Tried separately by courts-martial, petitioners were found
guilty of murder and rape and sentenced to death. After exhausting
all remedies available to them under the Revised Articles of War,
62 Stat. 627, petitioners applied to a Federal District Court for
writs of habeas corpus, alleging that they had been denied due
process of law in the proceedings leading to their convictions by
the courts-martial. Respondents denied these allegations and
attached to their answer copies of the records of the trials and of
all proceedings by the military reviewing authorities, which showed
plainly that the military courts had heard petitioners on every
significant allegation urged before the District Court. After
satisfying itself that the courts-martial had complete
jurisdiction, the District Court dismissed the applications without
hearing evidence and without further review. The Court of Appeals
gave petitioners' allegations full consideration on their merits,
reviewed the evidence in the record of the trial and other
proceedings before the military courts, and affirmed.
Held: judgment affirmed. Pp.
346 U. S.
138-146.
91 U.S.App.D.C. 208, 202 F.2d 335, affirmed.
The District Court dismissed petitioners' applications for writs
of habeas corpus.
104 F.
Supp. 310,
312.
The Court of Appeals affirmed. 91 U.S.App.D.C. 208, 202 F.2d 335.
This Court granted certiorari.
344 U. S. 90. At
the time of the argument, February 5, 1953, Wilson, present
Secretary of Defense, was substituted for Lovett, former Secretary
of Defense.
Affirmed, p.
346 U. S.
146.
Page 346 U. S. 138
MR. CHIEF JUSTICE VINSON announced the judgment of the Court in
an opinion in which MR. JUSTICE REED, MR. JUSTICE BURTON, and MR.
JUSTICE CLARK join.
Tried separately by Army courts-martial on the Island of Guam,
petitioners were found guilty of murder and rape and sentenced to
death. The sentences were confirmed by the President, and
petitioners exhausted all remedies available to them under the
Articles of War for review of their convictions by the military
tribunals. They then filed petitions for writs of habeas corpus in
the United States District Court for the District of Columbia.
In these applications, petitioners alleged that they had been
denied due process of law in the proceedings which led to their
conviction by the courts-martial. They charged that they had been
subjected to illegal detention; that coerced confessions had been
extorted from them; that they had been denied counsel of their
choice and denied effective representation; that the military
authorities on Guam had suppressed evidence favorable to them,
procured perjured testimony against them, and otherwise interfered
with the preparation of their defenses. Finally, petitioners
charged that their trials were conducted in an atmosphere of terror
and vengeance, conducive to mob violence instead of fair play.
The District Court dismissed the applications without hearing
evidence, and without further review, after satisfying itself that
the courts-martial which tried petitioners had jurisdiction over
their persons at the time of the trial and jurisdiction over the
crimes with which they were charged, as well as jurisdiction to
impose the sentences
Page 346 U. S. 139
which petitioners received.
Dennis v.
Lovett, 104 F.
Supp. 310. The Court of Appeals affirmed the District Court's
judgment, after expanding the scope of review by giving
petitioners' allegations full consideration on their merits,
reviewing in detail the mass of evidence to be found in the
transcripts of the trial and other proceedings before the military
court.
Burns v. Lovett, 91 U.S.App.D.C. 208, 202 F.2d
335.
We granted certiorari, 344 U.S. 903. Petitioners' allegations
are serious, and, as reflected by the divergent bases for decision
in the two courts below, the case poses important problems
concerning the proper administration of the power of a civil court
to review the judgment of a court-martial in a habeas corpus
proceeding.
In this case, we are dealing with habeas corpus applicants who
assert -- rightly or wrongly -- that they have been imprisoned and
sentenced to death as a result of proceedings which denied them
basic rights guaranteed by the Constitution. The federal civil
courts have jurisdiction over such applications. By statute,
Congress has charged them with the exercise of that power.
[
Footnote 1] Accordingly, our
initial concern is not whether the District Court has any power at
all to consider petitioners' applications; rather, our concern is
with the manner in which the Court should proceed to exercise its
power.
The statute which vests federal courts with jurisdiction over
applications for habeas corpus from persons confined by the
military courts is the same statute which vests them with
jurisdiction over the applications of persons confined by the civil
courts. But, in military habeas corpus, the inquiry, the scope of
matters open for review, has always been more narrow than in civil
cases.
Hiatt v. Brown, 339 U. S. 103.
