New York University Law Review
37 (1962), Page 181
Posted for Educational use only. The
printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE BILL OF RIGHTS AND THE MILITARY *
EARL WARREN **
It is almost a commonplace to say that free government is on trial for its life. But it is the truth. And it has been so throughout history. What is almost as certain: It will probably be true throughout the foreseeable future. Why should this be so? Why is it that, over the centuries of world history, the right to liberty that our Declaration of Independence declares to be "inalienable" has been more often abridged than enforced?
One important reason, surely, is that the members of a free society are called upon to bear an extraordinarily heavy responsibility, for such a society is based upon the reciprocal self-imposed discipline of both the governed and their government. Many nations in the past have attempted to develop democratic institutions, only to lose them when either the people or their government lapsed from the rigorous self-control that is essential to the maintenance of a proper relation between freedom and order. Such failures have produced the totalitarianism or the anarchy that, however masked, are the twin mortal enemies of an ordered liberty.
Our forebears, well understanding this problem, sought to solve it in unique fashion by incorporating the concept of mutual restraint into our Nation's basic Charter. In the body of our Constitution, the Founding Fathers insured that the Government would have the power necessary to govern. Most of them felt that the self-discipline basic to a democratic government of delegated powers was implicit in that document in the light of our Anglo-Saxon heritage. But our people wanted explicit assurances. The Bill of Rights was the result.
This act of political creation was a remarkable beginning. It was only that, of course, for every generation of Americans must preserve its own freedoms. In so doing, we must turn time and again to the Bill of Rights, for it is that document that solemnly sets forth the political consensus that is our heritage. Nor should we confine ourselves to examining the diverse, complicated, and sometimes subordinate issues that arise in the day-to-day application of the Bill of Rights. It is perhaps more important that we seek to understand in its fullness the nature of the spirit of liberty that gave that document its birth. [Page 182]
Thus it is in keeping with the high purposes of this great University that its School of Law sponsor a series of lectures emphasizing the role of the Bill of Rights in contemporary American life. And it is particularly appropriate, after the splendid lectures of Mr. justice Black1 and Mr. justice Brennan2 on the relationship of the Bill of Rights to the Federal and State Governments, respectively, that you should delegate to someone the task of discussing the relationship of the Bill of Rights to the military establishment. This is a relationship that, perhaps more than any other, has rapidly assumed increasing importance because of changing domestic and world conditions. I am honored to undertake the assignment, not because I claim any expertise in the field, but because I want to cooperate with you in your contribution to the cause of preserving the spirit as well as the letter of the Bill of Rights.
Determining the proper role to be assigned to the military in a democratic society has been a troublesome problem for every nation that has aspired to a free political life. The military establishment is, of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset. The maintenance of the balance is made more difficult by the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in a free society.
The critical importance of achieving a proper accommodation is apparent when one considers the corrosive effect upon liberty of exaggerated military power. In the last analysis, it is the military-or at least a militant organization of power-that dominates life in totalitarian countries regardless of their nominal political arrangements. This is true, moreover, not only with respect to Iron Curtain countries, but also with respect to many countries that have all of the formal trappings of constitutional democracy.
Not infrequently in the course of its history the Supreme Court has been called upon to decide issues that bear directly upon the relationship between action taken in the name of the military and the protected freedoms of the Bill of Rights. I would like to discuss here some of the principal factors that have shaped the Court's response. From a broad perspective, it may be said that the questions raised in these cases are all variants of the same fundamental problem: [Page 183] Whether the disputed exercise of power is compatible with preservation of the freedoms intended to be insulated by the Bill of Rights.
I believe it is reasonably clear that the Court, in cases involving a substantial claim that protected freedoms have been infringed in the name of military requirements, has consistently recognized the relevance of a basic group of principles. For one, of course, the Court has adhered to its mandate to safeguard freedom from excessive encroachment by governmental authority. In these cases, the Court's approach is reinforced by the American tradition of the separation of the military establishment from, and its subordination to, civil authority. On the other hand, the action in question is generally defended in the name of military necessity, or, to put it another way, in the name of national survival. I suggest that it is possible to discern in the Court's decisions a reasonably consistent pattern for the resolution of these competing claims, and more, that this pattern furnishes a sound guide for the future. Moreover, these decisions reveal, I believe, that while the judiciary plays an important role in this area, it is subject to certain significant limitations, with the result that other organs of government and the people themselves must bear a most heavy responsibility.
Before turning to some of the keystone decisions of the Court, I think it desirable to consider for a moment the principle of separation and subordination of the military establishment, for it is this principle that contributes in a vital way to a resolution of the problems engendered by the existence of a military establishment in a free society.
It is significant that in our own hemisphere only our neighbor, Canada, and we ourselves have avoided rule by the military throughout our national existences. This is not merely happenstance. A tradition has been bred into us that the perpetuation of free government depends upon the continued supremacy of the civilian representatives of the people. To maintain this supremacy has always been a preoccupation of all three branches of our government. To strangers this might seem odd, since our country was born in war. It was the military that, under almost unbearable conditions, carried the burden of the Revolution and made possible our existence as a Nation.
