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Yale Law School Faculty Scholarship
1-1-1961
Civilian Judges and Military Justice: Collateral
Review of Court-Martial Convictions
Joseph Bishop
Yale Law School
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Bishop, Joseph, "Civilian Judges and Military Justice: Collateral Review of Court-Martial Convictions" (1961). Faculty Scholarship
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CIVILIAN JUDGES AND MILITARY
MILITARY JUSTICE: COLLATERAL
CIVILIAN
REVIEW OF COURT-MARTIAL
COURT-MARTIAL CONVICTIONS
CONVICTIONS
REVIEW
JOSEPH W. BISHOP, JR.*
JR.*
error
Generals Mercier and Boisdeffre .. . . . made the fatal error
of standing on the principle
principle that Army justice was, like the Army
of
apart, and that civilian conceptions of justice had no
itself, a thing apart,
weight before a military tribunal.
tribunal ...
. . .
From this it will be seen that in reality the question of Alfred
Dreyfus's guilt or innocence is minor to the far wider question of the
position of the Army in a democratic State. No Republican could
could
for a moment accept the claim that the principles of justice were
not identical, whatever
whatever the tribunal and whatever the procedure.'
procedure.!
I.
1.
SIGNIFICANCE OF THE
THE PROBLEM
THE NATURE AND PRACTICAL
PRACTICAL SIGNIFICANCE
On a night in March 1945,
1945, as the Third Reich was crumbling into
spectacular ruin, two buck privates from an American Tank Destroyer
Destroyer
spectacular
Langenlonsheim to look for a missing
Battalion were sent into the town of Langenlonsheim
comrade. In the town some fifty or sixty civilians had that night taken
shelter in a cellar from artillery fire. Three women among them were
raped by two men in American uniform. They made complaint, and the
next
morning the two soldiers, Privates Arnold
next morning
Arnold and Anthony, were arrested.
identification by the witnesses seems to have been a good deal less
Their identification
than conclusive,
conclusive, 22 so much less so that the officer conducting the pretrial
investigation required
by the
War 3 recommended that
investigation
required by
the seventieth Article
Article of Wars
Advocate being
the charges
charges against the two be dropped. The Staff Judge Advocate
of other opinion, the pair were tried jointly
by
general
court-martial
on
jointly
court-martial on
April 3. The
The appointed
appointed defense counsel was a medical
medical officer, innocent
innocent of
of
previous
previous experience
experience of courts, martial or otherwise. The accused requested
requested
a number of combat
combat soldiers as witnesses,
advanced far
witnesses, but the Army had advanced
and
fast
in
and fast in the interim,
interim, these combat soldiers had
had no fixed abode, and the
trial was held at a place about 100 miles east of Langenlonsheim. The
The upup~
shot was that none of the witnesses
requested
by
the
accused
witnesses
accused was made
available. It
It is possible to infer that whatever
available.
whatever search
search was made for them
was neither very thorough
thorough nor very persistent. Both Arnold
Arnold and Anthony
**1. Professor
Professor of
of Law,
Law, Yale
Yale Law
Law School.
School.
Chapman, The French Army and
AND GOVERNMENTS
1. Chapman, The French Army and Politics,
Politics, in SOLDIERS
SOLDIERS AND
GOVERNMENTS 51,
51,
1957). The word "Republican"
62 (Howard
(Howard ed. 1957).
"Republican" is, of course, employed
employed in
in the
the French
sense.
2.
2. The
The facts
facts of the
the case
case are
are set
set forth
forth at
at some
some length in the opinion
opinion in Anthony
Anthony v.
Hunter,
Hunter, 71
71 F.
F. Supp.
Supp. 823
823 (D.
(D. Kan.
Kan. 1947).
1947). "Most"
"Most" of
of the
the witnesses
witnesses identified
identified Arnold,
Anlold,
and "approximately
some were
were unable
unable to identify either,
and
"approximately half"
half" identified
identified Anthony;
Anthony; some
and some
in aa lineup.
lineup. The
The complaining
complaining witnesses
witnesses who identiidentiand
some identified
identified other
other soldiers
soldiers in
fied Anthony
Anthony
fied
Anthony had
had originally
originally described
described their
their assailant
assailant as having
having a mustache.
mustache. Anthony
offered
to produce
produce witnesses
witnesses to show that
that he had
had never
never worn a mustache, but in the
offered to
confusion
disintegrating Wehrmacht,
confusion incident
incident to
to the
the headlong
headlong pursuit
pursuit of
of the
the disintegrating
Wchrmacht, none
none of
of
these
witnesses was
by the
military authorities.
these witnesses
was located
located by
the military
3. Act of June 4, 1920,
ch.
227,
§
1,
41
Stat.
802,
as
amended,
50
Stat.
724
(1937).
1920,
§
802,
(1937).
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41
were found guilty
guilty and sentenced to death. The findings and sentences
sentences were
duly approved
approved by the military reviewing authorities, although the sentences were reduced first to life imprisonment
imprisonment and then to thirty-five years
confinement
labor-still a longish time to serve, even for a young
confinement at hard labor-stilI
man. Anthony was sent to the United
United States Penitentiary
Penitentiary at Leavenworth,
Leavenworth,
Kansas, Arnold to the United States Correctional Reformatory at Seagoville, Texas-a happenstance that was to have major consequences.
consequences.
In 1947, Anthony petitioned
petitioned the United States District Court for the
District of Kansas for a writ of habeas
habeas corpus, alleging in substance
substance that
the court-martial
court-martial was without jurisdiction
jurisdiction because the mandatory pretrial
investigation
investigation was neither adequate nor impartial and because
because he had been
been
denied due process of law
errors," including
law by a "totality of errors,"
including the incomappointed counsel,
petence, however excusable, of his appointed
counsel, denial of counsel of
his own choice, failure to obtain the witnesses he had requested,
requested, and the
failure of the reviewing authority to set the conviction aside for insufficiency
insufficiency
of evidence. He produced
produced the investigating officer, who had returned to
civilian life, and the latter's testimony convinced
convinced the court that the pretrial investigation
requirements of Article
investigation had in fact fallen short of the requirements
of War 70, which the court held to be jurisdictional. On this ground
ground the
44
writ was granted, and Anthony
free.
went
But
Anthony's
contenother
Anthony
contentions were by no means rejected; although the judge
judge chose to rest his holding on the defects in the pretrial
pretrial investigation, he added
added that the inadequacies of the trial itself "individually
and
collectively
"individually
collectively might have justified
justified
plagiarizing some of the language
this court in plagiarizing
language used by Judge Biggs . . .
in Hicks v. Hiatt .
. .. .. ."5
-5 Since Hicks v. Hiatt
Hiatt66 was a case in which
which
Judge Biggs, a senior circuit judge sitting as a district judge, had granted
court-martial on
a writ of habeas corpus
corpus to a soldier convicted
convicted by general court-martial
the stated
accumulation of errors at the trial-notably
trial-notably in
stated ground that the accumulation
in
the admission and exclusion of evidence-was
evidence-was so gross that the "procedures
"procedures
way,"'7
fair way,"7
fundamentally fair
in aa fundamentally
applied to Hicks in
of the military law were
were not applied
the reference
reference to that decision
decision made plain the sentiments of the Kansas dis4.
F. Supp.
4. Anthony
Anthony v.
v. Hunter,
Hunter, 71
71 F.
Supp. 823 (D. Kan. 1947).
1947). The court left
left open the
question whether
question
whether it thought that the failure to comply
comply with Article
Article of War 70 deprived
the court-martial
court-martial of its jurisdiction
jurisdiction because Congress
Congress had made such compliance a
condition
court-martial jurisdiction or because the lack
condition precedent to
to the exercise of court-martial
petitioner the due process "contemplated
of adequate
adequate and impartial investigation denied petitioner
"contemplated
amendment to the
by organic law,"
law," by which
which the court presumably
presumably meant
meant the fifth amendment
Constitution. The
Id. at 831;
The result would, of course, be the same
same under either theory. ld.
831;
see
The Federal
Federal Courts
Look at
at the
Court-Martial,12
7, 17
Courts Look
the Court-Martial,
12 U.
U. Pivr.
PITT. L.
L. REv.
REv. 7,
see Pasley,
Pasley, The
(1950).
(1950).
5. 71 F.
F. Supp. at 831.
6. 64 F. Supp. 238 (M.D.
(M.D. Pa. 1946).
1946).
Id. at 250. There
Hicks case because the proceedings
7. ld.
There was no appeal
appeal in the Hicks
proceedings had
been
exercise of clemency. ld.
Id. at 250 n.28;
authorities' exercise
0.28;
been rendered moot by the military authorities'
see Pasley, supra
supra note 4, at 29. The Government's
Government's brief in the Anthony
Anthony case described
Hicks v. Hiatt
F. Supp.
Hiatt as "an unfortunate legal accident." See Anthony v. Hunter, 71 F.
823,
828 n.4 (D.
1947).
823,828
(D. Kan. 1947).
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[Vol. 61
trict court. The Government
Government did not appeal. The reasons for its acceptance
of the result are conjectural;
conjectural; but almost certainly those reasons did not
not
include agreement
with
the
actual
ground
of
the
decision-the
proposition
agreement
decision-the proposition
that failure to comply with Article of War 70 deprived the court-martial
of jurisdiction-for
jurisdiction-for less than two years later the Government
Government litigated that
that
8s
issue to a successful
conclusion
in
the
guessed,
successful conclusion
Supreme Court. It may be guessed,
therefore, that the Army and the Department
Department of Justice suspected that, on
the somewhat
somewhat unappealing
unappealing facts of the case, a Court of Appeals would be
tempted to affirm on the ground that the trial had been so unfair as to
amount to a denial of due process.
Anthony's coaccused,
A few months later, Anthony's
coaccused, Arnold, tried his luck in the
District Court for the Northern District of Te.'{as,
Texas, within whose jurisdiction Seagoville
Seagoville is located. That court deemed the problem so simple and
the merits of the case so irrelevant-the
irrelevant-the entire opinion runs to fewer than
500 words-that
petition,
words-that it did not bother to state the grounds of Arnold's petition,O
which it summarily
denied.'100 The bases, emotional and legal, of the Texas
summarily denied.
district judge's holding cannot be better summarized than in his own words:
words:
During this time that the alleged offense was committed and
the court-martial
court-martial held, actual warfare was in progress. The Army
was on the forward move. Bullets were flying. Those who gathered
gathered
the witnesses, as well those who came and went, were in the firing
firing
eventualizone of attacking snipers,
snipers, as well as the other dangers and eventualities of active warfare.
court-martial was properly convened. It had jurisdiction
jurisdiction
The court-martial
of the offense and of the parties. The sentence was within the law.
Those facts being irrefutably established, the civil court may not
inquire further. Hurse
.... .u
11
Hurse v. Caffey ...
2
Anthony
while
So Arnold stayed in prison while Anthony went
went free.'
free. 12
8. Humphrey v. Smith, 336 U.S.
(1949). Article
U.S. 695 (1949).
Article 32 of the present Uniform
Uniform
Code of Military Justice
Justice provides explicitly that a failure to comply
comply with its requirement of thorough and impartial pretrial
investigation
shall
not
constitute
"jurisdicpretrial
tional error."
10 U.S.C.
U.S.c. §§ 832 (1958).
(1958).
error." 10
9. From the facts that Arnold
Arnold and Anthony had been tried in common, with
with the
same medical officer as defense counsel,
counsel, that the same lawyer handled
handled their petitions
for habeas
habeas corpus, and that the former investigating
investigating officer testified
testified at Arnold's
Arnold's hearing as he had at Anthony's, we are tolerably
tolerably safe in inferring that the allegations
case.
were about the same as in the earlier ease.
(N.D. Tex. 1948).
10. Arnold
Arnold v. Cozart, 75 F. Supp. 47 (N.D.
1948). I do not know the subsubsequent
conjectured, the reasons for the Govsequent fate of Private
Private Arnold. If, as may be conjectured,
ernment's
ernment's failure to appeal in the case of Private Anthony lay
lay in its doubts about the
merits of the case, Arnold may have received clemency.
can
clemency. If he is still in jail, one can
hope
that the
the monotony
confinement is
is ameliorated
ameliorated by the receipt of art
an occahope that
monotony of
of his
his confinement
sional posteard
postcard from Private Anthony.
11. 75
v. Caffey, 59 F. Supp.
11.
75 F.
F. Supp. at 48. The court's reasons for citing Hurse v.
363 (N.D.
(N.D. Tex.
1945) are not readily apparent. That case involved a collateral attack
363
Tex. 1945)
attack
upon
sentence by
way of
corpus, but
but there
there the resemblance
resemblance
upon aa court-martial
court-martial sentence
by way
of habeas
habeas corpus,
ends.
Hurse claimed no
no denial
ends. Hurse
denial of constitutional
constitutional due process,
process, but only that the record
record
failed
failed to show that the death penalty had, as required by the Articles of War, been
been
all of the members
members of the court then present. The district court's holding
voted by aI1
seems
defect
seems to have been merely that, pending measures
measures by the military to correct the defect
in the record, the petition was premature.
Compare Jackson
12. This result is unfortunately
unfortunately not unique. Compare
Jackson v. Taylor, 353 U.S.
U.S.
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Whatever
Whatever this was, it was not even-handed
even-handed justice, for Arnold and
and
13
If one belonged behind
Anthony had had an equally fair or unfair trial. 13
constitutional right to liberty, so had
bars, so did the other; if one had a constitutional
in
reflect a mere difference
difference in
the other. Nor do the results of the two cases reflect
particular
two district judges' personal
personal appraisals of the fairness of the particular
court-martial.
What these two decisions do is to place in stark contrast
contrast
court-martial. What
two basic approaches
approaches to the problem of collateral
collateral review of military
military justice-a problem
problem which has bedeviled the lower federal courts since World
World
II and one which the Supreme Court has so far conspicuously failed
War II
to resolve. Although
Although a number of cases postdating World
·World War II have
raised the problem,
problem, in most of them the Court, or some faction of the Court,
has employed
employed language
support both
language which can be and has been quoted to &upport
the position that the proper scope of the federal courts' review of military
military
justice is limited to a mechanical
mechanical testing for the bare essentials
essentials of jurisdiction over person
sentence-what
person and offense, and the power to impose the sentence-what
' 14Justices
Douglas
and
Black call "'jurisdiction'
"'jurisdiction' in the historic
Justices
historic sense
sense"14and the position that such review should approximate in breadth
breadth and depth
modern collateral
collateral review of the proceedings
proceedings of civil courts in criminal cases,
including examination to see whether the court,
ourt, though originally possessing jurisdiction over the person and the offense, has lost it by unfairness
amounting to a denial of constitutional due process. The Supreme Court
cases, in fact, leave the reader with a strong impression that the Justices
have
have been, and probably still are, no more harmonious among themselves
themselves
than the lower federal judges and, indeed, that some of them have yet to
make up their own minds.
II.
THE HISTORY
OF THE
THE PROBLEM
THE
HISTORY OF
PROBLEM
Prior to 1944 or thereabouts
thereabouts there was a nearly monolithic
monolithic harmony
within
Supreme Court. Nothing was better settled than the
within and beneath the Supreme
proposition
proposition that the federal courts, having no appellate
appellate jurisdiction
jurisdiction over
over
15
5
military
tribunals,
would,
in
collateral
proceedings
attacking
the
validity
military tribunals/
1955). The Govern569 (1957),
(1957), with De Coster v. Madigan, 223 F.2d 906 (7th
(7th Cir. 1955).
Government
Coster
ment filed no petition
petition for certiorari
certiorari in the latter case, with the result that De Coster
went
went free while his coaccused
coaccused stayed in jail.
13. There
13.
There is
is some suggestion
suggestion that the evidence against Arnold was
was stronger
stronger than
it seems clear that the two were
supra. But since it
were
that against Anthony. See
See note 2 supra.
together
committed the offense, the identification
identification
together at the time they were alleged to have committed
of one would necessarily at least place the other at the locus delicti. In any case, the
strength of the evidence was
circumstances of these
was not-at least in theory and in the circumstances
cases-directly relevant
cases-directly
relevant to the question
question of the court-martial's jurisdiction.
jurisdiction.
Burns v. Wilson, 346
(dissenting opinion),
opinion), rehearing
14. See Bums
346 U.S. 137, 152 (dissenting
rehearil~g denied,
dmied,
346
346 U.S. 844 (1953).
(1953).
15. E.g., In
It re
re Yamashita, 327 U.S. 1, 8 (1946);
(1946) ; In re Vidal, 179 U.S. 126
126 (1900);
(1900);
(1864); Dynes v. Hoover, 61 U.S.
Ex parte
parte Vallandigham,
Vallandigham, 68 U.S. (1 Wall.)
Wall.) 243 (1864);
(20
(1858);; Shaw v. United States, 209 F.2d 811 (D.C. Cir. 1954)
1954);; see
(20 How.) 65, 81 (1858)
Ex parte
105 U.S. 696, 697 (1881);
WINTHROP, MILITARY LAW AND
parte Mason, 105
(1881); WINTHROP,
AND PRECEDENTS
(2d ed. 1920).
1920).
50-54 (Zd
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whether
of a military sentence, most strictly limit themselves
themselves to "ascertaining
"ascertaining whether
and
the military court had jurisdiction
jurisdiction of the person and subject-matter, and
10
whether . . . it had exceeded
exceeded its powers
powers in the sentence pronounced."
pronounced."10
"[N]o0 mere errors in their proceedings
"[N]
proceedings are open to consideration. The
17
Nor were these rescripts merely
single inquiry, the test, is jurisdiction.'
jurisdiction."17
sweeping language
language gratuitously employed in the decision of easy cases. ConCon18
sider, for example, Keyes v. United
United States,
a
suit
by
a
cashiered
second
States,18
cashiered
5th Cavalry
lieutenant in the Sth
Cavalry to collect
collect his pay, on the ground that the
court-martial sentence
court-martial
sentence dismissing him from the service was invalid. The
"mere errors" in that case, as found by the Court of Claims, included the
facts that the colonel commanding the regiment had preferred one of the
member
charges, had appeared as a prosecution witness, and, sitting as a member
of the court-martial, had voted on the finding and sentence. The Supreme
Court affirmed the dismissal of Keyes's petition on the uncomplicated
uncomplicated ground
court-martial ...
