Petition for Writ of Certiorari — United States Ex Rel. Toth v. Quarles

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LIBRARY Tae ci tarts

Mee ase

SUPREME COURT, U.S. Otfice Sapraeme Coart, U. S.

a} 7 PID De

Ae 8 | AROLD &. WILEY, Clerk

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Supreme Court of the Cinited eine mae

ou. Ocronen Tena, Lape :

—_—_-—--—- —.

UWrrep St \TES. ol \ATERICA EX. REL AUDIES M. Torn,

Petitioner -

| aa , ° V8, .

Haroun. E. Tavnort, Secretary of the United States.

Air Force, Re sponde nt-

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT: OF ©

_ COLUMBIA CIRCUIT

ee ae ee ee

aes CHanies V. Koons : :

Wirnias. A. Kenor, Jr. : >

1331 G Street, NW.

Washington 5, D.C.

-Attorneys for Petifionrer..

Of Counsel: :

Joun J.. MeGratu

Perer FL FLanerty.

Josepn H: Ree

JaAMEs F. Smit:

_-L. Par McGratu rete | ;

Grant Building Re 3 B | anes

Pittsburgh, Pa. :

ayy .

Parga or Byron S. Anpams, Waserncron, D.C.

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PNDTN

3 Page

Petition for writ of certiorari ....... binge ore ark ae

Opinions below 22.2.2... RS Rega h Aes eS [saeke sis om

: Jurisdiction | Pa ro cae oer. e rane are aes a ee ae

Questions prese uted peewee wives iveeaener cian 2:

: Statutes involved ee ee ek ee teis ots ee eases ae

eeeeG WE TU ORO Co. os kt coceerdivc... 4

Reasons for. the allowance of the Se, pene soe ‘é

4 ‘onclusion Fide hata ees ee Ue IN we i4

TABLE OF CASES CITED” sins

Buri... v. Wilsen, 546 U.S. 139 (195: 3) oon Ug erry ee 9

ee: ce Milligan, 71 U.S. (4 W ali) 2 (1866) ...... Pee

- Marbury v, Madison, 1 Craneh 137 2.2.2.0... Gauss 12°

Muskrat y. United States, 219 U.S. 346 (1970) 2.2... Mae,

Noble v. Unign River Logging R. Co., 147 U.S..465 °°

(RRR oc ea og io os SF ee Sel

‘Stoll v. Gottlieb, 305 LS. 465 (i908) Sarat Rt Bee ar ae

Toth v. Talbott, 113 Ff. Supp. 330 (D.CLD.C. 195: )

~ Toth v. Talbott, 114 F. —, 468 (D.C DAC, 1953 ). ev .-

United States v. Grimley, 1387 ,.S..147 (1890) 02... 9 |

“Wise v es TU. S. (3 G ranch) S31 (1806) .. Anas

TEXTBOOKS .

; Military Law’ and Precedent, Winthrop, Gov't Print-

ing Office (2d ed. 1920) .. Re Pn COIR pda alice ate Pe te

Paige ree CONSTITUTION |

Article J, Section 8, Ce ee Aka wks ce ek enea en cis au’ ae

‘Article I, Section 8, ¢ ‘L RETR Rereg ong Ghia Peer re Rie

Fourth Amendment’ ...... | OPE ae ye ane alent eS:

Fifth Amendment ............... Perera ok 5 Oe

Sixth Amendment Ndi a eesen sein eeee xs b's pence gee

<br | STATUTES

Aet of Jane 25, 1948, C. 646, 62 Stat. 928, 28 U.S.C:

Ds ik Shs Tike Fakes aoe ak cae er A ae 3

- Act of ‘May 5 5, 1950, C. 169, 64 Stat. 108, 90 U BC A.

$ 551 ef seq. (U niforin Code of . Military Justice )

: 4, 7, 10,11 .

Supreme Court i the Bnited States

QcToBer TERM, 1953 -

“No.