Thus, the law which governs a civil court in the exercise of its
jurisdiction over military habeas corpus applications cannot simply
be
Page 346 U. S. 140
assimilated to the law which governs the exercise of that power
in other instances. It is
sui generis; it must be so,
because of the peculiar relationship between the civil and military
law.
Military law, like state law, is a jurisprudence which exists
separate and apart from the law which governs in our federal
judicial establishment. [
Footnote
2] This Court has played no role in its development; we have
exerted no supervisory power over the courts which enforce it; the
rights of men in the armed forces must perforce be conditioned to
meet certain overriding demands of discipline and duty, and the
civil courts are not the agencies which must determine the precise
balance to be struck in this adjustment. [
Footnote 3] The Framers expressly entrusted that task
to Congress.
Indeed, Congress has taken great care both to define the rights
of those subject to military law and provide a complete system of
review within the military system to secure those rights. Only
recently, the Articles of War were completely revised, and
thereafter, in conformity with its purpose to integrate the armed
services, Congress established a Uniform Code of Military Justice
applicable to all members of the military establishment. [
Footnote 4] These enactments were
prompted by a desire to meet objections and criticisms lodged
against court-martial procedures in the aftermath of World War II.
Nor was
Page 346 U. S. 141
this a patchwork effort to plug loopholes in the old system of
military justice. The revised Articles and the new Code are the
result of painstaking study; they reflect an effort to reform and
modernize the system -- from top to bottom. [
Footnote 5]
Rigorous provisions guarantee a trial as free as possible from
command influence, the right to prompt arraignment, the right to
counsel of the accused's own choosing, and the right to secure
witnesses and prepare an adequate defense. [
Footnote 6] The revised Articles, and their successor
-- the new Code -- also establish a hierarchy within the military
establishment to review the convictions of courts-martial, to
ferret out irregularities in the trial, and to enforce the
procedural safeguards which Congress determined to guarantee to
those in the Nation's armed services. [
Footnote 7] And, finally, Congress has provided a special
post-conviction remedy within the military establishment, apart
from ordinary appellate review, whereby one convicted by a
court-martial, may attack collaterally the judgment under which he
stands convicted. [
Footnote
8]
Page 346 U. S. 142
The military courts, like the state courts, have the same
responsibilities as do the federal courts to protect a person from
a violation of his constitutional rights. In military habeas corpus
cases, even more than in state habeas corpus cases, it would be in
disregard of the statutory scheme if the federal civil courts
failed to take account of the prior proceedings -- of the fair
determinations of the military tribunals after all military
remedies have been exhausted. Congress has provided that these
determinations are "final" and "binding" upon all courts. [
Footnote 9] We have held before that
this does not displace the civil courts' jurisdiction over an
application for habeas corpus from the military prisoner.
Gusik
v. Schilder, 340 U. S. 128
(1950). But these provisions do mean that, when a military decision
has dealt fully and fairly with an allegation raised in that
application, it is not open to a federal civil court to grant the
writ simply to reevaluate the evidence.
Whelchel v.
McDonald, 340 U. S. 122
(1950).
We turn, then, to this case.
Petitioners' applications, as has been noted, set forth serious
charges -- allegations which, in their cumulative effect, were
sufficient to depict fundamental unfairness in the process whereby
their guilt was determined and their death sentences rendered. Had
the military courts manifestly refused to consider those claims,
the District Court was empowered to review them
de novo.
For the constitutional guarantee of due process is meaningful
enough, and sufficiently adaptable, to protect soldiers -- as well
as civilians -- from the crude injustices of a trial so conducted
that it becomes bent on fixing guilt by dispensing with rudimentary
fairness, rather than finding
Page 346 U. S. 143
truth through adherence to those basic guarantees which have
long been recognized and honored by the military courts as well as
the civil courts.