...had
cognizance of the charges
that, since "the
"the court-martial
had cognizance
charges made, and
had jurisdiction
. . . .whatever
jurisdiction of the person of the appellant
appellant ..•.
whatever irregularities
irregularities
sentence of
or errors are alleged to have occurred
occurred in the proceedings, the sentence
of
way."'"
dismissal must be held valid when it is questioned in this collateral way."10
Even ex-Captain
long-distance
ex-Captain Oberlin Carter, probably
probably as pertinacious
pertinacious a long-distance
litigant as is to be found in the legal annals of the United States, could find
no chink or cranny in the wall, though he devoted nearly forty years of
of
indefatigable
indefatigable and almost monomaniac
monomaniac effort
effort to attempts
attempts to secure the nullification
court-martial sentence, and ended by alleging
lification of his court-martial
alleging nothing less
less
than personal
prejudice
on
the
part
of
the
Assistant
Judge
Advocate
Genpersonal prejudice
Advocate Gencourt-martial, intimidation of defense witeral and the members of the court-martial,
nesses, abstraction
prosecution
abstraction of defense
defense documentary evidence, use by
by the prosecution
of evidence
known
by
it
to
be
false,
and
sundry
other
irregularities
evidence
irregularities which,
if they really occurred (and no court ever decided
not), would
decided that they did not),
proceedings some tincture
certainly seem to have given the proceedings
tincture of unfairness.
20
He never
never won aa round.
round. 20
16. Carter v. Roberts, 177 U.S. 496, 498 (1900).
(1900). This language was quoted with
approval in Carter v. McOaughry,
McClaughry, 183 U.S.
(1902), in which
approval
U.S. 365, 380 (1902),
which Mr. Chief Justice Fuller eulogized the proposition
proposition as "the
"the salutary rule that the sentences
sentences of courts
martial, when affirmed
tribunal of last resort, cannot be revised
revised by the
affirmed by the military tribunal
civil courts
merely
courts save only when void because of an absolute want of power, and not merely
voidable because of the defective exercise of power possessed." Id.
Id. at 401.
401.
re Grimley, 137 U.S. 147, 150 (1890)
17. In re
(1890);; see Collins v. McDonald, 258 U.S. 416
416
(1922);
MILITARY LAW AND PRECEDENTS
1920). These
(1922); WINTHROP, MILITARY
PRECEDENTS 52-53 (2d ed. 1920).
talismanic sentences
Manual
sentences are cited with particular frequency in subsequent cases.
cases. The Malll/al
for Courts-Martial,
Courts-Martial,which
which favors the orthodox view, quotes them. See MANUAL FOR
COURTs-MARTIAL UNITED
UN=ITE STATES
STATES 1f
f[
214C (1951).
COURTS-MARTIAL
(1951).
18. 109 U.S. 336 (1883).
(1883).
19. Id.
at
340.
Such
language
still
finds
echoes in modern
modern courts. See Moses v.
Id.
language
United States, 137 Ct. O.
Cl. 374, 380 (1957)
(1957) ("It is well settled that this court, regardless of any errors that may have been committed, cannot grant relief from the consequences
court-martial sentence if the court-martial
court-martial had jurisdiction
case.").
sequences of a court-martial
jurisdiction of the case.").
20. In re Carter, 97 Fed. 496 (C.C.S.D.N.Y.
(C.C.S.D.N.Y. 1899),
1899), aj]'d
aff'd stb
norn. Rose ex
rel. Carter
sub nom.
e~ reI.
Carter
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The Second World War saw armies of a size unprecedented
unprecedented in the
history
courts-martial in
in
history of the United States and, as a necessary
necessary corollary, courts-martial
21
numbers theretofore
theretofore unimaginable. Despite large scale post-war
post-war clemency,
clemency,21
there remained
remained in federal penal institutions a great number
number of men who
22
sentences of Army or Navy courts-martial.22
Being
were there pursuant
pursuant to sentences
no more anxious to stay in jail than their civilian counterparts,
counterparts, they presently
took to the courts by squads and platoons. Few of the petitioners could
adduce the orthodox grounds of collateral attack, for in practically every
every
case it was plain that the court-martial
had
had
jurisdiction
over
the
percourt-martial
son and the offense and power to impose the sentence;
sentence; but it was inevitable,
inevitable,
given the frequently amateur personnel of wartime courts-martial
courts-martial and the
stresses and strains under which they operated, especially overseas, that
that
some of the petitioners could tell startling, and sometimes apparently
truthful, tales of unfairness,
unfairness, calculated to cause a federal judge
judge of average
fairmindedness
to
chafe
under
the
restrictions
of
the
traditional
rules and
fairmindedness
chafe
heterodox proposition
make him receptive to the heterodox
proposition that even soldiers were
entitled to some sort of due process, whether
or
whether by virtue of the Constitution
Constitution or
the Articles of War, the denial of which could cause a court-martial
court-martial to lose
otherwise have had. Mention has been made
the jurisdiction
jurisdiction that it would otherwise
circuit judge siting as a district judge
judge detonated
detonated
of the Hicks case; another circuit
with an explosion still more ear-shattering. Starting with the mild observa"the trial ...
defense
tion that "the
. . . in the eyes of both the prosecution and the defense
was wholly obnoxious
and
repulsive
to
their
fundamental
sense
of
justice,"
obnoxious
repulsive
Judge
"no difficulty in finding that the court which tried this
Judge Murrah had "no
man was saturated
War
saturated with tyranny; the compliance
compliance with the Articles of War
,,23
...
only
compliance
farcical
and with military justice was an empty and
and farcical compliance only...."23
24
The petitioner went free, at least temporarily.24
temporarily.
There were a number of
v. Roberts.
Roberts, 99 Fed. 948
Cir.),, cert.
cert. denied,
U.S. 684, appeal
dismissed, 177
948 (2d Cir.)
denied, 176 U.S.
appeal dismissed,
v. McQaughry,
McClaughry, 105 Fed. 614 (C.C.D.
(C.C.D. Kan. 1900),
1900), aff'd.
aff'd,
U.S. 496 (1900);
(1900); Carter v.
(D.C. Cir.),
cert. denied,
denied, 302
183 U.S. 365 (1902);
(1902); Carter
Carter v. Woodring, 92 F.2d 544 (D.C.
Cir.), cert.
(1937); see Burns
Wilson, 346 U.S. 844, 846 (1953)
(1953) (separate
(separate opinion of
U.S. 752 (1937);
Bums v. Wilson.
Mr. Justice
Justice Frankfurter).
Frankfurter).
established by the War Department
Department
21. It was estimated that the Clemency Board
Board established
after World War II would examine about 30,000 cases out of a total of 90,000 warremainder of those contime convictions
convictions by general
general courts-martial of the Army, the remainder
victed
victed being restored to duty through the Army's rehabilitation program. See Note, 57
(1948).
YALE L.J. 483, 488 &
& n.39 (1948).
22. As of the end of 1945,
1945, this prison population numbered
40,000, more
numbered nearly 40,000.
BuREAU OF THE CENSUS.
CENSUS, PRISONERS
PRISONERS
than a thirty-fold increase since 1940. See U.S. BUREAU
IN STATE AND
AND FEDERAL
FEDERAL PRISONS
PuSONS AND
AND REFORMATORIES
REFORmATORmS 103 (1946).
(1946).
23. Beets
1948). The opinion was obobBeets v. Hunter, 75 F. Supp. 825, 826 (D.
(D. Kan. 1948).
viously delivered on the spot, orally, and at white heat.
24. The subsequent history of the Beets case was somewhat anticlimactic.
anticlimactic. After the
53d
writ had been granted and before the appeal was heard, Congress
Congress amended the 53d
Article
Article of War to permit application to the Judge Advocate
Advocate General
General for vacation of
sentence or new trial. Selective
Selective Service Act of 1948, ch. 625, § 230, 62 Stat.
Stat. 639. The
sentence
Court of Appeals reversed
reversed on the ground that Beets was required to exhaust
exhaust his newly
granted
granted administrative remedy before seeking collateral
collateral review. Hunter
Hunter v. Beets, 180
963 (1950).
F.2d 101 (10th Cir.),
Cir.), cert. denied,
denied, 339 U.S. %3
(1950). Again, I do not know the
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other cases in which inferior federal courts
courts undertook
undertook to conduct a searchsearchproceedings of courts-martial,2G
courts-martial, 25
ing collateral
collateral review of allegedly
allegedly unfair proceedings
though in all probability none of them got up quite as great
great a head of steam
26
26
as Judge
Judge Murrah.
Despite these mutterings, and even roars, of discontent among
among the
judicial
judicial proletariat, the Supreme Court was far from ready to open the
safety
safety valve; indeed, it has not to this day allowed a military prisoner
prisoner
Smlth,V
v.
Humphrey
In
trial.
his
in
to be freed because of unfairness
unfairness in his trial. In Humphrey v. Smith,21
the petitioner sought to impeach
court-martial verdict not only on
impeach a court-martial
011 the
inadequate pretrial investigation deground (as in the Anthony
Anthony case) that inadequate
prived the court-martial
court-martial of jurisdiction, but on the further ground that the
incompetence
incompetence of his counsel
counsel and errors in the admission of evidence had
examhad that effect. The District Court, although disclaiming
disclaiming any intent to e.,
...mmine the record
record for error, did in fact review it carefully and found no merit
merit
28 Basing its decision solely on the inadequacy
inadequacy
in any of the contentions.28
20
of the pretrial
pretrial investigation,
investigation, the Court of Appeals ordered
ordered the writ granted.20
Mr. Justice Black and five of his brethren, reversing on the ground that
that
the requirement
nevertheless
requirement of pretrial
pretrial investigation was not jurisdictional,
jurisdictional, nevertheless
went out of their way "at once [to] dispose of" petitioner's other contentions,30 citing those most orthodox
orthodox of orthodox
Carter v.
tentions,so
orthodox decisions, Carter
McClaughry and In
Yanshita. Yet a close observer
In re Yamashita.
observer might have
have disMcClaughry
cerned that the door was not quite closed,
closed, for Mr. Justice Black, perhaps
perhaps
"courtcasually and perhaps
perhaps with meticulous
meticulous care, limited the holding to a "court1
-a qualification
qualification
martial conviction
conviction resulting from a trial fairly conducted"3
conducted"31-a
which, however cautious,
cautious, had not been adumbrated
adumbrated by anything in the
went
language of earlier opinions. Moreover, although Smith's contentions went
connot only to the alleged absence
absence of evidence sufficient
sufficient to support his conviction but also to the alleged unfairness of his trial, all that Mr. Justice
Justice
. . .
Black actually said was that, while the evidence
evidence "was in sharp dispute, ...
our authority in habeas corpus
corpus proceedings
proceedings to review court-martial judgultimate fate of the petitioner; his name appears no more
more in the reports, from which
it may perhaps be inferred that the administrative remedy was effective.
25.
1949), rev'd,
rev'd, 339 U.S. 103
(1950);
25. E.g., Hiatt v. Brown, 175 F.2d 273 (5th Cir. 1949),
103 (1950);
U.S.
rel. Innes v. Hiatt, 141 F.2d 664, 666 (3d
1944) ; see Kuykendall
e% reI.
(3d Cir. 1944)
KuykendaIl v. Hunter,
U.S. ex
187 F.2d 545,
excellent analysis
545, 546 (10th
(10th Cir. 1951).
1951). For an exceIIent
analysis and evaluation of the cases
cases
decided prior to 1950
1950 see
supra note 4. See also Note, Collateral
see Pasley, supra
Collateral Attack on
Ol~ CourtsCourtsMartial
in
the
Federal
Courts,
57
YALE
L.J.
(1948).
Federal Courts,
YALE
483 (1948).
Martial ill
26. Compare,
Compare, however,
however, Shapiro
Cl. 1947)
1947)
26.
Shapiro v. United States, 69 F. Supp. 205,
205, 207 (Ct. Cl.
("flagrant case
. .. .. verdict ..•
. . . evidently rendered in spite
("flagrant
case of military despotism.
despotism. •
fallibility of the judgment
judgment
against a junior officer who had dared to demonstrate the fallibility
.... almost complete
rights").
of his superior officers
officers ...•
complete denial of plaintiff's constitutional
constitutional rights").
(1949).
27. 336 U.S.
U.S. 695 (1949).
Ex parte
parte Smith, 72 F. Supp. 935, 937 (M.D.
(M.D. Pa. 1947).
1947).
28. See E%
1948).
29. Smith v. Hiatt, 170 F.2d 61 (3d Cir. 1948).
30. 336 U.S. at 696. The three dissenting
dissenting Justices, Murphy, Douglas, and Rutledge,
confined their dissent to the pretrial investigation question. ld.
Id. at 701.
31.
Id. at 701.
31. ld.
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47
ments does not permit
permit us to pass on the guilt or innocence of persons
convicted by courts-martial"32-a
courts-martial" 3 ---a proposition which, assuming-the
'Convicted
assuming 'the presence
of some
some evidence to support the finding, is unlikely
unlikely to be disputed by many
lawyers, military or civilian. Finally, perusal of the district
district court's review
,of
of the record leaves one pretty well persuaded
persuaded that Smith was guilty, a
circumstance which in practice may not be altogether irrelevant;
circumstance
irrelevant; none of the
Justices could have lost much sleep over the hardness of his case. Thus
the Smith case afforded no reliable basis for prophecy about what would
would
happen if a really hard case reached
the
Court.
In
a
case
decided
the
same
reached
day the Court refused to exclude the possibility
possibility that at least the double
jeopardy
jeopardy provision
provision of the fifth amendment was applicable to court-martial
petitioner had not in fact been put
put
proceedings, though it found that the petitioner
33
33
amendment.
that
of
intent
the
within
twice
twice in jeopardy
jeopardy within
intent of that amendment.
What seemed to a district court
court and a court of appeals
appeals a sufficiently
sufficiently
hard case did in fact reach the Court the following year-a case in which
which
the lower courts had directed the petitioner's release because the record was
so "replete
"replete with highly prejudicial
irregularities" as to amount
amount
prejudicial errors and irregularities"
4
34
to a denial of due process in violation of the fifth amendment.2
The
Supreme
amendment.
Court unanimously35
unanimously 35 reversed and did so in terms calculated
calculated sharply to
to
remind the errant lower courts of their limited function in military habeas
habeas
corpus proceedings:
proceedings:
We think the court was in error in extending
extending its review, for
the purpose of determining
compliance with the due process
determining compliance
process clause,
to such matters as the propositions
propositions of law
law set forth in the staff
staff
judge advocate's
sufficiency of the evidence to sustain
sustain
advocate's report, the sufficiency
respondent's
respondent's conviction, the adequacy of the pretrial
pretrial investigation,
and the competence of the law member and defense
defense counsel
counsel.....
. . .
"The
Grimley .. ...
"The single inquiry, the test, is jurisdiction."
jurisdiction." In
In re Grimley
.
the correction
court-martial) may have committed
correction of any errors [the court-martial]
committed
is for the military authorities which are alone authorized to review
its decision.3366
Nevertheless,
Neverthe1ess, it would strain an ordinarily
ordinarily conscientious
conscientious court to ignore
such errors as were found by the court
court of appeals
appeals in the Brown case; those
errors included conviction of murder on "evidence
"evidence that does not measure
deliberation," incompetence
to malice, premeditation,
premeditation, or deliberation,"
incompetence and lack of prepara"gross" incompetence of the court's law
tion of appointed defense counsel, "gross"
member,
member, and "total misconception
misconception of the applicable
applicable law"
law" by the military
32. Id.
ld. at 696.
U.S. 684 (1949).
(1949). Again Mr. Justice Black wrote for the
33. Wade v. Hunter, 336 U.S.
majority. The three dissenters, who thought Wade was put twice in jeopardy, stated
flatly, as they had to, that Wade, though a soldier, had rights under the fifth amendment the denial of which was
Id. at 692, 694. See
was a proper subject of collateral review. ld.
text accompanying
accompanying notes 74, 77 infra.
infra.
34. Hiatt v. Brown, 175 F.2d 273, 277 (5th Cir. 1949),
1949), reV'd,
(1950).
mId, 339 U.S.
U.S. 103 (1950).
35. Mr. Justice
Justice Douglas did not participate.
participate.
U.S. 103, 110 (1950).
(1950).
36. Hiatt v. Brown, 339 U.S.
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37 Had the proceedings
reviewing
concerned with a conproceedings been concerned
conreviewing authorities.37
viction by a civil court, such findings would certainly
have
presented
certainly
presented a
38
38
process.
due
of
denial
of
question
substantial
substantial
of denial of due process.
If the Brown case was a longish step to the rear, the Court later in
in
the same term took a half pace forward. In Whelchel v. McDonald,llo
McDonald,0 a
denied
case in which the petitioner
petitioner in substance contended
contended that he had been denied
due process by the military
of
military reviewing authorities'
authorities' rejection of his claim of
insanity, Mr. Justice Douglas
duly
recited
the
conventional
propositions
that
Douglas
propositions
the only issue was "jurisdiction"
"jurisdiction" and that the military's errors
errors in evaluating
evaluating
evidence of insanity would not go to jurisdiction; but he added that
the evidence
the accused was entitled to an opportunity
opportunity to present the defense of insanity and that a denial of that opportunity
opportunity would have gone to jurisdiction.
opinion
The petitioner had had that opportunity. There is nothing in the opinion
to suggest that the result would have been different
different if the court-martial
court-martial
had found him mentally responsible
responsible after hearing a panel of seven psychiatrists
psychiatrists
Whelchel was a hopeless lunatic; the error would
unanimously testify that Whelchel
would
have been only an error in evaluating
the
evidence.
It
has
been
said
that
evaluating
It
concept of "jurisdiction"
Whelchel expanded the concept
"jurisdiction" in habeas corpus review
40
expansion is measurable
measurable with a micrometer.
of courts-martial,
courts-martial,40
but the expansion
COURTS
III. ANALOGUES
ANALOGUES IN CIVIL COURTS
It is appropriate
It
appropriate here to digress slightly to recall the history of the
problem
It should not be forgotten that until shortly
problem in its civilian form. It
before
World
War
II the scope of collateral review of civilian criminal
before
II
proceedings
proceedings was not appreciably greater; it too was said to go only to
41
"jurisdiction" in the narrowest
Historically, in fact,
narrowest or "historic"
"historic" sense. 41
court-martial
verdicts
were
more
vulnerable
court-martial
to habeas corpus than were
those of the civil courts: "at
"at common law a judgment of conviction
conviction rendered
rendered
by a court of general
general criminal jurisdiction
was
conclusive
proof
that
conjurisdiction
42
finement
was
legal,"
while
"a
court
martial
was
finement was legal,"42
considered as one of those
inferior courts of limited jurisdiction,
jurisdiction, whose judgment may be questioned
questioned
'43
collaterally,
and
from
the
earliest
times
a
civil
court
could
properly
incollaterally,"43
37. 175 F.2d at 277.
38. Compare,
Leyra v. Denno, 347 U.S. 556 (1954);
(1954); Palmer v. Ashe, 342 U.S.
38.
Compare, e.g.,
e.g., Leyra
134 (1951);
(1951); Gibbs
Gibbs v.
v. Burke,
Burke, 337 U.S. 773 (1949);
134
(1949); Marino v. Ragen, 332 U.S. 561
(1947); Waley v. Johnston, 316 U.S. 101 (1942);
(1942); Johnson v. Zerbst, 304 U.S. 458
(1947);
(1938) ; United States ex
rel. Goldsby
1957), cert.
