Levy v. Parker Brief of Petitioner
Public Court Documents
January 1, 1969
Cite this item
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Brief Collection, LDF Court Filings. Levy v. Parker Brief of Petitioner, 1969. eced6f17-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/59773552-d7cb-48ef-a9ee-03d9a3150d2a/levy-v-parker-brief-of-petitioner. Accessed August 19, 2025.
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The Roger Baldwin Foundation of ACLU, Inc.
SOUTHERN REGIONAL OFFICE
5 FORSYTH STREET, NW Charles Morgan, j
ATLANTA, GEO RG IA 30303 May 1, 1969 Director
(404) 524-0386
Reber F. Boult, jr
Stall Counsel
Mr. Melvyn H . Zarr
Suite 2030
10 Columbus Circle
New York, New York 10019
Dear Mel:
I'm sending you under separate cover a copy of the brief in
Levy v. Parker, habeas proceedings in the Middle District
of Pennsylvania.
Someday the nation should deprive the military of all trial
rights. In any event, this case demonstrates some of the
problems that are bound to arise in a system of justice
controlled by a General.
Kindest regards.
Sincerely,
CM:em
Executive Director Martin Garbus
President Ernest Angell
Vice Presidents Norman Dorsen / David Isbell / Harriet Pilpel
Secretary George Soli
Treasurer Sophia Yarnali Jacobs
General Counsel Edward J. Ennis / Osmond K. Fraenkel
Executive Vice President John de J. Pemberton, jr.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HOWARD B. LEVY,
PETITIONER,
v.
JACOB J. PARKER, as Warden of
the United States Penitentiary,
Lewisburg, Pennsylvania, and
STANLEY R. RESOR, as Secretary
of the Army,
RESPONDENTS.
BRIEF
Anthony G. Amsterdam
School of Law
University of Pennsylvania
Philadelphia, Pennsylvania
Alan H. Levine
Burt Neuborne
Eleanor Holmes Norton
Melvin L. Wulf
156 Fifth Avenue
New York, New York 10010
Of Counsel
)
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)
) NO.
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PETITIONER
Charles Morgan, Jr.
Five Forsyth Street, NW
Atlanta, Georgia 30303
Reber F. Boult, Jr.
Morris Brown
Five Forsyth Street, NW
Atlanta, Georgia 30303
Laughlin McDonald
17 South Circle Drive
Chapel Hill, North Carolina
George W. Dean, Jr.
P. O. Box 248
Destin, Florida
Ambrose Campana
36 West Willow Street
Williamsport, Pennsylvania
Attorneys for Petitioner
TABLE OF CONTENTS
STATEMENT . . . . . 1
THE LEGAL HISTORY OF THIS C A S E .............................. 14
THE NATURE OF DR. LEVY'S C L A I M S .............................. 18
Dr. Levy's C h a r g e s ....................................... 21
PRELUDE TO A COURT-MARTIAL; THE TIMES, THE PLACE AND
THE M A N ........................................................ 24
South Carolina And The Right To Vote .................... 43
The Newberry County Line; The Place Where The
Court-Martial of Captain Levy Began ................. 55
A "Bell" Rings ........................................... 61
THE PROSECUTION OF DR. LEVY WAS BARRED BY THE PRE-TRIAL
ACTIONS OF THE GOVERNMENT'S AGENTS ........................... 7 7
Not merely McLeod but additionally Lenske v. United
States, 383 F.2d 20 (9th Cir. 1967) requires
that the conviction be set a s i d e ................... 83
The prosecution of Dr. Levy was a scandal of the
first magnitude, a witch-hunt, a crusade to
rid our society of unorthodox thinkers by using
Federal military law to put them in the peniten
tiary. No court may be an accessory to this project . 89
THE ORDER CHARGE WAS THE RESULT OF THE UNCONSTITUTIONAL
APPLICATION OF ARTICLE 90 UCMJ TO DR. L E V Y ................. 109
A. The order to train Special Forces Aidmen was
but one more step on the Constitutionally
prohibited road to Leavenworth. It was poli
tically motivated and issued with the knowledge
it could not be obeyed. It was issued to pun
ish Dr. Levy for his political and racial views.
Its issuance violated first, fifth, and ninth
amendment guaranties .......................... . . . 109
1. Dr. Levy's security status chronologically . . . 110
A. From the revealed portion of the G-2
Dossier the following appeared: ............. 110
l
114
B . From the available portion of the
"flagged” 201 File the following
appeared: ...................................
2. The facts surrounding the issuance of the
order, its dis obedience and the Article 15
proceeding .....................................
A. The order is given: ........................
3. A bell rings: The article 15 UCMJ proceed
ing escalates to General Court-Martial Sta-
tus--the role cf the G-2 Dossier .............
4. The g-2 Dossier: A Court-Martial convened
on the basis of secret documents .............
5. The suppression of evidence by the prose
cution .........................................
- The refusal to allow the defense to examine
G-2 and Staff Judge Advocate personnel . . . .
7. The Government by invoking evidentiary pri-
vilecps did so at the constitutionally fixed
price of letting Dr. Levy go free .............
8• There is no question that Colonel Fancy relied
on the G-2 Dossier containing revelations re
garding Dr. Levy's pre-service political be
liefs and activities. The Court-Martial was
instituted because of that reliance and the
prosecution was invalid ........................
The order to train Special Forces Aidmen was viola
tive of accepted standards of medical ethics and was
in violation of the first, third, fourth, fifth and
ninth amendments of the Constitution ............. ,
1• Physicians have been singled out for a special
kind of non-"military" duty— the rule of Orloff
v. Willoughby, 345 U.S. 83 (1953)..............
2• The conflict between medical ethics and Colonel
Fancy's order ....................................
3. The Special Forces of the United States Army--
the el ice c o r p s ................................
4. The Special Forces Aidman--the elite of the
e l i t e ........................................... ..
5• The political use of medicine by the American
m i l i t a r y .........................................
6. Aside from the use of medicine as a political
and military tool the ethical requirement of
confidentiality rendered the order invalid . . .
120
120
134
138
147
154
155
157
159
159
164
168
171
173
177
. 177
. 180
A. Privileged communications, women and
Special Forces Aidmen . ......... . . . . .
B. Venereal disease . . . . . ...............
7. Principles of medical ethics are protected by
the first, third, fourth, fifth and ninth
amendments of the Constitution . ................ 183
DR. LEVY'S PROSECUTION WAS SELECTIVE AND INVOLVED THE
UNEQUAL APPLICATION OF MILITARY LAW. THE CONVICTION
ON EACH CHARGE VIOLATED THE FIRST AND FIFTH AMENDMENTS . . . 186
THE REJECTION OF THE DEFENSE OF TRUTH TO PURE SPEECH
CHARGES RESULTED IN A DEPRIVATION OF FIRST, FOURTH,
FIFTH, AND SIXTH AMENDMENT R IGHTS........ .............. .. . 195
1. By raising the defense of truth to the four
pure speech charges Dr, Levy found himself
in the first and only domestic war crimes
trial. Denied the right to present truth as
a defense to the pure speech charges he was,
instead, allowed to present a war crimes de
fense to the order charge . . . . . . . . . . . . . . 195
a . Doublethink, newspeak, truth and the first
amendment............... .................... .. . 195
b. Thus cometh Nuremberg . . . . . . . ............. 205
c . The Army Colonel's ruling on whether members
of a branch of his Army were committing war
crimes: the significance of the r uling.........208
d. The defense does not waive the war crimes
issue. It recognizes facts of life and
that the rule of law is enforced by men.
Regardless of the refusal to allow presen * 1 2
tation of the war crimes defense to the
court-martial (cf. Whelchel v. McDonald,
supra) the evidence adduced in the out-of-
court hearing directly relates to the de
fense of medical ethics . . . . . . . . . . . . . 209
ARTICLES 133 AND 134 ARE OVERBROAD AND VAGUE AS WERE
THE CHARGES AND SPECIFICATIONS UNDER THEM. THUS DR.
LEVY'S CONVICTION WAS VIOLATIVE OF THE FIRST, FIFTH
AND SIXTH AMENDMENTS ......................................... 213
1. Articles 133 and 134 UCMJ are facially invalid . . . 213
2. There was no attempt made to show a military
necessity for prohibiting Dr. Levy1s speech or
for prosecuting him ................... . . . . . . . 217
xii
3. The application of Articles 133 and 134 UCMJ:
a journey into wonder, wonder land ........ 219
THE CONVICTION VIOLATES THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT SINCE THERE WAS NO EVIDENCE TO
PROVE THE NECESSARY ELEMENTS OF THE PURE SPEECH CHARGES . . . 229
1. Charge II (under Article 134 UCMJ) ................. 229
2. Additional Charge I (under Article 133 UCMJ) . . . . 230
3. The applicability of Army Regulation (AR)
600-20 para. 42 ....................................... 234
THE BILL OF RIGHTS APPLIES TO THE MILITARY EITHER OF
ITS OWN FORCE OR AS A REQUISITE OF DUE PROCESS OF LAW
GUARANTEED BY THE FIFTH AMENDMENT ............................ 236
1. No Constitutionally permissible system of
justice can exist solely on an intra-military
bas i s .............................. 242
2. The military must provide jury t rials............... 244
a. The Levy case: — With a packed jury
there can be no fair t r i a l ........................244
b. The system is controlled by those more
concerned with discipline than justice ......... 245
c . The packed jury and a fair trial - his
torically ........................................... 248
d. As a beginning the Sixth Amendment right
to trial by jury must be granted in mili
tary cases. No other system can possibly
wo r k ...................... .....................253
e . Trial by jury is required by the sixth
amendment.......... 256
3. The military hierarchical system affords no
r e l i e f .................................................. 259
a . Systematic exclusion of groups from the
court, and command influence and discretion
of the general in appointing them must be
el i m i n a t e d ................ ...................... 259
b. The Article 32 UCMJ investigative procedure
is unconstitutional .............................. 261
1. The General controls this proceeding also . . 261
2. The exclusion of the press from the Article
32 investigation violated first, fifth and
sixth amendment guarantees ................. 261
- iv -
c . The atmosphere at Fort Jackson required
--- 1 **- ......— ...... ' " " . o r na change of venue . . . ............... . . . . . zoo
d. The prosecutor is a part of the system, an
insider. His preferred position must be
e l i m i n a t e d ......................................... 264
e. The staff judge advocate’s role insures
u n f a i r n e s s ......................................... 266
f . The mathematics of the Court-Martial
Process and the self-challenging 11 jury11...........266
IN CONCLUSION............................................... - 268
v
TABLE OF AUTHORITIES
Cases
Abrams v. United States, 250 U.S. 616 (1919)
Alderman v. United States, 89 S. Ct. 961 (1969)
Ashton v. Kentucky, 384 U.S. 195 (1966)
Avery v. Georgia, 345 U.S. 559 (1953)
Baggett v. Bullitt, 377 U.S. 360 (1964)
Baker v. United States, 401 F. 2d 958 (D.C. Cir. 1968)
Baker v. City of St. Petersburg, 400 F. 2d (5th Cir.
1968)
Ballard v. United States, 329 U.S. 187 (1946)
Bartels v. Iowa, 262 U.S. 404 (1923)
Belsky v. United States, 290 F. 2d 593 (Ct. Cl. 1961)
Bolling v. Sharpe, 347 U.S. 49 (1954)
Bond v. Floyd, 385 U.S. 116 (1966)
Brady v. Maryland, 373 U.S. 83 (1963)
Briggs v. Elliot, 98 F. Supp. 527 (E.D.S.C. 1951)
vacated and remanded, 342 U.S. 350 (1952) , rev1d ,
347 U.S. 483 (1954)
146, 155
216
260
184
146
260
260
183
162
193
217
143, 147
63, 64
217
Brown v. Baskin, 78 F. Supp. 933, 942 (E.D.S.C. 1948)
injunction issued, 80 F. Supp. 1017 (E.D.S.C. 1948),
aff'd, 174 F. 2d 391 (4th Cir. 1949) 49, 50, 51, 52
Brown v. Resor, No. 24678 (5th Cir. Feb. 6, 1969) 17
Burns v. Wilson, 346 U.S. 137, reh. denied, 346 U.S.
844 (1953) 2' 4 ' 236
Caldwell v. Craighead, No. 5341 (M.D. Tenn. filed
March 5, 1969) 137
-vi-
Cantwell v. Connecticut, 310 U.S. 296 (1940) 183, 216
Carafas v. LaVallee, 391 U.S. 234 (1968) 17
Carmichael v. Allen, 267 F. Supp. 985 ( N.D. Ga. 1966) 232
Carroll v. President and Cormrt'rs of Princess Anne,
89 S. Ct. 347 (1968) 217
Carter v. Jury Comm'n of Greene County, 89 S. Ct.
990 (1969) 260
Communist Party v. Subversive Activities Control
Board, 367 U.S. 1 (1961) 217
Cole v. Arkansas, 333 U.S. 196 (1948) 256
Cox v. Louisiana, 379 U.S. 536 (1965) 216
Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) 214
Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949)
aff'd, 336 U.S. 933 (1949) 43
De Gregory v. New Hampshire, 383 U.S. 825 (1966) 217
Dennis v. United States, 341 U.S. 494 (1951) 217
Dennis v. United States, 384 U.S. 855 (1966) 155
Desist v. United States, 37 U.S.L.W. 4225 (U.S. Mar.
24, 1969) 2
Dombrowski v. Pfister, 380 U.S. 479 (1965) 3, 14, 126
187, 216, 217
Douglas v. Alabama, 380 U.S. 400 (1965) 256
Duncan v. Louisiana, 391 U.S. 145 (1968) 256
East Coast Lumber Terminal v. Town of Babylon, 174
F. 2d 106 (2d Cir. 1949) 193
Edwards v. South Carolina, 372 U.S. 229 (1963) 216
Elfbrandt v. Russell, 384 U.S. 11 (1966) 184
- V l l -
Elmore v. Rice, 72 F. Supp. 516 (E.D.S.C. 1947), aff'd ,
165 F. 2d 387 (4th Cir. 1947), cert, denied, 333
U.S. 875 (1948) 49, 50
Engle v. Vitale, 370 U.S. 421 (1962) 183
Estes v. Texas, 381 U.S. 532 (1965) 263, 264
Eubanks v. Louisiana, 356 U.S. 584 (1958) 258
Fields v. City of Fairfield, 375 U.S. 248 (1963) 5, 229
Garner v. Louisiana, 368 U.S. 157 (1961) 5, 216, 229
Garrison v. Louisiana, 379 U.S. 64 (1964) 195
Gibson v. Florida Legislative Investigation Comm.,
372 U.S. 539 (1963) 219
Gideon v. Wainwright, 372 U.S. 335 (1963) 256
Giles v. Maryland, 386 U.S. 66 (1967) 147
Girouard v. United States, 328 U.S. 61 (1946) 183
Gonzales v. United States, 348 U.S. 407 (1955) 156
Gregory v. City of Chicago, 89 S. Ct. 946 (1969) 5, 216, 229
Griswold v. Connecticut, 381 U.S. 479 (1965) 185
Hadnott v. Amos, C.A. No. 2757-N (M.D. Ala., Oct.
11, 1968), aff1d , 37 U.S.L.W. 4256 (U.S. Mar.
25, 1969) 186, 187
Hague v. C.I.O., 307 U.S. 496 (1939) 186
Hamer v. Campbell, 358 F. 2d 215 (5th Cir. 1966) 13
Hamilton v. Alabama, 368 U.S. 52 (1961) 261
Harmon v. Brucker, 355 U.S. 579 (1958) 157
Harper v. Virginia Board of Elections, 383 U.S. 663
(1966) 193
Hickman v. Taylor, 329 U.S. 495 (1947)
Howe v. Clifford, Civ. No. 622-68 (D.D.C. filed. 1968)
Irvin v. Dowd, 366 U.S. 717 (1961)
Johnson v. Bennett, 89 S. Ct. 436 (1968)
Katz v. United States, 389 U.S. 347 (1967)
Kaufman v. United States, 37 U.S.L.W. 4238 (U.S.
Mar. 24, 1969)
Keyishian v. Board of Regents, 385 U.S. 589 (1967)
Klopfer v. North Carolina, 388 U.S. 213 (1962)
Kotch v. Pilot Commissioners, 330 U.S. 552 (1947)
Labat v. Bennett, 365 F. 2d 698 (5th Cir. 1966)
cert. denied, 386 U.S. 291 (1967)
Lenske v. United States, 383 F. 2d 20 (9th Cir.
1967 8
87,
Harris v. Nelson, 37 U.S.L.W. 4219 (U.S. Mar. 24,
1969)
149, 150
213
263
164
235
2
184
256
194
259
, 84, 85, 86
88, 108, 140
2 .
Lenske v. United States, 18 Am. Fed. Tax R. 5815
(9th Cir. 1966) 88
Levy v. Corcoran, 389 F. 2d 929 (D.C. Cir. 1967) 14, 125, 126, 214
Levy v. Dillon, Misc. Docket No. 68-18 (U.S.C.M.A.
Nov. 27, 1968 17
- I X -
Levy v. Dillon, 28c F. Supp. 5C. 3 (D. Kan. 1968); No
7c-o8 (10th Cxr. 1969)
Levy v. McNamara, Civ. No. 953-67 (D.C.C. May 3, 1967)
Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967)
Levy v. Resor, Civ. No. 67-442 (D.S.C. July 5, 1967)
aff'd per curiam, 384 F. 2d 689 (4th Cir. 1967),
cert, denied, 389 U.S. 1049 (1968)
Liveright v. Joint Committee, 279 F. Supp. 205 (M.D.
Tenn. 1968)
Marshall v. United States, 360 U.S. 310 (1959)
Meredith v. Fair, 298 F. 2d 696, cert, denied, 371
U.S. 828 (1962)
Meyer v. Nebraska, 262 U.S. 390 (1923)
Milligan, ex parte, 71 U.S. (4 Wall.) 2 (1866)
Mills v. Alabama, 384 U.S. 214 (1966)
Morris v. Harmer's Heirs Lessee, 32 U.S. (7 Pet.)
553 (1833)
Morissette v. United States 342 U.S. 246 (1952)
Musser v. Utah, 333 U.S. 95 (1948)
14
16
16
199
264
13
183
257
250
12 .
164
217
16, 17
-x-
Nelson v. Peckham, 210 F. 2d 574 (4th Cir. 1954) 162
Nelson v. Pennsylvania, 330 U.S. 497 (1956) 219
Nelson v. United States, 156 F. Supp. 724, (Ct. Cl.
1957) 162
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 195, 249
Noyd v. Bond, 285 F. Supp.785 (D.N. Mex.), rev1d ,
402 F. 2d 441 (10th Cir. 1968), 89 S. Ct. 478,
cert . cir anted, 89 S. Ct. 692 (1969) (No. 830) 16, 17
United States ex rel O'Callahan v. Parker, 256 F.
Supp. 679 (M.D. Pa. 1966), aff'd , 390 F. 2d
NAACP v. Button, 371 U.S. 415 (1963) 216
360 (3rd Cir.), cert granted sub nom. O'Callahan
v. Parker, 89 S. Ct. 177 (1968) (No. 646) 213
Oliver, in re, 333 U.S. 257 (1948) 256, 261
Oney v. Oklahoma City, 120 F. 2d 861 (10th Cir. 1941) 193
Orloff v. Willoughby, 345 U.S. 83 (1953) 111, 159,
160, 161
Oyama v. California, 332 U.S. 633 (1948) 194
Patton v. Mississippi, 380 U.S. 128 (1965) 13
-xi-
Peck v. Carpenter, 120 F. Supp. 660 (N.D. Cal. 1954)
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Poe v. Ullman, 367 U.S. 497 (1961)
Pointer v. Texas, 380 U.S. 415 (1965)
Pointer v. United States, 151 U.S. 396 (1893)
Prince v. Massachusetts, 321 U.S. 158 (1944)
Quirin, Ex Parte, 317 U.S. 1 (1942)
Rabinowitz v. United States, 366 U.S. 34 (5th Cir.
(1966)
Rideau v. Louisiana, 373 U.S. 723 (1963)
Reid v. Covert, 354 U.S. 1 (1956)
Rosenberg v. United States, 360 U.S. 367 (1959)
Schenck v. United States, 249 U.S. 47 (1919)
Schneider v. Smith, 390 U.S. 17 (1968)
Shapiro v. United States, 69 F. Supp. 205 (1947)
Shelton v. Tucker, 364 U.S. 479 (1960)
Sheppard v. Maxwell, 334 U.S. 333 (1966)
Shuttlesworth v. City of Birmingham, 89 S. Ct, 935 (1969)
Simmons v. United States, 384 U.S. 397 (1955)
Smith v. Allwright, 321 U.S. 649 (1944)
Smith v. Paris, 257 F. Supp. 901 (M.D. Ala. 1966), modi
fied and aff'd., 385 F.2d 979 (5th Cir. 1967)
Speiser v. Randall, 357 U.S. 513 (1958)
Stanley v. Georgia, 37 U.S.L.W. 4315 (U.S. Apr. 7, 1969)
State v. Piampin, No. ____ , (Ct. of Gen. Sess., Newberry
County, S.C., June 21, 1966)
162
183
184, 185
256
196
183
257
260
263
213, 243,
155
217, 237
184
237
184
254, 263
5, 216
156
49
13, 260
217
201, 216
40, 41
253
x u
Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert, denied,
89 S. Ct. 483 (1968) 1 6 4 > 196
Sunday Lake Iron Co. v. Wakefield Township, 247 U.S.
350 (1918) 193
Terminiello v. Chicago, 337 U.S. 1 (1949) 232
Thiel v. Southern Pacific Co., 318 U.S. 217 (1946) 259
Thompson v. City of Louisville, 362 U.S. 199 (1960) 5, 229
Tinker v. Des Moines Independent Community School
District, 89 S. Ct. 733 (1969) 184, 194, 217
Trop v. Dulles, 356 U.S. 86 (1958) 193
Truax v. Raich, 239 U.S. 33 (1915) 193
Tumey v. Ohio, 312 U.S. 510 (1927) 257
Turner v. Fouche, 89 S. Ct. 863 (1969) 260
Turner v. Louisiana, 379 U.S. 466 (1965) 263
United States v. Alabama, 252 F. Supp. 95 (M.D. Ala.
1966) 260
United States v. Andolschek, 142 F.2d 503 (2d Cir.
1944) 156
United States v. Augenblick, 89 S. Ct. 528 (1969) 2, 143
United States v. Beekman, 155 F.2d 580 (2d Cir. 1946) 155
United States v. Brown, 381 U.S. 438 (1965) 214, 246
Strauder v. West Virginia, 100 U.S. 303 (1880) 259
x m
155
United States v. Coplon, 185 F.2d 629 (2d Cir. 1950),
cert, denied, 342 U.S. 920 (1952)
United States v. Cotter, 60 F .2d 689 (2d Cir. 1932)
United States v. Franchia, 13 U.S.C.M.A. 315, 32 C.M.R.
315 (1962)
United States v. Hagarty, 388 F.2d 713 (7th Cir. 1968)
United States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R.
429 (1967)
United States v. Jefferson County Bd. of Educ., 372
F.2d 836 (1966), aff'd on rehearing en banc,
380 F .2d 385 (5th Cir.), cert, denied, 389 U.S.
840 (1967)
United States v. LeFlore, 371 F.2d 368 (1967)
United States v. Levy, CM 416 463 (Army Bd. of Rev.
Aug. 29, 1968), review denied,
No. 21,641 (C.M.A. Jan. 6, 1969)
United States v. Louisiana, 225 F. Supp. 353 (E.D. La.
1963), aff'd., 380 U.S. 145 (1965)
United States v. Lovett, 328 U.S. 303 (1946)
United States v. McLeod, 385 F.2d 734 (5th Cir. 1967)
United States v. Macintosh, 283 U.S. 605 (1931)
United States v. Mississippi, 229 F. Supp. 925 (S.D.
Miss. 1964), reversed, 380 U.S. 128 (1965)
United States v. Reynolds, 345 U.S. 1 (1953)
United States v. Robel, 389 U.S. 258 (1967)
156
150
235
213
260
81
213, 218
13, 260
214
80, 81-82, 108
183
13, 260
155
184
xiv
United States ex rel. Goldsby v. Harpole, 263 F„2d 71
(5th Cir.) cert, denied, 361 U.S. 838 (1959)
United States ex rel, Seals v. Wiman, 304 F.2d 53 (5th
Cir. 1962), cert, denied, 372 U.S. 915 (1963)
Walker v. City of Birmingham, 388 U.S. 307 (1967)
Washington v. Texas, 388 U.S. 14 (1967)
West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624
(1943)
Whelchel v. McDonald, 340 U.S. 122 (1950)
White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966)
White v. Maryland, 372 U.S. 59 (1963)
Whitehill v. Elkins, 389 U.S. 54 (1967)
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964)
Whitus v. Georgia, 385 U.S. 547 (1967)
Williams v. Georgia, 349 U.S. 375 (1955)
Williams v. United States, 168 U.S. 382 (1897)
Witcher v. Peyton, No. 12,025 (4th Cir. Jan. 10, 1969)
Wright v. Georgia, 373 U.S. 284 (1963)
Yamashita, _In re, 327 U.S. 1 (1946)
Yick Wo v. Hopkins, 118 U.S. 356 (1886)
United States v. Seeger, 380 U.S. 163 (1965)
12
183
13
13
256
183
8, 154,
195, 209
260
261
184
196, 266
260
260
196
260
216
207, 208
212, 214
186, 190
184,
, 210
, 193
t
X V
Constitution of the United States:
Article 1, § 9, Cl. 3 214
First Amendment passim
Third Amendment 183
Fourth Amendment 77,183
Fifth Amendment passim
Sixth Amendment passim
Eighth Amendment 193
Ninth Amendment 183
Thirteenth Amendment 186
Fourteenth Amendment 77,186,187
Fifteenth Amendment 77,186,188
xvi
STATUTES:
10 U.S.C. § 806 266
10 U.S.C. § 815 138
10 U.S .c. § 825 259
10 U.S.C. § 832 passim
10 U.S.C. § 834 254
10 U.S.C. § 871(c) 16
10 U.S.C. § 888 203
10 U.S.C. § 890 15, 193
10 U.S.C. § 933 14,193,213,218,219,229,230,231
10 U.S.C. § 934 14,193,213,218,219,229,243
10 U.S .c. § 3791 141
10 U.S.C. § 3795 141
18 U.S.C. § 245 79
18 U.S.C. § 2387 '219
18 U.S.C. s 3500 143,148
28 U.S.C. § 2241 1
42 U.S.C. § 1971 78,81
42 U.S .c. § 19731 78
42 U.S.C. § 1973 j 78
X V I I
42 U.S.C. § 1973m 79
42 U.S.C. §§ 1973-1973p 78
50 U.S.C. § 455 162
50 U.S.C. App. § 455 111
64 Stat, 628 (1950) , ...... 161
67 Stat. 90 (1953) 161
68 Stat. 254 (1954) 162
ARMY REGULATIONS:
40-1 260
40-554 182
600-20 215,234
601-270 239
604-10 117,118
OTHER AUTHORITIES:
A.B.A. Canon of Professional Ethics 5 154
A.B.A. Standards Relating to Fair Trial and
Free Press (1968) 264
- X V l l l -
American Medical Association, Opinions and Reports
of the Judicial Council (1964), VI-VII. 177
Amsterdam, The Void-For-Vagueness Doctrine In
The Supreme Court, 109 V. Pa. L. Rev. 67 (1960) 213
Associated Press (New York Times', March 18, 1967) 191
Associated Press Dispatch Charleston, S.C.
Jan. 17, 1968. 54
Atlanta Constitution 191
Atlanta Journal 180
Bond, Ruth H., L'Affaire Dreyfus in the Works of
Emile Zola. Unpublished Master's Thesis,
Emory Univ, Library, March 21, 1938. 252
Britannica Book of the Year (1967),
States Statistical Supplement 257
Budget of the United States Government,
Fiscal Year Ending 30, June 1967
p. 394, table B-9. 237
Carroll, L., Alice's Adventures in Wonderland,
and Through the Looking Glass, (Airmont
Pub. Co. ed. 1965) 227
Cash, The Mind of the South (1941) 46,47
Columbia Record 36,40
Columbia State 32,33,40,42
xix
Congressional Record, 69 Cong., 2d Sess., 5362 47
Cook, The Warfare State (1962) 190
Council of State Governments,
Book of the States, 1966-67. 237
Darrow, C., Attorney For the Damned
(Weinberg, ed. 1957) 18,20
Darrow, C., The Story of My Life 373 (1932) 255
Circular no. 380-3 Department of Army, Office
of the Staff Judge Advocate 152
Director of the Office of Federal Programs, Letter. 137
DuBois, W.E.B., Black Reconstruction in America (1935) 187
Egerton, A Visit With James McBride Dabbs,
24 New South 41, (no. 1, Winter 1969) 29
Emerson, Freedom of Expression in Wartime,
116 V. Pa. L. Rev. 975 (1968) 217
Field Manual 27-10 The Law of Land Warfare (1956) 207
Field Manual 31-21 ' 175?176
Forster, A. & B. Epstein, Report on the
Ku Klux Klan, (1966) 33,36
Fulbright, J.W., 1961 Cong. Rec. 14433-39 190
Gide & Barrault, The Trial, A Dramatization
Based on Kafka's Novel (1965) 4
Ginger, R., Eugene V. Debs: A Biography (1962) 249
XX
Ginzburg, R., 100 Years of Lynching (1962)
Greenspan, Modern Law of Land Warfare (1949) .
