Parisi v. Davidson (405 U.S. 34)/Concurrence Douglas

[p46] MR. JUSTICE DOUGLAS, concurring in the result.

I agree with the Court'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 authority had always been unopposed. While the President [p47] 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 otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it." Id., at 126.

Mr. Chief Justice Taney in Ex parte Merryman, 17 F. Cas. 144 (No. 9,487) (CC Md. 1861), held that the President alone had no authority to suspend the writ, a position that Lincoln did not honor. To date, the question has never been resolved, and its decision is not relevant to the present case. I mention the matter because of the constitutional underpinning of the writ of habeas 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 Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Court has consistently reaffirmed the preferred place of the Great Writ in our constitutional system. Fay v. Noia, 372 U.S. 391, 400; Smith v. Bennett, 365 U.S. 708, 713.

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 Exceptions, and... such Regulations as the Congress 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 Congress provided for the issuance of the writ. But as Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 95, "for if the means be not in existence, the privilege [p48] itself would be lost, although now law for its suspension should be enacted." It is also true that "the meaning of the term 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 be given by written law." Id., at 93-94.

What courts may do is dependent on statutes, save as their jurisdiction is defined by the Constitution. What federal judges may do, however, is a distinct question. Authority to prevent constitutional rights of individuals 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 not be suspended" must mean that its issuance, in a proper case or controversy, is an implied power of any federal judge.

We have ruled that even without congressional statutes enforcing constitutional rights, the federal judges have authority to enforce the federal guarantee. Fay v. New York, 332 U.S. 261, 283-284, 285, 293; Katzenbach v. Morgan, 384 U.S. 641, 647. Those cases involved protests by individuals against state action. Certainly the military does not stand in a preferred position.

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 statutory and constitutional exemption from military [p49] service. The conflict between military prerogatives and civilian judicial authority is as apparent in this case as it was in Ex parte Milligan. A person who appropriately 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 tribunals. 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.

While the Court of Military Appeals has the authority to issue the writ of habeas corpus, Noyd v. Bond, 395 U.S. 683, 695 n. 7; Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399, we have never held that a challenge to the military's jurisdiction to try a person must first be sought there rather than in a federal district court. Of [p50] 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 is available 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 system, for both the States and the Federal Government [p51] are administering programs relating to criminal justice. See Fay v. Noia, 372 U.S. 391. But "the principles of federalism which 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 independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved."

Comity is "a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent 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 administrative 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, Gusik v. Schilder, 340 U.S. 128, this is so neither because of "comity," nor the sanctity of the Executive Branch, but because of a concern for the effect of judicial intervention 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 no analogs in civilian jurisprudence," Noyd v. Bond, supra, at 696.

[p52] The "special expertise" argument is often employed by the defenders of the military court system. Thus, the argument was advanced—and rejected—that the civilian 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, [p53] e.g., 96 Cong. Rec. 1305-1306. But civilian courts must deal with equally arcane matters in such areas as patent, admiralty, tax, antitrust, and bankruptcy law, on a daily basis.

Our system of specialized military courts, though "necessary to an effective national defense establishment," O'Callahan v. Parker, 395 U.S., at 265, has roots in a system 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 trial is marked by the age-old manifest destiny of retributive justice." Id., at 266. For the sake of discipline and orderliness a person in the military service must normally follow the military administrative procedure and exhaust its requirements. Gusik v. Schilder, 340 U.S. 128. But once those administrative remedies are exhausted, he must then be permitted to resort to civilian courts to make sure the the military regime acts [p54] within the scope of statutes governing the problem and any constitutional requirements. To repeat, both statutes and the Constitution are implicated in the claims of conscientious objectors.

Petitioner claims to be a conscientious objector and therefore not subject to military orders. He was charged with refusing to obey a military order sending him to Vietnam and has been convicted of that offense. While the court-martial charges against him were pending, he exhausted all administrative remedies for relief from the Army's denial of his conscientious objector application. In theory he could pursue his remedies within the military 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 refusal.

The Army has a separate discipline of its own and obviously is fills a special need. But matters of the mind and spirit, rooted in the First Amendment, are not in the [p54] keeping of the military. Civil liberty and the military regime have an "antagonism" that is "irreconcilable." Ex parte Milligan, 4 Wall., at 124, 125. When the military steps over those bounds, it leaves the area of its expertise and forsakes its domain. The matter then becomes one for civilian courts to resolve, consistent with the statutes and with the Constitution.