(1938);
e~ reI.
Goldsby v. Harpole, 249 F.2d 417 (5th Cir. 1957),
ccrt.
denied, 361 U.S. 850 (1959).
(1959).
denied,
39. 340 U.S. 122
122 (1950),
(1950), reheariltg
rehearing denied,
denied, 340 U.S. 923 (1951).
(1951).
40. See Burns v. Lovett, 202 F.2d 335, 339 (D.C. Cir. 1952),
1952), ree'd
rev'd sub norn.
110111. Burns
Burns
v. Wilson, 346 U.S. 137, reheariltg
rehearingdenied,
346
U.S.
844
(1953).
denied,
(1953).
41.
Matter
of
Gregory,
219
U.S.
210,
211
(1911)
;
see
separate
opinion
of
Mr.
Justice
41. Matter
(1911);
separate
Justice
Frankfurter in Burns
(1953). But
Frankfurter
Bums v. Wilson, 346 U.S. 844, 845-46 (1953).
Bllt cf.
c/. Frank v.
(1915).
Mangum, 237 U.S. 309 (1915).
42. United States v. Hayman, 342 U.S. 205, 210-11 (1952).
(1952).
43. Ex
209 (1830).
E~ parte
parte Watkins, 28 U.S. (3
(3 Pet.) 193,
193,209
(1830).
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49
spect at least the military' court's jurisdiction over the person
person and offense
44
44
Lincoln's
of
its
sentence.
Thus,
President
and the lawfulness
President Lincoln's suspension
benefit
of the writ of habeas corpus
corpus was intended
intended and operated
operated for the benefit
of the various types of military tribunal which proliferated
proliferated during the
1861, took the
Civil War-indeed, the original suspension of April 27, 1861,
form of an executive
executive order delegating to the Commanding General
General of the
United
United States Army and other military officers authority
authority to suspend the
writ. 4r
45 Not until 1867 did Congress cast the habeas corpus
corpus jurisdiction
jurisdiction
of the federal courts
courts in substantially its present form by extending
extending the
"any person may be restrained of his or her
writ to all cases in which "any
liberty in violation of the constitution,
constitution, or of any treaty or law of the United
4
States."46
States." 0
It is noteworthy
It
noteworthy that neither that
tbat statute nor any amendment
amendment dif47
47
It is true that Article
ferentiates between civil and military tribunals. It
Article 76
of the Uniform Code of Military Justice
Justice4488 provides that
the proceedings,
proceedings, findings, and sentences of courts-martial
courts-martial as approved, reviewed, or affirmed
affirmed as required by this code . .. . shall be
be
final and conclusive,
conclusive, and orders publishing
publishing the proceedings
proceedings of courtscourtsproceedings shall be
martial and all action taken pursuant
pursuant to such proceedings
be
binding upon all departments,
departments, courts, agencies,
agencies, and officers of the
United States, subject only to action upon a petition for a new
Secretary of a
trial as provided
provided in article 73 and to action by the Secretary
Department as provided in article 74, and the authority of the
President.
But the Supreme Court refused
refused to read
read the immediate predecessor
predecessor of that
to deprive the
less
categorically,
as
intended
article, which
was
worded
no
whicb
49
civil courts of habeas corpus
corpus jurisdiction,
jurisdiction,49 and it is clear that Article 76
subsequent
has no greater effect, as is demonstrated by the numerous cases subsequent
(1806); E);
Ex parte
(3 Cranch)
Cranch) 330, 337 (1806);
44. Wise v. Withers, 7 U.S. (3
parte Reed, 100
100
Ex parte
parte Watkins, supra
supra note 43, at 208-09.
U.S. 13 (1879)
(1879) ; see
see E);
Ex parte
1, 31 n.10 (1942)
45. See E);
parte Quirin,
Quirin, 317 U.S. 1,
(1942);; Schaffter & Mathews,
Mathews, The
United
Commander ia
in Chief of the Army and
Powers of the President
Powers
President as Comma1lder
a1ld Navy of The U1lited
(1956); cf. E);
Ex parte
States,
parte Milligan, 71
States, H.R. Doc. No. 443, 84th Cong., 2d Sess. 4-5 (1956);
U.S. (4 Wall.)
(1866); Ex
Wall.) 2 (1866);
E); parte
parte Mudd, 17 Fed. Cas. 954 (No. 9899)
9899) (D.C.S.C.
Fla. 1868).
1868). The report describes the Mudd case as "nowhere reported; opinion not now
now
accessible," but summarizes it as holding that, "The crime of murdering
murdering the president
president
accessible,"
of the United States, in time of civil war is triable by a military commission."
commission." Dr. Mudd
was the luckless
luckless surgeon who set the broken leg of John Wilkes Booth and paid
paid for
for
this Samaritan act by many years of imprisonment
imprisonment in aa peculiarly
peculiarly dismal jail.
46. Act of February
5, 1867, ch. 28, 14 Stat. 385;
v. Hayman,
February 5,
385; see United States v.
(1952); HART
H-ART & WEcHSLER,
342 U.S. 205,
205, 211-12 (1952);
WECHSLER, TE
THE FEDERAL COURTS AND
AND THE
FEmAL
'(1953).
FEDERAL SYsTEam
SYSTEM 1236-37
1236-37 (1953).
47. The present statute provides in pertinent part that "the
"the writ of habeas corpus
shall not extend to a prisoner unless-(l) He is in custody under or by color of the
authority
or
authority of the United States or is committed for trial before some court thereof; or
....
(3) He is in custody in violation of the Constitution
•••.
Constitution or laws or treaties of the
2241(c)
(1958).
.... " 28 U.S.C. §§ 2241
United States;
(c) (1958).
States; ...•"
U.S.C. §§ 876 (1958).
48. 10 U.S.c.
(1958).
(1950); see Burus
Bums v.
v. Wilson, 346 U.S.
49. Gusik v. Schilder, 340
340 U.S. 128, 132 (1950);
137, 142 (1953).
(1953).
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to its enactment
enactment in which the Court has sanctioned
sanctioned the granting of the writ
50
to persons convicted
convicted by court-martial.
court-martial.50
although historically the scope of collateral review
But, ~though
review of civilian
civilian
criminal proceedings
proceedings was not greater than that of courts-martial, a gradual
inaugurated by the decision
given
development, inaugurated
decision in Johnson
Johnson v. Zerbst,
Zerbst,511 has given
new dimensions to the concept
concept of examination
examination in collateral proceedings of
"jurisdiction" of a civilian criminal
the "jurisdiction"
criminal court. The technical
technical rationale is
evaporated because
that jurisdiction,
jurisdiction, though it existed when the trial began, evaporated
522 This latter
the defendant
was
somehow
denied
constitutional
due
process.
defendant
somehow
constitutional
latter
is itself an uncertain but expanding
expanding concept which includes
includes at least such
basic unfairness
counsel, 53 or the admission of a coerced
unfairness as lack of counsel,53
coerced confesconfes54
55
sion,
or
the
prosecution's
knowing
use
of
perjured
testimony
-all
sion,54
prosecution's
perjured testimony55-all of
court-martial as in a civilian criminal prowhich are as likely
likely to occur
occur in a court-martial
ceeding. Although
Although even in civil cases old views die hard in some lower federal courts,56
courts, 56 it is clear today that if a district court is satisfied that a state
counsel or that a
prisoner was in fact denied the effective assistance of counselor
coerced
evidence against him, it will
coerced confession
confession was in fact admitted in evidence
grant the writ regardless of what the state court may have found on those
57
issues. 57
Whether it is desirable to employ this particular
particular method
method of
vindicating the state prisoner's federal constitutional
constitutional rights is not the im58
mediate
controversy has been
mediate question. 58
For the present
present at least, that controversy
ex rel.
50. E.g., McElroy v. United States es
reI. Guagliardo, 361 U.S. 281 (1960);
(1960);
(1960) ; Kinsella v. Singleton, 361 U.S. 234 (1960);
(1960);
Grisham v. Hagan, 361 U.S. 278 (1960);
Reid v. Covert, 354 U.S. 1 (1957);
(1957); United States es
ex reI.
rel. Toth v. Quarles,
Quarles, 350 U.S.
11 (1955).
(1955). These were all decided
decided on the ground that a court-martial
court-martial could not constitutionally exercise jurisdiction over sundry
sundry types of civilians and
stitutionally
and involved no question
of loss of jurisdiction by unfairness amounting to a denial of due process.
process.
At least
least one recent decision of a lower federal court included
included article 76 among its
reasons for abstaining
abstaining from collateral
collateral review of a military verdict. See Alley v. Chief,
(S.D. Ind. 1958).
1958). The Government
Government
167 F. Supp. 303, 304 (S.D.
Finance Center, U.S. Army, 167
apparently takes the position that article 76 is at least a bar to a collateral attack by
by
apparently
proceedings other than a petition for a writ of habeas corpus.
corpus. See Begalke v. United
159-55, Ct. Cl., Jan. 20, 1960, cert.
denied, 81 Sup. Ct. 108 (1960).
States, No. 159-55,
cert. denied,
(1960). See
See
text accompanying
accompanying notes 99-103 infra.
illfra.
51. 304 U.S.
(1938).
51.
U.S. 458 (1938).
Pollak, Proposals
Corpus for State
State Prisollers:
Prisoners: Collateral
52. See Pollak,
Proposals to Curtail
Curtail Habeas
Habeas Corp11s
Collateral
Writ, 66 YALE
(1956) ; Note, Tile
The Freedom
Freedom WritWritOlt The
Tile Great
Great Writ,
YALE L.J. 50, 52 (1956);
Attack on
Corpus, 61 HARv.
HAuv. L. REv.
The Expanding
Espalldil~g Use of Federal
Federal Habeas
Habeas Corp1ls,
REv. 657 (1948).
(1948).
(1948); Johnson v. Zerbst, 304 U.S. 458
53. E.g., Wade v. Mayo, 334 U.S. 672 (1948);
(1938).
(1938).
54. Leyra v. Denno, 347 U.S. 556 (1954).
55. Es
Ex parte
parte Hawk, 321 U.S. 114 (1944).
(1944).
56. Cf. Wooten v. Bomar, 267 F.2d 900 (6th
(6th Cir. 1959).
1959). See also Reitz, Federal
Federal
Habeas
Corpus:
Postconviction
Remedy
for
Prisoners, 108 U. PA. L.
for State Prisollers,
L. REV. 461,
461,
Habeas Corpus: PostcollvictiOl~
462 (1960).
(1960).
.
57. See Brown v. Allen, 344 U.S. 443 (1953);
(1953) ; House v. Mayo, 324 U.S. 42 (1945).
(1945).
58. The problem of the proper extent of federal intervention
intervention in this area-whether
area-whether
for example, it ought to be limited to the Supreme Court's review, usually on
on certiorari,
of the judgments
ought to think
judgments of state courts, and whether the Supreme
Supreme Court ougbt
think
quite so expansively when defining due process-has
process-has naturally provoked an e.>:ceedingly
exceedingly
hot controversy and a correspondingly
correspondingly voluminous literature, judicial and otherwise,
most of it highly polemical. See, e.g., Report
Report of the Cminittee
on Habeas
Habeas Corpus
Corpus of
Committee Ol~
COllference of Chief Justices
lt~tices (1954), reprinted in H.R. REP. No. 1293, 85th Cong.,
the Conference
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51
resolved in favor of the proposition that the federal courts may examine
examine
petitioner's trial in a state court and may
for themselves the fairness of a petitioner's
range far beyond
examination. The not less
less
beyond the record in the course of that examination.
important
question
with
which
we
are
here
concerned
and
which
the
Supreme
important
Supreme
good
Court will sooner
sooner or later have to decide, is whether there is any good
reason why military
military tribunals should not be subject to the same quality
of constitutional policing as is applied to the criminal proceedings of the
courts of the states--emphasizing,
states---emphasizing, however, that procedures
procedures which would invalidate a civilian trial may be justified by military exigency. The process
process
which is due a soldier is not necessarily the same as that due a civilian.
IV. Burns v. Wilson:
Wilson: THE
THaE SUPREME
SUPREME COURT'S
COURT'S MosT
MOST RECENT
RECENT VIEW
VIEW
Three
McDonald the Supreme Court
Three years after Whelchel v. McDonald
Court decided
decided
5
Burns v. Wilson,59
Wilson," which after seven years still stands as the principal
principal lighthouse in these trackless waters, however low its candlepower. On its facts
it presented
presented precisely the question posed in the preceding
preceding paragraphparagraphwhether and to what extent the principle of Johnson
Johnson v. Zerbst ought to be
court-martial verdicts. Burns and another
another
applied to collateral review of court-martial
court-martial of rape and murder
soldier had been
been convicted by general court-martial
murder
and sentenced
sentenced to death. Having exhausted
exhausted the procedures
procedures of military review, they petitioned for writs of habeas corpus in the District Court for
for
660
the District of Columbia.
Columbia. " Burns and his copetitioner
copetitioner made a number of
of
2d Sess. 7 (1958);
concurring opinion of Mr. Justice
(1958); concurring
Justice Jackson in Brown v. Allen, 344
U.S. 443, 532 (1953)
supra note 56.
(1953) ; Pollak, supra
supra note 52; Reitz, supra
59. 346
346 U.S.
137, rehearillg
rehearingdenied,
denied, 346 U.S. 844 (1953).
(1953).
U.S. 137,
59.
60. Burns and his copetitioner
copetitioner had a troublesome
troublesome preliminary
preliminary problem,
problem, for they
were confined
confined in Japan and thus several thousand
thousand miles beyond the territorial jurisjurisdiction of any district court of the United States. The statute, 28 U.S.C. §§ 2241
2241(a)
(a)
(1958),
which
permits
federal
courts
to
grant
the
writ
"within
their
respective
juris(1958),
permits
the
jurispetitioner to file in
dictions," has been construed by the Supreme Court to require
require a petitioner
188
the court for the district in which he is confined. Ahrens v. Clark, 335 U.S. 188
(1948);
1960). But the opinion in
(1948); see Whiting v. Chew, 273 F.2d 885,
885, 886 (4th
(4th Cir. 1960).
Ahrens v. Clark,
Clark, supra,
Ahrells
supra, explicitly left open "the question of what process, if any, a
confined in an area not subject to the jurisdiction
person confined
jurisdiction of any district court may
id. at 192 n.4; see 'Comment, 49 MicE.
L. REv. 870
employ to assert federal rights," id.
MICH. L.
(1951),
(1951), and the Supreme Court has yet to dispose of that question. The Court of
Appeals for the District of Columbia
Columbia Circuit, which held in Eisentrager v. Forrestal,
Cir.),, rev'd
revd 011
on other
other groumds
noin. Johnson
174 F.2d 961 (D.C.
(D.C. Cir.)
grounds sub 110111.
Johnson v. Eisentrager,
Germany could petition in the district where
339 U.S. 763 (1949),
(1949), that one confined
confined in Germany
Secretary
his custodian, or a person having authority over that custodian, such as the Secretary
of Defense, was located, has stuck to that position, at least in cases in which the petipetitioner was an American citizen.
1957) ; Cozart v.
(D.C. Cir. 1957)
citizen. Day v. Wilson, 247 F.2d 60 (D.C.
Wilson, 236 F.2d 732 (D.C. Cir.),
vacated as moot,
moot, 352 U.S.
U.S. 884 (1956).
(1956).
Cir.), vacated
U.S. ex
rel.
The Government's policy on the matter is very far from clear. In U.S.
e:>: reI.
in
Toth v. Quarles, 350 U.S. 11 (1955),
(1955), in which the petitioner
petitioner had been apprehended
apprehended in
court-martialed, the Government
Government conPittsburgh and promptly flown to Korea to be court-martialed,
conceded the district court's jurisdiction
jurisdiction to entertain the petition,
petition, but did so on the tortuous reasoning that since Toth might have sought the writ at any time after his
apprehension and before his removal from the United States, he was to be distinguished
apprehension
distinguished
from "a person [who] has never had a cause of action which was clearly
clearly within the
jurisdiction
jurisdiction of a district court of the United States, as, for example, an American
Ameriean
citizen apprehended
apprehended outside the territorial
territorial or maritime jurisdiction of the United States
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allegations,
allegations, supported by possibly
possibly truthful affidavits and other evidence
evidence out"serious
side the record, which raised in the mind of one circuit judge such "serious
apprehension to convicconvicdoubt whether 'the whole course of events' from apprehension
tion did not amount to a serious denial of fundamental
fundamental fairness"
fairness" that he
01 The petitioners
wanted
petitioners
wanted the case remanded
remanded for a hearing
hearing on the merits. 01
alleged
alleged that they had been illegally detained;
detained; that their confessions
confessions had
been coerced; that they had been denied the effective assistance
counsel;
assistance of counsel;
that favorable evidence
evidence had been
been suppressed
suppressed and perjured testimony knowingly used; and that the trial was conducted in an atmosphere of "hysteria
"hysteria
62
'
and terror.
summarily dismissed the petitions on the
terror."62 The district court summarily
traditional
record
traditional grounds. The court of appeals, though it examined the record
in detail,
affirmed---essentially
on
the
ground
that
these
issues
of
fact
had
detail, affirmed-essentially
been presented to and fully explored and resolved by the military authorities
authorities
upon "substantial
"substantial evidence."
evidence."
In the Supreme
Supreme Court four different opinions were filed; none was
many lower courts seem
seem
supported by a majority of the Court. In what many
to have mistaken
mistaken for a majority opinion, the largest
largest faction, consisting of
Mr. Chief Justice Vinson and Justices
to
Justices Clark, Burton and Reed, voted to
that:
affirm, stating that:
"The constitutional
1. "The
constitutional guarantee
guarantee of due process is meaningful enough,
enough,
and sufficiently adaptable, to protect soldiers-as
soldiers-as well
well as civilians-from
civilians-from the
crude
crude injustices of a trial so conducted that it becomes bent on fixing guilt
...."03
rudimentary fairness
by dispensing with rudimentary
fairness ...."03
2. "But in military habeas corpus the inquiry, the scope of matters
04
open for review, has always been more narrow than in civil cases."
cases."04
If the
2
by authority of the United States,"
9, U.S. ex rei.
rel.
States," Brief for the Respondent, p. 53 n.
n.29,
supra; see 350 U.S. at 25 (Reed,
dissenting). Since
Toth v. Quarles,
Quarles, supra;
(Reed, J., dissenting).
Since Toth was
California
arrested in Pittsburgh on May 13, flown to Maryland on the same day, to California
on May 15, and to Korea on the day after, he would have had to display both presence
presence
of mind and rapid legal footwork to file a petition in a district in which he was confined. In a subsequent
subsequent case in which the petitioning
soldier had been apprehended,
petitioning soldier
apprehended, and
was at the time he filed, confined outside the jurisdiction of the United States, the
Government argued, though unsuccessfulIy,
unsuccessfully, that the district court
Government
court was without jurisdiction. Day v. Wilson, 247 F.2d 60 (D.C. Cir. 1957).