Halliday, E. M., Nature's God and the
Founding Fathers, American Heritage,
Oct., 1963
Holmes, O. W., Law and the Court, in
Collected Legal Papers, (1921)
Holmes, 0. W., Learning and Science, in
Collected Legal Papers (1921)
House Comm, on Un-American Activities, 90th
Cong., 1st Sess., Report on the Present
Day Ku Klux Klan Movement, (Comm. Print, 1967)
H. Rep. No. 1771, 83d Cong., 2d Sess., 1954
Huie, W. B., Three Lives For Mississippi, (1965)
Information Please Almanac (1967)
Jacksonville (Fla.) Journal
Joughin, L. & E. M. Morgan, The Legacy of
Sacco and Vanzetti (1964)
Kafka, F., The Trial (Modern Library ed., 1956)
Key, V. O. Jr., Southern Politics (1949)
Langer, E., The Court-Martial of Captain Levy:
Medical Ethics v. Military Law, 156 Science
1346, (June 9, 1967)
Manual for Courts-Martial (1951) 125,152,164,
39,40
207
102,103
13,43
210
34, 35
162,163
56,59
237
190,191
248
passim
45,49,53
167
231,232
xxi
Michener, J., The Source (1965) 20
Mollenhoff, The Pentagon (1967) 190
Morgan, E. M., Basic Problems of Evidence (1962) 121
Morgan, The Background of the Uniform Code of
Military Justice, 6 Vand. L. Rev. 169 (1953) 253
Morris, R. B., Fair Trial (1952) 250
Myrdal, G., An American Dilemna:
The Negro Problem and Modern Democracy (1944) 92
New International Encyclopedia (2d ed. 1930) 46
Newberry County Development Board, Newberry
County Liveability (1969) 35,73
Newberry County Development Board,
Prosperity Industrial Site (1969) 37,39
New York Times passim
Note, Judicial Checks on Command Influence
Under the Uniform Code of Military
Justice, 63 Yale L.J. 880 (1954) 253
Note, Servicemen in Civilian Courts,
76 Yale L.J. 380, (1966) 236,238
Semerjian, The Right of Confrontation,
55 A.B.A.J. 152 (1969) 143
S. Rep. No. 721, 90th Cong., 2d Sess (1968) 79,80
Sherrill, R., Gothic Politics in the
Deep South (1969) 33,34,44,45,48,190
X X I I
Shoup, The New American Militarism,
The Atlantic, April, 1969 84,89,150,188,190
Solahenitsyn, A. I., The First Circle (1968) 270
State Development Board, Columbia, S.C.,
Newberry South Carolina (undated) 73
State Development Board, Columbia, S.C.,
Prosperity, South Carolina (undated) 39
Statistical Abstract of the United States (1966) 237
Stryker, L. P., For the Defense (1949) 251
Sutherland, E., Letters From Mississippi (1965) 83
Technical Bulletin Med. 230, Treatment and
Management of Venereal Disease. 7 July 1965 182
Tindall, The Emergence of the New South,
1913-1945 (1967) 46,47,189
United States Census of Population, 1960 37,38,39
United States Dept, of Health, Education and
Welfare Public Health Service, The
Eradication of Syphilis, 11 (1961) 181
3 U. S. Medicine, No. 14, July 15, 1967 175
Wall Street Journal 207
Warren, The Bill of Rights and the
Military, 37 N.Y.U. L. Rev. 181 (1962) 217,236,238,243
Watters, P. & R. Cleghorn, Climbing Jacobs Ladder (1967) 31,32
Wiener, Helping to Cool the Long Hot Summer,
53 A.B.A.J. 713 (1967)
Winthrop, Military Law (1886) 218
- xxiii -
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HOWARD B. LEVY,
Petitioner,
v .
JACOB J. PARKER, as
Warden, United States
Penitentiary, Lewis-
burg, Pennsylvania,
and STANLEY R. RESOR,
as Secretary of
the Army,
Respondents.
NO.
BRIEF OF PETITIONER
STATEMENT
Introduction
Dr. Levy seeks for the first time to obtain post
conviction civil review of the denial by the military of
rights secured for him and all other American citizens
by the Constitution of the United States.
Under 28 U.S.C. i 2241, the scope of review by civil
authorities has been said to be more limited in military
than in other cases. Burns v. Wilson, 346 U.S. 137, reh.
denied, 346 U.S. 844 (1953) but the limitation of such
review is by no means certain.
See, e ,q. , United States v, Augenblick, 89 S. Ct.
528, 530 n. 3 (1969): "Habeas corpus has been the tradi
tional way 'of obtaining here collateral review of conviction
by military tribunals. See Reid v. Covert, 354 U.S. 1 . . .
Burns v. Wilson, 346 U.S. 137 . . . Whelchel v. McDonald,
340 U.S. 122 . . . Gusik v, Schilder, 340 U.S. 128 . . . ."
. . . [I]t is urged that when, in review of state
convictions by way of federal habeas corpus, the
concept of "jurisdiction" was broadened to include
deprivation by the trial tribunal of the consti
tutional rights of a defendant [citations omitted],
the scope of collateral review of courts-martial
convictions was broadened . . . . .
On that issue there have been a variety of views
expressed in this Court. See Burns v. Wilson,
346 U.S. 137, 149, 152-153 . . . . There is likewise
unresolved the question whether . . . the District
Courts might have a like jurisdiction . . . under the
Tucker Act . . . . After hearing- argument and study
ing the record of these cases we do not reach those
questions. 89 S. Ct. at 5 28. (emphasis added)
Cf. Harris v. Nelson, 37 U.S.L.W. 4219 (U.S. Mar. 24, 1969);
Kaufman v. United States, 37 U.S.L.W. 4238 (U.S. Mar. 24, 1969)
See also Desist v. United States,. 37 U.S.L.W. 4225, 4230-31
(U.S. Mar. 24, 1969) (Harlan, J. dissenting):
2
The greatly expanded writ of habeas corpus
seems at the present time to serve two principal
functions . . . . First, it seeks to assure that
no man has been incarcerated under a procedure which
creates an impermissibly large risk that the inno
cent will be convicted . . . . [Second] the threat
of habeas serves as a necessary additional incent
ive for trial and appellate courts throughout this
land to conduct their proceedings in a manner con
sistent with established constitutional standards.
Mr. Justice Harlan also refers to ". . . the Court's new
views of habeas corpus." Id. at 4232.1
1. The traditional approach to the military and its
"trials" by court-martial has placed the inductee in the
position of Joseph K. The doctrine of abstention applied
to state court criminal convictions has been substantially
abrogated. See Dombroski v. Pfister, 380 U.S. 479 (1965) .
But by allowing the military to stand apart as an enclave
the civilian courts have often defaulted in the exercise
of civilian control over the military establishment.
Civilian courts have for many years taken the position of
Kafka's priest:
"But you have to leave now," said the priest. "Well,
yes," said K., "you must see that I can't help it."
"You must first see who I am," said the priest. "You
are the prison chaplain," said K., groping his way
nearer to the priest again; his immediate return to
the Bank was not so necessary as he had made out,
he could quite well stay longer. "That means I be
long to the Court," said the priest. "So why should
I want anything from you? The Court wants nothing
from you. It receives you when you come and it
[footnote continued on next page]
3
It is probable that the separate abstaining opinion
of Mr. Justice Frankfurter in Burns, 346 U.S. at 847 cor
rectly sets forth the more expansive and currently avail
able reach of habeas corpus.
[footnote continued from proceeding page]
dismisses you when you go."
F. Kafka, The Trial, 278 (Modern Library ed., 1.956)Theresult is that American citizens have approached
the final moment in the manner of Joseph K. K. had seen a
away flicker of a light and a figure while awaiting--
indeed, by then collaborating in-- his execution.
Who was it? A friend? A good man? Someone who
sympathized? Someone who wanted to help? Was it
one person only? Or was it mankind? Was help at
hand? Were there arguments in his favor that had
been overlooked? Of course there must be. Logic
is doubtless unshakable, but it cannot withstand
a man who wants to go on living. Where was the
Judge whom he had never seen? Where was the High
Court, to which he had never penetrated? He raised
his hands and spread out all his fingers. Id. at 286.
Then executed,Like a dogi' he said; it was as if the
shame of it must outlive him." Perhaps G :de and Barrault,
in The Trial, A Dramatization Based on Kafka's Novel 138-39
(1965) make the wrong of the former habeas approach more
clear. As K. is to be executed a married couple walks by:
Lady: "Lookl What are they going to do to
him? It's very strange."
Gentlemen: '(who undersi/.ands) "Come, my dear.
These are matters of the Law. They have nothing to
do with us."
K.: "Like a dog'.".
Curtain.
Cf. The outcome in Burns v. Wilson, supra.
4
Consequently this court is asked, under the doctrine
of Thompson v. City of Louisville,'1' to examine the Record
regarding the denial of due process to Dr. Levy, there being
no evidence upon which convictions under Charge II, and
Additional Charges I, II and III (the "pure speech charges")
could be sustained. Indeed two of the pure speech charges
(Additional- Charges II and III based upon a single letter
written by Dr. Levy sometimes referred to as the "letter
charges") were dismissed by the Government.
But the letter charges were dismissed only after the
Government had used them to inflict the original injury the
Army intended. These charges were based on an eight-page
hand-written letter of September 10, 1965, which suddenly
reappeared in 1967, setting forth an exposition of Dr. Levy's
views on racial, political, foreign and military policy
matters. These views must have seemed rather radical to
1. 362 U.S. 199 (1960). See also some of the cases
following Thompson, e,g. Garner v. Louisiana, 368 U.S. 157
(1961); Fields v. City of Fairfield, 375 U.S. 248 (1963),
culminating recently in Gregory v. City of Chicago, 37 U.S.L.W.
4213 (U.S. Mar. 10, 1969). Re: the vagueness of Articles
133 and 134 U.C.M.J., 10 U.S.C. §§ 933, 934, see particularly
the concurring opinion, 37 U.S.L.W. at 4214-17. Petitioner
here did not even receive a limiting construction of the
statutes in the military courts as did the defendants in the
state courts in Gregory and Shuttlesworth v. City of Birming
ham, 37 U.S.L.W. 4203 (U.S. Mar. 10, 1969) . According to
these cases even a limiting construction may not have saved
the constitutionality of a statute facially infringing on
first amendment rights.
5
professional military men. The purpose of this letter and
its introduction before the Court, its use in closing argu
ment to the white southerners and the four veterans of
the Vietnamese conflict sitting in judgment at Fort Jackson
must have been to inflame the passion remaining in them.
"A dead woman is a dead woman in Alabama and
Viet Nam," said Dr. Levy's letter. "To destroy
a child's life in Viet Nam equals a destroyed
life in Harlem. For what cause? Democracy?
Diem? Trujillo, Batista, Chang [sic] Kai Shek,
Franco, Tshombe-- Bull Shit? . . . ."
No more private communication than that letter (which
read in context sets forth a constitutionally protected
political position) could have been suddenly found or
previously saved for later use to send Dr. Levy away as
an authentic political prisoner, an enemy of the people.^- 1
1. Every effort was made to prevent the letter charges
from further tainting the minds of the infantry warriors
judging the physician. But, as with all else, to no avail.
For example a proper summary of the evidence was made on
motion to dismiss. The motion like all others of importance
was denied.
INDIVIDUAL COUNSEL: Well, on the basis of the
evidence presented by the prosecution and on the
basis of these rulings--as far as we're concerned if
the truth is not at issue, except as mitigation and
subjective and objective truth with respect to the
issue of mitigation, if it is not at issue, the pro
secution presented evidence with respect to a letter,
[footnote continued on following page!
6
Even, if this civil court accepts a more limited view
of its jurisdiction of Court-Martial proceedings a rather
exhaustive review of the Record is required to demonstrate:
a. the clear deprivations of Dr. Levy's constitutional
rights and the relationship of the evidence adduced
a.!: and prior to the trial and the Army's post
trial actions which place those deprivations
in perspective;
[footnote continued from preceeding page]
a single document which stands or falls by itself,
mailed to a person privately in the United States
Mails, constituting, as I understand it, a personal
and private communication. The recipient of the
letter testified that he didn't know the person who
sent it was an officer, from the face of the letter.
Then in fact, it wasn't just unsolicited correspond
ence, in fact it was correspondence that he was carry
ing on correspondence .with someone else and he had
written him a letter and the other man had answered
it— that it came back and the letter be sent by Doctor
Levy to him. [sic] By the very essense [sic] of the
confidential nature of the United States Mails, a
communication, one man to another in writing m Sept
ember of 1965, it seems to me it would be rather
difficult to make a charge especially since such
communcations [sic] are protected, as I understand it,
not only by the Constitution of the United States,
but also by the Statutes of the United States relating
to military personnel as well as Ar*ny Regulations. (A. 197)
7
b. the forbidden deprivation of Dr. Levy's right to
present defenses of constitutional dimensions to the
Court-martial. Cf. Whelchel v. McDonald, 340 U.S.
122 (1950); and,
the complete deprivation of constitutional rights by
the Army operating under the Uniform Code of Military
Justice ("UCMJ"), the unconstitutionality of the UCMJ,
which although uniform and a code and military has .
little to do with justice in its application and is
in whole or in part unconstitutional on its face or
in its application.
1. C_f. Kafka , supra at 192-93:
"These contradictions are easy to explain," said the painter
»tA7o must distinguish between two things: what is written irt
the Law, and what I have discovered through personal ex
perience; you must not confuse the two. In the code of the
Law, which admittedly I have not read, it is of course laid
down on the one hand that the innocent shall be acquitted,
but it is not stated on the other hand that the Judges are
open to influence. Now, my experience is diametrically
opposed to that. I have not met one case of definite ac
quittal, and I have met many cases of influential inter
vention.
* * * *
"Not one case of acquittal, then," said K. as if he were
speaking to himself and his hopes, but that merely c°n
firms the opinion that I have already formed of this Court.
It is a pointless institution from any point of view. A
single executioner could do all that is needed." "You
mustn't generalize," said the painter in displeasure.
* * *
These legends certainly provide instances of acquittal;
actually the majority of them are about acquittals, they
can be believed, but they cannot be proved. All the same,
they shouldn't be entirely left out of account, they must
have an element of truth in them, and besides they are
very beautiful. I myself have painted several pictures
founded on such legends." "Mere legends cannot alter my
opinion," said K., "and I fancy that one cannot appeal
to such legends before the Court?" The painter laughed.
"No, one can't do that," he said.
- 8 -
"Exhibit C, Affidavits," to the Petition for Writ of
Habeas Corpus raises substantial questions relating not
merely to the integrity of the military process but, as
importantly, to the integrity and the wilfulness~~in fact,
the very purposes— of the prosecution of Dr. Levy.
The Record itself makes the case. The affidavits
amplify on matters suppressed by frightened military author
ities in order to forego the embarrassment of the bigotry and
ignorance implicit in the prosecution, and then, once in the
case to assure not merely a stillness at Fort Jackson but
at all of its outposts presided over by frightened disciplined
men who have little comprehension of the constitution they
have sworn to uphold and defend.
Here one suppression led to another and then another until
the injustice was complete.
Here we intend to prove the Army's deliberate and thus
far successful persecution of one man and the escalations of
that persecution into a lack of candor and consequent erosion
of integrity that reaches to the very roots of the system
of military justice."*' 1
1. Deleted by the author from Kafka, supra at 283
was K.'s statement to his executioner.
"The state is offering to come to my assistance,"
whispered K. into the ear of one of the men. "What
if I transferred the trial into the domain where the
writ of the state law runs? The outcome might very
well be that I would have to defend you two gentle
men against the state!." Id., 325
9
*
The following have been filed herein:
1. The 19 Volume Record of the proceedings in United States
v. Capt. Howard B. Levy. This Record is an exact copy of the
Record furnished by the Army, certain portions of which were
faultily reproduced in the copy so furnished. Of course the
original Record is in the possession of or subject to the control
of the Government and, in habeas, is ordinarily provided by the
respondent. The copy filed herewith is filed for the convenience
of the Court.
2. A three volume "Appendix of Extracts from the Record."
The Appendix is paginated consecutively and referred to herein
by the designation "A" followed by the page number of the Appen
dix. The Appendix is appropriately indexed. An index to all
three volumes appears at the beginning of Volume I and an 1
1. Certain pages of the Record were also apparently
missing when furnished. E .g . R. Vol. 2, Report of Feb. 1,
Exh. 21, (Landing), p. 9; Exh. 23G, p. 8; Report of Mar.
1, Exh. 9, pp. 3-5. R. Vol. 10, App. Exh. 2, Exh. VIII of
second series of Exhs. I-XII. R. Vol. 11, Exh. 23N, p. 13;
Exh. 23 P (3) p. 2; 23P (4), p. 2; 23 P (5) p. 2; 23P (6), p. 2;
23P (7), p. 2. In R. Vol. 12 there is a query about App.
Exh. 6. The query is with Vol. 10. R. Vol. 14, pp. 588, 683.
R. Vol. 15, pp. 381, 434, 487. R. Vol. 16, App. Exh. 14,
p. 970.
10 -
additional index for Volumes II and III appears at the beginning
of each of those volumes. On each page of the Appendix there
also appears a reference to the page where the extract may be
found in the original 19 Volume Record so that ready reference
may be made thereto. Additionally the Army prepared an Index to
the Court-Martial testimony, Vols. 3-9 of the Record. That
index is found following the Index included in Volume I and is
numbered separately in letter style xi-xviii, inclusive. This
index is also found in the Record at the beginning of Volume 3
thereof.
3. A separately bound single Volume "Compendium" of the
reported and unreported opinions or orders relating to Dr. Levy
in other military and civilian cases. The index to the Compen
dium sets forth the style of the case. The reported cases are
copied exactly so that citation references readily appear. Be
cause some opinions and orders are unreported a separate consecu
tive pagination to the Compendium appears in the lower right
hand corner of each page thereof. References to opinions and
orders contained in the Compendium are sometimes referred to
herein by the designation "C," followed by the page number of
the Compendium.
11
4. A separately bound volume entitled "Exhibit C,
Affidavits," which is alphabetically indexed by name of the
affiant, consecutively paginated, and referred to herein
by the designation "Exh. C," followed by the page number
within the Exhibit. Affidavits acquired after the time of
original assembly of this Exhibit (but prior to the filing
of the petition',, are included in the index to the exhibit
(alphabetically, rather than in the order in which they
appear) and are bound with the other affidavits therein,
consecutive pagination continuing. This Exhibit is by re
ference made thereto in the Petition for Writ of Habeas
Corpus a part of the petition itself.
5. Also filed herewith are, of course, the Petition for
Writ of Habeas Corpus, a separate application for bail pending
hearing on the writ, and a memorandum of law relating to
admitting petitioner to bail.
Due to the sheer bulk of the matter involved in this
case— the Record itself weighs approximately four stone—
the constitutional significance of the case, and its signi
ficance regarding the very integrity of the military and its
system of justice this brief contains matters of an historical
and other nature necessary to place the constitutional issues
in perspective.'*' 1
1. See E. M. Morgan, Basic Problems of Evidence 360 (1962)
". . . i n most instances the historical fact is a subject of
judicial notice"; accord, Morris v. Harmer's Heirs' Lessee, 32
U.S. (7 Pet.) 553, 558 (1833). For a number of years this has
been the rule in the Fifth Circuit. See United States ex rel■
Goldsby v. Harpole, 263 F. 2d 71, 82 (5th Cir.), cert, denied
[footnote continued on following page]
12
361 U.S. 838 (1959)(". . . it is our duty to take judicial
notice that lawyers residing in many southern jurisdictions
rarely, almost to the point of never, raise the issue of
systematic exclusion of Negroes from juries."); Meredith v.
Fair, 298 F.2d 696, 701, cert. denied 371 U.S. 828 (1962);
United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir.
1962), cert, denied, 372 U.S. 915 and 924 (1963). See Smith
v. Paris, 257 F. Supp. 901, 904 (M.D. Ala. 1966), modified
and aff'd , 385 F. 2d 979 (5th Cir. 1967) and cases there
cited (court must take into account the long history of
racial .discrimination in Alabama and view legislative purpose
in this light). . Regarding the effect of a history of dis
criminatory practices, see Patton v. Mississippi, 380 U.S.
128, 143, 144 (1965).
The judicial use of southern history in the racial-electoral
context is illustrated by United States v. Louisiana, 225 F.Supp.
353 (E.D. La. 1963) (three-judge court), aff!d , 380 U.S. 145 (1965).
Unfortunately, we often " . . . need education in the obvious
more than investigation of the cbscure." Holmes, Law and the
Court, in Collected Legal Papers 291, 292—93 (1921). The
plaintiffs here only want 'for the Court to see what [a]11
others can see and understand * * *"1 United States v. Mississippi,
229 F. Supp. 925, 998 (S.D. Miss., 1964)(dissenting opinion)
reversed, 1965, 380 U.S. 128. . . . " Hamer v. Campbell, 358 F„2d
215, 220 (5th Cir. 1966). Cf. the judicial cognizance based in
part on the experience of the Supreme Court, in Walker v. City
of Birmingham, 388 U.S. 307, 325 n. 1 (1967) (Warren, C.J., dis
senting) .
[footnote continued from preceding page]
13
T H E L E G A L H I S T O R Y O F T H I S C A S E
Capt. Levy sought to enjoin his trial by Court-Martial
on Dombrowski v. Pfister. 380 U.S. 479 (1965) grounds in Levy
v. McNamara, Civ. No. 953-67 (D.C.C. May 3, 1967) (C. 1)
Unsuccessful there (the District Judge denying relief re
fused to call for the convening of a three-judge panel), Dr.
Levy sought mandamus from the United States Court of Appeals
for the District of Columbia. Levy v. Corcoran, 389 F.2d 929
(D.C. Cir.,1967) (C.10) There Judge Tamm felt that Dr. Levy
had ". . . a n adequate remedy at law." 389 F.2d at 930 (C.ll)
And,
In addition, there is available to this
petitioner, in due course and if he is
convicted, the right of appeal to the civil
courts through habeas corpus or other
appropriate proceedings. Id.
Judge Leventhal declined intervention saying, with regard
to Articles 133 and 134 UCMJ, 10 U.S.C. 933, 934, their incursion
on first amendment freedoms and the application of Dombrowski:
The argument is not without logic.
Where it breaks down, it seems to me, is
where it runs into a judicial tradition
which for more than 150 years has resisted
all efforts to issue mandates intended to
obviate exposure to court-martials or
anticipate the results of proceedings before
military tribunals. 389 F.2d at 931 (c. 12)
(footnote omitted).
14
Chief Judge Bazelon, dissenting, would have stayed the
Court-martial and ordered a three-judge court convened. He
pointed out:
Levy argues that Articles 133 and 134 are overly
broad, and that their breadth impermissibly im
pinges upon First Amendment freedoms. A simple
reading of the Articles shows that they are quite
broad. Indeed, the Manual for Courts-Martial
interprets Article 134 to include more than fifty
different offenses ranging from abusing public
animals to wearing unauthorized insignia. [foot
note omitted]. Levy argues also that Article 90,
though not unconstitutional on its face, is being
applied as part of a scheme to punish him for
exercising his First Amendment rights in the past
and prevent him from exercising them in the future,
[footnote 3: 'He alleges, among other things, that
at first his commanding officer decided upon a
minor form of nonjudicial discipline and that
only after he learned of Levy's political opinions
was the court-martial decided upon']. For our
purposes we must take these allegations as true.
And if they are true, the constitutionality of
Article 90, as applied to Levy, is questionable.
Dombrowski v. Pfister, 380 U.S. 479, 490, 85
S.Ct. 1116, 14 L .Ed.2d 22 (1965). 389 F.2d at
932 (C. 13)
Judge Bazelon then stated that the alleged misapplication
of Article 90 fit
within the first ground for the Dombrowski
decision. 380 U.S. at 490,85 S.Ct. 1116. And
if Articles 133 and 134 are unconstitutionally
broad then that part of Levy's case fits within
the second ground for the Dombrowski decision,
380 U.S. at 490-91, 85 S.Ct. 1116. 389 F.2d at
933. (c. 13-14)
Several days after the trial by Court-Martial had commenced
the Supreme Court denied a stay of the trial by Court-Martial,
15
387 U.S. 915 (1967) (C. 22) and then denied certiorari (the
question apparently being considered moot), 389 U.S. 960 (1967)
(C. 23)
After trial Levy unsuccessfully sought release pending
exhaustion of his intra-military appellate remedies. Levy, y.
Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967) (C. 50);
L e w V- Res or. No. Civ. 67-442 (D. S.C. July 5, 1967) (C. 47),
aff1d per curiam. 384 F.2d 689 (4th Cir. 1967) (C. 57), cert.
denied, 389 U.S. 1049 (1968) (C. 59) In its order the Fourth
Circuit authorized Dr. Levy's transfer from Ft. Jackson, South
Carolina, to the United States Disciplinary Barracks at Ft.
Leavenworth, Kansas.
In L e w v. Dillon, 286 F. Supp. 593 (D. Kan. 1968) (C. 60)
he contended that his sentence had been executed and the
resultant confinement was violative of Article 71 (c) UCMJ (10
U.S.C. 871(c)). He relied on Noyd v. Bond, 285 F. Supp 785
(D.N. Mex.), rev1d, 402 F.2d 441 (10th Cir. 1968), 89 S.Ct.
478, (release granted pending consideration of petition for
writ of certiorari), cert, granted, 89 S.Ct. 692 (1969) (No.
830, oral argument pending).
The District Court, denying relief in Levy v., Dillon, supra,
noted "[t]his is not a collateral attack on the judgment of
a military court." 286 F. Supp. at 595. (C. 62) On appeal this
- 16 -
case was argued on January 21, 1969. Levy v. Dillon, No. 78-68
(10th Cir. 1969). (Intra-military relief was denied him on the
question presented here. Levy v. Dillon, Misc., Docket No. 68-18,
(U.S.C.M.A. Nov. 27, 1969). (C. 65)
All intra-military remedies relating to the merits have been
exhausted. United States v. Levy, CM416 463 (Army Bd. of Rev. Aug.
29, 1968), (C. 24), petition denied. No. 21,641 (C.M.A. Jan. 6,
1969). (C. 39) Finally, at midnight January 20, 1969, Dr. Levy
was dismissed from the service and his sentence approved. See
C. 40-46.
On January 28, 1969, the United States Court of Appeals
for the Tenth Circuit authorized his transfer from military to
civilian custody, the entry of that order being agreed to by the
Army. See C. 66. Although the order specified transfer to
Lewisburg and from there to minimum security confinement at
Allenwood Prison Farm, id., he is presently held in minimal
custody at the Prison Farm at Lewisburg.
His sentence, with credit for good time served will expire
in August, 1969.'*'
1. Regarding release pending habeas and the possibility of
mootness, <cf. Noyd v. Bond, 89 S.Ct. 478 (1969), release being
ordered there two days prior to expiration of Noyd's sentence
and Brown v. Resor, 89 S.Ct. 51 (1968) rev1d per curiam, for
reconsideration in light of Carafas v. LaVallee, 391 U.S. 234
(1968). On remand in Brown. the Fifth Circuit found Carafas ap
plicable denying relief on the merits. Brown v. Resor, No. 24678
(5th Cir. Feb. 6, 1969) .
- 17 -
T H E N A T U R E OF DR. L E V Y ' S C L A I M S
Dr. Levy was charged with crimes that did not exist.
He was convicted, sentenced and jailed for crimes that did not exist.
He is now imprisoned for the commission of crimes which do not
exist.^ He was tried for "conduct unbecoming an officer and a gentleman
and under the "general article" for pure speech, the expression of
his political views. He was tried for disobeying an order to teach
his art— the art, science and ethics of healing the sick and mending
the maimed— to an elite corps of guerrilla warriors for their political
use, to teach medicine for political and military use as a new kind
2of weapon in an ancient kind of warfare. 1 2
1. You must remember that in these proceedings things are always
coming up for discussion that are simply beyond reason, people
are too tired and distracted to think and so they take refuge
in superstition. I'm as bad as anyone myself. And one of
the superstitions is that you're supposed to tell from a
man's face, especially the line of his lips, how his case
is going to turn out. Well, people declared that judging
from the expression of your lips you would be found guilty,
and in the near future too. I tell you, it's a silly super
stition and in most cases completely belied by the facts,
but if you live among these people it's difficult to escape
the prevailing opinion. You can't imagine what a strong
effect such superstitions have. Kafka, supra, 217-18 and passim.
2. "Guerrilla warfare was the order of the day. Guerrilla war
fare is murder because the killed are so very few." clarence Darrow,
in Attorney for the Damned 535 (Weinberg, ed_. 1957) (from Darrow s lecture
on John Brown).
18 -
Just as in trials for heresy and witchcraft an unorthodox,
outspoken, non-believer was tried by the oppressive might of a
powerful and totalitarian institution— the Army of the United
States.
Howard Levy was tagged different from the beginning.
He preferred to spend his off-duty afternoons, his Saturdays
and Sundays in the heat of a Deep South rural county, walking
on unpaved streets and roads, rapping on the doors of the dis
enfranchised, driving them to the County Court House to register
to vote.
He preferred living weekends with a Negro family in rural
South Carolina; being surrounded, threatened and cursed by an
angry mob of white toughs whose finer art of heckling rose to
the phrase "White Ethiopian"; helping purchase a printing press
for a voter project; writing, editing, and reporting to disen
franchised and newly enfranchised Negro voters.
In July and August of 1965, as in the summer months of every
year— the "officers and gentlemen" of Fort Jackson— spent their
days training young men to march in lock-step to the beat of
discipline's drummer. For them, later in the day and on weekends,
it was golf on the Fort Jackson course, drinks in the air condi-
- 19 -
tioned Officers Club, and attendance at antiseptic base social
events, engraved invitations to which were, perhaps, more like
commands than "desires the presence of your company."
The Army Game like the game of golf was not for Dr. Levy.
He refused to join the Officers Club.
He did not fit the mold of Army green.
Because he was different and became involved in civil rights
activities and disagreed with the ignorance above him and the
poverty around him, he frightened the Army. And out of that
1fear came the charges of crimes that were not crimes. 1
1. In church does your neighbor, while professing to be
a true man, rock his head back and forth and bend occasionally
at the waist? Does he recite the Psalms like an honest man,
then refuse at the end to repeat the Gloria Patri? Does he
attend with special reverence whenever testimony from the
Old Testament is mentioned? Does his tongue seem to gag in
his mouth when he is called upon to recite the phrase,
"Father, Son and Holy Ghost"? If he does any of these things,
you have caught a Jew." J. Michener, The Source, 651 (1965).
