Burns v. Lovett

• Decision Date: 31 July 1952
• Docket Number: 11420.,No. 11419,11419
• Citation: 202 F.2d 335
• Parties: BURNS v. LOVETT, Secretary of Defense, et al. DENNIS v. LOVETT, Secretary of Defense, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

202 F.2d 335 (1952)

BURNS v. LOVETT, Secretary of Defense, et al.

DENNIS v. LOVETT, Secretary of Defense, et al.

Nos. 11419, 11420.

United States Court of Appeals District of Columbia Circuit.

Argued June 18, 1952.

Decided July 31, 1952.

Writ of Certiorari Granted December 15, 1952.

COPYRIGHT MATERIAL OMITTED

Robert L. Carter, New York City, pro hac vice, by special leave of Court, and Frank D. Reeves, for appellants.

Lieutenant Colonel Walter Kiechel, Jr., Office of the Judge Advocate General, United States Air Force, and Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., with whom Charles M. Irelan, U. S. Atty., and B. M. Landesman, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellees.

Before PRETTYMAN, PROCTOR and BAZELON, Circuit Judges.

Writ of Certiorari Granted December 15, 1952. See 73 S.Ct. 284.

PRETTYMAN, Circuit Judge.

These are appeals from denials by the District Court of petitions for writs of habeas corpus. Appellants were members of American armed forces on the Island of Guam. They were convicted by courts-martial of murder and rape and were sentenced to death. The convictions and sentences having been approved by the reviewing authorities, including the President, they filed petitions for habeas corpus. The records of the trials by the courts-martial were filed by petitioners at the same time with the court. Attached to the petitions were several affidavits and extracts from the penal code of Guam. The court issued rules to show cause, and the respondent officials filed motions to dismiss the petitions and to discharge the rules, attaching to those motions copies of the findings and opinions of the several reviewing authorities. The court held that the petitions did not recite facts upon which the relief sought could be granted and therefore discharged the rules and dismissed the petitions. In this court the cases were consolidated for hearing and decision. Appellants are presently confined in the custody of Headquarters of the Japan Logistical Command.

A civilian girl Government employee at a store on the Island of Guam was brutally raped and murdered. In the course of the ensuing investigation lie detector tests were given, upon their consent, to many members of the American armed forces in the vicinity. What transpired at these tests is not reported in the papers before us, but immediately thereafter certain physical evidence was uncovered and three soldiers, these appellants and one Calvin Dennis, were taken into custody and delivered to the civil authorities of Guam, who were American naval officers and men. They were detained in this custody from January 7, 1949, to January 30, 1949, when they were delivered to the military authorities. They were tried separately, the trials of appellants being May 9-16 and May 26-30. Several alleged confessions of Herman Dennis were presented at his trial. Calvin Dennis was the principal witness for the prosecution at the trial of Burns. Other testimony and physical evidence of various sorts were presented. The convictions were reviewed by the Board of Review in the Office of the Judge Advocate General, United States Air Force, and by the Judicial Council, both of which rendered long, written opinions. The records and extensive correspondence relating to the cases were reviewed by the Judge Advocate General, United States Air Force, and he wrote memoranda of his conclusions to the Secretary of the Air Force. Thereafter the President confirmed the sentences. The executions were stayed pending these proceedings.

The controversy presents a problem of jurisdiction. The question is whether the allegations of the petitions, viewed in the light of the accompanying data and of the returns to the rules,¹ are sufficient to invoke the jurisdiction of the court and to require a hearing on the merits.

Our first inquiry concerns the authority of courts to review courts-martial. The Constitution, in Article I, Section 8, Clause 14, confers upon the Congress power "To make Rules for the Government and Regulation of the land and naval Forces". Congress has done so. Those rules relating to trials for offenses were the Articles of War,² now superseded by the Uniform Code of Military Justice.³ They provide for trial procedure and review procedure.⁴ This power of the Congress and the judicial power, both established by the Constitution, are separate powers.⁵ Based upon the constitutional power of the Congress over the armed forces, the courts have held uniformly, from the earliest time down to a decision as late as 1950, that the power of courts is limited to a consideration of the "jurisdiction" of courts-martial, and they have no power of review.⁶ In the Yamashita case⁷ the Supreme Court said:

"If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions."