But the people of the colonies had long been subjected to the intemperance of military power. Among the grievous wrongs of which they complained in the Declaration of Independence were that the King had subordinated the civil power to the military, that he had quartered troops among them in times of peace, and that through his [Page 184] mercenaries he had committed other cruelties. Our War of the Revolution was, in good measure, fought as a protest against standing armies. Moreover, it was fought largely with a civilian army, the militia, and its great Commander-in-Chief was a civilian at heart. After the War, he resigned his commission and returned to civilian life. In an emotion-filled appearance before the Congress, his resignation was accepted by its President, Thomas Mifflin, who, in a brief speech, emphasized Washington's qualities of leadership and, above all, his abiding respect for civil authority.3 This trait was probably best epitomized when, just prior to the War's end, some of his officers urged Washington to establish a monarchy, with himself at its head. He not only turned a deaf ear to their blandishments, but his reply, called by historian Edward Charming "possibly, the grandest single thing in his whole career,"4 stated that nothing had given him more painful sensations than the information that such notions existed in the army, and that he thought their proposal "big with the greatest mischiefs that can befall my Country."5
Such thoughts were uppermost in the minds of the Founding Fathers when they drafted the Constitution. Distrust of a standing army was expressed by many. Recognition of the danger from Indians and foreign nations caused them to authorize a national armed force begrudgingly. Their viewpoint is well summarized in the language of James Madison, whose name we honor in these lectures:
The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations, and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim of her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.6
Their apprehensions found expression in the diffusion of the war powers granted the Government by the Constitution. The Presi- [Page 185] dent was made the Commander-in-Chief of the armed forces. But Congress was given the power to provide for the common defense, to declare war, to make rules for the Government and regulation of the land and naval forces, and to raise and support armies, with the added precaution that no appropriation could be made for the latter purpose for longer than two years at a time-as an antidote to a standing army. Further, provision was made for organizing and calling forth the state militia to execute the laws of the Nation in times of emergency.
Despite these safeguards, the people were still troubled by the recollection of the conditions that prompted the charge of the Declaration of Independence that the King had "effected to render the military independent and superior to the civil power." They were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights Amendments 2 and 3, specifically authorizing a decentralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner. Other Amendments guarantee the right of the people to assemble, to be secure in their homes against unreasonable searches and seizures, and in criminal cases to be accorded a speedy and public trial by an impartial jury after indictment in the district and state wherein the crime was committed. The only exceptions made to these civilian trial procedures are for cases arising in the land and naval forces. Although there is undoubtedly room for argument based on the frequently conflicting sources of history, it is not unreasonable to believe that our Founders' determination to guarantee the preeminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights.7
Civil supremacy has consistently been the goal of our Government from colonial days to these. As late as 1947, when the Department of Defense was established, Congress specifically provided for a civilian chief officer. And when President Truman asked the Congress for an amendment to make an exception for a soldier and statesman as great as the late George C. Marshall, serious debate followed before the Act was modified to enable him to become Secre- [Page 186] tary of Defense, and then only by a small majority of the total membership of the House and less than half of the Senate.8 Those who opposed the amendment often expressed their high regard for General Marshall, but made known their fears concerning any deviation, even though temporary, from our traditional subordination of military to civil power.9
The history of our country does not indicate that there has ever been a widespread desire to change the relationship between the civil government and the military; and it can be fairly said that, with minor exceptions, military men throughout our history have not only recognized and accepted this relationship in the spirit of the Constitution, but that they have also cheerfully cooperated in preserving it.
Thus it is plain that the axiom of subordination of the military to the civil is not an anachronism. Rather, it is so deeply rooted in our national experience that it must be regarded as an essential constituent of the fabric of our political life.
But sometimes competing with this principle-and with the "Thou Shalt Nots" of the Bill of Rights-is the claim of military necessity. Where such a conflict is asserted before the Court, the basic problem has been, as I have indicated, to determine whether and how these competing claims may be resolved in the framework of a lawsuit.
Cases of this nature appear to me to be divisible into three broad categories. The first involves questions concerning the military establishment's treatment of persons who are concededly subject to military authority-what may be termed the vertical reach of the Bill of Rights within the military. These questions have been dealt with quite differently than the second category of disputes, involving what may be called the horizontal reach of the Bill of Rights. Cases of this type pose principally the question whether the complaining party is a proper subject of military authority. Finally, there are cases which do not, strictly speaking, involve the action of the military, but rather the action of other government agencies taken in the name of military necessity.
So far as the relationship of the military to its own personnel is concerned, the basic attitude of the Court has been that the latter's jurisdiction is most limited. Thus, the Supreme Court has adhered [Page 187] consistently to the 1863 holding of Ex parte Vallandigham10 that it lacks jurisdiction to review by certiorari the decisions of military courts. The cases in which the Court has ordered the release of persons convicted by courts martial have, to date, been limited to instances in which it found lack of military jurisdiction over the person so tried, using the term "jurisdiction" in its narrowest sense. That is, they were all cases in which the defendant was found to be such that he was not constitutionally, or statutorily, amenable to military justice. Such was the classic formulation of the relation between civil courts and courts martial as expressed in Dynes v. Hoover,11 decided in 1857.
This "hands off" attitude has strong historical support, of course. While I cannot here explore the matter completely, there is also no necessity to do so, since it is indisputable that the tradition of our country, from the time of the Revolution until now, has supported the military establishment's broad power to deal with its own personnel. The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have. Many of the problems of the military society are, in a sense, alien to the problems with which the judiciary is trained to deal.
However, the obvious reason is not always the most important one. I suppose it cannot be said that the courts of today are more knowledgeable about the requirements of military discipline than the courts in the early days of the Republic. Nevertheless, events quite unrelated to the expertise of the judiciary have required a modification in the traditional theory of the autonomy of military authority.
These events can be expressed very simply in numerical terms. A few months after Washington's first inauguration, our army numbered a mere 672 of the 840 authorized by Congress.12 Today, in dramatic contrast, the situation is this: Our armed forces number two and a half million;13 every resident male is a potential member of the [Page 188] peacetime armed forces; such service may occupy a minimum of four per cent of the adult life of the average American male reaching draft age; reserve obligations extend over ten per cent of such a person's life;14 and veterans are numbered in excess of twenty-two and a half million.15 When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question.
Thus it was hardly surprising to find that, in 1953, the Supreme Court indicated in Burns v. Wilson16 that court martial proceedings could be challenged through habeas corpus actions brought in civil courts, if those proceedings had denied the defendant fundamental rights. The various opinions of the members of the Court in Burns are not, perhaps, as clear on this point as they might be. Nevertheless) I believe they do constitute recognition of the proposition that our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.
