Parisi v. Davidson (405 U.S. 34)/Concurrence Douglas

by William O. Douglas

[p46] MR. JUSTICE DOUGLAS, concurring in the result.

I agree with the Court's view that habeas corpus is an overriding remedy to test the jurisdiction of the military to try or to detain a person. The classic case is Ex parte Milligan, 4 Wall. 2, where habeas corpus was issued on behalf of a civilian tried and convicted in Indiana by a military tribunal. During the Civil War all civil courts in that State were open and federal authority had always been unopposed. While the President [p47] and the Congress had "suspended" the writ, id., at 115, the suspension, said the Court, went no further than to relieve the military from producing in the habeas corpus court the person held or detained. "The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it." Id., at 126.

Mr. Chief Justice Taney in Ex parte Merryman, 17 F. Cas. 144 (No. 9,487) (CC Md. 1861), held that the President alone had no authority to suspend the writ, a position that Lincoln did not honor. To date, the question has never been resolved, and its decision is not relevant to the present case. I mention the matter because of the constitutional underpinning of the writ of habeas corpus. Article I of the Constitution, in describing the powers of the legislative branch, states in § 9 that: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Court has consistently reaffirmed the preferred place of the Great Writ in our constitutional system. Fay v. Noia, 372 U.S. 391, 400; Smith v. Bennett, 365 U.S. 708, 713.

Article III, § 1, gives Congress the power to "ordain and establish" inferior federal courts; and § 2 subjects the "appellate Jurisdiction" of this Court to "such Exceptions, and... such Regulations as the Congress shall make." Once Congress withdrew from this Court its appellate jurisdiction in habeas corpus cases. See Ex parte McCardle, 6 Wall. 318, 7 Wall. 506. An Act of Congress passed by the very first Congress provided for the issuance of the writ. But as Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 95, "for if the means be not in existence, the privilege [p48] itself would be lost, although now law for its suspension should be enacted." It is also true that "the meaning of the term habeas corpus" is ascertained by resort "to the common law;" yet "the power to award the writ by any of the courts of the United States, must be given by written law." Id., at 93-94.

What courts may do is dependent on statutes,^[1] save as their jurisdiction is defined by the Constitution. What federal judges may do, however, is a distinct question. Authority to prevent constitutional rights of individuals is inherent in the authority of a federal judge, conformably with Acts of Congress. The mandate in Art. I, § 9, that "The Privilege of the Writ... shall not be suspended" must mean that its issuance, in a proper case or controversy, is an implied power of any federal judge.

We have ruled that even without congressional statutes enforcing constitutional rights, the federal judges have authority to enforce the federal guarantee. Fay v. New York, 332 U.S. 261, 283-284, 285, 293; Katzenbach v. Morgan, 384 U.S. 641, 647. Those cases involved protests by individuals against state action. Certainly the military does not stand in a preferred position.

The matter is germane to the present problem. For here the military is charged with exceeding its proper bounds in seeking to punish a person for claiming his statutory and constitutional exemption from military [p49] service. The conflict between military prerogatives and civilian judicial authority is as apparent in this case as it was in Ex parte Milligan. A person who appropriately shows that he is exempt from military duty may not be punished for failure to submit. The question is not one of comity between military and civilian tribunals. One overriding function of habeas corpus is to enable the civilian authority to keep the military within bounds. The Court properly does just that in the opinion announced today.

While the Court of Military Appeals has the authority to issue the writ of habeas corpus, Noyd v. Bond, 395 U.S. 683, 695 n. 7; Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399, we have never held that a challenge to the military's jurisdiction to try a person must first be sought there rather than in a federal district court.^[2] Of [p50] course, where comity prevails, as it does between state and federal courts, federal habeas corpus will be denied where state habeas corpus or a like remedy is available but has not been utilized. Ex parte Hawk, 321 U.S. 114. A petitioner must, indeed, pursue his alleged state remedies until it is shown that they do not exist or have been futilely invoked.

The principle of comity was invoked by Congress when it wrote in 28 U.S.C. § 2254 that federal habeas corpus shall not be granted a person in state custody "unless it appears that the applicant has exhausted the remedies available in the courts of the State." That principle of comity is important in the operation of our federal system, for both the States and the Federal Government [p51] are administering programs relating to criminal justice.^[3] See Fay v. Noia, 372 U.S. 391. But "the principles of federalism which enlighten the law of federal habeas corpus for state prisoners are not relevant," Noyd v. Bond, 395 U.S., at 694, to analogous questions involving military prisoners. Military proceedings are different. As we said in O'Callahan v. Parker, 395 U.S. 258, 265, "A court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved."

Comity is "a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Darr v. Burford, 339 U.S. 200, 204. But the Pentagon is not yet sovereign. The military is simply another administrative agency, insofar as judicial review is concerned. Cf. Comment, 43 S. Cal. L. Rev. 356, 377-378. While we have stated in the past that special deference is due the military decisionmaking process, Gusik v. Schilder, 340 U.S. 128, this is so neither because of "comity," nor the sanctity of the Executive Branch, but because of a concern for the effect of judicial intervention on morale and military discipline, and because of the civilian judiciary's general unfamiliarity with "extremely technical provisions of the Uniform Code [of Military Justice] which have no analogs in civilian jurisprudence," Noyd v. Bond, supra, at 696.