See also, Par row, supra, p. 18, at 93 (from a Darrow
debate on capital punishment):
Why not break every bone in their body on the rack, as
has been done for such serious offenses as heresy and
witchcraft?
Those were the good old days in which the Judge should
have held court. Glorious days, when you could kill them by
the millions because they worshipped God in a different way
from that which the State provided, or when you could kill
old women for witchcraft! * * *
Why not re-enact the Code of Blackstone's day? Why, the
judges were all for it— every one of them— and the only way
we got rid of these laws was because juries were too humane
to obey the courts.
That is the only way we got rid of punishing old women,
of hanging old women in New England -because in spite of all
the courts, the juries would no longer convict them for a
crime that never existed. Id.
20
The trial took place in a clapboard building at least three
wars old in Fort Jackson, South Carolina. Ten men heard the
evidence they were allowed to hear. Most of them heard that
evidence through ears accustomed to the soft drawl of the Deep
South. Three of them viewed it through the pained eyes of men
who had served in Vietnam. An additional Vietnam veteran saw
it through the single eye he had not lost there in a "friendly"
mine field. Eight of the majors, Lt. Colonels and Colonels,
were white but the General who ordered the group assembled took
care to have an Oriental and a Negro, each a Major, sit with their
superior officers.
The President of the Court, Col. Baskin, was a native of
South Carolina, a veteran of wars abroad and a native son of the
soil from which the shots on Fort Sumter were fired.
His trial was over before it began. It lasted for a record
of 19 volumes and ended one month before he was to have departed
the basic training base and the Army.
Dr. Levy's Charges
The Petitioner seeks Habeas Corpus as the sole remaining
remedy of the law to redress his grievances. He seeks to in
voke the majesty of the Constitution and the Great Writ to vindi
- 21 -
cate himself and, in so doing, to vindicate the law of the land,
to assert civilian control over the exercise of totalitarian
power in a society that he believes is losing its freedom as
certainly as he lost his. Howard B. Levy charges and desires
to prove the denial of rights guaranteed every citizen by the
Bill of Rights.
He charges:
1. The Counter-Intelligence Corps, of the Army of the
United States utilized its Special Agent, James B.
West, of Prosperity, South Carolina, to instigate
the bringing of charges against him because of his
off-duty, out-of-uniform efforts to register Negroes
to vote in Newberry County, and elsewhere in the
State of South Carolina.
2. The Army of the United States with the deliberate
suppression of 100 pages of a 180 page G-2 Dossier
the very charges upon which he was convicted being
based on that Dossier.
3. The Army of the United States with the deliberate
suppression of hundreds of statements from witnesses
that might have tended to exonerate him from guilt
of the charges lodged against him.
4. The Army of the United States alone or in concert
with authorities of the State of South Carolina with
prosecuting him to:
a. punish him for his civil rights activities,
b. discourage Negro voting efforts, and
c. make certain that no other military per
sonnel engaged in off-duty off-base civil rights
activity.
5. The Army of the United States with subjecting him
to criminal prosecution in order to suppress the
exercise of first amendment rights by military personnel.
22 -
6. The Army of the United. States with selectively
employing the processes of a military court-martial to
suppress criticism of the Vietnam War.
7. The Army of the United States with the use of
statutes which are on their face or in their applica
tion unconstitutional to accomplish the above and
foregoing.
8. The Army of the United States with the use of
an affidavit based upon false statements and designed
to prevent his release from incarceration pending ex
haustion of his intra-military remedies.
9. The Army of the United States with the employment
of racism, the suppression of evidence, the use of a
false affidavit or an affidavit based upon false
statements, and the use of the Court-Martial process
to deprive him of rights guaranteed all American citizens
and, in doing so, of falsely accusing the petitioner
of being a communist and by the employment of such
means violating the civil and criminal laws governing
it and its members and the Constitution of the United
States.
In this proceeding for the first time Dr. Levy has an op
portunity to prove his case and in so doing to demonstrate the
the repressiveness of a system which utilized racism and might
to silence a single and quiet and until October, 1966, harmless
voice of simple dissent.
- 23 -
PRELUDE TO A COURT-MARTIAL
THE TIMES. THE PLACE AND THE MAN
In 1964, young Dr. Levy, then in residency in New York
City read, "Johnson Meets Mexican Leader Defines U.S. Aims",
New York Times, Feb. 22, 1964, p. 1, col. 3.
The President then said:
The contest in which South Vietnam is now engaged. . .
is first and foremost a contest to be won by the govern
ment and the people of that country for themselves.
Eight days later he read:
President Johnson said today that the United States
must rely on the South Vietnamese to defend them
selves against communist guerrillas. The President
implied at a news conference that he was not pre
pared to commit the 15,500 Americans now advising
and training South Vietnam's army.^
On August 5, 1964, the Times banner headline read "President
Orders 'Limited' Retaliation After Communist PT Boats Renew Raids." 1 2
1. "Johnson Defends Vietnam Policies,""Implying Limit on Role
'He Asserts U.S. Must Depend on Saigon's Forces," New York Times,
Sun., Mar. 1, 1964, p. 1, col. 7. See also, "Transcript of
President's News Conferences on Foreign and Domestic Affairs,"
id., p. 44, cols. 1-8 at col. 2 .J,We have a very difficult situation
in Vietnam. We are furnishing advice and counsel and training to
the South Vietnamese army and we must rely on them for such
action as is taken to defend themselves."
2. New York Times, p. 1, cols. 1-8.
- 24 -
But then, "[statistically the American effort in South Vietnam
[came] to about $500 million a year in military and economic aid;
and the stationing there of 16,000 men with an additional 5000
promised in the next few months,"1 was a minor involvement for
the most powerful nation on earth.
A few prominent voices of dissent were beginning to be
heard. The first may have been Dr. King's, then came Senator
McGovern. They were followed by the Senators Kennedy, Fulbright,
Morse, McCarthy, Church; the Ambassadors and scholars and Generals
and then many Americans led by the Spocks and Coffins and business
and professional, religious and other leaders across the land.
But in 1964 to most middle-class Americans there was no war,
their sons were in school and all was right with the world. The
Vietnam question had been settled in the Presidential election in 1964.
A year later, on Sunday, July 4, 1965, as Dr. Levy prepared
to leave for Fort Jackson he read of ". . . an increase of U.S.
strength to its present 75,000 men— 21,000 of whom are combat
troops."^
On that same Fourth of July, in the Sunday Mirror, London,
England, Marshal Ky was reported as saying--
People ask me who my heroes are. I have only one— Hitler.
I admire Hitler because he pulled his country together when
it was in a terrible state in the early thirties. But, the 1 2
1. "News of the Week in Review," New York Times, Sun.,
Aug. 9, 1964, p. 1, col. 2.
2. Id., Sun., July 4, 1965, p. 1, col. 2.
25 -
situation here is so desperate now that one man would ̂
not be enough. We need four or five Hitlers in Vietnam.
Thus, Dr. Levy was heading south to treat the men who were
to fight Marshal Ky's war and to treat them when they returned
diseased, wounded, and maimed. As a physician that was his job.
At least he didn't have to train men to fight in that war.
Three years later in the United States Disciplinary Barracks,
Fort Leavenworth, Kansas, Howard B. Levy, prisoner, was to read:
But the man who as a pilot, participated in the first
raid on North Vietnam is also remembered as a man who
brought the Buddhists into the streets of Danang in
1966 by threatening to shoot the Mayor, and, as a man
who once said he admired Hitler (when a storm of pro
test arose, he claimed that he admired the Nazi leader
for his organizational ability.)^
And, by December 18, 1968, the first anniversary of the
arrival at Leavenworth of the now not quite so young physician
who had once supported President Eisenhower (R. Vol. 5, 848),
the Times headline was to read "McGovern Condemns Ky As 'Tinhorn
Dictator 1."3
______ * ________ 1 2 3
1. Quoted from "Premier Ky, in London Denies He Called
Hitler His Hero," New York Times, July 16, 1965, p. 3, cols. 4-5.
2. "Man in the News," New York Times, Nov. 28, 1968,
p. 12, cols. 5-6.
3. New York Times, Dec. 18, 1968, p. 1, col. 6.
26 -
Howard B. Levy, Jew, was born in Brooklyn, New York, April
10, 1937.
He was always surrounded by things of a patriotic nature
or things of a Jewish nature. He was raised in the best
traditions of a loyal Jewish American, conscious of his
Judaism and impressed with his Americanism. R. Vol. 5, 848
After a public school education he graduated from New York
University, received his medical education at the State University
of New York's Downstate Medical Center, completed his internship
and residency in dermatology. A. 392.
He developed a social conscience—
These changes seemed to take place to us, in our minds,
about the time that he was in residency at Bellevue Hospital
in New York City, where he came in contact with an awful
lot of unfortunate, downtrodden, poor, ignorant, Puerto
Rican and colored people; and he felt their needs very,
very keenly. And he felt the discriminations, the depri
vations and lack of consideration that was shown to them,
the rough handling that they received and the constant
unhappy circumstances under which they lived was completely
un-American, completely contrary to any concept of humanism.
R. Vol. 5, 848-49.
Dr. Levy journeyed south of the Mason-Dixon line to Fort
Jackson (Columbia), South Carolina, where, on arrival July 9,
1965, he was made Chief of the Dermatology Clinic at the United
States Army Hospital. A. 392.
His father worried about his first trip South because he
27
. . . knew he was Jewish; I knew he was interested in the
welfare of the unfortunate, deprived, the discriminated
against, and I knew he wouldn't stand apart from it, and
he'd do something to help them and I knew that that wasn't
completely looked upon down South in what we considered
completely American life, certainly not the image of our
forefathers. R. Vol. 5, 852.
As his father put it,
I know my son. I know that he is a man of strong convic™
tions, a man perhaps stubborn and any conviction that he
has that he cannot compromise, it [sic] if he feels it is
right, he must stand by it, and he's got the guts to do
it. I wish I had the guts to do it. R. Vol. 5, 851.
Riots had not yet spread across the land. Cries of "Black
Power," "separatism," the invasions of university classrooms
had not occurred. Malcolm X had been assassinated but had not
yet been resurrected by angry young Americans. Dr. King and
Senator Robert F. Kennedy were alive and, for South Carolina
Negroes, so was hope. *
*
- 28 -
In Newberry County, South Carolina, there was hope— and
fear.1 Change was on the way.
In November, 1964, the Southern Christian Leadership Con
ference (SCLC) was planning its Summer Community Organization
and Political Education (SCOPE) project. Dr. Martin Luther King,
Jr., the Rev. Ralph David Abernathy and Hosea L. Williams were
planning strategy, raising funds and recruiting volunteers for a
massive Negro voter registration drive in the Deep South, in
cluding South Carolina and its Newberry County. Exh. C, 1-3.
1. I sympathize with the white segregationist in the
situation he's in. In some ways he is a more pitiful
figure than the Negro. Power has corrupted us, and the
average southern white racist is in an identity crisis.
In the last 100 years he's learned two things: you can't
keep the Yankees out, and you can't keep the Negroes
down. Faulkner says the southerner is a man who resists.
Well, if he can't keep the Yankees out or the Negroes
down, then who is he? He doesn't know. There's nothing
left for him to identify himself with. A man in this
emotional world is trapped. The white segregationist is
more bound by the whole racial complex than the Negro,
he's more frightened. At least the Negro knows what's
got him— the white man's got him, and he's got himself
all tied up. Egerton, A Visit With James McBride Dabbs,
24 New South 41, 47 (No. 1, Winter 1969)
We developed a militia early because of slavery, and we
built a myth of feudalism, and feudalism meant an army—
the plantations were the castles. It is in these be
ginnings that violence is rooted, the key factor being
the oppression of the Negro. JEd. at 48.
- 29 -
But Sunday, March 7, 1965, came and went as did most
Sundays in Prosperity. James B. West and his wife Dochia
probably attended both Church and Sunday School at the Mt. Zion
Methodist Church. There they may have seen and chatted with
Special Agent West's close friend, Dallas Willingham, Sr.,
Prosperity's Chief of Police, and his wife, Jane. The two men
had much in common. Special Agent West was a retired Army man.
Chief Willingham was a retired Navy man. They were white and
southern and engaged in "law work."
In nearby Newberry Thomas M. Fellers, Sr., the Sheriff,
and his wife, Mattie, probably attended the Lutheran Church of
the Redeemer. Older than Agent West, and Chief Willingham (they
are almost 30 years his junior), he may have dropped by the
American Legion Club that afternoon. He too was a veteran and
had served both as Legion Post Commander and as Chef De Gan
of the Forty and Eight.
______ * ________
In New York City, Dr. Levy was still in residency. But he
too would soon become involved in the events of that otherwise
normal day. There and all across the land, most Americans spent
a peaceful Sunday and in the evening many of them settled down
to watch Judgment at Nuremburg on A.B.C. Television.
________________- * _______ _
30.-
Just across the Black Belt from Prosperity but light
years from New York City, Negroes in Selma, Alabama, marched
to the Edmund Pettus Bridge. There they were met by Governor
George C. Wallace's State Troopers, and the regular deputies
and mounted volunteer posse of Dallas County Sheriff Jim Clark.
Nearby stood an assortment of rag-tag whites who wanted to
return to an Old South that never was. They
heard Major John Cloud say, "There is no word to be
had * * * And: "You have two minutes to turn around
and go back to your church." Then the awful moment of
their just standing there, the troops and Sheriff
Clark's volunteer posse advancing on them with clubs,
with horses, with whips, and with tear gas, and routing
them the six blocks back to their church, in helpless,
defenseless terror, with attacks made again and again.
By March 27, 1965, several bridges had been crossed. The
long walk from Selma to Montgomery was over. There in front of
the State Capitol where Jefferson Davis had taken the oath of
office, beneath the Confederate Battle Flag, stood tens of
thousands of black and white Americans, together.
Among the most meaningful words of the day were
Dr. King's "let us march on ballot boxes, until we send
to our city councils, state legislatures, and the United
States Congress men who will not fear to do justice,
love mercy and walk humbly with their God * * * * IfL.
at 257.
Dr. King spoke also that day of the old dream of Popu
lism, again emphasising the march's meaning by fore
shadowing one of the larger possibilities it had thrown
open. The movement had joined the mainstream.
lT P. Watters & R. Cleghorn, Climbing Jacob's Ladder,
253 (1967) .
31 -
It sang "The Star Spangled Banner." The crowd, filling
more than a block of wide pavement, all standing at at
tention, American flags waving, was in control there at
the Cradle of the Confederacy. Only a few of the State
Troopers and a few whites idling by the statue of
Jefferson Davis were not standing at attention. They
were outsiders. Id,, at 258.
They received the message from Montgomery in all the South's
Selmas and Whitmires. They heard that same message in New York
and Newberry. And to every white southerner, the meaning was
clear--"they have crossed the bridge, they are marching, marching
on us and our way of life."
That night white civil rights worker Viola Gregg Liuzzo
was gunned down on a lonely highway in Black Belt Alabama.
Eight days later, April 4, 1965, the bully-boys of South
Carolina's New Confederacy went into action. It was Saturday
night.
On a red flat-bed trailer in a pasture just north of
Hemingway, the Knights of the Ku Klux Klan were pre
paring to stage a rally. . . .
Star attraction at the setting, which had the distinctive
scent of a cow pasture was Imperial Wizard Robert Shelton
of Tuscaloosa, Ala.^
It was a big night for Hemingway (A.B.C. Television was
there)— "the Dragon boasted of'putting Hemingway on the map.'
The crowd agreed the Klan had done just that." Id.
Then on signal the cross was lighted, the regaliaed Klans-
1.
Columbia
"KKK Rally Is Robed in Fire
State, April 5, 1965, p.
, Pictures and Security,
, cols. 1-8.
I I
32 -
men tossed their torches at its foot and the crowd sang "Rugged
Cross." There was an explanation of the meaning of the cross
to the Klan. Id.
Then the Imperial Wizard launched into his traditional at
tack on ". . . President Johnson, the Communist Party, the Civil
Rights movement, Gov. Donald S. Russell, the National Council of
Churches, the press."1 Id.
Hemingway is in eastern South Carolina, far across the state
from Newberry County. And the Grand Dragon ( recently promoted to
honorary "Grand Giant" as he left to serve a one year jail sen
tence for contempt of Congress, "Grand Dragon In S.C. Now 'Grand
Giant'," Raleigh News and Observer, March 17, 1969, p. __, col.___ )
of the United Klans is Robert F. Scoggins of Spartanburg. A. Forster &
B. Ep shein. Report on the Ku Klux Klan 8 (1966). The group
" . . . claims 46 small klaverns— one in each county of the
state— and an estimated strength of 1,500 to 2,500. Id.
1. Cf. the general and specific approaches of South Carolina's
Senator J. Strom Thurmond: " 'The war we're in [over desegregation]
is basically a fight between the believers in a Supreme Being and
the atheist.'" R. Sherrill, Gothic Politics in the Deep South 234
(1969)(Quoting Sen. Thurmond).
For all the respectful attention he gets in the Senate, he
might as well be, as one of his colleagues described him,
"a leaky faucet in an empty house." And yet he holds
South Carolina and a surprisingly large part of Dixie in
thrall. Id. at 256.
[continued on following page]
- 3 3 -
But South Carolina has not one, but two Klan organizations.
More indigenous to the soil is the Association of South Carolina
Klans. This smaller and perhaps less "responsible" group has
but eight Klaverns. House Comm. on Un-American Activities,
90th Cong., 1st Sess., Report on The Present Day Ku Klux Klan
Movement, 146 (Comm, print, 1967). Seven of those eight Klaverns
are located within a fifty mile radius of Newberry County.
[continued from preceding page]
Like every good fanatic, Thurmond is convinced that the only
way to be sure that righteousness prevails is to implant it
and enforce it with an iron hand. This is why Thurmond, a
retired major general in the Army Reserve, has indicated that
there may come a time when the military will have to take
over. Id.. at 258.
He sees a "'predicament' of having to choose between 'the orders
of the commander-in-chief and the Constitution which it is sworn
to uphold and defend.'" Id.
Lately he has been sounding restless,, as though the time for
the military takeover had arrived. During his 1966 campaign
for re-election, Thurmond called President Johnson "a traitor
to the nation as well as to the South." Obviously his heroes
in brass might have to move at any moment. Id..
-34-
In nearby West Columbia there is Klavern No. 335 ("also
referred to as West Columbia Club or Majority Citizens League").
Thirty-five miles from Prosperity, as the klansman rides, is
Klavern No. 96 located in the town of Ninety-Six. _Id. at ___.
This organization headed by Imperial Wizard Aubrey E. Bolen
makes its headquarters in West Columbia, id. at 60, retains its
"autonomy" and avows that its purpose is ". . . t o promote white
supremacy and combat integration of the races." Ld. at 56. "The
use of violence has been constantly disavowed by the leader
ship," id., of course. In 1964 one of its leaders, Robert E.
Hodges rose to prominence by election as "night-hawk" of the
National Association of Ku Klux Klans. Id. at 51.
And, in Newberry the county seat of Newberry County and
the geographical hub of the Association of South Carolina Klans
is "Newberry Klavern No. 790."'*' JEd. at 146.
In the town of Prosperity on that night when the larger
rival United Klans were "putting Hemingway on the map" the
local boys put on a little show of their own.
1. The local folk don't point this up in Newberry County
Development Board, Newberry County Liveability 4 (1969). ’But
they do point out that:Everyone in Newberry County is active in a club or as
sociation. This results from civic pride and a desire
to belong. You will enjoy belonging to one or many as
your time permits. These organizations exist as social
and civic clubs.
- 35 -
On April 4, 1965, a Negro prisoner Freddie Jackson, 18,
was arrested. At 1:30 a.m., April 5, he was dragged from the
Prosperity Jail by five or six hooded and robed men "dressed
as Ku Klux Klansmen", "slapped and threatened." L. Cornell
"Wise said the incident apparently stemmed from Jackson's ar
rest Saturday night on a disorderly conduct charge following a
scuffle with the arresting officer. Wise said the men termed
Jackson a ‘trouble-maker1 and said they would not tolerate such
actions from him or any of his color." "Prosperity Case Search
Continues," Columbia Record, April 7, 1965, p.___ , cols._____ .
"Three police agencies including the South Carolina Law
Enforcement Division joined in the hunt for the five or six men
who wore robes and hoods when they overpowered Cornel [sic] Wise, the
town's night watchman and took his jail keys early Monday
morning." Id.
"A spokesman for the Newberry Sheriff's office said the in
vestigation was being handled by the Prosperity Police Depart-
1ment." Id.
1. Another aspect of the Klan threat is the extent to
which Southern officialdom has been infiltrated by Klans
men and their sympathizers. In too many Southern commun
ities, maintenance of the status quo by any means is given
precedence by such officials over the observance of law.
The result is often a profound erosion of democratic
government from borough to state capitol. Forster and
Epstein, supra at 4.
36 -
*
Prosperity' s police force lias very little to police. Tlie
town area is nine-tenths of a square mile and, aside from
Special Agent West only 756 people live there. N&wberry County
Development Board, Prosperity Industrial Site, (unnumbered
pages) (1969)
Seeking new industry, like most Deep South communities,
the town tries to present its best face to the men in the outer
world— the men with money and plants and jobs. From the out
side world it wants money, not ideas."*- It calls itself a part
of the "Southern Region" and terms the "Southern Region" one of
". . . a number of developing megalopoli or super cities." Ia*
Discussing this, Newberry County says to the world of
finance that it is part of a--
Megalopolis— not a word it seems a business man
would use much. It's a more egg-head sounding
word. One for college profs, maybe. But mega
lopolis means a large urban unit' and that, as
either a business man or professor knows, means
people— and markets for goods and service. Id.
But, its nearest airport is in "Newberry (paved with lights)",
It has but one bank, one fire truck, 25 volunteer firemen and the
nearest accomodations for visitors are on the Interstate Highway
a "motel on 1-26 with 38 rooms." It lists its "cultural facilities"
as "Civitan Club." Id* x t has a doctor, a dentist and "Labor,
General type" which is "Excellent native born with agricultural
heritage." Id. 1
1. Its population of 29,416 consists of 18,979 (64.5%)
whites and 10,437 (35.5%) Negroes. United States Census of Popu
lation , 1960, Table 82. The median educational level is the
eighth grade, _id., Table 83; male income is $1984; female income
is $907. Id., Table 86.
[footnote continued on following page] - 37 -
The three major towns in Newberry County are Prosperity,
population 757; Whitmire, population 2663; and the county seat,
Newberry, 8208. Id. Table 7
Most recent estimates, see Office of Economic Opportunity
Information Center Community Profile (1967), disclose that in
the County:
1. There were 1,965 (25.9%) families with incomes below
the federally established poverty level. Id., at 004-006.
2. Median education is 8.6 years for those over age 25;
20 per cent of its adult population had completed no more than
the fourth grade. Id. at 005-047. Only 24.6% of the adults had
completed high school. Id. The per capita public school ex
penditure is $65. Id.
3. Only 0.9% of its 636 square miles is urban. 70.2% of
this 0.9% area is occupied by the county seat, Newberry. Id- at
013.
4. Between 1950-60 the out-migration over in-migration
was 6,650. Id. at 016. And, as elsewhere in the South, Negroes
are being forced to move away, their proportion of the County's
population declining from 37.2% in 1950 to 34.1% in 1966. Id.
at 107.
5. Three industries— cotton, garment, and lumber mills--
employed 3,592 (61.6%) of those with jobs in the first quarter
of 1964. Id. at 023. Cf. 58 employees of eating and drinking
places during the same period (their gross earnings— $293 per
person). Id. at 026.
6. Even the farm size is small by national standards
averaging 138 acres in 1959. I_d. at 030. And 17.8% of these
were tenant operated. Id- at 031 * In 44.1% of the farm homes
there are no telephones. Id., at 033.
7. In 1960 only 52.3% of the county's dwellings were
sound and contained plumbing. Id., at 045. Of its housing
structures 91.6% were built prior to 1950. Id. at 045. The
median value of the owner-occupied housing was but $6000 (about
one-half of the national standard) and 41.9% of all homes had
no telephones. Id. at 046.
[footnote continued from preceding page]
38 -
"There are three religious groups, including Roman Catholics
maintaining churches in Prosperity. Places of worship for
those of the Jewish faith are located in Columbia, 36 miles
away . " _Id.
There really isn't very much to police in Prosperity, but
like all Deep South towns it has a police force. It consists
of two "regulars" and "two night-watchmen."'*'
To that Police Force, the Chief of which is Special Agent
West's good friend, their good friend Sheriff Fellers relegated
investigation of the "incident."
On April 8, 1965, Chief J.P. Strom of the State Law Enforce
ment Division announced the arrest of Philip Plampin, 22, one-half
of Prosperity's police force and L. Cornell Wise, 47, one-half of
the town's night-watchmen. "The Newberry County Sheriff, Tom M.
Fellers, and the Prosperity police chief, D.H. Willingham, assisted
in the arrests. Like Mr. Strom, they declined further statements
until other members of the group that broke into the jail . . .
were apprehended." The charges were " . . . second degree lynching
2— non fatal violence by a mob." "Policemen Held In Negro Beating.
A Second Degree Lynching Charged In Carolina Case," New York
Times, April 9, 1965, p. 8, col. 4. 1 2
1. According to State Development Board Columbia, South
Carolina, Prosperity, South Carolina A-8 (undated), the "police
department consists of five full time personnel and two radio-
equipped squad cars."
2. Newberry County has not had an inordinate number of lynchings
According to R. Ginzburg, 100 Years of Lynching 267-68 (1962) who
[footnote continued on following page]
39 -
The investigation continued after Messrs. Plampin and Wise
were released on bond.* 1
The prosecution of fifty per cent of the town's constabulary
was continued also— so often that on June 21, 1966, the prosecuting
attorney felt called upon to say for the record and " . . . for
the sake of those who might wonder . . . I am ready and am calling
for trial. . . . " As he put it,
I'd like to say that the true bill was returned in
this case in June of 1965. * * * And at the June,
1965 term, Your Honor, the South Carolina Law Enforce
ment Division requested that the case be carried past that
term of Court because they had further investigations
to make. The State v. Philip Plampin and L. Cornell
Wise, No. ______ , In the Court of General Sessions,
Newberry County, South Carolina, Transcript of Pro
ceedings Continuance of Case at June, 1966 Term at 1
(June 21, 1966).
He then pointed out that for the same reason the case
was continued at the September, 1965 Term. Id. at 2.
At the next term of Court in this County in November
of 1965 one of the main prosecuting witnesses in the case
Mr. Dallas Willingham, the Chief of Police at Prosperity,
had a sudden attack with his kidneys and it was requested
that we not try to try the case in his absence, and I was
so informed by the officers that we couldn't. Id.
[footnote continued from preceding page]
sets forth "A Partial History of Approximately 5,000 Negroes
Lynched In United States Since 1859" only "Mark Davis, Newberry,
Nov. 15, 1906 . . . [and] William Thomas, Newberry, Nov. 23,
1912," were officially reported.
1. "Two Arrested in Prosperity Incident, Prisoner Threat
Probe Continues," Columbia State, April 15, 1965, p. ___, cols. —
"Two to Face Grand Jury In Lynching; Prosperity Men May Be In
dicted," Coumbia State, June 21, 1965 p.___, col. ___ .
"Prosperity Case, Lynching Probe Still Continues, Columbia Record,
June 22, 1965, p. __, cols. ____ ; "Prosperity Lynch Case Bills
Filed," Columbia State, June 22, 1965, p. __, col. ___ .
- 40 -
At the next term of Court one of the defense attorneys was
in the Legislature.
And now we come to June of 1966. I make that notation
and statement concerning the case in the light. Your
Honor, of the fact that I am told there have been a
lot who wondered why the case had not been called for
trial. Id.
The prosecutor then called the case for trial again and
the Court responded:
Well, as I told you yesterday, it never occurred to
me that I would be called on to try this case, except
when it was here last June, and no effort, of course, was
made to bring it to trial because the State said that they
had not completed their investigation.
This case has been the most talked about and written
about case that I know of since I've been in Newberry, both
when I was practicing law and as a Judge. I possibly have
— I know I have listened to a lot of it, may have made some
comments on it, I don't recall. I didn't have any idea
that I'd ever be called upon to try it.because we had
three terms of Court before I'd come back here again.
In any event, I feel like that I should not try the
case and that it should be tried by a Judge who is without
the County and who will be here during the next three terms
of Court— someone will be-- and who can approach it with
that fairness and impartiality that the parties are entitled
to have from the Judge. The Judge in the trial of a case
has got a lot of responsibility and a lot of power. It's
our business to see that justice is done above everything
else and to grant new trials in the event we come to honest
conclusions that justice has not been done. For a judge
to do that properly he should approach the case in my judg
ment with a fresh eye. It is just as important for him
not to be talking about a case, or hearing talk about it,
as it is for a juror who sits on the panel. And I can't
say that. I might be unconsciously influenced by some
talk that I've heard. So I am going to take the responsi
bility myself in saying that the case will not be tried
at this term. .Id. at 3-4.
A trial did finally occur but the Negro youth could not iden
tify his assailants and the charges were either dismissed or the
defendant's were acquitted.
41 -
*
By Monday, June 22, 1965, the SCOPE volunteers had com
pleted their training and begun their work in Newberry County.
William J. Treanor, a college student, white, was in charge.
Exh. C . 2. ------* -------
Howard Levy spent the evening of July 8, 1965, at home
with his parents in Brooklyn. The next morning he set out for
Fort Jackson in his 1963 Chevrolet. It broke down in Penn
Grove, New Jersey and again in Norfolk, Virginia. He reported
late with Army permission and by July 13, 1965, he was uniformed,
had off-base living quarters, was in charge of the Dermatology
Clinic, and had been assigned officer identification stickers
2for both bumpers of his automobile. Exh. C. Levy.
