MR. JUSTICE BLACKMUN announced the judgments of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE POWELL join.
In O'Callahan v. Parker, 395 U.S. 258, decided June 2, 1969, this Court, by a 5-3 vote, held that when a person in military service is charged with a crime that is not "service connected," id., at 272, the defendant is entitled, despite his military status, to the benefit of "two important constitutional guarantees," id., at 273,
The Court noted that O'Callahan was "properly absent from his military base when he committed the crimes with which he is charged," ibid.; that there was no connection between his military duties and the crimes; that the offenses were committed off the military post or enclave; that the victim was not performing any duty relating to the military; that the situs of the crimes was not occupied territory or under military control; that they were peacetime offenses; that the civilian courts were open; and that the offenses involved no question of the flouting of military authority, post security, or the integrity of military property.
Later, in Relford v. Commandant, 397 U.S. 934 (1970), we granted certiorari "limited to retroactivity and scope of O'Callahan v. Parker." When Relford was decided, 401 U.S. 355 (1971), we held that an offense committed on a military post by an individual in service, in violation of the security of another person or property on that post, was "service connected," within O'Callahan's language. Relford's offenses so qualified. His case, thus, went off on the scope of O'Callahan and did not reach the issue of retroactivity. We concluded that the latter issue, although having "important dimensions, both direct and collateral," was "better resolved in other litigation where, perhaps, it would be solely dispositive of the case." Id., at 370. One of the cases, Gosa, now before us presents that issue solely. The other case, Flemings, presents the issue, but not solely.
No. 71-6314. In December 1966 petitioner James Roy Gosa, an airman third class, stationed at Warren Air Force Base in Wyoming, was tried by a court-martial and convicted of rape, in violation of Art. 120 of the Uniform Code of Military Justice, 10 U. S. C. § 920.
The offense took place the preceding August, in what the respondent has stated to be peacetime,
At no time throughout the trial and the review proceedings did Gosa raise any question as to the power of the military tribunal to try him.
Following the Court's decision in O'Callahan, Gosa filed an application for a writ of habeas corpus in the United States District Court for the Northern District of Florida seeking his release from the Federal Correctional Institution at Tallahassee where he was then confined.
No. 71-1398. In 1944, when the United States was formally at war, respondent James W. Flemings, then age 18 and a seaman second class, was stationed at the Naval Ammunition Depot in New Jersey. On August 7 of that year Flemings failed to return on time from an
A court-martial was convened at the Brooklyn Navy Yard. Flemings, represented by a reserve lieutenant, pleaded guilty to the two charges. He was sentenced to three years' imprisonment, reduction in rank to apprentice seaman, and dishonorable discharge. After two years' confinement he was released and was dishonorably discharged in October 1946.
In 1970, Flemings instituted suit in the United States District Court for the Eastern District of New York, relying on O'Callahan and seeking to compel the Secretary of the Navy to overturn the 1944 court-martial conviction for auto theft and to correct his military records with respect to the dishonorable discharge. He did not challenge the validity of his conviction for being absent without leave.
The District Court held that the auto theft offense was not service connected in the O'Callahan sense and that O'Callahan was to be applied retroactively to invalidate the court-martial conviction on that charge. 330 F.Supp. 193 (1971). The Court of Appeals for the Second Circuit affirmed. 458 F.2d 544 (1972).
We granted certiorari in both cases to resolve the conflict. 407 U.S. 920 and 919 (1972).
O'Callahan v. Parker, to use the words MR. JUSTICE STEWART employed in Desist v. United States, 394 U.S. 244, 248 (1969), was "a clear break with the past." In O'Callahan the Court concluded that, in harmonizing
The new approach announced in O'Callahan was cast, to be sure, in "jurisdictional" terms, but this was "lest `cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers" (footnote omitted). 395 U. S., at 272-273. The Court went on to emphasize that the "power of Congress to make `Rules for the Government and Regulation
That O'Callahan dealt with the appropriate exercise of jurisdiction by military tribunals is apparent from Kinsella v. Singleton, supra, where the Court ruled that the Necessary and Proper Clause, Art. I, § 8, cl. 18, does not enable Congress to broaden the term "land and naval Forces" in Art. I, § 8, cl. 14, to include a civilian dependent accompanying a member of the Armed Forces overseas. In such a case, it was held, a civilian dependent is entitled to the safeguards of Art. III and of the Fifth and Sixth Amendments, and conviction by court-martial is not constitutionally permissible:
Although the decision in O'Callahan emphasizes the difference in procedural protections respectively afforded by the military and the civilian tribunals, the Court certainly did not hold, or even intimate, that the prosecution in a military court of a member of the Armed Services for a nonservice-connected crime was so unfair as to be void ab initio. Rather, the prophylactic rule there formulated "created a protective umbrella serving to enhance" a newly recognized constitutional principle. Michigan v. Payne, 412 U.S. 47, 54 (1973). That recognition and effect are given to a theretofore unrecognized and uneffectuated constitutional principle does not, of course, automatically mandate retroactivity. In Williams v. United States, 401 U.S. 646, 651 (1971), MR. JUSTICE WHITE made it clear, citing Linkletter v. Walker, 381 U.S. 618 (1965), that the Court has "firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored." See Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374 (1940). And in Johnson v. New Jersey, 384 U.S. 719, 728 (1966),
Duncan v. Louisiana, 391 U.S. 145 (1968), and Bloom v. Illinois, 391 U.S. 194 (1968), are illustrative of the context of the O'Callahan decision. In Duncan, the Court held that since "trial by jury in criminal cases is fundamental to the American scheme of justice, . . . the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee" (footnote omitted). 391 U. S., at 149. In Bloom the Court held that serious criminal contempts may not be summarily punished and that they are subject to the Constitution's jury trial provision. 391 U. S., at 201-210. In those two cases the Court ruled that a state court exercising jurisdiction over a defendant in a serious criminal or criminal contempt case, but failing to honor a request for a jury trial, in effect was without jurisdiction. Yet in DeStefano v. Woods, 392 U.S. 631 (1968), the Court by a per curiam opinion, denied retroactive application to those new constitutional holdings. The Court thus concluded that it did not follow that every judgment rendered in a Duncan or in a Bloom situation, prior to the decisions in those cases, was so infected by unfairness as to be null and void.