U NITED | States OF AMERICA EX. REL. Aut DREY M. Torn,

Petitioner ’ | pe ais i

¥S.°

HaroLyp K. Taisber, ; Secretary of the United States

- Air Foree, say eaceand |

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

- STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

= To the i shaiibile the Chief Jails of the United Stages:

and the Associate Justices of the Supreme Court of

the United States: e

Audrey M. Toth,’ petitioner, prays that a i. |

Certiorari issue to. review the judgment of the United:

States Court of Appeals for the District of Columbia

Cireuit reversing the judgment of the United States Dis-

trict Court for the District of Columbia. (R. 54) Judg-

ment ‘was entered in the District’ Court on September 3, |

1 This action. .was/ instituted on behalf of "Robert W. Toth by may: M.

oom, his sister.

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1953 on the return of a writ of habeas corpus ordering the

velease and discharge of civilian’ Robert W. Toth, br other

_of’ petitioner herein, from custody of the respondent here-

in, the Secretary of the United States Air Foree. (R. 35)

In reversing the district court the Court of Appeals °

ordered the case remanded with instructions to. discharge

the writ and return Toth to the custody of military

‘authorities. | (R a: eatery Bertin aoe: A

OPINIONS BELOW

The opinions of the district court are reported as. num,

Toth v. Talbott at 113 F. Supp. 830 (D.C.D.€. 1953) and ee

_ 114 F. Supp. 468 (D.C.D.C; 1953) and ate confained in the

record at pages 21-23 and 30-33." Theopiniow of the Court

of Appeals is = este in the record at pages 37-53 and.

is not yet tepor ed

JURISDICTION

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The opinion and “judgment of the United States Court -

of Appeals for the District. of Columbia Circuit were.

entered on March 25,.1954. “(R. O4)

The jurisdiction of this Court is inv oked under the pro-

visions of 28 U.S.C. See.’ 1254, 62 Stat: 928,

QUESTION s PRESENTED

“The questions. presented to the Court for consideration :

and determination are:

1. Whether the Congress may, without -ibiniitix ‘the.

Constitution of the United States, provide. by legislation

that a citizen of the United States who has been honorably

> al

discharged from the military service of the United States

and who is ‘engaged. in a civilian occupation, not in any

way connected with the armed forces, may he: appréhended

_in Pennsylvanj

‘civil hearing of any kind to Korea and there detained so

_ arrested, confined, transported ‘without ‘a:

the Air’ Foree charging him-.with the commission of‘a

crime during his rior. military se rvice,

~q2. What authority, if any, ' does nes Ciapees — to

enact legislation providing for the’ eourt martial of a -

civilian? re ke co

. 3. Did not the ( ongress by enacting Article 3(a): of the.

Uniform Code of Military Justtee exceed the powers

granted it under Article 1, Section 8, Clauses 12, and.14 of -

| the Constitution? 7 ie Gt mee J

. Did not: the Congress. by enacting. Article 3(a) of the

U dies Code of Military Justice attempt to provide a —

~\

sy stem: of criniinal procedure for: civilians: different from

that: required and guardnteed by ‘the Fifth and Sixth’

Anigndments to. the. Constitution?

. Did: not-the Congre ess in enacting Artrele 3(a) of the

U niform: Code of Military Justice, fail to provide for the

apprehension, arrest and detention of civilians who it

mates to make. amenable to m! ilitary Justice? |

.W hen does a case “‘arise in the land’ or naval forces”

wittés the meaning of the Fifth Amendment. to. “the ©

a? ‘onstitution ?

STATUTES INVOLVED |

Involved in this cause ‘are the’ following provisions of |

the United States Cot stitution : ar |

| ‘Article 1, Seeti n 8, The Congress shall have power...

Clause 12. To raise and support armies, but no

appropriation of mone¢ to that usé shall be for a

lon er term than fwo xears;.. .

& 4

Clause 14.° To make niles 5 the government and

regulation of. the land and naval forces.