On the morning of Saturday, July 17, 1965, Captain Levy
was having breakfast at a lunchcounter in Columbia. He read the
morning paper — "At Newberry, 10 out of 33 Negroes Denied Regis-
1
tration” — and drove up 1-26 on a short trip to Newberry, the
first few miles westward on the longer journey to Leavenworth. 1 2
1. Columbia State, P- IB, col ____ . Exh. C.p. 57.
2. Capt. Levy is not available to execute his affidavit at the
time of preparation of this brief. Consequently, pagination
is not included herein. At time of filing Exh. C, his affi
davit will be included, paginated, and set forth on the index
therein.
-42-
South Carolina And The Right To Vote
As Mr. Justice Holmes noted ". . .we often need education
in the obvious more than investigation into the obscure," Holmes,
supra, p. 13, n. 1; see id. regarding the use of historical facts
in the Deep South especially in matters involving race.
There the intention of majority members of the white race
has been gleaned from current newspaper articles and writings.
For example, in Davis v, Schnell, 81 F. Supp. 872 (S.D. Ala.
1949) (three judge court) aff1d, 336 U.S. 933 (1949), the district
court in ascertaining the intention of the Legislature and the
electorate considered statements in the Alabama Lawyer (a pub
lication of the Alabama Bar Association) and said
The Alabama Democrat [footnote omitted], a
campaign document in the form of a newspaper
published in support of the adoption of the
Boswell Amendment consisted in its entirety of
arguments urging the voters to adopt the
Amendment for the purpose of restricting voting
by Negroes.
Similarly, an editorial of the Talladega
Home, reproduced in said document, asked the
question: "What is the Boswell Amendment?" and
answered the question by saying, "It is a measure
designed simply and solely to enable registrars
to hold down the number of Negro registrants."
81 F. Supp. at. 880.
"To hold down the number of Negro registrants" has been and
for a number of years will be the white man's intention
43
in the Deep South. There are from time to time changes in
2tactical approach. But the Deep South remains more apart
from than a part of the nation.
South Carolina's Yancey roamed the area before The War
stoking the fires of hatred, stirring the cauldron of rebellion.
When one of the state's Senators took offense at the words
of his adversary Sumner his nephew, a South Carolina Congressman,
simply caned him into invalidism. The state has always considered
certain views unholdable, certain ideas unthinkable, the words
expressing them unsayable.
There is in almost every Deep South county seat the memorial
to the Confederate dead, the lone soldier watchfully facing
north or, as in Newberry, the simple obelisk, the reminder of
the men who died, the ideas which did not.
In South Carolina the past is never prologue. It is now. 1 2
1. "Where there is a racially distinct minority
whose well-being depends to a degree upon law and to a
degree upon the good nature of the majority, the minority
will finally be buggered precisely to the degree that the
law allows — even when there is considerable good nature at
hand. No man can hold out for long against another man's
helplessness. Sooner or later one will be seduced and the
other will be buggered." Walker Percy, 1966. As quoted
in Sherrill, supra, p. 33 at 368.
2. These changes and others like them that can be
expected are, of course, only in apparel. Beneath, there is
still the character and the body politic. Long after the
pitchmen have become decorous, and after even sheriffs come
to look upon the country-lane murders of civil rights workers
as unheroic, and after the land disenfranchisement of black
citizens ends, the negative power of this region will con
tinue to shoot up like prickly hedgerows between the races.
Laws may make life more endurable for the blacks, but only
time will bring the pleasant blandness of equality, for
Dixie's mischief is in the blood and must burn itself out.
Id. at 398-399.
44
"Outside the South, the misconception prevails that all
southerners are equally concerned about the race problem," said
V. 0. Key, Jr., in his classic study Southern Politics 130 (1949) .
"Tension and anxiety about white supremacy, however, are sharper
and more continuous in some states than in others." Id.
As he illustrated:
South Carolina has had a succession of spectacular race
orators who almost blanket out the achievements of its
older and more temperate leaders, such as James F . Byrnes.
While others have shared their views, the politicians of
South Carolina--and Mississippi--have put the white
supremacy case most bitterly, most uncompromisingly, most
vindictively[^ "Pitchfork Ben" Tillman, Cole Blease and
"Cotton Ed" Smith used the floor of the United States
Senate as a rostrum for white-supremacy oratory, matched
in virulence mainly by such Mississippi spokesmen as
Vardaman, Bilbo, Rankin. Id. at 130. (emphasis added)
South Carolina's preoccupation with the Negro stifles
political conflict. Id. at 131.
______ * _________
Between 1900 and 1910 Coleman Livingston Blease and J. Waties
Waring, both white lawyers (Blease was 13 years Waring's senior)
were struggling in law and politics. Blease, Newberry County's 1
1. Cf. Sherrill, supra., 260:
Thurmond once proclaimed that"Mississippi and South
Carolina are the two most democratic states in the nation,"
and while this at first appears to be prima facie absurdity,
it gathers sense when one realizes what he means by democracy
namely, that the lowliest individual in the community has the
same right as the highest to pursue his personal sonofa-
bitchery to the point of rebellion, so long as it does not
violate the customs of the state. This is a definition of
democracy that many other South Carolinians happily subscribe
to/and have been subscribing to since the days of Calhoun and
earlier.
45-
■most famous son, was serving in the Legislature. Waring, an
eighth-generation southerner of impeccable credentials was
practicing law in Charleston.^-
2In 1910 Blease became Governor. He ". . . was the first
of the Southern demagogues to appeal directly and consistently
to the cotton-mill workers as their peculiar candidate and
champion." Cash, The Mind of the South 250 (1941). But he
neither did nor could serve their economic interests,for class
conflict would result in a threat to ". . . the Proto-Dorian
front and lay the way open to the return of the Negro in politics."
Id. at 251. Nor could he rely solely on mill-worker support,for
South Carolina required poll tax payments years in advance of an
election and required property ownership for voting--$300. Id. 1 2
1. And countless others were seeking entry into the land of
the free. See, e.g., A. 487: "Mother-in-law, Blanche Botansky,
31 Mar. 1907, Odessa Russia, Alien Registration number— 4189422,
Ellis Island NY 1907."
2. "Opposing labor legislation, school attendance laws,
and medical examinations for school children, openly advocating
lynching, he dragged the state through four years of petty bicker
ing and turbulence." Tindall, The Emergence of the New South,
1913-1945, at 21 (1957). As an older reference work rather nicely
put it:
Governor Blease has won considerable notoriety by the stand
he has taken in his messages to the Legislature against
negro [sic] education and by urging a law to prevent white
persons teaching negros [sic]. * * * At the Governors
conference held in Richmond in the first week of December,
1912, Governor Blease defended lynchings under certain con
ditions and announced his intention of pardoning at least
800 convicts. 3, New International Encyclopedia 386
(2d ed. 1930).
-46-
As for demagoguery Blease came ". . .as the capstone of it
all."
The day he stood up at the famous old rallying ground at
Filbert and, with his audience screaming hysterical ap
proval, defended lynching by bellowing: " Whenever the
Constitution [of the United States] comes between me and
the virtue of the white women of the South, I say to hell
with the Constitution." The whole tradition of extrava
gance, of sectionalism and Negrophobia in Southern pol
itics had come to its ordained flower, and descended at
last to the level of the most brutal viewpoint in Dixie.
Id. at 253-54.
On the political side, the common whites of South Carolina
clung to Cole Blease, indeed, but they kept him in the
United States Senate, where his single service to them
was to keep before the startled gaze of the nation the
vision of their eternal assault upon the black man. Id.
at 290.1
In 1942 while the United States fought German racism there
were two major happenings in South Carolina.
Mortality collected "Old Coley" and his remains were laid
away under a headstone cut as clearly and simply as the imprint
he etched on "his" people, "his" county and state. And President
Franklin Delano Roosevelt appointed J. Waties Waring United States
District Judge for the Eastern District of South Carolina.
______ * ________
1. Perhaps his greatest single service to the nation was his
providing the key to South Carolina's reasoning on Negro participa
tion in politics. This was " . . . most vividly illuminated by
Cole Blease's droll observation on the 1,100 votes South Carolina
recorded for Coolidge in 1924: 'I do not know where he got them.
I was astonished to know that they were cast and shocked to know
that they were counted.'" Tindall, supra, 166, citing Congressional
Record, 69 Cong., 2d Sess., 5362.
-47-
Judge Waring knew the South— he was of it. But, like
some white southerners he was more dedicated to the fabric
of the Constitution than to the "Southern-way-of-life." He
knew the nature of the guerrilla warfare of the South, the
religious fervor of hatred,1 the success of the white south
in keeping the black down, and, those who fought injustice
at home, out.
He knew the poor rag-tag sheet wearers who burned
crosses and broke into jails under cover of hoods on dark,
dank nights.
1. See Sherrill, supra, 235:
These people will not in our lifetime, give up
any of their beliefs, and the reason that they do not
give up, the reason why the problems that confront the
Deep South today are not much different from what they
were sixty years ago, is that these southerners are
not just waging an economic war against change although
they are waging that, too— but a religious war.
For example Sherrill cites South Carolina's own Bob Jones
University (two members of its Board of Trustees are the
Honorables J. Strom Thurmond and William Jennings Bryan Dorn,
Newberry County's M. C.) relating the following:
In a rather noted radio exhortation to the Negroes,
the Pounder [the Reverend Bob, Sr. himself] once said:
"You might be over there in the jungles of Africa
today, unsaved. But you are here in America where
you have your own schools and your own churches and
your own liberties and your own rights, with certain
restrictions that God Almighty put about you— restrict
ions that are in line with the Word of God. 1 * at 247.
-k "k k
"If you are against segregation and racial separ
ation, then you are against God A'mighty because He
made racial separation. . . . It is no accident that
most of the Chinese live in China. It is not an
accident that most Japanese live in Japan . . . . I.̂,•
48
He knew that they were led by other men of sophistication
fighting their war of attrition in the courts seeming not
to notice their socially unacceptable companions, their
employees, who served as their ultimate enforcers.
Following Smith v. Allwright, 321 U.S. 649 (1944)
" [t]he first plan contrived to avoid the effects of the
Supreme Court decision was the 'South Carolina Plan.'"
Key, supra, 6 26.^
The South Carolina P1an--political "private clubism"--
ran into the Constitution m d District Judge Waring. See
Elmore v. Rice, 72 F. Supp. 516 (E. D . S.C. 1947). aff'd,
165 F . 2d 387 (4th Cir. 19471. cert, denied, 333 U.S. 875
(1948) and Brown v. Baskin, 78 F. Supp. 933, 942 (E.D.S.C.
1948) injunct4 on issued, 80 F. Supp. 1017 (E.D.S.C. 1948),
aff'd , 174 F .2d 391 (4th Cir. 1949).
As quoted in Elmore, the then Governor had stated:
"History has taught us that we must keep our
white Democratic primaries pure and unadulterated
so that we might protect the welfare and homes of
all the people of our State.
1. For an excellent discussion of the aftermath of
Smith v. Allwright, supra, see Key, supra, "New Ways Around
the Supreme Court?" 635-43.
49
"White supremacy will be maintained in our
primaries. Let the chips fall where they may'."
72 F. Supp. at 520.
Judge Waring picked up those chips and raised the ante.
"It has been stated," he said,
and I believe it is a fact, that South Carolina is
the only State which now conducts a primary election
solely for whites . . . . I cannot see where the
skies will fall if South Carolina is put in the
same class with these and other states."
72 F. Supp. at 527.
And then
" . . . we cannot, any longer, await the
growth of a will to action in the slowest state
or the most backward community.
"Our National Government must show the way."
The foregoing words were spoken by the leader
of the Democratic Party, President Truman, in an
address delivered on June 29, 1947.
It is time for South Carolina to rejoin the
Union. I : is time to fall in step with the
other states and to adopt the American way of
conducting elections. 72 F. Supp. at 528.
In Brown v. Baskin, supra, Judge Waring was faced
with the intransigence which can be understood only by
50
those southerners who know that their society was structured
on the backs of slaves, their red clay hills colored by
Negro blood. There Judge Waring said:
Neither in South Carolina nor in any other State
in this union have American citizens as yet come
to a pass where a group of party officials, in
violation of basic American rights, can prescribe
oaths, methods and a code of thought for voters.
78 F. Supp. at 941.
As he put it
The one party system has reached its apex in this
State where the right is claimed not only to segre
gate according to race, to prescribe different
methods of gaining the right to vote, to forbid
participation in the organization for government
of the party, but to prescribe mental tests and
set up a code of thought which, far from being a
bill of rights, might rather be called a bill of
persecutions. Id.
"It would be interesting," he continued, to "discuss the
mental processes by which these decisions in the convention
were arrived at, but that is a psychological rather than a
legal problem." Id.
-51-
. . . [I]t becomes the duty of this court to say to
the Party officials that they will have to obey the
true intent of the law, which is so clear and ap
parent that even theyt1! must know what it is, and
that no excuse or evasion in the future will be
tolerated. Id. at 942.
A few years later Judge Waring like the pre-1832
southern abolitionists moved north. H :s rulings had
" . . . set off a tumult in South Carolina, his native
state, in the course of which he and his wife were ostra
cized by their white friends, threats were made against
1. The "they” of South Carolina are the families
of the Old South. For example Cole Blease's half-
brother served as a defense counsel for William P.
("Bill") Baskin, the State's Democratic Party Chairman.
During the Levy Court-Martial the following transpired:
LAW OFFICER: Let the record reflect that
there was a side-bar conference at which the
law officer was informed that one of the defense
counsel, Mr. McDonald, is a cousin of the court
president, Colonel Baskin.
LAW OFFICER: Colonel Baskin, it has come to
my attention that you are related to one of the
counsel in this case. I understand that you are
a cousin of Mr. McDonald, is that true?
PRESIDENT: Not to my knowledge. I'm not
aware of it. R.Vol.5, 867.
And, perhaps, the President of the Court also was
not aware of the fact that he was the cousin of W. P.
Baskin, the principal defendant in Brown v. Baskin, supra.
52
his life and his home was stoned," said the Times.1
Efforts were made to impeach him, but they failed in
the House of Representatives."
True to form "Rep. L. Mendel Rivers charged that
Judge Waring was a 'hypocrite ' and added: ' Unless he
is removed there will be bloodshed. He is now charged
with extracting a pound of flesh, because he has been
2ostracized by their society.'"
______ * ________
The law of Judge Waring and the heritage of Cole
B]ease met in wewberry County on the morning of July 17,
1965. As Howard Levy drove down College Street, past 1 2
1. "Judge J. Watlies [sic] Waring Dies; Opened
Polls to Negroes in South; Ruling Set Off Furor in
Native South Carolina in '47; Active in Civil Rights
Cause," New York Times, Jan. 12, 1968, p. 27, cols. 2-3.
2. Id. See also Key, supra, 628. Judge Waring,
. . . a Charlestonian of impeccable South Carolina
connections . . . found that the South Carolina
plan fell before the Constitution, and in his
opinion admonished his fellow South Carolinians
to mend their ways.
* * *
Candidates in the senatorial campaign at the
time talked of impeachment of Judge Waring . . . .
Id. at 631.
53
Rosemont Cemetary, past the plain large stone marker
"Coleman L. Blease, son of Henry H. and Mary Livingston
Blease— October 8, 1867, January 19, 1942" — searching
for those working to register Negro voters, he may
not have fullv recognized the risks of the history
he was entering— a history as binding in its inevitability
as it is harsh in its judgment.
But he was going there to help Negroes register to
vote. The problem was to him— as it was to Judge
Waring (and really is)--a simple matter of right and
wrong, an area where there are no shades of blue or gray,
but only black and white.
______ * ________
On January 17, 1968, " [fjewer than a dozen white
persons attended the funeral of retired Federal Judge
J. Waties Waring, who had said that his Charleston friends
had deserted him for ruling in favor of Negroes in civil
1rights cases ."
A column of 200 Negroes in a motorcade from a Negro
2Church attended the funeral. 1 2
1. A.P. Dispatch Charleston, S.C., Jan. 17, 1968.
2. Id.
- 54 -
T h e N e w b e r r y C o u n t y Line; T h e P l a c e W h e r e
The Court-Martial of Captain Levy Began
"[A] man's condemnation often comes unexpectedly from some
chance person at some odd time.” For Howard Levy the "bell1 11-*-
may have rung in Hew York at a meeting mentioned in the suppressed
portion of the G-2 Dossier. Or perhaps when he refused to join the
Officer's Club, or when he failed to fill out an Army form as
correctly as he had filled out the same form on a previous occa
sion.
The certainty is that his trial did not begin on May 10,
19b 7.
The near certainty is that a bell rang on his first Saturday
morning in South Carolina, at the very moment his automobile
crossed the Newberry County line.
1. Perhaps K's lawyer was correct in his observations consider
ing the system of justice in which K was tried. As he put it:
"You've read somewhere or other that a man's condemnation
often comes unexpectedly from some chance person at some
odd time. With many reservations that is certainly true,
but it is equally true that your panic disgusts me and ap
pears to betray a lack of the necessary confidence in me.
All that I said was to report a remark made by a Judge.
You know quite well that in these matters opinions differ
so much that the confusion is impenetrable. This Judge, for
instance, assumes that the proceedings begin at one point,
and I assume that they begin at another point. A difference
of opinion, nothing more. At a certain stage of the pro
ceedings there is an old tradition that a bell must be rung.
According to the Judge, that marks the beginning of the case.
I can't tell you now all the arguments against him, you
couldn't understand them, let it be sufficient for you that
there are many arguments against his view.” Kafka, supra, 245.
-55
Howard Levy entered the Town of Newberry searching for,
inquiring about and then finding first the "SCOPE House" and
next the County Court House.
His New York license plates and the Fort Jackson officer
identification stickers fixed his automobile and its driver in
1the community's sights. William J. Treanor testified:
I was in Newberry County . . . and one Saturday after
noon I was down at the courthouse with some people,
and Dr. Levy had read about our activities in the news
paper apparently, and he came up just to see what was
going on, and I spoke to him then, and I invited him
to come up and assist us in any way he felt he could,
during his off duty hours. R. Vol. 6, 1057.
He came up practically every night out [sic] on weekends, and
he was very helpful in that he went around from house
to house and explained to people who never had the op
portunity to vote before, the importance of their voting
in the upcoming city election and, you know, the power
of the ballot and the other things that we try to get
across to people who have not had any instruction before,
you know, just a better democracy. Id. at 1057-58. 1
1. Regarding the importance of an identifiable automobile
see W. B. Huie, Three Lives for Mississippi, passim (1965) . There
"[i]t was a blue Ford station wagon with a Hinds County (Jackson)
license plate . . . . [I]t was known to the terrorists and to the
sheriffs and highway patrolmen. A picture of it, with its li
cense number, [H 25 203, .id. at 155] had been circulated and many
were on the lookout for it." Id., at 119. " . . . [E]very trip
that they or any other COFO worker, made into Neshoba was a game
of hide-and-seek: like Americans sneaking into Nazi-occupied
France to contact the Resistance." JEd. at 120. When they
" . . . made their first trips into Neshoba County Rainey and
Price were informed. They had the picture of the Ford station
wagon which had been used at Canton. . . ." Id. at 135. "Finally
they all agreed that one way or another they'd get that goddam
Jew anyway. " JEd. at 139 .
-56-
*
By July 22, 1965, Miss Constance Gay had made her plans.
As she then wrote:
Just a line to let you know that my vacation is
over and I must return to my lob in California. I_
leave Newberry on Saturday, July 24th. A part-time
volunteer from Fort Jackson has joined the Chapter as
my replacement. Exh. C. 13.1(Emphasis in original)
On Monday July 26, 1965, a white volunteer was beaten in
Whitmire. See Exh. C. 6, 14-16, 17, 17A, 22, 58. Dr. Levy and
Mr. Treanor went to the jail in Whitmire where he was being
questioned by police. They went there to bring him "home."
"There was a mob of thirty-five or forty white men who
threatened us with physical violence and swore at us and in
sulted our racial backgrounds. . . .", Mr. Treanor said. Dr.
Levy " . . . refused to be intimidated. . . . [H]e was. . .
pretty courageous . . . because he certainly didn't have to
be there or anything." Id. at 1058. I
1. Four years later she said:
I did not meet and do not recall the name of the part-
time volunteer who, I was told, would become a part of our
group when I left. I do recall discussing with Bill
Treanor that he was to be a Dermatologist from Fort Jackson.
Prior to July 22, 1965, other people were working in Colum
bia and Newberry, whom I did not know personally. The
Dermatologist mentioned above may have been involved in
Voter Registration activities prior to July 22nd but since
to the best of my memory, I had not then as [sicl have not now
met him, I have no personal knowledge of this.
I am a Registered Social Worker in California, and went to
South Carolina as a volunteer in the Civil Rights Move
ment during my summer vacation. Exh. C. 30-31.
-57-
*
James B. West, Special Agent of the Counter Intelli
gence Corps resided in Prosperity, Newberry County, South Caro
lina from 1961 to the date of the trial. A. 327.
Asked if he recalled a voter registration project in Newberry
County in the summer of 1965 he responded "Not in Prosperity,
no. Not as far as I know. It could be. It could have been."
A. 329. He had no recollection of Dr. King's "people coming
1
into the county in 1965, in the summer." A.330. And he claimed
not to have known then of Dr. Levy's participation in the voter 1
1. A statement lacking truth assuming "walking around sense."
See, e_. q . , Exh. C. 19-20:
Following this incident [the second degree lynching], black
and white civil rights workers initiated a voter registra
tion drive in Newberry County. Most of the people were
not from Newberry County. It was named SCOPE and was the
target of conversation and outrage. The Klan distributed
literature about "stirring up trouble" and subsequently,
some civil rights workers were beaten up in Whitmire; and
in Winnsboro. During the entire summer of 1965, the main,
almost only, topic of conversation among the white citizen
ry, were these racial incidents. Everyone who had an I.Q.
above a moron’s level was aware that Newberry was having
its hottest summer.
As Marvin D. Wall put it:
My knowledge of the south, of Negro voter registration
activities in South Carolina and, for that matter, other
Deep South states, makes it inconceivable to me that a
white resident of a rural county such as Newberry, and a
town the size of Prosperity, whether or not he could read,
write or understand the English language, did not know in
the summer of 1965 that a Negro voter registration drive
was underway in his home county. In Newberry County, South
Carolina and in the towns of Newberry, Whitmire and Pros
perity such a drive was underway in the months of June,
July and August, 1965. Exh. C. 60.
[continued on following page]
-58-
drive, having that knowledge later from "only what I have read. 1
[continued from preceding page]
And see the statement of Robert Lee McFall, from Mr. West's home
town: "Everyone in this County knew what was going on that sum
mer— Blacks and white." Exh. C. 36.
See also, Newberry Development Board, supra : "The county is
reached by four daily newspapers (two from Columbia), eight
television channels, two local newspapers and a 250 Watt-radio
station." See, e .g ..Affidavit of .Marvin D. Wall, Exh. C., passim.
1. Cf., Huie, supra, 130.
. . . [V]irtually every white person in'Neshoba
County believed that . . . . [r]ace trouble was
the work of "atheists" and "Communists" and
political opportunists. Race trouble was the
result of unconstitutional decisions by a "Com
munis t-and-atheist-influenced" U.S. Supreme Court.
* * *
So any man who comes here from New York
saying he wants to solve the race problem is
at best a hypocrite and a fool. At worst he
is a Communist, an atheist, and an enemy of the
United States. Id- at 131 [cf. Levy].
* * *
Both Rainey and Price had once lived in
Canton, and Rainey had been a policeman there.
So both of them had been briefed by Canton of
ficers on what and whom "to look out for." id.
at 139.
-59-
Id. He did know the local "sheriff of the Police Department
[sic] Id.
1. He knew both the Sheriff, Exh. C . 22, and the Chief of
Police:
I was informed, and I believe that my information is
correct, that J. B. West was a personal friend of
Prosperity's police chief Dallas Willingham, Sr.;
that Willingham has a reputation for being a racist
extremist, and that it is believed that Willingham is
at least not adverse to the activities or beliefs of
the Ku Klux Klan. Exh. C. 23.
See also Exh. C. 36:
Although I have never been personally harassed by the
Ku Klux Klan, from my personal knowledge, I know that
they are numerous and active around Prosperity. I have
seen Klan meetings and specifically have seen a man
named Tom Perry, who had a market in Newberry, at a
Klan meeting. I am informed by someone whose reliability
I completely trust, that a Mr. James B. West, is a good
friend of and often visits Mr. Tom Perry at his market.
I make this statement upon my oath and before God that
that [sic] it is true and correct. I also make it know
ing the risks that are involved.
-60-
It was at this time that Mr. West began looking into Dr.
Levy. As he put it:
A. I didn't start into this until— Well, it would have been
the summer of 1965. You see, I was not assigned to this
until November of 1965, and then I didn t have I
could only do very limited work after being assigned
here until I got a badge and credentials, and it
takes some time, and prior to that there was other
ment [sic] that had worked on the thing. I did not
myself.
Q. So in the summer of 1965—
A. Somewhere. I don't know. A. 603-04.
And as Mr. West put it:
Q. You don't keep any notes. [He did take handwritten
notes (A. 331, 670)]
A. No, our notes are destroyed in our office. We have
only a field office. My office is in Atlanta and
they are destroyed after thirty days after the report
goes in after they see them here.
Q. Where did you get that information that is on here,
on these notes you are referring to?
A. I got the information from my agent's report. I
have burned copies of them now. A. 331- 32.
But he later testified "I have all my reports.' A. 333.
A "Bell" Rings
Mr. West did not personally move against Dr. Levy until
October 2, 1966. On that day he went to the office of Dr. Levy's
61
commanding officer, Col. Henry Franklin Fancy."1" Col. Fancy
Dossier statement relates:
I was not informed or aware of any difficulties
encountered by Special Forces medical personnel in the
Dermatology Section until the week of 2 October
1966. After making numerous inquiries, I have
discovered that Special Forces medical personnel,
in some instances, have not received any training
in the Dermatology Section, and, in other
instances, there has been a definite lack of
training being given to Special Forces personnel
assigned to Captain Levy's section for instruction.
Captain Levy has never made any political state
ments or voiced his political opinions in my
presence, and, until last week [West's visit],
I had no knowledge of any anti-Special Forces or
Viet Nam war statements made by him. I have never
admonished Captain Levy or levied any disciplinary
or administrative action against him. END OF
STATEMENT A. 400.
1. Regarding Col. Fancy perhaps more than Special Agent
West, see Kafka, supra, 9-10:
"We are humble subordinates who can scarcely
find our way through a legal document and have
nothing to do with your case except to stand
guard over you for ten hours a day and draw
our pay for it. That's all we are, but we're
quite capable of grasping the fact that the
high authorities we serve, before they would
order such an arrest as this, must be quite
well informed about the reasors for the arrest
and the person of the prisoner. There can be
no mistake about that. Our officials, so far
as I know them, and I know only the lowest
grades among them, never go hunting for crime
in the populace, but, as the Law decrees, are
drawn toward the guilty and must then send out
us warders. That is the Law. How could there
be a mistake in that?" "I don't know this
Law," said K. "All the worse for you," replied
the warder. "And it probably exists nowhere
but in your own head," said K.; he wanted in
some way to enter into the thoughts of the
warders and twist them to his own advantage
or else try to acclimatize himself to them.
But the warder merely said in a discouraging
"You'll come up against it yet.voice,
Mr. West from Prosperity was born in central Florida. At
the Article 32 investigation the following transpired.
Q. Did you grow up down there?
• r nA. I grew up in South Carolina.
Q. Did you make any investigation of Capt. Levy
relating to his activities on affairs around South
Carolina?
Col. Severin: Do you mean in the city as opposed
to out here in the military?
Q. (By Mr. Morgan) Non-military, yes.
A. I did not myself.
Q. Do you know whether or not someone else did?
A. I cannot answer that. I had better delay answer
ing that until I can see, because this possibly could
be a security matter. I do not have that. I do not
know that.
Q. Well, now, I am not asking you whether or not
someone else did at this point. I am asking you^
whether or not you know whether or not someone did. 1
1. He has been described by a white southerner as one
of the worst bigots' he has ever known." Exh. C 24. For
a white South Carolinian's view of the problem of prejudice
see Judge Waring's in the precursor of Brown:
the evils of segregation and color prejudice come
from*early training. And from . . . testimony as well as
from common experience and knowledge and from our own
reasoning, we must unavoidably come to the conclusion
that racial prejudice is something that is acquired and that
that acquiring is in early childhood. When do we get
out first ideas of religion, nationality and the other
basic ideologies? The vast number of individuals follow
religious and political groups because of their child
hood training. And it is difficult and nearly impossible
[continued on following page]
63 -
A. Well, I will have to decline to answer that.
Q. As to even whether you have knowledge of
whether someone else did?
A. Right.
Mr. Morgan: At this point we request that the
witness be instructed to answer the question.
Capt. Shusterman: Sir, I think this relates to
certain matters that provide the basis for the
classification that we have in the dossier, and
apparently there are certain operational tech
niques and operations by certain other agencies
that may be classified . . . A. 571-72.
Again, over fifth and sixth amendment contentions, Mr.
West was allowed to remain silent. A. 572-73.
Indeed, although Mr. West knew the name of his immediate
superior when asked if he was an "Army officer" he typically
responded, "Sir, I cannot answer that. I am not at liberty
myself to answer that."^ A. 557.
[continued from preceding page]
to change and eradicate these early prejudices, however
strong may be the appeal to reason. There is absolutely
no reasonable explanation for racial prejudice. It is
all caused by unreasoning emotional reactions and these
are gained in early childhood. Let the little child's
mind be poisoned by prejudice of this kind and it is
practically impossible to ever remove these impressions
however many years he may have of teaching by philosophers,
religious leaders or patriotic citizens. Briggs v.
Elliot, 98 F. Supp. 527, 547 (E.D.S.C. 1951), (Waring, J.
dissenting),vacated and remanded, 342 U.S. 350 (1952),
rev'd , 347 U.S. 483 (1954).