1957). Since on remand the petition
was found to be without
without merit, no review of the question of territorial jurisdiction
jurisdiction
could be sought. Day v. Wilson, 155 F.
F. Supp. 469 (D.D.C. 1957).
1957). The most that can
can
be said is that
that the Government
Government stops short of the position that it can frustrate the
writ by the simple expedient of spiriting a prisoner
prisoner out of the country. The
The problem,
however
importance in time of peace,
however intriguing, is probably not of major practical
practical importance
because
sufficiently long
because soldiers who are sentenced
sentenced to death or terms of imprisonment sufficiently
long
to afford time for the filing and hearing of a petition will normally be returned to the
United States for execution
Bums case a majority
execution or confinement. In the Bf/T'IlS
majority of the Court,
and apparently
well, simply ignored the question, though Mr. Justice
apparently the parties as welI,
Frankfurter
Frankfurter vigorously
vigorously advocated its confrontation
confrontation and decision. 346 U.S. at 851-52
(dissenting
opinion).
(dissenting opinion).
61.
1952) (Bazelon, J.,
61. See Burns v. Lovett, 202 F.2d 335,
335, 348, 352-53 (D.C. Cir. 1952)
J.,
dissenting), aff'd
sub 110111.
nor. Burns v. Wilson, 346 U.S. 137
137 (1953).
(1953).
ajJ'd Sf/b
dissenting),
mspra note 61, at 343-46.
62. See Burns v. Lovett, Sf/pra
343-46.
63. 346 U.S. at 142.
Id. at 139.
64. ld.
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53
53
Uniform
shall
Uniform Code's provision
provision that the determination
determination of military tribunals shaU
be
all courts does not altogether
be final and binding
binding on aU
altogether preclude
preclude habeas corpus
corpus
jurisdiction, yet "these
"these provisions do mean that when a military decision has
dealt fully
fuUy and fairly with an allegation
aUegation raised in that application, it is not
open to a federal civil court to grant the writ simply to re-evaluate
re-evaluate the
evidence."05
evidence."05
3. Thus, in the instant case, "had
"had the military
military courts
courts manifestly refused to consider"
the
petitioners'
allegations
of
fundamental
unfairness, the
consider"
aUegations
district court might have evaluated for itself the question
question of due process.
"have heard petitioners
But, since the record showed that the military courts "have
oO
out" on these matters, nothing remained
for
the
civil
courts to do.66
remained
6077
The former
Justices Jackson and Minton concurred in the result.
wrote no opinion, and the latter registered his pronounced
pronounced and explicit dis"the federal courts sit to protect the constitutional
approval of the idea that "the
constitutional
rights of military
military defendants," beyond satisfying themselves of the existence of jurisdiction
orthodoxy by
jurisdiction in the traditional sense; he attested his orthodoxy
by
68
re Grimley.
Mr. Justice
citing In re
Grimley.os
Justice Frankfurter cast a vote in favor of more
unwilling either to affirm or reverse without more and fuller
light; he was unwiIIing
fuUer
"questions of great delicacy
difficuty" that the case
argument of the "questions
delicacy and difficuty"
case
09
presented.
fuller canvass of the problem
presented. 09 Nevertheless, he did not wait for a fuUer
clear:
to make the essentials of his position pretty clear:
I cannot agree
agree that the only inquiry
inquiry that is open on an application for habeas corpus chaUenging
challenging a sentence
sentence of a military
military tribunal
is whether that tribunal
tribunal was legally
legaUy constituted and had jurisdiction, technically
technicaUy speaking, over the person and the crime.
crime. Again,
I cannot agree
agree that the scope of inquiry
inquiry is the same as that open
open to
us on review of State convictions; the content
content of due process in
in
civil trials does not control
control what is due process in military trials.
Nor is the duty of the civil courts
courts upon habeas corpus met simply
when it is found that the military sentence has been reviewed by
the military hierarchy, although in a debatable situation we should
no doubt attach more weight to the conclusions reached on conappellate courts than to those reached
troversial facts by military
military appeUate
reached
70
by the highest court of a state.7°
On petition
petition for rehearing
rehearing he added a significant
significant gloss to his first
opinion; demanding "well-focused
'''veU-focused argument
argument and careful deliberation before
65. [d.
Id. at 142.
66. Id.
66.
[d. at 142-44.
142-44.
67. Id.
67.
[d. at 146.
68. Id.
68.
[d. at 146-47.
69. [d.
Id. at 148-49. As in the cases involving
court-martial jurisdiction
involving court-martial
jurisdiction over civilians,
the size of the problem
problem was much magnified in Mr. Justice
Justice Frankfurter's mind by the
fact that life was at stake. Comp
Lre Reid v. Covert, 354
1, 41 (1956)
(1956) (concurring
(concurring
Compare
354 U.S. 1,
opinion) ; Kinsella v. United States ex
(1960) (Harlan,
e~ rel.
reI. Singleton, 361 U.S. 234, 249 (1960)
opinion)
J., concurring).
J. dissenting
dissenting with
,vith Frankfurter, J.,
concurring).
70. 346 U.S. at 149.
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40
enunciating the
the principle
principle that
that aa conviction
conviction by aa constitutional
constitutional court
court which
enunciating
lacked
due
process
is
open
to
attack
by
habeas
corpus
while
an
lacked due process is open to
an identically
defective
conviction
when
an ad
ad hoc
hoc military trubunal is
is indefective
rendered by an
vulnerable," 71 he
he made
made itit clear that
that he
he saw no
no reason for treating
treating the
the prinprinvulnerable,"71
ciple
of
Johnson
v.
Zerbst-the
principle
that
jurisdiction
may
be
"lost"
ciple
Johnson
Zerbst-the
lllost"
by aa denial
denial of
of whatever
whatever process is due in the
the circumstances-as
circumstances-as any
any less
less
by
civil courts.
applicable to military than to civil
Justices Black and Douglas, though what they had
had to say seems
seems not
not at
Justices
72
bottom very
very different
different from
from the Frankfurter
Frankfurter dicta, flatly dissented. 72
They
bottom
They
saw
no
need
for
reargument
to
persuade
them
not all, of
of the
the
saw no need
tl1em that some, if not
rights conferred
conferred by
by the
the fifth
fifth and
and sixth amendments applied to soldiers j73
;7
rights
if not,
not, they
they asked,
asked, why
why did
the draftsmen of the fifth amendment think it
if
did the
necessary explicitly
explicitly to
to except
except cases arising in the land or naval forces from
necessary
the requirement
requirement of
of aa presentment or indictment of a grand jury? The Court,
the
74 that the
they
went
on
to
say, had in fact already held in Wade
Wade v. Hmzter
Hunter"
they went on to say,
double
jeopardy
double jeopardy provision of that amendment was applicable to military
proceedings;
and surely
surely the right not to be compelled to be a witness
proceedings; and
against
oneself
is
not
less fundamental.
fundamental. Therefore, it was not enough that
against oneself is not less
the
military
authorities
might
the military authorities might have given fair consideration
consideration to the constitutional question; the petitioners were entitled
entitled to a judicial hearing
hearing on the
circumstances
surrounding
their
confessions,
and
to
have
those circumcircumstances surrounding
confessions,
stances
tested
by
the
standards
of due process
stances tested by the standards of
process formulated
formulated by the Supreme
Court-not merely
merely by
Court-not
by whatever
whatever standards might
might have been formulated by
by
Congress
in
the
Uniform
Code
of
Military
Congress
Military Justice.
Unfortunately, the reasoning of the dissent lent little or no force to
its
however right that conclusion may be. In the first place,
its conclusion,
conclusion, however
place,
the
argument is
the textual
textual argument
is very
very infirm,
infirm, if only because
because it proves a great
great deal
deal
too
much.
By
a
parity
of
reasoning
it
could
be
shown
that
the
framers
too much. By a parity of reasoning
could
that
framers
of
of the
the Bill
Bill of Rights
Rights intended
intended to apply to courts-martial
courts-martial the sixth amendamendment's
ment's requirement
requirement for
for "all
"all criminal
criminal prosecutions"
prosecutions" of an
an "impartial [petty]
jury
and District
jury of
of the
the State
State and
District wherein
wherein the crime shall have been committed"
committed"
-an
obviously
-an obviously impossible
impossible construction,
construction, not
not favored by
by either
either Mr. Justice
Justice
75
Black
Black or
or Mr.
Mr. Justice
Justice Douglas.
Douglas. 75 Moreover,
Moreover, the exclhsio
exclusio unius
mzius rule
rule of con71.
71. 346
346 U.S.
U.S. 851.
851.
72.
72. 346
346 U.S.
U.S. at
at 150.
150.
73.
73. Justices
Justices Black
Black and Douglas were no strangers
strangers to this
this concept
concept of
of an adjustable
adjustable
Bill
of Rights,
Rights, for
for they
they had earlier
earlier suggested
suggested in
in the
the course
course of their
their dissent in Johnson
Johnson
Bill of
v.
v. Eisentrager,
Eisentrager, 339
339 U.S.
U.S. 763,
763, 791
791 (1949),
(1949), that
that some, but
but not
not all,
all, parts
parts of the
the Bill
Bill of
of
Rights
of American
American Military
Military Government
Government in
in occupied
occupied foreign
foreign
Rights applied
applied to
to the
the actions
actions of
territory.
territory. Cf.
Cf. Best
Best v.
v. United
United States,
States, 184
184 F.2d
F2d 131,
131, 138
138 (1st
(1st Cir.
Cir. 1950),
1950), cert.
ccrt. denied,
dCl/ied,
340
340 U.S.
U.S. 939, rehearing
rehearing denied,
de/lied, 341 U.S. 907
907 (1951).
(1951).
74. 336 U.S.
684
(1949).
U.S. 684 (1949).
75. See
See Reid
Reid v.
v. Covert,
Covert, 354
354 U.S.
U.S. 1, 37 n.68 (1957)
(1957) ; Duke
Duke & Vogel,
Vogel, The
The Coustituiln&
Constitlllirm
and
the
Standing
a/Id the Standing Army:
Army: Another
Another Problem
Problem of
of Court-Martial
Court-Martial Jurisdiction,
hlrisdictiOll, 13
13 VAND.
VAND. L.
REv.
REv. 435,
435, 441
441 (1960).
(1960).
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55
ss
struction is, after all, no more than an aid in deciphering
deciphering the intention of
amendments; and, since
those responsible for the amendments;
since the Burns case was decided, Colonel Wiener has convincingly demonstrated
demonstrated that the fathers of
the Bill of Rights never
soldiersnever supposed
supposed that any part of it applied to soldierswhich, of course, as Colonel Wiener emphasized, does not mean that no
76
part of it should today be held to apply to military trials. 76
Secondly, Wade
Hunter simply is not authority for the proposition for which the dissenters
v. Hunter
dissenters
cited it, for what it actually held was no more than that "under the circumnot
stances shown, the Fifth Amendment's double jeopardy
jeopardy provision did not
bar petitioner's trial before the second
second court-martial," because that second
"was not the kind of double jeopardy
trial "was
jeopardy within the intent of the Fifth
Amendment."7 7 Four years later, indeed, in Reid v. Covert,78
Covert,78 Mr. Justice Black,
Amendment."77
in an opinion in which Mr. Justice Douglas concurred,
concurred, buttressed
buttressed his conclusion that courts-martial
courts-martial could not constitutionally
constitutionally be used for the trial
animadverting on the inadequate constitutional protection
of civilians
civilians by animadverting
protection
afforded the accused in such proceedings. By way of illustration he pointed
United States
States . . . this Court held that the Presiout that "in Swaim v. United
dent or commanding officer had power to return a case to a court-martial
court-martial
for an increase in sentence.
If
the
double
jeopardy
provisions
of the Fifth
sentence. If
unconstitutional."' 9
Amendment were applicable
applicable such a practice would be unconstitutional."79
Hunter was not so much as mentioned,
mentioned, it may be inferred
inferred
Since Wade v. Hunter
that the dissenters in Burns
Burns had had second thoughts about the meaning
of that case.
V. TEE
QUESTION
THE CONSTITUTIONAL
CONSTITUTIONAL QUESTION
The question of the applicability
applicability of the Bill of Rights
Rights to military
of
trials, which, of course, lies at the root of the question of the scope of
76. See Wiener, Canrts-Martial
The Original
Courts-Martial and
alld the Bill of
of Rights:
Rights: The
Origillal Practice,
Practice, 72
HARV. L. REV.
(1958). But see Henderson, Courts-Martial
ConHARv.
REV. 266, 298-302 (1958).
Courts-Martial and
alld the COIIstitutirn:
OriginalUnderstalldillg,
Understanding,71 HARv.
H.Av. L.
REv. 293 (1957).
(1957).
stituti01t: The Original
L. REV.
77. 336 U.S. at 688-89, 690. The Court reasoned that, just as the double jeopardy
jeopardy
provision leaves to a civil judge broad discretion to terminate a trial before final judgment, whenever he thinks that justice requires such a termination, so the military
military
circumstances-including
authorities
authorities must be given some leeway in deciding when
when the circumstances-including
the military
military tactical situation-justify
situation-justify starting a court-martial
court-martial all over again, perhaps
court-martial of the 76th division recessed
before a different
different court. In the Wade case, a court-martial
to permit the calling of additional witnesses; by the time the witnesses were obtained,
obtained,
the 76th division, including
including all the personnel
personnel of the court, had advanced far to the
east of the scene
scene of the crime and the residence of the witnesses. Accordingly, the
headquarters had moved into that
charges were referred to Fifteenth Army, whose headquarters
vicinity. The opinion of the Court, written by Mr. Justice Black, does seem to assume
"Our
the applicability
applicability of the double jeopardy provision;
provision; but a footnote states that, "Our
circumstances here the Fifth Amendment did not bar trial by
holding that under the circumstances
the second court-martial makes it unnecessary to consider . . . to what extent a courtoverruling of a plea of former jeopardy is subject to collateral attack in
martial's overruling
habeas corpus proceedings." ld.
Id. at 688 nA.
n.4. The dissenting Justices, including Mr. Justice Douglas, thought that the
"of
the effect of the Court's decision was to deprive
deprive Wade "of
his right under the Constitution to be free from being twice subjected
subjected to trial for the
offense." Id.
same offense."
ld. at 694.
(1957).
78. 354 U.S. 1 (1957).
Id. at 37 n.68.
79. ld.
HeinOnline -- 61 Colum. L. Rev. 55 1961
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40
[Vol. 61:
of such
such trials by
by the civil courts, is thus left in considerable
considerable doubt.
review of
It seems safe to
to assume that the dictum of Mr. Chief Justice
justice Chase
Chase that
"the power of Congress in
in the government of
of the land and naval forces
and of the militia, is not at all affected by the fifth or any other amendment,"8 0 is not the law today, if it ever was ;81
;81 it is
is now reasonably certain
certain
ment,"80
are entitled to some
that soldiers have some constitutional rights, that they are
defend against encroachment
encroachment
minimum of due process which the courts will defend
by
either
Congress
or
the
military
authorities.
What
is
not
so clear is
by
whether the quantum of due process to which the Constitution entitles them
is large enough to have much practical significance.
Argument about
about the
the applicability
applicability of the Bill of Rights to courts-martial
Argument
looks, from
one standpoint,
standpoint, largely
largely academic, because
few of the exlooks,
from one
because only a few
plicit
guarantees
of
the
Bill
of
Rights,
other
than
those
relating
to grand
plicit guarantees
and petty juries, have not been granted to members of the armed forces
82
by Congress.82 The basic, explicit protections are all present and accounted
for: thus, the Uniform Code prohibits compulsory
compulsory self-incrimination,
self-incrimination, double
jeopardy, and cruel or unusual punishments ;88
;83 the accused
accused must be apprised
of the charges against him; he is to be assisted by counsel of his choice
choice
and to have the benefit
It is the duty of the military
benefit of compulsory process.8844 It
reviewing
reviewing authorities, the Boards of Review and the Court of Military Approcess," 85
peals, to see to it that these and other aspects of "military
"military due process,"8ti
such as the outlawing of attempts by commanding officers
officers to influence
influence the
86
action
of
a
court-martial,
are
strictly
observed.
action
court-martial,86
Normally, of course, they
80.
(1867) (concurring
(concurring opinion).
opinion).
SO. See Ex
E~ parte Milligan, 71 U.S.
U.S. (4
(4 Wall.) 2, 138
138 (1867)
81.
and
81. "As yet it has not been
been clearly
clearly settled
settled to what extent the Bill of Rights and
other
protective
parts
of
the
Constitution
apply to military trials."
other protective parts of
trials." Reid v. Covert,
354
U.S.
1, 37 (1957).
(1957). But
1953).
354 U.S. 1,37
Btlt see
see Easley v. Hunter, 209 F.2d 483, 486 (10th
(10th Cir. 1953).
82. The principal
principal exceptions
exceptions are the right to be admitted to bail and the right
right
to confrontation.
confrontation. Bail has never
United States
to
never been known to the military law. See United
ex reI.
rel. Watkins
Watkins v.
v. Vissering,
Vissering, Misc.
Misc. No.
No. 722,
e~
772, E.D. Va., June 10, 1960;
1960; WINTHROP,
WINTHROP,
MmITARY
AND PRECEDENTS
114 (2d ed. 1920).
1920). Article 49(d) of the Uniform Code
MILITARY LAW AND
PRECEDENTS 114
permits the
use of
depositions in
non-capital cases
cases but
but has
has recently been construed
construed to
permits
the use
of depositions
in non-capital
require, even
in such
such cases,
taking
require,
even in
cases, that the accused
accused and his counsel
counsel be present at the taking
of the
the deposition,
on the
of
deposition, on
the ground
ground that a literal construction would "lend
"lend itself" to conconflict with the sixth amendment requirement
requirement of confrontation. United States v. Jacoby,
11 U.S.C.M.A.
U.S.C.M.A. 428,29
428, 29 C.M.R. 244 (1960).
(1960).
83.
83. 10 U.S.C.
U.S.C. §§
§§ 831, 844, 855 (1958).
(1958). There may be some significance
significance in the fact
that,
whereas
the
eighth
amendment
prohibits "cruel and
punishments," the
that, whereas the eighth amendment prohibits
alld unusual punishments,"
Uniform
bars "cruel
"cruel or
Code bars
or unusual
unusual punishment" [emphasis
[emphasis added].
added]. Until the
the Civil
Uniform Code
War, some military punishments, such as flogging and branding, were
were cruel
cruel but far
far
from
others, such
from unusual;
unusual; others,
such as shaving
shaving the head or causing
causing the
the offender
offender to wear a
barrel,
were
more
unusual
PRECEDENTS
WINTHROP, MILITARY LAW
LAw AND
AND PRECEDENTS
barrel, were
unusual than cruel. See WINTHROP,
437-42
437-42 (2d ed.
ed. 1920).
