an indictment by a grand jury and trial by a jury.

All these other things are accorded in by the code and if there — jury trial and the — the grand jury indictment or the jury trial are not to provided for, the answer is that the Fifth Amendment specifically accepts cases arising in the armed service.

Earl Warren:

General, where do you get the definition of — of cases arising in the — in the armed forces —

Simon E. Sobeloff:

The —

Earl Warren:

— would it be applicable to this particular case?

Simon E. Sobeloff:

I — I get that both from the plain meaning of the words and from a considerable — of all the consideration of the purpose of the thing.

In the first place, the Constitution says that Congress may make rules for the Government of the land and naval forces.

The Fifth Amendment —

Earl Warren:

Presumably, that would mean for the people or whoever?

Simon E. Sobeloff:

That’s right, for the Government — Government of the land and naval forces.

Now, the question is of course not whether a civilian can be subjected to that.

The question is whether a military person who is discharged can by Congressional Act continue be made — continually — can continue to be amenable by Congressional Act to this military — answer in military justice.

Now, there are number of considerations that I think are pertinent on that.

The language itself, I think is broad enough of the Constitution to provide that but let’s see what — what is the — in history.

In the first place, you have the Act of 19 — of 1863, the Section that my Brother talked about it has to do to — with army contractors.

It has nothing to do with this case.

That Section was struck down.

Simon E. Sobeloff:

An attempt to make a man who is — who has a contract with the military subject to military law is an entirely different thing.

Obviously, from a case where — of a soldier who — while a soldier commits an offense.

Earl Warren:

Then does that (Voice Overlap) —

Simon E. Sobeloff:

(Voice Overlap) —

Earl Warren:

— got to do with the same thing in — with this Act?

Simon E. Sobeloff:

Sir?

Earl Warren:

Haven’t they attempted to do —

Simon E. Sobeloff:

No, sir.

Earl Warren:

— the same thing with this Act?

Simon E. Sobeloff:

No, sir.

Earl Warren:

I thought they said —

Simon E. Sobeloff:

No, that Section —

Earl Warren:

— that all those people who were in the company of the Army?

Simon E. Sobeloff:

Yes.

Well, they — they’ve done that.

Earl Warren:

(Voice Overlap).

Well, what is that —

Simon E. Sobeloff:

The other sections of the Act of 1863 have — another section of that Act provided that any soldier, who committed a fraud against the United States, could — would continue to be answerable to — to the military authority, even after his discharge.

Now, this Court has never passed on the validity of that Section.

Although, it was referred to in the Hirshberg case in terms, which seemingly did not regard that that Act is unreasonable.

I don’t want to over claim for what that opinion said, the question wasn’t before the Court and I don’t think I can gain much strength from it but certainly —

Earl Warren:

I hope not.

Simon E. Sobeloff:

— it — it doesn’t weaken our argument.

The Hirshberg case didn’t deal with that.

It’s the only instance, however, in which the — the statute was mentioned.

Five times the lower courts, lower federal courts have upheld that Section.

So you have a history of 90 years, in which soldiers who had committed acts of fraud while in the service continued to be responsible, amenable to military justice, even after they are discharged.

And in that connection, there is the language of Mr. Justice Cardozo, where he speaks of the quiescence of the years as an argument in favor of the validity of the statute.

Now, in addition to the Act of 1863, two Courts of Appeals, the District of Columbia Court and the Ninth Circuit apparently assumed that it was a reasonable provision.

Now, in his brief, our opponent concedes that his contention in this — as to this statute is correct, then the statute of 1863, which has been on the books and has been followed for 90 years would have to fall.

Simon E. Sobeloff:

Now, I say — I submit if anyone has a heavy burden who undertakes that contention.

And then it does not violate our basic concepts of fairness that the time and place of an offense should govern — govern jurisdiction.

In the case that I alluded you before, this Neely and Henkel case, where the man wanted military — a military court try him.

This Court said, “No.

You were tried.

You’ve admitted the offense — charged with an offense in Cuba, which is subject to Spanish law.”

There’s nothing in the Constitution which makes it illegal for you to be removed to the place and to be tried by the justice that prevailed in the place at the time of alleged offense, and that is true as to extradition.

This Court has held that a governor doesn’t have to give an order — give a hearing before he grants extradition.

Of course there is always present the possibility of a review of the jurisdiction by habeas corpus, that’s always open and it was availed of here.

And what is the scope of an inquiry of that kind?

All that can be heard on such a preliminary hearing is whether this is — the question of identity, whether this is the man that they intend to get, to arrest and at most, even this isn’t clearly established but at most the additional question as to whether the requirement they should face.

He concedes his identity, it’s overwhelmingly shown that — in this record that there is a prima facie case and under the circumstances, no one can say that he hasn’t had exactly what he would have even under the civil law.

Even though the civil law — this Court has held that there is no requirement of any preliminary hearing before removal, except where a statute provides it.

And then finally, what is — how do we test fundamental fairness?

This Court has said in talking of military jurisdiction, that there’s no doubt that the military has jurisdiction or Congress can grant the military jurisdiction in cases — in the manner of practice by civilized nation.