The same analysis has pertinent application to these very similar cases, and it leads us to the conclusion that the validity of convictions by military tribunals, now said to have exercised jurisdiction inappropriately over non-service-connected offenses is not sufficiently in doubt so as to require the reversal of all such convictions rendered since 1916 when Congress provided for military trials for civilian offenses committed by persons in the Armed Services. Act of Aug. 29, 1916, c. 418, 39 Stat. 652.
In O'Callahan, on the other hand, the offense was one for which the defendant was not so immune in any court. The question was not whether O'Callahan could have been prosecuted; it was, instead, one related to the forum, that is, whether, as we have said, the exercise of jurisdiction by a military tribunal, pursuant to an act of Congress, over his nonservice-connected offense was appropriate when balanced against the important guarantees of the Fifth and Sixth Amendments. The Court concluded that in the circumstances there presented the exercise of jurisdiction was not appropriate, and fashioned a rule limiting the exercise of court-martial jurisdiction in order to protect the rights to indictment and jury trial. The Court did not hold that a military
The foregoing conclusion, of course, does not end our inquiry as to whether O'Callahan should be accorded retroactive application.
In two cases decided earlier this Term, retrospectivity of a new constitutional decision was also an issue. Robinson v. Neil, 409 U.S. 505 (1973), concerned successive municipal and state prosecutions for alleged offenses arising from the same circumstances, and a claim of double jeopardy, based on this Court's intervening decisions in Benton v. Maryland, 395 U.S. 784 (1969), and Waller v. Florida, 397 U.S. 387 (1970). We recognized that in Linkletter the Court was "charting new ground" in the retrospectivity area, 409 U. S., at 507, that "Linkletter and succeeding cases," ibid., obviously including Stovall v. Denno, 388 U. S., at 297, established standards for determining retroactivity; that Robinson, however, did not readily lend itself to the Linkletter analysis; that Linkletter and its related cases dealt with procedural rights and trial methods; and that guarantees not related to procedural rules "cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis." Robinson v. Neil, 409 U. S., at 508.
In Michigan v. Payne, 412 U.S. 47 (1973), we were concerned with the retroactivity of North Carolina v. Pearce, 395 U.S. 711 (1969), and the standards it promulgated with respect to an increased judge-imposed sentence on retrial after a successful appeal. We there employed the Stovall criteria and held that Pearce was not to be applied retroactively.
In the present cases we are not concerned, of course, with procedural rights or trial methods, as is exemplified by the decisions concerning the exclusionary rule (Link-letter),
These cases, therefore, closely parallel DeStefano v. Woods, supra, where the Court denied retroactive application to Duncan v. Louisiana, supra, and Bloom v. Illinois, supra, in each of which a right to a jury trial had been enunciated. In denying retroactivity, the integrity of each of the earlier proceedings, without a jury, was recognized. The test applied in DeStefano was the Stovall test. 392 U. S., at 633-635. Similarly here, then, the three-prong test of Stovall has pertinency, and we proceed to measure Gosa's and Flemings' claims by that test directed to "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." 388 U. S., at 297.
A. Purpose. "Foremost among these factors is the purpose to be served by the new constitutional rule." Desist v. United States, 394 U.S. 244, 249 (1969). In his opinion for the plurality in Williams v. United States, 401 U. S., at 653, MR. JUSTICE WHITE emphasized that where "the major purpose of new constitutional doctrine is to overcome" a trial aspect "that substantially impairs its truth-finding function," the new rule is given complete retroactive effect, and "[n]either good-faith reliance" nor "severe impact on the administration of justice" suffices to require prospectivity.
See Michigan v. Payne, 412 U. S., at 55. Thus, retroactivity is not required by a determination that the old standard was not the most effective vehicle for ascertaining the truth, or that the truth-determining process has been aided somewhat by the new standard, or that one of several purposes in formulating the new standard was to prevent distortion in the process.
