Application by military prisoner for release on bail pending
determination on merits of habeas corpus petition filed in District
Court is granted. Although bail had been denied by the lower court
and the Circuit Justice, referral to the full Court is not
immediately possible, since the Court is in recess and the Justices
are widely scattered. There are substantial problems of whether
Article 134 of the Uniform Code of Military Justice, which,
applicant had been convicted of violating,
satisfies the standards of vagueness required by due process, and
of First Amendment rights. While applicant's sentence will expire
shortly, a live controversy will continue, and applicant should be
released on bail until the full Court can pass on the
MR. JUSTICE DOUGLAS.
Applicant has been sentenced to three years' imprisonment after
conviction of one charge each for violating Articles 90, 133, and
134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 890, 933,
934. He has exhausted all of his military remedies, and has now
filed a petition for a writ of habeas corpus in the District Court
for the Middle District of Pennsylvania. He seeks release on bail
pending determination of the merits. The District Court, the Court
of Appeals, and the Circuit Justice, MR. JUSTICE BRENNAN, have each
denied bail. This application to me therefore carries a special
burden, for we very seldom grant an order that has been denied
Page 396 U. S. 1205
by the Circuit Justice. Indeed, the practice is to refer such
renewed application to the full Conference of this Court. We are
now in recess, and widely scattered; hence, referral to the
Conference is not immediately possible.
Some of the problems tendered seem substantial to me. One charge
on which applicant stands convicted rests on Article 134, which
makes a crime "all disorders and neglects to the prejudice of good
order and discipline in the armed forces." In O'C'allahan v.
Parker, 395 U. S. 258
which the lower courts did not have before them when they denied
bail, we reserved decision on whether Article 134 satisfies the
standards of vagueness required by due process. Apart from the
question of vagueness is the question of First Amendment rights.
While in the Armed services, applicant spoke out against the war in
Vietnam. The extent to which First Amendment rights available to
civilians are not available to servicemen is a new and pressing
It is true that applicant's sentence will expire on August 14,
1969. But, in light of Carafas v. LaVallee, 391 U.
, I would not think that the running of the
sentence would moot the petition for habeas corpus. A live
controversy will continue, and I have concluded that this applicant
should be released on bail until the full Court can pass on the
application. For, in my view, substantial issues are presented on
The applicant, Howard B. Levy, is hereby ordered admitted to
bail pending final determination of this application by the full
Court when it convenes October 6, 1969.
Bail is hereby fixed in the following amount: $1,000.
Ordered this the 2d day of August, 1969.