(Cite as: 417 U.S. 733, 94 S.Ct. 2547)
Jocob J. PARKER, Warden, et
al., Appellants,
v.
Howard B. LEVY.
No. 73--206.
Supreme Court of the United States
Argued Feb. 20, 1974.
Decided June 19, 1974.
Court-martialed army captain brought habeas corpus proceeding seeking discharge from confinement in federal penitentiary. The United States District Court for the Middle District of Pennsylvania denied relief, and the captain appealed. The Court of Appeals, 478 F.2d 772, reversed and remanded and the warden and Secretary of the Army appealed. The Supreme Court, Mr. Justice Rehnquist, held that articles of Uniform Code of Military Justice authorizing court-martial for conduct unbecoming an officer and a gentleman and court- martial for disorders and neglects to prejudice of good order and discipline were not unconstitutionally vague nor were they facially invalid because of overbreadth; that the proper standard for review for a vagueness challenge to Code articles is the standard that applies to criminal statutes regulating economic affairs; and that the captain's conduct in publicly urging enlisted personnel to refuse to obey orders which might send them into combat was unprotected under the most expansive notions of the First Amendment.
Reversed.
Mr. Justice Blackmun filed
a concurring statement in which the Chief Justice joined.
Mr. Justice Douglas
dissented and filed opinion.
Mr. Justice Stewart
dissented and filed an opinion in which Mr. Justice Douglas and Mr. Justice
Brennan joined.
Mr. Justice Marshall took
no part in the consideration or decision.
U.S.Pa. 1974.
See publication Words and Phrases for other judicial constructions
and definitions.
"Any court of the United States"
**2550 *733 Syllabus [FN*]
FN* The syllabus constitutes no
part of the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader. See United States v. Detroit
Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
Article 90(2) of the Uniform Code of Military Justice (Code)
provides for punishment of any person subject to the Code who 'willfully
disobeys a lawful command of his superior commissioned officer'; Art. 133
punishes a commissioned officer for 'conduct unbecoming an officer and a
gentleman'; and Art. 134 (the general article) punishes any person subject to
the Code for, inter alia, 'all disorders and neglects to the prejudice of good
order and discipline in the armed forces,' though not specifically mentioned in
the Code. Appellee, an Army physician assigned to a hospital, was convicted by
a general court-martial of violating Art. 90(2) for disobeying the hospital
commandant's order to establish a training program for Special Forces aide men,
and of violating Arts. 133 and 134 for making public statements urging Negro
enlisted men to refuse to obey orders to go to Vietnam and referring to Special
Forces personnel as 'liars and thieves,' 'killers of peasants,' and 'murders of
women and children.' After his conviction was sustained within the military and
he exhausted this avenue of relief, appellee sought habeas corpus relief in the
District Court, challenging his conviction on the ground that both Art. 133 and
Art. 134 are 'void for vagueness' under the Due Process Clause of the Fifth
Amendment and overbroad in violation of the First Amendment. The District Court
denied relief, but the Court of Appeals
**2551 reversed, holding that Arts. 133 and 134 are void for vagueness,
that while appellee's conduct fell within an example of Art. 134 violations contained
in the Manual for Courts- Martial, the possibility that the articles would be
applied to others' future conduct as to which there was insufficient warning,
or which was within the area of protected First Amendment expression, was
enough to give appellee standing to challenge both articles on their face, and
that the joint consideration of the Art. 90 charges gave rise to a 'reasonable
possibility' that appellee's right to a fair trial was prejudiced, so that a
new trial was required. Held:
1. Articles
133 and 134 are not unconstitutionally vague under the Due Process Clause of
the Fifth Amendment. Pp. 2560--2562.
*734 (a)
Each article has been construed by the United States Court of Military Appeals
or by other military authorities, such as the Manual for Courts-Martial, so as
to limit its scope, thus narrowing the very broad reach of the literal language
of the articles, and at the same time supplying considerable specificity by way
of examples of the conduct that they cover. Pp. 2560--2561.
(b)
The articles are not subject to being condemned for specifying no standard of
conduct at all, but are of the type of statutes which 'by their terms or as
authoritatively construed apply without question to certain activities, but
whose application to other behavior is uncertain,' Smith v. Goguen, 415 U.S.
566, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605. Pp. 2561--2562.
(c)
Because of the factors differentiating military from civilian society, Congress
is permitted to legislate with greater breadth and flexibility when prescribing
rules for the former than when prescribing rules for the latter, and the proper
standard of review for a vagueness challenge to Code articles is the standard
that applies to criminal statutes regulating economic affairs, and that standard
was met here, since appellee could have had no reasonable doubt that his
statements urging Negro enlisted men not to go to Vietnam if ordered to do so
was both 'unbecoming an officer and gentleman' and 'to the prejudice of good
order and discipline in the armed forces,' in violation of Arts. 133 and 134,
respectively. Pp. 2561--2562.
2. Nor
are Arts. 133 and 134 facially invalid because of overbreadth. Pp. 2562--2564.
(a)
Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise
language like that contained in Arts. 133 and 134 are not exempt from the
operation of the principles that while military personnel are not excluded from
First Amendment protection, the fundamental necessity for obedience, and the
consequent necessity for discipline, may render permissible within the military
that which would be constitutionally impermissible outside it. Pp. 2562--2563.
(b)
There is a wide range of conduct to which Arts. 133 and 134 may be applied
without infringing the First Amendment, and while there may be marginal
applications in which First Amendment values would be infringed, this is
insufficient to invalidate either article at appellee's behest. His conduct in
publicly urging enlisted personnel to refuse to obey orders which might send
them into combat was unprotected under the most expansive notions of the First
Amendment, and Arts. 133 and 134 *735
may constitutionally prohibit that conduct, and a sufficiently large number of
similar or related types of conduct so as to preclude their invalidation for
overbreadth. Pp. 2563--2564.
3.
Appellee's contention that even if Arts. 133 and 134 are constitutional, his
conviction under Art. 90 should be invalidated because to carry out the
hospital commandant's order would have constituted participation in a war crime
and because the commandant gave the order, knowing it would be disobeyed, for
the sole purpose of increasing appellee's punishment, is not of constitutional
significance **2552 and is beyond
the scope of review, since such defenses were resolved against appellee on a
factual basis by the court-martial that convicted him. P. 2564.
3
Cir., 478 F.2d 772, reversed.
Sol.
Gen. Robert H. Bork, for appellants.
Charles Morgan, Jr., Atlanta, Ga., for appellee.
Mr.
Justice REHNQUIST delivered the opinion of the Court.
Appellee Howard Levy, a physician, was a captain in the Army
stationed at Fort Jackson, South Carolina.
*736 He had entered the Army under the so-called 'Berry Plan,' [FN1] under
which he agreed to serve for two years in the Armed Forces if permitted first
to complete his medical training. From the time he entered on active duty in
July 1965 until his trial by court-martial, he was assigned as Chief of the
Dermatological Service of the United States Army Hospital at Fort Jackson. On
June 2, 1967, appellee was convicted by a general court-martial of violations
of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and
sentenced to dismissal from the service, forfeiture of all pay and allowances,
and confinement for three years at hard labor.
FN1. See 50 U.S.C. App. s
454(j).
The facts upon which his conviction rests are virtually
undisputed. The evidence admitted at his court-martial trial showed that one of
the functions of the hospital to which appellee was assigned was that of
training Special Forces aide men. As Chief of the Dermatological Service,
appellee was to conduct a clinic for those aide men. In the late summer of
1966, it came to the attention of the hospital commander that the dermatology
training of the students was unsatisfactory. After investigating the program
and determining that appellee had totally neglected his duties, the commander
called appellee to his office and personally handed him a written order to
conduct the training. Appellee read the order, said that he understood it, but
declared that he would not obey it because of his medical ethics. Appellee
persisted in his refusal to obey the order, and later reviews of the program
established that the training was still not being carried out.
During the same period of time, appellee made several public
statements to enlisted personnel at the post, of which the following is
representative:
'The United States is wrong
in being involved in *737 the Viet
Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why
any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam
and if sent should refuse to fight because they are discriminated against and
denied their freedom in the United States, and they are sacrificed and
discriminated against in Viet Nam by being given all the hazardous duty and
they are suffering the majority of casualties. If I were a colored soldier I
would refuse to go to Viet Nam and if I were a colored soldier and were sent I
would refuse to fight. Special Forces personnel are liars and thieves and
killers of peasants and murderers of women and children.'
Appellee's military superiors originally contemplated nonjudicial
proceedings against him under Art. 15 of the Uniform Code of Military Justice,
10 U.S.C. s 815, but later determined that courtmartial proceedings were
appropriate. The specification under Art. 90 alleged that appellee willfully
disobeyed the hospital commandant's order to establish the training program, in
violation of that article, which punishes anyone subject to the Uniform Code of
Military Justice who 'willfully disobeys a lawful command of his superior
commissioned officer.' [FN2] Statements to enlisted **2553 personnel were *738
listed as specifications under the charges of violating Arts. 133 and 134 of
the Code. Article 133 provides for the punishment of 'conduct unbecoming an
officer and a gentleman,' [FN3] while Art. 134 proscribes, inter alia, 'all
disorders and neglects to the prejudice of good order and discipline in the
armed forces.' [FN4]
FN2. Article 90 of the Uniform
Code of Military Justice, 10 U.S.C. s 890, provides:
'Any person subject to this
chapter who--
'(1)
strikes his superior commissioned officer or draws or lifts up any weapon or offers
any violence against him while he is in the execution of his office; or
'(2) willfully disobeys a lawful command of his superior
commissioned officer;
'shall be punished, if the offense is committed in time of war, by
death or such other punishment as a court-martial may direct, and if the
offense is committed at any other time, by such punishment, other than death,
as a court-martial may direct.'
FN3. Article 133 of the Uniform Code of Military Justice, 10
U.S.C. s 933, provides:
'Any commissioned officer, cadet, or midshipman who is convicted
of conduct unbecoming an officer and a gentleman shall be punished as a
court-martial may direct.'
FN4. Article 134 of the Uniform Code of Military Justice, 10
U.S.C. s 934, provides:
'Though not specifically mentioned in this chapter, all disorders
and neglects to the prejudice of good order and discipline in the armed forces,
all conduct of a nature to bring discredit upon the armed forces, and crimes
and offenses not capital, of which persons subject to this chapter may be
guilty, shall be taken cognizance of by a general, special, or summary
court-martial, according to the nature and degree of the offense, and shall be
punished at the discretion of that court.'
The specification under
Art. 134 alleged that appellee 'did, at Fort Jackson, South Carolina, . . .
with design to promote disloyalty and disaffection among the troops, publicly
utter (certain) statements to divers enlisted personnel at divers times . . ..'
[FN5] The specification under *739
Art. 133 alleged that appellee did 'while in the performance of his duties at
the United States Army Hospital . . . wrongfully and dishonorably' make
statements variously described as intemperate, defamatory, provoking, disloyal,
contemptuous, and disrespectful to Special Forces personnel and to enlisted
personnel who were patients or under his supervision. [FN6]
FN5. The specification under Art. 134 (Charge II) alleged in full:
'In that Captain Howard B. Levy, U.S. Army, Headquarters and
Headquartes Company, United States Army Hospital, Fort Jackson, South Carolina,
did, at Fort Jackson, South Carolina, on or about the period February 1966 to
December 1966, with design to promote disloyalty and disaffection among the
troops, publicly utter the following statements to divers enlisted personnel at
divers times: 'The United States is wrong in being involved in the Viet Nam
War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any
colored soldier would go to Viet Nam; they should refuse to go to Viet Nam and
if sent should refuse to fight because they are discriminated against and
denied their freedom in the United States, and they are sacrificed and
discriminated against in Viet Nam by being given all the hazardous duty and
they are suffering the majority of casualties. If I were a colored soldier I
would refuse to go to Viet Nam and if I were
a colored soldier and were sent I would refuse to fight. Special Forces
personnel are liars and thieves and killers of peasants and murderers of women
and children,' or words to that effect, which statements were disloyal to the
United States, to the prejudice of good order and discipline in the armed
forces.'