Although the opinion in O'Callahan was not uncritical of the military system of justice, and stressed possible command influence and the lack of certain procedural safeguards, 395 U. S., at 263-266, the decision there, as has been pointed out above, certainly was not based on any conviction that the court-martial lacks fundamental
It, of course, would demean the constitutional rights to indictment and trial by a jury to assert that those guarantees do not play some role in assuring the integrity of the truth-determining process. "[T]he right to jury trial generally tends to prevent arbitrariness and repression." DeStefano v. Woods, 392 U. S., at 633. The same mission is fulfilled by the indictment right. But a policy directed at the prevention of arbitrariness and repression is not confined to the truth-determining process. It is concerned, as well, with a larger range of possible evils: prosecution that is malicious, prosecutorial overzealousness, excessiveness of sentence, and the like. These very ingredients were also present in the background
Nothing said in O'Callahan indicates that the major purpose of that decision was to remedy a defect in the truth-determining process in the military trial. Rather, the broad guarantees of the Fifth Amendment right to grand jury indictment and the Sixth Amendment right to jury trial weighed heavily in the limitation of the exercise of court-martial jurisdiction to "`the least possible power adequate to the end proposed,'" Toth v. Quarles, 350 U.S. 11, 23 (1955), a phrase taken from Anderson v. Dunn, 6 Wheat. 204, 231 (1821).
The purpose behind the rule enunciated in O'Callahan thus does not mandate retroactivity.
B. Reliance. With respect to this factor, we repeat what has been emphasized above, namely, that, before O'Callahan, the law was settled that the exercise of military jurisdiction over an offense allegedly committed by a member of the Armed Forces was appropriately based on the military status of the defendant and was not dependent on the situs or nature of the offense. There was justifiable and extensive reliance by the military and by all others on the specific rulings of this Court. Military authorities were acting appropriately pursuant to provisions of the Uniform Code of Military Justice, Art. 2, 10 U. S. C. § 802, and its predecessors, and could not be said to be attempting to usurp civilian authority. The military is not to be faulted for its reliance on the law as it stood before O'Callahan and for not anticipating the "clear break with the past" that O'Callahan entailed. The reliance factor, too, favors prospectivity.
C. Effect on the Administration of Justice. In DeStefano v. Woods, 392 U. S., at 634, the Court, in considering the retroactivity of Duncan and Bloom, attached
A mere glance at the reports of the United States Court of Military Appeals discloses the volume of prosecutions in military tribunals. Retrospective application of O'Callahan would not only affect the validity of many criminal convictions but would result in adjustments and controversy over back pay, veterans' benefits, retirement pay, pensions, and other matters. In addition, the task of establishing a service connection on the basis of a stale record or in a new trial would prove formidable if not impossible in many cases, since at the time the record was made the question whether there was a service connection was of no importance.
Gosa and Flemings press upon us a recent law review article. Blumenfeld, Retroactivity After O'Callahan: An Analytical and Statistical Approach, 60 Geo. L. J. 551 (1972). The author of that article concludes: (1) On the basis of a sampling of cases reviewed by the Court of Military Appeals and the Army Court of Military Review between June 2, 1969 (the date of O'Callahan), and December 31, 1970, only about 1% of the general court-martial cases were service connected. Id., at 580 n. 147. (2) "[V]ery few" servicemen have sought collateral review of their convictions since O'Callahan was decided. Id., at 578 n. 141. The author asserts, however: "Even if the number of requests for relief sent
In Mercer v. Dillon, 19 U. S. C. M. A. 264, 41 C. M. R. 264 (1970), the United States Court of Military Appeals, a tribunal composed of civilian judges, 10 U. S. C. § 867, but uniquely familiar with the military system of justice, spoke in another vein.
We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.
We conclude that the purpose to be served by O'Callahan, the reliance on the law as it stood before that decision, and the effect of a holding of retroactivity, all require that O'Callahan be accorded prospective application only. We so hold.
Flemings also urges that, because his court-martial proceeding was convened in Brooklyn, whereas the auto theft took place in New Jersey and his arrest in Pennsylvania, he was deprived of the right to a trial in the vicinage, as guaranteed by Art. III, § 2, cl. 3, of the
The judgment in No. 71-6314 is affirmed; that in No. 71-1398 is reversed.
It is so ordered.
MR. JUSTICE DOUGLAS, concurring in the result in part in No. 71-6314 and concurring in the result in No. 71-1398.
I agree with MR. JUSTICE STEWART that respondent Flemings committed a "service connected" crime.
As to the Gosa case I think the case should be put down for reargument on whether res judicata controls the disposition of the case. The argument that it does goes as follows:
Petitioner Gosa was tried for rape before a military tribunal and convicted. The case went through the hierarchy of review within the military establishment and after the conviction and sentence were affirmed, a
O'Callahan in that respect is on all fours with the instant case, for here petitioner was officially off-duty, in civilian clothes, and was found to have raped a civilian in no way connected with the military, while he was in Cheyenne, Wyoming, near Warren Air Force Base but not on the base.
O'Callahan was decided in 1969 and in reliance on it petitioner Gosa started this habeas corpus action
The question whether one of our constitutional decisions should be retroactively applied has been before us on numerous occasions. Linkletter v. Walker, 381 U.S. 618; Stovall v. Denno, 388 U.S. 293, 297; Desist v. United States, 394 U.S. 244; DeStefano v. Woods, 392 U.S. 631.
But in all cases to date which involved retroactivity the question has been whether the court whose judgment is being reviewed should be required in the interests of substantial justice to retry the accused under the new constitutional rule announced by the Court after the first trial had been completed but before the new constitutional
Here the question is whether a civilian, rather than a military, tribunal should have tried him. Does the question whether the "jurisdiction"
Petitioner Gosa in the review of his conviction by the military tribunal never raised the question raised in O'Callahan.
