arose out of an act or omission done in the performance of official duty. Is that correct?
'Mr. Gasch: That is correct.' (Italics supplied.)
If there had been any disagreement as to this material and basic fact, the Court would have been required to issue the Writ in order that a full hearing could be held to determine the fact. In resisting the argument of petitioner's counsel that the Writ should issue, counsel for the defendants insisted that there is no material issue of fact.
Accordingly, the determination of the legal question here to be decided will be based upon the conceded fact that the incident for which it is proposed to deliver the petitioner to the Japanese courts for trial arose out of an act or omission done by the petitioner as a member of the American armed forces in the performance of official duty.
Section 8 of Article I of the Constitution of the United States provides that the Congress shall have power 'to make Rules for the Government and Regulation of the land and naval Forces'.
Acting under this authority, the Congress has adopted a Uniform Code of Military Justice, 50 U.S.C.A. § 551 et seq., which makes subject to its provisions 'all persons belonging to a regular component of the armed forces'. § 552.
This Code, as its name implies, is a comprehensive Criminal Code applying to the person subject to its provisions and spells out in detail the procedures for the Courts-Martial jurisdiction, appointment and composition of Courts-Martial, pre-trial and trial procedure, sentences, review of Courts-Martial, and definition of offenses punishable under the Code. In other words, if the petitioner is subject to prosecution for an act or omission done by him as a member of the American Armed Forces in the performance of official duty, the Uniform Code of Military Justice establishes every procedure to be followed.
Since the petitioner's act was committed in the performance of official duty, under the principles announced by the Supreme Court in the case of In re Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55, the petitioner is accountable only to United States Federal jurisdiction for any act or omission. Additional authorities in support of this proposition are Johnson v. State of Maryland, 254 U.S. 51, 41 S. Ct. 16, 65 L. Ed. 126; Brown v. Cain, D.C., 56 F.Supp. 56; Lima v. Lawler, D.C., 63 F.Supp. 446; People of State of Colorado v. Maxwell, D.C., 125 F.Supp. 18; In re Fair, C.C., 100 F. 149; In re Wulzen, D.C., 235 F. 362.
In some of these cases, the factual situation was in dispute and required lengthy hearings to determine if the petitioner was acting in performance of official duty. Not so in the instant case, since the status of the petitioner is conceded.
The defendants place reliance upon the decisions of this Court in the cases of May v. Wilson, D.C.D.C., 153 F.Supp. 688, and Cozart v. Wilson, 98 U.S.App.D.C. 437, 236 F.2d 732. Both of these cases arose out of offenses committed when the petitioners were off duty and, therefore, factually are distinguishable from the case now under consideration. May was not appealed, and in Cozart the Supreme Court granted a Petition for Writ of Certiorari and vacated the judgment of the Court of Appeals, remanding the case to the District Court with directions to dismiss the petition for Writ of Habeas Corpus upon the ground that the cause is moot. 352 U.S. 884, 77 S. Ct. 126, 1 L. Ed. 2d 82. In pursuing this procedure, the Supreme Court cited United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct. 104, 107, 95 L. Ed. 36, which states 'that procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.'
Counsel for the defendants also cite cases in support of the proposition that 'the jurisdiction of a Court-Martial is not exclusive and does not preempt the jurisdiction of state courts to deal with acts which violate state law as well as military law.'
In none of the cases cited in support of this proposition were the accused charged with an offense performed in line of duty.
In Caldwell v. Parker, 252 U.S. 376, 40 S. Ct. 388, 64 L. Ed. 621, the petitioner was charged with murder of a civilian at a place within the jurisdiction of the State of Alabama and not within the confines of any camp or place subject to the control of the civil or military authorities of the United States. Kennedy v. Sanford, 5 Cir., 166 F.2d 568, related to a charge of conspiracy; United States v. Matthews, D.C., 49 F.Supp. 203, was a charge of rape; and United States v. Canella, D.C., 63 F.Supp. 377, related to a charge of bribery. Clearly these cases are distinguishable from the facts in the instant case.
Counsel for defendants further cite a series of cases in support of the proposition that 'if there is any question as to whether a particular act was strictly within the scope of the authority of the soldier or whether such act constituted the only means available to perform the assigned duty, then the state court rather than a court-martial must be allowed to proceed with the case.' These decisions are not in point in view of the stipulation that there is no issue of material fact with respect to the status of the petitioner at the time of the incident.
Applying the same constitutional protection to the petitioner against his delivery to a foreign State that would be applied to his delivery for prosecution in a state court, it follows that the threatened action by the defendants is illegal and in violation of the Constitution and laws of the United States.
The petition is for a Writ of Habeas Corpus which appears to be authorized by Cozart v. Wilson, supra, and Eisentrager v. Forrestal, 84 U.S.App.D.C. 396, 174 F.2d 961, since the petitioner is administratively restricted to the limits of Camp Whittington and, therefore, he is sufficiently restrained for the purposes of habeas corpus. However, since the petitioner remains a member of the United States Armed Forces in Japan and may be prosecuted in Court-Martial proceedings for the offense with which he is charged, the petition for the Writ will be denied and the Court will treat the complaint as a Petition for Declaratory Judgment and Injunction under the prayer of the complaint for other relief and, as such, will decree that the proposed delivery of the petitioner to the Japanese Government would violate rights of the petitioner guaranteed by the Constitution of the United States and will be enjoined.
This opinion may be treated as the Court's Findings of Fact and Conclusions of Law, and counsel for petitioner will submit an appropriate order in conformity herewith.
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