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DOUGLAS, J., dissenting

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408 U.S.

The Constitution contains many provisions guaranteeing rights to persons. Those include the right to indictment by a grand jury and the right to trial by a jury of one's peers. They include the procedural safeguards of the Sixth Amendment in criminal prosecutions; the protection against double jeopardy, cruel and unusual punishments and, of course, the First Amendment. The alarm was sounded in the Constitutional Convention about the dangers of the armed services. Luther Martin of Maryland said, "when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army. That danger, we have held, exists not only in bold acts of usurpation of power, but also in gradual encroachments. We held that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times both of the offense and of the trial, which eliminates discharged soldiers. Toth v. Quarles, 350 U. S. 11. Neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U. S. 281; Grisham v. Hagan, 361 U. S. 278, nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U. S. 234; Reid v. Covert, 354 U. S. 1, may be tried by court-martial. And even as respects those in the Armed Forces we have held that an offense must be "service connected" to be tried by court-martial rather than by a civilian tribunal. O'Callahan v. Parker, 395 U. S. 258, 272.

The upshot is that the Armed Services-as distinguished from the "militia"-are not regulatory agencies or bureaus that may be created as Congress desires and granted such powers as seem necessary and proper. The authority to provide rules "governing" the Armed Services means the grant of authority to the Armed

33 M. Farrand, Records of the Federal Convention 209 (1911).

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DOUGLAS, J., dissenting

given powers comparable to those granted the FBI is a question not now raised, for we deal here not with the “militia” but with "armies." The Army, Navy, and Air Force are comprehended in the constitutional term "armies." Article I, §8, provides that Congress may "raise and support Armies," and "provide and maintain a Navy," and make "Rules for the Government and Regulation of the land and naval Forces." And the Fifth Amendment excepts from the requirement of a presentment or indictment of a grand jury "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."

Acting under that authority, Congress has provided a code governing the Armed Services. That code sets the procedural standards for the Government and regulation of the land and naval forces. It is difficult to imagine how those powers can be extended to military surveillance over civilian affairs.2

The most pointed and relevant decisions of the Court on the limitation of military authority concern the attempt of the military to try civilians. The first leading case was Ex parte Milligan, 4 Wall. 2, 124, where the Court noted that the conflict between "civil liberty" and "martial law" is "irreconcilable." The Court which made that announcement would have been horrified at the prospect of the military-absent a regime of martial law-establishing a regime of surveillance over civilians. The power of the military to establish such a system is obviously less than the power of Congress to authorize such surveillance. For the authority of Congress is restricted by its power to "raise" armies, Art. I, § 8; and, to repeat, its authority over the Armed Forces is stated in these terms, "To make Rules for the Government and Regulation of the land and naval Forces."

2 See Appendix I to this opinion, infra, p. 29.

DOUGLAS, J., dissenting

408 U.S.

jury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.

Reversed.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting.

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If Congress had passed a law authorizing the armed services to establish surveillance over the civilian population, a most serious constitutional problem would be presented. There is, however, no law authorizing surveillance over civilians, which in this case the Pentagon concededly had undertaken. The question is whether such authority may be implied. One can search the Constitution in vain for any such authority.

The start of the problem is the constitutional distinction between the "militia" and the Armed Forces. By Art. I, § 8, of the Constitution the militia is specifically confined to precise duties: "to execute the Laws of the Union, suppress Insurrections and repel Invasions."

This obviously means that the "militia" cannot be sent overseas to fight wars. It is purely a domestic arm of the governors of the several States,' save as it may be called under Art. I, § 8, of the Constitution into the federal service. Whether the "militia" could be

1I have expressed my doubts whether the "militia" loses its constitutional role by an Act of Congress which incorporates it in the armed services. Drifka v. Brainard, 89 S. Ct. 434, 21 L. Ed. 2d 427.

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Opinion of the Court

partmental knowledge, the United States District Court can hear evidence, ascertain the facts, and decide what, if any, further restrictions on the complained-of activities are called for to confine the military to their legitimate sphere of activity and to protect [respondents'] allegedly infringed constitutional rights." 144 U. S. App. D. C., at 83, 444 F. 2d, at 958. (Emphasis added.)

Carried to its logical end, this approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the "power of the purse"; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.

We, of course, intimate no view with respect to the propriety or desirability, from a policy standpoint, of the challenged activities of the Department of the Army; our conclusion is a narrow one, namely, that on this record the respondents have not presented a case for resolution by the courts.

The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities and indeed the claims alleged in the complaintreflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable in

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are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; "the federal courts established pursuant to Article III of the Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330 U. S. 75, 89 (1947).

Stripped to its essentials, what respondents appear to be seeking is a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of crossexamination, to probe into the Army's intelligencegathering activities, with the district court determining at the conclusion of that investigation the extent to which those activities may or may not be appropriate to the Army's mission. The following excerpt from the opinion of the Court of Appeals suggests the broad sweep implicit in its holding:

"Apparently in the judgment of the civilian head of the Army not everything being done in the operation of this intelligence system was necessary to the performance of the military mission. If the Secretary of the Army can formulate and implement such judgment based on facts within his De

were "not people, obviously, who are cowed and chilled"; indeed, they were quite willing "to open themselves up to public investigation and public scrutiny." But, counsel argued, these respondents must "represent millions of Americans not nearly as forward [and] courageous" as themselves. It was Judge MacKinnon's view that this concession "constitutes a basic denial of practically their whole case." Ibid. Even assuming a justiciable controversy, if respondents themselves are not chilled, but seek only to represent those "millions" whom they believe are so chilled, respondents clearly lack that "personal stake in the outcome of the controversy" essential to standing. Baker v. Carr, 369 U. S. 186, 204 (1962). As the Court recently observed in Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 166, a litigant "has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others."

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