Opinion — Parisi v. Davidson

34 OCTOBER TERM, 1971 -

>" gytabus ” 405 0.8.

PARISI v. DAVIDSON ET AL.

CERTIORARI TO THE UNITED STATES COURT oF APPEALS FOR

THE NINTH CIRCUIT

7

_ No. 70-91. Argued October 19-20, 19%1—Decided February 23, 1972

; ‘Petitioner, a member of the armed forces, sacilial unsuccessfully for

" discharge ‘as a conscientious objector. After he had exhaustéd all

_ his administrative remedies, he filed a habeas corpus petition in

a Federal District Court, claiming that the Army’s denial of his

_ application was without basis in fact. Thereafter court-martial

es 4 ‘charges were brought against him, and the District Court ordered

\ { _ consideration of the petition deferred until final determination of

a | the court-martial proceedings. The Court of Appeals affirmed.

Nee Held: The District Court should not have stayed its hand in this

ae ease. Pp. 37-45.

; NON - fey Rah eieanalive wdniniatrative remains Wave let exhausted

an by petitioner. -Pp. 37-39.

' (b) Since the military judicial system in its, processing - thé

A charge could not provide the discharge sought by

‘ _ petitioner with promptness and certainty, the District Court

re to’ determine the habeas corpus. claim or the

- _ pendency of fk court-martial proceedings. Pp. ne

435 F. 2d 200, reversed.~ mee en

Srewart, J ., delivered the opinion of ike Court, in which ‘Buncze, :

C. J’, and BrenNAN, Wuite, MarsHat; and BLackMun, JJ., joined.

Dovwe.as, J., filed an opinion concurring in the result, post, p. 46.

PowELL ont ReunNauistT, JJ., took no part in the consideration or

decision of the case. :

= oe Ha Richard L: Gof argued the cause -for petitioner. . With

. ee him on the briefs were George A. Blackstone and Stephen

- ~V. Bomse.

7 William Terry Bray-argued the cause for respondents.

i.» ‘On-the brigf ‘were-Solicitor General’ Griswold, Assistant

on ets Attorney General Mardian, William, Bradford Reynolds

* Robert L. Keuch, and Robert. A. Crandall.

/ &

e PARISI »v. DAVIDSON 35

34 | Opinion of the Court

Mr. Justice STEWART delivered the opinion of the

When a member of the armed forces has applied for -

a discharge as a conscientious objector and has exhausted

.all avenues of administrative relief, it is now settled that”

- he’ may seek habeas corpus relief in a federal district

court on the ground that the denial of his application

had no basis in fact. The question in this case is

_ whether the district court must stay. its hand when

" court-martial proceedings ‘are pending against the |

The petitioner, Joseph Parisi, was inducted into the -

Army as a draftee in August 1968. Nine months later

‘he applied for discharge as a’ conscientious objector, —

"claiming that earlier doubts about military service had

crystallized into a firm conviction that any form of mili-

tary activity conflicted irreconcilably with his. religious

beliefs. He .was interviewed by the base chaplain, the

_- base psychiatrist, and a special hearing officer. ‘They all

attested to the petitioner’s sincerity and to the religious

content of his professed beliefs. In addition, the com-

manding general of the petitioner’s Army training center

and the commander of the Army hospital recommended

that the petitioner be discharged as a conscientious:

objector. His immediate commanding officer, an Army |

captain, disagreed, recommending disapproval of the ap-

_Plication on the ground that the’ petitioner’s ‘beliefs —

were based on essentially political, sociological, or philo- _

~ Sophical views; or on a merely personal moral code.

In November 1969, the Department of the Army de- —~ -

nied the petitioner conscientious objector status, on the

_ grounds that his professed: beliefs had become fixed prior -

~ to entering the service and that his opposition to war _

was not truly based upon his religious beliefs. On No-'.

vember 24, 4969, the petitioner applied. to the Army

Board. for Correction of Military Records (hereafter

3 =——S—S. OCTOBER TERM, 1971.

Opinion of the Court | , 405 U.8.

- sometimes ABCMR). for. administrative review of that ‘ ;

determination.

_. Four days later the dikitiones seaiiialia the present

habeas corpus proceeding in the United States District

Court for the Northern District of California, claiming

‘that the Army’s denial of his conscientious objector ap-

‘plication was without basis in fact. He sought dis-

injunction to prevent his transfer out of the jurisdiction

of the District Court and to prohibit further training

preparatory to being transferred to Vietnam. The Dis-

trict Court declined at that time to consider the merits

4 of the habeas corpus petition, but it retained jurisdic-

tion pending a decision by the ABCMR, and in the

charge from the: Army and requested a preliminary

meantime enjoined Army duthorities from requiring the -

petitioner ‘to. Participate i in activity or training beyond

his current nongombatant duties...

Shortly thereafter the petitioner received ondate 7

report to Fort. Lewis, Washington, for deployment to.

Vietnam, where he was to perform noncombatant duties

similar to those that had been assigned to him in‘ this |

* gountry. He sought a stay of this.redeployment order

: pending appeal of the denial of habeas corpus, but his

‘application was denied by the Court of Appeals, on’ the

condition that the Army would produce him if the

appeal. should result in his favor. A similar stay appli- .