FN6. The specification under Art. 133 (Additional Charge I)
alleged tht appellee
'did . . . at divers times during the period from on or about
February 1966 to on or about December 1966 while in the performance of his
duties at the United States Army Hospital, Fort Jackson, South Carolina,
wrongfully and dishonorably make the following statements of the nature and to
and in the presence and hearing of the persons as hereinafter more particularly
described, to wit: (1) Intemperate, defamatory, provoking, and disloyal
statements to special forces enlisted personnel present for training in the
United States Army Hospital, Fort Jackson, South Carolina, and in the presence
and hearing of other enlisted personnel, both patients and those performing
duty under his immediate supervision and control and dependent patients as
follows: 'I will not train special forces personnel because they are 'liars and
thieves,' 'killers of peasants,' and 'murderers of women and children," or
words to that effect; (2) Intemperate and disloyal statements to enlisted personnel, both patients and those
performing duty under his immediate supervision and control as follows: 'I
would refuse to go to Vietnam if ordered to do so. I do not see why any colored
soldier would go to Vietnam. They should refuse to go to Vietnam; and, if sent,
they should refuse to fight because they are discriminated against and denied
their freedom in the United States and they are sacrificed and discriminated
against in Vietnam by being given all the hazardous duty, and they are
suffering the majority of casualties. If I were a colored soldier, I would refuse
to go to Vietnam; and, if I were a colored soldier and if I were sent to
Vietnam, I would refuse to fight', or words to that effect; (3) Intemperate,
contemptuous, and disrespectful statements to enlisted personnel performing
duty under his immediate supervision and control, as follows: 'The Hospital
Commander has given me an order to train special forces personnel, which order
I have refused and will not obey,' or words to that effect; (4) Intemperate,
defamatory, provoking, and disloyal statements to special forces personnel in
the presence and hearing of enlisted personnel performing duty under his
immediate supervision and control, as follows: 'I hope when you get to Vietnam
something happens to you and you are injured,' or words to that effect; all of which
statements were made to persons who knew that the said Howard B. Levy was a
commissioned officer in the active service of the United States Army.'
**2554 *740 Appellee was convicted by
the courtmartial, and his conviction was sustained on his appeals within the
military. [FN7] After he had exhausted this avenue of relief, he sought federal
habeas corpus in the United States District Court for the Middle District of
Pennsylvania, challenging his court-martial conviction on a number of grounds.
The District Court, on the basis of the voluminous record of the military
proceedings and the argument of counsel, denied relief. It held that the
'various articles of the Uniform Code of Military Justice are not
unconstitutional for vagueness,' citing several decisions *741 of the United States Court of Military Appeals. [FN8] The
court rejected the balance of appellee's claims without addressing them
individually, noting that the military tribunals had given fair consideration
to them and that the role of the federal courts in reviewing court-martial
proceedings was a limited one.
FN7. United States v. Levy, CM 416463, 39 C.M.R. 672 (1968),
petition for review denied, No. 21,641, 18 U.S.C.M.A. 627 (1969). Appellee also
unsuccessfully sought relief in the civilian courts. Levy v. Corcoran, 128
U.S.App.D.C. 388, 389 F.2d 929, application for stay denied, 387 U.S. 915, 87
S.Ct. 2026, 18 L.Ed.2d 968, cert. denied, 389 U.S. 960, 88 S.Ct. 337, 19
L.Ed.2d 369(1967); Levy v. Resor, 17 U.S.C.M.A.
135, 37 C.M.R. 399 (1967); Levy v. Resor, Civ. No. 67--442 (SC July 5, 1967),
aff'd per curiam, 384 F.2d 689 (CA4 1967), cert. denied, 389 U.S. 1049, 88
S.Ct. 789, 19 L.Ed.2d 843 (1968); Levy v. Dillon, 286 F.Supp. 593 (DC
Kan.1968), aff'd, 415 F.2d 1263 (CA10 1969).
FN8. United States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R. 429
(1967); United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964);
United States v. Frantz, 2 U.S.C.M.A. 161, 7 C.M.R. 37 (1953).
The Court of Appeals
reversed, holding in a lengthy opinion that Arts. 133 and 134 are void for
vagueness. 478 F.2d 772 (CA3 1973). The court found little difficulty in
concluding that 'as measured by contemporary standards of vagueness applicable
to statutes and ordinances governing civilians,' the general articles 'do not
pass constitutional muster.' It relied on such cases as Grayned v. City of
Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v.
City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972);
Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966);
Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214
(1971), and Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359
(1952). The Court of Appeals did not rule that appellee was punished for doing
things he could not reasonably have known constituted conduct proscribed by
Art. 133 or 134. Indeed, it recognized that his conduct fell within one of the
examples of Art. 134 violations contained in the Manual for Courts-Martial, promulgated
by the President by Executive Order. [FN9] Nonetheless, relying chiefly on
Gooding v. **2555 Wilson, 405 U.S.
518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the Court found the possibility that
Arts. 133 and 134 would be applied to future conduct of others as to which
there was insufficient warning, or which was within the area of protected First
Amendment expression, was enough to give
*742 appellee standing to challenge both articles on their face. While it
acknowledged that different standards might in some circumstances be applicable
in considering vagueness challenges to provisions which govern the conduct of
members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no
'countervailing military considerations which justify the twisting of
established standards of due process in order to hold inviolate these articles,
so clearly repugnant under current constitutional values.' Turning finally to
appellee's conviction under Art. 90, the Court held that the joint
consideration of Art. 90 charges with the charges under Arts. 133 and 134 gave
rise to a 'reasonable possibility' that appellee's right to a fair trial was
prejudiced, so that a new trial was required.
FN9. Manual for Courts-Martial 213f(5) (1969).
[1][2] Appellants appealed
to this Court pursuant to 28 U.S.C. s 1252. We set the case for oral argument,
and postponed consideration of the question of our jurisdiction to the hearing
on the merits. 414 U.S. 973, 94 S.Ct. 286, 38 L.Ed.2d 216 (1973) [FN10]
FN10. Title 28 U.S.C. s 1252 provides in pertinent part that
'(a)ny party may appeal to the Supreme Court from an interlocutory or final
judgment, decree or order of any court of the United States, . . . holding an
Act of Congress unconstitutional in any civil action, suit, or proceeding to
which the United States or any of its agencies, or any officer or employee
thereof, as such officer or employee, is a party. . . .' In his motion to
dismiss or affirm, appellee urged a lack of jurisdiction in this Court because
the attorneys who filed and served the notice of appeal were not attorneys of
record and because the attorney effecting service failed to comply with Rule
33, subd.3(c) of this Court requiring persons not admitted to the Bar of this
Court to prove service by affidavit, rather than by certificate. Appellee
alternatively contended that 28 U.S.C. s 1252 was not intended to permit
appeals from the courts of appeals, but only from the district courts. We
postponed consideration of the
jurisdictional question to the hearing on the merits. Appellee now renews his
contentions that the asserted defects in appellants' filing of their notice of
appeal should be treated as a failure to file a timely notice of appeal, and
that the appeal must accordingly be dismissed. See, e.g., Territo v. United
States, 358 U.S. 279, 79 S.Ct. 312, 3 L.Ed.2d 298 (1959); Department of Banking
v. Pink, 317 U.S. 264, 268, 63 S.Ct. 233, 235, 87 L.Ed. 254 (1942). He also
urges that the question whether an appeal may be taken to this Court from the
Court of Appeals under 28 U.S.C. s 1252 presents a question of first
impression.
We hold that 'any court of the United States,' as used in s 1252,
includes the courts of appeals. The Reviser's Note for s 1252 states that the
'term 'any court of the United States' includes the courts of appeals . . ..'
The definitional section of Title 28, 28 U.S.C. s 451, provides: 'As used in
this title: The term 'court of the United States' includes the Supreme Court of
the United States, courts of appeals, district courts . . ..' Our reading of s
1252 is further supported by that section's legislative history. Section 1252
was originally enacted as s 2 of the Act of August 24, 1937, c. 754, 50 Stat.
751. Section 5 of that same Act defined 'any court of the United States' to
include any 'circuit court of appeals.' We also find no merit in appellee's
contention that the asserted defects in appellants' notice of appeal deprive
this Court of jusisdiction. As appellants
note, appellee makes no claim that he did not have actual notice of the filing
of the notice of appeal. Assuming that there was technical noncompliance with
Rule 33 of this Court for the reasons urged by appellee, that noncompliance
does not deprive this Court of jurisdiction. Cf. Taglianetti v. United States,
394 U.S. 316 n. 1, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); Heflin v. United
States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 453, 3 L.Ed.2d 407 (1959).
*743 I
This Court has long
recognized that the military is, by necessity, a specialized society separate
from civilian society. We have also recognized that the military has, again by
necessity, developed laws and traditions of its own during its long history.
The differences between the military and civilian communities result from the
fact that 'it is the primary business of armies and navies **2556 to fight or ready to fight wars should the occasion arise.'
United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100
L.Ed. 8 (1955). In In re Grimley, 137 U.S. 147, 153, 11 S.Ct. 54, 55, 34 L.Ed.
636 (1890), the Court observed: '*744
An army is not a deliberative body. It is the executive arm. Its law is that of
obedience. No question can be left open as to the right to command in the
officer, or the duty of obedience in the soldier.' More recently we noted that
'(t)he military constitutes a specialized community governed by a separate
discipline from that of the civilian,' Orloff v. Willoughby, 345 U.S. 83, 94,
73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), and that 'the rights of men in the
armed forces must perforce be conditioned to meet certain overriding demands of
discipline and duty . . ..' Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045,
97 L.Ed. 1508 (1953) (plurality opinion). We have also recognized that a
military officer holds a particular position of responsibility and command in
the Armed Forces:
'The President's commission
. . . recites that 'reposing special trust and confidence in the patriotism,
valor, fidelity and abilities' of the appointee he is named to the specified
rank during the pleasure of the President.' Orloff v. Willoughby, supra, at 91,
73 S.Ct., at 539.
[3] Just as military society has been a society apart from
civilian society, so '(m)ilitary law . . . is a jurisprudence which exists
separate and apart from the law which governs in our federal judicial
establishment.' Burns v. Wilson, supra, at 140, 73 S.Ct., at 1047. And to
maintain the discipline essential to perform its mission effectively, the
military has developed what 'may not unfitly be called the customary military
law' or 'general usage of the military service.' Martin v. Mott, 12 Wheat. 19,
35, 6 L.Ed. 537 (1827). As the opinion in Martin v. Mott demonstrates, the
Court has approved the enforcement of those military customs and usages by
courts-martial from the early days of this Nation:
'.
. . Courts Martial, when duly organized, are bound to execute their duties, and
regulate their modes of proceeding, in the absence of positive enactments. *745 Upon any other principle, Courts
Martial would be left without any adequate means to exercise the authority
confided to them: for there could scarcely be framed a positive code to provide
for the infinite variety of incidents applicable to them.' Id. at 35--36.
An examination of the British antecedents of
our military law shows that the military law of Britian had long contained the
forebears of Arts. 133 and 134 in remarkably similar language. The Articles of
the Earl of Essex (1642) provided that '(a)ll other faults, disorders and
offenses, not mentioned in these Articles, shall be punished according to the
general customs and laws of war.' One of the British Articles of War of 1765
made punishable 'all Disorders or Neglects . . . to the Prejudice of good Order
and Military Discipline . . .' that were not mentioned in the other articles.
[FN11] Another of those articles provided:
FN11. Section XX, Art. III, of the
British Articles of War of 1765; W. Winthrop, Military Law and Precedents 946
(2d ed. 1920).
'Whatsoever Commissioned
Officer shall be convicted before a General Court- martial, of behaving in a
scandalous infamous Manner, such as is unbecoming the Character of an Officer
and a Gentleman, shall be discharged from Our Service.' [FN12]
FN12. Section XV, Art. XXIII, of
the British Articles of War of 1765; Winthrop, supra, at 945.
In
1775 the Continental Congress adopted this last article, along with 68 others
for the governance of its army. [FN13]
**2557 The following year it was resolved by the Congress that 'the
committee on spies be directed to revise the rules and articles of war; this
being a committee of five, consisting of John Adams, Thomas Jefferson, John *746 Rutledge, James Wilson and R. R.