1. He did recount his duties ". . .to investigate
[continued on following page]
-64-
This was"the first confrontation" Col Fancy "had ever
had with a person . . . who had, in effect, been accused of
being or was suspected of being a Communist." A. 516. It
was a "rather shocking occurrence." Id.
At that first meeting Mr. West ". . . said that Capt.
Levy had attended certain meetings in New York City and that
the apparent -organization behind these meetings were [sic]
suspect in some way." A. 514-15. "[H]e said they possibly
had some association with Communism. This was the suspicion,
of course . . . ." A. 515
And, in a way, Mr. West did not directly raise the
question of Dr. Levy's civil rights and voter registration
activities at that time:
Other than the statement that Mr. West made that
there was some indication that Capt. Levy was dis
cussing with negroes [sic] their duty performance
in other areas. . . . and that Capt. Levy was pos
sibly talking to them on certain rather unpatriotic
terms. This is the impression that I recall having
when he told me this. A. 518, 519.
[continued from preceding page]
treason, sabotage, disloyalty, disaffection, and we do not
handle anything which would be criminal in nature, such as
murderers or robbery." A. 566. And his professed view of
Lis fife's work: "Well, I would not make a statement, even
if I thought it, of course, it is not for me to think or to
know." A. 582. Cf. Kafka, supra at 26:
You are under arrest, certainly, but not as a thief
is under arrest. If one's arrested as a thief, that s
a bad business, but as for this arrest It gives me
the feeling of something very learned, forgive me if
what I say is stupid, it gives me the feeling of some-
thing learned which I don1t understand, but which there
is no need to understand."
-65-
I know this is very general, but, in other words, what
Mr. West told me was to the effect that Capt. Levy had
been having some dealings with negro [sic] personnel,
which dealings and discussions were of an unpatriotic
nature, and this was his investigation and I felt no
requirement at that time to go into great detail about
this. A . 519-20.
But Special Agent West denied providing Col. Fancy any
information. "I do not give any information I receive," he
said. "I do not divulge the sources in talking to him at
that time or anytime."1
He did acknowledge asking " . . . questions
and anyone intelligent such as Col. Fancy, can deduct from
the questions I ask what I am getting at. I ask what I am
getting at insofar as the questions I am asking. Insofar as
telling the Colonel that he is this, he is that, or who said
he said this, I do not do that." A. 577.
1. Cf. Kafka, supra, 86:
"Don't take his laughter too much to heart," she said to
K., who had sunk again into vacant melancholy and ap
parently expected no explanation. "This gentleman may
I introduce you?" . . . "this gentleman, then, represents our
Information Bureau. He gives clients all the information
they need, and as our procedure is not very well known
among the populace, a great deal of information is asked
for. He has an answer to every question, if you ever
feel like it you can try him out. But that isn't his
only claim to distinction, he has another, the smartness
of his clothes.
-66-
M r . West seemed somewhat reticent in his revelations
since in his judgment, his "first words" to witness Landing
[a fellow southerner who worked in the Dermatology clinic]
". . . were a part of technique which I am not at liberty to
disclose." A. 574, see also e.g., West testimony, A. 564-621.
Indeed, he did not present a classic study of candor.
For example:
Q. But you cannot tell me the kinds of questions
you asked?
A. I cannot give you the techniques of the questions.
Q. I don't want to know the technique. I just want
some examples of questions.
A. That would be giving technique.
Q. I could ask anybody you could ask questions of?
A. That is right.
Q. I could ask what questions you asked of them and
if they recall your technique is known to anybody?
A. They can, but I cannot. A. 583.
* * *
Q. Let's go to character. Let's start with character.
What do you ask a man when you want to determine a
man's character?
-67-
A. You ask him questions concerning character.
Q. What are they? Do you just walk in and say
what is his character?
A. No, you would not use that.
Q. Well, what do you ask? To be specific, what
did you ask Sgt. Landing?
A. Could I see that statement of Sgt. Landing?
Q. Sure.
A. We have got a slim delineation between technique
and questions. That is what I am on guard [sic],
as you can well see. I am not reluctant to answer
from my personal standpoint.. I am not allowed to
divulge technique in an investigation.
However, the questions I have asked, that I
have received here, I asked those questions and I
got answers, and, of course, that led to other
questions. A. 584.
But his "technique" became apparent with respect to
Sgt. Landing. For example:
Q. Now, I would like to talk to you about your
interview, then, of Sgt. Landing.
Did he have the same knowledge and information
from your questions that Col. Fancy had?
A. I don't think— I am sure he would not . . . . (A. 578-79)
The Agent's Import reflects Dr. Levy's racial views and
some fairly inflammatory matter for southern readers. For
example Mr. West reported:
Source considered SUBJECT to be un-American and
disloyal because of HIS statements.
Source has informed the Operations and Training
Department of SUBJECT'S vehement opposition to
-68-
training Special Forces students, and he informed
the former Adjutant and S-2, Captain Walter C. Rose,
Medical Service Corps, who is now stationed in
Hawaii. Source was informed by Captain Rose to keep
quiet and that he would be contacted by Counterin
telligence personnel.
On numerous occasions when SUBJECT has Negro military
patients, HE will close the door to HIS office and
keep them from 30 minutes to one and one-half hours
talking to them. Source on a number of occasions
had to enter the office to get medical supplies and
medicines and had overheard SUBJECT discussing the
Viet Nam war with the patients, and advising them that
they should refuse to go to Viet Nam and to fight for
the US because they had nothing to fight for and had
been denied their freedom in the US. SUBJECT also ad
vised them that they were being sacrificed by the US
Army. Source did not remember the dates when these
statements were made or the name of the patients HE
advised to refuse to fight in Viet Nam. Source over
heard SUBJECT telling Specialist Four (E-4) James B.
Jackson, Company B, USATC, Fort Jackson, a Negro pa
tient at the time, that he had nothing to fight for
in Viet Nam because he had no freedom in the US, and
that he would be sacrificed by the US Army in Viet Nam.
Source did not remember if SUBJECT advised Jackson to
refuse to go to Viet Nam and to refuse to fight in
Viet Nam.
SUBJECT told source that over fifty percent of the
soldiers in Viet Nam were Negro, which Source refuted
because he had returned from Viet Nam in January, 1966.
Source doubted SUBJECT'S loyalty to the US, and he
kept as far away from HIM as possible. SUBJECT had
also stated on several occasions that HE was an atheist,
and that HE would refuse to go to Viet Nam.
On several occasions after having treated Negro female
patients, SUBJECT had stated that HE would like to
"date" a Negro, especially the attractive patients. On
one occasion, SUBJECT asked a Negro employee at the
hospital the identity of one of HIS patients and HE
was told that she was the wife of a Negro soldier who
was overseas. After SUBJECT expressed HIS desire to
"date" her, the employee told HIM that it could be ar
ranged; however, source never knew if this ever took
place.
-69-
On 12 October 1966, Source executed a sworn state
ment (EXHIBIT) to substantiate the information HE
had given. A. 426-27.
The statement he prepared for Sgt. Landing's October 12,
1966, signature contained similar, if somewhat more restrained
matter relating to the dating of Negroes:
I have attempted to teach Special Forces medical
personnel in every way I knew how, and, on one oc
casion, when I was discovered by Captain Levy in
structing Special Forces medical personnel how to
give a skin test to determine if a patient was al
lergic to penicillin in my office behind closed
doors, Levy severely reprimanded me. To my know
ledge, skin testing is one of the items Special
Forces medical personnel are to be instructed in.
On a number of occasions, dates and names of indi
viduals not remembered, Captain Levy takes Negro
military patients in his office and keep [sic] the pa
tients behind closed doors from 30 minutes to one
and one-half hours. I have heard him discussing
the Viet Nam war with these patients when I had to
enter the office for medical supplies and/or medical items.
I have heard him advising these patients that they should
refuse to go to Viet Nam, and, if sent, they should refuse
to fight for the US in Viet Nam, because they were
denied their freedom in the US. Levy made state
ments to the effect that the US is wrong in being
involved in the Viet Nam war, and that the Negro
soldiers were being sacrificed by the US Army.
Levy stated on one occasion that over 50% of the
troops in Viet Nam were Negro, and that they were
taking the greatest percent of casualties. I have
heard Levy express a desire to "date" Negro female
patients after treating attractive Negro patients
in his office, but I never knew him to date one.
Levy has stated on occasions that he is an atheist,
and that he would refuse to go to Viet Nam if ordered.
END OF STATEMENT A. 429-30.
The "technique" for obtaining these statements begins to
become more clear from Landing's testimony:
A. I believe Mr. West wanted to know if there had
-70
been any remarks made like this.
Q. About dating negroes [sic]?
A. Or to this effect, I believe, sir.
Q. He was generally interested in Dr. Levy's thoughts
about Negroes in general?
A. He asked a lot of questions about them, yes, sir.
A . 660.
In Sgt. Landing, Mr. West had a fine subject for the
employment of his "technique."1
1. For example:
A. I have heard him make the statement that if he was
a nigger he would not go to Viet Nam and fight.
Mr. Morgan: Let the record show that the pronunciation
of the last word was n-i-g-g-e-r.
The Witness: I meant negro [sic]. You misunderstood.
Capt. Shusterman: I believe a more accurate way would
be n-i-g-g-r-a.
Mr. Morgan: May I interrupt one moment and ask Capt.
Shusterman if that is the way he heard that word, actually?
Capt. Shusterman: Yes, sir, that is the way I heard it.
Mr. Morgan: I would like to call on the Reporter for
the Government and ask her how she heard it.
The Reporter: I heard N-i—g-g-r-a, like he said, n—i-g-r-a.
Mr. Morgan: May I ask the Reporter with me how he
heard it?
Mr. Rotruck: I heard it n-i-g—g—e-r.
Mr. Morgan: I would also like the record to show that
the Reporter here is transcribing by phonetic system,
that the Reporter, Mr. Rotruck, is transcribing by
phonetic system of transcription. A. 664.
-71-
Sgt. Landing, white, was born in South Georgia, Jenkins
County (Millin, the County Seat) in 1924. A. 642.
That Dr. Levy's statement about dating Negro patients
stood out in his mind was for some reason about which "I
cannot tell you why, because I don't know why." A. 658.
72
Regarding religion:
Q. Now, what question did Mr. West ask you
that you responded to with an answer that
Dr. Levy had said he was an atheist?
A. He asked me had I heard him say anything
of this type or something relative to
this. A. 658-59. 1
Sgt. Landing had no "knowledge" that Negroes were
discriminated against in this country. A. 667.
And about the entire subject of Civil Rights Sgt.
Landing, doesn't:
. . . discuss this period with anyone.
. . . I do not discuss these things.
. . . I don't discuss this sort of thing.
. . . I don't discuss this sort of thing.
. . . I do not discuss this type of thing with him
[Novak] or anyone else. A. 818-21.
1. In Newberry County, there are " . . . houses
of worship for all sects.
"Religion is an integral part of family life in
Newberry County and is exemplified in sanctuaries both
large and small.
"There is a place for all in our churches." Newberry
County Development Board, Liveability, supra, 4. Except, of
course " . . . for those of the Jewish faith [facilities for]
which are located in Columbia . . . " See Newberry
South Carolina , a publication of the State Development
Board, Columbia, South Carolina (undated)
West also obtained a racial statement from Spec. Novak
(and by now the "technique" is transparent):
I have heard Captain Levy discussing the Viet Nam war
with Negro military patients in his office, and, on
several occasions, time, date and name of patients
not remembered, I have heard Captain Levy tell them
that they should refuse to go to Viet Nam, and refuse
to fight for the US in Viec Nam because they were dis
criminated against in the US, and that they had been
denied their freedom. A.411.
In his agent's report Mr. West stated:
He has heard LEVY discussing the Viet Nam war with
Negro military patients in HIS office, and, on
several occasions, time, date and name of patients
not remembered, Source has heard LEVY tell them
that they should refuse to go to Viet Nam, and refuse
to fight for the tJS in Viet Nam because they were
discriminated against in the US, and that they had
been denied their freedom. LEVY has made numerous
statements expressing HIS opposition to the US being
involved in Viet Nam and has, on occasion, attempted
to get Source engaged in a discussion about Viet Nam;
however, Source has just ignored HIS remarks and re
fused to discuss the matter with HIM, because HE is
Source's superior and he does not want to be involved
in any trouble.
In fact, though, Spec. Novak testified that
17,500 patient visits he had heard Dr. Levy talk
Viet Nam ". . . to 2 negro [sic] patients on one
apiece . . . ." A . 711.
out of
about
occasion
7 4
Of course, Spec. Novak had also heard Dr. Levy discuss
"registration and voting," "free speech", "[rjights under
the Constitution of the United States". A. 699.
And, according to Spec. Novak, Sgt. Landing did
"discuss this type of thing". And— ,
q .. [By Mr. Morgan] When he [Landing] was talking he
was talking about negroes [sic] wasn't he?
A. Well, yes, sir, when he was talking he was
talking about negroes fsic1 and any racial
situation
Q. Do you remember what he said?
A. What he said about it, sir?
Q. Yes
A. No, not pro or con, we were just discussing
rights and things like that.
Q. He was not for rights, was he?
A. No, sir, he never indicated that to me. A. 833-34.
Dr. Levy was not exactly blessed with pro-civil rights
assistants. Landing became his Non-Commissioned Officer In
Charge in January, 1966. He remained at the Hospital after
Dr. Levy had gone to jail. His sole predecessor, a Sgt. Cain
7 5
had a somewhat similar approach to the "Negro question."
As he put it:
In my opinion, Levy took stands against everything
the US was for. In my opinion, he expressed very
leftist ideas and viewpoints. Levy spoke favorable
about those persons who burned their draft cards,
feeling that this was their right and they should
not be prosecuted for this. I would not consider
Levy a loyal .American, because of his statements
condemning US policies. On one occasion, I told
him that I did not consider him very loyal to the
US and he became quite angry. Levy informed me
that he had attended several meetings of the Ku
Klux Klan, just to find out what they were all
about. Levy was quite pro-Negro, took the side
of the Negroes when discussing Civil Rights matters,
and appeared to think more of the Negroid [sic] race
than the hi te race. He often visited a young
Negro Private who was confined in the Post Stockade,
Fort Jackson, for failing to obey two direct orders
from an officer, although I am unaware just what
their association together was! Levy never made
any outward or open statements of disaffection with
the US. I know of no organizations with which he
is affiliated. END OF STATEMENT. A.468. 1
1. The Special Agent working with Mr. West appar
ently made a slight mistake here. The phrase "He often
visited a young Negro Private who was confined in the Post
--tockade, Fort Jackson, for failing to obey two direct orders
from an officer . . . (A.468.) read differently in his
Agent's Report. In his Agent's Report that phrase began
"Levy was often visited by a young Negro Private . . . ."
A.466. And, indeed he was visited as a physician by a
Pfc. Cordy, who was confined in the stockade not for dis
obeying orders but, instead, for going AWOL. Cordy was
almost a prosecution exhibit regarding Levy's promotion of
"disloyalty and disaffection" but since he went AWOL twice
(before he met Levy, then went to Viet Nam and returned wounded
he could hardly have disaffected because of Dr. Levy's words
See R.Vol. 4,5,736-54). Another interesting feature of
this statement, besides its error in favor of the prose
cution, is that unlike most of the other statements, it
was witnessed by James B. West himself.
As that Special Agent put it "Source [Cain] declined
to recommend LEVY for a position of trust and responsibili
ty with the US Government because he does not consider
SUBJECT a loyal American citizen for the reasons stated
above . " A . 467 .
- 7 6 -
THE PROSECUTION OF DR. LEVY
WAS BARRED BY THE PRE-TRIAL ACTIONS
OF THE GOVERNMENT'S AGENTS
The Court-Martial of Dr. Levy was instigated and brought
about by those seeking to intimidate him for his activities in
Negro voter registration (and to discourage such registration)
and related civil rights activities. Consequently, the pro
ceedings were in violation of applicable civil rights statutes
and the first, fourth, fifth, sixth, fourteenth and fifteenth
amendments.
Dr. Levy's participation in the voter registration drive
in Newberry County resulted directly in Special Agent West's
racially motivated and biased investigation; in his confronta
tion with Col. Fancy; in the issuance of the order Dr. Levy
would not obey; in the preparation of Article 15 UCMJ non
judicial punishment proceedings.
The G-2 Dossier prepared by Special Agent West and his
associates and the subsequent upgrading of charges by Col.
Fancy on the basis of that dossier all stem from the forays
into Newberry County by the young Jewish doctor from Brooklyn.
The prosecution and incarceration of Captain Levy were and
remain in clear violation of the enumerated provi
sions of the Constitution of the United States. They
also result from violations of federal civil and perhaps
- 77-
criminal law designed to apply to the segregationists of the
Prosperitys of the South who would use the processes of any
instruments of any government to keep the Negro down and change
out.
The Civil Rights Act of 1957 made it unlawful for any per
son . .to intimidate, threaten, or coerce any other person
for the purpose of interfering with the right of such other person
to vote or to vote as he may choose. . . ." 42 U.S.C. § 1971(b).
But the ingenuity of the South and the brutality of its
bully-boys, from law-men to order-men, rendered the 1957 Act
less than a success.
The Voting Rights Act of 1965, 42 U.S.C. §§ 1973-1973p,
born in the blood bath at Selma's Edmund Pettus Bridge,
became effective August 6, 1965. Everyone knew it was coming.
Mr. West had already begun his "investigation.nl 1
1. "No person," said the 1965 Act, including, apparently
Counter-Intelligence Corps, Special Agents and even Colonels
and Generals and other South Carolinians "whether acting under
color of law or otherwise, shall intimidate, threaten, or
coerce or attempt to intimidate, threaten or coerce any person
for urging or aiding any person to vote or attempt to vote. . . .
42 U.S.C. § 1973i(b). And, "[w]hoever shall deprive or attempt
to deprive any person [of the preceding guaranteed right] . . .
shall be fined not more than $5000, or imprisoned more than five
years, or both." (emphasis added) 42 U.S.C. i 1973j(a).
7 8 -
Within three years, experience indicated the necessity for
more stringent criminal sanctions in the area of civil rights
and Congress responded with the Civil Rights Act of 1968, 18
U.S.C. Sec. 245. "The areas of protected activity include . . .
voting and activities relating to voting . . . " S v Rep. No. 721,
90th Cona., 2d Sess. (1968), 1968 U.S. Code Cong. &' Ad. News 1837, 1838.
The'bill would protect persons who urge or aid
participation in the protected activities, as well
as those who engage in speech or peaceful assembly
opposing denial of the opportunity to so parti-
pate. Id. at 1839.
Ironically, 42 U.S.C. Sec. 1973m provides that the Attor
ney General and Secretary of Defense " . . . shall make a full and com
plete study to determine whether, under the laws or practices_
of any State or States, there are preconditions to voting, which
might tend to result in discrimination against citizens serving
in the Armed Forces . . . seeking to vote." (emphasis added)
The possibility of an Army officer seeking to aid civilians
seeking the right to vote was no doubt inconceivable; but surely
not so inconceivable as the unbridled use of Army processes to
make certain that the only United States Army officer to do so
would never do so again.
The legislation was needed because "[i]n some places . . .
local officials have been unable or unwilling to solve and prose-
- 7 9 -
cute crimes of racial violence or to obtain convictions in such
cases— even where the facts seemed to warrant. S. Rsp•_No.— 721
supra, at 1840.1
"The present bill," said the Committee, "reaches private
interference as well as interference by State officials." IQ«.
at 1843.
The Fifth Circuit possessing the knowledge through years
of dealing with incipient insurrection, violence, death and
surreptitious violations of the rights of Negroes and their
allies deprived the Sheriff of Dallas County, (Selma), Alabama
of the fruits of his persecution in United States v. McLeod,
385 F .2d 734 (5th Cir. 1967). There, in 1963 (long before the
1965 and 1968 Acts) local law enforcement officials were sta
tioned "in and around the various mass meetings." at 737.
1. Of course, South Carolina's Senator Thurmond (accom
panied by Senator Eastland) expressed himself on the reasons
why this Act, too, should have been defeated, noting, maybe
accurately,
. that it is another in a long series of pro
posed legislation which is aimed and directed
solely and exclusively at the people of a few
states in the Deep South. This is another bill
that treats the States of the South and their
people as "conquered provinces."
The Voting Rights Act of 1965, on its face, was
contrived, so as to apply only to the "bad states."
Id. at 1851.
8 0
As is the practice:
These officers made notes during the meetings,
took down the license numbers of the cars in
the area, and spoke with each other and with
the sheriff's office by portable two-way
radio. Id. (emphasis added).
Relying on the 1957 act, 42 U.S.C. Sec. 1971(b), id., 739-40,
the Court considering the harassment of those at the meetings
(including 29 arrests for operating motor vehicles "with improper
license-plate lights," id. at 738) found "[i]t difficult to imagine
anything short of physical violence which would have a more chill
ing effect on a voter registration drive than the pattern of
baseless arrests and prosecutions revealed in the record." Id.
at 741.
Referring to the broad language of United States v. Leflore,
371 F.2d 368, 371 (1967) the Court said it could not ". . .be
taken to mean that no arrest of [even] a guilty person could
violate section 1971 (b)."
But the fact that the person is guilty does
not end the inquiry. Police may arrest guilty
people for reasons other than their guilt— for
example, for the reason that they are Negroes
who want to register and vote.
8 1
In the Leflore sort of case, then, the focus
of inquiry is on the real purpose of the arrests,
and the inference to be drawn depends upon all
of the surrounding facts.
Here, on the other hand, every indication is
that the police made arrests not to redress
violations of the law, but simply to harass
voting workers. United States v. McLeod, supra,
385 F .2d at 744.
Then considering criteria each of which related to a history
of southern racial discrimination, the Fifth Circuit required
the return of all fines; the expunging of all records of arrests
and convictions; and the reimbursement of all costs and reason
able attorney's fees. id. at 750.
Here the reasoning and the facts of McLeod apply.
But Dr. Levy was and is locked up.
Special Agent West lives on in Prosperity investigating
others in the Army and, perhaps, elsewhere, chatting with
his good friend, Police Chief Willingham and occasionally
remembering that "pinko" Jew doctor in jail.
82
Not merely McLeod but additionally Lenske v. United States,
383 F .2d 20 (9th Cir. 1967) requires that the conviction
be set aside.
"The tragedy is that someone might follow the case [Lenske]
hereafter," said Chief Judge Chambers, dissenting. "I hope it
can be treated as one of those 'totality of circumstances' cases.
A district court will not have another case exactly like this.
Thus, it can find a different totality of circumstances." Lenske
v. United States, supra, at 30.
But the real tragedy is that an Army Special Agent has em
ployed Lenske techniques to get Dr. Levy. An even greater
tragedy would occur if "someone might [not] follow" Lenske,.
For by any standard, especially that of a "totality of cir
cumstances" L e w rests not merely on all fours with Lenske but on
all"eights" or "sixteens" or on any other geometric progression
required. For here Lenske is comoounded not merely by the
malice of Special Agent West but by the j_right_ened meanderings
of Captain Levy's Commanding Officer and accuser, Colonel Henry
Franklin Fancy.
To a degree the malice of the Special. Agent is understandable.
Born and reared in a social system structured on slavery, he like
most white and many black southerners was tightly bound by
environmentally required constrictions. His malice may have
emanated from fear.'"
T ~ . See, e.g., E. Sutherland, Letters from Mississippi 160
(1965), and passim:
The whites were afraid of each other,_afraid of the
Negroes, afraid of the volunteers.
. They are scared. They are terribly afraid that
the Negroes will treat them the way they have treated Negroes
if the balance of power shifts . . . . (emphasis and ellipses
in original). -83-
But Colonel Fancy, unlike Dr. Levy and, to a degree, at
least, Special Agent West, had some choice in the selection of
the structured, disciplined, narrow life he chose to lead. He
had decided voluntarily to become a career officer in the Army
of the United States.^
In Lenske,a net-worth tax prosecution of an Oregon attorney,
". . . the Special Agent's conduct was not only irregular but was
furtive and surreptitious, and far beneath the standard of what
one expects from a public official." 383 F .2d at 22.
The Government turned that Special Agent loose on Mr.
Lenske. As Circuit Judge Madden noted in his additional separate
opinion:
When the Special Agent's report came in to his superiors,
with his naive disclosure . . . that he placed high
among the reasons why Lenske should be criminally prose
cuted . . . Lenske's being a left-wing lawyer and having
unorthodox political and social ideas, his superiors
should have immediately removed him from the case and
discarded every judgment which was contained in his recom
mendation. The Special Agent had given his superiors
express notice that he was confused with regard to the
basic ideals of his government. >• J Discarding two and one-
half years of dedicated endeavor of the Special Agent
would have been a small price to pay to get the Government
and its awesome taxing authority back on the path of fair
ness and decency. 383 F .2d at 28.
About the Special Agent's mistakes in Lenske., Judge
’ T. Regarding today's career officer see D. M. Shoup,
The New American Militarism, The Atlantic, April, 1969, at 51.
2. "But [here] considering the senselessness of the whole,
how is it possible for the higher ranks to prevent gross cor
ruption in their agents? It is impossible." Kafka, supra, 57-58.
- 8 4 -
Madden said:
Whether that corrosive element was that he had views dif
fering from Lenske's about the Lawyers' Guild, or about
"Cuba, Laos, China, etc."or about other political and
social problems, or was something else that we cannot
even imagine, the consequence is that no confidence what
ever should be placed in the Special Agent's conclusions
in this case. Id.^
Like Lenske, in Levy " [i]t would tax the imagination to
conjure up a more frightening and frustrating situation than
that in which his government has placed this citizen." 383
F .2d at 22. In Lenske:
The trial judge said to government counsel:
The Government is the strongest litigant in the world.
You have got the F.B.I. and all the government agencies
available to you. You represent the strongest client
in the world. Id.
But Dr. Levy faced an even more powerful litigant-~the Army
of the United States. For, in addition to its other powers the
Army controlled the court and it did so without the interference of
the non-military citizenry. To have the investigative power
and the accuser is one thing. To possess the very system in
which the matter is to be adjudicated is quite another.
In Lenske what was " . . . wrong, in addition to its being
contrary to the law laid down by the Supreme Court, is uha i. such
a process is outrageously unfair.” 383 F .2d at 24. But, there the tax
payer at least had the right to see the report and cross-examine the
IT Here, the "final conclusion" presumably rested with
Colonel Fancy who based his total judgment on a review of the
G-2 Dossier. And the G-2 Dossier was compiled in large part by
Special Agent West with the collaboration of his Counter-Intel
ligence counterparts.
- 8 5 -
Special Agent as to its accuracy. Here Levy has not even seen
most of the G-2 Dossier— the very report on which the charges
were based. He had no report from which to cross-examine.
In Lenske
. . . the Government so arranged matters that there would
be available transcripts by which neutral witnesses could
be held to their Grand Jury testimony . . . while as to
government partisan witnesses . . . who presented no
danger of their being swayed from their recitals, there
would be no writing which the taxpayer might use for
cross examination. It was a clever scheme but one-sided
and unfair . . . . 383 F.2d at 24-25.
Here, there was no "clever scheme." The witnesses or the
Government simply destroyed all notes.
Here:
1. Special Forces critique statements were not retained,
A. 737;
2. Special Agent West's handwritten notes were " . . .
destroyed in our [the Counter-Intelligence Corps] office."
331; and
3. Regarding Colonel Fancy:
Q. You didn't remember on January 13, 1967 what he
said, did you?
A. [Col. Fancy] No, I did not.
Q. But you now remember?
A. Yes, sir.
Q. You tend to remember things later better than
earlier?
A. No, I reviewed some notes that I had after the
Article 32.
-86-
Q. Do you have those notes?
A. I don't.
Q. Did you destroy them or have them in your pos
session some place?
A. They are all destroyed. A. 144.
So with no Dossier available and the important witnesses
notes destroyed, Dr. Levy sought the replies to approximately
450 Government questionnaires. These he was denied. Cf.
Lenske:
In the Special Agent's two and one-half years of investi
gation, he had interviewed some 500, perhaps as many as
1500 persons. If any of those persons made statements
which would have been helpful to Lenske, the Government's
attitude was that Lenske had no right to know that, unless
he found out by his own effort and at his own expense.
383 F .2d at 22-23.
Cf., the position of the Government here:
The motion of defense to require trial counsel to furnish
the defense with the names of individuals contacted by
trial counsel who did not answer the questionnaire and
who were not called as prosecution witnesses is without
merit and constitutes an attempt on the part of the defense
to require the Government to discover its evidence and to
prepare its case. There was no contention that the Govern
ment was withholding evidence pertinent to the defense.L
The defense was afforded the same opportunity as the Govern
ment to discover the prior patients attended by the accused
in the dermatology clinic and could have conducted whatever
investigation or interrogation of such persons as they saw
fit. R. Vol. 19, 79. See also, id. at 78-79. 1
1. A patent misstatement of fact. See the Appendix,
passim, and the Record, passim, the defense repeatedly con
tending that the Army was withholding relevant matter from
counsel and refusing to produce witnesses as well as documents
including these.
- 8 7 -
Regarding the vitality of Lenske see the note, 383 F .2d at
2 7 :
The foregoing opinion was written after the
government's petition for rehearing was filed and
after appellant responded thereto. The prior opinion
of October 5, 1966, not published in the Federal
Reporter, is withdrawn.
The petition for rehearing and the suggestion of a.
rehearing en banc are denied. Judge Chambers would grant
the petition and the suggestion for rehearing en banc.
No further petition for rehearing is desired,
(emphasis added)
Additionally,
1. The Government did not appeal;
2. The original opinion was even more harsh and explicit
than that of the court or the additional separate opinion of
Judge Madden, see 18 Am. Fed. Tax R. 5815 (9th Cir. 1966); and,
3. As Judge Madden said—
I am authorized by Judge Hamley to say that he
shares my opinion of the gross impropriety of the
motivation of the Government's investigation of this
case. The Chief Judge and Judge Hamley are of the
opinion that the state of the record in this case
does not permit the Court to make use of the Special
Agent's report. With deference, I think my associates
are in error in this regard. 383 F.2d at 28-29.
