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statutory directions, to be interpreted in the light of juridical considerations. The legislative history of the Uniform Code of Military Justice strongly suggests that it was precisely in the realm of collateral judicial attack on courts-martial that the concept of "finality" was intended not to operate. Here is what both Armed Services Committees said of Article 76, UCMJ: "This article is derived from AW 50 (h) and is modified to conform to terminology used in this code. Subject only to a petition for a writ of habeas corpus in Federal court, it provides for the finality of court-martial proceedings and judgments." H. R. Rep. No. 491, 81st Cong., 1st Sess., p. 35; S. Rep. No. 486, 81st Cong., 1st Sess., p. 32. I have added the italics to emphasize the congressional agreement with our decision on the same point in Gusik v. Schilder, 340 U. S. 128, 132–133. If that case and the Committee Reports have any meaning at all, they mean that the "finality" provision is completely irrelevant to any consideration. concerning the proper scope of inquiry in military habeas corpus cases.2

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

2 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 Board 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.

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Opinion of FRANKFURTER, J.

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 process 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, 335 U. S. 188, 192, n. 4; Johnson v. Eisentrager, 339 U. S. 763, 790-791), whether an American citizen detained by federal officers outside of any federal judicial district, may maintain habeas corpus directed against the official superior of the officers actually having him in custody.

This question was originally answered squarely in the negative by the highest court of the District of Columbia. McGowan 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, 76 F. Supp. 979 (D. D. C.), reversed on other grounds sub nom. Flick v. Johnson, 85 U. S. App. D. C. 70, 174 F. 2d 983. It may have been, and probably was, overruled by Eisentrager v.

3 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.

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Forrestal, 84 U. S. App. D. C. 396, 174 F. 2d 961, which we in turn reversed for other reasons in Johnson v. Eisentrager, supra.

Petitioners have not discussed the question of jurisdiction, and the Government appears disinclined to argue it. We should not permit a question of jurisdiction as farreaching 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. Wolfson, 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.

OCTOBER 19, 1953.

Per Curiam Decisions.

No. 169. WHEELER V. MISSISSIPPI. Appeal from the Supreme Court of Mississippi. Per Curiam: The appeal is dismissed for want of jurisdiction. 28 U. S. C. § 1257 (2). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by 28 U. S. C. § 2103, certiorari is denied. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS are of the opinion. certiorari should be granted. THE CHIEF JUSTICE took no part in the consideration or decision of this case. W. Arlington Jones for appellant. Reported below: Miss.

63 So. 2d 517.

No. 229. HAINES ET AL., COMPRISING KEYSTONE POLICYHOLDERS' COMMITTEE, v. PENNSYLVANIA ET AL. Appeal from the Supreme Court of Pennsylvania, Middle District. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for the want of jurisdiction. 28 U. S. C. § 1257 (2). Treating the papers whereon the

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appeal was allowed as a petition for writ of certiorari as required by 28 U. S. C. § 2103, certiorari is denied. Ellis G. Arnall and Cleburne E. Gregory, Jr. for appellants. D. Arthur Magaziner for appellees. Reported below: 373 Pa. 105, 95 A. 2d 664.

Miscellaneous Orders.

No. 5, Original, October Term, 1950. NEW JERSEY V. NEW YORK ET AL. The motion of the City of New York for leave to file an amended petition to modify the decree is granted and the parties are allowed thirty days within which to answer the amended petition. Denis M. Hurley, John P. McGrath, Jeremiah M. Evarts, James J. Thornton and Richard H. Burke for the City of New York. Theodore D. Parsons, Attorney General, Robert Peacock, Deputy Attorney General, and Kenneth H. Murray for the State of New Jersey.

No. 540, October Term, 1952. UNITED STATES v. NuGENT; and

No. 573, October Term, 1952. UNITED STATES v. PACKER, 346 U. S. 1. Petition for rehearing denied. Motions to correct and for clarification of the opinion also denied. THE CHIEF JUSTICE and MR. JUSTICE JACKSON took no part in the consideration or decision of these applications.

No. 368, Misc., October Term, 1952. GOODMAN ET AL. v. MCMILLAN, TRUSTEE, ET AL., 345 U. S. 929. Petition for further consideration denied. THE CHIEF JUSTICE took no part in the consideration or decision of this application.

υ.

No. 96, Misc. AHERN V. GREEN, SUPERINTENDENT, FAIRFIELD STATE HOSPITAL; and

No. 97, Misc. LUCAS v. HIATT, WARDEN. Motions for leave to file petitions for writs of habeas corpus denied.

Certiorari Granted.

October 19, 1953.

346 U.S.

No. 241. TOM WE SHUNG v. BROWNELL, ATTORNEY GENERAL, ET AL. United States Court of Appeals for the District of Columbia Circuit. Certiorari granted. Jack Wasserman for petitioner. Acting Solicitor General Stern, Assistant Attorney General Olney, Beatrice Rosenberg and Felicia H. Dubrovsky for respondents. Reported below: 93 U. S. App. D. C. 207 F. 2d 132.

Certiorari Denied. (See also Nos. 169 and 229, supra.)

No. 129. JONES v. UNITED STATES. C. A. 7th Cir. Certiorari denied. Sarsfield Collins for petitioner. Acting Solicitor General Davis, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 204 F. 2d 745.

No. 176.

KELLEY V. ROHN, EXECUTOR. Supreme Court of Nebraska. Certiorari denied. Ralph R. Bremers for petitioner. Thomas P. Leary for respondent. Reported below: 156 Neb. 463, 56 N. W. 2d 711.

No. 213. M. & J. TRACY, INC. v. UNITED STATES. Court of Claims. Certiorari denied. James S. Hays and William E. Grady, Jr. for petitioner. Acting Solicitor General Stern, Assistant Attorney General Burger, Paul A. Sweeney, Leavenworth Colby and Hubert H. Margolies for the United States. Reported below: 125 Ct. Cl. 70, 111 F. Supp. 956.

No. 226. RECONSTRUCTION FINANCE CORP. v. HARRISONS & CROSFIELD, LTD., BY FRED PUSINELLI & CO., INC., AGENT. C. A. 2d Cir. Certiorari denied. Acting Solicitor General Davis for petitioner. Francis A. Brick, Jr. and Burr F. Coleman for respondent. Reported below: 204 F.2d 366.

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