Livingston . . ..' [FN14] The article was included in the new set of articles
prepared by the Committee, which Congress adopted on September 20, 1776. [FN15]
After being once more re-enacted without change in text in 1786, it was revised
and expanded in 1806, omitting the terms 'scandalous' and 'infamous,' so as to
read:
FN13. Article XLVII of the
American Articles of War of 1775; Winthrop, supra, at 957.
FN14.
Id., at 22.
FN15. Article 21 of Section XIV of the American Articles of War of
1776; Winthrop, supra, at 969.
'Any commissioned officer
convicted before a general court-martial of conduct unbecoming an officer and a
gentleman, shall be dismissed (from) the service.' [FN16]
FN16. Article 83 of Section 1 of
the American Articles of War of 1806; Winthrop, supra, at 983.
From
1806, it remained basically unchanged through numerous congressional re-
enactments until it was enacted as Art. 133 of the Uniform Code of Military
Justice in 1951.
The
British article punishing 'all Disorders and Neglects . . .' was also adopted
by the Continental Congress in 1775 and re-enacted in 1776. [FN17] Except for a
revision in 1916, which added the clause punishing 'all conduct of a nature to
bring discredit upon the military service,' [FN18] substantially the same
language was preserved throughout the various re-enactments of this article
too, until in 1951 it was enacted as Art. 134 of the Uniform Code of Military
Justice.
FN17. Article L of the
American Articles of War of 1775, Art. 5 of section XVIII of the American
Articles of War of 1776; Winthrop, supra, at 957, 971.
FN18.
Act of Aug. 29, 1916, c. 418, 39 Stat. 619, 666.
Decisions of this Court during the last century have recognized
that the longstanding customs and usages
*747 of the services impart accepted meaning to the seemingly imprecise
standards of Arts. 133 and 134. In Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838
(1857), this Court upheld the Navy's general article, which provided that
'(a)ll crimes committed by persons belonging to the navy, which are not
specified in the foregoing articles, shall be punished according to the laws
and customs in such cases at sea.' The Court reasoned:
'(W)hen offences and crimes
are not given in terms or by definition, the want of it may be supplied by a
comprehensive enactment, such as the 32d article of the rules for the
government of the navy, which means that courts martial have jurisdiction of
such crimes as are not specified, but which have been recognised to be crimes
and offences by the usages in the navy of all nations, and that they shall be
punished according to the laws and customs of the sea. Notwithstanding the
apparent indeterminateness of such a provision, it is not liable to abuse; for
what those crimes are, and how they are to be punished, is well known by
practical men in the navy and army, and by those who have studied the law of
courts martial, and the offences of which the different courts martial have
cognizance.' Id., at 82.
In Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601
(1886), this Court refused to issue a writ of prohibition against Smith's
court-martial trial on charges of '(s)candalous conduct tending to the
destruction of good morals' and '(c)ulpable inefficiency in the performance of
duty.' The Court again recognized the role of 'the usages and customs of war'
and 'old practice in the army' in the interpretation of military law by
military tribunals. Id., at 178--179, 6 S.Ct., at 576.
In United States v. Fletcher, 148 U.S. 84, 13 S.Ct. 552, 37 L.Ed.
378 (1893), the Court considered a court-martial conviction under what is *748 now Art. 133, **2558 rejecting Captain Fletcher's claim that the court-marital
could not properly have held that his refusal to pay a just debt was 'conduct
unbecoming an officer and a gentleman.' The Court of Claims decision which the
Court affirmed in Fletcher stressed the military's 'higher code termed honor,
which holds its society to stricter accountability' [FN19] and with which those
trained only in civilian law are unfamiliar. In Swaim v. United States, 165
U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823 (1897), the Court affirmed another Court
of Claims decision, this time refusing to disturb a court-martial conviction
for conduct 'to the prejudice of good order and military discipline' in
violation of the Articles of War. The Court recognized the role of 'unwritten
law or usage' in giving meaning to the language of what is now Art. 134. In
rejecting Swaim's argument that the evidence failed to establish an offense
under the article, the Court said:
FN19. Fletcher v. United States,
26 Ct.Cl. 541, 563 (1891).
'(T)his is the very matter
that falls within the province of courts-martial, and in respect to which their
conclusions cannot be controlled or reviewed by the civil courts. As was said
in Smith v. Whitney, 116 U.S. 178 (6 S.Ct. 570, 576, 29 L.Ed. 601), 'Of
questions not depending upon the construction of the statutes, but upon
unwritten military law or usage, within the jurisdiction of courts-martial,
military or naval officers, from their training and experience in the service,
are more competent judges than the courts of common law.'' 165 U.S., at 562, 17
S.Ct., at 451.
The Court of Claims had observed that cases involving 'conduct to
the prejudice of good order and military discipline,' as opposed to conduct
unbecoming an officer, 'are still further beyond the bounds of ordinary judicial
judgment, for they are not measurable by our innate *749 sense of right and wrong, of honor and dishonor, but must be
gauged by an actual knowledge and experience of military life, its usages and
duties.' [FN20]
FN20. Swaim v. United States, 28
Ct.Cl. 173, 228 (1893).
II
The
differences noted by this settled line of authority, first between the military
community and the civilian community, and second between military law and
civilian law, continue in the present day under the Uniform Code of Military
Justice. That Code cannot be equated to a civilian criminal code. It, and the
various versions of the Articles of War which have preceded it, regulate
aspects of the conduct of members of the military which in the civilian sphere
are left unregulated. While a civilian criminal code carves out a relatively
small segment of potential conduct and declares it criminal, the Uniform Code
of Military Justice essays more varied regulation of a much larger segment of
the activities of the more tightly knit military community. In civilian life there
is no legal sanction--civil or criminal--for failure to behave as an officer
and a gentleman; in the military world, Art. 133 imposes such a sanction on a
commissioned officer. The Code likewise imposes other sanctions for conduct
that in civilian life is not subject to criminal penalties: disrespect toward
superior commissioned officers, Art. 89, 10 U.S.C. s 889; cruelty toward, or
oppression or maltreatment of subordinates, Art. 93, 10 U.S.C. s 893; negligent
damaging, destruction, or wrongful disposition of military property of the
United States, Art. 108, 10 U.S.C. 908; improper hazarding of a vessel, Art.
110, 10 U.S.C. s 910; drunkenness on duty, Art. 112, 10 U.S.C. s 912; and
malingering, Art. 115, 10 U.S.C. s 915.
But
the other side of the coin is that the penalties provided in the Code vary from
death and substantial *750 penal
confinement at one extreme to forms of administrative discipline which are
below the threshold of what would normally be considered a criminal sanction at
the **2559 other. Though all of the
offenses described in the Code are punishable 'as a court-martial may direct,'
and the accused may demand a trial by court-martial, [FN21] Art. 15 of the Code
also provides for the imposition of nonjudicial 'disciplinary punishments' for
minor offenses without the intervention of a court-martial. 10 U.S.C. s 815.
The punishments imposable under that article are of a limited nature. With
respect to officers, punishment may encompass suspension of duty, arrest in
quarters for not more than 30 days, restriction for not more than 60 days, and
forfeiture of pay for a limited period of time. In the case of enlisted men,
such punishment may additionally include, among other things, reduction to the
next inferior pay grade, extra fatigue duty, and correctional custody for not
more than seven consecutive days. Thus, while legal proceedings actually
brought before a court-martial are prosecuted in the name of the Government,
and the accused has the right to demand that he be proceeded against in this
manner before any sanctions may be imposed upon him, a range of minor sanctions
for lesser infractions are often imposed administratively. Forfeiture of pay,
reduction in rank, and even dismissal from the service bring to mind the law of
labor-management relations as much as the civilian criminal law.
FN21. Art. 15(a), 10 U.S.C.
s 815(a).
In short, the Uniform Code of Military Justice regulates a far
broader range of the conduct of military personnel than a typical state
criminal code regulates of the conduct of civilians; but at the same time the
enforcement of that Code in the area of minor offenses *751 is often by sanctions which are more akin to administrative
or civil sanctions than to civilian criminal ones.
The availability of these lesser sanctions is not surprising in
view of the different relationship of the Government to members of the
military. It is not only that of lawgiver to citizen, but also that of employer
to employee. Indeed, unlike the civilian situation, the Government is often employer,
landlord, provisioner, and lawgiver rolled into one. That relationship also
reflects the different purposes of the two communities. As we observed in In re
Grimley, 137 U.S., at 153, 11 S.Ct., at 55, the military 'is the executive arm'
whose 'law is that of obedience.' While members of the military community enjoy
many of the same rights and bear many of the same burdens as do members of the
civilian community, within the military community there is simply not the same
autonomy as there is in the larger civilian community. The military
establishment is subject to the control of the civilian Commander in Chief and
the civilian departmental heads under him, and its function is to carry out the
policies made by those civilian superiors.
Perhaps because of the broader sweep of the Uniform Code, the
military makes an effort to advise its personnel of the contents of the Uniform
Code, rather than depending on the ancient doctrine that everyone is presumed
to know the law. Article 137 of the Uniform Code 10 U.S.C. s 937, requires that
the provisions of the Code be 'carefully explained to each enlisted member at
the time of his entrance on active duty, or within six days thereafter' and
that they be 'explained again after he has completed six months of active duty
. . ..' Thus the numerically largest component of the services, the enlisted
personnel, who might be expected to be a good deal less familiar with the
Uniform Code than commissioned officers, are required by its terms *752 to receive instructions in its
provisions. Article 137 further provides that a complete text of the Code and
of the regulations prescribed by the President 'shall be made available to any
person on active duty, upon his request, for his personal examination.'
With these very significant differences between military law and
civilian law and between the military community and the civilian community in
mind, we **2560 turn to appellee's
challenges to the constitutionality of Arts. 133 and 134.
III
Appellee urges that both Art. 133 and Art. 134 (the general
article) are 'void for vagueness' under the Due Process Clause of the Fifth
Amendment and overbroad in violation of the First Amendment. We have recently
said of the vagueness doctrine:
'The doctrine incorporates
notions of fair notice or warning. Moreover, it requires legislatures to set
reasonably clear guidelines for law enforcement officials and triers of fact in
order to prevent 'arbitrary and discriminatory enforcement.' Where a statute's
literal scope, unaided by a narrowing state court interpretation, is capable of
reaching expression sheltered by the First Amendment, the doctrine demands a
greater degree of specificity than in other contexts.' Smith v. Goguen, 415
U.S. 566, 572--573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974).
Each of these articles has been construed by the United States
Court of Military Appeals or by other military authorities in such a manner as
to at least partially narrow its otherwise broad scope.
The United States Court of Military Appeals has stated that Art.
134 must be judged 'not in vacuo, but in the context in which the years have
placed it,' United States v. Frantz, 2 U.S.C.M.A. 161, 163, 7 *753 C.M.R. 37, 39 (1953). Article 134
does not mke 'every irregular, mischievous, or improper act a court-martial
offense,' United States v. Sadinsky, 14 U.S.C.M.A. 563, 565, 34 C.M.R. 343, 345
(1964), but its reach is limited to conduct that is "directly and
palpably--as distinguished from indirectly and remotely-- prejudicial to good
order and discipline." Ibid; United States v. Holiday, 4 U.S.C.M.A. 454,
456, 16 C.M.R. 28, 30 (1954). It applies only to calls for active opposition to
the military policy of the United States, United States v. Priest, 21
U.S.C.M.A. 564, 45 C.M.R. 338 (1972), and does not reach all '(d)isagreement
with, or objection to, a policy of the Government.' United States v. Harvey, 19
U.S.C.M.A. 539, 544, 42 C.M.R. 141, 146 (1971).
The Manual for Courts-Martial restates these limitations on the
scope of Art. 134. [FN22] It goes on to say that '(c)ertain disloyal statements
by military personnel' may be punishable under Art. 134. 'Examples are
utterances designed to promote disloyalty or disaffection among troops, as
praising the enemy, attacking the war aims of the United States, or denouncing
our form of government.' [FN23] Extensive additional interpretative materials
are contained in the portions of the Manual devoted to Art. 134, which describe
more than sixty illustrative offenses.
FN22. Manual for Courts-Martial
213c (1969).
FN23. Id., 213f(5).
