Page 346 U. S. 845
1. The first case in this Court involving the collateral attack
by habeas corpus on the judgment of a court-martial was
Ex
parte Reed, 100 U. S. 13. Here
is the test there laid down, 100 U.S. at
100 U. S.
23:
"The court had jurisdiction over the person and the case. It is
the organism provided by law and clothed with the duty of
administering justice in this class of cases. Having had such
jurisdiction, its proceedings cannot be collaterally impeached for
any mere error or irregularity, if there were such, committed
within the sphere of its authority. Its judgments, when approved as
required, rest on the same basis and are surrounded by the same
considerations which gave conclusiveness to the judgments of other
legal tribunals, including as well the lowest as the highest, under
like circumstances. The exercise of discretion, within authorized
limits, cannot be assigned for error and made the subject of review
by an appellate court."
It was thus clearly stated that the standard for collateral
consideration of judgments of courts-martial is the same as that
applied on collateral consideration of judgments of other
tribunals. Once "jurisdiction" is shown to exist, the inquiry ends;
the question is not whether that jurisdiction was well or wisely
exercised, or whether error was committed; it is only whether there
was power to act at all.
This was always the traditional scope of inquiry when the
judgment sought to be examined on habeas corpus was that of a
federal or territorial or District of Columbia court.
E.g.,
Matter of Moran, 203 U. S. 96
(Oklahoma territorial court; opinion by Holmes, J.);
Harlan v.
McGourin, 218 U. S. 442,
218 U. S. 448
(U.S. circuit court; opinion by Day, J.);
Matter of
Gregory, 219 U. S. 210
(District of Columbia court; opinion by Hughes, J., with copious
citation of authority).
Page 346 U. S. 846
And so, in the earlier cases scrutinizing military sentences by
habeas corpus, it was similarly laid down that "The single inquiry,
the test, is jurisdiction."
In re Grimley, 137 U.
S. 147,
137 U. S.
150.
"Courts-martial are lawful tribunals, with authority to finally
determine any case over which they have jurisdiction, and their
proceedings, when confirmed as provided, are not open to review by
the civil tribunals except for the purpose of ascertaining whether
the military court had jurisdiction of the person and subject
matter and whether, though having such jurisdiction, it had
exceeded its powers in the sentence pronounced."
Carter v. Roberts, 177 U. S. 496,
177 U. S. 498;
Carter v. McClaughry, 183 U. S. 365,
183 U. S.
380-381;
Grafton v. United States, 206 U.
S. 333,
206 U. S.
347-348. Allegations of irregularity or illegality in
the composition of courts-martial were, of course, rigorously
scrutinized,
e.g., McClaughry v. Deming, 186 U. S.
49;
cf. Kahn v. Anderson, 255 U. S.
1; but, apart from this obvious amenability to judicial
inquiry, the judgment of a court-martial meeting the test above
quoted was unassailable even by the most extreme allegations of
prejudice, unfairness, and use of perjured testimony.
See
Carter v. Woodring, 67 App.D.C. 393, 92 F.2d 544.
Thus, up to December 6, 1937, when the Court denied certiorari,
302 U. S. 752, in
the case last cited -- it was the last of Oberlin Carter's long
series of attempts at judicial review of his court-martial -- the
scope of habeas corpus in both military and civil cases was equally
narrow: in both classes of cases, it was limited solely to
questions going to the "jurisdiction" of the sentencing court.
2. Later in the 1937 Term,
Johnson v. Zerbst,
304 U. S. 458, was
decided and blazed a new trial. it was held that procedural errors
-- what theretofore were deemed matters not going to the defined
constitution of the tribunal acting
Page 346 U. S. 847
within the scope of its power over subject matter and persons --
may be inquired into collaterally on habeas corpus if they amounted
to a deprivation of constitutional right. By giving a new content
to "jurisdiction," the case was brought within the formula that
only "jurisdiction" may be the subject of inquiry in habeas corpus.
The judgment successfully assailed in that case was one entered in
a United States District Court. Since 1938, the basic premise of
Johnson v. Zerbst has been neither questioned nor limited
in any instance involving collateral attack, by way of habeas
corpus, on judgments of conviction entered by a civil court.
3. The effect of
Johnson v. Zerbst on judgments of
conviction pronounced by a court-martial first appears to have been
considered in
Shapiro v. United States, 107 Ct.Cl. 650, 69
F. Supp. 205. There, the Court of Claims applied
Johnson v.