Petitioners asserted: they had been arrested and confined
incommunicado by officers of the military government of
Guam; they were mistreated and subjected to continuous questioning
without being informed of their rights; petitioner Dennis finally
confessed, after police officers confronted him with the confession
of Calvin Dennis -- an alleged accomplice in the crime; after a
period of about three weeks of this confinement, the petitioners
were turned over to the Air Force; the military authorities
"planted" real evidence -- the victim's smock with hairs from
petitioners' body attached -- in a truck which petitioners had
driven on the night of the crime; they further sought to "contrive"
a conviction by coercing various witnesses to testify against
petitioners; both petitioners were denied the benefit of counsel
until a short while before trial, and petitioner Dennis was denied
representation of his choice when counsel he sought was removed
from the case by the commanding officer of his unit; the trial was
conducted in an atmosphere of "hysteria" because the crime had been
particularly brutal and the authorities had "created" a demand for
vengeance; the "coerced" confessions were admitted at the trial and
so was the incriminating confession of Calvin Dennis -- which had
been procured by threats and deceit. [
Footnote 10]
Answering the habeas corpus applications, respondents denied
that there had been any violation of petitioners'
Page 346 U. S. 144
rights and attached to their answer copies of the record of each
trial, the review of the Staff Judge Advocate, the decision of the
Board of Review in the office of the Judge Advocate General, the
decision (after briefs and oral argument) of the Judicial Council
in the Judge Advocate General's office, the recommendation of the
Judge Advocate General, the action of the President confirming the
sentences, and also the decision of the Judge Advocate General
denying petitions for new trials under Article 53 of the Articles
of War.
These records make it plain that the military courts have heard
petitioners out on every significant allegation which they now
urge. Accordingly, it is not the duty of the civil courts simply to
repeat that process -- to reexamine and reweigh each item of
evidence of the occurrence of events which tend to prove or
disprove one of the allegations in the applications for habeas
corpus. It is the limited function of the civil courts to determine
whether the military have given fair consideration to each of these
claims.
Whelchel v. McDonald, supra. We think they
have.
The military reviewing courts scrutinized the trial records
before rejecting petitioners' contentions. In lengthy opinions,
they concluded that petitioners had been accorded a complete
opportunity to establish the authenticity of their allegations, and
had failed. Thus, the trial records were analyzed to show that the
circumstances fully justified the decision to remove Dennis'
original choice of defense counsel; [
Footnote 11] that each petitioner had
Page 346 U. S. 145
declared at the beginning of his trial that he was ready to
proceed; that each was ably represented; that the trials proceeded
in an orderly fashion -- with that calm degree of dispassion
essential to a fair hearing on the question of guilt; that there
was exhaustive inquiry into the background of the confessions --
with the taking of testimony from the persons most concerned with
the making of these statements, including petitioner Dennis, who
elected to take the stand. [
Footnote 12] And, finally, it was demonstrated that the
issues arising from the charges relating to the use of perjured
testimony and planted evidence were either explored or were
available for exploration at the trial. [
Footnote 13]
Page 346 U. S. 146
Petitioners have failed to show that this military review was
legally inadequate to resolve the claims which they have urged upon
the civil courts. They simply demand an opportunity to make a new
record, to prove
de novo in the District Court precisely
the case which they failed to prove in the military courts. We
think, under the circumstances, that due regard for the limitations
on a civil court's power to grant such relief precludes such
action. We think that, although the Court of Appeals may have erred
in reweighing each item of relevant evidence in the trial record,
it certainly did not err in holding that there was no need for a
further hearing in the District Court. Accordingly its judgment
must be
Affirmed.
MR. JUSTICE JACKSON concurs in the result.
[
Footnote 1]
28 U.S.C. § 2241.
See In re Yamashita, 327 U. S.
1,
327 U. S. 8
(1946).
[
Footnote 2]
See Dynes v.
Hoover, 20 How. 65 (1858);
cf. In re
Vidal, 179 U. S. 126,
179 U. S. 129
(1900);
Reaves v. Ainsworth, 219 U.
S. 296 (1911);
Ex parte Quirin, 317 U. S.
1 (1942).
[
Footnote 3]
See, e.g., In re Grimley, 137 U.
S. 147 (1890);
Hiatt v. Brown, 339 U.
S. 103 (1950).
[
Footnote 4]
See 62 Stat. 627 (revised Articles of War), 64 Stat.
107 (the Uniform Code of Military Justice). For history of the
evolution and purpose behind these enactments
see, e.g.,
H.R.Rep.No. 1034, 80th Cong., 1st Sess.; S.Rep.No.1268, 80th Cong.,
2d Sess.; Report of the War Department Advisory Committee on
Military Justice (1946); H.R.Rep.No. 491, 81st Cong., 1st Sess.;
S.Rep.No. 486, 81st Cong., 1st Sess.
[
Footnote 5]
Ibid. See Holtzoff, Administration of Justice
in the United States Army, 22 N.Y.U.L.Q.Rev. 1 (1947); Morgan, The
Background of The Uniform Code of Military Justice, 6 Vand.L.Rev.