Despite Burns, however, it could hardly be expected that the regular federal judiciary would play a large role in regulating the military's treatment of its own personnel. The considerations militating against such intervention remain strong. Consequently, more important than Burns from a practical point of view was the action in 1951 of another guardian of the Bill of Rights, Congress, in enacting the Uniform Code of Military justice and in establishing the Court of Military Appeals as a sort of civilian "Supreme Court" of the military.17 The Code represents a diligent effort by Congress to insure that military justice is administered in accord with the demands of due process. Attesting to its success is the fact that since 1951 the number of habeas corpus petitions alleging a lack of fairness in courts martial has been quite insubstantial.18 Moreover, I know of no case [Page 189] since the adoption of the Code in which a civil court has issued the writ on the basis of such a claim. This development is undoubtedly due in good part to the supervision of military justice by the Court of Military Appeals. Chief Judge Quinn of that Court has recently stated:
[M]ilitary due process begins with the basic rights and privileges defined in the federal constitution. It does not stop there. The letter and the background of the Uniform Code add their weighty demands to the requirements of a fair trial. Military due process is, thus, not synonymous with federal civilian due process. It is basically that, but something more, and something different.19
And the Court of Military 'Appeals has, itself, said unequivocally that "the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces."20
Thus our recent experience has shown, I believe, that the Court of Military Appeals can be an effective guarantor of our citizens' rights to due process when they are subjected to trial by court martial. Moreover, the establishment of a special court to review these cases obviates, at least to some extent, the objection of lack of familiarity by the reviewing tribunal with the special problems of the military. In this connection, I think it significant that, despite the expanded application of our civilian concepts of fair play to military justice, the Chairman of the joint Chiefs of Staff, General Lemnitzer, declared not long ago:
I believe the Army and the American people can take pride in the positive strides that have been made in the application of military law under the Uniform Code of Military justice. The Army today has achieved the highest state of discipline and good order in its history.21 [Page 190]
These developments support my conviction that the guarantees of our Bill of Rights need not be considered antithetical to the maintenance of our defenses.
Nevertheless, we cannot fail to recognize how our burgeoning army has posed difficult and unique problems for the Court in the application of constitutional principles. Thus, you may recall the case of Specialist Girard,22 who, having been sent to Japan by the Army, contended that the Constitution entitled him to a trial by an American court martial for an offense committed on an American army reservation in Japan against a Japanese national. The surrender of Girard to Japanese authorities was consonant with well-established rules of international law, and the Court's opinion cited, as its authority, the decision of Chief justice Marshall in The Schooner Exchange,23 written in 1812. But the case brought to light some problems we should consider in the light of developments unforeseen at the time the Constitution was written: the world-wide deployment of our citizens, called to duty and sent to foreign lands for extended tours of service, who may, by administrative decision of American authorities, be delivered to foreign governments for trial.24 We are fortunate that our experience in this area has generally been a happy one,25 and thus, to date, these constitutional problems have been largely submerged.
However, unique constitutional questions are, at times, presented for decision, which questions are, in part, an outgrowth of our expanded military forces. One of the most recent of these arose in Trop v. Dulles,26 decided in 1958. In that case the Court considered a provision of our law that acted automatically to denationalize a citizen convicted of wartime desertion by a court martial. Under this provision, over 7,000 men who had served in the Army alone, in World War II, were rendered stateless. It was the decision of the Court that, by this Act, Congress had exceeded its constitutional powers by depriving citizens of their birthright. Four members of the Court, of which I was one, expressed the view that this law, effectively denying the person's rights to have rights, was a cruel and un- [Page 191] usual punishment proscribed by the Eighth Amendment. The need for military discipline was considered an inadequate foundation for expatriation.
The Trop case was an example, really, of how the Court has generally dealt with problems apart from the authority of the military in dealing with "its own." Rather, it was in the line of decisions dealing with attempts of our civilian Government to extend military authority into other areas. In these cases we find factors different from those the Court must consider persuasive in review of a soldier's disciplinary conviction by court martial. The contending parties still advance the same general argument: protected liberties versus military necessity. Here, however, the tradition of exclusive authority of the military over its uniformed personnel is generally not directly relevant. Here, the Court has usually been of the view that it can and should make its own judgment, at least to some degree, concerning the weight a claim of military necessity is to be given.
The landmark decision in this field was, of course, Ex Parte Milligan,27 decided in 1866. It established firmly the principle that when civil courts are open and operating, resort to military tribunals for the prosecution of civilians is impermissible. The events giving rise to the Milligan case occurred while we were in the throes of a great war. However, the military activities of that war had been confined to a certain section of the country; in the remainder, the civil government operated normally. In passing upon the validity of a military conviction returned against Milligan outside the theater of actual combat, the Court recognized that no "graver question" was ever previously before it. And yet the Court, speaking through Mr. justice Davis, reminded us that
by the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify . . . [Milligan's] military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings.28
I do not propose to discuss in detail other cases that have been decided in a wartime context, for the risk is too great that they lie outside the mainstream of American judicial thought. War is, of course, a pathological condition for our Nation. Military judgments sometimes breed action that, in more stable times, would be regarded as abhorrent. judges cannot detach themselves from such judgments, [Page 192] although by hindsight, from the vantage point of more tranquil times, they might conclude that some actions advanced in the name of national survival had in fact overridden the strictures of due process.29
Obviously such a charge could not be made against the Court in the Milligan case. However, some have pointed to cases like the companion decisions of Hirabayashi v. United States30 and Korematsu v. United States31 as aberrational. There, you will recall, the Court sustained the program under which, shortly after the attack on Pearl Harbor, over 100,000 Japanese nationals and citizens of that ancestry living in the western United States were, under Executive Order, with congressional sanction, placed under curfew and later excluded from areas within 750 miles of the Pacific Coast or confined in government detention camps.