The case is somewhat unlike McClaughry v. Deming, 186 U.S. 49, where a court-martial was constituted of officers of the regular army who by an Act of Congress were not authorized to sit in judgment on volunteers. The court-martial was held incompetent to sit on the case because it acted in plain violation of an Act of Congress. There was therefore no tribunal authorized by law to render the challenged judgment. Consent to be so tried could not confer jurisdiction in face of the mandate of the statute. In the present cases Congress by express provisions of the Code had authorized the military tribunals to sit in these types of cases.
In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, municipal debts were readjusted by a federal district court under an Act of Congress which this Court later held to be unconstitutional. The latter ruling was in Ashton v. Cameron County District, 298 U.S. 513, where a closely divided Court held that an extension of the Bankruptcy Act to include a readjustment of the debts of municipalities and counties was unconstitutional. Petitioner had its debts readjusted under that Act, which permitted less than all of the outstanding bondholders to agree to a plan. That plan was consummated before the Ashton decision. Respondent was one of the nonconsenting bondholders. After the Ashton decision it brought suit on its bonds. The question before the Court in the Chicot County Drainage District case was the extent to which the Ashton case should be made retroactive. The Court, speaking through Mr. Chief Justice Hughes, said that the proceedings in the District Court "were conducted in complete conformity to the statute" and that "no question had been raised as to the regularity
He went on to say, id., at 378:
Petitioner claims, as did respondent in the Chicot County Drainage District case, that the tribunal that first adjudicated the cause acted unconstitutionally. At the time the military court acted, however, it was assumed to have "jurisdiction" and its "jurisdiction" was in no way challenged in the review proceedings available to petitioner. Did the issue of "jurisdiction" for that case therefore become res judicata?
These are, in brief, the reasons why res judicata arguably should lead to an affirmance in the Gosa case. Contrary to intimations in the dissenting opinion I have reached no position on the merits and would reserve judgment until the issue was fully explored on reargument.
I do not believe that decisions of this Court would support a holding that the rule announced in O'Callahan v. Parker, 395 U.S. 258 (1969), should not be applied retroactively to court-martial convictions entered before the decision in that case. In O'Callahan, the Court clearly held that courts-martial did not have jurisdiction to try servicemen for "non-service connected" crimes. For substantially the reasons stated by my Brother MARSHALL, I believe that Robinson v. Neil, 409 U.S. 505 (1973), and prior decisions mandate that O'Callahan be applied retroactively.
In No. 71-6314, since I believe that the O'Callahan rule could not in any event be given only prospective application, the question arises whether the analytical inquiry sanctioned by that decision should even be undertaken. O'Callahan, was, in my opinion, wrongly decided, and I would overrule it for the reasons set forth by Mr. Justice Harlan in his dissenting opinion. 395 U. S., at 274-284.
In No. 71-1398, even if O'Callahan were followed, I agree with the views of my Brother STEWART. The offense was committed during a period of declared war, and furthermore while respondent was absent without official leave from his military duties. For purposes of the "service connected"—"non-service connected" dichotomy announced by O'Callahan, I would hold that any crime committed by a member of the Armed Forces during time of war is "service connected," and that he can validly be tried by a court-martial for that offense. Cf. Relford v. Commandant, 401 U.S. 355 (1971).
I therefore concur in the judgments of the Court, and would affirm the judgment of the Court of Appeals in No. 71-6314 and reverse that in No. 71-1398.
I dissented in O'Callahan v. Parker, 395 U.S. 258, 274 (1969), and continue to believe that that case was wrongly decided. Until or unless O'Callahan is overruled, however, I think it must be given fully retroactive application for the reasons stated in my Brother MARSHALL'S persuasive dissenting opinion, post, this page. Accordingly, I join his dissenting opinion as it applies to No. 71-6314, Gosa v. Mayden.
But that view, in my opinion, does not dispose of No. 71-1398, Warner v. Flemings. I think that a serviceman who deserts his post during a time of congressionally declared war and steals an automobile is guilty of a "service connected" offense. Accordingly, I conclude that the respondent Flemings was properly tried before a court-martial under O'Callahan. Cf. Relford v. Commandant, 401 U.S. 355, 365 (1971). For this reason I concur in the result reached by the Court in the Flemings case.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEWART
MR. JUSTICE BLACKMUN'S plurality opinion, by its efforts to establish that O'Callahan v. Parker, 395 U.S. 258 (1969), was not a decision dealing with jurisdiction in its classic form, implicitly acknowledges that if O'Callahan were in fact concerned with the adjudicatory
I am unable to agree with the plurality's characterization of O'Callahan. In my view, it can only be understood as a decision dealing with the constitutional limits of the military's adjudicatory power over offenses committed by servicemen. No decision could more plainly involve the limits of a tribunal's power to exercise jurisdiction over particular offenses and thus more clearly demand retroactive application.