Aniendment - 5: No person shall be held to answer for

a capital, or otherwise infamous crime, unless ona pre-

sentment or indictment of a grand jury, except in cases

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- arising in the land’ or naval forces, or inthe milifia,

- when in actual serviee in time of war or public dangyr ;

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall

be compelled in any erminal ease to be as witness against

himself, nor be de ‘prived of life, liberty, or property

without due process of. law; nor shall private property

he taken ‘for public use without just compensation,

The Uniform Code of Military Justice, 64 Stat. 107-145;

50 U,S.C.A. $951 et seq., provides in pertinent part:

Article 3(a): Sub ject to the provisions of Article 43,

any person charged with having ,committed, while in

a status in which he was subject to this code, an,

offense against this code, punishable by confinement

of five years or more and for which the person cannot. .

be tried in the courts of the United States or any

State or Territory thereof or of thé District of»

Columbia,’ shall. not be reheved from amenability to-

trial by courts-martial hy reason of) the. termination

of said status. (64 Stat. 109,50 U SCA . $593(a)).

Article 9: :

. (a) Arrest isthe restraint, of a person by an order

not imposed as a punishment for an offense directing

him to remain-within.certain specified limits. Confine-

ment is the: physical restraint of a person.

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ua ‘An officer, a warrant: officer or a_ civilian,

subject to this code or to trial thereunder, may be:

ordered into arrest or confinement only ‘by a com-

manding’ officer to whose authority he is subject, hy

an order, oral or written, .d@livered in person or by

another officer. The authority to order such persons

into arrest or confinement may not be delegated.

(64 Stat. 111, 50 USC. A.. § 565 (a), 563(¢)).

STATEMENT OF THE CASE

Robert W. Toth, on ‘whose behalf the petition for writ

of habeas corpus was filed in the district: court below, was

honorably. discharged from the United States Air Force

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on December 8, 1952. (R. 1-2) ° Prior to his fischarge he

had served in Korea. i 2.pee Wap - a

Qn April 8, 1953 an office? of the United States Air

Foree, Far East Air Logistie Command, signed ¢éourt-

martial charges under oath Paes the acensed withthe

murder in Korea of a Koréan national and, with conspiracy

to commit. mnurder against the same Korean national. It

Wats charged that the alleged offetises were committed on

“or: aboutSeptember 27, 1952. (R. 15- 17) Thereafter on -

April 30.1953 the then Acting Secretary of the Air Force

consented to and directed the apprehension of Mr.-Toth

by the Air Provost Marshal and directed, the Air Provost

Marshal to ‘cause him (Toth), to be delivered forthwith

‘to the Commanding General, Fifth Air Foree, to answer

the said court-martial éharges”’. (R. 20) me

Thereafter, on May 13, 1953, ‘Robert W.: Toth was

-skeretly arrested at his place of employment in Pittsburgh,

Pennsylvania, by military authorities and, without being

afforded a heari ing of any type, was flown to Korea to face

possible trial on the court-martial charges. (R. 2)

Subsequent to his arrival in Korea on May 27, 1953, a

Petition for Writ of Habeas Corpis. was filed on behalf

of said Rohert W. Toth by his sister, Audrey M, Toth.

(R. 1) Harold E. Talbott was- named as respondent in-

said petition in his capacity as Secretary of the United.

States Air Force, in that said respondent was illegally

restraining, detaining and depriving said Robert W. Toth

of his liberty. .(R. 1) In said petition it was averred,

inter alia, that the’ seizure and arrest of Toth constituted

a denial of his rights- of procedural due process, as

vuaranteed him’as a citizen of the United States’ under.

the Fourth and Fifth Amendments of the Constitutign:

that he was likewise deprived of the rights guaranteed him

by Rules 5 and 40 of the Federal Rules of Criminal Pro-

eédure; that Section 3(a) of the Uniform Code- of Military

Justice, insofar as it applied to Toth? was unconstitutional

and void as beimg contrary to the Fourth and Fifth

Amendments and as being vague and indefinite: and that

6

said Robert W. Toth as a civilian was not amenable within

the framework of the’ Constitution to military seizure,

arrest and trial by court-niartial.\ (R..1-6)

On the same day (May 27, a a rule directing the

respondent to show cause*was issued. (R. 7) Thereafter,

on June 25, 1953; after hearing, Judge Holtzeff of the %

United States District Court for thé Distriet of Columbia

ordered that the writ of habeas corpus issue. (R. 24) In

its opinion the district court stated:

eee The fact is that there is an omission in the

Code of Militar y Justice on this matter. No machinery -

is provided whereby a civilian can be arrested and

removed to a distant point for trial by court-martial.