Now, if you look at Belgium and you’ll see what have civilized nations done in this situation, you’ll find that the countries that have systems of justice closely related to ours, having a common origin with ours, England, Canada, Australia, New Zealand.

In each of these countries they have laws that do exactly what 3 (a) does.

Let’s say that if a man in the armed services commits an offense that he would be answerable to the military court.

That military court can exert its jurisdiction over him after his discharge.

Earl Warren:

But General, does — I — I’d like to get straightened out on this.

Doesn’t 3 (a) provide for trying people other than people in the service?

Simon E. Sobeloff:

Yes, sir.

Earl Warren:

How — such as contractors —

Simon E. Sobeloff:

I don’t know about —

Earl Warren:

— their employees and other (Voice Overlap) —

Simon E. Sobeloff:

— contractors but there are a great many civilians who — who work with the Army in army camps and so forth.

They are subject to military justice traditionally, historically so.

Earl Warren:

All right.

Simon E. Sobeloff:

I — I don’t think contractors.

Earl Warren:

Well, maybe not just because he was a contractor but because he was there with the — there with the Army.

Simon E. Sobeloff:

Yes.

Earl Warren:

A contractor, who was out in the field, who did some of the work, I suppose he would be.

The man who — with one of those persons, one of those civilians, the — in exactly the same picture as Toth is?

Simon E. Sobeloff:

He would — they would — yes, because this provision, the code has always applied, not only to officers and men in the service but to civilians.

And this Section on page 41 of our brief, 9 (c), speaks of officers, warrant officers or civilians subject to this code, that’s the old law, and then this new language or one who is subject to trial thereunder.

In other words, 3 (a) made him subject to trial under the code, even though he wasn’t the kind of civilian who is subject to the code.

In other words, he is not subject to the code, generally, but he is subject to the code for the purpose of trial —

Earl Warren:

So that any —

Simon E. Sobeloff:

— but (Inaudible)

Earl Warren:

So that any civilian who is over there, around the Army in Korea, during that affair could now we brought back to Korea and tried by a court-martial?

Simon E. Sobeloff:

Any civilian who is subject to the code would be subject to trial now, despite —

Earl Warren:

Just wondering if you made any —

Simon E. Sobeloff:

But now —

Earl Warren:

— differentiation?

Simon E. Sobeloff:

And if we had a treaty with Korea, Toth would be the extradited and tried in a court there and he wouldn’t have either civil or military American justice.

And for the perfect correctness from a constitutional stand point, he couldn’t be heard to complain that he doesn’t want to be tried according to Korean justice, which may give him none of this protection.

Earl Warren:

Well, that wouldn’t prove this case now, does it?

Simon E. Sobeloff:

No, but I — I say that the fact that there are cases where — of extradition, which have been approved by this Court where a man was sent to a country to answer charges, where he didn’t have a Fifth Amendment or any other protections, that’s not an argument.

Harold Burton:

General, would it be fair to say that Article 3 has the effect of limiting the discharge from an absolute to a condition of discharge?

The Government could have a hold on him?

Simon E. Sobeloff:

Exactly.

Harold Burton:

What?

I — I think that — that is a theory that — that — of course, the statute doesn’t put it in those words but that would be the theory and it’s not an irrational extension.Nobody could say it’s an irrational extension when these four countries that I have mentioned with English speaking jurisprudence have thought it’s fair to make that provision.

Hugo L. Black:

Do you think — do you think that’s a pleasant way for making a (Inaudible) provides the bill of rights, a trial by jury, indictment by attorney, with the exception of whatever extended goal for the rules and regulations of the military court.

So what effect did they held (Inaudible)

Simon E. Sobeloff:

Yes.

Mr. Justice Black, I — I would say I assign this weight to it and I think this is a fair and balanced answer to that question.

After all, when you were interpreting broad language like the Fifth Amendment, you want to ask yourself, what does our innate sense of justice tell us?

This is an outrageous thing that got — does conflict with — with our sense of right —

Harold Burton:

Is it a dangerous thing?

Simon E. Sobeloff:

Is it a dangerous thing?

Yes, you can — you can ask that, but you have — you have to ask that question with some limitation too because there are many powers that are dangerous and there — and they are not there for improper or illegal in a constitutional sense.

Even the most common place powers have dangers, they maybe abused.

That’s not an argument against the existence of the power or the constitutionality of Congress granted it —

Felix Frankfurter:

(Inaudible)

Simon E. Sobeloff:

— but —

Felix Frankfurter:

(Inaudible)

Simon E. Sobeloff:

Sir?

Felix Frankfurter:

(Inaudible)

Simon E. Sobeloff:

I — I merely wanted to suggest that no one can say that this thing is a shocking thing, that — that it clashes hopelessly with our sense of justice when these four countries have done it, when we have done it in a narrower way, under the Act of 1863 for 90 years.