- cation was subsequently denied by Mk. Justice DovGias:

as Ninth Circuit Justice, Parisi v. Davidson, 396 U. s.

1233. The petitioner then reported to:Fort Lewis. He :

‘ - refused, however, to obey a military order to-board a

plane for Vietnam. As a result, he-was charged with

- violating Art. 90 of the Uniform Code of Military‘ Jus-

tive, 10 U. S. C. § 890, and; on April 8, 1970, a court-

martial convicted him of that. military offense." -

"i hn ta ot ea seg le pein ca, on pp tain ie

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thea

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Army Board for Correction of Military Records notified

the petitioner that it had rejetted his application for

relief from the Army’s denial of his conscientious objector

application. The District Court then ordered the Army

to show cause why the pending writ of habeas corpus

should not issue. On the Government’s motion,. the

District Court, on : 31, 1970, entered an order

deferring consideration “of habeas corpus petition’

until final determination of the criminal charge then

_ pending in the military court system. The Court of

Appeals for the Ninth Circuit affirmed this order, con-

_ cluding that “habeas proceedings were properly stayed *

pending the final conclusion of Parisi’s military trial and

his appeals therefrom,” Parisi v. Davidson, 435 F. 2d 299, ‘

302. We granted certiorari, 402 U. S. 942.

“In affirming the stay of the petitioner’s federal habeas

corpus proceeding until. completion of the. military

courts’ action; the Court of Appeals relied on the related ~

doctrines of. exhaustion of alternative remedies and

- comity between.the federal civilian courts and the mili-

tary system of justice. We hold today that neither

of these doctrines required a stay of the habeas corpus |

- proceedings in this case. é

With respect to available adninistiotive sila

there can be no doubt that the petitioner has fully met

the demands of the doctrine of exhaustion—a doctrine

_ that must be applied i in each. case with an “understand-

-. ing of its purposes and of the particular administrative

scheme involved.” McKart v. United States, 395 U. S:

_ 185, 193. The basic purpose of the exhaustion doctrine _

is to allow an administrative agency to perform functions

within its special competence—to make a factual record,

to apply its expertise, and to correct its own errors so ~

as to moot Jodicial controversies. ae at 194-195;

Fa

; : ae

38 . OCTOBER TERM, 1971

Opinion of the Court 405 U.8.

McGee v. ‘United States, 402 U:. S. 479, 495: K. Devs,

Administrative Law Treatise § 20.01 et seg. (Supp. 1970).

- In this case the petitioner fully complied with Army ..

- Regulation 635-20, which dictates the procedures to bé ~

followed by a serviceman seeking classification as a con- *

- scientious objector on the basis of beliefs that develop

~ after induction.’ Moreover, ‘following a rule of . the

Ninth Circuit then in effect? he went further’ and ap- °

| -pealed to the Army Board for. Correction, of’ Military .

| Records.‘ : The procedures and corrective opportunities )

"The Tight of person in the armed forees to be’ clasified as a

_gonscientious objector after induction is bottomed on Department

of Defense Directive No. 1300.6 (May 10, 1968), issued by. the .

_ Secretary of Defense-pursuant to his authority under, 10 U. 8S. 2

- $133. - The purpose of the directive is to provide “uniform pro-,

‘ cedures for the utilizationef conscientious objectors in the Armed ©

Forces and consideration of requests for discharge on the grounds

of conscientious objection.” Army Regulation 635-20 was issued |

to effectuate the broader policies announced in DOD Directive

No. 1300.6.

3 Under the’ rule of Craycroft v. Ferrall, 408 F. 2d 587 (CA9

1969), the petitioner was required to ‘appeal the Department of the

Army’s decision to the civilian. Army Board for Correction of

: Military Records in order to exhaust military administrative reme-

dies and have access to federal court. Current governmental policy

rejects Craycroft. Compliance with Army Regulation 635-20, not

perfection of an ABCMR appeal, marks the point when military

administrative procedures have been exhausted. .Department of

Justice Memo. No. 652 (Oct. 23, 1969). In Craycroft v. Ferrall,

897 U.S. 335, this Court vacated the judgment of the Ninth Circuit

that the petitioner there had to appesl to the Board for the

Correction of Naval Records before proceeding in federal court.

But our decision’ was announced on March 30, 1970, more than four -

months after the present ‘petitioner had appealed to the ABCMR.

4In 1946, Congress enacted legislation empowering the service

secretaries, acting through boards of civilian officers of their respec-

_ tive departments, to alfer military records when necessary to pre-

vent injustice. Legislative Reorganization Act of 1946, § 207, 60

sine 837, se ses, web Aid 116, 10 U. 8. C. § 1552 (1952

” PARISI». DAVIDSON: =D

a4 . oe Opinion of the Court

of et Siilieeny administrative apparatus had thus been

wholly utilized at the time the- District Court entered

‘its order deferring consideration of the Petitioner's habeas

_ corpus application.