Judge Chambers in his dissent concluded that "[i]n time,
other circuits will assign a rightful place to the majority
opinion, and this court will recede from it." 383 F.2d at 30.
It is hoped that other courts do assign a "rightful place"
to Lenske.
If this court does so, Dr. Levy will be freed.
- 8 8 -
The prosecution of Dr. Levy was a scandal of the
first magnitude, a_ witch-hunt, a crusade to rid
our society of unorthodox thinkers by using Federal
military law to put them in the penitentiary. No
court may be an accessory to this project.
To Colonel Fancy Howard Levy was a "pinko." . .he was a
good medical doctor and did good professional work, but . . . he
was a pinko." A. 726.
Colonel Fancy was cut from the military khaki which
produces " . . . technicians and disciples, not philosophers."^
When the Colonel Fancys " . . . can identify 'communist
aggression' . . . the matter then becomes of direct concern to
the armed forces. Aggressors are the enemy in war games, the
'bad guys', the 'Reds'".^
Dr. Levy was a "pinko", a shade lighter then the "real enemy" -
until that day in early October, 1966, when Special Agent West
confronted Col. Fancy. * I
1. Shoup, supra, 53.
2. Id. at 54. see also Kafka, supra, 19-20 and imagine the comin
confrontation of Levy and Fancy. Levy would soon feel like K. conver
sing with the Inspector:
"How simple it all seems to you!" he said to K. . . .
"You think we should settle the matter amicably, do you?
No, no, that really can't be done. On the other hand I
don't mean to suggest that you should give up hope. Why
should you? You are only under arrest, nothing more.
I was requested to inform you of this. I have done so,
and I have also observed your reactions. That's enough
for today, and we can say good-by . . . . [and Levy
could return to treating patients at the Dermatology Clinic]
- 8 9 -
Until that day Levy was merely to be ignored- He was
"unorthodox" certainly and a "pinko" but to let sleeping pinkos
and almost any other "controversial" problem lie is to a career
Army man "SOP", "the order of the day" - and the avoidance of
such problems often serves as the central strand of the fabric
of successful military careers.'*'
Until October 2nd he directed little attention Dr
Levy's way. But the danger to Dr. Levy lay in the Colonel's ig
norance and in his fear. Pear not merely of the communist in his
command but more importantly of Special Agent West; like Kafka's
Whipper of the Warders, Colonel Fancy was subject to Whippers, too.
And there before him was Special Agent West ('Who sent him? Why did
he come? How does he know about my hospital that which I do not
know? Who else knows? Who else knows that I either did not know,
or knowing, did nothing? What am I expected to do? What must I 1
1. Cf.:
Q . Did he [Colonel Fancy] ever tell you that he was
by far an outstanding physician?
A. Right. Dr. Levy has his boards in Dermatology and
in general he is well thought of.
Q. Did Colonel Fancy ever tell you that Dr. Levy had
a fixation?
A. Yes, sir.
Q. Did he ever say to you that he was afraid that this
would split the medical corps?
A. Yes, sir. A.155.
- 9 0 -
do?- and when?)
The script had been written by Mr. West. It was racist in
its origin, direction, production and setting. The case opened
and closed in its original setting. The curtain fell with the
prosecutor's -concluding argument - somehow these Negro soldiers
were more susceptible than whites, more immature, less able to
withstand that wily white Doctor from Brooklyn -
The same appeal, the turning of a just cause into an
illegal purpose is seen in Captain Levy's direct con
tact with a whole group of American Negro soldiers
who came to him either as students or as patients..
R. Vol. 9,2556. See also Shusterman argument,id. at
2554-2565, pa s s im.
Almost as an encore racism followed the trial into the Report
of the Staff Judge Advocate to the Convening Authority (his
General) recommending no mercy, no commutation of sentence.
See ' e -b- / :
[He] seemed intent on expressing his views on Vietnam and
civil rights _to any colored soldier likely to be parti
cularly vulnerable thereto and influenced thereby who came
his way . . . .
All the evidence in this case, including that introduced
by the defense, paints the accused as a. man sincerely,
perhaps even fanatically concerned with the problems
of minority groups a«d devoted to the advancement of
their cause. This in itself, of course■ is_ not culpable;
however, the accused lost his entire sense of perspective in this
area and for some obscure and illogical reason related the
9 1
cause of civil rights to the Vietnam War. The evidence
discloses a man who became a fanatic on the subject. He
saw discrimination and unfair treatment everywhere. In
some obscure and illogical way he seemed to feel that be
cause there was in fact discrimination against minority
groups in this country, such groups, or members of such
groups, should not serve in Vietnam, and that such service
was in some way a disservice to the cause of civil rights
here. His own witnesses describe him as a volatile, dedi
cated, hard working person, devoted to the cause of civil
rights. Regardless of his motives, and his reasons for
attempting to influence soldiers not to serve honorably
in South Vietnam, his intent was criminal and the intent
is what is proscribed under this offense.W
-k-kk
The accused's statements were without question disloyal
to his country. . . . [Tlhese statements were made in
many instances - most instances - t o colored soldiers some
of whom had not been long in the Army, who were young
and immature . . . . A. 912-13. ̂ (emphasis added)
The stage was set not so much by men as by the strictures of
the south and the military. In Special Agent West they merged.
And in Colonel Fancy history, ignorance, and the sterile mind of
the career officer met to make him Special Agent West's perfect
"mark".
1. But, repeatedly at trial intent was held irrelevant to
certain charges and excluded as to others.
2- Cf. G. Myrdal, An American Dilemma: The Negro Problem
and Modern~~Democracy 103 (1944) explaining the psychology of the
white male southerner:
The Negro can be classified as nearer the animal but still
a man, although not a mature man. Unlike children, he can
be assumed never to grow to full maturity. Not only the
individual Negro but the Negro race as a whole can be said
to be "undeveloped" and childish.
9 2 -
Colonel Fancy was the new commander at the Hospital. He'd
arrived there a year after Dr. Levy. At about the same time the
Hospital's new executive officer also came upon the scene. A "stout, pink
faced Colonel with a tooth-brush mustache"^, Chester H. Davis, at onetime
with the Office of the Inspector General, was testifying at the
Article 32 UCMJ (10 U.S.C. § 832) proceeding about his and Colonel
Fancy's first conversation regarding Dr. Levy.
" . . . Colonel Fancy told me his file was flagged. and, I
said what for? And, he said Pinko and that is about all the
conversation there was." A. 746-47.
Since of 600 men under his command only Dr. levy's file
2was flagged , the Colonel could not have failed to recognize
that he was "different".^
The executive officer " . . . knew that 'Pinko' somehow
related to Howard Levy's political opinions or other opinions . . . 1 2 3
1. "Capt. Levy Is Given 3 Years In Prison; Ousted From Army,"
New York Times, June 4, 1967, p. 1, cols. 2-3.
2. But see A. 729-35, regarding one other officer whose file
was ’'flagged" due to membership in a "subversive" organization. His
dossier also was read by Col. Fancy's executive officer. A. 759.
But then for some reason Col. Fancy didn't seem to know of him. A. 796.
As the matter was later clarified the other officer was merely under
investigation "because he had been to "-ome meetings" but was not a
member of the "civil rights group" " . . . which ha [d] demonstrated
a^inst the war in Viet Nam and, which has worked with the Negro in
the South and ordered demonstrations and marches in Selma at that
time." A. 840. See also A. 839-45.
3. Regarding the seriousness of "flagging" action see A. 789-801.
-93-
[ojpinions or actions". -A. 748. He noted,
A. His beliefs are one thing and his actions are another.
q . And do you categorize his actions as words?
A . Could be.
Q. How? ^
A. I don't follow you. A. 749.
But, as Colonel Fancy put it:
The first verbal evidence that I had to this effect
[disloyalty] was in early October, at which time a special
agent visited the hospital and interviewed several staff
members, including myself. A. 503.
He [West] indicated that there was some possible evidence
emerging and suggested that Capt. Levy was attempting to
influence the performance of duty in foreign affairs by
negro [sicj enlisted men. Id. (emphasis added)
"Mr. West was discussing the case of Capt. Levy from his
point of view," the Colonel said. A. 509. Although there was
some reluctance to have the Colonel go into Mr. West's "point
2of view" he continued. 1 2
1. He, at the conclusion of trial became a rather difficult
man tô follow himself. For with great ceremony after sentencing he
brushed aside the crowd, slapped handcuffs on Dr. Levy and whisked
him away leaving reporters, spectators, attorneys and Dr. Levy's
family imprisoned by a few score Military Policemen and road block
ades^ Dr. Levy spent that night in jail. The next day Pentagon
officials ordered him returned to the Hospital where he remained
for the next five months-. New York Times, June 4, 1967, p.l cols 2-3.
2. Here even the prosecution sided with the defense
. . .It is the Government1s position that it is perfectly materia
on what information this witness had at his disposal at the time
that he took further action concerning these charges, and to show
his state of information, and his mode of then preferring charges
which would be a possible defense to this case. I think it is
relevant to bring out what matters, as long as they are not clas-
sified . . . that he had at his disposal during the various pro
ceedings that led up to the charges in this case. A. 511.
9 4
Q. Did he use the word Communist?
A. Whether he did or not— I know what you are getting at.
Q. You knew what he was getting at, too, didn't you?
A. I believe this is the chief worry of the country
at this time.
Q. And this was a chief worry also?
A. It was my impression.
Q. And, of course, you are concerned about that
problem yourself personally, aren't you?
A. Yes. A. 514-15.
Special Agent West's concern about Dr. Levy's suspected
"talking to [Negroes] on rather unpatriotic terms",'A. 519 led to the
Colonel's definition of patriotism:
■ Well, patriotism, I would define broadly, as supporting
the principles and aims of the United States, and when I use
the term, unpatriotism, I mean not supporting those principles
and aims.
I know this is very general, but, in other words, what
Mr. West told me was to the effect that Capt. Levy had been
having some dealings with negro [sic] personnel, which dealings
and discussions were of an unpatriotic nature . . . . A. 519-20.
"I like to feel that all of my officers are patriotic," said
the Colonel, "and when this suggestion was made to me that there
was a possible problem here, I became concerned. This was an
officer of my command". A. 520.
But, after all, this was "Mr. West's investigation" so the
Colonel awaited completion of West's work. A. 521. Mr. West, the
only counter-intelligence agent Col. Fancy talked to about Dr. Levy,
9 5
returned twice-~on October 10 and 12, 1965, and procured Colonel
Fancy's statement (A. 600-602). When Special Agent West confronted
Col. Fancy he had before him, to put it most kindly, a rather con
fused officer and gentleman.
To him the communist threat was abroad, in the nation, and at
Fort Jackson and most importantly in his Dermatology Clin.Ic. He was
concerned about "the communist line," " . . . the political and other
types of beliefs that are put forth by our enemies the communists."a .804.
The world beyond the Hospital, beyond the confines of Fort
Jackson, and the strictures of the military seemed beyond his ken.
The world in which he lived was at best one of naivete', at worst
one of unbridled and absolute ignorance.
That he knew little of the then present world is clear, that
he could not know the future was understandable, but, that he felt
capable of determining who was "patriotic" and who was "unpatriotic"
while knowing little of the American past was inexcusable. As
Col. Henry Franklin Fancy put it, after disclosing that Benjamin
Franklin was not a founder of our country--
"It is not my specialty." A. 809.
Col. Fancy was, indeed, the perfect mark for the "Counter-
Intelligence Agent" from Prosperity. He demonstrated, at length,
9 6
that he was the perfect "nominal" accuser:
Q. Colonel Fancy, you testified earlier that the
last Proceeding that you— well, let me put it
this way. You used such words patriotic and
unpatriotic. According to testimony received
here yesterday, which was made by Colonel Davis,
and I quote exactly. You entered and you said
that, "H:s records are flagged." And, then, your
quote was, "Pinko."
What do you mean by the word "Pinko'.
A. This is a slang term that refers to someone who
tends to follow communist beliefs in an offhand
definition.
Q. Fine, so, you have knowledge of at least some
facts at the time that you told Colonel Davis
that Levy's file was flagged, "Pinko", right?
A. I had knowledge of something.
Q. And, you testified earlier that it was rather
shocking to you to have a man under your command
who was in this position and, fix?
A . It was.
Q. Yet you took no steps to review Dr. Levy's file
and to have the matter of the flagging of that
file disposed of one way or the other.
A. I reviewed Dr. Levy's file and found.no reason
to take steps at that time, since there was a
continuing investigation.
Q. Did you review the dossier back then [before
October 11, 1966]— the G2 Dossier?
A. No, not the dossier.
- 9 7 -
Q. But, you reviewed the file in your office?
A. I reviewed my files and records that I had on
Dr. Levy that every officer has. A. 801-03.
MR. MORGAN: I wonder if we could have that
particular file?
Q. . . . whatever it is that is sitting over there
flagged.— may we have that provided to us this
afternoon by your personnel officer?
A. Yes, sir.
Q. Now, when you say a person who follows the
communist line, generally, how do you define that0
A. The communist line?
Q. Yes.
A. Well, this is the political and other types of
beliefs that are put forth by our enemies the
communists.
Q. And, what are those things put forth by our
enemies the communists7
A. Such things as the requirement for world domination
by the communists, and, the lack of what we consider
God, and their requirement not to believe in God.
The requirement to agitate and propagandize
in such a way that non communist peoples minds are
maintained in a state of chronic anxiety in the hope
that this will not impair their will to resist the
communist domination. And, many many other things
that I can not remember at this particular time.
Q. What have you read about communist [sic]?
A . I have read the usual things and the various news
media and magazines and have read about communisim [sic].
- 9 8
in various military course fsic] that I have
taken and, lectures that have been delivered
to me on that subject. So, I have a general
impression of communism without any detailed
knowledge of it at this time.
Q . Recently, you made a speech to Special Forces
Aid Men who were graduating, did you not?
A. It is my custom to. A. 803-05.
A . I believe I said in general terms that the fight
against communism goes on, not only in Viet Nam
but in this country as well. By all of us in the
Armed Forces and— or words to that effect.
Q . Do you remember saying in that speech, "The fight
against communism goes on abroad but also goes
on here at home?"
A. I have already said that I believe that this was
in the meaning of what I said. A. 805.
- 9 9 -
°k "k ±
Q. Do you recall saying that the Hospital stood
behind these men?
A. I am sure I did.
Q. Do you recall saying that the Hospital stood
behind these men regardless of what they might have
heard about certain left wingers around here?
A. No, I don't recall saying that exactly, but I
certainly agree with that.
Q. Can you give me an example of what you appraise
as communist agitation which brings on chronic
anxiety in the country.
A. Well, I believe that the forms that this sort of
agitation takes are varied and well described in the
source material. I can't quote these at this parti
cular time.
Q. Well, I understand that you have already testi
fied about these things and I am going to question
now about your bias of Captain Levy as his commanding
officer and I am asking you what you interpret with
reference to the statement that you just made. "Active
agitation that promotes chronic anxiety?"
A. Well, one example might be a labor union that is
infiltrated with communist sympathizers. Certain Labor
Unions ordering or provoking strikes against industries,
hospitals or what have you.
This would produce anxiety in the people that
worked in the industries or hospitals.
Q. Can you think of one example of that?
A. That is the example I just gave you.
Q. Can you think of one example of that having hap
pened?
A. I can't off hand, but I am sure it has happened.
q . How can you be sure, if you can't think of it?
-100-
A. This is my recollection that this has happened
and, that I have read about it.
Q. What about racial demonstrations?
A. I would feel that this might be a fruitful ground
for communist sympathizers to use the techniques of
agitation and produce anxiety in the community.
Q. Do you see much evidence of that in the Civil Rights
Movement?
A. I have very little to do with the Civil Rights
Movement. Fx'om what I have read, this seems perfectly
possible.
Q. And, you stated something about the reference to
belief in God as being one of the elements of a com
munist line--of disbelief being an element of com
munist line, is that correct?
A. Well, it is my understanding from what I have been
told and, what I have read that one of the requirements
of communism is that religion as we know it in the free
world has no place in their philosophy.
Q. It did not have much place in some of the founders
of this country, did it?
A. It had a considerable place.
Q. I said, in some of the founders of this country.
You understand that the first Amendment to the Consti
tution was written to protect the right of a man to be
an atheist?
A. I thought your question had to do with the religious
beliefs of the founders of the country.
Q. Are you familiar with those?
A. What?
Q. Are you familiar with the religious beliefs of
the founders of this C ountry?
A. My impression from reading and what I have gathered
over the years is that they were what we could consider
101
religious people, by our definition of the term.
Q. Thomas Jefferson?
£ [1]A. He was one of them.
Q. And, Benjamin Franklin?
A. Well, when I say founders of the Country, he
came a little later.
Q. No, he was a founder of the country and Benjamin
Franklin was also a founder.
A. I am talking in generailities [sic] here because
I have difficulty in viewing the details on this. 1
1. Cf. E. M. Halliday, Nature's God and the Founding Fathers.,
American Heritage, Oct., 1963 at 4, 6:
In the campaign of 1800 Jefferson's "infidelity" was an
easy target for Federalist orators and pamphleteers . . . .
He was never an absolutist even on the question of God's
existence. His creed of intellectual freedom was much too
firm for that, and at worst he saw no alarming threat in
atheism. Id.
He once said: "'Question with boldness even the existence of a God;
because, if there be one, he must more approve of the homage of
reason, than that of blindfolded fear.'" Id. Jefferson believed
in "complete freedom of conscience," that men would "gravitate
toward what was right on fundamental issues"— " [ejxcept under
bad social conditions— ignorance, poor education, poverty . . . ."
Id. at 7.
The principle of majority rule— a sacred principle to
Jefferson— depended on the premise of a well-informed
public, each member of which could choose among moral
or political alternatives with absolute freedom from
mental coercion. Id.
Regarding Washington in an occurrence somewhat similar to the
experience of a more recent President, he was publicly scolded from
the pulpit. In Washington's case the "scolding" came for leaving
Church " . . . on communion Sundays, just before the sacrament was
to be administered." His response? "Washington never again left the
church just before the Lord's Supper— from that time forward he did
not come at all on Communion Sundays." Id. at 4.
102
It is not my specialty. [ 1 ]
Q. What officers were present at your speech made
to the last graduating class of the Special forces?
A. Major Campell [sic] , the Class Director.
I believe Captain Billingsly was there and a
couple of Doctors were there— I think Dr. Knight
was there. And, a few nurse officers. I don t think
Colonel Davis was there.
I might mention that we invited everyone.
Q. Did you invite Captain Levy?
A. It is understood.
Q. If he told you that he did not even know that
such a ceremony was held, you would not dispute that,
would you?
A. No, sir, but it is up to him to find these
things out. Such as when a class finishes and
things like that.
He has been in this business longer than I
have.
Q. He has been in what business longer than you
have?
A. This hospital at Fort Jackson. Graduations
have been going on for quite some time and, wel-
comings.
Q. You welcome them, too?
A. Yes, sir. 1
1. "Franklin['s] . . . views were much like Jeffer
son's . . . ." Id- at 7- Additionally although the news
would no doubt have come as a shock to the Colonel who
brought charges against the "pinko" physician who refused
to obey an order on ethical grounds, when James Madison
initially proposed the firs^ amendment it read . . . "The
civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national reli
gion be established, nor shall the full and equal rights
of conscience be in any manner, or on any pretext abridged. "
Id. at 104. (emphasis added)
103
Q. Did these folks just come because of their
general knowledge?
A. I believe they came because they were either
directly connected with the training and certain
of the doctors and nurses, or their offices hap
pened to be close by and they naturally came.
Q. Or it could be because Special Forces said
they did a particularly good job in training and
wanted them there?
A. Or that they may have been invited.
Someone may have invited them.
Q. You didn't?
A. No, that is a standing invitation. A. 806-10.
104
Do you think the communist line is opposed to
involvement in Viet Nam?
A. Certainly.
Q. And, do you think that much of the agitation
about American involvement in Viet Nam is— in this
country communist based?
A. I believe so.
Q. And, you think that people who are opposed to
war in Viet Nam, then, are following the Communist
line?
A. Not necessarily.
Q. Explain why not.
A. Well, there are many beliefs besides the communist
belief. I am sure that certain groups of people have
other than communist beliefs as to the war in Viet Nam
and, I am thinking about, of course, the sects that
are generally against the war.
Q„ Quakers and things like that.
A* I guess so.
Q. Other than the q.\;akers and other religions [sic]
sects that are opposed to war, do you believe that
others who are opposed to the war are following the
communist line?
A. I would have to say that there are other people
that I have not listed that are opposed to the war in
Viet Nam and don't follow the communist line.
Q. Would Senator Morse be one of them?
105
A. Senator Morse, I don't know.
Q. United States Senator Wayne Morse, from Oregon?
A. I know the name, but I don't know his viewpoint.
Q. How about United States Senator William Full-
bright [sic] from Arkansas?
A- I don't know him.
Q. How about former Ambassador Reischower [s_ic]
from Japan?
A- I don't know him.
Q. How about the people who oppose the bombings in
Viet Nam, do you believe they are actually sympathetic
to the communist line?
A- I believe it is possible.
Q. Did you ever know a member of the John Birch
Society?
A- Not to my knowledge.
Q. Have you read any books on Viet Nam?
A- Certainly.
Q. Name one.
A. I will retract the statement. I have not read
any books on Viet Nam, but I have read the lews media
and articles in magazines and in any of the courses
that I take in the Army, I have heard material delivered
in the form of lectures, but I have not read a book
particularly on Viet Nam.
106
COLONEL SEVERIN: Mr. Morgan, can I ask you how this
is tied in? The Colonel has already testified that
the charges were not preferred because he felt that
they had a relation to Captain Levy's political
beliefs.
MR. MORGAN: That is fine, but I think the Colonel
is lying.
COLONEL SEVERIN: Are you trying to relate this to—
MR. MORGAN: I am trying to prove that the Colonel
is a liar, yes. A. 811-14.
Indeed the Colonel had addressed the graduating class,
(approximately ten men ) of Special Forces Aid Men and told them
. . .he thought they were doing a good job and, he
knew that there were left wingers who did not feel
this way and he asked them not to be alarmed at the
feelings of the left wingers. A. 835.
He told them that his hospital "stood behind them,"
A. 836, and equated the left wingers at home and the communists
abroad. A. 836-37.
The Special Forces reaction to his speech was that of
rather sane men. Even,
. . . they were taken aback. They did not feel that
the Colonel would seem to speak about communists or
left wingers. A. 837.
As. Lt. Wasserman put it when asked "Do you think . . .
that he was implying a criticism of Captain Howard Levy? .
. . . I felt that he was." Id.
107
As Circuit Judge Madden said in Lenske:
The report then stated that attached to the report
were Exhibit 3A, a newspaper clipping stating that
Lenske and another lawyer had called a meeting for
the purpose of forming a local chapter of the
Lawyers'Guild, and Exhibit 3B which indicated 'Mr.
Lenske's thinking on the subject of Cuba, Laos,
China, etc." I take judicial notice that the
Lawyers' Guild is a national organization including
many left-wing lawyers. I take judicial notice
that there is in this country and in the world a
great variety of "thoughts on Cuba, Laos,China,
etc." 383 F.2d at 27 .
I regard what I have cited above as a scandal
of the first magnitude in the administration of the
tax laws of tie United States. It discloses nothing
less than a witch-hunt, a crusade by the key agent
of the United States in this prosecution, to rid
our society of unorthodox thinkers and actors by
using federal income tax laws and federal courts to
put them in the penitentiary. No court should
become an accessory to such a project. 383 F.2d
at 27-28.
The Special Agent and the Colonel put Dr. Levy in the
penitentiary. McLeod and Lenske in the Fifth and Ninth Circuits
would void the conviction here.
Only a non-accessory civilian court can set him free.
108
THE ORDER CHARGE WAS THE RESULT
OF THE UNCONSTITUTIONAL APPLICATION
OF ARTICLE 90 UCMJ TO DR. LEVY
A. The order to train Special Forces Aiamen was but one more step
on the Constitutionally prohibited road to Leavenworth. It was
politically motivated and issued with the knowledge it could not
be obeyed. It was issued to punish Dr. Levy for his political
and racial views. Its issuance violated first, fifth, and
ninth amendment guaranties.
Colonel Fancy "administered" an order. The genesis of that
order is clear. The military courts served as an accessory to
Dr. Levy’s unconstitutional imprisonment.
The Counter-Intelligence Corps knew on October 7, 1965, that
Dr. Levy would not obey an order which violated the precepts of
ethical medicine.
This fact joined with the chronology of events following Dr.
Levy's July 17, 1965, trip to Newberry County and Special Agent
West's entry into the investigation "in the summer of 1965,
disclose:
1. Within two days of Dr. Levy's first voter registration
activity, someone on a sheet of yellow legal sized
paper demonstrated their concern. The entry reads
"Determine whetver \ sic] loyalty investigation should
be made 19 July, 1965." A. 863.
- 109-
2. By August 10, 1965, a "mistake" was "discovered" on
his Armed Forces Security Questionnaire. He had dis
closed in January, 1965, his attendance at meetings
in New York. He failed to relist his previously dis
closed attendance later when he filled out the same
form.
3. By October 7, 1965, the Counter-Intelligence Corps
had a complete exposition of his views in its records.
4. On December 14, 1966, an Article 15 UCMJ proceeding
was initiated. A. 866-67.
5. On December 28, 1966, that Article 15 UCMJ proceeding
was withdrawn and the Charges were upgraded to the
level of a General Court-Martial. A. 861-68.
1. Dr. Levy1s security status chronologically.
A . From the revealed portion of the 0-2 Dossier the
following appeared:
1. November 27, 1961 - "Request for Personnel
Security Action" was made disclosing that
"DD Form 98 [Armed Forces Security Questionnaire]
has been executed without qualification by subject
14 October 1961." A. 501.
2. January 12, 1962 -"A favorable National Agency
Check, meeting the scope prescribed in AR 381-130,
was completed on Jan. 12, 1962 by this head
quarters." A. 500.
- 1 1 0 -
3. August 16, 1965 - "Request For and Result of
Personnel Security Action," "Records Checked for
Promotion Purposes" disclosing "No unfavorable
information" and that his "Latest Investigation
Clearance" was "NAC, 16 Jan 62, HQ First US Army,
Secret." A. 499.
4. January 28, 1965 - (Apparently filed another DD
Form 98, see 7 below.)
5. July 15, 1965 (Apparently filed another DD. Form
98, see 7 and 9 below.)
6. September 10, 1965, - "Control Office to Action
Agency," "Results of Personnel Security Action -
Favorable." "Dossier Number 1 A 68 89 24"
apparently referrable to the Jan. 12, 1962
evaluation . A. 496.
7. October 4, 1965 - made "Statement" page 3 of
which was apparently a draft. A. 476-79.
8. October 4, 1965 - made "Statement" as follows:
"I am in accord with the democratic form of
government as outlined in the Constitution of the
United States, even though I disagree with much 1
1. Under the "Berry Plan" Dr. Levy did not actually enter the
service until July, 1965. During the completion of their residencies
physicians are technically reservists prior to their date oi active
duty entry. Due to the special nature of the statutes under which
they are drafted they cannot be assigned non-medical duties. See
Orloff v. Willoughby, 345 U.S. 83 (1953). It is in this manner that
the Army obtains needed medical specialists. The medical student is
of all students the most certain to enter the military. He is de
ferred temporarily, but his two years not only must be served (for
physicians certain physical requirements are often relaxed; but
50 U.S.C. App. § 456(a)(1) specifically extends his liability to
age 35. Although graduate students and others deferred through age
26 have by almost universal practice been relieved of liability then,
that is not the case with physicians, who are almost universally
drafted up to age 35.
- I l l -
9.
of the method and policy that the US Govern
ment sometimes pursues." A. 481.
October 7, 1965 - made "Statement" similar to
drafted "Statement" of October 4, 1965, setting
forth his attendance at "eight meetings," the
guest speakers consisting of persons ranging
from the late Malcolm X, to Milton Galamison (pre
sently a member of the New York City Sohool Board)
to a writer for the National Review. He
attended after learning " . . . from their ad
vertisements of meetings in the local New York
newspapers, and attended these meetings purely
out of interest in the various speakers that they
had and to learn of their ideas and purposes".^* a . 484.
He described his " . . . own political beliefs as
being liberal left." A. 485. To the best of his
knowledge he' d. " . . . never attended any meetings
of any subversive organizations or groups or of
anY U^roups that conspire to overthrow the US
Gaernment by violent or unconstitutional means." A. 485. 1
1. Dr- Levy has both courage and an inquiring mind.
S e e , e.g., a statement from the revealed portion of the G-2
Dossier:
On one occasion, Source told SUBJECT [Dr. Levy] that '
He ["Source" Cain] did not consider HIM very loyal to the
U.S. and SUBJECT became quite angry. LEVY informed Source
that HE had attended several meetings of the Ku Klux Klan,
just to find out what they were all about. LEVY was quite
pro-Negro, to the side of the Negroes when discussing civil
Rights matters, and appeared to think more of the Negroid
race than the White race. A. 466.
- 1 1 2 -
He told of the magazines to which he sub
scribed, _id., and then stated: "I am not a
pacifist; however, I do have certain pacifistic
leanings. I _am able to envision situations in
which _I could conceivably refuse to obey a. mil
itary order given me by a. commander. This would
be in such at situation in which _I felt that the
order was ethically or morally incorrect. I_
would add that this cannot be a criteria of
loyalty inasmuch as in such an unusual situation
it might be more loyal not to obey the order.
There is ample historical evidence to suggest
that this has sometimes been the case. _I don11
think that one can honestly predict such a. re
sponse in advance of the specific situation."