Felix Frankfurter:

I suggest your answer is for me, to be conclusive if our problem here is (Inaudible)

Simon E. Sobeloff:

Well, the specific provision that they tried to invoke in the Fifth Amendment contains the exception which makes the whole thing irrelevant which I think that’s the answer to the argument.

Felix Frankfurter:

I do not take care of what you say in the problem —

Simon E. Sobeloff:

Yes.

Felix Frankfurter:

(Inaudible)

Simon E. Sobeloff:

Well —

Felix Frankfurter:

That specific provision, that’s where the difference is (Inaudible)

Simon E. Sobeloff:

There — there is no specific provision.

The — the specific provision contains the exception which removes it from — from that.

Felix Frankfurter:

Yes.

But the question is what the exception is —

Simon E. Sobeloff:

Right.

Felix Frankfurter:

(Inaudible)

Simon E. Sobeloff:

Right.

Now —

Hugo L. Black:

May I ask you this because I would like to have you discuss this from your statement (Inaudible)

Do you have a provision that authorizes (Inaudible) and lend possible argument to the provisions you take?

I — I do not take, do you not in certainly landing a possible argument in the position you’re asking this question.

I take in turn that I couldn’t be able to do it because it said, in the time — on the time they are made (Inaudible)

Under those circumstance we compel some of it instead of the whole Constitution and I hope you discuss the (Inaudible) of military trial (Inaudible) as compared with the advantages of the other trial, which provides the trial by jury.

Hugo L. Black:

The number of people to be affected by it now, that is, who will be affected by it tomorrow?

Simon E. Sobeloff:

Mr. Justice Black, I’m very happy that you direct my attention to that because it enables me to say that this great horror that is painted in the brief about making millions of veterans subject to military justice after their discharge is a pure figment of the imagination.

Actually, this law has been applied in a number of cases that can be counted on the hands of a man — on the fingers of a man’s hand.

Hugo L. Black:

It’s up-to-date, how many veterans are there?

Simon E. Sobeloff:

There — there are millions of veterans.

Hugo L. Black:

21 million?

Simon E. Sobeloff:

There are millions of veterans but there — there are statutes of limitation, there are many offenses —

Hugo L. Black:

You mean for some offenses?

Simon E. Sobeloff:

Well, for some offenses.

Actually, this has been employed in very few cases, that’s one answer.

Felix Frankfurter:

But that’s a (Inaudible)

Simon E. Sobeloff:

Well, it’s the fact —

Felix Frankfurter:

Yes.

But it would prove the argument that you so claim.

Simon E. Sobeloff:

I don’t think — I don’t think that I would be in any better case if they could show that there were a million such cases.

Felix Frankfurter:

No, but you might — you might then show me that if this is not such as a common thing.

Simon E. Sobeloff:

Right.

Felix Frankfurter:

They’re not — they’re not dealing with a very important power of Government.

Simon E. Sobeloff:

Then I want to say that this, in any event, would apply only to cases, to offenses committed after 1951 when this code became effective.

That may require a little —

Hugo L. Black:

As to 1951?

Simon E. Sobeloff:

Yes, when this code became effective.

It couldn’t be retroactive to grant —

Hugo L. Black:

It didn’t come effective before (Inaudible)

Simon E. Sobeloff:

It — it became effective in 1950.

Yes, he didn’t commit the offense, discharged with the commission of the offense in the fall of 1952.

That requires a little amendment of my answer to your question about limitations and — and the First World War, anything that happened before 1950 or 1951 would not be covered by this Section.

Now, as to the advantages, I’m not one to minimize the importance of the Fifth Amendment, the grand jury provision, the provision for trial by jury, but take the grand jury provision.

If you examine this code, you’ll find a very meticulous procedure laid down which grants the suspect greater rights even than a civilian had.

Hugo L. Black:

Before whom?

Simon E. Sobeloff:

Before military judges, it’s true.

Hugo L. Black:

Now, what is their tenure of office?

Simon E. Sobeloff:

Before military judges, it’s true.

But on that, let me read you what Justice — Mr. Justice Holmes said, “In a military case —

Hugo L. Black:

But, what (Voice Overlap) — did they have any fixed tenure of office there?

Simon E. Sobeloff:

No, I don’t know that officers have fixed tenure on.

But the point that I wanted to make was that a careful investigation is required.You cannot be arrested except on the personal order of the Secretary of the — of the armed — of the branch of the armed services that is involved.

He must be given — must be given an opportunity to make an explanation.

In civil life, a man who is being investigated by a grand jury does not have an opportunity to present his side of the case.

He’s not required to appear before the investigators but he is given an opportunity to make a statement and to have counsel, and to cross-examine witnesses during the preliminary investigation before the charges formulated.

Now, I say that’s a very substantial right and protection and one that even in civil life is not guaranteed by the Constitution.

Hugo L. Black:

(Inaudible) in many instances that they have typical clause and section of (Inaudible) then jurors who are under obligation to nobody to do anything if he has that argument raised.

Simon E. Sobeloff:

I think it’s — it’s a pertinent consideration.

And then if you — I wish Your Honors in considering to this case would leap through the Military Code —

Hugo L. Black:

I’d love to direct you —

Simon E. Sobeloff:

— and — and the regulations.