In holding that O'Callahan is to be given only prospective effect, the plurality does not reject outright the view that the decision was jurisdictional in nature. Yet it clearly does reject the contention that O'Callahan dealt with a question of true jurisdictional competency, for we are told that the decision "did announce a new constitutional principle," ante, at 673, and that it really "dealt with the appropriate exercise of jurisdiction
O'Callahan required this Court to define the class of offenses committed by servicemen that Congress, under Art. I, § 8, cl. 14, could constitutionally empower military tribunals to try. The nature of the ultimate inquiry there is plain from the question upon which the Court granted certiorari: "`Does a court-martial, held under the Articles of War, Tit. 10, U. S. C. § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by grand jury and trial by a petit jury in a civilian court?'" 395 U. S., at 261. The O'Callahan Court's discussion of this issue was consistently couched in terms of the jurisdiction of military tribunals;
Despite the evident jurisdictional nature of the ultimate issue presented in O'Callahan, the plurality attempts to analogize this case to DeStefano v. Woods, 392 U.S. 631 (1968), where the Court held that the decisions in Duncan v. Louisiana, 391 U.S. 145 (1968), and Bloom v. Illinois, 391 U.S. 194 (1968), were to have only prospective effect. Duncan held that the Sixth Amendment guarantee of trial by jury in criminal cases had been made applicable to the States by the Fourteenth Amendment. And Bloom established the right to jury trial in the context of serious criminal contempt proceedings. DeStefano—like the other offspring of Linkletter that have applied the three-prong test to determine retroactivity—involved constitutional rulings that established new procedures for the conduct of trial or for the use of evidence. But O'Callahan hardly was such a case.
The Court in O'Callahan was not setting forth procedures which the military was constitutionally required to adopt in its proceedings. Had the Court been doing so, this would certainly be a different case; the analogy
Thus, the Court pointed out that one tried before a military tribunal is without the benefit of not only trial by jury but also indictment by a grand jury. Ibid. Nor are the same rules of evidence and procedure applicable in a military proceeding, a factor affecting, for example, the defense's access to compulsory process, id., at 264 n. 4. In addition, the Court was concerned with the fact that the presiding officers at courts-martial do not enjoy the independence that is thought to flow from life tenure and undiminishable salary. To the contrary, the Court recognized that "the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger." Id., at 264. In short, the Court concluded
The Court's purpose in considering these factors was not to require changes in the military system of justice, but rather to illustrate its "fundamental differences from . . . the civilian courts," id., at 262, differences that compelled the Court "`to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service,'" id., at 265, quoting from Toth v. Quarles, 350 U.S. 11, 22 (1955). As a result, the Court concluded that the "crime to be under military jurisdiction must be service connected. . .," 395 U. S., at 272, so that the power of Congress under Art. I, § 8, cl. 14, to "make Rules for the Government and Regulation of the land and naval Forces," and also the exemption from the grand jury requirement of the Fifth Amendment for "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger" are not expanded to deprive servicemen unjustifiably of their civil rights.
Certainly the jurisdictional nature of the O'Callahan decision is amply demonstrated by this Court's previous decision in McClaughry v. Deming, 186 U.S. 49 (1902). There the Court was called upon to decide "the power of an officer convening a court-martial for the trial of an officer of volunteers [reserve troops], to compose that court entirely of officers of the Regular Army." Id., at 53. The Court determined that Congress had directed by statute that volunteer officers of the Army be tried only by a court-martial composed of volunteer officers. In light of this determination the Court concluded:
In the same vein, the Court elsewhere stated: "A court-martial is the creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction." Id., at 62. Because of the flaw
With this understanding of O'Callahan, I believe, contrary to the plurality's view, that the retroactive application of our holding there is required by our prior decisions in Robinson v. Neil, 409 U.S. 505 (1973), and United States v. U. S. Coin & Currency, 401 U.S. 715, 722-724 (1971). Robinson involved the retroactive application of the decision in Waller v. Florida, 397 U.S. 387 (1970), that the Fifth Amendment's guarantee, made applicable to the States through the Fourteenth Amendment, that no person should be put twice in jeopardy for the same offense barred an individual's prosecution for a single offense by both a State and a municipality of the State, that is, a legal subdivision of the State. U. S. Coin & Currency held retroactive
In deciding whether to give retroactive effect to Waller, Marchetti, and Grosso, the Court rejected contentions that it should apply the three-prong test employed in cases such as Stovall v. Denno, 388 U.S. 293 (1967), Desist v. United States, 394 U.S. 244 (1969), and DeStefano v. Woods, 392 U.S. 631 (1968). In U. S. Coin & Currency, Mr. Justice Harlan, speaking for the Court, explained:
The Robinson Court adopted essentially the same view of the Waller decision concerning the Double Jeopardy Clause and multiple prosecutions by different legal subdivisions of a single sovereign. See 409 U. S., at 508. In this case, too, we are concerned, not with "the implementation of a procedural rule," but with an unavoidable constitutional impediment to the prosecution of particular conduct.