And in Hiatt v. Brown⁸ the Court said:

"It is well settled that `by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial * * * The single inquiry, the test, is jurisdiction.\' In re Grimley, 137 U.S. 147, 150 11 S.Ct. 54, 34 L.Ed. 636 (1890). 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."

Appellants say that recent decisions of the Supreme Court have expanded the concept of "jurisdiction" for purposes of determining the right to habeas corpus. That is correct. In Whelchel v. McDonald⁹ the Court clearly intimated, if it did not expressly say, that a denial to an accused of an opportunity to tender an issue of insanity would go to the question of the jurisdiction of a court-martial. Habeas corpus has been held to lie in criminal cases in the courts where there has been a denial of counsel,¹⁰ a coerced plea of guilty,¹¹ a deliberate suppression of favorable evidence,¹² mob hysteria,¹³ double jeopardy.¹⁴ We recently reviewed the problem in Smith v. United States.¹⁵

The Supreme Court seemed, in Hiatt v. Brown, supra, to revert to earlier concepts of jurisdiction in considering the power of courts over courts-martial. It cited In re Grimley. At the same time it used the expression "acted within its lawful powers." That expression seems to imply a scope of review broader than a technical "jurisdiction".

In its brief the Government contented itself with support of its ultimate conclusion, without attempting to establish premises, but in oral argument its counsel took the position that persons in the armed forces are not protected by the due process clause. For that position he relied upon Johnson v. Eisentrager.¹⁶ It is true that in the opinion in that case the Supreme Court said, "American citizens conscripted into the military service are thereby stripped of their Fifth Amendment rights * * *."¹⁷ There are also several expressions in Ex parte Quirin¹⁸ which seem to imply that the exception of "cases arising in the land or naval forces" applies to the whole of both the Fifth and the Sixth Amendments. There is also the sweeping statement, "We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission * * *."¹⁹ In the opinion of Chief Justice Chase in Ex parte Milligan²⁰ is the statement, "We think, therefore, that the power of Congress in the government of the land and naval forces and of the militia, is not at all affected by the fifth or any other amendment." Again there is a sweeping statement by the Court of Appeals for the Second Circuit that "The Fifth and Sixth Amendments are, of course, inapplicable to a court-martial. Ex parte Quirin et al., supra."²¹

But we think those expressions must be read in context. The Eisentrager case concerned enemy aliens. In the expression quoted, the Court cited Wade v. Hunter,²² which concerned double jeopardy, itself a Fifth Amendment protection, in court-martial proceedings. In that case (Wade v. Hunter) the Court recited the rule of the Perez case,²³ applicable to federal courts upon the discontinuing of criminal trials once begun, and then said:

"We see no reason why the same broad test should not be applied in deciding whether court-martial action runs counter to the Fifth Amendment\'s provision against double jeopardy. Measured by the Perez rule to which we adhere, petitioner\'s second court-martial trial was not the kind of double jeopardy within the intent of the Fifth Amendment."²⁴

In the Quirin case, supra, the Court was discussing the right of trial by jury and indictment by grand jury. The indictment clause of the Fifth Amendment contains a specific exception of "cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger". And, as to trial by jury, the Court held, in an extended discussion, that the Sixth Amendment protection of this right does not extend to cases not subject to such trials at the common law. It seems to us that the language and thought in Quirin was directed to whether the rights there involved (indictment and trial by jury) were discretionary under the power conferred upon the Congress by Article I or were within the requirements of the Fifth and Sixth Amendments. We do not read the case as holding that all the rights covered by the Amendments, including the right of due process of law, were abrogated by the clause empowering Congress to make rules for the armed forces.

In Ex parte Milligan, supra, the Court was dealing with a civilian, and the quoted observation of the Chief Justice was...