The Court of Military Appeals has likewise limited the scope of
Art. 133. Quoting from W. Winthrop, Military Law and Precedents (2d ed. 1920),
711--712, that court has stated:
"'. . . To constitute
therefore the conduct here denounced, the act which forms the basis of the
charge must have a double significance and effect. *754 Though it need not amount to a crime, it must offend so
seriously against law, justice, morality or decorum as to expose to disgrace,
socially or as a man, the offender, and at the same time must be of such a
nature or committed under such circumstances as to bring dishonor or disrepute
upon the military profession which he represents."' United States v. Howe,
17 U.S.C.M.A. 165, 177--178, 37 C.M.R. 429, 441--442 (1967).
[4][5][6] The effect of these constructions of Arts. 133 and 134
by the Court of Military Appeals and by other military authorities has been
twofold: It has narrowed the very broad reach of **2561 the literal language of the articles, and at the same time
has supplied considerable specificity by way of examples of the conduct which
they cover. It would be idle to pretend that there are not areas within the
general confines of the articles' language which have been left vague despite
these narrowing constructions. But even though sizable areas of uncertainty as
to the coverage of the articles may remain after their official interpretation
by authoritative military sources, further content may be supplied even in
these areas by less formalized custom and usage. Dynes v. Hoover, 20 How. 65,
15 L.Ed. 838 (1857). And there also cannot bethe slightest doubt under the
military precedents that there is a substantial range of conduct to which both
articles clearly apply without vagueness or imprecision. It is within that
range that appellee's conduct squarely falls, as the Court of Appeals
recognized:
'Neither
are we unmindful that the Manual for Courts-Martial offers as an example of an
offense under Article 134, 'praising the enemy, attacking the war aims of the
United States, or denouncing our form of government.' With the possible
exception of the statement that 'Special Forces personnel are liars *755 and thieves and killers of
peasants and murderers of women and children,' it would appear that each statement
for which (Levy) was court- martialed could fall within the example given in
the Manual.' 478 F.2d, at 794.
The Court of Appeals went on to hold,
however, that even though Levy's own conduct was clearly prohibited, the
void-for-vagueness doctrine conferred standing upon him to challenge the
imprecision of the language of the articles as they might be applied to
hypothetical situations outside the considerable area within which their
applicability was similarly clear.
We disagree with the Court of Appeals both in
its approach to this question and in its resolution of it. This Court has on
more than one occasion invalidated statutes under the Due Process Clause of the
Fifth or Fourteenth Amendment because they contained no standard whatever by
which criminality could be ascertained, and the doctrine of these cases has
subsequently acquired the shorthand description of 'void for vagueness.'
Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939);
Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). In these
cases, the criminal provision is vague 'not in the sense that it requires a
person to conform his conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of conduct is specified at
all.' Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29
L.Ed.2d 214 (1971).
[7] But the Court of Appeals found in this
case, and we agree, that Arts. 133 and 134 are subject to no such sweeping
condemnation. Levy had fair notice from the language of each article that the
particular conduct which he engaged in was punishable. This is a case, then, of
the type adverted to in Smith v. Goguen, in which the statutes 'by their terms
or as authoritatively*756 construed
apply without question to certain activities, but whose application to other
behavior is uncertain.' Smith v. Goguen, 415 U.S., at 578, 94 S.Ct., at 1249.
The result of the Court of Appeals' conclusion that Levy had standing to
challenge the vagueness of these articles as they might be hypothetically
applied to the conduct of others, even though he was squarely within their
prohibitions, may stem from a blending of the doctrine of vagueness with the
doctrine of overbreadth, but we do not believe it is supported by prior
decisions of this Court.
[8][9][10][11] We have noted in Smith v.
Goguen, id., at 573, 94 S.Ct., at 1247 that more precision in drafting may be
required because of the vagueness doctrine in the case of regulation of
expression. For the reasons which differentiate military society from civilian
society, we think Congress is permitted
**2562 to legislate both with greater breadth and with greater flexibility
when prescribing the rules by which the former shall be governed than it is
when prescribing rules for the latter. But each of these differentiations
relates to how strict a test of vagueness shall be applied in judging a
particular criminal statute. None of them suggests that one who has received
fair warning of the criminality of his own conduct from the statute in question
is nonetheless entitled to attack it because the language would not give
similar fair warning with respect to other conduct which might be within its
broad and literal ambit. One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.
[12] Because of the factors differentiating
military society from civilian society, we hold that the proper standard of
review for a vagueness challenge to the articles of the Code is the standard
which applies to criminal statutes regulating economic affairs. Clearly, that
standard is *757 met here, for as
the Court stated in United States v. National Dairy Products Corp., 372 U.S.
29, 32--33, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963):
'The strong presumptive validity that attaches to an Act of
Congress has led this Court to hold many times that statutes are not
automatically invalidated as vague simply because difficulty is found in
determining whether certain marginal offenses fall within their language. E.g.,
Jordan v. De George, 341 U.S. 223, 231, (71 S.Ct. 703, 707, 95 L.Ed. 886)
(1951), and United States v. Petrillo, 332 U.S. 1, 7 (67 S.Ct. 1538, 1541, 91
L.Ed. 1877) (1947). Indeed, we have consistently sought an interpretation which
supports the constitutionality of legislation. E.g., United States v. Rumely,
345 U.S. 41, 47 (73 S.Ct. 543, 546, 97 L.Ed. 770) (1953); Crowell v. Benson,
285 U.S. 22, 62 (52 S.Ct. 285, 296, 76 L.Ed. 598) (1932); see Screws v. United
States, 325 U.S. 91 (65 S.Ct. 1031, 89 L.Ed. 1495) (1945).
'Void for vagueness simply means that criminal responsibility
should not attach where one could not reasonably understand that his
contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612,
617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). In determining the sufficiency of the
notice a statute must of necessity be examined in the light of the conduct with
which a defendant is charged. Robinson v. United States, 324 U.S. 282, 65 S.Ct.
666, 89 L.Ed. 944 (1945).'
[13] Since appellee could have
had no reasonable doubt that his public statements urging Negro enlisted men
not to go to Vietnam if ordered to do so were both 'unbecoming an officer and a
gentleman,' and 'to the prejudice of good order and discipline in the armed
forces,' in violation of the provisions of Art. 133 and Art. 134, respectively,
his challenge to them as unconstitutionally vague under the Due Process Clause
of the Fifth Amendment must fail.
[14] We likewise reject
appellee's contention that Arts. 133 and 134 are facially invalid because of
their 'over-*758 breadth.' In
Gooding v. Wilson, 405 U.S., at 520--521, 92 S.Ct., at 1105, the Court said:
'It matters not that the words appellee used might have been
constitutionally prohibited under a narrowly and precisely drawn statute. At
least when statutes regulate or proscribe speech and when 'no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution,' Dombrowski v. Pfister, 380 U.S. 479, 491 (85 S.Ct. 1116,
1123, 14 L.Ed.2d 22) (1965), the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing 'attacks on
overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with
the requisite narrow specificity' . . ..'
**2563 [15][16][17] While the
members of the military are not excluded from the protection granted by the
First Amendment, the different character of the military community and of the
military mission requires a different application of those protections. The
fundamental necessity for obedience, and the consequent necessity for
imposition of discipline, may render permissible within the military that which
would be constitutionally impermissible outside it. Doctrines of First
Amendment overbreadth asserted in support of challenges to imprecise language
like that contained in Arts. 133 and 134 are not exempt from the operation of
these principles. The United States Court of Military Appeals has sensibly
expounded the reason for this different application of First Amendment
doctrines in its opinion in United States v. Priest, 21 U.S.C.M.A., at 570, 45
C.M.R., at 344:
'In the armed forces some restrictions exist for reasons that have
no counterpart in the civilian *759
community. Disrespectful and contemptuous speech, even advocacy of violent
change, is tolerable in the civilian community, for it does not directly affect
the capacity of the Government to discharge its responsibilities unless it both
is directed to inciting imminent lawless action and is likely to produce such
action. Brandenburg v. Ohio (395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430
(1969)). In military life, however, other considerations must be weighed. The
armed forces depend on a command structure that at times must commit men to
combat, not only hazarding their lives but ultimately involving the security of
the Nation itself. Speech that is protected in the civil population may
nonetheless undermine the effectiveness of response to command. If it does, it
is constitutionally unprotected. United States v. Gray (20 U.S.C.M.A. 63, 42
C.M.R. 255 (1970)).'
In Broadrick v. Oklahoma,
413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973), we said that
'(e)mbedded in the traditional rules governing constitutional adjudication is
the principle that a person to whom a statute may constitutionally be applied
will not be heard to challenge that statute on the ground that it may
conceivably be applied unconstitutionally to others, in other situations not
before the Court.' We further commented in that case that '(i)n the past, the
Court has recognized some limited exceptions to these principles, but only
because of the most 'weighty countervailing policies. " Id., at 611, 93
S.Ct. at 2915. One of those exceptions 'has been carved out in the area of the
First Amendment.' Ibid. In the First Amendment context attacks have been
permitted 'on overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute
drawn with the requisite narrow specificity,' Dombrowski v. Pfister, 380 U.S.
479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965).
*760 [18] This Court has,
however, repeatedly expressed its reluctance to strike down a statute on its
face where there were a substantial number of situations to which it might be
validly applied. Thus, even if there are marginal applications in which a
statute would infringe on First Amendment values, facial invalidation is
inappropriate if the 'remainder of the statute . . . covers a whole range of
easily identifiable and constitutionally proscribable . . . conduct . . ..'
United States Civil Service Comm'n v. National Association of Letter Carriers,
413 U.S. 548, 580--581, 93 S.Ct. 2880, 2898, 37 L.Ed.2d 796 (1973). And the
Court recognized in Broadrick, supra, that 'where conduct and not merely speech
is involved' the overbreadth must 'not only be real, bur substantial as well,
judged in relation to the statute's plainly legitimate sweep.' 413 U.S., at
615, 93 S.Ct., at 2918. Here, as the Manual makes clear, both Art. 133 and Art.
134 do prohibit a 'whole range of easily identifiable and constitutionally
proscribable . . . conduct.'
**2564 [19] Both Broadrick and
Letter Carriers involved basically noncriminal sanctions imposed on federal and
state employees who were otherwise civilians. The Uniform Code of Military
Justice applies a series of sanctions, varying from severe criminal penalties
to administratively imposed minor sanctions, upon members of the military.
However, for the reasons dictating a different application of First Amendment
principles in the military context described above, wethink that the
"weighty countervailing policies," Broadrick, supra, 413 U.S., at
611, 93 S.Ct., at 2915, which permit the extension of standing in First
Amendment cases involving civilian society, must be accorded a good deal less
weight in the military context.
[20][21][22] There is a
wide range of the conduct of military personnel to which Arts. 133 and 134 may
be applied without infringement of the First Amendment. While there may lurk at
the fringes of the articles, even in the light of their narrowing construction
by the United *761 States Court of
Military Appeals, some possibility that conduct which would be ultimately held
to be protected by the First Amendment could be included within their
prohibition, we deem this insufficient to invalidate either of them at the
behest of appellee. His conduct, that of a commissioned officer publicly urging
enlisted personnel to refuse to obey orders which might send them into combat,
was unprotected under the most expansive notions of the First Amendment.
Articles 133 and 134 may constitutionally prohibit that conduct and a sufficiently
large number of similar or related types of conduct so as to preclude their
invalidation for overbreadth.
IV
[23] Appellee urges that
should we disagree with the Court of Appeals as to the constitutionality of
Arts. 133 and 134, we should nonetheless affirm its judgment by invalidating
his conviction under Art. 90. He contends that to carry out the hospital
commandant's order to train aide men in dermatology would have constituted
participation in a war crime, and that the commandant gave the order in
question, knowing that it would be disobeyed, for the sole purpose of
increasing the punishment which could be imposed upon appellee. The Court of
Appeals observed that each of these defenses was recognized under the Uniform
Code of Military Justice, but had been resolved against appellee on a factual
basis by the court-martial which convicted him. The court went on to say that:
'In isolation, these factual determinations adverse to appellant
under an admittedly valid article are not of constitutional significance and
resultantly, are beyond our scope of review.' 478 F.2d, at 797.