It would be wrong for the Court to try to supply the

machinery which Congress. has omitted to furnish.

This subject is a very serious one, as the Court

sees it. One of the foundation stones of our Republic

ais that the civil powér shall at all times be superior

to the military‘power. If ts a grave matter for pestary

nolice to arrest a civilian and. remove him for trial —

forthwith, without a hearing, to a distant point in this

country or to a foreign country, as is the case im this

instdnece, wher there is.no.provision in any statute

authorizing this to be done one,”’ <R,—23} 5 en

supplied) -” ees,

‘Dpon motion of respondent Talbott ‘the effectiveness of

this order for issuance of the writ -of habeas. corpus was

stayed pending appeal. (R. 25-26) This appeal was sub-

sequently dismissed by the United States Court of Appeals

on the ground that the order appealed from.was not final

or otherwise appealable. (R. 27-28)

| After additional proceadings in the district court, which

are not germane to the iSsnés presented here, the cause | 7 |

‘came on for hearing uponfreturn of the writ on September

3, 1953. After full hearing the district court sustained . |

_ the writ and ordered the discharge of the prisoner Robert

W. Toth from custody. (R. 33) In its opinion the district

court deemed it prematexe to pass upon the constitu-

oe

tionality of Section 3(a) of the Uniform Codé of Military

Justice, but held that there was no statutory. provision in

the Uniform Code providing for the arrest and transporta-

tion of a civilian by the military. (Toth v. Falbott, 114 F

Supp. 468, R. 30-33). 7

From this order discharging Toth from. custody the

Secretary of thé Air Ferce appealeds (R. 35). The order

of release was stayed pending appeal ‘and Toth was’

Yr eleased from et ustody under bond. (R. 34)

‘Qn March 25, 1954, the opinion: and judgment ‘of the

United States Court of Appeals for the District of

Columbia Cirenit was entered roversing the judgment of

the District Court. (R. 54). By-its judgment the Court of™

Appeals ordered the cause remanded to the district: court

“with instructions to discharge the writ and to return

Toth to the custody of the military authorities’’. (R. 53)

~The opinion. of the Court of Appeals is set forth. in the

*~ record at pages 37 through 53. | ?

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REASONS FOR THE ALLOWANCE OF THE WRIT

_. The questions—+e be presented ‘to this Court for con-

. sideration and determination are at onee novel, as being

matters of first iff,

in their seope and ramifications.

| Under one: aspect, the Court is: being called upon, to

consider and interpret the flew U niferm Code of Military

Justice, 64 Stat. 107- 145, 50 U.S.C.A. §.551 et seg. The

statute herein concerned is extremely broad in-scopé; and

is legislation which, in that part which is brought to the

attention of the Court, directly affects the lives of many

citizens of .this country.

‘The questions sought to be, ipennttig are important to

the proper administration of justiée in this country. —

" They present matters of substance ‘directly relating to the

-construction and application of a statute of the United

States and directly relating’ to the construction and inter-

pretation of -the Constitution of the United States. These

al

yression, and broad and far-reaching °°

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are matters which have not heretofore been but: which

“should be settle d and determined by this Court. }

The questions are important to the .de ‘feérmination of .

te proper separation of civil and military justice under

our Constitution, Directly mvolved- is the question of

whether and to what extent, within the framew ork of the

Constitution, chk Codaiens'e ‘an convert our democratic

civil government into:a military: oligarthy. . 'Phis is not a

matter of aeé idemic interest-only, but-a matter ofereal and

pressing importarice which directly involves the lives and:

rights of some 16,000,000 citizens of this country: Under

the Uniform Code: of Military Justice and the opinion of

the Court of Appeals .in.interpreting the applicable pro-

Visions of this “Code, this mhny —peopte, eomprized of

persogs previously, subj oO military service, are deprived

-of all-eiva protection and are subject volens rolens to the

rigors, of military law and discipline.

It has been held by this Ceurt almost from the beginning

of our government thatthe military authorities are with-

out, 4urisdiction to caurt- martial a civilian. . Wise v.