It is clear, therefore, that, if the court-martial charge

had not intervened, the District Court would have- been .

wrong in not proceeding to an , expeditious consideration

of the merits of the petitioner’s claim. For the writ of

habeas corpus has long been recognized as the appro- ©

priate remedy for servicemen who claim to be unlawfully

retained in the armed forces. See,.e. g., Eagles v. Sam-

‘uels, 329 U. S. 304, 312; Oestereich v. Selective Service

Board, 393 U. S. 233, 235; Schlanger v. Seamans, 401.

U. S. 487, 489. And, as stated at the outSet, that writ -

is available to consider the plea of an -in-serviee applicant —

for discharge as. a conscientious ‘objector who claims that*

exhaustion of. military administrative procedures. has --

led only to a factually baseless denial of his application.

In-re Kelly, 401 F. 2d 211 (CAS); : Hammond v. ae,

398 F. 2d 705 (CA2).°

But since a court-martial charge was pending against

the petitioner when. he sought habeas corpus in March

1970, the respondents submit that the Court of Appeals

was correct in sera: that the District’ Court ‘must

ed, Supp.<IV). vO ‘to thie ‘lagu: each service estab- ©

ye

lished a board for the correction of inilitary records whose fuaction .

is, on application by a serviceman, to review the military record

and intervene where necessaty ta sorrect error or remove injustice

10 U: 8. C. § 1552 (a).

' 5 The Department of Justice, i aiittnelgis With ‘Ghd Dietactnaiast

of Defense, has accepted the holdings of the Kelly and Hammond

cases. Department of Justice Memo, No. 652 (Oct. 23, 1969).

See United States ex rel. Brooks v. Clifford, 409 F. 2d 700, 701

- (CA4): Compare Noyd v. McNamara, 378 F. 2d 538 (CA10), with

Polsky v. Wetherill, 403 U. 8. 916, er ae 2d

sms

#é

ment, too, is: framed in terms of “exhaustion,” it may

@ OCTOBER TERM, 1971 :

: + Opinion of the’ Court ee opn.e

sait the final outeoms of those changes in the military’,

0 judicia) system before it may consider the merits of

petitioner’s habeas corpus claim. ‘Although ‘this argu"

more accurately be understood. as based upon the appro-

priate demands of comity between two separate j

_ systems.’ Requiring the District. Court to defer to

‘military courts in these circumstances serves the inter

__~ ests of comity, the respondents argue, by aiding the mili-

tary judiciary in their task of maintaining order and

_ discipline in the armed services and by eliminating “need-

- less friction” between the federal civilian and military

. judicial systems. The respondents note that the mili-

tary constitutes a “specialized community governed by .

-@ separate discipline from that of the civilian,” Orloff v.

- Willoughby, 345 U. 8. 83, 94; Gusik v.' Schilder, 340

U.S. 128, and that in recognition of the special nature

; _ of the military community, Congress has created an

“ atitonomous mnt, aie reset, pursuant to Art. I,

“Plainly, judicial review. of the factual basie for the Army's

denial of petitioner's conscientious objector claim does not require

_ an interpretation of ‘extremely technical provisions of the Uniform

Code [of Military Justice] which have no. analogs in civilian jurie-

prudence,’” quoting oyd v. Bond, 395 U. 8. 683,

“Thus, it is not tended that exhaustion of military court reme-

abstention doétrines in the state-federal “context, see generally

C. Wright, Handbook of the Law of Federal, Courts 18- 86-188, 196-

"208 (2d ed. 1970). a . -

Sat be

‘

“4 :

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PARISI »,DAVIDSON (ag

5 ci Opinion of the Court -

$8, of the Constitution.* They fucthdtghinkcotathes =

civilian courts, out of respect for the separation of powers _

doctrine and for the needs of the military, have rightly

been reluctant to int ith military. judicia

the military court system. Cf. Gusik’ y. Schilder, :

' supra; Noyd vy. Bond, 395. U. 8; 683. The petitioner

spplication for an administrative discharge —upon which

the ‘habeas corpus petition was based—antedated and

was independent of the military.criminal. proceedings. ©

The question here, therefore, is whether‘a federal court

36-0. Cin. L. Rev. 228 (1967); Warren, The Bill of Rights.

tive

Din. : and

the Military, 37 N, Y. U. L. Rev. 181 (1962). Military courts are

: ee = mm

courts; their jurisdiction independent of Art.

|

|

- * Bee Hammond v. Lenfest, 398 F. 24 705, 710 (CA2 1968):

affairs is hardly surprising in view of the”doctrine of separation

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i

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ce

;

i

ae ee OCTOBER ‘TERM, 1971

Opinion of, the Court Se 405 U.S. .

:Sprocessing of the court-martial sin Giha. v.

County School Board of’ Prince Edward Coynty, 377

U. S. 218, 229; Davis v. Mann, 377 U. S. 678, 690-691 ;

Lucas v: Forty-Fourth General Assembly of Colorado, »

_.» «877 U.S. 718, 716-717. For the reasons that follow, ©

| we are not persuaded that such relief would be even

potentially available, much less that it would be either

prompt or certain.