See Whelchel v. McDonald,
340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950). We agree with the Court of
Appeals.
*762 Appellee in his brief here
mounts a number of alternative attacks on the sentence imposed by the
court-martial, attacks which were not treated by the Court of Appeals in its
opinion in this case. To the extent that these points were properly presented
to the District Court and preserved on appeal to the Court of Appeals, and to
the extent that they are open on federal habeas corpus review of court-martial
convictions under Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508
(1953), we believe they should be addressed by the Court of Appeals in the first
instance.
Reversed.
Mr. Justice MARSHALL took
no part in the consideration or decision of this case.
Mr. Justice BLACKMUN, with
whom THE CHIEF JUSTICE joins, concurring.
I wholly concur in the
Court's opinion. I write only to state what for me is a crucial difference
between the majority and dissenting views in this case. My Brother STEWART
compolains that men **2565 of common
intelligence must necessarily speculate as to what 'conduct unbecoming an
officer and a gentleman' or conduct to the 'prejudice of good order and
discipline in the armed forces' or conduct 'of a nature to bring discredit upon
the armed forces' really means. He implies that the average soldier or sailor
would not reasonably expect, under the general articles, to suffer military reprimand
or punishment for engaging in sexual acts with a chicken, or window peeping in
a trailer park, or cheating while calling bingo numbers. Post, at 2572--2573.
He argues that 'times have surely changed' and that the articles are 'so vague
and uncertain as to be incomprehensible to the servicemen who are to be
governed by them.' Post, at 2574, 2577.
These assertions are, of
course, no less judicial fantasy than that which the dissent charges the
majority of indulging. *763 In
actuality, what is at issue here are concepts of 'right' and 'wrong' and
whether the civil law can accommodate, in special circumstances, a system of
law which expects more of the individual in the context of a broader variety of
relationships than one finds in civilian life.
In my judgment, times have
not changed in the area of moral precepts. Fundamental concepts of right and
wrong are the same now as they were under the Articles of the Earl of Essex
(1642), or the British Articles of War of 1765, or the American Articles of War
of 1775, or during the long line of precedents of this and other courts
upholding the general articles. And, however unfortunate it may be, it is still
necessary to maintain a disciplined and obedient fighting force.
A noted commentator,
Professor Bishop of Yale, has recently stated that '(a) lmost all of the acts
actually charged under (Articles 133 and 134), notably drug offenses, are of a
sort which ordinary soldiers know, or should know, to be punishible.' J.
Bishop, Justice Under Fire 87--88 (1974). I agree. The subtle airs that govern
the command relationship are not always capable of specification. The general
articles are essential not only to punish patently criminal conduct, but also
to foster an orderly and dutiful fighting force. One need only read the history
of the permissive--and shortlived--regime of the Soviet Army in the early days
of the Russian Revolution to know that command indulgence of an undisciplined
rank and file can decimate a fighting force. Moreover, the fearful specter of arbitrary
enforcement of the articles, the engine of the dissent, is disabled, in my
view, by the elaborate system of military justice that Congress has provided to
servicemen, and by the self- evident, and self-selective, factor that
commanders who are arbitrary with their charges will not produce the efficient *764 and effective military
organization this county needs and demands for its defense.
In Fletcher v. United
States, 26 Ct.Cl. 541 (1891), the Court of Claims reviewed a court-martial
finding that a Captain Fletcher was guilty of conduct unbecoming an officer in
having, "with intent to defraud, failed, neglected, and refused to pay
(one W.) the amount due him, though repeatedly requested to do so." The
court found this charged offense to come within the article. The sentiments
expressed by Judge Nott, writing for the court in that case, are just as
applicable to the case we decide today.
'It must be confessed that, in the affairs of civil life and under
the rules and principles of municipal law, what we ordinarily know as fraud
relates to the obtaining of a man's money, and not to refusing to pay it back.
It is hard for the trained lawyer to conceive of an indictment or declaration
which should allege that the defendant defrauded A or B by refusing to return
to him the money which he had borrowed from him. Our legal training, the legal
habit of mind, as it is termed, inclines us to dissociate punishment from acts
which the law does not define as offenses. As one of our greatest writers of
fiction puts it, with metaphysical fitness and accurate **2566 sarcasm, as she describes one of her legal characters, 'His
moral horizon was limited by the civil code of Tennessee.' That it is a fraud
to obtain a man's money by dishonest representations, but not a fraud to keep
it afterwards by any amount of lying and deceit, is a distinction of statutory
tracing. The gambler who throws away other people's money and the spendthrift
who uses it in luxurious living instead of paying it back, cheat and defraud
their creditors as effectually as the knaves and sharpers who *765 drift within the meshes of the
criminal law. We learnt as law students in Blackstone that there are things
which are malum in se and, in addition to them, things which are merely malum
prohibitum; but unhappilly in the affairs of real life we find that there are
many things which are malum in se without likewise being malum prohibitum. In
military life there is a higher code termed honor, which holds its society to
stricter accountability; and it is not desirable that the standard of the Army
shall come down to the requirements of a criminal code.' Id., at 562-- 563.
Relativistic notions of
right and wrong, or situation ethics, as some call it, have achieved in recent
times a disturbingly high level of prominence in this country, both in the
guise of law reform, and as a justification of conduct that persons would
normally eschew as immoral and even illegal. The truth is that the moral
horizons of the American people are not footloose, or limited solely by 'the
civil code of Tennessee.' The law should, in appropriate circumstances, be
flexible enough to recognize the moral dimension of man and his instincts
concerning that which is honorable, decent, and right. [FN*]
FN* My Brother DOUGLAS' rendition of
Captain Levy's offense in this case would leave one to believe that Levy was
punished for speaking against the Vietnam war at an Army wives' tea party. In
fact, Levy was convicted under charges that he, while in the performance of his
duties at the United States Army Hospital in Fort Jackson, South Carolina, told
the enlisted personnel in his charge that he would not train Special Forces
aide men 'because they are 'liars and thieves,' 'killers of peasants,' and
'murderers of women and children." He also stated, in the presence of
patients and those performing duty under his immediate supervision, that he
would refuse to go to Vietnam if ordered to do so and they should refuse to do
so. Moreover, after being ordered to give dermatological training to aide men,
he announced to his students that '(t)he Hospital Commander has given me an
order to train special forces personnel, which order I have refused and will not obey.' Unless one is to
blind one's eyes in utter worship of the First Amendment, it needs no
explication that these disloyal statements and actions undertaken by an officer
in the course of duty, are subject to sanction.
*766 Mr.
Justice DOUGLAS, dissenting.
Congress by Art. I, s 8, cl. 14, has power 'To make Rules for the
Government and Regulation of the land and naval Forces.'
Articles 133 [FN1] and 134 [FN2] of the Uniform Code of Military
Justice, 10 U.S.C. ss 933 and 934, at issue in this case, trace their
legitimacy to that power.
FN1. 'Any commissioned
officer, cadet, or midshipman who is convicted of conduct unbecoming an officer
and a gentleman shall be punished as a court- martial may direct.'
FN2.
'Though not specifically mentioned in this chapter, all disorders and neglects
to the prejudice of good order and discipline in the armed forces, all conduct
of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which
persons subject to this chapter may be guilty, shall be taken cognizance of by
a general, special, or summary court-martial, according tothe nature and degree
of the offense, and shall be punished at the discretion of that court.'
So far as I can discover the only express exemption of a person in
the Armed Services from the protection of the Bill of Rights is that contained
in the Fifth Amendment which dispenses with the need for 'a presentment or
indictment' of a grand jury 'in cases arising in the land or naval forces, or
in the Militia, **2567 when in
actual service in time of War or public danger.'
By practice and by construction the words 'all criminal
prosecutions' in the Sixth Amendment do not necessarily cover all military
trials. One result is that the guarantee of the Sixth Amendment of trial 'by an
impartial jury' is not applicable to military trials. [FN3] But Judge Ferguson *767 in United States v. Tempia, 16
U.S.C.M.A. 629, 37 C.M.R. 249, properly said: [FN4]
FN3. O'Callahan v. Parker, 395 U.S. 258, 262, 89 S.Ct. 1683, 1685,
23 L.Ed. 291, stated:
'If the case does not arise 'in the land or naval forces,' then
the accused gets first, the benefit of
an indictment by a grand jury and second, a trial by jury before a civilian
court as guaranteed by the Sixth Amendment and by Art. III, s 2, of the
Constitution which provides in part:
"The Trial of all Crimes, except in Cases of Impeachment,
shall be by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress may by Law have
directed."
FN4. The Court of Military Appeals has held that the 'probable
cause' aspect of the Fourth Amendment is applicable to military trials. See,
e.g., United States v. Battista, 14 U.S.C.M.A. 70, 33 C.M.R. 282; United States
v. Gebhart, 10 U.S.C.M.A. 606, 28 C.M.R. 172; United States v. Brown, 10
U.S.C.M.A. 482, 28 C.M.R. 48.
It has been held that the right to counsel under the Sixth
Amendment extends to military trials, see United States v. Culp, 14 U.S.C.M.A.
199, 216--217, 219, 33 C.M.R. 411, 428--429, 431 (opinions of Quinn, C.J.,
Ferguson, J.).
There are rulings also that freedom of speech protects, to some
extent at least, those in the Armed Services. United States v. Wysong, 9
U.S.C.M.A. 249, 26 C.M.R. 29, and see United States v. Gray, 20 U.S.C.M.A. 63, 42 C.M.R. 255.
'(B)oth the Supreme Court
and this Court itself are satisfied as to the applicability of constitutional
safeguards to military trials, except insofar as they are made inapplicable
either expressly or by necessary implication. The Government, therefore, is
correct in conceding the point, and the Judge Advocate General, United States
Navy, as amicus curiae, is incorrect in his contrary conclusion. Indeed, as to
the latter, it would appear from the authorities on which he relies that the
military courts applied what we now know as the constitutional protection
against self-incrimination in trials prior to and contemporaneous with the
adoption of the Constitution. Hence, we find Major Andre being extended the
privilege at his court-martial in 1780. Wigmore, *768 Evidence, 3d ed, s 2251. The same reference was made in the
trial of Commodore James Barron in 1808. Proceedings of the General Court
Martial Convened for the Trial of Commodore James Barron (1822), page 98. And,
the Articles of War of 1776, as amended May 31, 1786, provided for objection by
the judge advocate to any question put to the accused, the answer to which
might tend to incriminate him. See Winthrop's Military Law and Precedents, 2d
ed, 1920 Reprint, pages 196, 972.' 16 U.S.C.M.A., at 634, 37 C.M.R., at 254.
But the cases we have had so far have concerned only the nature of
the tribunal which may try a person and/or the procedure to be followed. [FN5]
This is the first case that presents to us a question of what protection, if
any, the First Amendment gives people in the Armed Services:
FN5. See, e.g., O'Callahan v.
Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291; McElroy v. United States
ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282; Grisham v.
Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279; Kinsella v. United States ex
rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268; Reid v. Covert, 354
U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; United States ex rel. Toth v. Quarles,
350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8; Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2,
87 L.Ed. 3.
'Congress shall make no law
. . . abridging the freedom of speech, or of the press.'
On its face there are no exceptions--no preferred classes for
whose benefit the First Amendment extends, no exempt classes.
**2568 The military by tradition and by necessity demands discipline;
and those necessities require obedience in training and in action. A command is
speech brigaded with action, and permissible commands may not be disobeyed.
There may be a borderland or penumbra that in time can be established by
litigated cases.
I cannot imagine, however, that Congress would think it had the
power to authorize the military to curtail the *769 reading list of books, plays, poems, periodicals, papers, and
the like which a person in the Armed Services may read. Nor can I believe
Congress would assume authority to empower the military to suppress
conversations at a bar, ban discussions of public affairs, prevent enlisted men
or women or draftees from meeting in discussion groups at times and places and
for such periods of time that do not interfere with the performance of military
duties.
Congress has taken no such step here. By Art. 133 it has allowed
punishment for 'conduct unbecoming an officer and a gentleman.' In our society
where diversities are supposed to flourish it never could be 'unbecoming' to
express one's views, even on the most controversial public issue.
