Opinion of
Further study and reflection have reinforced the conviction I expressed last June — and on even broader grounds than I then indicated — that this case should be set down for reargument. Fundamental issues which have neither been argued by counsel nor considered by the Court are here involved. On such important questions, the military authorities, the bar, and the lower courts (including the Court of Military Appeals) ought not to be left with the inconclusive determination which our disposition of the case last June implies. One hаs a right to assume that there is greater likelihood of securing agreement of views for a Court opinion at the beginning than at the end of a term.
First.
One of these problems concerns the effect of recent developments in the scope of inquiry on habeas corpus uрon the relationship of the federal district courts in their habeas corpus jurisdiction to courts-martial. If the main opinion stands, matters which are open for inquiry on collateral attack upon a judgment of conviction entered in a United States District Court, a constitutional tribunаl, will be foreclosed from inquiry when the judgment of conviction collaterally assailed is that of a court-martial, an executive tribunal of limited jurisdiction
ad hoc
in nature. This has not been the law up to now; and the assertion that “in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases” (
*845
1. The first case in this Court involving the collateral attack, by habeas corpus, on the judgment of a court-martial was
Ex parte Reed,
“The court had jurisdiction over the person and the case. It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same bаsis, and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances. The exercise of discretion, within authorized limits, cannot be assigned for error and made the subject of review by аn appellate court.”
It was thus clearly stated that the standard for collateral consideration of judgments of courts-martial is the same as that applied on collateral consideration of judgments of other tribunals. Once “jurisdiction” is shown to exist, the inquiry ends; the question is not whеther that jurisdiction was well or wisely exercised, or whether error was committed, it is only whether there was power to act at all.
This was always the traditional scope of inquiry when the judgment sought to be examined on habeas corpus was that of a federal or territorial or Distriсt of Columbia court.
E. g., Matter of Moran,
*846
And so, in the earlier cases scrutinizing military sentences by habeas corpus, it was similarly laid down that “The single inquiry, the test, is jurisdiction.”
In re Grimley,
Thus, up to December 6, 1937, when the Court denied certiorari (
2. Later in the 1937 Term,
Johnson
v.
Zerbst,
3. The effect of
Johnson
v.
Zerbst
on judgments of conviction pronounced by a court-martial first appears to have been considered in
Shapiro
v.
United States,
Later decisions in the Court of Clаims, where of course collateral attack is by way of a petition for back pay resting on allegations that the assailed court-martial proceedings were void, have followed the rationale of the
Shapiro
case. Thus, in
Sima
v.
United States,
4. This Court has never considered the applicability of Johnson v. Zerbst to military habeas corpus cases. But if denial of the right to counsel makes a civil body legally nonexistent, i. e., without “jurisdiction,” so as to authorize habeas corpus, by what process of reasoning can a military bоdy denying such right to counsel fail to be equally nonexistent legally speaking, i. e., without “jurisdiction,” so as to authorize habeas corpus? Again, if a denial of due process deprives a civil body of “jurisdiction,” is not a military body equally without “jurisdiction” when it makes such a denial, whatever the requirements of due process in the particular circumstances may be?
It is true that in
Hiatt
v.
Brown,
5. In coming to this conclusion, the main opinion purported to derive some comfort from the “finality” provision of the 1948 Articles of War and of the Uniform Code of Military Justice (AW 50 (h), 10 U. S. C. (Supp. II) § 1521 (h); UCMJ, Art. 76, 50 U. S. C. (Supp. V) § 663), both of which state in terms that court-martial proceedings, once appellate review is completed, “shall be binding upon all departments, courts, agencies, and officers of the United States.” But the decision in
Estep
v.
United
States,
6. It is desirable to emphasize that I express no opinion whatever on whether the allegations of the petition in the case at bar are sufficient to sustain a collateral attack on the court-martial's judgment of conviction. Nor do I express any opinion on the weight which should be given by the federal district court on habeas corpus to the findings of the military reviewing authorities. These, are *851 matters to be canvassed on the reargument. The issue here is whether the rationale of Johnson v. Zerbst is now to be quietly discarded or whether it will be appropriately applied, as it has been by the lower courts, in the military sphere. I do not think it is asking too much to insist that we have well-focused argument and careful deliberation before enunciating the principle that a conviction by a constitutional court which lacked due procеss is open to attack by habeas corpus while an identically defective conviction when rendered by an ad hoc military tribunal is invulnerable. 3
Second. There is another issue of broad importance which underlies this case but which has not been considered by the Court.
Both petitioners, alleging confinement in Japan (R. 1, 9) and American citizenship (id.), sought habeas corpus in the District of Columbia.
Thus there is raised squarely the question, thus far reserved by us
(Ahrens
v.
Clark,
This question was originally answered squarely in the negative by the highest court of the District of Columbia.
McCowan
v.
Moody,
22 App. D. C. 148 (detention on Guam, writ sought to be directed against the Secretary of the Navy). That precedent was followed as late as 1948 without question.
Ex parte Flick,
Petitioners have not discussed thе question of jurisdiction, and the Government appears disinclined to argue it.
We should not permit a question of jurisdiction as far-reaching as this one to go by concession, or decide it sub silentio. I express no view on how we should determine the issue, or on what grounds, but I think that we should frankly face it, even at the risk of concluding that a legislative remedy is necessary. Cf. Wolf son, Americans Abroad and Habeas Corpus, 9 Fed. Bar J. 142, 10 id., at 69. It is particularly important that we do so at this time when thousands of our citizens in uniform are serving overseas.
Notes
The direction of the opinion may well have been influenced by the following assumption regarding this Court’s relation to military law: “This Court has played no role in [the development of military law] ; we have exerted no supervisory power over the courts which enforce it; . . .” (346 TJ. S., at 140). Of course it is true that we have no direct appellate jurisdiction over military courts. But it disregards both history and the statute books to say that our decisions have played no role in the development of military law. The pages of Winthrop are witness to the extent that the “Blackstone of American military law” (as General Crowder, Judge Advocate General of the Army from 1911 to 1923, called him) considered himself bound by this Court’s pronouncements. Since 1920, Article of War 38 (10 U. S. C. (1926-1946 eds.) § 1509) has provided that the “modes of proof” in court-martial cases shall conform as nearly as practicable to the rules of evidence aрplicable to criminal cases in the United States district courts. Those rules of course are prescribed by this Court. In 1948 this language was expanded to include “principles of law” as well as rules of evidence (10 U. S. C. (Supp. II) § 1509), and our decisions have been frequently cited by the military, as indеed they were in this very case. The same broad language is now in Art. 36, UCMJ, 50 U. S. C. (Supp. V) § 611, and the judges of the U. S. Court of Military Appeals apparently consider themselves bound by what we say. See Brosman, The Court: Freer Than Most, 6 Vand. L. Rev. 166, 167.
It is noteworthy, though it was not referred to in the briefs, that as a matter of administrative recognition this “finality” provision has not been read with dictionary literalness. See 41 Op. Atty. Gen., No. 8, Dec. 29, 1949, which holds that AW 50 (h) of 1948 — the very provision involved in the present case — did not bar the reopening of a record of conviction by court-martial by a Departmental Bоard for the Correction of Records functioning pursuant to § 207 of the Legislative Reorganization Act of 1946 (5 U. S. C. §§ 191a, 275). The action of those boards required approval by the Secretary concerned.
I say “ad hoc,” not in any derogatory sense, but merely to put the matter in its proper setting. See Winthrop, Military Law and Precedents (2d ed. 1896), 53-54.