A. 486. (emphasis added) The Counter-Intelligence
Corps'alleged reason for taking this and the
October 4, 1965 statement (one of Special Agent
West's co-workers took the statement) was to
ascertain Dr. Levy's " . . . reason for qualifi
cation of . . . [his] DD Form 98, Armed Forces
Security Questionnaire." A. 484.
Dr. Levy's response was: "I failed to
comment on my association with the Militant Labor
Form in my DD Form 98, Armed Forces Security
Questionnaire, dated 15 July 1965, after making
-113-
reference to that organization in my DD Form 98
executed on 28 January 1965 solely because of
an oversight on my part." A. 484.
B. From the available portion of the "flagged" 201 File
the foil owing appeared:
1. July 19, 1965 - see 2ibelow.
2. August 6, 1965 - a piece of yellow legal sized
paper, saying: "Local records check - 1965
(6 Aug.) Discovered that DD Form 98 has been re
quested. . . G-2 made a record check at Fort Hola-
bird 6 August, 1965." 1 Results: "off hand favor
able NAC. Completed by 1 Army on 12 June, 1962
. . . Dossier number A A 6889 24 (16 Aug. re
ceived) Limited investigation completed Dec.
66. Determine whetver [sicl loyalty investigation
should be made 19 July, 1965. Form 3 req. for
security clearance sent from USAH. Local records
done in August. Initiated flagging action on
17 May, 1966 and 268 is classified confidential"
A. 862-63. (emphasis added)
3. August 10, 1965 - "Memorandum for Record" -
"Conference was held . . . between Capt. Russell,
ACOF, G2, and the undersigned, in regard to a
discrepancy listed on 1DD Form 98 and did not occur on
another. The following documents were reviewed and
- 114-
kept by G-2.
DD Form 98, January, 1965, DD Form 98, July,
1965, DD Form 98, date unknown.
"Captain Russell will request Dossier from
Central Records Agency and will advise as to
authority for Security Clearance." A. 859.
4. October 12, 1965 - "Memorandum Four, U. S.
Army Hospital", "Subject: Security." "Per
telecon: Between the undersigned and Captain
John B. Russell, Assistant, G2. G2 requested
that Howard Levy, MC, not be granted any access
at anytime to any classified material higher than
that of for official use only. While G-2 does
not feel that an emergency situation exists, thy
feel that unless the officer's performance of
duty is hampered that Security Clearance should
not be granted. "This case is closed at the
present time."Signed "Joe B. Gibson, Major,
MSC, Chief, Personnel Division." A. 860-61.
5. November 17, 1965 - Letter to Commanding Officer
at hospital - "Prior to completion of any favor
able personnel action pertaining to Subject.
[Levy], concurrence of Headquarters, Third United
States Army will be obtained.
This letter will be filed in Subject's 201
File until further notice from this off-ice.
s/ Benjamin L. Sickey, Lieu
tenant Colonel, Assistant
Chief of Staff, G2". A. 857.
-115-
6. November 19, 1965 - "Memorandum for Record . . . .
G-2 will be notified upon any transfer, promotion,
etc,, involving Captain Howard Levy. This letter
will not— repeat— will not be forwarded in his 201
file. This letter should be placed in a prominent
position in his 201 file to preclude its being
buried." A. 857-58.
"Recommended action of flagging was not
generally concurred in" Signed "John B. Gipson,[sic]
Major MSC , Chief Personnel Division." A. 858.
7. Undated - "To. Lt. Colonel Summers: Remarks:
We know nothing about this action." "J. D.
Spence CW2 Assistant AG" A. 861.
8. November 18, 1966 - DD Form 95, attached to that
a cardboard form DA87. Nothing but a piece of
cardboard is attached to this documet in the file. A. 862.
9. Four DA Forms 268 entitled "Reports of Suspension
of Favorable Personnel Action."
- 116-
a. Nov. [sic - May ?] 17, 1966 indicates flagging accion con
menced May 17, 1966 - "Item 20, expected
date of completition [sic], date of investigation,
unknown." "Item 21, number of outstanding
leads and dates they were submitted, unknown."
"Item 22 is investigation complete in
control OFF area,(AR604-10 cases only.) is
typed in and this we have marked as unknown.
"Item 23, reasons for non completition [sic] of the
investigation within 120 days period.
"Case resubmitted to U.S.A.I.N.T.C. for addi
tional investigation and is still pending."
"Item 24, date investigation completed, file
forwarded Headquarters for adjudication
(AR-604-10 cases only)," Answered "N/A" A. 864-65.
b. July 14, 1966 — indicates flagging action
commenced May 17, 1966 - "Item 20, expected
Completition [sic] date of Investigation n/a.
. Item 22 is investigation complete and
control OFF area (AR 604-10 cases only.)
- 117-
yes . Item 23 reasons for non
completion of investigation within 120 day
period." Answered "Investigation pending
adjudication in Headquarters Department of
the Army" "Item 24, date investigation
completed and file forwarded Headquarters DA
for adjudication (AR604-10 cases only.)
19 May 1966." A. 865-66. (emphasis added)
c. December 14, 1967 [sic - 1966?] - indicates flagging
action initiated December 14, 1966. This form
indicates that a new investigation had been
co— cncod cn that day, that the Fort Jackson
Headquarters was controlling this investi
gation, the reason for the "new" investi
gation was "Article 15 - derelection of duty .
. . . failed to develop a training program in
Basic Dermatology for Phase Two Training,
Special Forces Aid Men as ordered by the
Hospital Commander." There is no signature.
A. 866-67. (emphasis added)
-118-
d. December 28, 1966 - indicates flagging action
initiated December 28, 1966. " . . . Item
19, Synopsis of Available Information.1" The
entry is "Recommendation for action pursuant
to Article 15, UCMJ on Captain Levy was
withdrawn on 23 December, 1966, and charge
sheet forwarded to Commanding General,
U.S.A.T.C., Fort Jackson, South Carolina,
recommending Trial By General Court-Martial
in violation of UCMJ, Articles 90 and
134. Disobeying lawful command from a
superior officer and, with design to promote
disloyalty among the troops and publicly
uttering statements to various enlisted per
sonnel at adverse times. Which were disloyal
to the United States." [sic]. The expected
completion date of the investigation was
unknown and the number of outstanding leads
was considered "not applicable."
This form was also unsigned, a . 867-68.
- 119-
2. The facts surrounding the issuance of the order, its disobedi
ence and the Article 15 proceeding.
A . The order is given:
On October 12, 1956, Colonel Fancy signed a
statement for Special Agent West. A. 400-01.
On October 10, 1966, Special Agent West
interviewed Colonel Fancy and "reported" that the
Colonel knew " . . . that a security clearance
had been denied [Dr. Levy] because of communistic
leanings . . . A. 39S. The Colonel had " . . .
contacted . . . G-2 on 7 October 1966, who briefed
him on SUBJECT'S background . . . ." Id.
Then Mr. West"reported"—
Source will call SUBJECT in and reprimand
HIM for HIS previous dereliction of duty and
give HIM a direct order as well as a written
order to train Special Forces personnel with
out injecting HIS political opinions or directing
derogatory remarks toward these personnel, and
then if HE fails to obey, which is to be deter
mined by debriefing the departing students, take
appropriate action under the Uniform Code of
Military Justice. Source will not tolerate any
interference with the training of these personnel,
and requires everyone concerned to co-operate
to the utmost. Id.
- 1 2 0 -
Special Agent West for some reason did not
disclose that he had initiated the matter by calling
on Colonel Fancy on October 2, 1966, and chatting with
him about Dr. Levy. See, supra pp. 61-66.
Indeed, Colonel Fancy's later statement of De
cember 29, 1966, is also somewhat misleading and
contradictory. There he states that he received some
information in August and September about Dr. Levy s
non-training of Special Forces and his "derogatory
remarks to them." He then said:
On 14 October 1966 [obviously another
"mistake"!] i personally explained to
Captain Levy the extent of the dermatology _
training required for the Special Forces Aidmen
at this hospital. He was aware of this require
ment, but stated that because of his feeling
about the Special Forces he could not ethically
bring himself to train this class of personnel
in the basic elements of his specialty. I then
directed him verbally and in writing to provide
the required basic training in dermatology for
the members of Class #9 of Special Forces Aidmen
(Airborne) which was then in session. Formal
mid-term and end of term training critiques
were held which indicated clearly that Captain
Levy did not provide the training as ordered. A. 22 1
1. The order was issued on October 11, 1966, A. 25-27,
as is clear from the Record. On October 14, 1966, Colonel
Fancy merely sent Dr. Levy a letter which referred to the
written order issued on October 11, 1966, which was handed to
him by Colonel Fancy and discussed with Dr. Levy on the 11th. A.24
- 1 2 1 -
In his December 29th statement Colonel Fancy did
disclose Mr. West's visits. As he put it:
In early October 1966 a Military Intelligence
Agent interviewed me and several members of my
staff in connection with the continuing security
investigation of Captain Levy. As a result, I
reviewed sworn statements made by personnel who
were directly associated in a duty or training
status with Captain Levy. This confirmed his
antipathy toward Special Forces personnel and also
indicated that he had certain beliefs which
appeared to be contrary to the best interests of
our government. .The agent mentioned that his
current investigation was uncovering evidence
that Captain Levy had been encouraging Negro per
sonnel to refuse duty in Viet Nam if ordered.
This was my first knowledge of such activity on
his part. I did not pursue this further pending
completion of the intelligence investigation.
In early December 1966 I reviewed the critique
reports made by graduating members of Class #9
Special Forces Aidmen and obtained sworn statements
from them. Another statement was subsequently
obtained which indicated that Captain Levy had
told a person that he would not carry out the
training program which I had ordered. The case for
willful disobedience of a direct order appeared
to be established. I
I then reviewed additional sworn statements
and determined that there was evidence of possible
disloyalty or disaffection on the part of Captain
Levy. My knowledge of this charge was thus
limited to review of sworn statements. I--did not
discuss this matter directly with Captain Levy.
- 1 2 2 -
Accordingly, the charges of willful
disobedience of a direct order and of disloyalty
were prepared by the Judge Advocate, sworn to
by me, and on 28 December 1966 delivered to the
accused, Captain Levy. A. 22-23.
From this statement the following errors of
omission, commission or inadvertence appear.
1. The written order was issued on October
11, 1966.
2. Colonel Fancy had already told Mr. West
prior to October 11, 1966, that he was
going to issue the order and punish Dr.
Levy if there was a refusal of obedience.
3. He had talked to G-2 on October 7, 1966, and
in the G-2 Dossier Dr. Levy had clearly
indicated there were certain orders he
could not ethically obey.
4. Colonel Fancy failed to mention the original
initiation of Article 15 UCMJ proceedings.
5. He contradicted another sworn statement made
October 12, 1966:
-123-
1 was not informed or aware of any
difficulties encountered by Special
Forces medical personnel in the Der
matology section until the week of
2 October 1966. A. 400.
Special Agent West's Agent's Report of
their October 10, 1966, meeting supports
that recitation:
. . . Source made inquiries in the
hospital during the week of 2 October
1966, and learned that . . . [there
was] very little training and,in some
cases,no training at all in the Der
matology section. . . . SUBJECT had
made derogatory remarks to the Special
Forces personnel concerning their organ
ization, and anti-Viet Nam war state
ments to them.
. . . Source has not levied any
administrative or disciplinary action
against SUBJECT because of the very
short time that he has been aware of
SUBJECT'S deficiencies. A. 398.
Contrary to those statements, on December 29,
1966 in another sworn statement he said:
In August and September information
from the Hospital Plans and Training
Division indicated that the training in
basic dermatology required for Special
Forces Aidmen was not being given by
-124-
321:
Captain Levy. I was informed by the
Training NCO that this problem was of
long duration, that Captain Levy refused
to have those trainees in his area, and
that he had made derogatory remarks
to them. I reviewed the Phase II train
ing program for Special Forces Aidmen
and determined that ten hours of basic
dermatology was included, and that this
training was not being carried out. A.22.
6. He failed to mention his reading of the G-2
Dossier and the basing of General Court-
Martial charges thereon.
These matters are crucial for several reasons: first,
even military law does not permit the giving of an
order for purposes of inflicting punishment;1 s'eCfrnd,
if the order was issued to silence Dr. Levy
or punish him for his political or racial views then,
obviously, it fell within the prohibition of Dombrowski
v. Pfister, 380 U.S. 479, (1965). As Chief Judge
Bazelon noted: "If Article 90, though constitutional
1. See, e.g.. Manual for Courts-Martial ("MCM") Sec. 169b at
The order must relate to military duty and be one which
the superior officer is authorized under the circumsLances
to give the accused. Disobedience of an order which has
for its sole object the attainment of some private end, or_
which is given for the sole purpose of increasing the .penalty
for an offense which the accused is expected to commit is
not punishable under this article. (emphasis added)
- 125-
on its face, is being applied to harass Levy
then that part of his case fits within the
first ground for the Dombrowski decision. 380
U.S. at 490 . . . Levy v. Corcoran, 389 F.2d
929, 932-33 (D.C. Cir. 1967) (C. 13-14) (Bazelon
C. J., dissenting).
Thus, the reason, the real reason for issuing
the order is of primary importance. And dates of
communications are often more important than the
conversations themselves.
Special Agent West, responding to the
prosecution at the Article 32 UCMJ investigation
said:
Now, lets get one thing straight. I talked
to him on the 10th. On the 12th is when I
took this statement back and he signed it,
and the statement was executed on the 12th.
There was a very short encounter there. I
took it in and had the Colonel sign it
and witnessed it. On the 10th is whei I
talked to him. I believe it was the 10th. A. 595.
- 1 2 6 -
[Note, this conversation on the 10th was
of course, their second conversation]
And then the prosecutor, asking about that
October 10 conversation proved the defense:
Did he indicate when he discussed this statement
with you in the course of your taking it that he
had knowledge that Capt. Levy had absolutely
refused to give Special Forces training?
A. Yes, he did. A. 596 (emphasis added)
Further interrogation firmly fixed that date.
"October 10th is the day that I went back to him and
got the statement and had it signed and took it back
and he signed it on the 12th. It was about two days.
A. 596-97. West reiterated "This is the second inter
view, and of course, the statement is dated two days
later. I think I took it back for his signature two
days later." A. 595.
Thus, the prosecution absolutely fixed the date
on which Colonel Fancy "absolutely" knew the order
would not be obeyed. A. 595-601.
-127-
The prosecutor then sought to salvage his case.
He did it in the bathroom.
Special Agent West was excused as a witness, A. 611,
and went to the bathroom, A. 613, where the prosecutor
caught him and they had a "conversation". id.
An attempt was made now to show that Colonel
Fancy had no prior knowledge that his soon to be issued
order would be disobeyed. A. 611-12.
Suddenly M r . West, his memory refreshed, returned
to the stand and testified that it was the 12th when
Colonel Fancy said he hadn't obeyed the order. But
even with a refreshed recollection he again testified
that " . . . on the 10th of October, 1966, Col. Fancy
had knowledge that Capt. Levy had absolutely refused
to train Special Forces personnel." A. 614; See A. 615-16.
The prosecutor then began to work with Special Agent
West on the stand and on the Record saying "[t]he question
that is being asked which is important from both standpoints,
when was it?" A. 616. It took the Special Agent a
little while to get the prosecutor's message— "I see
what you mean now", said he. A. 617. But, he had
by then testified that Colonel Fancy had issued a
prior "oral" order to Dr. Levy" . . . which he
refused, but not absolutely on the 10th." Id.
-128-
He then explained that his problem was with the word "ab
solutely" for, by then, even the Counter-Intelligence Corps
Special Agent from Prosperity had intelligently " . . . see [n]
where that makes a great difference in there on that question
when he asked the question absolutely." A. 620. See, e . g .,
A. 617-21.1
Perhaps by coincidence a Sgt. Cornell, involved in the train
ing of Special Faces Aidmen at Fort Jackson travelled to Fort
Bragg to confer with Special Forces personnel there about the
training program on October 10, 1966. He returned the next day.
R. Vol. 4, 555.
______ * ________
The order was drafted with some care. Colonel Fancy then had
his Executive Officer " . . . read it, and . . . [he] made one real
small correction?. . . . [He] suggested adding one SmaiLl [and, of
course, un-remembered] phrase." A. 746.
That Special Agent West had an inordinate, interest in
seeing Dr. Levy "gotten" appears here, in the revealed portions
of the G-2 Dossier and in his testimony in the Appendix, passim.
He did everything he could do and when he understood he went
"then some." The prosecution at trial overcame its problems by
simply asking "On 11 October 1966 when you gave the order to
Captain Levy, why had you given it and decided to give him that
letter?
Individual Counsel: Object to that. That calls for a
mental observation [s^c-operation] of the witness and to a
subjective judgment on his part.
Prosecution: Certainly to the extent that his motive
in giving the order is relevant.
Law Officer: Objection overruled. Its the subjective
reaction "of this witness himself. You may answer. A. 86.
- 1 2 9 -
As Colonel Fancy put it at trial:
I decided to take relatively strong action to correct
this situation and obtain training in basic dermatology.
I decided to give Captain Levy a direct order to accomplish
the training and to explain in sufficient detail what I ex
pected him to do.
• • • •
I prepared the order in writing and prepared an enclosure
which described in general the type of training, the extent
of the training which I expected.
• • « •
I personally administered the order to Captain Levy.
• * • •
That occurred on 11 October. A. 82 (emphasis added)
I called Captain Levy to my office and he presented himself.
I gave him the original of my prepared order with the en
closure which generally described the training and asked
him to read it carefully, which he did and I asked him if
he understood the contents and he said that he did. He
then stated that he felt that giving such training to the . . •
aid men was like giving candy to babies. That he did not
approve of the use to which it was put.
He said that in his opinion special forces aid men were
thieves and liars and that he had noticed certain missing items
from his clinic. A. 83. See also A. 85.
• • • •
. . . [H]e stood and told me that he did not feel that he
could ethically conduct this training because it was against
his principles, or words to that effect at least, and I told
him acrain that I desired that it be conducted. A. 84.^ 1
1. There was never a question regarding Dr. Levy's training
of medical personnel. He was a good teacher who freely trained
those in the medical field. See prosecution testimony, A. 156.
Of course, Special Forces Aidmen were not medical personnel— they
were combat troops ten, or twelve of whom were supposed to stand
around watching him treat his patients in order to learn to use
medicine as a political and military weapon. Their training was
more advanced than the type normally given "medics." And there was
never any question but that he would train everyone, "medical person
nel" or not, "combat troops" or not, in "first aid." But, Special
Forces learn " [m]uch more than simple first aid." R. Vol. 13, 294;
see id. at 294-98, 313-16; A. 289-96.
Colonel Fancy was allowed to testify as to his subjective
mental reasons for issuance of the order. He made it clear that
there was more than one purpose to it.
A. I gave the written direct order to Captain Levy in order
to obtain from him basic dermatology training for special
forces aid men. I. regarded this as a strong corrective
measure, a strong educational measure, if you will.
Q. Sir, at the time you gave this order was it your personal
feeling and hope that he would comply?
A. It was my personal feeling and hope.
Individual Counsel: Object to that on the same grounds as
before. What his personal feelings are and hopes, I don't
know that a witness can testify as to that, I thought we
were being tried for objective facts, but, apparently not.
Law Officer: Overruled. A. 86. (emphasis added) See also
A. 87.
But, it was on October 7, 1966 (his day with G-2, A. 97, 98,
which had known since October 4 and 7, 1965, that Dr. Levy was
». . . able to envision situations . . . " where he could be forced
to disobey an order he felt was "ethically" incorrect, A. 486) that
he decided to ". . . proceed against Dr. Levy with disciplinary pro
ceedings." A. 93. He thought of issuing • him an order not
to speak about certain given subject [sic]" but didn't issue it.
A. 96.
The law officer, on occasion appearing to be a part of the
insider (i.e. prosecution) part of the case, clarified all matters
-131-
for all time when he asked his fellow Colonel:
Q. Is it your testimony Doctor, that you did not issue this
order because of the accused's political beliefs?
A. Yes, sir. A. 150-51. 1
To the Colonels on the Court and the Majors too that, no doubt,
settled that.1 2
Regardless of Colonel Fancy's motives and those of Special Agent
West the order had been "administered," "a strong educational
measure" had been undertaken.
And Dr. Levy had refused to submit to the order on ethical
grounds.
1. The law officer was Chief of the Army Field Judiciary.
Shortly after the trial he went to the Columbia University School
of Law as an assistant Dean where he along with his fellows m
that milieu signed an advertisement opposing the war in Vietnam.
See "A Statement on Viet Nam," New York Times, Feb. 15, 1968, p. 1 /»
cols. 6-8. But he did not remain long at Columbia and is presently
in the "Department of Engineering," Merrimack College, North Andover
Massachusetts, as "Director of Government Relations and Research."
2. It obviously satisfied the earlier professed concern of
the law officer who had said:
I assure you I'm not going to permit the use of this to use
as a type of vengeance by some commanding officer on any
people under his command. I just haven't seen it. A. 54.
Nor did he ever see it, hear it, or for that matter seem to
understand it. After all he had allowed his fellow Colonel to
tell him and the other Colonels of his hopes.
-132-
". . . 1 drafted an article 15 up strictly on the basis of a re
fusal to obey and I talked to Colonel Fancy about it and he said,
'You can take it up to the Judge Advocate,*" said Colonel Fancy's
executive officer. A. 754. [Wjhich I did and the Judge
Advocate said, ’We will draft it.' I left that and the statement
that Colonel Rawlings took there." Id.
Then, once again a document disappears.
Q. And, your draft would be with the Judge Advocate?
A. No, I tore that up after the Judge had drafted it.
Q. You didn't file it?
A. No sir. Id.
Thus, an article 15 UCMJ proceeding had been initiated on
December 14, 1966, A. 866-67, withdrawn on December 23, 1966, and
upgraded to a General Court-Martial level on December 28, 1966.
A . 861-68.
-133-
3. A bell rings: The article 15 UCMJ proceeding escalates to
General Court-Martial Status— the role of the G-2 Dossier.1
"In December I did consult with the Staff Judge Advocate's
office about this matter," said Colonel Fancy. A. 99. He had al
ready spoken with them "about another matter” involving Dr. Levy. Id.
But,
After I had prepared the Article 15 charge sheets and after
the Judge Advocate had staffed them appropriately and re
turned them to me, at about this time I was called by the
G-2 office which told me that the G-2 dossier on Captain
Levy had returned from the Third Army Headquarters and re
commended that I read it, which I proceeded to do. A. 101.
Colonel Fancy had received no recommendation of that nature
about anybody else. Id,. Then,
The personnel from G-2 brought the record to my office and
I read it and felt that it contained information which might
have a bearing on the case and called the Judge Advocate
and asked that he review it, also. Id.
The Judge Advocate instructed him ". . .to hold off on ad
ministering the Article 15 which I [Colonel Fancy] was prepared to
do. I cancelled a request for Captain Levy to come to my office."
A. 102.
Colonel Fancy went to "the JAG office," discussed the Dossier, and
withdrew the Article 15. He said he. decided then that a General
Court-Martial was "more appropriate” . Id.
1. One role of the G-2 Dossier was to cause Colonel Fancy to
deprive Dr. Levy of conscientious objector status. Dr. Levy applied,
A. 116-17, and conscientious objector status was approved by all
appropriate persons including chaplains and a psychiatrist. Only
Colonel Fancy disapproved the request and, he did so on the basis
of the G-2 Dossier. A . 116-19.
-134-
Subsequently there was a_ conference, a_ brief conference, with
the Commanding General [soon to be transformed by the UCMJ into
"the Convening Authority"]1, Colonel Meeting and the Chief of
Staff, with familiarizing, but the Commanding General did not
tell me what action to take.
Q. You talked to him about it, didn't you?
A. I said very few words.
Q. I believe that . . . .A. 103. (emphasis added.)
Assuming the Commanding General did not "tell" him "what action
to take"--an assumption which some might find incredible--
Q. . . . the elevation of the Charge 1 from the Article 15 to
Article 90 violation was based on reading the G-2 dossier,
wasn't it?
A. In large part, yes, sir. A. 105.
_____ _ * ----- -
Colonel Fancy was himself in a rather frightening position. In
his first command post he had let the "pinko" go his own way. But,
Dr. Levy's way involved civil rights and forbidden words in a time
when dissent over a war was rising.
1. The "Convening Authority's" role is these proceedings had
not previously entered the case nor has it yet come to light. In
the proceedings on this petition the full extent of his participa
tion and, perhaps, that of his superiors should be made a subject
of inquiry. From Mr. West's beginning the case had grown. "Con
vening Authority" was, after all, only a Major General. As K.
put it, perhaps with (but perhaps without) paranoid intonations
--but then even paranoids have enemies:
there can be no doubt that behind all the actions of this
court of justice, that is to say in my case, behind my arrest
and today's interrogation, there is a great organization at
work. An organization which not only employs corrupt ward
ers, oafish Inspectors, and Examining Magistrates of whom
the best that can be said is that they recognize their own
limitations, but also has at its disposal a judicial hierarchy
of high, indeed of the highest rank, with an indispensable
and numerous retinue of servants, clerks, police, and other
assistants, perhaps even hangmen, I do not shrink from that
word. Kafka, supra, 57.
-135-
Somehow he and Dr. Levy had both been trapped by Newberry
County's history and its Special Agent. For when Mr. West had
first confronted him on October 2, 1966, was not Colonel Fancy
himself in the position of K. who—
. . . stared at the inspector. Was he to be taught
lessons in manners by a man probably younger than 1
himself? To be punished for his frankness by a rebuke?
Somehow from those trips to Newberry County in July, 1965,
when Colonel Fancy was far away to December, 1966, the current of
time had carried Colonel Henry Franklin Fancy, a man who tried to
mind his own business, into conference with his Major General.
He, Colonel Fancy, may now have become a "problem" for his Com
manding Officer.
Of course, when he arrived at Fort Jackson he should have
known that Commanding Generals- are often concerned about the
l7 Kafka, supra, 17, and was not Dr. Levy in the same
position for Kafka continues "And about the cause of his arrest
and its instigator was he to learn nothing?" Id .
-136-
local community and its customs.1
1. Indeed, Fort Jackson traditionally bows to the customs of
the State of Chairman Rivers and Senator Thurmond. See e .g.,
Caldwell v. Craighead, No. 5341 (M.D. Tenn. filed March 5, 1969),
the deposition of Dr. Wendell P. Whalum (in 1953 a member of the
Fort Jackson band) at 12;
"And there we were in front of the courthouse in Columbia . . . .
Several state dignitaries spoke. The band had played the Star
Spangled Banner
. . . whereupon the bandmaster called for this number that we
had not rehearsed. And to my utter disgust the middle passage,
the middle strain of this number was Dixie.
I will never forget how I felt and how Lewis King, a
trumpet player, threw his trumpet on the ground a black
trumpet player— really as a protest, but we were in the Army.
I asked why we were made to do this. And of course the
Army has a way of making you shut up, and we were shipped out.
Id. at 13.
In a recent (1969) letter to the Deputy Assistant Secretary
of Defense for Manpower, the Director of the Office of Federal Programs
stated, in part:
An analysis of the narrative and statistical housing program
reports filed by Fort Jackson in South Carolina, has revealed
that the bases' statistics do not illustrate what we believe
to be the true housing situation for Negro servicemen in these
areas. . . . While clearly there is an increase in the number
of open assurances received by the base housing office, these
statistics infer that there has been little integration of
housing facilities since our staff visit, at which time we
found that the only facilities housing Negroes were trailer
courts and slum-type dwellings. Our report also recommended
that a dialogue be established between the base command, their
Negro personnel, and the local Negro community, but the nar
rative reports from these bases make no mention of any minority
group contract. We believe that this is an instrumental step
by which the base command can develop an appreciation of the
problems that the Negro faces in the community.
In view of our concern for the substantive success of this
important program and the apparent disregard shown by your De
partment for the findings and recommendations of our report,
the Commission has decided to reevaluate the implementation of
the program, (emphasis added)
Fort Jackson sent its "minority group contact" to prison. It
did so because of his Newberry County "minority group contact."
-137-
4. Dhe G-2 Dossier: A Court-Martial convened on the basis of
secret documents.
On two matters there is no dispute: the charges were
escalated from Article 15 UCMJ status to General Court-Martial
status because of the 180 page G-2 Dossier and Dr. Levy's civilian
counsel, chief counsel in charge of his defense, was not allowed
to examine 100 pages of the very document upon which the charge
was based.
Article 32 UCMJ hearing testimony generally corroborated and
expanded on Colonel Fancy's trial testimony. Except there was no
testimony about the General.'*’
In the "middle" of December, 1966 "[t]he G-2 dossier became
available" to Col. Fancy. He "revised" his "estimate of the
situation."
Q. In what way?
A. At that time I was contemplating action under Article 15
[Article 15 UCMJ, 10 U.S.C. 815, providing for non
judicial punishment of a minor nature, i.e. the maximum
bang a withholding of privileges, suspension of pay and duty and
restriction to limits but, in none of these events for
more than one-half month] because of dereliction in duty.
As a result of reviewing the dossier and talking with the
Judge Advocate, I felt the charges of a more serious na
ture were present. 1
1. According to the Staff Judge Advocate " . . . there was a
brief conference with the Commanding General . . . familiarizing
the Commanding General with the situation." R. Vol. 19, 9. (em
phasis added)
- 1 3 8 -
Q. You ordinarily would have dealt with this as a dereliction
of duty problem, wouldn't you?
A. Up to that point.
Q. What was it about the dossier that made it seem more
serious than an Article 15 offense to you?
A. There were certain documents of a confidential nature
contained therein which indicated problems of a possibly
serious nature with other personnel. A. 526-27 .
Colonel Fancy, doubtless concerned, frightened, and confronted
by a problem potentially dangerous to his service career, had pre
viously talked about the matter with Col. Rawlins, his personnel
officer, who had told him
. . . there were certain records primarily in the hands of the
CID or CIC. . . .
CIC, and I told him I didn't know of any of the particulars,
but I knew there was certain undertow around the area that he
should be looking towards that end of it, too. A. 531.