In O'Callahan, as has been seen, the ultimate issue was the extent of the constitutional power that underlies
The plurality seeks to distinguish U. S. Coin & Currency and Robinson on the grounds that the former involved a right that prevented the offender from being tried at all and the latter a right that prevented "another trial from taking place at all," ante, at 679, whereas the underlying issue in this case is merely which jurisdiction can try offenses committed by servicemen. But these are distinctions without meaning; they
U. S. Coin & Currency swept broadly, to be sure, for it concerned a constitutional guarantee that effectively prevented any trial of the offender for the particular offense. But the nature of the Double Jeopardy Clause at issue in Robinson is such that the offender may be tried once for a particular offense by a court of a particular sovereign; it is the second prosecution for the same offense by another court of the same sovereign that that Clause clearly bars. Similarly here, a serviceman charged with a nonservice-connected offense is subject to trial for that offense by civil tribunals, but military tribunals lack the necessary constitutional power, at least in peacetime, to try such an offense. As was true in Robinson, this case involves a constitutional barrier to adjudication of a particular offense by a particular forum, yet in neither case does it follow that the offender is constitutionally entitled to go unpunished altogether. I fail to see, therefore, why different rules from those applied only recently in Robinson should be applied in this case.
There is, of course, the additional fact that the Robinson Court left open the question whether reasonable, official reliance upon a particular rule might properly be considered "in determining retroactivity of a nonprocedural constitutional decision such as Waller." 409 U. S., at 511.
The plurality acknowledges that O'Callahan did not involve the overruling of any prior precedent, ante, at 673. It is true, as the plurality indicates, that a number of prior decisions had suggested that "military status in itself was sufficient for the exercise of court-martial jurisdiction," ibid. Yet none of the cases upon which the plurality relies dealt in fact with a nonservice-connected offense committed by a serviceman in peacetime.
More importantly, perhaps, the O'Callahan Court's efforts to define the constitutional limits of the jurisdiction of courts-martial was hardly the beginning of such efforts by the Court. O'Callahan was but one of a series of steps taken by this Court since the conclusion of the Second World War to restrict military jurisdiction to its constitutionally appropriate limits. Thus, in Toth v. Quarles, 350 U.S. 11 (1955), the Court ruled that a discharged serviceman could not be tried by a court-martial for offenses committed while a member of the Armed Forces. Subsequently, it was established that courts-martial did not have jurisdiction to try offenses committed by civilian dependents accompanying military personnel
MR. JUSTICE DOUGLAS, in his concurring opinion, contends that petitioner Gosa's case merits reargument to consider whether he should be denied relief because he failed to raise his jurisdictional objection before the court-martial that tried him. MR. JUSTICE DOUGLAS intimates that since the jurisdiction of the military to try petitioner was not initially contested, "res judicata [may now bar] inquiry" into the question of jurisdiction, ante, at 689. In my opinion, such an argument is clearly untenable, and hence reargument of petitioner Gosa's case is unnecessary.
One of the most basic principles of our jurisprudence is that subject-matter jurisdiction cannot be conferred upon a court by consent of the parties. See, e. g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 (1951); Industrial Addition Assn. v. Commissioner, 323 U.S. 310, 313 (1945); People's Bank v. Calhoun, 102 U.S. 256, 260-261 (1880); Cutler v. Rae, 7 How. 729, 731 (1849).
McClaughry, as previously indicated, involved a collateral attack upon the court-martial conviction of a volunteer officer who claimed that the Regular Army court-martial which had tried him had been constituted in violation of the relevant law and therefore was without jurisdiction. The volunteer officer had failed to raise this jurisdictional objection before the court-martial, and the military contended before this Court that "his consent waived the question of invalidity," id., at 66. The Court rejected his contention, saying:
See also id., at 68; Givens v. Zerbst, 255 U.S. 11, 20 (1921); Ver Mehren v. Sirmyer, 36 F.2d 876, 879-880 (CA8 1929). Just as the silence of the accused in McClaughry could not confer jurisdiction on a court-martial of the Regular Army that was acting in excess of its statutory authority, so here the failure of Gosa to raise his jurisdictional objection before the court-martial could not have conferred upon that tribunal authority that constitutionally could not be conferred. Consequently, his
Moreover, even if O'Callahan were to be treated as merely a procedural rather than as a true jurisdictional decision, application of the doctrine of res judicata would nonetheless be entirely inappropriate in the context of petitioner Gosa's case since that action was brought by way of a petition for federal habeas corpus. Specifically, I must vigorously disagree with the suggestion, necessarily inherent in MR. JUSTICE DOUGLAS' opinion, that the doctrine of res judicata may have some place in the law of federal habeas corpus. In the past, this Court has indicated quite explicitly to the contrary:
See Fay v. Noia, 372 U.S. 391, 423 (1963); Darr v. Burford, 339 U.S. 200, 214 (1950). Indeed, the rule was still
The exhaustion doctrine evolved in the context of collateral attack on state criminal proceedings. See, e. g., Ex parte Hawk, 321 U.S. 114 (1944); Ex parte Royall, 117 U.S. 241 (1886). It generally requires state petitioners to utilize available state court remedies before
In Fay v. Noia, 372 U.S. 391 (1963), the Court rejected the position that a state prisoner who had not pursued his state appellate remedies was barred from seeking federal habeas corpus because of his failure to exhaust, where the state appellate remedies were no longer available. The Court concluded, instead, that the exhaustion "requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court." Id., at 399. The Court established that where there has been a failure to resort to a state court remedy and that remedy is no longer available, the availability of federal habeas corpus would turn on whether there was a deliberate bypass of the state process. Id., at 438. In determining whether such a bypass has occurred, the Court said that "[t]he classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464—`an intentional relinquishment or abandonment of a known right or privilege'—furnishes the controlling standard." 372 U. S., at 439.