Whatever may be the correct view of the specific holding of those cases, their importance for present purposes lies in a more general consideration. These decisions demonstrate dramatically that there are some circumstances in which the Court will, in effect, conclude that it is simply not in a position to reject descriptions by the Executive of the degree of military necessity. Thus, in a case like Hirabayashi, only the Executive is qualified to determine whether, for example, an invasion is imminent. In such a situation, where time is of the essence, if the Court is to deny the asserted right of the military authorities, it must be on the theory that the claimed justification, though factually unassailable, is insufficient. Doubtless cases might arise in which such a response would be the only permissible one. After all, the truism that the end does not justify the means has at least as respectable a lineage as the dictum that the power to wage war is the power to wage war successfully.32 But such cases would be extraordinary indeed.
The consequence of the limitations under which the Court must sometimes operate in this area is that other agencies of government must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution. To put [Page 193] it another way, the fact that the Court rules in a case like Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.
There is still another lesson to be learned from cases like Hirabayashi. Where the circumstances are such that the Court must accept uncritically the Government's description of the magnitude of the military need, actions may be permitted that restrict individual liberty in a grievous manner. Consequently, if judicial review is to constitute a meaningful restraint upon unwarranted encroachments upon freedom in the name of military necessity, situations in which the judiciary refrains from examining the merit of the claim of necessity must be kept to an absolute minimum. In this connection, it is instructive to compare the result in Hirabayashi with the result in cases that have been decided outside the context of war.
In times of peace, the factors leading to an extraordinary deference to claims of military necessity have naturally not been as weighty. This has been true even in the all too imperfect peace that has been our lot for the past fifteen years-and quite rightly so, in my judgment. It is instructive to recall that our Nation at the time of the Constitutional Convention was also faced with formidable problems. The English, the French, the Spanish, and various tribes of hostile Indians were all ready and eager to subvert or occupy the fledgling Republic. Nevertheless, in that environment, our Founding Fathers conceived a Constitution and Bill of Rights replete with provisions indicating their determination to protect human rights. There was no call for a garrison state in those times of precarious peace. We should heed no such call now. If we were to fail in these days to enforce the freedom that until now has been the American citizen's birthright, we would be abandoning for the foreseeable future the constitutional balance of powers and rights in whose name we arm.
Moreover, most of the cases the Court has decided during this period indicate that such a capitulation to the claim of military necessity would be a needless sacrifice. These cases have not been argued or decided in an emergency context comparable to the early 1940's. There has been time, and time provides a margin of safety. There has been time for the Government to be put to the proof with respect to its claim of necessity; there has been time for reflection; there has been time for the Government to adjust to any adverse decision. The consequence is that the claim of necessity has generally not been put to the Court in the stark terms of a Hirabayashi case.33 [Page 194]
An excellent example of the approach adopted by the Court in the recent years of peacetime tension is its disposition of the various cases raising the question of court-martial jurisdiction over civilian dependents and employees of the armed forces overseas. Such jurisdiction was explicitly granted by the Uniform Code of Military justice, and hence the issue was whether the statutory provision was constitutional.
In what the Court came to recognize as a hasty decision, this exercise of jurisdiction was at first sustained in the most striking of the cases presenting the problem-the trial of the wife of an American soldier for a capital offense. During the summer following that decision, a rehearing was considered and finally ordered. The next June, the rewritten, landmark decision of Reid v. Covert34 struck down this exercise of military jurisdiction as an unconstitutional expansion of Congress' power to provide for the government of the armed forces. In 1960, Reid v. Covert was followed by the Court in similarly invalidating court-martial convictions of civilians accompanying and those employed by our services overseas, whether or not the offenses for which they had been convicted were punishable by death.35 [Page 195]
Several features of these cases are worthy of note. First of all, the urgency of wartime was absent. Extended analysis and deliberation on the part of the parties and the Court were possible. Secondly, while, of course, the Government rested heavily upon a claim of military necessity, that claim could not be pressed with the same force that it was in Hirabayashi. Alternative methods of dealing with the military's problems could be considered. Indeed, the Court itself suggested a possible alternative in one of its opinions-the creation of a military service akin to the Seabees to secure the services theretofore performed by civilians. And finally, the extension of military jurisdiction for which the Government contended was extraordinarily broad. At that time, there were 450,000 dependents and 25,000 civilian employees overseas.36 We could not safely deal with such a problem on the basis of what General Anthony Wayne did or did not do to camp followers at frontier forts in the last decade of the 18th Century. In short, as in the case of trials of persons who are concededly part of the military, the burgeoning of our military establishment produced a situation so radically different from what the country had known in its distant past that the Court was required to return to first principles in coming to its judgment.
Another decision of the Court that is of significance in connection with the considerations I have been discussing was Toth v. Quarles.37 There the Court held that a veteran holding an honorable discharge could not be recalled to active duty for the sole purpose of subjecting him to a court martial prosecution for offenses committed prior to his discharge. The question was of enormous significance in the context of present day circumstances, for the ranks of our veterans are estimated to number more than twenty-two-and-a-half -million. Thus a decision adverse to the petitioner would have left millions of former servicemen helpless before some latter-day revival of old military charges. So far as the claim of military necessity was concerned, the facts were such that the Court regarded itself as competent to deal with the problem directly. Mr. justice Black, speaking for the Court, said:
It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving ex-servicemen the benefits of a civilian court trial when they are actually civilians.... Free countries of the world have tried to restrict [Page 196] military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.38
Attempts at extension of military control have not, of course, been confined to the field of criminal justice, nor have all of them been decided on constitutional grounds. Harmon v. Brucker39 brought to the Court the Army's claim that it had the authority to issue to a draftee a discharge less than honorable on the basis of certain activities in which the soldier was said to have engaged prior to his induction, and which the Army thought made him a security risk. Again, the gravity of the constitutional issues raised was underscored by the existence of our system of peacetime conscription, for the sustaining of the Army's claim would have affirmed its authority to affect the pre-service political activities of every young American. A notable feature of the case was that the Solicitor General conceded that, if the Court had jurisdiction to rule upon the action of the Secretary of the Army, his action should be held to be unconstitutional. Thus the Government's case was placed entirely upon the asserted necessity for, and tradition of, the exclusive authority of the Secretary to act with unreviewable discretion in cases of this nature. The Court, however, found it unnecessary to reach constitutional issues. It disposed of the case on the non-constitutional ground that the Secretary lacked statutory authority to condition the type of discharge he issued upon any behavior other than that in which the soldier engaged during his period of service. Such emphasis upon proper directives by Congress with respect to these problems, may be regarded as, in part, a further reflection of the principle of subordination of the military establishment to civil authority.