169 (1953).
[
Footnote 6]
For provisions to this effect in the revised Articles of War,
see, e.g., 10 U.S.C. (Supp. II) §§ 1482, 1493, 1495, 1542,
1560. For provisions in the Uniform Code of Military Justice,
see, e.g., 50 U.S.C. (Supp. V) §§ 564, 567, 591, 602, 612,
621.
[
Footnote 7]
10 U.S.C. (Supp. II) § 1521. The Uniform Code of Military
Justice established the Court of Military Appeals, which is
composed of civilians. It automatically reviews all capital cases,
and has discretionary jurisdiction over other cases. It is the
highest court in the military system. 50 U.S.C. (Supp. V) § 654.
See Walker and Niebank, bank, The Court of Military
Appeals -- Its History, Organization and Operation, 6 Vand.L.Rev.
228 (1953).
[
Footnote 8]
62 Stat. 639, 10 U.S.C. (Supp. III) § 1525.
See Gusik v.
Schilder, 340 U. S. 128
(1950). This provision was also made a part of the Uniform Code of
Military Justice. 64 Stat. 132, 50 U.S.C. (Supp. V) § 660; 64 Stat.
147, 50 U.S.C. (Supp. V) § 740.
[
Footnote 9]
The revisions of the Articles of War, 10 U.S.C. (Supp. II) §
1521(h), and the Uniform Code of Military Justice, 50 U.S.C. (Supp.
V) § 663, both provided that the decisions of the appellate
military tribunals should be "final," and should be "binding" upon
the courts.
[
Footnote 10]
Petitioners submitted the affidavits of petitioner Dennis, an
Air Force chaplain, a former federal civilian employee on Guam, and
Col. Daly, a former Air Force officer who had been attached to the
Judge Advocate's staff on Guam, and who was, apparently, originally
to have been defense counsel to the accused.
These affidavits tended to back up the general allegations set
forth in the applications for habeas corpus.
[
Footnote 11]
See Hiatt v. Brown, 339 U. S. 103
(1950). Dennis asked to be represented by one Lt. Col. Daly. This
officer, prior to the trial, was charged with serious misconduct
and moral turpitude. When informed of this, Dennis announced his
satisfaction with the "regularly appointed defense counsel." At his
trial, however, Dennis again asked if Daly could assist in his
defense. The court was then fully informed concerning Daly's arrest
and his dubious status, and it sustained the commanding officer's
determination that Daly was not "available" to participate in the
trial. Dennis was represented by another officer, who had been
appointed a full month before. Defense counsel was assisted by two
other legal officers who had also participated in the pretrial
investigation of the case.
[
Footnote 12]
We reject petitioners' contentions that the rule of
McNabb
v. United States, 318 U. S. 332
(1943), renders the confessions inadmissible and requires the civil
courts to hold that the courts-martial were void. The
McNabb rule is a rule of evidence in the federal civil
courts; its source is not "due process of law," but this Court's
power of "supervision of the administration of criminal justice in
the federal courts,"
see 318 U.S. at
318 U. S. 340;
cf. Gallegos v. Nebraska, 342 U. S.
55 (1951); and we have of course no such supervisory
power over the admissibility of evidence in courts-martial.
[
Footnote 13]
The allegations in the applications for habeas corpus relating
to perjured and "planted" evidence were supported by the affidavits
of Col. Daly and Mrs. Hill, the federal civilian employee. But they
were both witnesses for the defense at the Dennis trial, and Daly
was a witness for the prosecution in the Burns trial. Many of the
matters covered in the Daly and Hill affidavits were covered at the
trial; opportunity was available to question each witness about his
or her relationship with the investigation of the case.
Moreover, we note that the Judge Advocate General, during review
of this case under former Article of War 53 (now 50 U.S.C. (Supp.
V) § 740), ordered a special investigation by the office of the
Inspector General of some of the Daly and Hill charges, and
concluded that they were unfounded. This report is not a part of
the record, and we cannot rely upon it to sustain our conclusions,
but we can cite it as an example of the efforts of the military to
resolve and not ignore petitioners' charges.
MR. JUSTICE MINTON, concurring in the affirmance of the
judgment.
I do not agree that the federal civil courts sit to protect the
constitutional rights of military defendants, except to the limited
extent indicated below. Their rights are committed by the
Constitution, [
Footnote 2/1] and by
Congress acting in pursuance thereof, [
Footnote 2/2] to the protection of the military courts,
with review in some instances by the President. Nor do we sit to
review errors of law committed by military courts.