This Court has never considered the applicability of the nondeliberate-bypass rule in the context of military petitioners. Fay does not speak specifically with respect to such petitioners. Nonetheless, the considerations which argue in favor of tempering the exhaustion requirement with a rule of nondeliberate bypass in the context of state petitioners are equally applicable in the context of military petitioners. Certainly, military petitioners should be encouraged to raise their constitutional claims before available military tribunals in order to ensure the orderly functioning of the system of military justice, to avoid needless federal court action, and to allow military tribunals an initial opportunity to correct
On the facts of this case, I find it impossible to conclude that petitioner Gosa has waived his right to challenge the "jurisdiction" of the court-martial which convicted him of rape on the ground that the offense was not service connected. A valid waiver requires the "intentional relinquishment . . . of a known right."
Since I then cannot agree with the opinion of either the plurality or MR. JUSTICE DOUGLAS, I dissent.
Scholarly comment on O'Callahan retrospectivity is divided. The following predict or favor nonretroactivity: Everett, O'Callahan v. Parker—Milestone or Millstone in Military Justice?, 1969 Duke L. J. 853, 886-889; Nelson & Westbrook, Court-Martial Jurisdiction Over Servicemen for "Civilian" Offenses: An Analysis of O'Callahan v. Parker, 54 Minn. L. Rev. 1, 39-46 (1969); Note, Military Law-Constitutional Law-Court-Martial Jurisdiction Limited to "Service-Connected" cases, 44 Tulane L. Rev. 417, 423-424 (1970); Note, RETROACTIVITY-Military Jurisdiction-Military Convictions for Nonservice-Connected Offenses Should Be Vacated Retroactively, 50 Tex. L. Rev. 405 (1972); Note, CONSTITUTIONAL LAW-Retroactivity of O'Callahan v. Parker, 47 St. John's L. Rev. 235 (1972); Note, The Sword and Nice Subtleties of Constitutional Law: O'Callahan v. Parker, 3 Loyola U. (L. A.) L. Rev. 188, 198 n. 67 (1970); Comment, Courts Martial-Jurisdiction-Service-Connected Crime, 21 S. C. L. Rev. 781, 793-794 (1969). The following predict or favor retroactivity: Blumenfeld, Retroactivity After O'Callahan: An Analytical and Statistical Approach, 60 Geo. L. J. 551 (1972); Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O'Callahan v. Parker, 9 Washburn L. J. 193, 197-201 (1970); Higley, O'Callahan Retroactivity: An Argument for the Proposition, 27 JAG J. 85, 96-97 (1972): Note, O'Callahan v. Parker, A Military Jurisdictional Dilemma, 22 Baylor L. Rev. 64, 75 (1970); Note, Denial of Military Jurisdiction over Servicemen's Crimes Having No Military Significance and Cognizable in Civilian Courts, 64 Nw. U. L. Rev. 930, 938 (1970). See Birnbaum & Fowler, O'Callahan v. Parker: The Relford Decision and Further Developments in Military Justice, 39 Ford. L. Rev. 729, 739-742 (1971).
A compilation of general comments on O'Callahan appears in Relford v. Commandant, 401 U.S. 355, 356 n. 1 (1971).
The Uniform Code of Military Justice was not in effect when Flemings was charged and pleaded guilty. But the fact that his proceeding took place under the present Code's predecessor is no inevitable indication of basic unfairness. See Burns v. Wilson, 346 U.S. 137 (1953).
"The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel. Upon his own request he shall be represented by civilian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused." 10 U. S. C. § 832 (b).
Petitioner had counsel before the Court of Military Appeals, one designated by the Army; and only "the merits" of the conviction were raised, no question being raised relating to the "jurisdiction" of the military.
It was suggested by the Solicitor General in his brief in opposition to a motion for leave to file a petition for writ of certiorari in Crawford v. United States, 380 U.S. 970, that while the statutes made the judgment of the Court of Military Appeals "final and conclusive," habeas corpus would be available to a person confined and a writ of error coram nobis in the District Court if he is not confined; citing 25 U. S. C. § 1254 (c) (probably intending 28 U. S. C. § 1254 (1)); Hiatt v. Brown, 339 U.S. 103, 106 n. 1. In that view one who was unsuccessful in obtaining relief by way of coram nobis in the district court, would be able to seek review in the court of appeals and ultimately by certiorari in this Court. That question was not resolved by this Court, since we denied certiorari in the Crawford case. In the Crawford case the question tendered on the merits was whether the restriction of court-martial membership to senior noncommissioned officers, excluding entire classes of statutorily eligible prospective court-martial members, deprived petitioner of due process and violated 10 U. S. C. § 825 so as to deprive the court-martial of jurisdiction. For the decision of the Court of Military Appeals see United States v. Crawford, 15 U. S. C. M. A. 31, 35 C. M. R. 3. And see Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Cath. U. L. Rev. 171 (1966).
"In O'Callahan . . ., by a five-to-three vote, the Court held that a court-martial may not try a member of our armed forces charged with attempted rape of a civilian, with housebreaking, and with assault with intent to rape, when the alleged offenses were committed off-post on American territory, when the soldier was on leave, and when the charges could have been prosecuted in a civilian court."