Courts-martial are ‘not convened to review and rectify

administrative denials of conscientious objector claims or —

to release conscientious objectors from military service. —

> They are convened to adjudicate charges of criminal vio- -

lations of. military ‘law. It is true that the Court of

Military Appeals has held that a soldier charged in a -

court-martial with refusal to obey a lawful order may, —

| in certain limited circumstances, defend upon the ground

_. that the order was not lawful because he had wrongfully

‘been denied an administrative discharge as a conscién- .

_ tious objector. United States v. Noyd,18U.S.C.M.A.

_ 483, 40 C. M. R. 195.° The scope of the Noyd doctrine __

., is narrow, United States v. Wilson, 19 U. 8. C. M. A, 100, =

® Army Regulation 635-20 provides that |

“individuals who have submitted formal applications [for con-

| ‘PARISI ». DAVIDSON tae 4 |

rie en Jno

_ 41. C. M. R. 100, and its present vitality not wholly clear,

ited States v. Stewart, 20 U. S. C.:M. A, 272, 48

Kod

R. 112. | A Noyd defense, therefore, would be avail-

able, even arguably, in an extremely limited category of |

_ court-martial proceedings: - But even though we proceed

Qn the assumption that Noyd offered this petitioner a

potential affirmative defense to the court-martial charge

brought against him,” the fact remains that the Noyd .

'. doctrine offers, at ‘best, né more than a defense to a

criminal charge. Like any other legal or factual de-

~ fense, it would, if successfully asserted. at trial or on ap-

peal, entitle: the defendant to, only an &cquittal *—not

to the discharge from military service that he seeks in

the habeas corpus proceeding.

The respondents acknowledge, as they must, the. lim- .

_ ited function of a Noyd defense in the trial and appeal

of the court-martial proceeding itself. But they suggest

_ that, if the military courts should eventually acquit the

petitionet on.the ground of his Noyd defense, then the

‘petitioner. may have “an available remedy by way. of

habeas corpus. in the Court ‘Of Military Appeals.”* —

In support of this suggestion, the respondents point to ©

the All Writs Act, 28 U. S. C. § 1651 (a), and to cases

_ finding that “the. ruling of the Secréary of the Army was: not

_ arbitrary, capricious, unreasonable, or an abusive) [sic] discretion.”

= We have been referred to no reported i court decision

(including Noyd itself) that has yet acquitted a defendant upon the |

~ If the military courts should ‘ultimately aequit the petitioder ©.

on grounds other than wrongful denial of his conscientious objector

application, the respondents acknowledge that he could mot seek

habeas corpus in the military judicial system. -In this event, there-‘

seeks in the military court system. =,

7

\

“a. OCTOBER TERM, 1971.

Opinion of the Court 2 AO <3

‘ power under that Act to order servicemen released from

‘ “mnilitary imprisonment pending appeals of their court- —

martial convictions. See Noyd v. Bond, 395 U. &., at

695; Levy v. Resor, 17 U.S. C. M. A. 135, 37 C. M. R.

399; United States v. Jennings, 19 U. 8. C. M. A. 88,

41 C. M. R. 88; Johnson v. United States, 19'U. S.C.M. A. .

407, 42 C. M. R. 9. j

But the All Writs Act only empowers courts to “issue

all writs necessary or appropriate in aid of their respec-

_ tive jurisdictions . . and the jurisdiction ofthe .

Court of Military Appeals is limited by the Uniform -

Code of a cg tienen appeals from

court-martial onvictions. 10 U. S. C. § 867; United -

States v. Snyder, 18 U. 8. C. M. A. 480, 40C. M.R..192.

That court has been given no “jurisdiction” to consider ©

@ conscientious obj

"Whether this ‘conceptual difficulty might somehow be .

surmounted is a question for the Court of Military Ap-

peals itself ultimately to decide. See United States v.

Bevilacqua, 18 U.S. C. M. A. 10, 12, 39 C. M. R. 10, 12.. :

But’ the short answer to the respondents’ suggestion in «

3 this case is the respondents’ own concession that. that

court has, to date, never so much as intimated that it °

has power to issue a writ of habeas corpus granting

separation from military .service to a conscientious: ob- .

jector. We conclude here, therefore, as in Noyd v.

' Bond, 395 U. S:, at 698 n. 11; that the petitioner can- —

not “properly be required to exhaust a remedy which —

_ May not exist.” * Actordingly, we reverse thé judg- 3

‘ Thin rovult is not joconsistent with: tho need. to duginkaia. order B

\ and discipline in the military and to avoid needless friction between

the federal civilian and militsry judicial systems. If the Noyd

. defense is available and if-the order that the petitioner disobeyed ff

was. unlawful if his conscientious objector claim is valid, then allow-

ing him to proceed. in federal district court as soon as military

ete

for discharge from the military as |

>

«

Bh "Opinion of the Court :

ment of the Court of Appeals and remand the case to

‘PARISL'»: DAVIDSON =

the District Court with directions to give expeditious

consideration to the merits of the petitioner’s habeas

corpus application. . ; ee]