1920).
84. 10
(b), 838, 846.
10 U.S.C.
U.S.CO §§
§§ 830 (b),
846.
85. United States v. Clay,
C.M.R. 74 (1951).
Gay, 1 U.S.C.M.A.
U.S.C.MA. 74, 1 C.M.R.74
(1951).
86. 10 U.S.C.
U.S.c. §§ 837
837 (1958).
(1958). The Court of
of Military Appeals recently
recently reversed
reversed a
conviction
illter alia,
alia, it thought
thought that
that this
conviction on
on aa charge
charge of
of uttering
uttering forged checks
checks because, inter
article
had been
been violated by the commanding
commanding officer's promulgation,
promulgation, some time before
before]
article had
of
of aa bull
bull on
on "Dishonored
"Dishonored Checks,"
Checks," deploring their incidence
incidence in the command
command and
anCl
exhorting
exhorting recomputation
recomputation of
of the
the bank
bank balance immediately
immediately after the
the writing
writing of
of a check.
United States
(1960).
U.S.C.MA. 286,
286, 29 C.M.R. 102 (1960).
States v. Olson, 11 U.S.C.M.A.
HeinOnline -- 61 Colum. L. Rev. 56 1961
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57
57
the
do so, sometimes with aa zeal which strikes some observers as verging on the
87
87
excessive.
excessive.
But, from another standpoint, the provenance of
of the soldier's
soldier's rights,
But,
of the tribunal that enforces
enforces them, may have genuine imand the identity of
military,,reviewing
reviewing authoriportance. As competent and conscientious as the military
ties created by Congress
Congress may be in normal times, it is precisely
in abnormal
precisely in
times that military justice is put to its severest tests and that those reto be skilled in military law
sponsible for its administration are least likely to
and
most
likely
to
be
tempted
to
subordinate
fairness
to seeming expediency.
and
subordinate
to
American military justice has for this reason followed a
The history of Ameriean
other aspects of American
American military policy. After
After
cyclic pattern, like most otqer
every
war
there
are
loud
and
sometimes
justified
squawks
about
the
unevery
and
squawks
necessary roughness
necessary
roughness of martial
martial courts and cops, followed by a tremendous
of the present Court of
of Military
Military Appeals, or at least
87. The delicate perceptions of
out fatal denials of due process in situations
situations
of two of its three members, have sniffed out
in which their presence would probably not have been noticed by most civilian judges.
Thus, to select a couple of recent examples, the failure of one defense counsel to
Military Appeals thought
proffer certain evidence
evidence that the majority of the Court of Military
would have been mitigating, and the decision of another not to make a particular
particular defense
that he
thought devoid
of merit-in
merit-in cach
each case
case in circumstances
circumstances in which the dissenting
dissenting
that
he thought
devoid of
preferable trial tactics for the
judge thought reasonable lawyers might differ as to the preferable
defense-were found by the majority
defense-were
majority of the court to evidence
evidence such negligence, incomindifference to the client's welfare as to amount to a denial of the assistpetence, or indifference
ance of
of counsel.
counsel. United
States v. Huff,
Huff, 11
11 U.S.C.M.A.
U.S.C.M.A. 397, 29 C.M.R. 213 (1960);
(1960);
ance
United States
United States v. Horne,
Home, 9 U.S.C.M.A.
(1958). An equally inU.S.C.M.A. 601, 26 C.M.R. 381 (1958).
teresting example
example of tender
tender solicitude for the accused's rights is United States v. Allen,
11 U.S.C.M.A.
U.S.C.M.A. 539, 29 C.M.R.
(1960), in which the same majority of the court
C.M.R. 355 (1960),
reversed on the ground, inter
inter alia,
alia, that the substantial rights of the accused were
prejudiced by a prosecutor's
prosecutor's reference in his closing peroration to a scene
scene in a bestselling novel, "Anatomy
"Anatomy of a Murder,"
Murder," in which a defense lawyer artfully stimulates
his client to "remember" episodes
ordinary civilian
civilian
ePisodes supporting
supporting his defense of insanity. By ordinary
standards of permissible prosecution
prosecution rhetoric, this literary allusion seems
seems comparatively
comparatively
mild. Thus, in a mail fraud case in which the prosecuting
prosecuting attorney
attorney had denounced
denounced a
defendant as an "adept prevaricator,"
prevaricator," "the
"the most successful faker in the history of fakery,"
a "cheat,"
"cheat," a "charlatan,"
"charlatan," and a "religious
"religious racketeer,"
racketeer," a majority of the Court of
Appeals opined that "if the conduct of the prosecution
prosecution in argument in this case
case constitutes error, then the prosecution in every
every case is limited
limited to a listless, vigorless
vigorless sumsumChesterfieldian politeness.
mation of fact in Chesterfieldian
politeness. Gone are the days of the great advocates
glowed and flowed \vith
with the heat
hcat of forensics I"" Ballard v. United States,
whose logic glowed
152 F.2d 941,
on other grounds,
U.S. 187 (1946);
(1946); cf.
941, 943 (9th Cir. 1945),
1945), rev'd
re-zld 01~
gr01mds, 329 U.S.
1925). Were the sensitivity displayed
Di Carlo v. United States, 6 F.2d 364 (2d Cir. 1925).
displayed
by the present Court of Military Appeals applied by civilian
civilian courts of appeal
appeal to the
conduct of
the ordinary
criminal trial
conduct
of the
ordinary criminal
trial in
in an inferior state
state court, we should
should probably witness something
Military
something approximating a general
general jail delivery. Nor has the Court of Military
Appeals hesitated to strike down provisions of the Manual
Manual for
Courts-Martial, which
for Courts-Martial,
embodies the
President's
regulations
implementing
the
Uniform
Code,
as
violative
of
the President's regulations implementing
Uniform
of
military due process. United
U.S.C.M.A. 792, 27 C.M.R.
-60 (1958)
Haynes, 9 U.S.C.MA.
C.M.R..Q()
(1958);;
United States v. Haynes,
Presidential Power
Critical Study
Power to Regulate
Regulate Military Justice:
htstice: A Critical
Smdy of
of
see Fratcher, Presidential
Decisions
Court of Military
N.Y.U.L REv.
Rxv. 861,
On
Decisions of
of the COllrt
Militar~l Appeals, 34
34 N.Y.U.L
861, 878-82 (1959).
(1959). On
the
(d) of the Uniform
Uniform Code, the Court
Court of Military
Military ApApthe other hand, under
under article
article 67 (d)
peals "shall
pcals
"shall take action
action only
only with respect
respect to matters of law,"
law," which
which means
means that the
military
military Board
Board of Review is the
the last appellate
appellate body having
having authority
authority to determine
determine such
questions of fact as the
of a confession. United
United States
States v. Stivers, 11
11
the voluntariness
voluntariness of
U.S.C.M.A.
U.S.C.M.A. 512, 29 C.M.R.
C.M.R. 328 (1960).
(1960). But since the Court of
of Military
Military Appeals may
may
(and
confession was involuntary
involuntary as a matter of
of law, and since
(and often
often does)
does) find that a confession
between questions of fact and questions of law is no
the line between
no better
better defined
defined in military
military
than civil law, this limitation
limitation on its power of
of review
review may
may not have much practical
significance.
siguificance.
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pother in
in Congress, followed by aa grand general renovation of the Articles
War, followed by profound public apathy until the ne..xt
next emergency.aa
emergency. 88
of War,
After each
each World
World War Congress
Congress stuffed the military code
code with humane
humane
After
provisions
intended
to
protect
privates
poor
from
high-handed
injustice
at
provisions intended to protect poor privates from high~handed
the
hands
of drumhead
drumhead courts-martial
courts-martial composed
composed of arrogant martinetsmartinetsthe hands of
some of
of them
them so protective
some
protective as possibly to be unworkable
unworkable in wartime conditions8899 and
and therefore
therefore likely
likely at
at best
best to
be unenthusiastically
unenthusiastically obeyed and at
tions
to be
worst
to
be
systematically
evaded.
Experience
suggests that a better guarguarworst to be systematically evaded.
antee
existence of some
antee of fundamental fairness in military trials is the e..xistence
degree of power, altogether outside the statutory system of military justice,
to enforce such fairness.
In short, in time of actual military emergency it may make a great deal
to
of difference whether the civilian courts or the military authorities are to
have the ultimate right to decide if a soldier accused of crime has in fact
received whatever process is due him. At least to the extent that those
rights
must
rights stem not merely from a Congressional act of grace-which,
grace-wbich, it must
09
be
remembered,
can
at
any
time
be
rescinded°°---but
from
the
Constitution
be remembered,
rescinded -but
Constitution
itself, it is hard to see why the federal civil courts should be any more
backward
observance in military trials than they are in
backward in
in enforcing their observance
in
enforcing
constitutional
rights
in
state
trials.
Congress
may
have
made
the
enforcing constitutional
Court of Military Appeals
Appeals the final arbiter of the meaning of the Uniform
Code of Military justice,
Justice, but the Supreme
Supreme Court of the United States is
1
the
final
arbiter
of
the
meaning
of
the Constitution of the United States. 01
the final arbiter
Burns v. Wilson
Viewed from this standpoint, the plurality opinion in Burns
seems
seems to contain serious internal
internal contradictions.
contradictions. It
It is all very well to say
that constitutional
constitutional due process protects soldiers from "crude
"crude injustice,"
injustice," but
but
what
if the
the crude
what if
crude injustice
injustice takes the form of a finding, in the teeth of the
evidence,
evidence, that
that aa coerced
coerced confession was voluntary and admissible? There
88. Who now remembers
Hard-Boiled Smith
remembers the First World War's Hard-Boiled
Smith and his Paris
guardhouse,
Second's Colonel
guardhouse? Yet
or even
even the
the Second's
Colonel Kilian and his Lichfield guardhouse?
Yet
guardhouse, or
the
1920 revision of the Articles
Articles
the one
one contributed
contributed greatly, however unintentionally, to the 1920
of War, and the other did the same for the Uniform Code.
APPEALS AND
AND THE JUDGE ADVO89. See THE
THE UNrrED
UNITED STATES COURT
COURT OF MiLiTARY
MILITARY ApPEALS
ADvocATEs
GENERAL OF
OF THE
THE ARMED
THE GENERAL
CATES GENERAL
ARMED FORCES
FORCES AND
AND THE
GENERAL COUNSEL
COUNSEL OF THE
THE DEPARTMENT
DEPARTMENT
OF
THE TREASURY,
REPORT 21, 29, 51 (1954).
(1954).
OF THE
TREASURY, ANNUAL
ANNUAL REpORT
90. See Reid v. Covert, 354
1, 37
354 U.S. 1,
37 (1957).
(1957).
91.
91. Here,
Here, at
at the
the risk
risk of sounding
sounding like Gertrude
Gertrude Stein, it ought to be reiterated
reiterated that
the process which is due a soldier
be less than, or at least different
different from, that
that
soldier may be
which
which is
is due
due aa civilian.
civilian. Due process
process is not "the
"the same
same in a military
military setting as it is in
a civil setting."
Burns
v.
Lovett,
202
F.2d
335,
352
(D.C.
Cir.
1952)
(Bazelon J., dis202
335,
(D.C.
1952) (Bazelon
dissetting." Bums
senting),
norn. Burns v. Wilson, 346
ajJ'd sub
sub 110m.
346 U.S.
U.S. 137
137 (1953),
(1953), quoted
quoted with approval
approval by
by
senting), affd
Mr.
Justice
Frankfurter
in
Burns
v.
Wilson,
mupra
at
149.
For e."{ample,
example, if in a civil
supra
civil
Mr. Justice Frankfurter
Bums
case
an
accused
were
confined
in
an
unheated
jail and inadequately
confession
case an accused were confined
inadequately fed, a confession
made
circumstances might well be regarded
regarded as coerced; but a court might take
made in
in such
such circumstances
a different
different view in a military situation in which no more comfortable
comfortable quarters were
to
to be
be had
had and
and the
the guards got no better rations than the
the prisoner.
prisoner. So
So in Wade v. Hunter,
336
(1949), assuming
336 U.S.
U.S. 684 (1949),
assuming the applicability
applicability of
of the double
double jeopardy
jeopardy clause of the
exigencies of the military
military situation were held
held to justify a second
second
fifth amendment, the e."{igencies
trial
trial which might well have
have been
been held unconstitutional
unconstitutional in a civilian
civilian context.
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59
S9
may be
be no
no more
more injustice
injustice in
in aa naked refusal
refusal to
to listen
listen than
than there
there is
is in a
may
hearing of the
the accused's
accused's allegations, followed
followed by an arbitrary
arbitrary
patient, if bored, hearing
finding either that
that they are
are untrue
untrue or
or that they
they do
do not
not amount to
to aa denial
denial
finding
of due
due process.
process. Yet Mr.
Mr. Chief Justice
Justice Vinson's
Vinson's opinion may be interpreted
of
that anything short of "manifest
"manifest refusal to
to consider" allegaas meaning that
tions
that
due
process
has
been
denied
is
equivalent
to
dealing with
with them
them
tions that due process has been denied
equivalent
dealing
92
"fully
and
fairly"
and
that
the Constitution
Constitution protects a soldier against
against
"fully and fairly"92 and that the
nothing more
more than
than "a
"a trial
trial so
so conducted
conducted that it becomes
becomes bent
bent on fixing
fixing
nothing
guilt
by
dispensing
with
rudimentary
fairness."
Such
language
might
imguilt by dispensing
language might impose
a
significant
on, say, Dr.
Dr. Castro's
Castro's notions of a proper milipose a siguificant limitation on,
tary trial,
trial, but
but very
very few
few modern
modern American
American trials,
trials, military
military or civilian, no matter
tary
how unfair by our standards, could measure down to such a test.
seems thus to be nothing in Burns
Burns v. Wilson,
Wilson, even if the Chief
Chief
There seems
Justice's opinion had been an opinion of the Court, which in practice would
require
district court
court to
to apply
apply to
to collateral
collateral review of aa court-martial
court-martial conrequire aa district
over
viction any test more exacting than the traditional one of jurisdiction over
the
person
and
offense
and
power
to
impose
the
sentence.
But
if
there
the person and offense
any, records showing that the military
military 'authorities literally "reare few, if any,
consider'" allegations of unfairness, there are some that may raise
fused to consider"
a substantial question
"full and fair." Treatquestion whether the consideration
consideration was "full
case as the controlling
controlling precedent,
precedent, a
ing the principal
principal opinion
opinion in the Burns ease
court may simply and summarily
summarily dismiss a petition on the ground
ground that
the
military did
not refuse
the military
did not
refuse to consider its allegations
allegations or it may, with equal
ease and upon the same authority, stress the requirement that military
military
consideration shall have been full and fair.
No appreciable
appreciable clarification
clarification is to be found
found in the two subsequent
subsequent decisions
of
the
Supreme
Court
considering
soldiers'
petitions
for
habeas corpus.
cisions of the Supreme
considering soldiers' petitions
corpus.
93
93
In
those
cases
the
petitioners
attempted
In those cases
petitioners had been
been convicted
convicted of murder
murder and attempted
rape
and sentenced
imprisonment, the minimum
rape and
sentenced to
to life
life imprisonment,
minimum sentence for murder.
94
Since
court-martial
procedure
requires
a
single
gross sentence,
Since court-martial procedure
sentence,94 regardless
regardless
of
of the number of
of charges
charges of
of which the accused may
may have
have been
been convicted,
convicted,
there
there was no separate
separate sentence
sentence for the attempted
attempted rape, and no way
way of telltelling
what
sentence
the
court-martial
would
have
imposed
for
that
crime
ing what sentence the court-martial would
imposed
that
92.
92. This
This appears
appears to
to be
be the
the interpretation
interpretation placed
placed on the
the opinion
opinion by
by the Department
Department
of
Burns
of the
the Army
Army and
and the
the Department
Department of
of Justice.
Justice. See Brief
Brief for the Respondent,
Respondent, p. 6, Burns
v.
v. Looney,
Looney, No.
No. 2699
2699 H.C., D. Kan.,
Kan., April
April 13,
13, 1959, aff'd sub nor.
nom. Burns v.
v. Taylor,
274
1959), in
274 F.2d
F.2d 141
141 (10th
(lOth Cir.
Cir. 1959),
in which it is
is uncompromisingly
uncompromisingly asserted
asserted that
that "the
"the law
law
[is] that
that
that civil
civil courts, on
on habeas
habeas corpus,
corpus, will consider
consider claims
claims of
of military
military prisoners
prisoners that
they were
were denied
denied constitutional
constitutional rights
rights only if the
the military
military tribunals
tribunals vmnifestly
manifestly refuse
to
to consider
consider such
such claims."
claims."
93.
93. Jackson
Jackson v. Taylor,
Taylor, 353
353 U.S.
U.S. 569
569 (1957)
(1957);; Fowler
Fowler v.
v. Wilkinson,
Wilkinson, 353
353 U.S.
U.S. 583
583
(1957).
(1957).
94. MANUAL
MANUAL FOR
FOR COURTS-MARTIAL
COURTS-MARTIAL UNITED
UNITED STATES
STATES app.
app. 8a,
Sa, at 521
521 (1951);
(1951); see
see Edwards
Madigan, 281
2S1 F.2d
F.2d 73,
73, 75-76
75-76 (9th
(9th Cir.
Cir. 1960);
1960); Noter
Note; Habeas
Habeas Corpus
Corpus Review
Review
wards v. Madigan,
of
of Military
Military "Gross Sentence" Usage,
Usage, 65
65 YALE
YALE L.J.
L.]. 413
413 (1956).
(l956).
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alone. The Board of Review, affirming only the conviction for attempted
attempted
rape, imposed a 20 year sentence, which was the maximum allowable
for
allowable for
that crime. There were no allegations that the conviction was tainted by
any unfairness,
unfairness, and the sole question was whether
whether the Uniform Code empowered the Board so to impose what the petitioner argued to be a new
sentence rather than a modification of a court-martial sentence-a
sentence-a question
question
well within the civil court's traditional
jurisdiction
to
pass
upon
the
power
traditional jurisdiction
power
9955
to impose a sentence.
authorized
majority of the Court held the sentence authorized
sentence. A majority
by the Code and refused to consider
complained of by one
consider its harshness, complained
petitioner, on the unexceptionable
unexceptionable ground that such matters are wholly
within the discretion of the military. They saw no constitutional question,
and they put no gloss on Burns
Burns v. Wilson.
Wilson.996
VI.