Withers, 7 US. (3 Cranch) 331° (1806). This complete

and total lack of jurisdiction of the military over civilians

has been reiterated by this Court in Noble v. Union River

. Logging R. Co,, 147 U.S. 165, 178 (1892) and again, as |

recently as I! 138, in the ease of Stoll v. Gottlieb, 305.U.S.

165, 176. The holding of the Court of Appeals below and

_its action in ordering the return of Toth to the military

authorities are in dirget conflict with the prior statements

of this Court as set forth in those cases:

-In the field of federal criminal law an accused vies

has. certain guaranteed basic rights, such as, for example,

. the right’ to be. free “from an unreasonable seizure, —

the right to indictment by a grand jury, the right to trial

by jury, the right to bail, the right to subpoena witnesses,

the right. to a prompt preliminary hearing, the right to

counsel of his .own choosing. In ‘military law: the rights.

granted the accused ‘are not fundamental constitutional

| rights but arée_the rights afforded by statute: ° In the case

of

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of Burns vy. Wilson, 346 U.S2.189) (1993), ‘this Court

reiterated that due*process of law in the military differed

in material respects. from due process in the civil sphexe.

Likewise this Court held, 1 Ex parte- Mill igan, TY US.

(4 Wall) 2 (1866), that he sae ote of the .oth and 6th

Amendments are prese ‘rved to everyone accused of a crime

who is not actually in military service. - : Bo

The Court of Appeals helow held with respect to Article

3(a) that: ‘In effect this section of the Uniform Code

is'no more-than a provision by Congress that an honorable

discharge frony military service shall not be ag absolution —

far crimes theretofore’ committed’. (R. 41) But. this

completely begs the question, In United States vy, Grimley,

137 U.S. 147 (1890). the Court held that one who. had the

ed ef a soldier was subject to court-martial; one not

in such status is not subject. to, pinilitary: discipline. The

thrust of petitioner Bease is not approval or disapproval

of the. end Congress sought to.acedmplish, it-is rather the

ieans to accomplish that end which are under attack.

Congress cannot by legislative fiat turn a civilian into.a

soldier for the. purpose of punishment. ,

Colonél William W inthrop, one of the “recognized ,

authoritiés on-military law in this country whose treatise

had been ordered printed at government expense for the

information of army personnel, many vears ago stated the

question as ‘follows: | pone t ob

‘But does the power ‘to ‘raise armies’ extend to

the irielusion of sueh civilians in the land. forces?

What are ‘armies’ in the sense in which this term is .

used in the Constitution? Uts interpretation is to be

found in the series of statutes dating from the period

of the adoption of that instrument, and of which the -

constitutionality has not been questioned, by which the.

constitnents .of our armies or Army. have been

repeatedly defined. These constituents are a certain

number of officers comniissioned or appointed, and of —

soldiers enlisted, into the military service as stich,

hound to obey military orders and to perform military

duty in peace or war, entitled to military pay, and

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remaining’ under military discipline and government

“till discharged -in due form, or othérwise legally:

separated from the amikitary state.. Such are the

‘armies’ or ‘land forces’ which the Constitution

authorizes Congress to raisé, support and govern.

Can this iuthority be held te inelude. the raising or

constituting, and the governing nolens volens, in‘time —

Of peace, as a part of the army, of a class of persons

who are under no contract for military service, but

on the contrary have been formally discharged from

all such contract, who render no military/ service,

. perform no military duty, receive no ‘military pay,

but are and remain civilians im every seyse and for

every capacity ‘except the’ special one pe which the

‘statutes under consideration propose’ to/reserve them?

(an the ‘authority to govern be. extended to the

disciplining of soldiers after they have been legally

separated from the Army? -In. the opinion of the

author, such a range.of control is ¢ertainly beyond the

power. of Congress under the provisions of the Con- ’

stitution referred to. That’ instrument, in a farther

‘provision: also,—the Vth Amctidment,—clearly dis-

tinguishes the niilitary from the civil. class as

separate communities. It recognizes no third class

which is part civil and part military —military for a

. particular’ purpose or in a particular situation, and

‘ ¢ivil for all other purposes and in all other situations

—and it cannot ‘be perceived. how Congress can create

« ° such. a° class, without a disregard of the letter and

: spirit of the organic law.’’ Winthrop, M¢htary Law

and Prec edents, ‘Gov't Printing Office (2d Ed: 1920),

pp. 405- 106.