And by the way, it’s said here that Congress didn’t adopt the regulation.

Congress specifically gives the President the power to adopt regulations, it maybe that he had that power inherently anyway but Congress specifically gave him the power to adopt regulation and they are recognized in this code.

I’d like to read just a sentence from Mr. Justice Holmes in the Sawyer — Mr. Justice Sawyer in the Bogart case and then there is one about Holmes.

This Court has no more right to assume or suppose that those, who by the Constitution and laws are made the depositories of jurisdiction over military offenses, will abuse those powers than those who by the same Constitution and laws are entrusted with the general civil jurisdiction of the land, will abuse the trust devolved upon them.

And then there is the other expression from the comparatively recent case of Burns and Wilson in this Court, it may not be amiss to recall again that the basic guarantees of due process have long been recognized and honored by the military courts as well as the civil courts.

Hugo L. Black:

But accordingly, those are in fact cases at the time (Inaudible)

And the concept is to withdraw this case the problem is different (Inaudible).

One would be, it seems to me that the norm, the active norm, everyday nothing that could try typically a crime.

The other was (Inaudible)

Simon E. Sobeloff:

And if this man were a citizen and had no connection at any pertinent time with the military, I would agree that he has no place in any military court.

But it is certainly no irrational, or harsh, or unfair, or shocking extension for Congress to say that the military jurisdiction which would attach if he were still in the service continues with respect to his offenses committed while in that service, even after he’s been discharged.

Stanley Reed:

Mr. — Solicitor General, the problem comes here (Inaudible) and whether you like it or don’t like it, the question of power of Congress (Voice Overlap).

Simon E. Sobeloff:

Precisely, yes.

Stanley Reed:

Now, that — that means that it comes under (Inaudible)

Simon E. Sobeloff:

No, it’s really the first — the first —

Stanley Reed:

(Voice Overlap) arising in the land and naval forces?

Simon E. Sobeloff:

That’s right.

It’s under the First Article of the Constitution.

Stanley Reed:

So your point of view as I understand it comes down to the problems of when this case —

Simon E. Sobeloff:

Arose and our answer —

Stanley Reed:

(Inaudible)

Simon E. Sobeloff:

Yes, as to that our answer is a case arises when the circumstances to be inquired into happened.

Stanley Reed:

When the crime is committed.

Simon E. Sobeloff:

When the crime is committed, that’s when this case arose.

They weren’t talking about the time when a — a writ was issued or a paper was filed.

They were talking about happenings.

When you talk about — has a case arising on the high seas or on the Mississippi River, you don’t mean the papers that were filed, that they have to be filed on the high seas or the Mississippi River.

But the events to be inquired into happened, its — the circumstances occurred on the high seas or in this case, in the land or naval forces.

That’s the common sense meaning of it and has — did arise, this is a case that did arise in the — in — in the land and naval forces.

Look what an absurd result would follow if you — if you accept our adversary’s argument to its logical conclusion to say that a case arises where and when the charge is instituted and not when the facts occurred.

It would result that a man in civil life, who commits an offense and then becomes a soldier, after that, would be subject to trial by a court-martial because a case according to that interpretation arises in the land or naval forces.

But obviously that doesn’t make sense.

Earl Warren:

Are there — would it have arisen —

Simon E. Sobeloff:

Well —

Earl Warren:

Would it have arisen in the — in the land and naval forces —

Simon E. Sobeloff:

The papers are being filed while he’s in the —

Earl Warren:

According to your information, he wasn’t in the army.

Simon E. Sobeloff:

Exactly.

Earl Warren:

He was entirely removed from it, he was a civilian.

Simon E. Sobeloff:

He was —

Earl Warren:

And he could — even though he was in (Voice Overlap) —

Simon E. Sobeloff:

Wasn’t a civilian when the papers were filed.

Earl Warren:

I know but — but now if they — if a soldier commits a civilian crime —

Simon E. Sobeloff:

Yes.

Earl Warren:

— he can be prosecuted in civilian courts?

Simon E. Sobeloff:

If — if he — if it’s done —

Earl Warren:

If notwithstanding this (Voice Overlap) —

Simon E. Sobeloff:

But this man cannot be tried in a civilian court.

There is no American court, federal or state that has jurisdiction here.

Earl Warren:

Well, no, but if — if Congress complied with the Constitution, it could.

Simon E. Sobeloff:

Congress —

Earl Warren:

They could make it — they could make it apply to (Voice Overlap) —

Simon E. Sobeloff:

Congress could — I’m frank to say, Congress could constitutionally —

Earl Warren:

— here comes forth a jurisdiction.

Simon E. Sobeloff:

— and there was very respectable argument made for that course.

I’m not contending against that but I say that the choice was for Congress and it’s not for the Court to decide, we prefer this alternative to the other.

Congress was the judge of that under the plenary power granted them under Article 1 and clarified and shown not to be impaired by the Fifth Amendment because of the accepting language in — in that amendment.