[p52] The "special expertise" argument is often employed by the defenders of the military court system. Thus, the argument was advanced—and rejected—that the civilian judges who were to staff the Court of Military Appeals could not do service, absent military experience, to the complicated, technical niceties of military law.^[4] See, [p53] e.g., 96 Cong. Rec. 1305-1306. But civilian courts must deal with equally arcane matters in such areas as patent, admiralty, tax, antitrust, and bankruptcy law, on a daily basis.

Our system of specialized military courts, though "necessary to an effective national defense establishment," O'Callahan v. Parker, 395 U.S., at 265, has roots in a system almost alien to the system of justice provided by the Bill of Rights, by Art. III, and by the special provision for habeas corpus contained in Art. I, § 9. Military law is primarily an instrument of discipline and a "military trial is marked by the age-old manifest destiny of retributive justice." Id., at 266.^[5] For the sake of discipline and orderliness a person in the military service must normally follow the military administrative procedure and exhaust its requirements. Gusik v. Schilder, 340 U.S. 128. But once those administrative remedies are exhausted, he must then be permitted to resort to civilian courts^[6] to make sure the the military regime acts [p54] within the scope of statutes governing the problem and any constitutional requirements. To repeat, both statutes^[7] and the Constitution^[8] are implicated in the claims of conscientious objectors.

Petitioner claims to be a conscientious objector and therefore not subject to military orders. He was charged with refusing to obey a military order sending him to Vietnam and has been convicted of that offense. While the court-martial charges against him were pending, he exhausted all administrative remedies for relief from the Army's denial of his conscientious objector application. In theory he could pursue his remedies within the military system by appealing the conviction or seeking habeas corpus in the Court of Military Appeals. But he need go no further than to exhaust his administrative remedies for overruling the decision that he was not a conscientious objector. If there is a statutory or constitutional reason why he should not obey the order of the Army, that agency is overreaching when it punishes him for his refusal.

The Army has a separate discipline of its own and obviously is fills a special need. But matters of the mind and spirit, rooted in the First Amendment, are not in the [p54] keeping of the military. Civil liberty and the military regime have an "antagonism" that is "irreconcilable." Ex parte Milligan, 4 Wall., at 124, 125. When the military steps over those bounds, it leaves the area of its expertise and forsakes its domain.^[9] The matter then becomes one for civilian courts to resolve, consistent with the statutes and with the Constitution.

Notes

1. It has been assumed that this Court has no jurisdiction to issue an original writ of habeas corpus except when issuance of the writ has been first denied by a lower court. R. Stern & E. Gressman, Supreme Court Practice 419-420 (4th ed. 1969). But the Court has not settled the question. See Hirota v. McArthur, 335 U.S. 876, 338 U.S. 197.

   Some members of the Court have felt that, absent statutory authorization, the Court may not even transfer a petition for an original writ of habeas corpus to a lower court. But that view has not prevailed. See Chaapel v. Cochran, 369 U.S. 869.

2. See Billings v. Truesdell, 321 U.S. 542. This case involved a Selective Service registrant whose conscientious objector claim was rejected by the service. Billings subsequently reported as ordered for induction, but refused to take the required oath. The oath was then read to him, and he was told that his refusal to take it made no difference; he was "in the army now." Id., at 545. When Billings refused an order to submit to fingerprinting, military charges were brought against him. While the charges were pending, Billings sought federal habeas corpus relief, challenging the military's jurisdiction to try him, on the theory that he had not been lawfully inducted. The District Court discharged the writ, and the Court of Appeals affirmed, but this Court held that Billings' induction had indeed violated existing statutory law, and ordered that the writ issue. Implicit in this holding is an affirmation of the proposition that exhaustion of military remedies, including pending court-martial, is not required of one challenging the military's jurisdiction to try him in the first instance. While Billings was decided before the enactment of the Uniform Code of Military Justice, cases decided under the Code have reached similar results. See, e.g., McElroy v. Guagliardo, 361 U.S. 281; Reid v. Covert, 354 U.S. 1; Toth v. Quarles, 350 U.S. 11. Noyd v. Bond, 395 U.S. 683, is not to the contrary. There, the Court was faced with a serviceman who had refused to obey an order because of his asserted conscientious scruples against the war in Vietnam. His court-martial conviction was pending in the Court of Military Appeals. The issue decided against him on his federal habeas application, however, was not the jurisdiction of the military to try him in the first instance, but merely his entitlement to bail pending disposition of his military appeals. The Court held that his bail motion should first be presented to the Court of Military Appeals; but we were explicit in distinguishing Guagliardo, Covert, and Toth:

   "The cited cases held that the Constitution barred the assertion of court-martial jurisdiction over various classes of civilians connected with the military, and it is true that this Court there vindicated complainants' claims without requiring exhaustion of military remedies. We did so, however, because we did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented. Moreover, it appeared especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all. Neither of these factors is present in the case before us." 395 U.S., at 696 n. 8.