In holding as we do today that the pendency of eourt-

martial proceedings must not delay a federal district

_° court’s prompt determination ination of the conscientious objec-

tor claim of a serviceman who has exhausted all admin-

respect in this Nation for valid ‘conscientious objection

- tomilitary service. Seé 50 U. 8:C. App. § 456 (j); United

States v. Seeger, 380. U. 8. 163.% As the Defense De-

partment itself has recognized, “the Congress has

. deemed it more essential to respect a man’s religious :

- beliefs than to force him to serve in the Armed Forces.” _

Department of Defense Directive No. ‘1800.6 (May 10,

1968);

disobedience of a lawful order. 3

could proceed concurrently. See n. 15, infra. Needless fo say, the

\ slantisas Objector: Resoyeition in the Usted tietes, 80 Ges. Wash.

a

~ plu

™ 4

aera am QCTOBER TERM, 1971

- Dowatas, J, concurring i result. 405 U.S.

oe But our decision today should not’ be understood’ ais

impinging upon the basic principles of comity that must’

prevail between civilian courts and the military judicial -

_ See, e. g., Noyd v. Bond, 395 U: 8. 683; Burns

.v. Wilson; 346 US. 137; Orloff v: Willoughby, 345 U.S. -

83; Gusik v. Schilder, 340 U. S. 128. Accordingly, a

a _ federal district court, even though upholding the merits

. of the conscientious objector claim of a serviceman |

against whom court-martial charges are pending, should-

‘give careful consideration to the appropriate demands

of — in effectuating its habeas: corpus decree.* —~ .

ste. ? The judgwpent: is reversed. —

vs

MR. Justice ‘Powis: and ‘Ma JUSTICE Rinnai .

fay took no part ‘in the corisideration or decision of thig case. -

“<M. Sonera Dovaras, coneurring in the result. _

I agree with the Court’s 's view that habeas | corpus is

an overriding remedy to test the jurisdiction of the —

.. military to try or to detain a person. The classic: case -

is Ex parte Milligan, 4 Wall. 2, where habeas corpus _

‘was issued on behalf of a civilian tried and convicted

in Indiana by:a military tribunal. During the Civil War

all ‘civil courts in that State. were open and federal. au-

thority} had always. been. unopposed. While the President

28 In the present case the respondents acknowledge that if. the

administrative denial o ‘the petitioner’s conscientious objector claim |:

had no basis in‘ fact, the court-martial charge against him is -:

invalid. It follows that, ‘if he should prevail. in the habeas corpus

~-procéeding,, hé is entitled to his immediate release from-the military. =

» At the other end of the spectrum ‘is the hypothetical case of, a

court-martial charge that has-no real connection with the con-

* seientions ebjector claim—e. g., a charge of stealing a fellow

soldier’s watch. In stich a case, a district tourt, even though |

*- upholding the servicenian’s eSaecientious objector claim, might con- -

dition its order of discharge.upon the completion of the court-martial -

ee ee ;

“PARISI ». DAVIDSON; sg

34 me Dovazas, J., coneurring -in result

"and: the Congress had “suspended” the writ, id, at 115, .

_the suspension, said the Court, went no further than to

_ relieve the military from producing in the habeas.corpus

‘court the person held or: detained. . “The Constitution

goes ‘no further. It does not ‘say after.a writ of habeas

_ corpus is denied a citizen, that he shall be tried other-

wise than by the course of the common law; if it had

intended this result, it was easy by the. use of direct

. “~ to have accomplished it.” IJd., at 126%... :

ief Justice. Taney in Ex parte Merryman, 17 ¥. Cas. -

"144 (No. 9,487) (CC Md.), decided in 1861, held that the

: position that Lincoln did not honor... To date, the ques

_ tion has never been resolved, and its decision is not rele-

President alone had no authority -to. suspend the —s

vant to the present case. I mention the matter because.

of the constitutional underpinning of the writ of habeas Wh,

. corpus. Article I of the Constitution in. describing the

- powers of the legislative branch states in §9 that: “The |

Privilege of the Writ of Habeas Corpuis shall not be sus-

‘S pended, unless. when in Cases of Rebellion or Invasion -

. the public Safety may require it.” a eee

"_« The Court has consistently reaffirmed the preferred

~ “place of the Great Writ in our constitutional system. |

Fay v. Noia, 372 U. §. 391, 400; Smith v. Bennett, 365

U.S. 708, 713. e gaignd age: Eyn8. ae

. . Article III, § 1, gives Congress the power to “ordain

and establish” inferior federal courts; and § 2 subjects

the “appellate Jurisdiction” of this Court to “such Ex-

_ ° ceptions, and-. ... such Regulations as the Congtess.

shall make.” Once Congress withdrew from this Court

its appellate jurisdiction in. habeas ‘corpus cases. See.

Ex parte McCardle, 6 Wall. 318, 7 Wall. 506. An Act

of Congress passed’ by the very First Corigress pro-

vided for the issuance of the writ. But as Chief Jus-

tice’ Marshall said in Ex parte Boliman, 4 Cranch 75,

95, “for if the means be not in. exi

existence, the privilege.