Hugo L. Black:

Well, if we just look at the plain words of the constitution (Inaudible) that you say Congress has power to make Rules for the Government and Regulation of the land and naval Forces that would indicate (Inaudible) now in the land and naval forces.

Simon E. Sobeloff:

No, I — I think —

Hugo L. Black:

You don’t think it could be construed that way?

Simon E. Sobeloff:

I think you can say — you can say in governing the land and naval forces, you can provide that any member of those forces who commits an offense shall continue amenable, notwithstanding his subsequent discharge because their jurisdiction attaches at the time of the offense.

Hugo L. Black:

There’s plenty of argument on each side.

Simon E. Sobeloff:

Oh, I —

Hugo L. Black:

That’s in the word.

Simon E. Sobeloff:

If — if — as to the words and as to the spirit, but that’s true of almost every case that comes before the Court.

Hugo L. Black:

General, we’re — we’re going to conclude the case this afternoon, so if you haven’t finished you may proceed.

Simon E. Sobeloff:

Oh, all right, I’m — I’m very grateful to the Court.

Now, I want to say a few words if I may, Your Honors, with regard to some of these procedural questions that are raised.

Some of them have to do with the interpretation of 3 (a), the statute itself and some have to do with a question of procedural due process.

I think I’ve already spoken of the provisions about arrest and trial or removal because I — I think it’s — it’s plain that Article 3 (a) has to be read in conjunction with 7 and 9, which are also in the same code and which were amended and tailored to fit this situation.

And if you look at the hearings, the report of the hearings you’ll see that they had exactly the Hirshberg decision in mind and such cases as the Hollohan case, which had not achieve quite the notoriety of Hollohan but were already coming to the floor.

They had those cases in mind.

Earl Warren:

But General that was one of the things that bothered me, those sections can be tailor-made to this situation provided for arrest, provided for detention and confinement but I didn’t see anything about the trial.

Simon E. Sobeloff:

Well, where it says subject to trial, when you say that a man shall be amenable, notwithstanding his discharge and you say elsewhere that he is subject to trial in the military court, and shall be granted certain rights, and shall be treated in a certain way, I think you’ve covered it.

Simon E. Sobeloff:

I think you’ve got to read the whole code to see what that body of law is, its not —

Hugo L. Black:

Does it say the same thing about arrest, and detention, and confinement, why would it be necessary to do some of those things and not the other?

Simon E. Sobeloff:

No, but they merely say in 3 (a) — in 3 (a) they say that he shall not be relieved for the amenability to trial by courts-martial.

Now, it doesn’t simply say it shall not be — shall continue amenable as a moral matter to the guilt of his crime.

It says he shall not be relieved of amenability to trial by courts-martial.

He was certainly subject to trial by court-martial before he is discharged.

The Congress says in 3 (a), he shall not be relieved of that amenability to trial.

Now, what kind of trial, what kind of investigation, what kind of charges, what kind of authority for his arrest?

You have to look to the courts-martial regulations and the code to see what that is because he is — you don’t have that as to soldiers either in the statute, you have it in these rules.

And these rules are made applicable to him because courts-martial are made applicable.

I don’t — I don’t see how there could be much difficulty about that.

And in this case there is no question that that he was given every consideration that these rules entitled him to or that any one sense of fairness might suggest.

Now, then as to commanding officer, I’ve said something about that but I think it maybe well to add.

When we — we talk of a commanding officer, the commanding officer — where is that language?

In 41 in our brief.

The commanding officer, now that doesn’t mean the man who would give him orders if he was a soldier because he might have a commanding officer — one commanding officer one day and another — another day.

The commanding officer who is involved at the time in this matter and on page 41, Section (c) — 9 (c) “An officer, a warrant officer or civilian subject to this code or to trial thereunder maybe ordered into arrest or confinement only by a commanding officer to whose authority he is subject.”

To whose authority he is subject for arrest.

He is subject to the authority of the — of the commanding officer of the Fifth base or whatever that — the title was, or the person that he designates, or the squad that he sends out to effect that arrest, he doesn’t — the general doesn’t go after himself.

And that says how by an order oral or written, delivered in person or by another officer, the record shows how that was done.

There is no lapse, there is no lag there.

The authorities order such persons into arrest for confinement may not be delegated.

Suppose that that means that the original order of arrest has to be examined into and ordered by the Secretary himself and that was done in this case, that was done in this case.

But the actual execution of the order is — is delegated, it doesn’t mean that the Secretary himself shall go out and arrest the man.

Now, in all military jurisdiction, not only in the case of the discharged soldier, but in the case of an active soldier, you don’t find any statute that says who has authority, who is the commanding officer that’s to be found in the orders, and the regulations, and the designations that are made in the regular course in military trial.

And this doesn’t say his commanding officer, there’s nothing to intimate that, it means the man who was in charge at the time when he was in the service, the commanding officer who is designated for this purpose.

Now, there was something said about bail, there’s no provision for bail —

Stanley Reed:

(Inaudible) go back the last — the last sentence of (c) on your page 41.

The authority to order such a person may not be delegated.