Page 346 U. S. 147
This grant to set up military courts is as distinct as the grant
to set up civil courts. Congress has acted to implement both
grants. Each hierarchy of courts is distinct from the other. We
have no supervisory power over the administration of military
justice, such as we have over civil justice in the federal courts.
Due process of law for military personnel is what Congress has
provided for them in the military hierarchy in courts established
according to law. If the court is thus established, its action is
not reviewable here. Such military court's jurisdiction is
exclusive but for the exceptions contained in the statute, and the
civil courts are not mentioned in the exceptions. 64 Stat. 115, 50
U.S.C. (Supp. V) § 581.
If error is made by the military courts, to which Congress has
committed the protection of the rights of military personnel, that
error must be corrected in the military hierarchy of courts
provided by Congress. We have but one function, namely, to see that
the military court has jurisdiction, not whether it has committed
error in the exercise of that jurisdiction.
The rule was clearly stated in the early case of
In re
Grimley, 137 U. S. 147,
137 U. S. 150,
in these words:
"It cannot be doubted that the civil courts may, in any case,
inquire into the jurisdiction of a court-martial and, if it appears
that the party condemned was not amenable to its jurisdiction, may
discharge him from the sentence. And, on the other hand, it is
equally clear that, by habeas corpus, the civil courts exercise no
supervisory or correcting power over the proceedings of a
court-martial, and that no mere errors in their proceedings are
open to consideration. The single inquiry, the test, is
jurisdiction. . . ."
This case was cited and an excerpt from the above quoted with
approval in
Hiatt v. Brown, 339 U.
S. 103,
339 U. S. 111.
After approving
In re Grimley, we rejected the
Page 346 U. S. 148
broader claim of the respondent for review to determine whether
certain action of the military court had denied him due process of
law, and said:
"In this case, the court-martial had jurisdiction of the person
accused and the offense charged, and acted within its lawful
powers. The correction of any errors it may have committed is for
the military authorities, which are alone authorized to review its
decision. . . ."
With this understanding, I concur in affirming the judgment.
[
Footnote 2/1]
Art. I, § 8, cl. 14.
[
Footnote 2/2]
This particular case comes up under the former Revised Articles
of War, 62 Stat. 627, now supplanted by the Uniform Code of
Military Justice, 64 Stat. 107, 50 U.S.C. (Supp. V) § 551
et
seq.
MR. JUSTICE FRANKFURTER.
This case raises questions of great delicacy and difficulty. On
the one hand is proper regard for habeas corpus, "the great writ of
liberty"; on the other hand, the duty of civil courts to abstain
from intervening in matters constitutionally committed to military
justice. The case comes to us on a division of opinion in the Court
of Appeals. In the interest of enabling indigent litigants to have
the case reviewed in this Court without incurring the enormous cost
of printing, we have required to be brought here only one copy of a
record consisting of a mass of materials in their original form.
Consideration of the case has fallen at the close of the Term.
Obviously it has not been possible for every member of the Court to
examine such a record. In any event, there has not been time for
its consideration by me. An examination of it, however, is
imperative in view of what seem to me to be the essential issues to
be canvassed. I can now only outline the legal issues that are
implicit in the case.
The right to invoke habeas corpus to secure freedom is not to be
confined by any
a priori or technical notions of
"jurisdiction."
See my dissent in
Sunal v. Large,
332 U. S. 174,
332 U. S. 184.
And so, if imprisonment is the result of a
Page 346 U. S. 149
denial of due process, it may be challenged no matter under what
authority of Government it was brought about. Congress itself, in
the exercise of the war power, "is subject to applicable
constitutional limitations."
Hamilton v. Kentucky Distilleries
& Warehouse Co., 251 U. S. 146,
251 U. S. 156.
It is therefore not freed from the requirements of due process of
the Fifth Amendment. But there is no table of weights and measures
for ascertaining what constitutes due process. Indeed, it was
common ground, in the majority and dissenting opinions below, that
due process, in the language of Judge Bazelon, is not "the same in
a military setting as it is in a civil setting." 202 F.2d at
352.
I cannot agree that the only inquiry that is open on an
application for habeas corpus challenging a sentence of a military
tribunal is whether that tribunal was legally constituted and had
jurisdiction, technically speaking, over the person and the crime.