: ———

NS

2 eae OCTOBER TERM, 1971

Dovatas, J., concurring in result 405. U.8.

itself would be lost, although no law for itn suspension

should be enacted.” It is also true that “the mean-

ing of the tetm habeas corpus” is ascertained by resort

“to the common law;” yet “the.power to award the writ

by any of the courts of the United States, ‘must ~ given

by written law.” IJd., at 93-94. _

What courts may do is dependent on saben! 1 save

as their jurisdiction is defined by. the Constitution.

_. What federal judges may: do; however, is a distinct ques-

_ tion. Authority. to protect constitutional rights of in-

dividuals is inherent in the authority of a federal judge,

conformably with Acts of Congress. The mandate in -

‘Art. I, $9, that “The Privilege of the Writ . . . shall nat

be suspended” “must mean that its issuance, in a proper

case or een aid is an. implied oes of any federal

judges

We have yale’ that ‘even without siege stat-

"utes enforcing constitutional rights, the federal judges

have authority to enforce the federal guarantee. Fay v.

New York, 332 U. S261, 283-284, 285, 298; Katzenbach

v. Morgan, 384 U. 8: 641, 647. Those casea'thvalved pro- |

tests by individuals against state action. Certainly the

military does not. stand i in a preferred’ position. ee

The matter is germane to the present problem. For

here the military is charged. with exceeding its proper

bounds in seeking to punish a person for claiming his stat-

. utory and constitutional emiption: from military serv-

“11t has been assumed that this Court has no jurisdiction to issue |

an original writ of habeas corpus except when issuance of the writ

has been first denied by a. lower court. R: Stern & E. Gressman,

. Supreme-Court Practicé 419-420 (4th ed. .1969). But the Court .

~~ has not settled the. question. See Hirota v. MacArthur, 335 U. 8.

‘876, 338 U. S8:.197.

Some members of the Court have felt that, absent statutory ae

". thorization, the Court may’ not even transfer & petition for an orig-

inal writ of habeas corpus to a lower court. But that view has net 3

seccrmeee —— ee P

ee

» PARISI». DAVIDSON | 49.

ice. The conflict between Inilitary prerogatives and

civilian judicial. authority is as apparent in this. case

as it was in Ez parte Milligan. ‘A person who appro-

priately shows that he is exempt from - military duty

_ May not be punished for failure to submit. :The question

is not one of comity between military and civilian tri-

_- *bunals. One overriding function of habeas corpus is.

to. enable .the civilian authority to keep the military

within bounds. The Court properly does just,that in the

opinion announced today. - iy:

"against him. Id., at 545. Ross on?

While the charges were pending, Billings sought féderal habeas

corpus Telief, challenging the military's jurisdiction to try him on.

’ the theory that he had not been lawfully inducted. -The District

_ Court discharged the writ, and the Court of Appeals affirmed, but

this Court held that Billings’ induction had indged violated existing

statutory law, and- ordered that the writ igsue. Implicit in this hold-

ing is an affirmation of the proposition that exhaustion of military

remedies, ineluding pending court-martial, is not required of one

challenging the military's jurisdiction to try him in the first instance.

| While Billings was decided-before the enactment of the Uniform

‘Code of Military Justice, eases decided under the Code have reached :

results. See, e. } 31;

Covert

j

50 “~ OCTOBER. TERM, 1971.

Dovtxas,'J., concurring in result. 405 U.S.

- course where comity prevails, as it does between state and

federal courts, federal habeas corpus will be denied where

state habeas corpus or a like remedy isavailable but has

‘not ‘been utilized.. Ex parte Hawk, 321 U.S. 114.. A

- petitioner must, indeed, pursue his alleged state remedies

until it is shown that they do not exist or ‘have been

futilely invoked. ‘

The principle of comity was invoked by Congress when

it wrote in 28 U. S. C. § 2254 that federal habeas corpus

shall not be granted a person in state custody “unless it

appears that the applicant has: exhausted the remedies

available in the courts of the State.” That principle of .

comity is important in the operation of our federal sys-

tem, for both the States -— the Federal’ Government

ea of his cannei shetuaalians scruples against the war in Viet-

nam. His court-martial conviction was pending in the Court of

Military Appeals. .The issue decided against him on his federal ,

habeas application; however, was not the jurisdiction of the military

to try him in the first: instance, but merely his entitlement to bail

pending. disposition of his military appeals. The Court held that

his bail motion should first be presented to the Court of Military

Appeals; but we were. meee | in distinguishing tein Covert, ;

and Toth:

“The cited cases held that the Constitution €

court-martial jurisdiction over various classes. of

with the military, and it is true that this Couft there vindicated

complainants’ claims without requiring exhaustign. of military reme-

dies. We did so, however, because we did not believe that the ex-

pertise of military courts extended to the consideration of constitu-

the assertion of

ivilians connected

- tional claims of the type presented. . Moreover, it appeared especially

unfair to require exhaustion of military remedies when the com-

plainants raised substantial arguments denying the right.of the mili-

tary to try them at all. Neither of these factors is Present in the

case before us.” 395. U. S.,, at 696 n. 8.