' Throughout the proceeding ¥S below petitioner had. taken

the position that Congress in enacting the Uniform Code -

of Military Justice failed to provide for the apprehension

or arrest and detention of givilians whom it attempted to.

make - amenable to military law. Section 3( a) of the.

‘Uhiform Code provides in substance that ‘discharge from.

military service does not relieye'a person from amenability.

‘to trial by courts:martial for a crime committed while in

service. However, it was the holding of the disttict court |

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AY fect ve Papen 11 ies e .~. .

in granting the writ of habeas corpus and discharging the

petitioner from custody that there is an omission in the

Uniform Code in that no provision is made for, the arrest

and detention of civilians... The correctness of the district |

court’s holding in this regard is nade evident by ¢xamina- .’

tion of Article 9 of the Code w hieh deals with the ‘‘arrest-’ ;

‘apprehension’ and “confine ment’’ of persons subject: ts

the Code. , :

Article 9(a) of the U nifératt ( ode provides i in. part: that :

“Confingnént is the, physical restraint of a ee:

Article . provides in pertinent part, that-“. . . a

civilian subjgct to this code or to tial theseinder may:

be ordered mto arrest or-confinement only by a command- -

ing officer to whase autliority he is subjeet, by an order,

oral or written, delivered in person or by another officer.

The authority to order such persons into arrest or con-,

‘firtement may pot be delegated:’’ Plainly, Toth as a civilian

had no commanding officer. “to Whose authority he ‘is

subject’’, and plainly there was no one who could’ legally

order his confinemeny or physical restraint. The record

shows that court-martial charges were filed against Toth

over the signature 6f a ‘Colonel Hurst (R. 34)-and that

no-further action was taken by any alleged “‘commanditig —

officer’’; ‘but on the contrary, the Acting Secretary of

“the Air Force, not a. commanding officer, but a civilian,

consented to the court- martial charges and ordered the

Air Provost*Marshal to effect Toth’s apprehet nsion. sasans

In its opinion the Court of Appeals held: 7

“Tt is suggested that Articles 3(a) and. 9(ey ‘of the

Uniform Code are inconsistent with each other. The

“Jatter Article providés: that a civilian subject to the

(‘ode ‘may be ordered into arrest: or confinement only

by a commanding officer. to’ whose authority he is |

subject’, But ‘arrest. or confinement’ in military.

‘parlance is restraiat by order, as contrasted with a

taking into .custody,’ which is termed ‘apprehension’.

A strict distinction between the two is made in military

rules. We see no inconsistency between the Articles.’’

A(R. 52}: °

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With due fengeet. to the Court. of | Appeals petitiqner’ gs

: contention is not ‘Sinconsistency’” but a statutory omission..

If the ‘opinion and Judgment , of the Court ‘of ‘Appeals’ is

aliowed to stand-we will in effect. have ‘a judicial deter-

mination: that Congress can deprive. civilians of con; ittu-

tional gyarantees by i implication. In substance. and effect

so also a will have ‘a’ judicial determination that the

military’ is-superior to the civil, in that by implication at .

least some 16,000,000 civilian citizens of this country have

a commanding officer who can order, without. -hearing their

arrest and physical restraint. . = ;

tn Muskrat vy. United States, 219 U.S 346 (1910) this

Court had oceasion to analyze, as contained in Article 3

‘of the Constitution, the meaning of. the word ‘‘ease’’. In

its opinion ‘this Court adhered to Mr. Chief Justice .