COLLATERAL REVIEW
REVIEW IN THE
COLLATERAL
THE LOWER
LOWER COURTS
COURTS SINCE
Burns
Wilson
B1tr1lS v. WilSOll
Supreme Court may help
The rich variety of opinions expressed by the Supreme
help
to account for the fact that the reported opinions
opi~ions of the lower federal courts
Wilson, although numerous,
numerous, do not lend themselves to facile
since Burns v. Wilson,
taxonomy. They have, indeed, one striking common feature; in not one
soldier-petitioner succeed in obtaining
liberty.9 7 Perhaps
of them did a soldier-petitioner
obtaining his liberty.97
Perhaps
it is possible to make another significant
significant generalization:
generalization: the courts, whatever
whatever
disclaimers they may
e.xamine the record with
may voice, do in fact usually examine
there is support for allegations of unfairness.
unfairness. Thus, it may
care to see if there
attributable not so much to
be suggested that the monotony of result is attributable
judicial abnegation of power to review the fairness of military proceedings
proceedings
as to the simple fact that, in the more or less peaceful
peaceful conditions
conditions which
which have
prevailed since the Korean armistice, such proceedings, original and ap759 (5th Cir. 1960).
1960).
95. See Fischer v. Ruffner, 277 F.2d 756, 75S
96. The four dissenting Justices, Mr. Chief Justice Warren and Justices Black
Black
dealt "fully
had
court-martial
the
that
thought
Brennan,
Douglas and Brennan,
the court-martial had not
not dealt
"futty and
and fairly
fairly,1
with the petitioners, because
because its Law Officer gave the members of the court no inrape-which
structions concerning the punishment that could be imposed for attempted rape-which
suggests that these Justices thought the correctness of a court-martial's instruction
instruction
on the law to be within the proper scope of collateral
accompanying
cottateral review. See text accompanying
infra.
notes 109, 129 infra.
97. This statement
statement requires
requires a minor caveat, for two limited successes were scored.
scored.
One petitioner induced a civil court to swattow
swallow the exceedingly dubious proposition
that provision in the Articles of War for "imprisonment
"imprisonment for life"
life" gave
gave a court-martial
court-martial
no authority to direct confinement at hard labor. McKinney
McKinney v.
v. Finletter, 205 F.2d 760
760
(10th 'Cir.
Cir. 1953).
1953). A subsequent attempt
(lOth
attempt by the same petitioner
petitioner to recover his liberty
as well as his leisure failed. McKinney
(10th Cir. 1959),
1959),
McKinney v. Warden, 273 F.2d 643 (10th
cer. denied,
cert.
denied, 363 U.S. 816 (1960).
(1960). In another case, the court, although itit found no
defects
defects in the petitioner's conviction,
conviction, held that changing the place of confinement
confinement from
a federal reformatory
penitentiary amounted to an increase
increase in the sentence,
reformatory to a federal penitentiary
in contravention
petitioner was entitled
entitled to be
be transcontravention of the Uniform Code, and that the petitioner
ferred to an
(D.
F. Supp. 456 (D.
an institution of the former type. Sweet v. Taylor, 178 F.
Kan. 1959)
1959) ; cf. Kelly v.
v. Hunter, 80 F.
(D. Kan. 1948)
1948) aff'd seb
F. Supp. 851 (D.
slIb noin.
nom. Yates
v. Hunter, 174
174 F.2d 347 (10th Cir. 1949).
1949). These, of course,
course, were essentially
essentially questions
authorities' power to impose particular sentences and so by any test
of the military authorities'
were fair subjects for collateral
collateral review.
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61
pellate, have
have typically been at
at least
least as
as fair
fair as
as the
the Bill
Bill of
of Rights, assuming
pellate,
its
applicability,
would
require
them
to
of the opinions
opinions leaves
leaves
its applicability, would require
be. None of
the reader
reader with
with any
any conviction
conviction that
that the outcome would have
have been different
the
if a civilian
civilian trial had been involved and
and the doctrine
doctrine of Johnson
Johnson v.
v. Zerbst
Zerbst
if
applied
to
its
fullest
extent.
Nevertheless,
application by
by the l?wer
lower
applied to its fullest
Nevertheless, the application
federal courts
courts of
of the
the principles,
principles, such as they
they are,
are, laid down
down by the
the Supreme
Supreme
federal
attention. Should military justice again
again be faced with
with the
Court deserves attention.
unpeaceful
conditions
that
produced
the
last
crop
hard cases,
cases, these are
are
unpeaceful conditions
of hard
precedents that the civil
civil courts
courts will
will presumably have to follow,
follow, disthe precedents
or overrule when they are called
called on to undertake collateral
collateral review
tinguish, or
of
military
sentences.
of
Habeas corpus,
corpus, though
though by
by far
far the
the commonest,
commonest, is not the only method
Habeas
of
collateral review. There are a sizeable group of cases in which the
of collateral
military convict
convict seeks
seeks some
some relief
relief other than the preservation of his life
military
or the restoration of his liberty. He may,
may, for
for example,
example, bring aa suit for
back
pay
in
the Court
court-martial senback pay in the
Court of Claims on the theory that a court-martial
tence expelling
expelling him from the service was a nullity. The celebrated
celebrated Shapiro
Shapiro
tence
case,
decided
shortly
after
World
War
II,
was
a
spectacularly
successful
case, decided shortly after World
II,
example
such aa suit.
suit. In
example of
of such
In that
that case
case the Courts of Claims, finding gross
violations of the plaintiff's rights under the fifth and sixth amendments,
notably
denial of
effective assistance
assistance of
of counsel,
counsel, concluded
notably denial
of the
the effective
concluded that his
court-martial
conviction was void and the sentence
court-martial conviction
sentence of dismissal consequently
illegal.988 It
It has been suggested
of
quently illegal.9
suggested that the subsequent enactment
enactment of
99
article
76
of
the
Uniform
Code,
purporting
to
make
court-martial
article 76 of the Uniform Code,99
court-martial sentences
tences binding
binding on
on all courts of the United States, may have deprived
deprived at least
least
the
of Claims,
Claims, aa legislative
legislative court, of jurisdiction
the Court
Court of
jurisdiction collaterally
collaterally to review
courts-martial. 0 0 Moreover,
view courts-martiaPOO
Moreover, Burns
Burns v. Wilson may be thought to
limit
the Shapiro
limit the
the force
force as
as precedent
precedent of
of the
Shapiro case-although
case-although it is a somewhat
somewhat
odd
fact
that
neither
the
principal
opinion,
the
dissent,
nor
any
of the
odd fact that neither the principal opinion,
0
101
briefs
in
Burns
v.
Wilson
so
briefs in Bums v.
so much as
as mentioned
mentioned Shapiro.'
Shapiro. ' Despite
Despite these
considerations,
considerations, the
the Court
Court of
of Claims
Claims itself showed no inclination
inclination to retreat
retreat
from
the
view
that
a
substantial
denial
of
constitutional
rights
operated
from the view that a substantial denial
constitutional rights operated as
10 2
effectively
to
until
effectively to divest
divest a court-martial
court-martial of jurisdiction
jurisdiction as a civil
civil court,
court,1°2
very
very recently
recently when
when Mr. Justice
~ustice Reed, sitting
sitting as a judge
judge of the
the Court
Court of
of
98.
98. Shapiro
Shapiro v. United
United States,
States, 69 F.
F. Supp. 205
205 (Ct
(Ct. Cl.
Cl. 1947);
1947); see note 26 supra;
supra:
cf.
c/. United
United States
States v. Brown,
Brown, 206 U.S.
U.S. 240 (1907).
(1907).
99.
99. 10
10 U.S.C.
U.S.c. §§ 876 (1958).
(1958). Article
Article 76
76 was
was preceded,
preceded, in
in 1948,
1948, by
by an amendment
amendment
of
64 Stat
Stat. 635 (1948).
(1948).
of the
the Articles
Articles of
of War,
War, of similar purport. 64
100.
See
Wiener,
The
New
Articles
of
War,
Infantry
J.,
Sept.
1948,
p.
24,
100. See Wiener, The New Articles of War, Infantry
Sept. 1948, p.24, at
at p.
p. 29;
29:
Pasley,
4, at 34.
34.
Pasley, stpra
supra note 4,
101.
See
separate
opinion
of
Mr.
Justice
Frankfurter
in
Burns
v.
Wilson,
346 U.S.
101. See separate opinion of Mr. Justice Frankfurter
Burns
U.S.
844,
844, 847-48
847-48 (1953).
(1953).
102.
See
Griffiths
v.
United
102. See Griffiths v. United States,
States, 172
172 F.
F. Supp.
Supp. 691,
691, 693
693 (Ct.
(Ct. Cl.),
C1.), cert.
cert. denied,
denied, 361
361
U.S. 865
865 (1959).
(1959).
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Claims, obliquely suggested that, should a case be presented in which a
court-martial had not given "fair consideration to petitioner's constitutional
rights," article 76
76 might require that court to reconsider the question of
its jurisdiction to entertain a collateral·
collateral attack
attack on a final
final judgment of a
its
03
court-martial.103
For those whose grievances can be assuaged neither by
by the great writ
an action for back pay, there remains the possibility of an action
nor by an
sentence' 0 '
court-martial sentencelQ.i
of aa court-martial
for a judgment declaratory of the invalidity of
10
or even an action for wrongful imprisonment. lOG
But petitions for habeas corpus have naturally furnished most of the
occasions for the lower courts to peer into the somewhat clouded crystal
ball of Hiatt
Burns v. Wilson, and it is principally the deHiatt v. Brown and Burns
cisions in those cases that will help or hinder collateral review of military
justice in any future emergency. The interesting question, of course, is the
extent to which lower federal courts have continued to treat courts-martial
as a class apart and their verdicts as peculiarly privileged.
At the outset, failure to assert a claim of unfairness
unfairness in the original
proceeding, including its appellate phases,
phases, is likely to be a worse stumbling
block for the military than for the civilian petitioner, if only because it is
is
hard to say that the military authorities "refused
"refused to consider,"
or
did
not
consider,"
fully and fairly consider, a point that was never urged upon them. A num103. Begalke
Begalke v.
v. United States, No. 159-55,
159-55, Ct. a.,
Cl., Jan. 20, 1960, cert.
cert. denied,
103.
dellied, 81
81
Sup. Ct.
Ct. 108 (1960).
(1960).
.
104.
Jackson
v.
McElroy,
163
F.
Supp.
257
(D.D.C.
1958).
The
plaintiff,
an
104. Jackson v. McElroy, 163 F.
1958).
officer, had been sentenced to a substantial forfeiture of pay and "to lose 250 unrestricted numbers."
The
exact
nature
of
the
latter
esoteric
punishment,
which is found
e.xact
numbers!'
only in the Navy and Marine Corps, see MANUAL
MANUAL FOR
FOR COURTS-MARTIAL
COURTs-MARTIAL UNITED
UNITED STATES
STATES
(1951), is not wholly
If1f126
126 (1951),
wholly clear
clear to me, but it obviously dealt
dealt a heavy
heavy blow to plaintiff's
plaintiff's
corrected by either habeas corpus or a suit
suit
chances of promotion
promotion and
and could hardly be corrected
contenmerit in the contenin the Court of Claims. The district court, although it found no merit
"accuser" within the meaning of articles 1(11)
1(11)
tion that the convening
convening authority was
was an "accuser"
court-martial had therefore had no
and 22(b)
22(b) of the Uniform Code, and that the court-martial
no
jurisdiction, assumed
assumed that an action for a declaratory judgment was a proper way
way of
of
Contra, Brown v.
v. Royall, 81 F. Supp. 767
attacking the court-martial's
court-martial's jurisdiction.
jurisdiction. COlltra,
1949), cert. denied,
(D.D.C. 1949),
dellied, 339 U.S. 952 (1950).
(1950). Compare Harmon v. Brucker, 355
355
U.S. 579 (1958);
(1958); Ives v. Franke, 271 F.2d 469 (D.C. Cir.),
Cir.), cert.
ccrt. denied,
dC1lied, 361
361 U.S. 965
(1959).
(1959). The District Court for the District
District of Columbia has jurisdiction
jurisdiction to issue
issue a
appropriate official. Cf. Olenick v. Brucker, 173 F. Supp. 493
writ of mandamus to the appropriate
(D.D.C.), order
1959); 69 YALE
(D.D.C.),
order set aside and
alld case remanded,
remallded, 273 F.2d 819 (D.C. Cir. 1959);
L.J.
L.J. 474 (1960).
(1960).
105. McLean
McLean v. United States,
States, 73 F. Supp. 775 (W.D.S.C.
(W.D.S.C. 1947);
1947); cf. Dynes
Dynes v.
Hoover, 61 U.S. (20
(20 How.)
How.) 65 (1858);
(1858); Zimmerman v.
¥. Poindexter,
Poindexter, 78 F. Supp. 421
(D.
(D. Hawaii 1947).
1947). Alley
Alley v. Chief, Finance
Finance Center, U.S. Army, 167 F. Supp. 303 (S.D.
(S.D.
Ind. 1958),
1958), defies procedural
senprocedural classification.
classification. The plaintiff, an officer
officer who
who had been sentenced to
to dismissal,
dismissal, total
total forfeitures,
forfeitures, and ten years imprisonment, apparently
apparently attacked
attacked
only the sentence
sentence of dismissal,
dismissal, on the marvelously implausible ground
ground that, the courtcourtmartial having
laPSlls linguae
lillguae sentenced him to be "dishonorably
"dishonorably discharged,"
discharged," the
the
having by a lapsus
proper form for an enlisted
enlisted man, neither
neither the
the court nor the
the convening
convening authority could
could
thereafter
sentence to "dismissal,"
"dismissal," the proper form for an officer;
thereafter correct the
the sentence
officer; he sought
sought
an order requiring the
the defendant
defendant to disburse
disburse to
to him all of his
his pay
pay and allowances
allowances for
the period
idiosynallegedly invalid
invalid dismissal. The
The court, treating this
this idiosynperiod subsequent to the allegedly
cratic
cratic piece
piece of pleading
pleading as a petition for
for a writ of mandamus,
mandamus, held that it had no
jurisdiction
jurisdiction to grant
grant such relief.
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63
ber of courts
courts have cited such failure
failure as
as a reason, usually of the "further"furtherof unfairness-including
more" variety, for the rejection of various claims of
06
that the appointed defense counsel was incompetent or indifferent.
indifferent.lOG
one that
Assuming the truth of an assertion that appointed defense
defense counsel was indifferent or incompetent, it seems quixotic to refuse to hear it because that
counsel failed to urge upon the military authorities his own stupidity, ignorance, or laziness.
This claim
claim that the petitioner's defense was of such low calibre as to
to
statutory rights to the assistamount to aa denial of his constitutional and statutory
0 7
ance of counsel seems to be the favorite allegation. lo7 Most of the other
claims familiar
familiar in
in civilian
civilian habeas
habeas corpus
corpus petitions are also plentiful in the
claims
military variety, along with a few that seem to be peculiar to the soldiers.
constitution
A random sampling reveals allegations that rights under the constitution
and/or
the
Uniform
Code
were
violated
by
the
admission
of
coerced
and/or the Uniform Code
coerced con09
fessions, 08 by errors in the Law Officer's instructions on the lawl09
and
fessions,108
110
rulings
evidence,
by conviction upon insufficient evidence,11l
evidence,"' by denial
rulings on evidence,11°
106. E.g.,
E.g., Kubel
Minton, 275
789 (4th
(4th Cir.
Cir. 1960);
McKinney v.
v. Warden,
Warden,
106.
Kubel v.
v. Minton,
275 F.2d
F.2d 789
1960); McKinney
(10th Cir. 1959),
1959), cert.
cert. denied,
(1960) ; Bennett v. Davis, 267
273 F.2d 643 (10th
denied, 363 U.S. 816 (1960);
F.2d
15 (10th
1959) ;; Thomas
Thomas v. Davis, 249 F.2d 232 (10th
(10th Cir. 1957);
1957) ; Suttles v.
F.2d 15
(lOth Cir.
Cir. 1959)
Davis, 215
F.2d 760
760 (10th
Cir. 1954)
1954) ;; Casey
v. Taylor,
Taylor, No. 2808 H.C., D. Kan., Feb. 29,
Davis,
215 F.2d
(10th Cir.
Casey v.
1960, a/!'d,
aff'd, 281
F.2d 549
549 (10th
(10th Cir.
Cir. 1960);
1960); Bennett
Bennett v.
v. Cox,
Cox, No.
No. 2951
2951 H.C., June 28,
1960,
281 F.2d
1960; Bowerman
Bowerman v. Cox, No. 2869
2869 H.C., D. Kan., March 14, 1960; Tillery v. Cox,
No.
2863 H.C.,
H.C., D. Kan., March
F. Supp.324
Supp. 324 (M.D.
(M.D.
No. 2863
March 14, 1960; Wilson v. Wilkinson, 129 F.
Pa. 1955)
1955) ;; Allen
Allen v. Wilkinson, 129 F. Supp. 73 (M.D. Pa. 1955).
1955). The Government has
Pa.
asserted
Burns v. Wilson
necessary
Wils01~ entails as a necessary
asserted that the "manifest
"manifest refusal" language of Bums
corollary
"if an available contention is not asserted within the military apcorollary a rule that "if
pellate
thereafter be raised
raised on habeas corpus." Brief for the Repellate structure, it may not thereafter
spondent,
p. 6,
6, Burns
v. Looney,
H-.C., D. Kan., April 13,
13, 1959, a/!'d
aff'd sub nom.
spondent, p.
Bums v.
Looney, No. 2699 H.C.,
Burns v.
(10th Cir. 1959).
Bums
v. Taylor,
Taylor, 274 F.2d
F.2d 141
141 (lOth
1959).
107. See, e.g., Rushing v. Wilkinson, 272 F.2d 633 (5th Cir. 1959); McKinney
McKinney v.
Warden,
v. Davis, supra
Warden, supra
supra note 106; Bennett
Bennett v.
supra note 106-;
106; Mitchell v. Swope, 224 F.2d
365
(9th Cir.
Cir. 1955)
Cox, supra
supra note
365 (9th
1955) ;; Tillery
Tillery v.
v. Cox,
note 106; Sweet
Sweet v. Taylor,
Taylor, 178
178 F.
F. Supp. 456
456
(D. Kan. 1959);
1957);; Allen v. Wilkinson,
(D.
1959) ; Day
Day v. Wilson, 155 F. Supp. 469 (D.D.C.
(D.D.C. 1957)
supra
supra note 106.
supra note 107; Thomas v. Davis,
108. E.g.,
E.g., Rushing v. Wilkinson,
Wilkinson, S1lpra
Davis, 249 F.2d 232
(10th Cir.
denied, 355
355 U.S.
(1958) ;j Dixon
(lOth
Cir. 1957),
1957), cert.
cert. denied,
U.S. 927 (1958)
Dixon v.
v. United
United States, 237 F.2d
509
(10th Cir. 1956);
1956) ; Suttles
(10th Cir. 1954)
v. Davis,
509 (lOth
Suttles v. Davis, 215 F.2d 760 (10th
1954);; Hurt v.