Surely it’s possible that General Eisenhower when he’s the commander of the forces in Europe, had to pass on the arrest of every officer.

Simon E. Sobeloff:

I’m sure that that would be such an absurd to the construction that nobody would adopt it.

Stanley Reed:

Well, I thought you said this could only be —

Simon E. Sobeloff:

No.

Stanley Reed:

— done by the Secretary —

Simon E. Sobeloff:

No.

Stanley Reed:

— of the —

Simon E. Sobeloff:

No, 3 (a) itself.

If you look at 3 (a) says that the Secretary of the service — or paragraph 11 (b) of the manual — let me have that.

It says that the Secretary personally shall sign the order of arrest.

It’s not left to any subordinate to decide that he shall be arrested.

But the execution of the order of course is done by the — the foot soldiers, it isn’t done by the Secretary.

In this manual for courts-martial in page 15, the jurisdiction under Article 3 (a) should not be exercised without the consent of the Secretary of depart — department concerned.

It was simply an additional —

Earl Warren:

Consent?

Simon E. Sobeloff:

Sir?

Earl Warren:

Consent.

Simon E. Sobeloff:

Without the consent.

Well, in this case he actually did the ordering.

It’s an additional safeguard against wholesale use of this Section 3 (a) without careful effect.

Earl Warren:

And do you now say that the commanding officer who’s referred to in 7 (c) is the Secretary of —

Simon E. Sobeloff:

No, no.

No, sir.

Earl Warren:

9 (c) is the —

Simon E. Sobeloff:

No, no.

Earl Warren:

— he is the Secretary there?

Simon E. Sobeloff:

The — the commanding — the signing of the order by the Secretary is what’s required under this manual, which I think gives a protection even more than 3 (a).

3 (a) simply says that he shall not be relieved of amenability.

He does not in itself say who shall order the arrest and so forth.

But taking 3 (a) with 7 and 9, you see that the code is made applicable.

Now, the code —

Earl Warren:

Well, what I’m interested in is finding how — who designates this commanding officer?

Who is he?

Is he the Secretary for air or is he someone that the Secretary for air or somebody under him designates to say it’s not the commanding officer of this man —

Simon E. Sobeloff:

No.

Earl Warren:

— is not the commanding officer of the place where the crime was committed, it is a commanding officer.

Now, who designates?

Simon E. Sobeloff:

The order — the order signed by the Secretary as this record will show was directed to the commanding officer of the Fifth Airbase.

Earl Warren:

All right.

What — what is the order?

Simon E. Sobeloff:

To arrest this man for such and such reasons.

Earl Warren:

The Secretary orders him to do it?

Simon E. Sobeloff:

Orders him arrested and he directs that to the commanding officer of — of the airbase.

Earl Warren:

Well, what — what section of the code requires the Secretary for air to order the arrest of this man?

I thought you’ve —

Simon E. Sobeloff:

The — the section —

Earl Warren:

— read that he must consent to it, not that he must order it but he must consent to it.

Simon E. Sobeloff:

Well, he — he ordered it, so of course an order includes a consent.

If it — if it said he shall order it and he merely consented there might be a question, if it says he shall consent and he personally ordered it, there’s no problem.

Earl Warren:

Then he is the commanding officer who is referred to in 9 (c)?

Simon E. Sobeloff:

No, he — he is the one who orders it but the execution of it is by a commanding officer to whom he sends the order.

Article 3 (a) gives military jurisdiction.

Earl Warren:

But the last sentence says the authority to order such persons into arrest or confinement may not be delegated.

So whoever this commanding officer is, he can’t delegate.

Simon E. Sobeloff:

Well, I —

Earl Warren:

Isn’t that right?

Felix Frankfurter:

Have we got the document in this very case, maybe that’s —

Simon E. Sobeloff:

The documents in this case —

Felix Frankfurter:

It happens merely in this case.

Simon E. Sobeloff:

It was sent to the commanding officer of the Fifth Airbase and he designates —

Felix Frankfurter:

What happened before that?

Simon E. Sobeloff:

He — he directs a certain colonel to execute it and the colonel sends his men to do it.

Felix Frankfurter:

Before that what — what was on the piece of paper to which the name of the then Secretary of the Air at the time?

Simon E. Sobeloff:

He says, “Commander of the Fifth Airbase, arrest this man.”

Felix Frankfurter:

Now, what does (Inaudible)

Did he originated or his company in Korea said we want this fellow and that has to go before the Secretary of the Air to get his approval.

Simon E. Sobeloff:

Well, I assume —

Felix Frankfurter:

Is that right?

Simon E. Sobeloff:

I assume that that’s raised.

But he personally signed it after reviewing the papers.

And then he directs —

Felix Frankfurter:

(Voice Overlap) to his attention.

Simon E. Sobeloff:

And then he —

Felix Frankfurter:

That’s got his personal signature.

Simon E. Sobeloff:

Then he directs the — the — a commandant of the Fifth Base.

And he — as you’ll see from the record, sends it to the colonel and the colonel to — to his subordinates.