Again, I cannot agree that the scope of inquiry is the same as that
open to us on review of State convictions; the content of due
process in civil trials does not control what is due process in
military trials. Nor is the duty of the civil 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 controversial facts by military appellate courts than to
those reached by the highest court of a State.
In the light of these considerations, I cannot assume the
responsibility, where life is at stake, of concurring in the
judgment of the Court. Equally, however, I would not feel justified
in reversing the judgment. My duty, as I see it, is to resolve the
dilemma by doing neither. It is my view that this is not just a
case involving individuals. Issues of far-reaching import are at
stake which call for further consideration. They were not explored
in all
Page 346 U. S. 150
their significance in the submissions made to the Court. While
this case arose prior to the new Code of Military Justice, 64 Stat.
107, it necessarily will have a strong bearing upon the relations
of the civil courts to the new Court of Military Appeals. The short
of it is that I believe this case should be set down for
reargument.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
The charges which are made concerning the confessions exacted
from these accused are quite lurid. But the basic, undisputed
facts, though not dramatic, leave the clear impression that one of
the petitioners was held
incommunicado and repeatedly
examined over a 5-day period until he confessed.
Herman Dennis. -- On January 7, 1949, Herman Dennis was
taken into custody by the civil authorities. (At this time, Guam
was under a government supervised by the Navy.) He was asked or
told to give consent to take a lie detector test. He was given the
test and thereafter confined. Instructions were issued that he was
to talk to no one except the two investigators, one the Assistant
Chief of Police of Guam and the other a member of the Berkeley,
California, police department who had been called in to assist in
the solution of the crime. Dennis was questioned intermittently by
these two officers from Friday, January 7, until Tuesday, January
11. On the latter date, he was informed that his "half-brother,"
Calvin Dennis, had confessed. He refused to believe it. Calvin was
brought before him and asked if he had confessed. Calvin answered
"yes," and was immediately taken away.
During the evening of January 11, Herman agreed to confess, and
executed two hand-written notes. The investigators left him alone
at about midnight. The next
Page 346 U. S. 151
morning, he was taken to an office, and, in the presence of
several officers, he made a confession which was typed and signed
by Herman on each page. He made another such statement the next
day, January 13, 1949. Later, he repudiated all his
confessions.
He was taken before a magistrate on January 17, 1949, and turned
over to the military authorities on January 29, 1949. He was
formally charged with rape and murder on February 1, 1949, and
tried by general court-martial from May 9 to May 16, 1949. The
confessions were introduced over objection by the defense. Herman
took the stand and testified that they were involuntary and
untruthful. The trial resulted in conviction and sentence of
death.
Robert Burns. -- This defendant was taken into custody
by the civil authorities on January 7, 1949. He was turned over to
the military on January 30, 1949. He did not confess. He was
formally charged with rape and murder on February 20, 1949, and was
tried by general court-martial from May 27, 1949 to May 30, 1949.
Calvin Dennis testified against him. It appears that Calvin had
previously been tried and convicted of the same crimes, and
sentenced to death. His sentence was later commuted to life
imprisonment by the President.
Those are the undisputed facts concerning the confessions.
The role of Calvin Dennis is not too clear, and he is not a
petitioner here. But it appears that he was arrested at the same
time as the others and confessed some time between Friday, January
7, and Tuesday, January 11. His affidavit attached to the petition
below alleges that he was beaten and forced to confess, and that
the authorities promised him money and a light sentence if he would
implicate the others. He says that his testimony at the Burns trial
was false, and given under duress. Both he and Herman now state
that they are not half-brothers, and are in fact in no way
related.
Page 346 U. S. 152
I think petitioners are entitled to a judicial hearing on the
circumstances surrounding their confessions.
Congress has power by Art. I, § 8, cl. 14 of the Constitution
"To make Rules for the Government and Regulation of the land and
naval Forces." The rules which Congress has made relative to trials
for offenses by military personnel are contained in the Uniform
Code of Military Justice. 64 Stat. 108, 50 U.S.C. § 551
et
seq. Those rules do not provide for judicial review. But it is
clear from our decisions that habeas corpus may be used to review
some aspects of a military trial.
The question whether the military tribunal has exceeded the
powers granted it by Congress may be tested by habeas corpus.
See Hiatt v. Brown, 339 U. S. 103;
Whelchel v. McDonald, 340 U. S. 122;
Gusik v. Schilder, 340 U. S. 128. But
it is also clear that that review is not limited to questions of
"jurisdiction" in the historic sense.