I cannot, of course, discuss more than a handful of the Supreme Court decisions bearing upon the military establishment's efforts to extend the scope of its authority in one way or another beyond service members. The cases I have dealt with, however, disclose what I regard as the basic elements of the approach the Court has followed with reasonable consistency. There are many other decisions that echo that approach, and there are some, to be sure, that seem inconsistent with it. But I would point to Duncan v. Kahanamoku, 40 in which the Court held, in the spirit of Milligan, although on non-constitutional grounds, that, after the Pearl Harbor attack, civilians in the Hawaiian Islands were subject to trial only in civilian courts, once those courts were open. And, of course, there have been a number of cases that, [Page 197] like Harmon v. Brucker, emphasize the Court's view that the military, like any other organ of government, must adhere strictly to its legislative mandate.41
On the whole, it seems to me plain that the Court has viewed the separation and subordination of the military establishment as a compelling principle. When this principle supports an assertion of substantial violation of a precept of the Bill of Rights, a most extraordinary showing of military necessity in defense of the Nation has been required for the Court to conclude that the challenged action in fact squared with the injunctions of the Constitution. While situations may arise in which deference by the Court is compelling, the cases in which this has occurred demonstrate that such a restriction upon the scope of review is pregnant with danger to individual freedom. Fortunately, the Court has generally been in a position to apply an exacting standard. Thus, although the dangers inherent in the existence of a huge military establishment may well continue to grow, we need have no feeling of hopelessness. Our tradition of liberty has remained strong through recurring crises. We need only remain true to it. [Page 198]
The last phase of the problem of the military in our society the relationship of the military to civil government and affairs-is much more complex, and also perhaps much more important, than the subjects I have just discussed.
This relationship of the military to the rest of us raises issues that are less graphic, less tangible, less amenable to review or control by the courts. This aspect of the problem encompasses not only actions taken by our civil government in the name of defense that may impinge upon individual rights, but also matters such as the influence exerted on the civil government by uniformed personnel and the suppliers of arms. Such problems are not always clearly visible. Nor is the impact of our enormous financial, human and resource commitment to the needs of defense easy to measure.42 Moreover, these problems often do not arise in a factual context suitable for a lawsuit and judicial review. Still, "cases and controversies" have occasionally arisen in recent years that suggest the magnitude of the difficulties we face.
Looking first at perhaps the broadest aspect of the problems generated by our defense needs, we could consider the question whether the industries basic to our defense are in all respects to be treated as "private" industry. In wartime, the total mobilization of our economy with its rationing, allocation of materials and manpower, and price and wage controls are acceptable restrictions for a free society locked in combat. The just compensation and due process provisions of the Constitution may be strained at such times. Are they to receive similar diminished deference in these days of "cold war"? This alone is a subject worthy of the most extended discussion. I can do no more here than suggest its pertinency. But it has been thrust upon the Court with a requirement for prompt decision in recent years.
You will recall the case of Youngstown Sheet & Tube v. Sawyer, 43 in which, in the midst of our military operations in Korea, the Court held that the President lacked the power, without specific Congressional sanction, to seize and operate the Nation's steel industry following its shut-down by a nation-wide strike. The numerous and lengthy opinions of the various members of the Court reveal the tremendous complexity of the issues such a case presents. And on [Page 199]what may the courts rely in such litigation? Consider these words from Mr. justice Jackson's concurring opinion:
A judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems ... as they actually present themselves. just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.44
The result in the Youngstown case may be compared to the decision seven years later in United Steelworkers of America v. United States, 45 a decision reached during a time that no actual armed conflict engaged this country. There, the Court upheld a finding that since one per cent of the Nation's steel industry output was needed for defense purposes, the President had the authority, under the Taft Hartley Act, to enjoin the union from continuing its strike, at least for eighty days. The critical factor upon which the injunction was based and sustained was a determination that even the temporary unavailability of one per cent of the industry's output might imperil the Nation's safety. Considerations that the injunction might infringe upon the workers' constitutional rights of free association, or perhaps the right not to work, fell, at least temporarily, before these findings. Should Congressional intervention-the difference between the Youngstown and Steelworkers cases-be so decisive? Would recourse to Taft Hartley or other legislation by President Truman in 1952 have avoided the issues that made the Youngstown case so difficult? We need not, indeed cannot, answer that now. However, these cases illustrate the extent to which public and private interests merge and clash in controversies so vitally affecting the security of the Nation. The resolution of such cases is made no more simple or certain by the multitude of considerations that, while indisputably relevant, are outside the records before the courts.
On a less grand scale than the steel industry litigation, but perhaps no less significant, are the cases that have stemmed from the competition between the claims of national security and personal rights. The bulk of the many recent decisions concerning the con- [Page 200] tempt power of Congressional committees provides a graphic illustration. Some believe that these cases may be disposed of by the Court's balancing of the security of the Nation against the freedom of the individual litigant. If these are the appropriate weights to put in the scales, it is not surprising that the balance is usually struck against the individual. If balance we must, I wonder whether on the individual's side we might not also place the importance of our survival as a free nation. The issue, as I see it, is not the individual against society; it is rather the wise accommodation of the necessities of physical survival with the requirements of spiritual survival. Lincoln once asked,"46 [Is] it possible to lose the nation and yet preserve the Constitution?"" His rhetorical question called for a negative answer no less than its corollary: "Is it possible to lose the Constitution and yet preserve the Nation?" Our Constitution and Nation are one. Neither can exist without the other. It is with this thought in mind that we should gauge the claims of those who assert that national security requires what our Constitution appears to condemn.