Now —

Earl Warren:

Who — who is referred to when it says he cannot delegate?

Who cannot (Voice Overlap) —

Simon E. Sobeloff:

Well, I don’t know.

Earl Warren:

Who cannot delegate?

Simon E. Sobeloff:

I don’t know.

I would imagine — I would have —

Earl Warren:

Neither do I.

Simon E. Sobeloff:

I would imagine because — I don’t know but they proceeded here as they usually do through delegating the order to arrest.

I suppose that the thing that they meant was that the actual order to make this man amenable.

The actual order of arrest has to be reviewed by a high official, a — the civilian secretary.

I don’t think it means that he’s got to go out to make the arrest himself.

Now, something was said here about bail —

Stanley Reed:

But this — this (c) is general, it’s not limited to — to 3 (a), the regulation is limited to 3 (a).

Simon E. Sobeloff:

Yes.

Stanley Reed:

But (c) is the general provision that applies to every officer of the grade of Second Lieutenant up (Inaudible)

Simon E. Sobeloff:

Right, and — and if there’s any — and they did in this case what they do in any case where an order is issued for arrest.

Stanley Reed:

And that the second lieutenant couldn’t be ordered to arrest by General Eisenhower whether he’s commander in Europe?

Simon E. Sobeloff:

I’m sure he could.

Stanley Reed:

So am I, and that’s the reason (Voice Overlap) —

Simon E. Sobeloff:

I’m sure he could.

I’m — I’m equally sure that the general wouldn’t have to go out and do it himself.

Stanley Reed:

Perhaps you could give us a memorandum.

Simon E. Sobeloff:

I’ll inquire.

I mean that — that has to do with practice that I’m not familiar with but I’ll inquire of the Air Force about that.

Perhaps this point is not of sufficient gravity but I would like to — to say a word about this bail business.

It’s pointed out that nowhere here is there any provision for bail.

Well, nowhere is there very much of a right of bail in a capital offense in civil courts either.

But actually, this man is in no position to complain because he is out on bail, he’s out on bail now and I think its whipping up a —

Hugo L. Black:

How did he get a —

Simon E. Sobeloff:

— scarecrow.

Sir?

Hugo L. Black:

How did he get it?

I’m just curious.

I don’t think —

Simon E. Sobeloff:

Well, when he suit out his writ of habeas corpus and he was discharged.

Hugo L. Black:

Well, that would be the way to get bail.

Simon E. Sobeloff:

That’s the way to do it, you can always — you can always do that.

The fact that this doesn’t specifically provide it doesn’t make any difference and it didn’t hurt this man.

I think the time is so short.

I’d better not go into other matters which are in any event covered in our brief.

Earl Warren:

Thank you, General.

William A. Kehoe, Jr.:

Of course, if Your Honor pleases, if we hadn’t prevailed in the District Court, he would not be on bail now.

Hugo L. Black:

Well, I assume that — I don’t know of any law or statute that defies a court the right against bail for a man who did illegal things or awaiting trial.

He might be (Inaudible)

William A. Kehoe, Jr.:

I believe I may shed some light on this Article 9 (c), that the authority to order persons into arrest or confinement may not be delegated.

The regulations which were issued under the code of President Truman, Regulation 21 (a) defines commanding officer as a reference to that regulation and the definition of commanding officer in our brief.

The Secretary of the service involved is not a commanding officer.

He is not defined as such.

The — when the — this Article 9 (c) refers to officers, warrant officers and civilians.

And it has to be the superior officer, of the officer involved, who orders him into arrest which means that it’s a moral persuasion that he stays in his quarters or orders him confined.

A captain, for example, who was ordering a lieutenant into arrest cannot delegate that chore to a subordinate officer.

It has to be a superior officer to the officer being arrested or confined who performs that task.

Now, of course when he’s going to confine another officer, he can order that — enlisted personnel will actually escort him to the jail or the penitentiary, wherever they’re taking him.

And I believe if that that’s what that means and it’s most peculiarly applicable to Toth because he had no commanding officer who could delegate any power to anyone.

Now, going back to the original argument of the Solicitor General, I would gather from his argument that he said the commander of the Fifth Air Force in Korea would be Toth’s commanding officer at the time this arrest was ordered.

Toth was in Pittsburg, the — Fifth Air Force commander had no authority outside of the Korea or Korean area.

Now, the Acting Secretary of the Air Force consented to his arrest or his apprehension and ordered the air provost marshal to affect his apprehension, or as he put it to offset his apprehension.

And it stands to reason that the air provost marshal had no connection as a commanding officer to Toth and under the regulations issued pursuant to the code, the Secretary of the Air Force could not be considered a commanding officer.

The Solicitor General has alluded to the fact that Toth had all the fair hearings and preliminary inquiries that were necessary and that he would have received as a civilian.

The record in the case indicate that the time these accusations were filed against Toth, four men, three in the service and Toth out of the service were accused of conspiracy to commit murder.

After Toth was escorted from Pittsburg to Korea, one of these men, Sergeant Kenneth Bogard was exculpated.

He never stood court-martial charges.