' Thus, Noyd supports the proposition that “exhaustion is not re-

quired when a prisoner “challenges the personal jurisdiction of the

military.” Developments in the Law—Federal Habeas Corpus, 83

_ Harv. L. Rev. 1038, 1233 n. 169. Wee ee ee

of that nature. ‘ ee

° 5 as

PARISI v. D ON a) |

are administering progr relating to criminal justice. .

See Fay v. Noia, 372 U. 8.391. But “the principles of .

federalism whith enlighten the law of federal habeas

corpus for state prisoners are not relevant,” Noyd v.

Bond, 395 U. S., at-694, to analogous questions involving

military prisoners. Military proceedings are. different.

As we said in O'Callahan v. Parker, 395 U. S. 258, 265,

“A court-martial is not yet an indepéndent instrument’

of justice but remains to a significant degree a specialized

part of the overall mechanism by which military, disci-

_ pline is preserved.” _ BRS "

Comity is-“a doctrine which teaches that: one court _

should defer action on .causes properly within its juris-

- diction until the courts of another sovereignty with con--

‘current powers, and already cognizant of the litigation,

have had an opportunity to pass upon the matter.” Darr

v. Burford, 339 U. S. 200, 204. But the Pentagon is not

yet sovereign, The'military is simply another adminis-

trative agency, insofar as judicial review is concerned.

Cf. Comment, 43 S. Cal. L. Rev. 356, 377-378. While

we have stated in the past that special deference is: due

the military decisionmaking process, Gustk v. Schilder,

340 U. S. 128, this is so rieither. because of “comity,” nor

the sanctity of the executive branch, but because ofacon- |

cern for the-effect of judicial iritervention on morale and. ”

military discipline, and because of the civilian judiciary’s

_ General unfamiliarity with “extremely technical provisions

of the Uniform Code [of Military Justice] which have

n@ analogs in civilian jurisprudence,” Noyd v. Bond,

supra, at 696. - | Lee a ay

* As Irving Brant says in the Bill of Rights 483 (1965), “the

essential differences between state and federal criminal law, though

immense in subject matter, have liftle bearing on ‘fundamental fair-

ness’ or ‘basic liberties.’ These are involved when overlapping

* jurisdictions produce double jeopardy, but the fundamentals of fair-

ness are not different in state and federal courts.” - ;

. ra OCTOBER TERM, 1971

‘Dovatas, J, concurring in result 405 0-8,

The: “special expertise” argument is often euplored i o

the defenders of the military court system. Thus

- argument was advanced—and Tejected—that the div: 3

judges who were.to staff the Court of Military Appeals .

could not do service, absent military experience, to the

complicated, technical niceties - of military law.* See,

‘Many of today’s critics of the Court of Military Appeals feel’

pertictr nents Aepiernn Dowd Wer Shared a

Music 214-215 (1970). Critics must concede, YS that the

court has at least been partially successful in infusing civilian notions °

of due process into the military justice system. See, e. g., E. Sher- .

man, Justice in the. Military, in Conscience and Command 21, ae

(J. Finn ed. 1971). Thus, the court has extended to sérvicemen the

Tight to a speedy trial, United States v. Schalck, 14 U.S.C: M.A. -

371, 34 C. M. R. 151; the right to confront witnesses, United States :

v. Jacoby, 11 U. 8. C. M. A. 428; 29 OrM. R. 244; the right to

protection. against, unreasonable searches and seizures, United States

"vy. Vierra, 14 U. 8. C. M, A. 48, 33 C. M. R. 260; the privilege

against self-incrimination, United States v. Kemp, 13 U. 8. C. M. A.

89, 32 C.'M.-R. 80; the ‘right to’a public trial, United States v.

Brown, 7 U. 8. C. M. A..251, 22 C, M. R. 41; the right to com-.

-pulsory service. of ‘process, United States vy, Sweeney, 14 U. S.-C.

M. A. 599, 34 C. M. R.. 379; and the right to Mirande-type

warnings, United States v. Tempia, 16 U: 8. C. M. A. 629, 37

C. M. R. 249. .

Despite these advances, however, the military justice system’s

disregard of the constitutional rights of servicemen is pervasive.

See Hearings on Constitutional Rights of Military Personnel before

the Subcommittee on Constitutional Rights of the Senate Committee

dn the Judiciary, pursuant to S. Res. No.- 260, 87th Cong., 2d Sess.;

Joint Hearings on 8. 745 et al. before the Subcommittee on’ Con-

stitutional Rights of the Senate Committee on the Judiciary and a

" Special’ Subcommittee of the Senate Armed Services Committee, —

89th Cong., 2d Sess., pts. 1 and 2. See also Summary-Report of

Hearings on Constitutional Rights of Military Personnel, ‘by the.

Subcommittee on Constitutional ‘Rights of the Senate Committee on ;

the Judiciary, ‘pursuant to S. Res. No. 58, 88th Cong., Ist Sess.