Article 134 covers only 'all disorders and neglects to the
prejudice of good order and discipline in the armed forces, all conduct of a
nature to bring discredit upon the armed forces.'
Captain Levy, the appellee in the present case, was not convicted
under Arts. 133 and 134 for failure to give the required medical instructions.
But as he walked through the facilities and did his work, or met with students,
he spoke of his views of the 'war' in Vietnam. Thus he said:
'The
United States is wrong in being involved in the Viet Nam War. I would refuse to
go to Viet Nam if ordered to do so. I don't see why any colored soldier would
go to Viet Nam; they should refuse to go to Viet Nam and if sent should refuse
to fight because they are discriminated against and denied their freedom in the
United States, and they are sacrificed and discriminated against in Viet Nam by
being given all the hazardous duty and they are suffering the majority of
casualties. If I were *770 a colored
soldier I would refuse to go to Viet Nam and if I were a colored soldier and
were sent I would refuse to fight. Special Forces personnel are liars and
thieves and killers of peasants and murderers of women and children.'
Those ideas affronted some of his superiors.
The military, of course, tends to produce homogenized individuals who think--as
well as march--in unison. In United States v. Blevens, 5 U.S.C.M.A. 480, 18
C.M.R. 104, the Court of Military Appeals upheld the court-martial conviction
of a serviceman who had 'affiliated' himself with a Communist organization in
Germany. The serviceman argued that there was no allegation that he possessed
any intent to overthrow the Government by force, so that the Smith Act, 18
U.S.C. s 2385, would not reach his conduct. The Court of Military Appeals
affirmed on the theory that his affiliation, nonetheless, brought 'discredit'
on the Armed Forces within the meaning of Art. 134:
'Most important to the case is the Government's contention that
regardless of any deficiencies under the Smith Act, the specification properly
alleges, and the evidence adequately establishes, conduct to the discredit of
the armed forces, in violation of Article 134.
'Membership by a school teacher in an organization advocating the
violent disestablishment of the United States Government has been regarded as
conduct requiring dismissal. Adler v. Board of Education, 342 U.S. 485 (72
S.Ct. 380, 96 L.Ed. 517). It seems to us that such membership is even more
profoundly evil in the case of a person in the military establishment. True, **2569 affiliation implies something
less than membership (Bridges v. Wixon, 326 U.S. 135, 143 (65 S.Ct. 1443, 89
L.Ed. 2103)), but the *771 supreme
duty of the military is the protection and security of the government and of
the people. Hence, aside from a specific intent on the part of the accused to
overthrow the government by violence, the conduct alleged is definitely
discrediting to the armed forces.' 5 U.S.C.M.A., at 483--484, 18 C.M.R., at
107--108.
The limitations on
expressions of opinion by members of the military continue to date. During the
Vietnam war, a second lieutenant in the reserves, off duty, out of uniform, and
off base near a local university, carried a placard in an antiwar demonstration
which said 'END JOHNSON'S FACIST (sic) AGGRESSION IN VIET NAM.' He was
convicted by a court-martial under Art. 88 for using 'contemptuous words'
against the President and under Art. 133 for 'conduct unbecoming an officer.'
The Court of Military Appeals affirmed, theorizing that suppression of such
speech was essential to prevent a military 'man on a white horse' from
challenging 'civilian control of the military.' United States v. Howe, 17
U.S.C.M.A. 165, 175, 37 C.M.R. 429, 439. The Court did not attempt to weigh the
likelihood that Howe, a reserve second lieutenant engaging in a single off-base
expression of opinion on the most burning political issue of the day, could
ever be such a 'man on a white horse.' Indeed, such considerations were
irrelevant:
'True, petitioner is a reserve officer, rather than a professional
officer, but during the time he serves on active duty he is, and must be,
controlled by the provisions of military law. In this instance, military
restrictions fall upon a reluctant 'summer soldier'; but at another time, and
differing circumstances, the ancient and wise provisions insuring civilian
control of the military will restrict the 'man on a white horse." Ibid.
*772 See generally Sherman, The
Military Courts And Servicemen's First Amendment Rights, 22 Hastings L.J. 325
(1971.)
The power to draft an army
includes, of course, the power to curtail considerably the 'liberty' of the
people who make it up. But Congress in these articles has not undertaken to
cross the forbidden First Amendment line. Making a speech or comment on one of
the most important and controversial public issues of the past two decades
cannot by any stretch of dictionary meaning be included in 'disorders and
neglects to the prejudice of good order and discipline in the armed forces.'
Nor can what Captain Levy said possibly be 'conduct of a nature to bring
discredit upon the armed forces.' He was uttering his own belief--an article of
faith that he sincerely held. This was no mere ploy to perform a 'subversive'
act. Many others who loved their country shared his views. They were not
saboteurs. Uttering one's beliefs is sacrosanct under the First Amendment.
[FN6] Punishing the utterances**2570
is an 'abridgment' of speech in the constitutional sense.
FN6. The words of Mr. Justice
Holmes written in dissent in United States v. Schwimmer, 279 U.S. 644,
654--655, 49 S.Ct. 448, 451, 73 L.Ed. 889, need to be recalled:
'(T)he whole examination of
the applicant shows that she holds none of the now-dreaded creeds but
thoroughly believes in organized government and prefers that of the United
States to any other in the world. Surely it
cannot show lack of attachment to the principles of the Constitution that she
thinks that it can be improved. I suppose that most intelligent people think
that it might be. Her particular improvement looking to the abolition of war
seems to me not materially different in its bearing on this case from a wish to
establish cabinet government as in England, or a single house, or one term of
seven years for the President. To touch a more burning question, only a judge
mad with partisanship would exclude because the applicant thought that the
Eighteenth Amendment should be repealed.
'Of
course the fear is that if a war came the applicant would exert activities such
as were dealt with in Schenck v. United States, 249 U.S. 47 (39 S.Ct. 247, 63
L.Ed. 470). But that seems to me unfounded. Her position and motives are wholly
different from those of Schenck. She is an optimist and states in strong and, I
do not doubt, sincere words her belief that war will disappear and that the
impending destiny of mankind is to unite in peaceful leagues. I do not share
that optimism nor do I think that a philosophic view of the world would regard
war as absurd. But most people who have known it regard it with horror, as a
last resort, and even if not yet ready for cosmopolitan efforts would welcome
any practicable combinations that would increase the power on the side of
peace. The notion that the applicant's
optimistic anticipations would make her a worse citizen is sufficiently
answered by her examination, which seems to me a better argument for her
admission than any that I can offer. Some of her answers might excite popular
prejudice, but if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle of free
thought--not free thought for those who agree with us but freedom for the
thought that we hate. I think that we should adhere to that principle with
regard to admission into, as well as to life within this country. And recurring
to the opinion that bars this applicant's way, I would suggest that the Quakers
have done their share to make the country what it is, that many citizens agree
with the applicant's belief and that I had not supposed hitherto that we
regretted our inability to expel them because they believe more than some of us
do in the teachings of the Sermon on the Mount.'
That dissent by Holmes became the law when Schwimmer, supra,
United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302, and
United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319, were
overruled by Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed.
1084.
*773 Mr. Justice STEWART, with
whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
Article 133 of the Uniform
Code of Military Justice, 10 U.S.C. s 933, makes it a criminal offense to
engage in 'conduct unbecoming an officer and a gentleman.' [FN1] Article 134,
10 U.S.C. s 934 makes criminal '*774
all disorders and neglects to the prejudice of good order and discipline in the
armed forces' and 'all conduct of a nature to bring discredit upon the armed
forces.' [FN2] The Court today, reversing a unanimous judgment of the Court of
Appeals, upholds the constitutionality of these statutes. I find it hard to
imagine criminal statutes more patently unconstitutional than these vague and
uncertain general articles, and I would, accordingly, affirm the judgment
before us.
FN1. Article 133 provides:
'Any commissioned officer, cadet, or midshipman who is convicted
of conduct unbecoming an officer and a gentleman shall be punished as a
court-martial may direct.'
FN2. Article 134 provides:
'Though not specifically mentioned in this chapter, all disorders
and neglects to the prejudice of
good order and discipline in the armed forces, all conduct of a nature to bring
discredit upon the armed forces, and crimes and offenses not capital, of which
persons subject to this chapter may be guilty, shall be taken cognizance of by
a general, special, or summary court-martial, according to the nature and
degree of the offense, and shall be punished at the discretion of that court.'
The clause in Art. 134 prohibiting all 'crimes and offenses not
capital' applies only to crimes and offenses proscribed by Congress. See Manual
for Courts-Martial 213(e) (1969) (hereinafter sometimes referred to as Manual).
Cf. Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084. As
such, this clause is simply assimilative, like 18 U.S.C. s 13, and is not the
subject of the vagueness attack mounted by appellee on the balance of Art. 134.
See generally Wiener, Are the General Military Articles Unconstitutionally
Vague?, 54 A.B.A.J. 357, 358; Note, Taps for the Real Catch-22, 81 Yale L.J.
1518 n. 3.
While only Art. 134 is expressly termed the 'general article,'
Arts. 133 and 134 are commonly known as the 'general articles' and will be so
referred to herein.
I
As many decisions of this
Court make clear, vague statutes suffer from at least two fatal constitutional
defects. First, by failing to provide fair notice of precisely what acts are
forbidden, a vague statute 'violates the first essential of due process of
law.' Connally v. General*775
Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. As the
Court put the matter in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct.
618, 619, 83 L.Ed. 888: 'No one may be required at peril of life, liberty or
property to speculate as to the meaning of penal statutes. All are entitled to
be informed as to what the State commands
**2571 or forbids.' 'Words which are vague and fluid . . . may be as much
of a trap for the innocent as the ancient laws of Caligula.' United States v.
Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200. [FN3]
FN3. See also United States v. Harriss, 347 U.S. 612, 617, 74
S.Ct. 808, 812, 98 L.Ed. 989:
'The constitutional requirement of definiteness is violated by a
criminal statute that fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by the statute. The
underlying principle is that no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed.'
Secondly, vague statutes
offend due process by failing to provide explicit standards for those who
enforce them thus allowing discriminatory and arbitrary enforcement. Papachristou
v. City of Jacksonville, 405 U.S. 156, 165--171, 92 S.Ct. 839, 845--848, 31
L.Ed.2d 110. 'A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis
. . ..' Grayned v. City of Rockford, 408 U.S. 104, 108--109, 92 S.Ct. 2294,
2299, 33 L.Ed.2d 222. [FN4] The absence of specificity in a criminal statute
invites abuse on the part of prosecuting officials, who are left free to harass
any individuals or groups who may be the object of official displeasure. [FN5]
FN4. See also Smith v. Goguen, 145 U.S. 566, 575, 94 S.Ct. 1242,
1248:
'Statutory language of such a standardless sweep allows policemen,
prosecutors, and juries to pursue their personal predilections. Legislatures may
not so abdicate their responsibilities for setting the standards of the
criminal law.'
FN5. This Court has repeatedly recognized that the dangers
inherent in vague statutes are magnified
where laws touch upon First Amendment freedoms. See, e.g., id., at 573, 94
S.Ct., at 1247; Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294,
2299, 33 L.Ed.2d 222. In such areas, more precise statutory specificity is
required, lest cautions citizens steer clear of rotected conduct in order to be
certain of not violating the law. See generally Note, The Void-for-Vagueness
Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75--85.
*776 It is plain that Arts. 133
and 134 are vague on their face; indeed, the opinion of the Court does not
seriously contend to the contrary. [FN6] Men of common intelligence--including
judges of both military and civilian courts-- must necessarily speculate as to
what such terms as 'conduct unbecoming an officer and a gentleman' and 'conduct
of a nature to bring discredit upon the armed forces' really mean. In the past,
this Court has held unconstitutional statutes penalizing 'misconduct,' [FN7]
conduct that was 'annoying,' [FN8] 'reprehensible,' [FN9] or 'prejudicial to
the best interests' of a city, [FN10] and it is significant that military
courts have resorted to several of these very terms in describing the sort of
acts proscribed by Arts. 133 and 134. [FN11]
FN6. Even one of the staunchest defenders of the general articles
has recognized that:
'It cannot be denied that there is language in the
void-for-vagueness cases broad enough to condemn as unduly indefinite the
prohibition in Article 133 against 'conduct unbecoming an officer and a
gentleman' and the prohibitions in Article 134 against 'all disorders and
neglects to the prejudice of good order and discipline in the armed forces' and
against 'all conduct of a nature to bring discredit upon the armed forces.