Of course, the military tribunals are not governed by the
procedure for trials prescribed in the Fifth and Sixth Amendments.
That is the meaning of
Ex parte Quirin, 317 U. S.
1, holding that indictment by grand jury and trial by
jury are not constitutional requirements for trials before military
commissions. Nor do the courts sit in review of the weight of the
evidence before the military tribunal.
Whelchel v. McDonald,
supra, at
340 U. S. 124.
But never have we held that all the rights covered by the Fifth and
the Sixth Amendments were abrogated by Art. I, § 8, cl. 14 of the
Constitution, empowering Congress to make rules for the armed
forces. I think it plain from the text of the Fifth Amendment that
that position is untenable. The Fifth Amendment provides:
"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia,
Page 346 U. S. 153
when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation."
What reason is there for making one specific exception for cases
arising in the land or naval forces or in the militia if none of
the Fifth Amendment is applicable to military trials? Since the
requirement for indictment before trial is the only provision of
the Fifth Amendment made inapplicable to military trials, it seems
to me clear that the other relevant requirements of the Fifth
Amendment (including the ban on coerced confessions) are applicable
to them. And if the ban on coerced confessions is applicable, how
can it mean one thing in civil trials and another in military
trials?
The prohibition against double jeopardy is one of those
provisions. And, consistently with the construction I urge, we held
in
Wade v. Hunter, 336 U. S. 684,
336 U. S. 690,
that court-martial action was subject to that requirement of the
Fifth Amendment. The mandates that no person be compelled to be a
witness against himself or be deprived of life or liberty without
due process of law are as specific and as clear. They too, as the
Court of Appeals held, are constitutional requirements binding on
military tribunals.
If a prisoner is coerced by torture or other methods to give the
evidence against him, if he is beaten or slowly "broken" by
third-degree methods, then the "trial" before the military tribunal
becomes an empty ritual. The real trial takes place in secret,
where the accused, without benefit of counsel, succumbs to physical
or psychological pressures. A soldier or sailor convicted in that
manner has
Page 346 U. S. 154
been denied due process of law; and, like the accused in
criminal cases,
see Moore v. Dempsey, 261 U. S.
86;
Johnson v. Zerbst, 304 U.
S. 458;
Walker v. Johnston, 312 U.
S. 275;
Pyle v. Kansas, 317 U.
S. 213;
Von Moltke v. Gillies, 332 U.
S. 708, he should have relief by way of habeas
corpus.
The opinion of the Court is not necessarily opposed to this
view. But the Court gives binding effect to the ruling of the
military tribunal on the constitutional question, provided it has
given fair consideration to it.
If the military agency has fairly and conscientiously applied
the standards of due process formulated by this Court, I would
agree that a rehash of the same facts by a federal court would not
advance the cause of justice. But, where the military reviewing
agency has not done that, a court should entertain the petition for
habeas corpus. In the first place, the military tribunals in
question are federal agencies subject to no other judicial
supervision except what is afforded by the federal courts. In the
second place, the rules of due process which they apply are
constitutional rules which we, not they, formulate.
The undisputed facts in this case make a
prima facie
case that our rule on coerced confessions expressed in
Watts v.
Indiana, 338 U. S. 49, was
violated here. No court has considered the question whether
repetitious questioning over a period of 5 days while the accused
was held
incommunicado without benefit of counsel violated
the Fifth Amendment. The highest reviewing officer, the Judge
Advocate General of the Air Force, said only this:
"After reading and re-reading the record of trial, there is no
reasonable doubt in my mind that all the confessions were wholly
voluntary, as the court decided, and were properly admitted. Where
the evidence as to whether there was coercion is conflicting,
Page 346 U. S. 155
or where different inferences may fairly be drawn from the
admitted facts, the question whether a confession was voluntary is
for the triers of the facts (
Lyons v. Oklahoma,
322 U. S.
596;
Lisenba v. California, 314 U. S.
219). Thus, the court's decision on the voluntary nature
of the testimony, arrived at from first-hand hearing and
observation, is presumptively correct, and will not be disturbed
unless manifestly erroneous (
MGM Corporation v. Fear, 104
F.2d 892; ACM 3597, Maddle, 4 Court-Martial Reports [AF] 573)."
There has been at no time any considered appraisal of the facts
surrounding these confessions in light of our opinions. Before
these men go to their death, such an appraisal should be made.