No. 2821
1960.
2821 H.C.,
H.C., D.
D. Kan., April 19, 1960.
109.
v. Davis, 235
(10th Cir.),
cert. denied,
U.S. 881
109. E.g.,
E.g., Day v.
235 F.2d 379 (10th
Cir.), cert.
denied, 352
352 U.S.
881 (1956);
(1956);
Bowerman v.
v. Cox,
Cox, No.
No. 2869
2869 H.C.,
Bowerman
H.C., D.
D. Kan.,
Kan., March
March 14, 1960;
1960; Richards v. Cox, 184
184
F.
Supp.
107
(D.
F.
(D. Kan. 1960).
1960).
110.
E.g.,
Burns
v.
Taylor,
274
F.2d
141
(10th
Cir.
supra
110. E.g., Bums
(10th
1959); Day v. Davis, S1lpra
109; see Sweet
F. Supp. 456 (D.
(D. Kan. 1958).
note 109;
Sweet v. Taylor, 178 F.
1958).
111. E.g.,
111.
E.g., Bowerman
Bowerman v.
v. Cox, No. 2869 H.C., D.
D. Kan., March
March 14, 1960;
1960; Sweet
Sweet v.
1955). TradiS1lpra note
note 110; Allen v. Wilkinson, 129
129 F.
F. Supp.
Supp. 73 (M.D.
(M.D. Pa. 1955).
TradiTaylor, supra
tionally, of
of course, district
district courts
courts do not upon
upon petitions
petitions for habeas
habeas corpus review
review in
in
either military or civil cases
cases the
the sufficiency
sufficiency of
of the evidence
evidence of
of guilt. See
See Humphrey
Humphrey v.
Smith,
Smith, 336 U.S.
U.S. 695,'
695; 696 (1949).
(1949). But we
we have recently learned
learned that
that a state court
court
evidentiary support"
is unconstitutional
unconstitutional under the
conviction which
which is "totally devoid of
of evidentiary
support" is
due
362
due process
process clause
clause of the fourteenth
fourteenth amendment.
amendment. Thompson
Thompson v. City of Louisville, 362
U.S.
U.S. 199 (1960).
(1960). There
There seems
seems to
to be
be no reason
reason why such
such a conviction should
should not
not
be equally a denial
denial of due process under
under the
the fifth amendment,
amendment, which of course
course isis
applicable
applicable to
to federal proceedings,
proceedings, causing loss of jurisdiction under the
the principle of
of
Johnson v.
v. Zerbst.
lohllS01~
Zerbst. See Blevens
Blevens v. Taylor, No. 2757
2757 H.C., D.
D. Kan., April
April 27, 1960.
1960.
There is a time-honored,
apocryphal, legend
time-honored, although probably
probably apocryphal,
legend among judge
Judge Advocates
court-martial once sentenced
sentenced an acCused
ac-used in the
vocates that a court-martial
the following
following form of words:
words:
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of the right of confrontation,112
confrontation, 1 12 and by conducting the trial in an atmosatnlOs113
phere of public hostility and prejudice.113
This last is a problem which
which
may be genuine
and
perplexing
when
courts-martial
sit
overseas,
begenuine
perplexing
courts-martial
because
cause the military
military authorities, including those who are members of the
court, cannot easily exclude from their minds the consideration
consideration that exemplary
emplary punishment
punishment of a culprit may mitigate
mitigate the evil effect
effect of the crime
upon relations between
between United
United States forces and local civilians. Likewise I find charges that the incompetence of the interpreter
interpreter precluded a
5
;114 that the petitioner
fair trial ;114
petitioner was denied a speedy
speedy trial"
trial11G
or given
given one
speedier
speedier than he wanted;116
wanted ;116 that cruel and
and unusual punishment was inflicted;117
confirming a death senflicted;117 that the failure of the President, when confirming
tence, to hear the accused in person
person was a denial of the process to which
the latter was entitled under article 70(a)
Code;118
70 (a) of the Uniform Code
;118 and
that the alleged
own
alleged failure of the Court of Military Appeals to follow its own
10
precedents
petitioner
of
the
equal
deprived
protection
of
the
laws.
precedents
petitioner
laws,11° In
view of the prominence
prominence of the issue in civilian cases, it may at first blush
seem surprising that in only one case since 1953 has a Negro petitioner attacked
tacked a conviction on the ground that no Negro sat on the court-martial
20
which tried him.
him.1120
The explanation
explanation is probably
probably the exceedingly simple one
systematic exclusion
that there is in fact no evidence of systematic
exclusion of Negroes from the
courts-martial.
membership of courts-martial.
Could the last allegation
allegation be made with any tincture of plausibility,
plausibility, it
might compel a court really to consider the meaning
meaning of the dictum, so frequent as to be almost a judicial commonplace, that "due
"due process of law for
for
military personnel is what Congress has provided
provided for them in the military
military
"In view of the fact that there is no evidence of your guilt, you are sentenced to only
only
two years' confinement at hard .Iabor."
labor."
(10th Cir. 1953).
112. Easley v. Hunter, 209 F.2d 483 (10th
1953).
113. Bennett v. Davis, 267 F.2d 15 (10th
(10th Cir. 1959)
1959) ; Hurt v. Davis, No. 2821
2821 H.C.,
D. Kan., April 19, 1960. Each
(Austria
Each of these courts-martial
courts-martial sat in a foreign country (Austria
and Okinawa, respectively),
respectively), and each
each involved
involved a brutal crime against one of the
local population.
population.
(dictum).
114. Young v. Brucker, No. 2567 H.C., D.
D. Kan., June 2, 1960 (dictum).
115. Day v. Davis, 235 F.2d 379 (10th
(10th Cir.
Cir. 1956).
1956). The court thought that a delay
conof eight months in preparing charges was not unreasonable
unreasonable in view of the chaotic
chaotic conditions attending the evacuation of Seoul.
Seoul.
1955).
116. Mitchell v. Swope, 224 F.2d 365 (9th Cir. 1955).
(10th Cir. 1953).
1953). This particular complaint
complaint
117. Easley v. Hunter, 209 F.2d 483 (lOth
(10 years
was probably
probably not made with any serious hope of success, for the sentence (l0
allowable for the particular
particular
confinement at hard labor)
labor) was well within the maximum allowable
offenses under the Code and the Table of Maximum
Maximum Punishments promulgated
promulgated therethereunder by the President.
118. Hurt v. Davis, No. 2821 H.C., D.
D. Kan., April 19, 1960; Day v. Wilson, 155
155
F. Supp. 469 (D.D.C. 1957).
F.
1957).
supra note 118.
119. Day v. Wilson, supra
120.
v. Wilkinson, 129
F. Supp. 324
1955). A similar conten120. Wilson v.
129 F.
324 (M.D.
(M.D. Pa. 1955).
tion was made with similar
similar lack of success in one other
other case,
ease, decided some years
Wilson. See Jackson v. Gough, 170 F.2d 630 (5th Cir. 1948),
before Burns
Bllms v. Wilson.
1948), cert.
ccrt. denied,
dCllicd,
336 U.S. 938 (1949).
(1949).
HeinOnline -- 61 Colum. L. Rev. 64 1961
1961]
COLLATERAL REVIEW OF COURTS-MARTIAL
COURTS-MARTIAL
COLLATERAL
65
law.''
hierarchy in courts established according
according to law."121
This statement
statement appears
appears
particular protection
protection cannot be found in the Uniform
to mean that if a particular
members of the armed
armed forces. Although
Although the
Code, it does not exist for members
Uniform Code includes most of the explicit guarantees
guarantees contained
contained in the
Bill of Rights, and although the present
present Court of Military Appeals unprocess"
doubtedly makes an effort to shape its concept of "military due process"
cases,' 2
civilian
in
Court
Supreme
the
by
furnished
models
the
to
according
the Supreme Court in civilian cases,l22
according
the Code falls far short of spelling out all the gloss placed on the due
court-martial
process clause by the Supreme Court. If a conviction by a court-martial
excluded
should
ever reach
Negroes
had
been
systematically
from which Negroes
excluded
the Supreme
Supreme Court, I do not think that Justices Black and Douglas would
be alone in finding the conviction unconstitutional.
unconstitutional. Yet it would be hard
to point to any
any provision of the Uniform Code which was violated
violated by such
wanted
exclusion. In short, it is probably not true that Congress could, if it wanted
to, include in its military criminal code a provision
provision plainly inconsistent
inconsistent with
the Bill of Rights as interpreted by the Supreme
Supreme Court; and by the same
token it is probably not true that a protection granted by the Bill of Rights,
as interpreted
interpreted by the Supreme Court, is inapplicable
inapplicable to soldiers simply
Uniform Code of Military Justice, as
because it is not included in the Uniform
23
interpreted
Appeals.1123
The seemingly contrary
interpreted by the Court of Military Appeals.
121. Mr. Justice
(1953).
121.
Justice Minton, concurring
concurring in Burns v. Wilson, 346 U.S.
U.S. 137, 147 (1953).
(1911) ("to those in the military
Compare Reaves
Compare
Reaves v. Ainsworth, 219 U.S. 296, 304 (1911)
process") ; Burns v. Taylor,
or naval
naval service of the United States the military law is due process")
274 F.2d 141,
141, 142 (lOth
(10th Cir. 1959)
1959) ("due
("due process of law as contemplated and vouchv. Davis, 267 F.2d 15,
Uniform Code of Military
Military Justice");
Justice"); Bennett v.
15, 17
safed by the Uniform
(10th Cir. 1959)
(10th
1959) ("every
("every constitutional
constitutional safeguard
safeguard contemplated
contemplated by the Uniform
Uniform Code
v. Humphrey, 212 F.2d 503, 507 (3d Cir. 1954)
Justice"); White v.
1954) ("to
of Military Justice");
of
members
members of the military forces due process means the application of the procedure of
military law").
law").
(re122. E.g., United States v. Curtin, 9 U.S.C.M.A.
U.S.C.M.A. 427, 26 C.M.R. 207 (1958)
(1958) (reversing conviction
conviction for violation
violation of a lawful order by one not shown
shown to have actual
(1957));
knowledge thereof, upon the authority
authority of Lambert v. California, 355 U.S. 225 (1957));
United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960).
(1960). The Court of
Court of the military
military
Military Appeals,
Appeals, though it describes itself as "the Supreme Court
justice system,"
system," qualifies this supremacy-and
supremacy-and perhaps
perhaps concedes
concedes to the Supreme Court
Court
for
a jurisdiction rather broader
broader than that Court has so far been disposed to claim for
itself-by adding, "subject
"subject only to review
by
the
Supreme
Court
of
the
United
States
review
Supreme
United
on constitutional
issues." See United States
constitutional issues."
States v. Armbruster, 11 U.S.C.M.A. 596, 598,
598,
(1960).
(1960).
123. Frontal attacks
123.
attacks on the constitutionality of the procedural
procedural provisions
provisions of the
Uniform Code and its predecessors
predecessors have been rare
rare and unsuccessful. In Wade v. Hunter,
336 U.S. 684 (1949),
(1949), the Supreme
Supreme Court found it unnecessary
unnecessary to consider
consider the con(article
War 40 (article
stitutionality of the double
double jeopardy
jeopardy provision of old Article of War
proceeding
(1958)), which provided
44 of the present Code, 10 U.S.C.
U.S.c. § 844 (1958)),
provided that no proceeding
reviewing and confirming authorities
deemed to be a "trial" until the revie\ving
authorities should
should be deemed
have taken final action. One bold petitioner recently asserted that the entire Uniform
unconstitutional; the district court thought othenvise.
otherwise. United States ex rel.
reI.
Code is unconstitutional;
Watkins v. Vissering, Misc. No. 722, E.D. Va., June
June 10, 1960.
1960. Another petitioner
petitioner
majority of two-thirds of the court
court
argued that since the Articles of War required a majority
three-quarters for sentencing, at least one member
member of the court
court
for conviction, and of
of three-quarters
believed the accused innocent might be compelled
compelled to vote upon the sentence,
who believed
thereby going against his conscience,
conscience, in violation of his
his first amendment right to freedom of conscience.
conscience. But the court had its doubts about the accused's right to vindicate
vindicate
violence may have been
whatever violence
been done to the conscience of members of the courtHeinOnline -- 61 Colum. L. Rev. 65 1961
66
COLUMBIA LAW
LAW REVIEW
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(Vol. 61:
61 :40
[Vol.
40
dicta are probably
probably best to be taken as infelicitous
infelicitous efforts to express the
very different and entirely sound idea that while the Bill of Rights may
in principle apply to soldiers and civilians alike, it does not necessarily
give the infantry the same rights that it gives civilians, any more than itit
confers upon infants the same rights that it does upon adults. The exigencies
exigencies
of the military service
service may very well justify proceedings
proceedings which would be
124
peace. 124
in time
unfair if applied to a civilian, or to
to aa soldier
soldier in
time of
of peace.
Constitution does confer on members
If the Constitution
members of the military some right
to a fair trial and does not leave
leave either to Congress or the military authorities
authorities
the last word in defining that minimum standard of fairness, it follows that
the federal courts have on collateral
collateral review some
some power to inquire
inquire into
the fairness of court-martial
proceedings, and that that power ought not
court-martial proceedings,
not
to be limited to a mechanical examination of the record to see whether
whether the
point was "considered"
"considered" by the military. At least until the Supreme
Supreme Court
tells us more, the key question is the content that the inferior federal courts
will put into the adjectives "full
"full and fair"; do they import nothing more
than good faith, or do they require that the conclusions
conclusions of the military
defensible?
tribunals be defensible?
disThe dicta of some of the lower courts manifest an inclination
inclination to dis~
tinguish between the military tribunals'
findings
of
fact
and
the
legal
contribunals'
con~
clusions based on those facts. As phrased by a circuit judge sitting as a
elusions
"law courts are without
without
district judge in the District of Kansas, "law
jurisdiction
to
review
constitutional questions decided by military courts
jurisdiction
review constitutional
dependent upon facts which have been found by the military courts, but
where the question is whether the admitted facts, as a matter of law, violate
violate
12
jurisdiction."'
has
court
civil
the
constitutional guarantees or due process,
process,
civil court has jurisdiction."12G
It must be recognized
It
recognized that the civil courts, when asked to review military
indeterminations, labor under
under a considerable
considerable handicap;
handicap; military science, in~
cluding
the
maintenance
of
discipline,
exeluding
discipline, sometimes entails formidable ex~
pertise, and the martial experience,
experience, if any, of the ordinary
ordinary judge is likely
Considerations such as these, it may be supto be somewhat obsolete. Considerations
sup~
posed, underlie Mr. Justice Frankfurter's
no
Frankfurter's remark that, "[W]e
/I [W] e should
110
doubt attach more weight to the conclusions
conclusions reached on controversial
controversial facts by
military appellate courts
courts than to those reached by the highest court of a
126
State."'
Such
judicial
modesty may be appropriate when the military
State."126
martial, and so this inspired effort of the imagination,
imagination, as ingenious as it was unconvincing, got nowhere. Ex
(S.D.N.Y.), aff'd,
afI'd, 165 F.2d
E~ parte
parte Campo, 71 F. Supp. 543 (S.D.N.Y.),
213 (2d'Cir.
1947).
(2d 'Gr. 1947).
Cf. Wade v. Hunter, 336 U.S. 684 (1949)
124. Ct.
(1949);; Day v. Davis, 235 F.2d 379 (10th
(10th
Cir.), cert.
cert. denied,
(1956).
dmied, 352 U.S.
U.S. 881 (1956).
Cir.),
125.
aft'd sub
Ioam.
125. Burns v. Looney, No. 2699 H.C., D. Kan., April 13, 1959, aff'd
slIb nom.
Burns v. Taylor, 274 F.2d 141 (10th
1959);; ct.
cf. Rushing v. Wilkinson, 272 F.2d 633,
(lOth Cir. 1959)
641 (5th Cir. 1959)
1959) ; Dixon v. United States, 237 F.2d 509, 510 (10th
1956).
(10th Cir. 1956).
126. Burns v. Wilson, 346 U.S. 137, 149 (1953).
(l953). But in his dissenting opinion on
HeinOnline -- 61 Colum. L. Rev. 66 1961
1961]
1961]
COLLATERAL REVIEW
OF COURTS-MARTIAL
COURTS-MARTIAL
COLLATERAL
REVIEW OF
67
determination really does in one way or another relate to the demands of
determination
of
the tactical situation, as when the petitioner
petitioner challenges
challenges a transfer
transfer of charges
court-martial to another, or a determination
determination that a particular
from one court-martial
particular
officer
determination
officer is not "available"
"available" for service as defense
defense counsel,
counsel, or a determination
that military
or
military necessity prevents the personal appearance of a witness, or
But
a delay in bringing the accused to trial in a theater of actual combat. But
there seems to be no compelling reason to extend this hesitance to problems
problems
that lack any distinctively military
military flavor, such as whether
whether an accused who
was beaten up by the military
military police has confessed voluntarily or whether
whether
the record supports a finding that he was not in fact mishandled. Some
recent opinions, particularly
Kansas, 2 7 evince
evince a
particularly in the crucial district of Kansas,127
cautious disposition to reason that a military
military determination that is in the
been
cannot have been
civil court's judgment
judgment plainly at odds with the record cannot
based upon fair consideration. In the words of a senior circuit judge:
judge:
It is sometimes
sometimes stated that if the military
military reviewing authorities
authorities
have considered
considered and decided the constitutional
constitutional question sought to
be raised in a habeas corpus case, then the matter is at an end,
and the civil court is without jurisdiction. In the court's view, that
statement
Burns v.
v. Wilson
In Burns
Wilson .. .. .. it is stated that
statement is
is too
too broad.
broad. In
'when
decision has
dealt fully
'when aa military
military decision
has dealt
fully and
and fairly with an allegation raised in that application, it is not open to a federal civil court
court
to grant the writ simply to reevaluate
reevaluate the evidence.'
evidence.' However, if a
careful examination of the record compels a conclusion
conclusion that there
evidence to sustain the judgment or that in fact petitioner
petitioner
is no evidence
was not represented by an attorney, or that it must be said that
basic constitutional rights were violated,
violated, it would seem that a civil
court would have jurisdiction
jurisdiction to grant relief because
because under
under such
circumstances it cannot
reviewing military
circumstances
cannot be said that the
military authoriauthori28
questions.'128
these questions.
.
ties fairly considered these
As a declaration of the rights of military man, this is certainly
certainly something
something
less than ringing. But however discreet its phrasing, it may nonetheless
nonetheless
the
petition for
for rehearing,
rehearing, Mr.
Mr. Justice
said that he
he expressed
expressed no opinion
the petition
Justice Frankfurter
Frankfurter said
opinion
"on the weight which should be given by the federal district court on habeas corpus
to the findings of the military reviewing authorities."
authorities." !d.
Id. at 850.