Zerbst to invalidate a conviction by an otherwise properly
constituted court-martial on the ground that the unreasonably short
time permitted the accused to prepare his defense deprived him of
the effective assistance of counsel in violation of the Sixth
Amendment. The court-martial was held to have lost "jurisdiction"
to proceed. For purposes of the pending Petition for Rehearing and
our responsibility for adequate consideration of the issues, it is
pertinent that the
Shapiro case was not cited to us in any
of the briefs in the present case.
Later decisions in the Court of Claims, where, of course,
collateral attack is by way of a petition for backpay resting on
allegations that the assailed court martial proceedings were void,
have followed the rationale of the
Shapiro case. Thus, in
Sima v. United States, 119 Ct.Cl. 405, 406, 96 F. Supp.
932, 938 the court said:
"From the entire record in this case, we cannot say that
plaintiff was deprived of his rights under the Fifth and Sixth
Page 346 U. S. 848
Amendments to the Constitution of the United States to the
extent that the verdict of the court-martial was void."
And in
Fly v. United States, 120 Ct.Cl. 482, 100 F.
Supp. 440, 442, 498:
"Only when the errors committed are so gross as to amount to a
denial of due process does the erring court martial lose its
jurisdiction and its power to issue a valid decree.
Compare
Sima v. United States with Shapiro v. United States, both
supra."
4. This Court has never considered the applicability of
Johnson v. Zerbst to military habeas corpus cases. But, if
denial of the right to counsel makes a civil body legally
nonexistent,
i.e., without "jurisdiction," so as to
authorize habeas corpus, by what process of reasoning can a
military body denying such right to counsel fail to be equally
nonexistent, legally speaking,
i.e., without
"jurisdiction," so as to authorize habeas corpus? Again, if a
denial of due process deprives a civil body of "jurisdiction," is
not a military body equally without "jurisdiction" when it makes
such a denial, whatever the requirements of due process in the
particular circumstances may be?
It is true that, in
Hiatt v. Brown, 339 U.
S. 103, the traditional older rule on military habeas
corpus was restated and applied, and that we there disapproved the
tendency of some of the lower federal courts to review
court-martial records collaterally, as if the habeas corpus court
were a statutory agency of direct military appellate review in the
Judge Advocate General's office,
e.g., Hicks v.
Hiatt, 64 F. Supp.
238. But the present problem was never suggested and never
considered by us. Neither the Government's petition for certiorari
nor its briefs cited
Johnson v. Zerbst, and the respondent
argued the point only inferentially until after the case went
against him. The case cannot be deemed authority for an important
point not discussed or considered. But assuredly
Hiatt v.
Brown does not sustain the proposition for which it was cited
in this case, 346 U.S. at
346 U. S. 139,
that,
Page 346 U. S. 849
"in military habeas corpus, the inquiry, the scope of matters
open for review, has always been more narrow than in civil cases."
[
Footnote 1]
5. In coming to this conclusion, the main opinion purported to
derive some comfort from the "finality" provision of the 1948
Articles of War and of the Uniform Code of Military Justice, AW
50(h), 10 U.S.C. (Supp. II) § 1521(h); UCMJ, art. 76, 50 U.S.C.
(Supp. V) § 663, both of which state in terms that court-martial
proceedings, once appellate review is completed, "shall be binding
upon all departments, courts, agencies, and offices of the United
States." But the decision in
Estep v. United States,
327 U. S. 114,
should serve as a caution against applying provisions of "finality"
in legislation as though we were dealing with words in a
dictionary, rather than
Page 346 U. S. 850
statutory directions, to be interpreted in the light of
juridical considerations. The legislative history of the Uniform
Code of Military Justice strongly suggests that it was precisely in
the realm of collateral judicial attack on courts-martial that the
concept of "finality" was intended not to operate. Here is what
both Armed Services Committees said of Article 76, UCMJ:
"This article is derived from AW 50(h), and is modified to
conform to terminology used in this code. Subject only to a
petition for a writ of habeas corpus in Federal court, it provides
for the finality of court-martial proceedings and judgments."
H.R.Rep. No. 491, 81st Cong., 1st Sess., p. 35; S.Rep. No. 486,
81st Cong., 1st Sess., p. 32. I have added the italics to emphasize
the congressional agreement with our decision on the same point in
Gusik v. Schilder, 340 U. S. 128,
340 U. S.
132-133. If that case and the Committee Reports have any
meaning at all, they mean that the "finality" provision is
completely irrelevant to any consideration concerning the proper
scope of inquiry in military habeas corpus cases. [
Footnote 2]
6. It is desirable to emphasize that I express no opinion
whatever on whether the allegations of the petition in the case at
bar are sufficient to sustain a collateral attack on the
court-martial's judgment of conviction. Nor do I express any
opinion on the weight which should be given by the federal district
court on habeas corpus to the findings of the military reviewing
authorities. These are
Page 346 U. S. 851
matters to be canvassed on the reargument. The issue here is
whether the rationale of
Johnson v. Zerbst is now to be
quietly discarded, or whether it will be appropriately applied, as
it has been by the lower courts, in the military sphere. I do not
think it is asking too much to insist that we have well focused
argument and careful deliberation before enunciating the principle
that a conviction by a constitutional court which lacked due
process is open to attack by habeas corpus, while an identically
defective conviction when rendered by an
ad hoc military
tribunal is invulnerable. [
Footnote
3]
Second. There is another issue of broad importance
which underlies this case, but which has not been considered by the
Court.