''"'' Wiener, supra, n. 2, at 363.
FN7. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15
L.Ed.2d 447.
FN8. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d
214.
FN9. Giaccio v. Pennsylvania, supra.
FN10. Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed.
1359. Other federal courts have similarly held unconstitutional statutes
containing language such as 'reflect(s) discredit,' Flynn v. Giarrusso, 321 F.Supp. 1295 (E.D.La.); 'offensive,'
Pritikin v. Thurman, 311 F.Supp. 1400 (S.D.Fla.); and 'immoral' or
'demoralizing,' Oestreich v. Hale, 321 F.Supp. 445 (E.D.Wis.).
FN11. See, e.g., United States v. Lee, 4 C.M.R. 185, 191 (ABR),
petition for review denied, 1 U.S.C.M.A. 713, 4 C.M.R. 173 ('reprehensible
conduct'); United States v. Rio Poon, 26 C.M.R. 830, 833 (CGBR) ('universally
reprehended'). See also Note, Taps for the Real Catch-22, 81 Yale L.J. 1518,
1522.
**2572 *777 Facially vague statutes
may, of course, be saved from unconstitutionality by narrowing judicial
construction. But I cannot conclude, as does the Court, ante, at 2560--2561,
that the facial vagueness of the general articles has been cured by the
relevant opinions of either the Court of Military Appeals or any other military
tribunal. In attempting to give meaning to the amorphous words of the statutes,
the Court of Military Appeals has repeatedly turned to Winthrop's Military Law
and Precedents, an 1886 treatise. That work describes 'conduct unbecoming an
officer and a gentleman' in the following manner:
'To constitute therefore
the conduct here denounced, the act which forms the basis of the charge must
have a double significance and effect. Though it need not amount to a crime, it
must offend so seriously against law, justice, morality or decorum as to expose
of disgrace, socially or as a man, the offender, and at the same time must be
of such a nature or committed under such circumstances as to bring dishonor or
disrepute upon the military profession which he represents.' [FN12]
FN12. W. Winthrop, Military Law
and Precedents 711--712 (2d ed. 1970). The cited language is quoted in United
States v. Howe, 17 U.S.C.M.A. 165, 177--178, 37 C.M.R. 429, 441--442, and in
United States v. Giordano, 15 U.S.C.M.A. 163, 168, 35 C.M.R. 135, 140.
Such authoritative
publications as The Officer's Guide do little better in defining 'conduct
unbecoming an officer and a gentleman':
'There
are certain moral attributes which belong to the ideal officer and the
gentleman, a lack of which is indicated by acts of dishonesty or unfair
dealing, of indecency or indecorum, or of lawlessness, injustice, or cruelty.
Not every one can be expected to meet ideal standards or to possess the
attributes in the exact degree demanded by the standards of his own time; but
there is a limit of tolerance below which the individual standards in these
respects of an officer or cadet cannot fall within his being morally unfit to be an officer or cadet or to be
considered a gentleman. This article contemplates such conduct by an officer or
cadet which, taking all the circumstances into consideration, satisfactorily
shows such moral unfitness.' R. Reynolds, The Officer's Guide 435--436 (1969
rev.).
This language is substantially repeated in Manual 212.
*778 As to the predecessor
statute of Art. 134, Col. Winthrop read it as applicable to conduct whose
prejudice to good order and discipline was 'reasonably direct and palpable,' as
opposed to that conduct which is simply 'indirectly or remotely'
prejudicial--whatever that may mean. [FN13] These passages, and the decisions
of the Court of Military Appeals that adopt them verbatim, scarcely add any
substantive content to the language of the general articles. At best, the
limiting constructions referred to by the Court represent a valiant but
unavailing effort to read some specificity into hopelessly vague laws.
Winthrop's definitions may be slightly different in wording from Arts. 133 and
134, but they are not different in kind, for they suffer from the same
vagueness as the statutes to which they refer.
FN13. W. Winthrop, Military Law and Precedents 723 (2d ed. 1920).
For cases embodying these definitions,
see United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343; United States
v. Holiday, 4 U.S.C.M.A. 454, 16 C.M.R. 28. See also Manual 213(b), containing
identical language.
If there be any doubt as
to the absence of truly limiting constructions of the general articles, it is
swiftly dispelled by even the most cursory review of convictions under them in
the military courts. Article 133 has been recently employed to punish such
widely disparate conduct as dishonorable failure to repay debts, [FN14] selling
whiskey at an *779 unconscionable
price to an enlisted man, [FN15] cheating at cards, [FN16] and having **2573 an extramarital affair. [FN17]
Article 134 has been given an even wider sweep, having been applied to sexual
acts with a chicken, [FN18] window peeping in a trailer park, [FN19] and
cheating while calling bingo numbers. [FN20] Convictions such as these leave
little doubt that '(a)n infinite variety of other conduct, limited only by the
scope of a commander's creativity or spleen, can be made the subject of
court-martial under these articles.' Sherman, The Civilianization of Military
Law, 22 Maine L.Rev. 3, 80.
FN14. United States v. Journell, 18 C.M.R. 752 (AFBR).
FN15. United States v. Kupfer, 9 C.M.R. 283 (ABR), aff'd, 3
U.S.C.M.A. 478, 13 C.M.R. 34.
FN16. United States v. West, 16 C.M.R. 587 (AFBR), petition for
review denied, 4 U.S.C.M.A. 744, 20 C.M.R. 398.
FN17. United States v. Alcantara, 39 C.M.R. 682 (ABR), aff'd, 18
U.S.C.M.A. 372, 40 C.M.R. 84.
For a listing of other representative convictions under Art. 133,
see H. Moyer, Justice and the Military 1028--1034 (1972). See also Nelson,
Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 AF JAG L.Rev.
124.
FN18. United States v. Sanchez, 11 U.S.C.M.A. 216, 29 C.M.R. 32.
FN19. United States v. Clark, 22 C.M.R. 888 (AFBR), petition for
review denied, 7 U.S.C.M.A. 790, 22 C.M.R. 331.
FN20. United States v. Holt, 7 U.S.C.M.A. 617, 23 C.M.R. 81.
In short, the general
articles are in practice as well as theory 'catch-alls,' designed to allow
prosecutions for practically any conduct that may offend the sensibilities of a
military commander. [FN21] Not every prosecution of *780 course, results in a conviction, and the military courts have
sometimes overturned convictions when the conduct involved was so marginally
related to military discipline as to offend even the loosest interpretations of
the General Articles. [FN22] But these circumstances can hardly be thought to
validate the otherwise vague statutes. As the Court said in United States v.
Reese, 92 U.S. 214, 221, 23 L.Ed. 563: 'It would certainly be dangerous if the
legislature could set a net large enough to catch all possible offenders, and
leave it to the courts to step inside and say who could be rightfully detained,
and who should be set at large.' At best, the General Articles are just such a
net, and suffer from all the vices that our previous decisions condemn.
FN21. The drafters of the Manual for Courts-Martial have admitted
as much, characterizing the discredit clause of Art. 134 as the 'catch-all' in
military law. Legal and Legislative Basis, Manual for Courts-Martial United
States 294 (1951). Admitting that the language of Art. 134 is 'vague,' the drafters state:
'By judicial interpretation these 'vague words' have since been
expanded from the narrow construction placed on them by their author to the
point where they have been used as the legal justification to sustain
convictions for practically any offense committed by one in the military
service which is not either specifically denounced by some other article, or is
not a crime or offense not capital or a disorder or neglect to the prejudice of
good order and discipline.' Id., at 295.
FN22. See, e.g., United States v. Ford, 31 C.M.R. 353 (ABR),
petition for review denied, 12 U.S.C.M.A. 763, 31 C.M.R. 314 (conviction under
Art. 133 for showing an allegedly obscene photograph to a friend in a private
home reversed); United States v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46
(conviction under Art. 134 of passenger for leaving scene of accident
reversed).
II
Perhaps in recognition of
the essential vagueness of the general articles, the Court today adopts several
rather periphrastic approaches to the problem before us. Whatever the apparent
vagueness of these statutes to us civilians, we are told, they are models of
clarity to "practical men in the navy and army." Ante, at 2557,
quoting from Dynes v. Hoover, 20 How. 65, 82, 15 L.Ed. 838. Moreover, the Court
says, the appellee should have been well aware that his conduct fell within the
proscriptions of the general articles, since the Manual for Courts-Martial
gives specific content to these facially uncertain statutes. I believe *781 that neither of these
propositions can withstand analysis.
A
It is true, of course,
that a line of prior decisions of this Court, beginning with Dynes v. Hoover,
supra, in 1858 and concluding with Carter v. McClaughry, **2574 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236, in 1902, have
upheld against constitutional attack the ancestors of today's general articles.
[FN23] With all respect for the principle of stare decisis, however, I believe
that these decisions should be given no authoritative force in view of what is
manifestly a vastly 'altered historic environment.' Mitchell v. W. T. Grant
Co., 416 U.S. 600, 634--635, 94 S.Ct. 1895, 1913, 40 L.Ed.2d 406 (dissenting
opinion). See also id., at 627--628, 94 S.Ct., at 1909--1910 (Powell, J.,
concurring).
FN23. See also Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448,
41 L.Ed. 823; United States v.
Fletcher, 148 U.S. 84, 13 S.Ct. 552, 37 L.Ed. 378; Smith v. Whitney, 116 U.S.
167, 6 S.Ct. 570, 29 L.Ed.601.
It might well have been
true in 1858 or even 1902 that those in the Armed Services knew, through a
combination of military custom and instinct, what sorts of acts fell within the
purview of the general articles. But times have surely changed. Throughout much
of this country's early history, the standing army and navy numbered in the
hundreds. The cadre was small, professional, the voluntary. The military was a
unique society, isolated from the mainstream of civilian life, and it is at
least plausible to suppose that the volunteer in that era understood what
conduct was prohibited by the general articles. [FN24]
FN24. See generally Comment, The Discredit Clause of the UCMJ: An
Unrestricted Anachronism, 18 U.C.L.A.L.Rev. 821, 833--837. Cf. Warren, The Bill
of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187--188; Wiener,
Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv.L.Rev.
266, 292, 301--302.
It is obvious that the
Army into which Dr. Levy entered was far different. It was part of a military *782 establishment whose members
numbered in the millions, a large percentage of whom were conscripts or
draft-induced volunteers, with no prior military experience and little
expectation of remaining beyond their initial period of obligation. [FN25] Levy
was precisely such an individual, a draft-induced volunteer whose military
indoctrination was minimal, at best. [FN26] To presume that he and others like
him who served during the Vietnam era were so imbued with the ancient
traditions of the military as to comprehend the arcane meaning ofthe general
articles is to engage in an act of judicial fantasy. [FN27] In my view, *783 we do a grave disservice to
citizen soldiers in subjecting them to the
**2575 uncertain regime of Arts. 133 and 134 simply because these
provisions did not offend the sensibilities of the federal judiciary in a
wholly different period of our history. In today's vastly 'altered historic
environment,' the Dynes case and its progeny have become constitutional
anachronisms, and I would retire them from active service.
FN25. See Comment, 18 U.C.L.A.L.Rev. supra, at 836. Cf. Avrech v.
Secretary of the Navy, 155 U.S.App.D.C. 352, 357, 477 F.2d 1237, 1242 (Clark,
J.), prob. juris. noted, 414 U.S. 816, 94 S.Ct. 64, 38 L.Ed.2d 48.
FN26. The record indicates that Dr. Levy, unlike many other
medical officers entering active duty, did not attend the basic military
orientation course at Fort Sam Houston, Texas. Instead, he came to Fort Jackson
directly from civilian life. While at Fort Jackson, he received but 16 to 26
hours of military training, only a small portion of which was devoted to
military justice.