Naturally the radiations of security requirements have come before the Court in contexts other than Congressional investigations. Even more closely connected with the defense effort have been the decisions concerning the right to employment in government and industry.
One may compare, for example, the 1959 case of Greene v. McElroy47 with last Term's decision in Cafeteria Workers v. McElroy.48 In the former, a serious constitutional issue was raised by the Navy's action in denying, on questionable grounds, security clearance to a privately employed aeronautical engineer. This, in turn, effectively precluded him from pursuing his occupation. The Court was able, however, to dispose of the case on the non-constitutional ground that requirements of confrontation prescribed by existing law had wrongfully been ignored.49 In Cafeteria Workers, on the other hand, where a short-order cook employed by a concessionaire on a mili- [Page 201] tary base was summarily refused further security clearance without hearing, explanation, or opportunity to rebut, the Court reached the constitutional question and, by a five-to-four vote, decided it against the employee. I joined Mr. justice Brennan's dissent, which took the position that the Court, while conceding petitioner's right not to be injured arbitrarily by the Government, in fact made that right nonenforceable by refusing to accord petitioner any procedural protection.
One of the principal difficulties presented by these "security risk" cases is that the claim of necessity takes the form of an assertion of the right of secrecy. Thus, the claim, by its very nature, tends to restrict the ability of the Court to evaluate its merit. This in turn impairs the efficacy of judicial review as an instrument for preserving the guarantees of the Bill of Rights. Mile the dilemma is in some cases serious, Cafeteria Workers, the most recent expression of the Court's views on the subject, does not, in my judgment, represent a satisfactory guidepost for resolution of the problem.
Our enormous national commitment of defense will, of course, pose still additional, difficult problems for the courts. We have, in the past considered, 50 and will probably be called upon in the future to review, cases arising out of the effort to accord our large number of veterans special compensation or preferences in return for their service to the country. While recognizing the need for such programs, we are also asked to consider to what extent such preferences impinge on opportunities of other citizens, whose public service and welfare are no less deserving of recognition. Questions concerning the review of military procurement, in the light of claims of emergency need, expert judgment and secrecy of information are still largely unresolved. The problem of the extent to which members of the armed forces may properly express their political views to other troops, particularly subordinates in the chain of command, and to the public at large, are subjects of controversy. Questions of the right of the people to know what their government is doing, their right to travel, speak, congregate, believe, and dissent will arise again and again. It is to the courts that the task of adjudicating many of these rights is delegated. I am one who believes firmly that the Court must be vigilant against neg- [Page 202] lect of the requirements of our Bill of Rights and the personal rights that document was intended to guarantee for all time. Legislative or executive action eroding our citizens' rights in the name of security cannot be placed on a scale that weighs the public's interest against that of the individual in a sort of "count the heads" fashion. Democracy under our Constitution calls for judicial deference to the coordinate branches of the Government and their judgment of what is essential to the protection of the Nation. But it calls no less for a steadfast protection of those fundamentals imbedded in the Constitution, so incorporated for the express purpose of insulating them from possible excesses of the moment. Our history has demonstrated that we must be as much on guard against the diminution of our rights through excessive fears for our security and a reliance on military solutions for our problems by the civil government, as we are against the usurpation of civil authority by the army. That is the important lesson of the Court cases, most of which have arisen not through the initiative of the military seeking power for itself, but rather through" governmental authorization for intervention of military considerations in affairs properly reserved to our civilian institutions.
In concluding, I must say that I have, of course, not touched upon every type of situation having some relation to our military establishment which the Court considers. Those to which I have pointed might suggest to some that the Court has at times exceeded its role in this area. My view of the matter is the opposite. I see how limited is the role that the courts can truly play in protecting the heritage of our people against military supremacy. In our democracy it is still the Legislature and the elected Executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution. Only an occasional aberration from norms of operation is brought before the Court by some zealous litigant. Thus we are sometimes provided with opportunities for reiterating the fundamental principles on which our country was founded and has grown mighty. But the day-to-day job of upholding the Constitution really lies elsewhere. It rests, realistically, on the shoulders of every citizen.
President Eisenhower, as he left the White House only a year ago, urged the American people to be alert to the changes that come about by reason of the coalescence of military and industrial power. His words were these:
[T]his conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -economic, political, even spiritual-is felt in every city, every state [Page 203] house, every office of the Federal Government. . . . [W]e must not fail to comprehend . . . [the] grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.
[W]e must guard against the acquisition of unwarranted influence . . . by the military-industrial complex. . . .
We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the . . . machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.51
Coming from one who was our great Field Commander in World War 11 and for eight years Commander-in-Chief as President of the United States, these words should find lodgment in the mind of every American. It is also significant that both his predecessor and his successor have conveyed the same thought in slightly different words.52 I am sure that none of them thought for a moment that anyone was deliberately trying to change the relationship between the military and the civil government. But they realized, as we all must, that our freedoms must be protected not only against deliberate destruction but also against unwitting erosion.
We may happily note that the Constitution has remarkably weathered a variety of crises. Some were as acute as those we face today. Today, as always, the people, no less than their courts, must remain vigilant to preserve the principles of our Bill of Rights, lest in our desire to be secure we lose our ability to be free.
* This article was delivered as the third James Madison Lecture at the New York University Law Center on February 1, 1962.
** Earl Warren is Chief justice of the United States.
1. Black, The Bill of Rights, 35 N.Y.U.L. Rev. 865 (1960).2. Brennan, The Bill of Rights and the States, 36 N.Y.U.L. Rev. 761 (1961).
3. 5 Freeman, George Washington 477 (1952).
4. 3 Channing, A History of the United States 376 (1912).
5. 24 Writings of Washington 272 (Fitzpatrick ed. 1938).