127.
127. Both
Both the United States Disciplinary Barracks
Barracks and the well known federal
penitentiary
penitentiary are located in Leavenworth.
128.
F. Supp. 456, 458 (D.
1959) (Huxman, Senior Cir128. Sweet v. Taylor, 178 F.
(D. Kan. 1959)
cuit
cuit Judge).
Judge). Compare Young v. Brucker, No. 2567 H.C., D. Kan., June 2, 1958 ("The
court does have jurisdiction
court
jurisdiction to examine the record to see whether there is basis in fact
for the
the findings by the military
court"). The dicta quoted from the Sweet case are
for
military court.").
somewhat difficult
to reconcile with
with the attitude to military findings of fact which the
somewhat
difficult to
same judge had six months previously displayed
displayed in Burns v. Looney, No. 2699 H.C.,
D. Kan.,
13, 1959,
1959, ajJ'd
aff'd $lIb
mtb nom.
norn. Burns
Taylor, 274
274 F.2d
141 (10th
(10th Cir.
Cir. 1959).
1959).
Burns v.
v. Taylor,
F.2d 141
D.
Kan., April
Apri113,
proposition that a civil court should not reevaluate the
Another court has qualified the proposition
evidence bearing
evidence
bearing on the voluntariness of a confession by the phrase, "at least when
the military court's evaluation is not so unreasonable as to shock one's- sense of justice." See
See Rushing
Rushing v. Wilkinson, 272
272 F.2d
F.2d 633,
633, 641
641 (5th
(5th Cir. 1959);
1959) ; cf. Richards v.
tice."
Cox,
F. Supp. 107,
107, 108
108 (D.
Kan. 1960)
1960) ("it
("it is only when the overall picture pre184 F.
(D. Kan.
Cox, 184
sented by
by the
record is
is offensive to
to the concepts
sented
the record
concepts of common justice
justice and fairness that
that
a law court may intervene").
intervene").
HeinOnline -- 61 Colum. L. Rev. 67 1961
68
COLUMBIA
COLUMBIA LAW
LAW REVIEW
REVIEW
[Vol. 61
61:: 40
40
[Vol.
of the
the verdicts
verdicts of
of courts-martial
courts-martial
contain the
the seeds
seeds of a collateral
collateral review
review of
contain
comparable in
in breadth
breadth to that
that which
which has
has developed
developed for cases
cases involving
involving state
comparable
Johnson v. Zerbst
Zerbst was
was decided;
decided; many
many a majestic
majestic legal
legal
prisoners since
since Johnson
prisoners
still
the
acorn
True,
this.
than
larger
no
acorn
oak
has
grown
from
acorn
no
larger
than
True,
acorn
an
oak has grown
lies
is aa stubborn
stubborn fact that in
in no
no case
case decided
decided
lies dormant
dormant in
in the
the ground;
ground; it is
Burns v.
v. Wilson has
has aa soldier
soldier petitioner
petitioner persuaded
persuaded a court
court to grant
grant
after Burns
after
would
court
district
a
circumstances
in
what
say
cannot
the writ.
writ. We
We cannot
circumstances district court would find
find
such unfairness as
as to nullify the
the sentence
sentence of
of the
the military
military tribunal. It is
is
such
at least
least clear
clear that the unfairness
unfairness will
will have
have to have
have been
been pretty
pretty blatant
blatant
at
before the courts
courts will grant
grant what
what they
they evidently
evidently still
still consider
consider an extraordinary
e.."\:traordinary
before
radical remedy. It
that neither errors
errors in the Law Officer's
Officer's
It has been said that
and radical
0
are enough
prejudicial comment
comment by
by the prosecutor'
prosecutor2130
enough
instructions129 nor prejudicial
instructions
to rouse a civil court
court to action.
action. The
The admission
admission of evidence
evidence that
that the Supreme
Supreme
Court has held
held inadmissible
inadmissible in federal criminal
criminal trials has
has also
also been
been held
Court
"common and ordinary
ordinary error,"
error," beyond the civil court's power to
to be "common
3 -although the court did suggest
review131
suggest that the result might
might be different
different
'-although
review'
however damaging, the errors during
during a military
military
instead of a single error, however
if instead
were "so
"so numerous,
numerous, glaring and persistent
persistent as to be offensive to our
our
trial were
due
process"-which
of
concept of a fair trial and thus constitute a denial
2
Hiatt.0132
v. Hiatt.
of Hicks
Hicks v.
sounds very much like a return
return to the philosophy of
More, the court
court hinted at the possibility that
that a "wilful
"wilful and intentional"
intentional"
to adfailure
admission of such testimony, that is, a wilful and intentional
(4th Cir. 1959);
1959); Day v. Davis, 235 F.2d
129. Kubel v. Minton, 275 F.2d 789, 791 (4th
(1956). For this purpose it is not
379, 385 (10th
(10th Cir.),
denied, 352 U.S. 881 (1956).
cert. denied,
Cir.), cert.
unfair to analogize
analogize the Law Officer's instructions to a civil court's charge to the jury.
(1958) ; MANUAL
51(c), 10 U.S.C. §§ 851(c) (1958);
MANUAL
Uniform Code of Military Justice, art.
art. 51(c),
See Uniform
(1951).
FOR
UNIrED STATES ITff73 (1951).
COURTS-M&aRTI UNITED
FOR COURTs-MARTIAL
denied, 355 U.S.
cert. dellied,
1957), cerl.
(10th Cir. 1957),
130.
130. Thomas v. Davis, 249 F.2d 232, 235 (10th
(1958).
927 (1958).
norn. Burns
stb 110111.
April 13, 1959, aff'd sub
131.
v. Looney, No. 2699 H.C., D. Kan., Apri113,
131. Burns v.
court-martial and
particular case the court-martial
1959). In the particular
v.
Taylor, 274 F.2d 141 (10th Cir. 1959).
v. Taylor,
of Military Appeals, had perCourt of
the military reviewing authorities, including the Court
Court of
mitted the wife of the accused to testify against him, over his objection. The Court
v. Burns, 66
United States v.
Military Appeals denied the petition for grant of review. United
U.S.C.M.A. 834 (1955).
(1955). Thereafter the Supreme Court held that it was error
criminal trial in aa federal court. Hawkins v. United States,
to admit such evidence in a criminal
was not an
Hawkins case was
358 U.S.
in the Hawkills
Court's decision in
(1958). The Supreme Court's
U.S. 754 (1958).
constituted a denial of conadjudication that the admission of
conof the wife's testimony constituted
power to supervise the administrastitutional due process, but
exercise of its power
but simply an exercise
to courtscourtsextend to
does not
not e."tend
that does
tion of criminal justice in the federal
federal courts, a power that
(1953). But the ruling of the
145 n.12 (1953).
137, 145
346 U.S. 137,
v. Wilson,
Wilson, 346
martial. See
Bums v.
See Burns
36(a) of
article 36(a)
for article
military tribunals
nonetheless wrong, in the light of hindsight, for
was nonetheless
tribunals was
far
that the President shall, so far
the Uniform
(1958), directs that
836(a) (1958),
U.S.C. §§ 836(a)
10 U.S.c.
Code, 10
Uniform Code:
provisions of the
as he deems practicable, and so
so far as is not inconsistent with other provisions
recognized in the
Code, prescribe for courts-martial "the rules of evidence generally
generally recognized
Courtsfor CourtsManual for
The Manual
courts.. . ."." The
trial
States district courts...
cases in the United States
of criminal cases
trial of
of
courts' rules of
federal courts'
Martial
that courts-martial shall apply the federal
accordingly provides that
Martial accordingly
Manual
in the
the M
is nothing
nothing in
allllal that
evidence,
and there is
prescribed," and
otherwise prescribed,"
far as not othenvise
"so far
evidence, "so
the wife
of the case, the
would
in the circumstances of
wife's testimony in
sanctioned the wife's
would have sanctioned
COURTS-MARTIAL
FOR COURTs-MARTIAL
MANUAL FOR
offense. MANUAL
not
the husband's offense.
by the
injured by
person injured
the person
being the
not being
(1951).
148e (1951).
1111
UNITm STATES ITIT
UNITED
137, 148e
132. See
supra.
6-7 supra.
accompanying notes 6-7
See text
text aCCQmpanying
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here to
to the rules of evidence
evidence recognized
recognized in
in the federal
federal courts,
courts, might
might be a
here
denial of due process,
process, even
even though
though the Supreme
Supreme Court's
Court's rulings were
were no
denial
justice
criminal
federal
to
supervise
its
power
exercise
of
its
power
supervise
federal
criminal
more
of
than
an
exercise
more
and not
not a determination
determination that the
the exclusion
exclusion of certain
certain testimony
testimony was essenessenand
133 It seems
tial
seems clear,
clear, reading
reading the
the opinion
opinion as a whole, that
tial to due
due process.
process.133
the court
suppose that errors
errors in the admission or rejection
rejection of
of
court did not suppose
evidence
finding a denial
denial of due process,
process, but
but simply
simply
evidence could
could not be a basis for finding
that the garden variety
variety of error, such
such as courts
courts daily commit, will not do.
Officer's instructions
Trial Counsel's
Counsel's inflammaLaw Officer's
instructions or the Trial
Similarly, the Law
impropriety as
as to
to
rhetoric might
might plumb
plumb such
such depths of ignorance
ignorance or impropriety
tory rhetoric
cause
cause a habeas corpus court
court to sit up and start talking
talking in terms of fundamental
sense of
of justice.
mental unfairness,
unfairness, or even of shock to its sense
None of these cases offers bright hopes to the military
military prisoner as he
sits of evenings in his cell teaching himself the elements
elements of constitutional
constitutional
pauperis. One
law and practicing
practicing the composition
composition of petitions
petitions in forma pauperis.
law
recent
recent case, indeed, seems restrictive even by the traditional standard, for
for
military's construction of the law is no less imit appears to hold that the military's
court-martial's jurispregnable
pregnable than its findings of fact, even when the court-martial's
jurisupon the reading of such
such
diction over the offense
offense itself would seem to turn upon
34
war."134 No doubt there are situations
situations
statutory language as "in time of war."'
to
interpretation of statutory
in which the military's interpretation
statutory language is entitled to
35
weight,135
competence to make
make the
but it has no obvious special competence
special weight,
mpra. The problem
133.
133. See note 131 $lepra.
problem would be
be more difficult
difficult if the President,
courts-martial of a federal rule of evidence,
finding impracticable
impracticable the application to courts-martial
Mallual, and still more difficult if the Uniform
should prescribe a different rule in the Manual,
actually preCode itself should prescribe a different rule. The former problem was actually
U.S.C.M.A. 7CJ2,
792,
sented to the Court of Military Appeals in United States v. Haynes, 9 U.S.CM.A.
"incorrect," as in conflict with Nardone
(1958), which held "incorrect,"
C.M.R. 60, 63-64 (1958),
795-96, 27 CM.R.
permitting the inManual permitting
(1939), a provision of the Mallual
308 U.S. 338 (1939),
v. United States, 308
confession.
troduction of evidence
evidence obtained indirectly by means of an inadmissible
inadmissible confession.
1960). The accused had deserted
134. Fischer v.
v. Ruffner, 277 F.2d 756 (5th
(5th Cir. 1960).
the Army in 1953,
1953, during the Korean hostilities, but was not brought before aa courtmartial until 1959. Article
Article 43 of the Uniform Code, 10 U.S.C.
U.S.C §§ 843 (1958),
(1958), permits
trial for wartime desertion without limitation of time, but imposes aa three-year
three-year limitation
shooting
contended that the Korean shooting
on trial for desertion in time of peace. The accused contended
"war," so that his trial was barred. The court, considering that any error by
was not "war,"
the military in applying the language of article 43 to the Korean conflict was an "ordinary" error of law, not affecting jurisdiction, refused to review the Army's conSupreme Court granting the
struction. No mention was made of a 1959 decision of the Supreme
writ on the
the ground that the military tribunals had erred in holding that June 10, 1949,
writ
was not "in time of peace" for the purposes of former Article of War 92, which deprived courts-martial of jurisdiction to try cases of murder or rape committed in the
228 (1959).
(1959).
Madigan, 358 U.S. 228
of peace. Lee
Lee v. Madigan,
United States in time of
although
135. Thus, the military authorities have traditionally been accorded wide, although
are "conduct of a nature to bring discredit
not unlimited, discretion to decide what sins are
discredit
upon the armed forces" or "disorders and neglects to the prejudice of good order and
general,
of
the
within
the
denunciation
forces"
and
therefore
discipline in the armed
denunciation
27,
H.C., D. Kan., April 27,
Taylor, No. 2757 H.C,
Compare Blevens v. Tay.lor,
or catchall, article. Compare
try
1960, in which the court held that while a court-martial is without jurisdiction to try
soldier who defected to the
(1958), a soldier
a violation of the Smith Act, 18 U.S.C. §§ 2385 (1958),
propaganda activities was clearly
participated in its propaganda
East German government and participated
violation
guilty of "conduct of a nature to bring discredit upon the armed forces," in violation
HeinOnline -- 61 Colum. L. Rev. 69 1961
70
COLUMBIA LAW
LAW REVIEW
REVIEW
61 : 40
[Vol. 61:
essentially
"war" and a mere "police
action."
essentially political distinction between a "war"
"police action."
The most that can be said-and
said-and it may prove to be a good deal-is
that since
since and despite Burns v. Wilson the inferior federal courts have
tended to reject the more extreme
extreme claims
claims of the Government
Government and to include
in their opinions dicta that at least preserve
their
freedom of maneuver;
preserve
maneuver;
conversely,
conversely, they have on the whole been careful to limit their actual holdings to the exact facts before
before them-facts that usually would not have justified collateral attack upon the verdict of a State court. Nothing in these
cases would preclude
preclude collateral relief if a sufficiently unpleasant set of facts
were alleged and established.
established.
VII.
CONCLUSION
CONCLUSION
orthodox
I am of the opinion that this gradual
gradual edging away from the orthodox
doctrine
sentences
doctrine and toward a practical homologizing
homologizing of military and civil sentences
for the purposes of collateral
It is to
collateral review is very
very much to be desired. It
language will be allowed quietly to
be hoped that the "manifest refusal" language
"full and
fade away and that increasing stress will be put upon the words "full
fair." I come to this opinion
partly
for
the
reason
I
opinion
have already given,
that the best guarantee of fundamental fairness in military trials, in all
circumstances, is the existence
circumstances,
existence of a power, wholly independent
independent of the milimilitary organization,
organization, to enforce such fairness; partly because
because it is very unequivalent to
likely that the recognition
recognition of a power of collateral review equivalent
that which is exercised over the criminal justice
of
the
States
would
actually
justice
30
130
lead to a different result in an appreciable number of cases
cases'
otherwise
or otherwise
seriously hamper military discipline, except in circumstances
circumstances in which itit
may need a little hampering; partly because
because there is something irrational
in what Mr. Justice Frankfurter describes as "the
"the principle
principle that a conviction by a constitutional court which lacked due process is open to attack
by habeas corpus while
conviction when rendered
while an identically
identically defective conviction
rendered
37
invulnerable."'
by an ad hoc military
military tribunal is invulnerable."137
But the main reason for
my conviction that the civil courts should draw as little distinction as
possible
between military and civil tribunals and between
other
possible between
between soldiers and other
citizens, is simply that, if there ever was a time when the Army could
could
"separate community"'
separate system
rationally be described
described as a "separate
community" with a separate
system
38
of government,
that
time
is
long
past.
Most
male
citizens
of
the
United
government,13s
(1958). See Hagan, The Gelleral
General
of article
article 134 of the Uniform Code, 10 U.S.C. §§ 934 (1958).
Article-Elemental
Confusion, Military
Military L. Rev., Oct. 1960, p. 60, at p. 63.
Article-Elemental COllfusioll,
"[W]ith the Court of Military
136. "[W]ith
Military Appeals
Appeals reversing
reversing the worst cases, there will
not be many instances where a military accused who has exhausted
exhausted the involved process
of the Uniform Code will find any genuine
genuine necessity for resorting to collater4l
collaterqI review
in a federal district court."
and the
the Bill of Rights:
Original
C01trts-Marlial alld
Rights: The Origillal
court." Wiener, CMrts-Martial
Practice,
L REV.
Rm. 266, 302 (1958).
(1958).
Practice, 72 HARv. L.
137. Separate
Separate opinion in Burns
Burns v. Wilson, 346 U.S. 844, 851 (1953).
(1953).
138. See Carter v. McClaughry, 183 U.S. 365, 389 (1902).
(1902). Mr. Chief Justice
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1961]
1961]
COLLATERAL REVIEW
REVIEW OF
OF COURTS-MARTIAL
COURTS-MARTIAL
COLLATERAL
71
States (and
(and a fair
fair number
number of
of the
the female
female ones)
ones) have
have aa relation
relation to
to the
the armed
armed
States
the
or
Athens
or
the
forces
as
direct
and
personal
as
that
of
a
citizen
of
Pericles'
Athens
a citizen of Pericles'
personal as
direct
forces
the days
days of
of Cato
Cato the Censor.
Censor. My objection
objection to
to the
the
Roman Republic
Republic in
in the
Roman
"separate
does- not
not square
square with
with the
the
"separate community"
community" idea
idea' is
is not
not simply
simply that
that itit does
facts.
the basis
basis of
of the
the experience
experience of many
many nations
nations in
in many
many times,
times, II
facts. On the
believe that concept
concept to
to be
be actually
actually pernicious,
pernicious, as
as is
is any way
way of thinking
thinking
believe
an enclave
enclave of
of the national
national polity
polity
which tends to make the armed
armed services
services an
which
are of
of other
other caste than the rest.
whose inhabitants
inhabitants are
The United States
States has
has had no Dreyfus
Dreyfus case.
case. One
One reason
reason is
is that in
in
The
despite their
their categorical
categorical pronouncements,
pronouncements, it is unlikely
unlikely that the
fact, and despite
constitutional
constitutional courts
courts of
of the
the United
United States, if actually confronted
confronted with such
such
record, would have taken water
water and washed
washed their hands. Obviously, there
a record,
got to be major
major differences
differences between
between soldiers
soldiers and
and civilians,
civilians, including
including
have got
policy
our
But
justice.
But
differences
in
respective
systems
criminal
of
criminal
systems
respective
their
differences
can be done
done
should not be to maximize
maximize these differences
differences so far a's that can
should
~ense of justice, but rather
rather' to
to' minimize
minimize them
outraging the courts'
courts' sense
without outraging
efficiency.
so far as that can be done without impairing military efficiency.
Fuller, who had never been a soldier, thought this apartheid "essential
"essential to the maintenmaintenance of that
that discipline
discipline which renders
renders the Army efficient
efficient in war and morally progressive
progressive
." Ibid.
Ibid.
in peace....
peace...."
HeinOnline -- 61 Colum. L. Rev. 71 1961