Marshall’s definition ih Marbury v." Madison (1 Cranch

137). that a ‘fcase’’ was a suit instituted actording to the

regular course of judicial procedure... This: petitioner takes

- the position that.*‘case’’ in the 5th Aimendment ~has_the

same meaning as it does:under Article 3. The Court of

Appeals below however held that “. . .- although a crime

does not become a case, &e. ‘a legal proceeding, ‘witil -a

charge is made, a. case arises when the crime is committed; ~

just as a man is born on.the day of his birth, although he

is not a man until many years thereafter.’’ .(R. 41) It -

would appear that the Court of Appeals not only: com- |

pletely ignored prior rulings of this Court defining the -

very ‘term in issue but ascribes to the term a meaning

which would tend to make'the constitutional gaarantee a

‘nullity. Case within the meaning of the 5th Amendment -

must be a legal proceeding; where else ean a: person. ‘‘be

held to answer’’ for a crime? Ff the amendment contained -

~the word ‘‘eause’’ rather than ‘‘case’’, the lower court’s

.. language would be appropriate. ‘Every ‘‘cause’’ does not

become a ‘‘¢ase’’, i.e. a legal progeeding. Every child does

not become a man. But this Court is not being requested .

to correct the limping analogy of the — court; it”

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Fifth Amendment, -

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is being requested to reverse a holding/that. is+ plainly con.

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trary to priortrulings of this Court a iA@lainly conttary

to the cle ‘ar and unequivocal njeaningy of the language. of

the ( ‘onstitution, a

»; Should the opluion of the ck of poe als be allowed -

to. stand, the rights and: liberties of millions of men ‘and < o

women who have serve vd. nenori ibly: in the armed forees

are placed in jeopardy. .In substance and effect the lower

court has given the military carte blanche authority per-

mitting the arrest and confinement. of any discharged:

service man ef woman. The Court of Appeals has advised

the military in’ effect that, 6us a mere sworn statement:

alleging. the commission of a crime, without a. judicial

_dinquiry of any type’ to det termine probable éause, armed

soldiers:may seek and effect the arrest of a civilian na

matter where he may be or what his’ station. or cireumstance

may, be and, having arrested. him, secretly tgansport him

‘anywhere in the-world, The issue sought to be presented

to this Court’ for determination ‘is not.-the guilt” ar

‘innocenee of one man. The issue is whether Congress can.

validly legislate ‘military despotism. — If the Writs of.

Assistance, used so _ unconscronably , by the British’ iff

Colonial days, were so abhorrent? to our founding fathers

as to-give ripest ‘to Consfitutional safeguards, wherein lies

the power under the Constitution to: wive sanction to the

oppressive and high- handed: conduct set forth i in the record

herein? . Wiper ies os

This case presents a flagrant abnse, of ‘the indefeasible

right of a citizen-of this country to his oe

as guaranteed to hia by the Fourth Amendment.

This ¢ ase presents, ain- egregious example of the deprive,

tion of a’ciyilian’s right to be held to answer fora ‘capital :

or otherwise infamous crime only upon indictment of a

grand j jury and. of his right not*to be depriyed of Ais liherty

withouf due process of Jaw as gui aranteed to him by. the

: \

wv

_ 2

eee :

This is an important case. It is.not academic; the mat-

‘ters broughi to the attention of the Court are real ‘and

pressing. i ternal vigilance, they say, is the price we must .

pay for our liberty. The facts of ‘this case. clearly show

that liberty as we have ‘heretofore known it may, if we are

not vigilant, soon become a thing of the past. This Court

is being requested to determine whether the Constitution

is. yet the shield of our liberty; still the ‘bulwark of due

process, of law; still the bastion for protection-of the rights

of our. citizens’ from. the overweening despotism of the

| military: a oe

ae ORE -* ° CONCLUSION

WHEREFORE, he petitioner prays the granting of the writ

of certiorari to the United States Court of Appeals fot

the District of Columbia Cireuit:

AL. Pump Kaye | P

“C MARLES VY. ‘Koons | 2

} Winwiam A, Kenor, Jr.

eos ate -- 1331 G Street, N.W..

Washington 5, D.C,

Attorneys for Petitioner.

o

O 7c ounsel:

Joun J. McGratra

Peter F. FLAHERTY

‘Joserm H. Rivce

James F. Suita |

L. Par. McGratu qs oes |

Grant Building — | ese

- Pittsburgh, Pa.

June.18, 1954 | eee