6. The Federalist No. 41, at 251 (Lodge ed. 1888) (Madison).
7. See, e.g., Pinkney's recommendations to the Federal Convention, 2 Records of the Federal Convention 341 (Farrand ed. 1911), and the discussion by Mason and Madison, id. at 617; Resolutions on Ratification of the Constitution by the States of Massachusetts, New Hampshire, New York and Virginia, reprinted in Documents Illustrative of Formation of the Union of American States, H.R. Doc. No. 398, 69th Cong., 1st Sess. 1018-20, 1024-44 (1927).
8. The vote in the House was for: 220, against: 105, not voting: 104. In the Senate the vote was for: 47, against: 21, not voting: 28. 96 Cong. Rec. 14931, 14973 (1950).
9. See, e.g., Remarks of Representatives Wolverton and Hoffman and Senators Watkins and Cain, 96 Cong. Rec. 14835, 14919, 15177, A6561 (1950).
10. 68 U.S. (I Wall.) 243 (1863).
11. 61 U.S. (20 How.) 65 (1857).
12. Report of Secretary of War Knox to the Congress on the Military Force in 1789, communicated to the Senate on August 10, 1789, 1 American State Papers-Military Affairs No. 1. At the time of the Constitutional Convention, consideration was given to limiting the size of the National Army for all time to a few thousand men, through express constitutional provision. 2 Records of the Federal Convention 323, 329, 3302 616-17 (Farrand ed. 1911).
13. Total strength of the armed forces on November 30, 1961, was estimated to be 2,780,975 by the Directorate of Statistical Services, Office of the Secretary of Defense, Pamphlet 22.1 (Dec. 20, 1961).
14. The Universal Military Training and Service Act of 1951, §§ 4(b), (d), establishes an active duty tour of two years and a reserve obligation of six years thereafter, as the norm for all persons subject to the Act. 65 Stat. 78 (1951), as amended, 50 U.S.C. App. §§ 454(b), (d) (1958). in statistics compiled in 1959, the American male between 20 and 25 had a life expectancy of another 49.5 years. Nat'l Office of Vital Statistics, Life Tables § 5-5 (Dep't of Health, Educ. & Welfare 1959).
15. On June 30, 1960, the Veterans Administration counted 22,534,000 veterans of all armed forces then living. 1960 Adm'r of Veterans Affairs Ann. Rep. 6-7 (1961).
16. 346 U.S. 137 (1953).
17. See Uniform Code of Military justice, 10 U.S.C. §§ 867, 876 (1958).
18. Similarly, since the adoption of the Uniform Code of Military justice, the Court of Claims has not granted relief in the form of back pay to claimants alleging wrongful dismissal from government service through court martial proceedings lacking fundamental fairness. Compare Shapiro v. United States, 69 F. Supp. 205 (Ct. Cl. 1947).
19. Quinn, The United States Court of Military Appeals and Military Due Process, 35 St. John's L. Rev. 225, 232 (1961). In an early opinion, the Court of Military Appeals said, "If, because of the peculiarities of the military service, a variation from civilian practice is necessary to assure a fair trial, we should unhesitatingly adopt the procedure best suited to the administration of military justice, even though by so doing we may bring about a departure from a prior service rule." United States v. Hemp, I U.S.C.M.A. 280, 286, 3 C.M.R. 14, 20 (1952). Compare the evolution of the court's approach to "military due process" in United States v. Clay, I U.S.C.M.A. 74, 1 C.M.R. 74 (1951), with United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960).
20. United States v. Jacoby, supra note 19, at 430-31, 29 C.M.R. at 246-47.
21. Dep't of the Army Pamphlet No. 27-101-18 (Oct. 7, 1959), reprinted in 1960 U.S.C.M.A. Ann. Rep. 4. Similar views have been expressed by ranking officers of the Army and Navy. See Army Chief of Staff General Decker, id., and Navy judge Advocate General Admiral Mott, An Appraisal of Proposed Changes in the Uniform Code of Military justice, 35 St. John's L. Rev. 300 (1961).
22. Wilson v. Girard, 354 U.S. 524 (1957).
23. The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).
24. A recent survey by the Department of Defense lists 19 countries with which the United States has entered Status of Forces Agreements similar to the one with which the Court dealt in Girard. In addition, this country is signatory to agreements with 56 nations (15 the same as SOFA signatories) in which military missions (as distinguished from troop deployments) have virtual diplomatic immunity. See also U.S. Dep't of State, Treaties in Force (Jan. 1, 1962).
25. See Senate Comm. on Armed Services, Operation of Article VII, NATO Status of Forces Treaty, S. Rep. No. 1041, 87th Cong., 1st Sess. 2 (1961).
26. 356 U.S. 86 (1958).
27. 71 U.S. (4 Wall.) 2 (1866).
28. Id. at 119.
29. In times of stress, the Court is not only vulnerable, to some extent, to the emotions of our people, but also to action by Congress in restricting what that body may consider judicial interference with the needs of security and defense. Following the Civil War, Congress actually exercised its constitutional powers to provide for the rules governing the appellate. jurisdiction of the Supreme Court, for this very purpose. See Ex parte McCardle, 73 U.S. (6 Wall.) 318 (1867) ; 74 U.S. (7 Wall.) 506 (1868).
30. 320 U.S. 81 (1943).
31. 323 U.S. 214 (1944).
32. Chief justice Hughes, speaking for the Court in Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426 (1934).
33. In this connection, we might also consider and compare the cases of Ex parte Quirin, 317 U.S. 1 (1942), and Abel v. United States, 362 U.S. 217 (1960). The former came before the Court at the outset of World War II, at a time when the outlook for the survival of the free world was dim. On the floor of Congress, fears were expressed that Hitler could subdue the country even without an invasion, through the use of "fifth columnists" and German allies thought to exist in every State of the Union. See 87 Cong. Rec. 555 (1941). When a small group of Nazi saboteurs was discovered on our shores, they were brought before a military tribunal-not our civilian courts. They were treated as wartime belligerents and spies, and ordered executed. The Supreme Court denied an application for a writ of habeas corpus, sustaining the military's jurisdiction.