It was determined upon investigation that he was not guilty, that was after the fact of Toth being transported from Pittsburg to Korea that the investigation started to determine whether there was reasonable grounds to hold him.

There was no determination prior to his transportation to Korea or whether or not there was reasonable grounds to hold him.

Now, to — there’s a reference made to what happened to the other two men, Lieutenant Schreiber, who is supposed to have ordered this killing and Airman Kinder, who was suppose to pull the trigger.

As we advised the Court before, those cases went up through the uniform — under the code, went up to the Court of Military Appeal.

At the time of the last argument we advised the Court that Lieutenant Kinder received the two-year sentence, he was the triggerman and that he is sentenced and subsequently then commuted and he was discharged from the service.

Schreiber’s conviction was upheld by the Military Court of Appeals, this is in their records in their cases some time last May, within a week after his sentence, according to my information was confirmed.

The Secretary of the Air Force commuted his sentence and gave him a dishonorable discharge, and permitted him to leave the service, and I think he left the service on May 18, 1955 having served approximately 18 to 20 months.

This is not a heinous crime that this man has been charged with.

I think that the treatment by the Air Force revealed that fact.

Now, the Solicitor General would also infer that there is due process and all the constitutional guarantees were much of them as a necessary are engendered within this Uniform Code of Military Justice, and suggest to the Court that they examine the code.

I suggest to the Court that the code be examined too because you will see upon examination of the code that the entire purpose is summary punishment, discipline in the rank, it has nothing to do with justice, justice is not meant to be dispensed there.

For instance, every serious offense involving more than a year in — imprisonment is automatically reviewed under the code.

William A. Kehoe, Jr.:

Why —

Felix Frankfurter:

This is the second — this is the second time you’ve made that remark.

Can it fairly be said however summary or whatever limitations there may be, there maybe on — under the military code, that justice has nothing to do with it?

William A. Kehoe, Jr.:

I don’t —

Felix Frankfurter:

I don’t mean their opinions in their reversals for things — of convictions that never would have been reversed in kingdom come (Inaudible)

William A. Kehoe, Jr.:

It is true in that sense, Your Honor, that —

Felix Frankfurter:

(Inaudible)

William A. Kehoe, Jr.:

It’s an advancement beyond what military justice was before.

But Your Honor — for example, Your Honor, for offenses involving a sentence of more than a year, there’s an automatic review by the services involved.

The sole purpose of that review is to make sure that the man in the navy, who may have been sentenced by the court-martial to five years imprisonment for being AWOL for 10 days, doesn’t receive a greater sentence than the man in the Air Force who may have received —

Felix Frankfurter:

I’m well aware of the — I’m well aware of the fact as everybody is that courts-martial do not have what a state does, as a Federal Bill of Rights, a requirement or subsequent law.

And our question is (Inaudible) with its limitation can be applied to this kind of (Inaudible) constitutionally.

But I do not see why you have to go out of your way to deny there being what has been a great advance and what on (Inaudible) it seems to me a very civilized form of dealing with military offenses.

William A. Kehoe, Jr.:

Your Honor, perhaps you’ve misinterpreted — interpreted —

Felix Frankfurter:

Well, I (Voice Overlap) —

William A. Kehoe, Jr.:

— what I’ve said.

I —

Felix Frankfurter:

— you’re saying it has nothing to do with justice.

William A. Kehoe, Jr.:

I say that the purpose of a court-martial and that’s been the — in the history of this entire country.

The purpose of the court-martial is not to dispense justice.

Felix Frankfurter:

What if to dispense justice in relation to the military —

William A. Kehoe, Jr.:

To the people in the military.

Felix Frankfurter:

Certainly.

William A. Kehoe, Jr.:

That is correct but the —

Felix Frankfurter:

I understand that.

William A. Kehoe, Jr.:

But the purpose of the court-martial in the military is to have summary punishment and to discipline the troops.

Harold Burton:

Well, do you consider discipline applied only to Mr. Toth himself?

If Toth were — were convicted wouldn’t that be a disciplinary measure to the other people who are still in the service?

William A. Kehoe, Jr.:

No, Your Honor.

What effect does it have on anybody else in the service?

(Inaudible)

William A. Kehoe, Jr.:

If — if that’s —

(Inaudible)

William A. Kehoe, Jr.:

The man in the service already knows that if he commits murder, he’ll be held to answer for it.

(Inaudible)

William A. Kehoe, Jr.:

Well, apparently from the founding of our country up until 1950, it was never thought to be important that it — to maintain discipline in the ranks that they had to have such statute.

Stanley Reed:

It may have been because he was not (Inaudible)

William A. Kehoe, Jr.:

Perhaps you’re right, Your Honor.

There’s one other reference I’d like to make and that is to the effect of how this code will affect people in this country.

We’re all familiar with the Draft Act, so we know that young men in the country are being drafted everyday.

Ultimately, this code will affect every able bodied male in the country.

We respectfully submit to the Court that the opinion over the judgment of the Court of Appeals should be reversed and the judgment of the District Court should be affirmed.