In Grafton v. United States, 206 U.S. 333 (1907), the Court held that a soldier who had been acquitted by a properly convened court-martial of a charge of homicide growing out of the shooting of a civilian while he was on guard duty in the Phillipine Islands could not thereafter be tried and convicted for the same offense by a civilian court of that Territory. Johnson v. Sayre, 158 U.S. 109 (1895), involved the court-martial conviction of a navy paymaster, whom the Court found to be in the naval service of the United States, for embezzling naval funds while serving on a receiving ship of the United States Navy. And in Smith v. Whitney, 116 U.S. 167 (1886), the Court was asked to order that a writ of prohibition be issued against a court-martial convened to try a naval pay inspector essentially for making various contracts not in the best interest of the Navy, for failing properly to enforce contractual agreements with the Navy, for compelling payment of illegal contractual claims against the Navy, and for failing to perform his duties and responsibilities. There can be little question that each of the offenses in Grafton, Johnson, and Smith, was "service connected" within the meaning of O'Callahan. Contrast Relford v. Commandant, 401 U. S., at 365.
Finally, Coleman v. Tennessee, 97 U.S. 509 (1879), involved the court-martial conviction of a soldier for the murder of a civilian woman. The particular circumstances of the murder are not apparent from the Court's opinion, but it is clear that the crime occurred during the Civil War, that is, during wartime, rather than during peacetime, see id., at 516-517. O'Callahan did not clearly speak with respect to constitutional limits of court-martial jurisdiction during wartime since the offense at issue there had occurred in peacetime, and the plurality does not reach the issue of wartime offenses today, although it arguably is presented in No. 71-1398, see ante, at 685 n. 8.
"The Departments of Justice and Defense have found it desirable to establish ground rules for determining the forum for trying a serviceman charged with a civil offense in violation of both military and federal law. In general, these rules, which were established by agreement between the Departments in 1955, give to the military department concerned the responsibility of investigating and prosecuting offenses committed by persons subject to the Uniform Code of Military Justice and involving as victims only those persons or their civilian dependents residing on the military installation in question." Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435, 455 (1960), citing Army Reg. 22-160, Oct. 7, 1955, implementing Memorandum of Understanding Between the Departments of Justice and Defense Relating to the Prosecution of Crimes Over Which the Two Departments have Concurrent Jurisdiction (July 19, 1955).
The decision can be seen as resting simply on the doctrine of res judicata to which the Court referred at points in its opinion, see Chicot County, supra, at 374-375. The plaintiffs in the second action had had a full and fair opportunity to litigate the issue of jurisdiction in the first proceeding, but had failed to do so. At the same time, there had been substantial action taken in reliance on the readjustment plan approved in the first proceeding. New bonds had been sold to the Reconstruction Finance Corporation which had then purchased old bonds in exchange for them. Under these circumstances it was both fair and proper to bar litigation of the jurisdiction issue in the collateral proceeding. Cf. Restatement of Judgments § 10 and comment (1942).
But, as has been pointed out, the doctrine of res judicata has no place in federal habeas corpus; rigid rules restricting what questions are open to litigation on collateral attack are inappropriate in the context of judgments affecting personal liberty. There are, of course, legitimate concerns with finality in criminal proceedings—both civilian and military—and with the orderly functioning of independent judicial systems. But we have rules concerning exhaustion, waiver, and non-repetitious application to protect those concerns in the context of federal habeas corpus.
More generally, Chicot County is probably most appropriately interpreted as an early decision concerning the nonretroactive application of a particular decision, namely, Ashton. Despite the Court's resort at places to the rubric of res judicata, the presence of substantial reliance on pre-existing law clearly was an important consideration in the Court's decision not to allow the intervening decision in Ashton to be used to collaterally attack the original plan of readjustment. Furthermore, Chicot County was heavily relied upon by this Court when it gave the principles governing the retroactivity of new procedural constitutional rules full expression in Linkletter v. Walker, 381 U.S. 618, 625-626 (1965); and the case has been cited as a retroactivity decision on a number of occasions since Linkletter, see Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971); United States v. U. S. Coin & Currency, 401 U.S. 715, 742-743 (1971) (WHITE, J., dissenting); cf. United States v. Estate of Donnelly, 397 U.S. 286, 293-294 (1970); id., at 299-300 (DOUGLAS, J., dissenting). Viewed then as a precursor of the present-day retroactivity doctrine. Chicot County has no relevance for the threshold question whether Gosa is barred from raising his jurisdictional challenge on habeas corpus because he failed to present it in applying for leave to appeal to the Court of Military Appeals.
In Davis, the Court held that, for purposes of collateral attack, a petitioner had waived his objection to the composition of the grand jury that tried him because he had failed to raise the objection before trial as Fed. Rule Crim. Proc. 12 (b)(2) expressly requires. Rule 12 (b) (2) specifies that "[d]efenses and objections based on defects in the institution of the prosecution or in the indictment... may be raised only by motion before trial" and that failure to do so "constitutes a waiver thereof." Confronted with a situation in which a specific rule provided "for the waiver of a particular kind of constitutional claim if it be not timely asserted," 411 U. S., at 239-240, the Court concluded that preservation of the integrity of the Rule demanded that its standard should govern in the context of a collateral attack upon an indictment. This case, however, involves no such "express waiver provision," id., at 239, and consequently the general waiver principles established by this Court's previous decisions must control.