However, when, in June 1957, Rudolph Abel was apprehended in his New York hotel room and identified as a Colonel in the Russian army, he was not brought before a court martial. A full civilian trial, with all the safeguards of our Bill of Rights, was accorded this agent of our adversary. Abel brought his case to the Supreme Court claiming the protection of our Constitution. I was among those who dissented from the Court's judgment that he had not been the subject of a constitutionally proscribed search and seizure. But all of the opinions reiterated our fundamental approach-that neither the nature of the case nor the notoriety of the defendant could influence our decision on the constitutional issue presented.
Cf. In re Yamashita, 327 U.S. 1 (1946), in which the Court denied habeas corpus relief to an officer of the enemy vanquished in a war fought in the cause of the Constitution, but who, for his wartime actions, was subjected to an American military court whose procedures were questionably squared with the spirit of due process.
34. 354 U.S. 1 (1957), withdrawing 351 U.S. 487 (1956).
35. McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960) (employee-noncapital offense) ; Grisham v. Hagan, 361 U.S. 278 (1960) (employee-capital offense) ; Kinsella v. United States ex rel. Singleton, 361 U,S. 234 (1960) (dependent-noncapital offense).
36. Brief for Petitioner, the Secretary of Defense, pp. 12, 71, 110-11, McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).
37. United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
38. Id. at 22.
39. 355 U.S. 579 (1958).
40. 327 U.S. 304 (1946). Cf. Madsen v. Kinsella, 343 U.S. 341 (1952).
41. For example, in Bell v. United States, 366 U.S. 393 (1961), the Army was challenged for declining to pay former soldiers who, during the Korean War, and while prisoners of war of the enemy, had betrayed some fellow prisoners and had refused initial opportunities for repatriation. Despite the absence of any authority for withholding the pay earned and accrued by these men to the dates of their well-deserved dishonorable discharges, the Army refused to make payment. As the situation was summarized by the dissenting judge in the Court of Claims, "Finding nothing in the law books to justify its refusal to pay these men, it threw the books away and just refused to pay them. It could have set before these confused young men a better example of government by law." 181 F. Supp. 668, 675 (Ct. Cl. 1960). We agreed.
In similar vein have been the series of decisions concerning the conscription procedures of the Selective Service System. For example, this Term we have again had occasion to consider a conviction based on an alleged failure of a registrant to notify his draft board of a change of address. After three unsuccessful prosecutions for draft evasion, the Government secured a belated indictment, conviction and three-year prison sentence for the young man's questionable failure to notify his board promptly of a change of address. But, from the record, it seemed clear that it was the registrant's annoying persistence in pursuing appellate rights to secure an exemption from active duty on a claim of being a minister of Jehovah's Witnesses, that underlay the course of prosecution. Venus v. United States, 368 U.S. 345 (1961) (mem.). In 1955, in Gonzales v. United States, 348 U.S. 407 (1955), we were faced with a conviction for draft evasion, in which the draftee had not been accorded the simple right of examining a Department of justice memorandum contesting his claims that he was a conscientious objector, and which memorandum had been presented to a Selective Service appeal board in reviewing Gonzales' classification. Understandably, we held that although the needs of the Army were great, it had to be fair in abiding by the law under which it sought conscripts. An additional factor of importance about these cases is that under the Selective Service law, violation of the call to military duty is a civil offense, punishable only in the civilian courts.
42. The Defense Department now spends over 50% of the total federal budget, a sum almost 10% of our gross national product. It is estimated that 10% of the entire national labor force is, in some manner, employed in defense industries or the defense establishment itself. See N.Y. Times, May 21, 19617 p. 48, cols. 4-5; U.S. Dept. of Commerce, Statistical Abstract of the United States 235, 301 (1961).
43. 343 U.S. 579 (1952).
44. Id. at 634-35.
45. 361 U.S. 39 (1959).
46. 10 Complete Works of Abraham Lincoln 66 (Nicolay and Hay ed. 1894).
47. 360 U.S. 474 (1959).
48. 367 U.S. 886 (1961).
49. For decisions in a comparable vein, see Cole v. Young, 351 U.S. 536 (1956), limiting, through interpretation to those in "sensitive" positions, the power of the Executive summarily to dismiss government employees in the interest of "national security"; Vitarelli v. Seaton, 359 U.S. 535 (1959), requiring government agencies dismissing employees in nonsensitive positions on security grounds, to afford the employees an opportunity to see the charges against them and to confront adverse witnesses; Kent v. Dulles, 357 U.S. 116 (1958), upholding the right of citizens to travel freely in the absence of compelling restrictions clearly to be found in Congressional action.
50. See, e.g., McKinney v. Missouri-K.-T.R.R., 357 U.S. 265 (1958); Hyland v. Watson, 287 F.2d 884 (6th Cir.), cert. denied, 368 U.S. 876 (1961). Cf. the recent decision of Australia's highest court invalidating a far reaching veteran's preference statute on the ground that with the World War II emergency past, the war power justification for such laws, under the Australian Constitution, had ceased. Illawarra District County Council v. Wickham, 101 Commw. L.R. 467 (Austl. 1959).
51. N.Y. Times, Jan. 18, 196 1, p.22, cols. 5, 6.
52. President Kennedy, in his special message to Congress on the defense budget delivered shortly after taking office, declared, "Neither our strategy nor our psychology as a nation-and certainly not our economy-must become dependent upon our . . . maintenance of a large military establishment . . . . Our arms must be subject to ultimate civilian control and command at all times . . . ... N.Y. Times, March 29, 1961, p. 16, cols. 1, 2.
Similarly, President Truman, on such occasions as his message to Congress urging the creation of a single Department of Defense, over which a civilian would preside, and his removal of General MacArthur as Commander of United Nations forces in Korea, reiterated these beliefs. 1945 Public Papers of the Presidents of the United States: Harry S. Truman 554-55, 558 (1961); 2 Truman, Memoirs 449 (1956).