Both petitioners, alleging confinement in Japan (R. 1, 9) and
American citizenship (
id.), sought habeas corpus in the
District of Columbia.
Thus there is raised squarely the question, thus far reserved by
us,
Ahrens v. Clark, 335 U. S. 188,
335 U. S. 192,
note 4;
Johnson v. Eisentrager, 339 U.
S. 763,
339 U. S.
790-791, whether an American citizen detained by federal
officers outside of any federal judicial district may maintain
habeas corpus directed against the official superior of the
officers actually having him in custody.
This question was originally answered squarely in the negative
by the highest court of the District of Columbia.
McGowan v.
Moody, 22 App.D.C. 148 (detention on Guam, writ sought to be
directed against the Secretary of the Navy). That precedent was
followed as late as 1948 without question.
Ex parte
Flick, 76 F. Supp.
979,
rev'd on other grounds sub nom. Flick v. Johnson,
85 U.S.App.D.C. 70, 174 F.2d 983. It may have been, and probably
was, overruled by
Eisentrager v.
Page 346 U. S. 852
Forrestal, 84 U.S.App.D.C. 396, 174 F.2d 961, which we,
in turn, reversed for other reasons in
Johnson v. Eisentrager,
supra.
Petitioners have not discussed the question of jurisdiction, and
the Government appears disinclined to argue it.
We should not permit a question of jurisdiction as far-reaching
as this one to go by concession, or decide it
sub
silentio. I express no view on how we should determine the
issue, or on what grounds, but I think that we should frankly face
it, even at the risk of concluding that a legislative remedy is
necessary.
Cf. Wolfson, Americans Abroad and Habeas
Corpus, 9 Fed.Bar J. 142, 10
id. at 69. It is particularly
important that we do so at this time when thousands of our citizens
in uniform are serving overseas.
[
Footnote 1]
The direction of the opinion may well have been influenced by
the following assumption regarding this Court's relation to
military law:
"This Court has played no role in [the development of military
law]; we have exerted no supervisory power over the courts which
enforce it. . . ."
346 U.S. at
346 U. S. 140.
Of course, it is true that we have no direct appellate jurisdiction
over military courts. But it disregards both history and the
statute books to say that our decisions have played no role in the
development of military law. The pages of Winthrop are witness to
the extent that the "Blackstone of American military law" (as
General Crowder, Judge Advocate General of the Army from 1911 to
1923, called him) considered himself bound by this Court's
pronouncements. Since 1920, Article of War 38, 10 U.S.C. (1926-1946
eds.) § 1509, has provided that the "modes of proof" in
courts-martial cases shall conform as nearly as practicable to the
rules of evidence applicable to criminal cases in the United States
district courts. Those rules, of course, are prescribed by this
Court. In 1948, this language was expanded to include "principles
of law," as well as rules of evidence, 10 U.S.C. (Supp. II) § 1509,
and our decisions have been frequently cited by the military, as
indeed they were in this very case. The same broad language is now
in Art. 36, UCMJ, 50 U.S.C. § 611, and the judges of the U.S. Court
of Military Appeals apparently consider themselves bound by what we
say.
See Brosman, The Court: Freer Than Most, 6
Vand.L.Rev. 166, 167.
[
Footnote 2]
It is noteworthy, though it was not referred to in the briefs,
that, as a matter of administrative recognition, this "finality"
provision has not been read with dictionary literalness.
See 41 Op.Atty.Gen., No. 8, Dec. 29, 1949, which holds
that AW 50(h) of 1948 -- the very provision involved in the present
case -- did not bar the reopening of a record of conviction by
court-martial by a Departmental Board for the Correction of Records
functioning pursuant to § 207 of the Legislative Reorganization
Act, 5 U.S.C. §§ 191a, 275. The action of those boards required
approval by the Secretary concerned.
[
Footnote 3]
I say "
ad hoc" not in any derogatory sense, but merely
to put the matter in its proper setting.
See Winthrop,
Military Law and Precedents (2d ed. 1896) *54.