   Thus, Noyd supports the proposition that "exhaustion is not required when a prisoner challenged the personal jurisdiction of the military." Developments in the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1233 n. 169. And Parisi's challenge is precisely of that nature.
3. As Irving Brant says in the Bill of Rights 483 (1965), "the essential differences between state and federal criminal law, though immense in subject matter, have little bearing on 'fundamental fairness' or 'basic liberties.' There are involved when overlapping jurisdictions produce double jeopardy, but the fundamentals of fairness are not different in state and federal courts."
4. Many of today's critics of the Court of Military Appeals feel that an insensitivity to military needs is the least of the court's problems. Recent attacks have rested on the premise that, in fact, the court has become too closely identified with the viewpoint of the military establishment it is supposed to oversee. See, e.g., R. Sherrill, Military Justice Is to Justice as Military Music Is to Music 214-215 (1970). Critics must concede, however, that the court has at least been partially successful in infusing civilian notions of due process into the military justice system. See, e.g., E. Sherman, Justice in the Military, in Conscience and Command 21, 28 (J. Finn ed. 1971). Thus, the court has extended to servicemen the right to a speedy trial, United States v. Schalck, 14 U.S.C.M.A. 371, 34 C.M.R. 151; the right to confront witnesses, United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244; the right to protection against unreasonable searches and seizures, United States v. Vierra, 14 U.S.C.M.A. 48, 33 C.M.R. 260; the privilege against self-incrimination, United States v. Kemp, 13 U.S.C.M.A. 89, 32 C.M.R. 89; the right to a public trial, United States v. Brown, 7 U.S.C.M.A. 251, 22 C.M.R. 41; the right to compulsory service of process, United States v. Sweeney, 14 U.S.C.M.A. 599, 34 C.M.R. 379; and the right to Miranda-type warnings, United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249.

   Despite these advances, however, the military justice system's disregard of the constitutional rights of servicemen is pervasive. See Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S. Res. No. 260, 87th Cong., 2d Sess.; Joint Hearings on S. 745 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Armed Services Committee, 89th Cong., 2d Sess., pts. 1 and 2. See also Summary-Report of Hearings on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S. Res. No. 58, 88th Cong., 1st Sess. (Comm. Print 1963).

5. At the hearings on the proposed Uniform Code of Military Justice, one witness analogized the military court-martial panel to a jury appointed by the sheriff's office. Hearings on the Uniform Code of Military Justice before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., 630 (1949). Rep. Sutton of Tennessee, himself a much-decorated veteran, summarized his views on the state of military justice during World War II by his statement, during the floor debates on the proposed Code, that "[h]ad they used the Pentagon Building for what it was designed, a veteran's hospital, America would have been lots better off today." 95 Cong. Rec. 5727.
6. The Federal Rules of Civil Procedure govern habeas corpus (Rule 81 (a)(2)), that remedy being civil in nature; and those Rules are comprehensive, including depositions and discovery. Rules 26-37. The Rules of Practice and Procedure of the Court of Military Appeals (See the Rules ff. 10 U.S.C.A. § 867, Supp. 1972) contain no provisions respecting habeas corpus. While collateral remedies have been recognized by the Court of Military Appeals since 1966, United States v. Frischholz, 16 U.S.C.M.A. 150, 36 C.M.R. 306, and the express power to grant habeas corpus relief was asserted in 1967, Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399, the military prisoner is at a substantial disadvantage compared to his civilian counterpart. See Uniform Code of Military Justice, Arts. 32, 36, 46, and 49, 10 U.S.C. §§ 832, 836, 846, and 849. See Melnick, the Defendant's Right to Obtain Evidence: An Examination of the Military Viewpoint, 29 Mil. L. Rev. 1 (1965). See generally M. Comisky and L. Apothaker, Criminal Procedure in the United States District and Military Courts (1963). And see Manual for Courts-Martial, ¶¶ 30f, 34, 115, 117, and 145a (1968).
7. 50 U.S.C. App. § 456 (j). See United States v. Seeger, 380 U.S. 163.
8. See Gillette v. United States, 401 U.S. 437, 463 (DOUGLAS, J, dissenting).
9. Another factor militating against the Court's reliance on "comity" in analyzing the insulation of the military justice system from civilian review is the enormous power of the military in modern American life.

   "From an initial strength of well under one thousand, our army alone has grown into a behemoth numbering well over a million men even in time of nominal peace. No longer does the military lie dormant and unnoticed for years on end, coming to the attention of the typical citizen only in time of war. Today every male resident is a potential soldier, sailor, or airman; and it has been estimated that even in time of peace such service occupies at least four percent of the adult life of the average American reaching draft age. As Mr. Chief Justice Warren recently observed:

   "'When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question.' [Warren, the Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 188.]"

   Comment, God, the Army, and Judicial Review: The In-Service Conscientious Objector, 56 Calif. L. Rev. 379, 446-447.