-. (Comm. Print 1963). = = :

PARISI». DAVIDSON 2 BC a

_ @ Gy 96 Cong. Rec. 1305-1306. ‘But eivilian We

must deal with equally arcane matters in such areas

+88 patent, admiralty, tax, antitrust, and bankruptcy law,

on ‘a daily basis. OE ESE OR |

Our system of spécialized military courts, though — ae

“necessary to an effective national defense establishment,” _

_ O'Callahan v. Parker, 395 U:S., at 285, has roots in a sys-

tem almost alien to the system of justice provided by the

Bill of Rights, by Art. III, and. by the special provision |

for habeas corpus contained in Art. I, $9. Military law

is primarily an instrument of discipline and a “military ae res ee

_ trial is marked-by the age-old manifest destiny of retrib- ein ee

utive justice.” IJd., at.266.5 For the sake of discj- . ‘ee

e iis Views on the state of military justice during World War II by

his statement, during the floor debates oni the proposed Code; that

“Had they used the Pentagon Building for what it was designed, a

veteran’s hospital,. America would have been lots better off today.”

"__ ‘The Federal Rules of Civil Procedure govern habeas corpus' (Rule rt

81 (a)(2)), that remedy being civil in nature; and those Rules are

Appeals (see the Rules ff. 10 U. 8. C. A. $867, Supp. 1972)- con-

tain no es ti hal : . . ‘\

While collatera] remedies have been recognised by the Court of

Military Appeals since 1966, United States v. Frischholz, 16 U. 8. C.

; M. A. 150, 36 C. M. R. 306, and the express power to grant habeas

by

7) OCTOBER TERM, 1971

Dovanas, J., concurring in result 405 U.8.

within the scope of statutes governing the problem and

arly constitutional requirements. To repeat, both stat- -

utes " and the Constitution * are implicated in the claims

Of conscientious objectors. -

‘ tary system by appealing the conviction or seeking habeas

‘corpus in the Court of Military Appeals. But he need

go no further than to exhaust his administrative remedies

. for overruling the decision that he was not a conscientious _

objector. If there is a statutory or constitutional reason -

_ why he should not obey the order of the Army, that

agency is overreaching when it punishes him for his

_ The Army has a separate discipline of its own and ob-.

viously it fills a special need.. But matters of the mind

and spirit, rooted in the First Amendment, are not in the

corpus relief: was asserted in 1967, Levy v. Resor, 17 U.S.C. M.A. -

135, 37°C. M. R. 399, the military prisoner is at a substantial dis-

advantage compared to his civilian counterpart. See Uniform Code

of Military. Justice, Arts. 32, 36, 46, and 49, 10 U. S. C.. §§ 832,

836, 846, and 849. . See Melnick, The Defendant’s Right to Obtain

Evidence: An Examination of the’ Military Viewpoint, 29 Mil. L.

. Rev. 1 (1965). See generally M. Comisky & L. Apothaker, Crim- cs

. (1963). And see Manual for Courts-Martial, J] 30f, 34, 115, 117,

and 145a (1968). a Sat | :

*50 U. S.-C. App.. § 456 (j). See United States v. Seeger, 380

Com at, gre ss : Zit =)

*See Gillette v. United States, 401 U. 8. 437, 463 (Dovaras, J.

: . dissenting). : 26 x . , S

~

>

=

er

- 34 pe: . Dovaras, J, condirting in resilt -

keeping of. the military. Civil liberty and the military

regime have an “antagonism” that. is “irreconcilable.”

E; parte Milligan, 4 Wall., at 124, 125. - When the mili-

steps over, those bounds, it leaves the area of its

| expertise and forsakes its domain.’ The matter then be-

, comes one for civilian courts to resolve, consistent with

_ the statutes: and with the Constitution.

ie Co

One

ate

* Another factor militating against the Court’s reliance on “comity” .

a ing the insulation of the military justice’system from civilian

review is the enormous power of the military in modern American

Sie es pect A

“From an initial authorized strength of well under one thousand,

_ Our army alone has grown into a behemoth numbering well over

_ & million men even in time of ina] peace. No longer does the

military lie dormant and unnoticed for! years on end, coming to the un

attention. of the typical citizen only in time of war. Today every

_ Inale resident is a potential ‘soldier, sailor, or airman; and: it has been

estimated that even in time of peace such service occupies ‘at least

four percent-of the adult life of thé average American reaching draft

_ ., age.’ As Chief Justice Warren recently observed :

‘g,, When the authority of the military has such a sweeping capacity

for affecting the lives of our citizenry, the wisdom of treating the =.

‘military establishment as‘an enclave beyond the reach of the ‘civilian ©

courts almost inevitably is drawn into question.’ [ Warren, The Bill —

of Rights. and. the Military, 37.N. Y. U. L. Rev. 181, 188:}”

~~ Comment, God, the Army, and Judicial Review:-The In-Service -

Conscientious Objector, 56 Calif. L. Rev. 379, 446-447.

PARISI v. DAVIDSON 2 sss

ee