FN27. The Court suggests, ante, at 2559--2560, that some of the
problems with the general articles may be ameliorated by the requirement of
Art. 137, 10 U.S.C. s 937, that the provisions of the Code be 'carefully
explained to each enlisted member at the time of his entrance on active duty, or
within six days thereafter,' and that they be 'explained again after he has
completed six months of active duty.' Even assuming, arguendo, that it is
possible to 'carefully explain' the general articles, I do not believe that
Art. 137 cures the vagueness of the statutes. The record in this case indicates
that Dr. Levy received only a very brief amount of instruction on military
justice; presumably, only a fraction of that instruction was devoted to the
general articles. See n. 26, supra. Moreover, Army regulations indicate that
only 20 minutes of instruction at the initial military justice lesson for
enlisted men is devoted to Arts. 71
through 134 of the UCMJ; 49 minutes of instruction on Arts. 107 through 134 is
provided for at the six-month class. Department of the Army, Army Regulation
350--212, Training, Military Justice, 2 June 1972; Army Subject Schedule No.
21--10, Military Justice (Enlisted Personnel Training), 24 June 1969.
Obviously, only a portion of this total of 69 minutes can be set aside for instruction
pertaining to the general articles. It would be myopic to pretend that such
limited instruction on these amorphous criminal statutes provided military
personnel with any genuine expertise on the subject, even assuming that anybody
could ever acquire such expertise.
B
The Court suggests that
the Manual for Courts-Martial provides some notice of what is proscribed by the
general articles, through its Appendix containing 'Forms for Charges and
Specifications.' [FN28] These specimen charges, which consist of
'fill-in-the-blank' accusations covering various fact situations, do offer some
indication of what conduct the drafters of the Manual perceived to fall within
the prohibitions of Arts. 133 and 134. There are several reasons, however, why
the form specifications cannot provide the sort of definitive interpretation of
the general articles necessary to save these statutes from unconstitutionality.
FN28. Manual, App. 6c.
For one thing, the
specifications covering Arts. 133 and 134 are not exclusive; the military
courts have repeatedly held conduct not listed in the Manual's Appendix as
nonetheless violative of the general articles. [FN29] Nor can it *784 be said that the specifications
contain any common threat or unifying theme that gives generic definition to
the articles' vague words; the specimen charges in the Manual list such widely
disparate conduct as kicking a public horse in the belly, [FN30] subornation of
perjury, [FN31] and wrongful cohabitation [FN32] as violative of Art. 134. [FN33]
Moreover, the list of offenses included in the Appendix is ever-expanding; the
1951 Manual contained 59 Art. 134 offenses, [FN34] while the list had increased
to 63 in 1969. [FN35] In view of the nonexclusive and transient character of
the specification list, a serviceman wishing to conform his conduct to the
requirements of the law would simply find definitive guidance from the Manual
Impossible.
FN29. See, e.g., United States v. Sadinsky, 14 U.S.C.M.A. 563, 34
C.M.R. 343 (jumping from ship to sea); United States v. Sanchez, 11 U.S.C.M.A.
216, 29 C.M.R. 32 (sexual acts with a chicken). See also Avrech v. Secretary of the Navy, 155 U.S.App.D.C., at 357, 477
F.2d, at 1242; Manual, App. 6a.1: Legal and Legislative Basis, Manual for
Courts- Martial United States 296 (1951).
FN30. Manual, App. 6c, Spec. 126.
FN31. Id., App. 6c, Spec. 170.
FN32. Id., App. 6c, Spec. 188.
FN33. Similarly, the specifications concerning Art. 133 cover such
dissimilar offenses as copying an examining paper, being drunk and disorderly,
failing to pay a debt, and failure to keep a promise to pay a debt. Id., App.
6c, Specs. 122--125. Nowhere under the Art. 133 specifications is there any
mention of the conduct with which Levy was charged.
FN34. Id., App. 6c, Specs. 118--176 (1951 ed.).
FN35. Id., App. 6c, Specs. 126--188 (1969).
More significantly, the
fact that certain conduct is listed in the Manual is no guarantee that it is in
violation of the general articles. The Court of Military Appeals has repeatedly
emphasized that the sample specifications are only procedural guides and
timesavers for military prosecutors beset by poor research facilities, and are
not intended to create offenses under the general *785 articles. [FN36] Consequently, the court has **2576 on several occasions
disapproved Art. 134 convictions, despite the fact that the precise conduct at
issue was listed in the form specifications as falling under that article.
[FN37]
FN36. See United States v.Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105;
United States v. McCormick, 12 U.S.C.M.A. 26, 30 C.M.R. 26. In these and other
cases, the Court of Military Appeals has indicated its belief that Congress did
not and could not empower the President to promulgate substantive rules of law
for the military. See also United States v. Barnes, 14 U.S.C.M.A. 567, 34
C.M.R. 347; United States v. Margelony, 14 U.S.C.M.A. 55, 33 C.M.R. 267. Cf.
United States v. Acosta-Vargas, 13 U.S.C.M.A. 388, 32 C.M.R. 388. The question
as to whether the Executive has such as inherent power was apparently left open
by this Court in Reid v. Covert, 354 U.S.
1, 38, 77 S.Ct. 1222, 1 L.Ed.2d 1148, and it is not necessary to resolve it in
this case. It is enough to note that the Court of Military Appeals has clearly
held that inclusion of specific conduct in the Manual does not necessarily mean
that it is violative of the general articles. Given that position of the
highest military court, I can hardly conclude that a serviceman could ever
receive authoritative notice from the form specifications as to the scope of
the Articles.
FN37. See, e.g., United States v. McCormick, 12 U.S.C.M.A. 26, 30
C.M.R. 26; United States v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46.
Despite all this, the
Court indicates that Levy should have been aware that his conduct was violative
of Art. 134, since one of the specimen charges relates to the making of
statements 'disloyal to the United States.' [FN38] That specification, and the
brief reference to such conduct in the text of the Manual, [FN39] is itself so
vague and overbroad as to have been declared unconstitutional by one federal
court. Stolte v. Laird, 353 F.Supp. 1392 (DC). But even if a consensus as to
the meaning of the word 'disloyal' were readily attainable, I am less than
confident that Dr. Levy's attacks upon our Vietnam policies could be accurately
characterized by such an adjective. However, *786 foreign to the military atmosphere of Fort Jackson, the words
spoken by him represented a viewpoint shared by many American citizens.
Whatever the accuracy of these views, I would be loath to impute 'disloyalty'
to those who honestly held them. In short, I think it is clear that the form
specification concerning disloyal statements cannot be said to have given Levy
notice of the illegality of his conduct. The specimen charge is no better than
the article that spawned it. It merely substitutes one set of subjective and
amorphous phraseology for another. [FN40]
FN38. Manual, App. 6c, Spec. 139.
FN39. Id., 213f(5).
FN40. The Court also holds that even if the general articles might
be considered vague as to some offenders, the appellee has no standing to raise
such a claim, since he should have known that his conduct was forbidden. Ante,
at 2561--2562. To the extent that this conclusion rests on the Court's holdings
that the general articles are given content through limiting judicial
constructions, military custom, or the Manual for Courts-Martial, I have
indicated above my disagreement with its underlying premises. And to the extent that this conclusion rests on
the language of the general articles, I think that it is simply mistaken. The
words of Arts. 133 and 134 are vague beyond repair; I am no more able to
discern objective standards of conduct from phrases such as 'conduct unbecoming
an officer an da gnetleman' and 'conduct of a nature to bring discredit upon
the armed forces' than I am from such words as 'bad' or 'reprehensible.' Given
this essential uncertainty, I cannot conclude that the statutory language
clearly warned the appellee that his speech was illegal. It may have been, of
course, that Dr. Levy had a subjective feeling that his conduct violated some
military law. But that is not enough, for as we pointed out in Bouie v. City of
Columbia, 378 U.S. 347, 355--356, n. 5, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894
'(t)he determination whether a criminal statute provides fair warning of its
prohibitions must be made on the basis of the statute itself and the other
pertinent law, rather than on the basis of an ad hoc appraisal of the
subjective expectations of particular defendants.'
III
What has been said above
indicates my view that the general articles are unconstitutionally vague under
the *787 standards normally and
repeatedly applied by this Court. The remaining question is whether, as the
Court concludes, ante, at 2562, the peculiar situation of the military requires
application of a standard of judicial review more relaxed than that embodied in
our prior decisions.
It is of course common
ground that the military is a 'specialized community governed by a separate discipline
from that of the civilian.' Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct.534,
540, 97 L.Ed. 842. A number of serviceman's individual rights must necessarily
be subordinated to the overriding military
**2577 mission, and I have no doubt that the military may constitutionally
prohibit conduct that is quite permissible in civilian life, such as
questioning the command of a superior. But this only begins the inquiry. The
question before us is not whether the military may adopt substantive rules different
from those that govern civilian society, but whether the serviceman has the
same right as his civilian counterpart to be informed as to precisely what
conduct those rules proscribe before he can be criminally punished for
violating them. More specifically, the issue is whether the vagueness of the
general articles is required to serve a genuine military objective.
The Solicitor General
suggests that a certain amount of vagueness in the general articles is
necessary in order to maintain high standards of conduct in the military, since
it is impossible to predict in advance every offense that might serve to affect
morale or discredit the service. It seems to me that this argument was
concisely and eloquently rebutted by Judge Aldisert in the Court of Appeals,
478 F.2d 772, 795 (CA 3):
'(W)hat high standard of
conduct is served by convicting an individual of conduct he did not reasonable
perceive to be criminal? Is not the essence of high standards in the military,
first, knowing one's duty, and secondly, executing it? And, in this regard, *788 would not an even higher standard
be served by delineation of the various offenses under Article 134, following
by obedience to these standards?'
It may be that military necessity justifies the promulgation of substantive
rules of law that are wholly foreign to civilian life, but I fail to perceive
how any legitimate military goal is served by enshrouding these rules in
language so vague and uncertain as to be incomprehensible to the servicemen who
are to be governed by them. [FN41] Indeed, I should suppose that vague laws,
with their serious capacity for arbitrary and discriminatory enforcement, can
in the end only hamper the military's objectives of high morale and esprit de
corps.
FN41. Cf. J. Heller, Catch-22, p.
395 (Dell ed. 1970): "(W)e accuse
you also of the commission of crimes and infractions we don't even know about
yet. Guilty or innocent?
"I don't know, sir.
How can I say if you don't tell me what they are?'
"How
can we tell you if we don't know?"
In short, I think no case has been made for finding that there is
any legitimate military necessity for perpetuation of the vague and amorphous
general articles. In this regard, I am not alone. No less an authority than
Kenneth J. Hodson, former Judge Advocate General of the Army and Chief Judge of
the Army Court of Military Review, has recommended the abolition of Art. 134
because '(w)e don't really need it, and we can't defend our use of it in this
modern world.' Hodson, The Manual for Courts-Martial--1984, 57 Military L.Rev.
1, 12. [FN42] *789 No different
conclusion can be reached as to Art. 133. Both are anachronisms, whose
legitimate military usefulness, if any, has long since disappeared.
FN42. General Hodson suggests that in place of Art. 134, the Department
of Defense and various military commanders could promulgate specific sets of
orders, outlawing particular conduct. Those disobeying these orders could be
prosecuted under Art. 92 of the UCMJ, 10 U.S.C. s 892, which outlaws the failure to obey any lawful order.
See also Note, Taps for the Real Catch-22, 81 Yale L.J. 1518, 1537--1541,
containing a similar suggestion.
It is perhaps appropriate
to add a final word. I do not for one moment denigrate the importance of our
inherited tradition that the commissioned officers of our military forces are
expected to be men of honor, nor do I doubt the necessity that servicemen
generally must be orderly and dutiful. An efficient and effective military
organization depends in large part upon the character and quality of its
personnel, particularly its leadership. The internal loyalty and mutual **2578 reliance indispensable to the
ultimate effectiveness of any military organization can exist only among people
who can be counted on to do their duty.
It is, therefore, not only
legitimate but essential that in matters of promotion, retention, duty
assignment, and internal discipline, evaluations must repeatedly be made of a
serviceman's basic character as reflected in his deportment, whether he be an
enlisted man or a commissioned officer. But we deal here with criminal
statutes. And I cannot believe that such meaningless statutes as these can be
used to send men to prison under a Constitution that guarantees due process of
law.
94 S.Ct. 2547, 417 U.S. 733, 41 L.Ed.2d 439