The personnel officer's "loyalty" and "security" evaluation
was also based solely on the Counter-Intelligence Corps files. Id.
1.. See also A . 769-70. A discussion regarding the availability
of the G-2 Dossier then transpired. It was then, as always, "un
available" to Chief Defense Counsel. A. 527-28, 530, 532-37, 547-61,
622. Demands were made for the entire 180 page Dossier on the grounds
of the fifth and sixth amendments, the rights to due process, con
frontation, knowledge of the nature and cause of the accusation, and
effective counsel. Not only was his Chief Counsel deprived of the
right to view the Dossier but his military counsel, assisting in the
case was placed " . . . in a position also of a conflict somewhat akin to
that of Capt. Levy, in that Army regulations, of course, require him to
maintain the secrecy of matters in the dossier, while at the same
time his duty as an attorney to his client requires a full disclosure
to his client of all matters and facts that come into his possession
and knowledge." A. 557. See Exh. C. 50. Fourth amendment grounds were
also later invoked, A. 549, as were other constitutional demands
arising from the first and ninth amendments. At every opportunity
the Government contended that the defense was not entitled to dis
cover "techniques." See, e .g ., Testimony of West, A. 572-92.
- 139 -
There can be no doubt that Colonel Fancy was impressed by
the G-2 Dossier. As his executive officer put it, " [h]e just up
and suggested that I go read it.'1 A. 759.
Q. Well,he didn't suggest that just as a part of your
regular reading program?
A . I think so.
Q. Was there no given reason that you were to read this?
A. No, sir. Id.
Colonel Fancy's inordinate faith in the G-2 Dossier,the
Counter-Intelligence Corps and Special Agent West (whose findings
should have been "discarded" and himself "removed" by his "superiors,"
see Circuit Judge Madden in Lenske v. United States, supra, 383
F .2d at 28.) was as total as it was sad. To Colonel Fancy, Dr. Levy,
1. Was a "pinko" or "communist" A. 514-17;
2. Then, on February 17, 19677, he was not a Communist— "I
was worried about it for a while, but the C.I.C. conducted
a thorough investigation and it is my recollection that
they determined that he was not a communist." A. 903 . f1]
3. Then at trial the following transpired:
Q. it wasn't until February that you discovered that he
wasn't a Communist, was it, February of this year?
A. I have to my knowledge not yet discovered that fact.
q . i thought you said he got a clearance at your last--
I thought when you were testifying?
A. Yes, sir, I know what you mean and I thought I had a
clearance, but, I have subsequently been told that I
have not had a clearance.
Q. Well, that day you knew1 that he wasn't?
A. Yes, sir.
Q. And today you're not sure again?
A. Today I believe he has not yet been, I know he has
1. On February 17, 1967, he was as ". . • certain that insofar
as humanly possible he had been cleared as being a member of the
communist party." A. 138.
-140-
not yet been cleared by this National Agency check.
A. 105. 1
Colonel Fancy agreed that he " . . . obtained all my information
on Captain Levy's possible previous political beliefs from reviewing
a G-2 dossier and listening to questions from military intelligence
agents." A . 138. 1
1. It is clear that Dr. Levy should have been proceeded against
if at all under- 10 U.S.C. § 3791 which provides for convening a
board . . . to determine whether [an officer] shall be re
quired, because of moral dereliction, professional dereliction,
or because his retention is not clearly consistent with the
interests of national security,to show cause for his retention
on the active list, (emphasis added)
In such a proceeding among other rights guaranteed him he would
have been " . . . allowed full access to, and furnished copies of,
records relevant to his case at all stages of the proceeding, ex
cept that a board shall withhold any records that the Secretary
determines should be withheld in the interests of national security."
Where records are withheld the officer " . . . shall, to the
extent that the national security permits, be furnished a summary
of the records so withheld." 10 U.S.C. § 3795.
-141-
*
Thus, the G-2 Dossier— the entire-dossier— upon which Colonel
Fancy based his charges, that Special Agent West had helped pre
pare (in an office where there were during investigation and at
time of trial no Negro agents, A. 334), was denied to the sole
lawyer in complete control of the defense.
Colonel Fancy felt that Dr. Levy had a "fixation." A. 133.
But, the "fixation" resided in the office of the Counter-Intellignece
Corps; no one not subject to the domination of the "Convening
Authority" was going to view that Dossier in its entirety.
In attempting to procure the Dossier Dr. Levy's chief counsel
said,
One thing I might point out at this time also. Inci
dentally, I think I can get a security clearance. The file
itself, the dossier, should not the request be processed now,
also, even though we are going ahead with this proceeding to
get that under way, to have a determination made by the ap
propriate authorities in G-2? A. 552.
- 142-
See the Appendix, passim. See, e,g., A. 104.
Q. But, you didn't decide to move forward until you read
the G-2 dossier again, right?
A . Yes, sir.
The prosecutor reviewed the entire Dossier, A. 61, the law
officer reviewed it in camera, after, in effect, obtaining prose
cutorial permission, id., and military defense counsel, assistant
counsel, was allowed to both review it and to number its pages
"- • .so he can assure himself that the government [sic 1 is com
plying with the Jinks [sic! Act to its fullest extent." A. 558.
Of course, the Jencks Act, supra, had been rejected by the defense,
reliance on constitutional guaranties being made instead. Cf.
United States v. Augenblick, 89 S. Ct. 528 (1969) .1
Chief defense counsel also inquired as to whether or not the
defense was entitled to the production of favorable as well as un
favorable evidence. The prosecutor responded, "No, I don't say it
goes that far." A. 559.
Assistant military defense counsel did receive copies of all
statements which he requested but " . . . there were certain state
ments which I made no request for." A. 559. He ". . . was informed
by a representative of the G-2 section at Fort Jackson that I
could remove [no] . . . agent's report." A. 723. Nor was even he
1. The Board of Review specifically noted the "Defense dis
claimed, the application of the Jencks Act, 18 U.S.C. 3500." C. 37 n. 6
Cjf. Brady v. Maryland, 373 U.S 83 (1963); Semerjian, The
Right of Confrontation, 55 A.B.A.J. 152, 155 (1969). The G-2
Dossier suppression here implicates the first, fourth, fifth,
sixth and ninth amendments. Cf., id., nn. 40-42.
The totality of relevance of the document is overwhelming.
-143-
. allowed access to the agent's notes of his conversation
with Col. Fancy, only the statement that Col. Fancy made as
a result of that interview." A . 575.
It was pointed out to the law officer that if the assistant
military defense counsel could examine the dossier and reveal to
the Chief Defense counsel everything in the Dossier that would be
satisfactory. A. 60.
But the law officer responded, "Well, wait a minute. I
think you are going a little beyond what you say here. Can't the
military defense counsel tell you what statements he wants?" A. 60.
(emphasis added) This observation was made after and before a
rather detailed explanation that different lawyers look at things
different ways; that the two people most concerned and who knew
most about the defense were Dr. Levy and his principal counsel; and
that some lawyers were more experienced than others — all to no
avail.
The assistant military defense counsel along with everyone
else in the case— the prosecution, the law officer (over objection
in camera, A. 61-63), sundry colonels, no doubt a general or so—
-144-
Everyone saw the Dossier but the twosaw the entire Dossier,
men most in need of it— the defendant in a criminal trial and his
chief counsel. A . 58 and see Exh. C 50.
_____ * _______
To add a touch of irony to the deprivation of constitutional
rights nothing in the G-2 Dossier was of a security status higher
than "Confidential," Exh. C 50, and Dr. Levy's Chief Defense Counsel,
now has been provided clearance to enable him to view the entirety
of the transcript of a more recent case arising in Viet Nam, portions
2of which are classified "Top Secret." Exh. C , Morgan.
To subtract a touch of justice the Dossier was not made a
part of the Record, sealed or unsealed, although a request was
made therefor.. A . 80. 1
1. Cf. Kafka, supra, 198-99:
The whole dossier continues to circulate, as the regular
official routine demands, passing on to the higher Courts,
being referred to the lower ones again, and thus swinging
backwards and forwards with greater or smaller oscillations,
longer or shorter delays. These peregrinations are incal
culable. A detached observer might sometimes fancy that
the whole case had been forgotten, the documents lost, and
the acquittal made absolute. No one really acquainted with
the Court could think such a thing. No document is ever
lost, the Court never forgets anything. One day--quite un
expectedly-- some Judge will take up the documents and look
at them attentively, recognize that in this case the charge
is still valid, and order an immediate arrest.
2. Mr. Morgan's affidavit had not been completed at the
time of preparation of this brief. Consequently, pagina
tion is not included herein. At the time of filing Exh. C,
his affidavit will be included, paginated, and set forth
in the index therein.
-145-
To balance the matter with double-think the law officer
found the matter in the G-2 Dossier irrelevant, A. 67-68, al
though Chief Defense Counsel took what out of the military
setting might have been considered a rational approach:
In the first place if it is irrelevant it won't hurt for
us to have it. If it is relevant we would like to de
termine that ourselves. It seems strange to me that only
military personnel can determine what is relevant and what
is not relevant. A. 71. 1
1. An approach seemingly rational in other courts. Cf.
Alderman v. United States, 89 S. Ct. 961 (1969); Baker v. United
States, 401 F.2d 958 (D.C. Cir. 1968). And, here the Government
has never contended— nor could it— that national security has
anything to do with the Dermatologist from Brooklyn removed to
the clinic at Fort Jackson and, from there to prison, all on the
strength of the secret G-2 Dossier.
-146-
5. The suppression of evidence by the prosecution'
The prosecutor— before he had been appointed prosecutor, before
a court-martial had been ordered, before completion of the investi
gation to determine whether there should be a court-martial~-sent
"approximately 450 letters" "to some of Dr. Levy's ex-patients or
former Special Forces men, or someone relating to statements that
Captain Levy allegedly made." A. 78. This has never been denied.
See, e,g.,A. 79.
Demands had already been made for:
1. "copies of all signed statements obtained . . . whether
or not he [the signer] is a prospective witness" and,
2. "any other evidentiary materials in the government1s
possession" "including statements." A. 13.
Dr. Levy was, after all, charged with making statements to
"divers" military personnel. He had a "design" said the prosecu
tion. A. 1. The racial foundation of the "scheme" had been laid.
But the prosecution subpoenaed only 43 witnesses only 13 of whom had
heard a verboten word. Yet more than 450 questionnaires1 2 had been
1. There is a constitutional duty upon the prosecutor not to
withhold evidence helpful to the defense. See, e.g., Brady v. Mary
land, 373 U.S. 83 (1963), in which the Supreme ". . . Court concluded
that the prosecutor's conduct in withholding information material to
guilt or punishment, information which defense counsel has unsuccess
fully requested, violated due process." Giles v. Maryland, 386
U.S. 66, 102 (1967) (Fortas, J., concurring).
2. Some received more than one questionnaire— when Witness
Davis filled out his "first" questionnaire, he had "a very nasty
senior tech," R. Vol. 4, 682, so he answered "no, no, no, no,"
id. So Capt. Shusterman sent him another one which he answered
"yes, yes, yes, yes." Id.
-147-
transmitted to some of those who made 17,500 visits to his clinic
yearly.
Perhaps those questionnaires were mailed on a racially selec
tive basis. Perhaps the more than 400 persons who did not reply
or who replied negatively to the prosecution's inquiry could have
served as "divers" witnesses for the defense— witnesses to prove
merely a "design" to be a good physician and promote the princi
ples of democratic governments.
______ * ________
The then unappointed prosecutor for the then non existant
prosecution was called upon to " . . . state for the record that
you have no such evidentiary matter in your possession, or sub
ject to your control . . . which would be referrable to . . .
the charges upon which Dr. Levy was convicted. A. 869. Captain
Shusterman replied, "Mr. Morgan, I don't feel it is my duty state
one way or the other on that." Id.
The prosecutor then took the position that there is no
. provision under Military Law or under Federal Law for a broad
discovery of everything that may or may not be in the possession
of the Government . . . " and retreated to the Jencks Act. A. 870.
Later he entrenched in a new position:
I would just state for the record that anything I have in my
possession is related to work products which I understand
is then not subject to discovery. A. 879.
But he could not say that what he then had would not later
-148-
show up as "evidence.
"Well, I don't distinguish between work product and, evi
dence" he said. A. 880.
"Well, the law does," the defense responded. id.
He then confessed that "[t]he only thing I have in my mind
is some legal confusion here as to my legal requirement here and,
I am not trying to hide anything." A. 882. He then admitted he
had a "tape recording" of a "television interview." Id.
When asked if he had any non-produced statements from Dr.
Levy's former patients he simply stated, "I don't desire to
answer that." Id.
Thus Dr. Levy proceeded along the lonely road to Leavenworth
surrounded by half-truths, omissions and a total lack of candor.
He was trapped in a procedural and militarily contrived maze.
See, e .g ., A. 869—83, 886—89, 891—93.
As the prosecutor put it " . . . maybe somebody with much
more legal training than I would have some ability to draw that
distinction" between "work product" and "evidence." The defense
agreed, "Some m i g h t . A . 881.
Despite a request for an order to produce documentary or
evidentiary matter which was "real and physical," A. 887, that
order was not issued then, A. 888, or ever. 1
1. Indeed: "It seems clear and long has been recognized
that discovery should provide a party access to anything that
.is evidence in his case." Hickman v. Taylor, 329 U.S. 495, 515
(1947)(Jackson, J., concurring). See also id. at 508.
-149-
The prosecutor finally seemed to admit that he had the
statements but that the potential witnesses were " . . . in
terviewed in a way that they have to be considered addressed to
questions that I consider work product." A. 887-88.
As was true throughout, despite the Army's much talked about
1discovery procedures, no defense requests were granted. A. 891-93
and Appendix and Record, passim.
This suppression of evidence demonstrates clearly the ob
stacles faced by Dr. Levy.
1. There was a contention that there was a lawyer's "work
product" yet, the same person who relied on the "work
product rule" contended at trial that his prior ". . .
role primarily there was observing and asking a few
pointed questions . . . ." R . Vol. 3, 187. He had been
informed that he would prosecute, if a court-martial 1
1. Cf. United States v. Franchia, 13 U.S.C.M.A. 315, 320,
32 C.M.R. 315, 320 (1962).' But, see Shoup, supra, 56: "Thus the
military is indoctrinated to be secretive, devious and misleading
in its plans and operations. It does not, however, always con
fine its security restrictions to purely military operations."
On discovery and work product, see generally, Hickman v.
Taylor, 329 U.S. 495 (1947) .
Where relevant and non-privileged facts remain hidden
in an attorney's file and where production of those
facts is essential to the preparation of one's case,
discovery may properly be had. Such written statements
. . . might . . . be admissible in evidence or give clues
as to the existence or location of relevant facts. Or
they might be useful for purposes of impeachment or
corroboration. And production might be justified where
the witnesses . . . can be reached only with difficulty.
Id. at 511.
That, in criminal cases, the Hickman principles take on consti
tutional dimensions, see p. 141 n. 1, supra; pp. 155-56 . infra.
-150-
were convened. Id. at 187-88.
2. During the Article 32 UCMJ investigative proceedings on
Charges I and II the prosecutor had _in his personal
possession the copy of the letter which was to provide
the basis of Additional charges II and III.
After this was discovered and at trial the prosecutor's ex
planation was that of a simple over-sight by a harried, vacationing,
man with a briefcase (who had by now been assigned full time to
Dr. Levy). The Staff Judge Advocate had simply told him one
day:
"Here is a letter that I received from somebody in Okinawa.
It may give you some idea into the factual— into some of
the background material." R. Vol. 3, 100.
The prosecutor then just " . . . put it in my briefcase and
I didn't even look at it." Jtd. at 100-01. He then returned to Fort
Gordon, from which he'd been imported, took a week off, and " . . .
never read the letter until on the trip back on the plane, the first
time I read the letter." JCd. at 101. Then, on February 5, 1967, he
". . . said, 'I read that letter and, it looks to me to be a fa
cial violation of the [sic] 23871. . ." id.
"Colonel Meeting [the Staff Judge Advocate] frankly, when I
talked to him," continued the prosecutor, "when I came back said
he had forgot all about the letter. That is the only excuse for no
- 1 5 1 -
further action on that, that I know about. 1
In fact that letter had been received at Fort Jackson prior
to January 11, 1967. R. Vol. 3, 95.
On February 8, 1967, the last two charges were sworn to by
Colonel Fancy, again the "nominal" accuser. He had learned of
2the letter1s existence on that day or on the day before. Id. at 98.
That letter, A. 374-81, just unimportantly lying around in
a brief case, was used to present Dr. Levy's political views to
3the entire Court. 1 2 3
1. Cf. MCM para. 25, at 28: "An accumulation or saving up
of charges through improper motives is prohibited . . . ." Of
course, this is a protection for those who refuse to 1ie down and
roll over when the Army's prosecutorial process begins to grind.
Here the Army rolled over not merely Dr. Levy but also its own
rules, the UCMJ (never a very formidable Army adversary) and the
Constitution itself. Regarding the questionnaires and the letter,
cf. Kafka, supra, 135:
"Please don't ask me for names, take my warning to heart in
stead, and don't be so unyielding in future, you can't
fight against this Court, you must confess to guilt.
Make your confession at the first chance you get. Until
you do that, there's no possibility of getting out of
their clutches, none at all. . . . "
2. On February 13, 1967, the Department of the Army, Office
of the Staff Judge Advocate, promulgated an order relative to un
solicited mail received by Army personnel (Circular No. 380-3):
"Since the right to disagree with Government policy is an ingredient
of the American way of life, any disloyal opponent of U.S. policy
may attempt to use this right to undermine the morale of the ser
viceman through the use of unsolicited correspondence," says the
circular. Additional Charges II and III were brought against Capt.
Levy but five days before the circular was released.
3. See, e.g ., Shusterman argument to the Court, R. Vol. 9,
2554-65, pass im.
- 1 5 2 -
It was used with all of the racial over- and undertones the
prosecution could command. It was employed to show the fact-finders
what Dr. Levy thought of those men (including the four recently
returned court members) who served in Vietnam. It was employed to
tell them what he believed about race and foreign and domestic
policy. It was employed to tell what he really thought of those
eight white southern warriors judging him.
It became the genesis of the prosecutor's argument. R.rvol. 9, 2554,
Then, after the letter had served its purpose (and the faw officer,
Court, prosecutor or someone made a mistake) the letter charges
were, of course, dismissed. A. 367-69.
The real purpose of the letter charges seems transparent.
LAW OFFICER: Additional II and Additional III the Government
concedes are multiplicious for punishment
purpose at any rate?
PROSECUTION: Yes, sir. R. Vol. 3, 117.
Consequently at this stage of the proceeding the Army is
conceding that the letter charges are, in a sense, legally super
fluous; the maximum sentence, eleven years, is the same with or
without them. See id. at 129-30. But, after dismissal of the
letter charges the maximum punishment dropped in some mysterious
military manner to eight years.1 A. 367.
1, Perhaps the most apt description was that of the law
officer in a colloquy on instructions— "We are getting into a
kind of dizzy arrangement here . . . A. 325.,
- 1 5 3 -
6. The refusal to allow the defense to examine G-2 and Staff
Judge Advocate personnel.
Throughout the proceedings Dr. Levy attempted to obtain
witnesses who on the face of the Record had evidence relative
to the charges against him. These witnesses included the
Lieutenant Colonel with whom Colonel Fancy had discussed Dr. Levy
at least 12 times, the Staff Judge Advocate and G-2 personnel.
It was their consuming relevance to his defense that made
their absence crucial for the Army.1 These men were in charge of
"fixing up" the prosecution instigated by Special Agent West. See,
e ^ _ . , A. 18-19, 20-21, 622-26, 721-24, 824-29 848-68, 869-94,
904-96, and the Appendix and Record, passim.
Objections to the refusal to call these most relevant witnesses
were based on the first, fourth, fifth, sixth and ninth amendments.
The doors to G-2 and Judge Advocate offices remained locked.
Dr. Levy had no opportunity to present these witnesses re
garding his constitutional claims. Cf. Whelchel v, McDonald, 340
U.S. 122 (1950).
1. Cf. A.B.A Canon of Professional Ethics 5:
The primary duty of a lawyer engaged in public prose
cution is not to convict but to see that justice is
done. The suppression of facts or the secreting of
witnesses capable of establishing the innocence of the
accused is highly reprehensible.
-154-
7. The Government by invoking evidentiary privileges did so at
the constitutionally fixed price of letting Dr. Levy go free.
The Government by utilizing every technique at hand deprived
Dr. Levy of access to material essential for his defense.
In Dennis v. United States, 384 U.S. 855 (1955), where
criminal defendants were not allowed to view grand jury minutes
for want of a particularized need, the Supreme Court reversed saying
Nor is it realistic to assume that the trial court's
judgment as to the utility of material for impeachment
or other legitimate purposes, however conscientiously
made, would exhaust the possibilities. In our adversary
system, it is enough for judges to judge. The determina
tion of what may be useful to the defense can properly and
effectively be made only by an advocate [footnote omitted].
The trial judge's function in this respect is limited to
deciding whether a case has been made for production, and
to supervise the process . . . ." Id.. at 874-75.
And,
. . . in the criminal field . . . it has been held that the
Government can invoke its evidentiary privileges only at the
price of letting the defendant go free [footnote omitted].
The rationale of the criminal cases is that, since the Govern
ment which prosecutes an accused also has the duty to see that
justice is done, it is unconscionable to allow it to undertake
prosecution and then invoke its governmental privileges to de
prive the accused of anything which might be material to his
defense. United States v. Reynolds, 345 U.S. 1, 12 (1953).
See also Alderman v. United States, 89 S . Ct. 951 (1969);
Rosenberg v. United States, 360 U.S. 367 (1959); United States v .
Coplon. 185 F .2d 629, 636-40 (2d Cir. 1950)(L. Hand, J.), cert.
denied,342 U.S. 920 (1952); United States v. Beekman, 155 F.2d 580
-155-
(2d Cir. 1946); United States v. Andolschek, 142 F .2d 503 (2d Cir.
1944); United States v„ Cotter, 60 F.2d 689, 692 (2d Cir. 1932);
Cf. Simmons v. United States, 348 U.S. 397, 402-403 (1955).
Gonzales v. United States, 348 U.S. 407 (1955).
These decisions demonstrate clearly that the Government cannot
enmesh, a criminal defendant in a procedural maze and then deny
him the right to discover evidence, impeach witnesses and allow his
counsel the factual tools with which to fashion his defense.
-156-
8. There is no question that Colonel Fancy relied on the G-2
Dossier containing revelations regarding Dr. Levy's pre
service political beliefs and activities. The Court-Martial
was instituted because of that reliance and the prosecution
was invalid.
In Harmon v. Brucker, 355 U.S. 579, 580 (1958), the Secretary
of the Army issued discharge certificates
in form other than honorable. In so doing, he took into
account preinduction activities of those discharged rather
than basing his action exclusively upon the record of their
military service.
The discharged soldiers contended that the refusal of the
Secretary to issue "honorable" discharges and the action of the
district court and Sourt of appeals in their denials of review
deprived them of due process and the judicial trial guaranteed
by the fifth and sixth amendments. They also contended that the
statutes in question did not authorize the Secretary to utilize
pre-service activities in arriving at his decision.
It seems clear that in this case pre-service political
matter was a crucial consideration regarding the decision to
court-martial. C_f. Harmon v. Brucker, supra.
The testimony of Dr. Levy's accuser, Colonel Fancy, facially
demonstrates the desire of the Army to rid its ranks of an "un
orthodox" thinker, a "pinko"— perhaps a communist. This testimony
stands as a tribute to the Army's willingness to smother dissent
and to jail those who disagree or who may be merely different.
-157-
Howard Brett Levy entered the Army as a physician who dis
agreed with our policy in Vietnam. He was tagged a loyalty
security risk and four of the five charges against him are based
facially on his expressions of opinion. He did not picket, nor
was he disrespectful to his superiors. He expressed his vxews
privately and informally.
He has been denied access to most of the G-2 Dossier on which
the charges against him are actually based.
The charges are facially politically motivated. They arose
from the denial of a loyalty security clearance. And it is equally
clear that rather than utilize existing statutory and regulatory
authority regarding loyalty security matters, the Army intended to
punish him for beliefs and associations held prior to hi? entry xnto
the service as well as expressions of opinion.
Thus far, it has been able to do so.
-158-
B . The order to train Special Forces Aidmen was violative
of accepted standards of medical ethics and was in viola
tion of the first, third, fourth, fifth and ninth amend
ments of the Constitution.
1. Physicians have been singled out for _a special kind of non-
"military" duty--the rule of Orloff v. Willoughby, 345 U.S.
83 (1953) .
As in Orloff v. Willoughby, 345 U.S. 83 (1953) , Dr. Levy was
brought into the service as a physician and he contends he was
diverted " . . . from the class of work for which [he was] con
scripted . . . rais[ing] questions not only of bad faith but of
unlawful discrimination." 345 U.S. at 88. The lesson of Orloff's
majority is that (1) Dr. Levy could only be treated as a physician
(2) he could only be required to perform "occasional and incidental
duties not strictly medical" 345 U.S. at 93 and (3) the courts
cannot review by habeas corpus his garden-variety military duty
assignments.
Levy presents a rather terrifying aftermath to Orloff.
Orloff, a physician entered the service via the Doctor's
Draft Act but refused to disclose his political affiliations
claiming fifth amendment privileges. The Army refused to commis-
1
sion Orloff or to allow him to practice medicine. He sought a
discharge unless used as a physician. Orloff sought no commission.
The Army contended that it could use physicians however it
pleased. 1
1. "Since 1847 . . . Army doctors have served only when
they have been commissioned to do so as officers, [footnote
omitted] This long-standing Army practice is in harmony with the
law as it exists today." Orloff v. Willoughby, 345 U.S. 83,
95-96 (1953) (Black, J. dissenting, joined by Douglas and Frank
furter J. J.) _1 5 9 _
In the Supreme Court " . . . the parties changed positions
nimbly as if dancing a quadrille." 345 U.S. at 87. The Court
commended the Government for its confession of error regarding
" . . . its duty toward those conscripted because of professional
skills. . . . [T]o divert them from the class of work for which
they were conscripted would raise questions not only of bad faith
but of unlawful discrimination" said the Court, 345 U.S. at 88,
which then held that Orloff need not be commissioned nor dis
charged but approved of his assignment to medical and allied
duties.
Levy was assigned to not merely " . . . occasional and inci
dental duties not strictly medical." He was ordered to train
combat troops (unlike medical corpsmen and others covered by the
Geneva Convention) to serve as quasi-physicians without medical
supervision in Viet Nam.
If Orloff was " . . . being held in the Army not to be used as
a medical practitioner, but to be treated as a kind of pariah in
order to punish him for having claimed a privilege which the
Constitution guarantees," as Justices Black, Douglas, and Frank
furter, dissenting, contended, 345 U.S. at 97, then we have now
come full course. For Dr. Levy did disclose attendance at eight
public lectures sponsored by the Militant Labor Forum. Even though
classified a security risk he was continued as a commissioned
officer-physician by the Army.
-160-
Levy unlike Orloff was never deprived of the right to practice
medicine. Indeed, he practiced medicine until the eve of the
trial. The dissent in Orloff noted:
. . . if there was any genuine question about his loyalty
to our country, it seems unthinkable that any responsible
person in the armed forces would be willing to let him
have any part in the treatment of sick and wounded soldiers.
345 U.S. at 96.
"Unthinkable" or not this is exactly what the Army did
during the entire time that Levy was in service. It continued
this "unthinkable" practice throughout 1966 even after October
11, 1966, when the order to train Special Forces Aidmen was given;
after December 28, 1966, when the General Court-Martial charges
were lodged; and after March 3, 1966, when the General Court-
Martial was ordered convened until the day preceding Levy's
trial.
Orloff1s dissent 345 U.S. 95, fits Levy's situation regard
ing all charges against him— he was made a "pariah" because of
exercise of constitutional rights.
Following Orloff, Congress passed Pub. L. 84, 83d Cong.,
1st Sess., § 3, 67 Stat. 90 (1953), amending the Doctors Draft
Act, Pub. L. 779, 81st Cong., 2d Sess., 64 Stat. 828 (1950). The
jniiitary continued to refuse commissions to dentists and physicians
due to their political beliefs or associations or for other
reasons and to hold them in the service despite the amend-
-161-
ment. The Fourth Circuit ordered the release of a dentist so
held in Nelson v. Peckham, 210 F .2d 574 (4th Cir. 1954)1
On June 18, 1954, the Doctors Draft Act was again amended
for the express purpose of abrogating the rule of Nelson v.
2Peckham, supra. See 68 Stat. 254. The House Committee on Armed
Services made clear in its report that . . if a physician
. . . is commissioned and is then found to be a security risk,
his commission can be terminated and he can be continued on
active duty as an enlisted man or discharged." h . Rep. No.
1771, 83d Cong., 2d Sess., 1954 U.S. Code Cong. & Ad. News 2386,
2387 . 1 2
1. See also Peck v. Carpenter, 120 F. Supp. 660 (N.D. Cal.
1954); Nelson v. United States, 156 F. Supp. 724, 726 (Ct. Cl. 1957)
where the Court of Claims in ordering that Nelson be provided Cap
tain's pay after discharge noted: "there can.be no doubt as to
the meaning of the law. We can only believe that the responsible
officials overlooked the law, as we cannot believe that any respon
sible official would refuse to comply with the manifest provisions
of the law. It must have been an oversight for it seems to us
that any reasonable creature whose mind was not in a state of do-
ver who had read the . . . law . . . would [conclude that] . . .
a commission would be required . . . ." See also (regarding re
covery of commissioned officer's pay) Belsky v. United States,
290 F .2d 593 (Ct. Cl. 1961) .
2. The current counterpart of this statute is found as a
proviso to 50 U.S.C. App. § 455(c).
- 162 -
At that time (June 8, 1954) of 24,721 physicians and den
tists inducted under the Doctors Draft Act only 19 were denied
commissions and required to serve in enlisted rank. Each of
these was regarded a security risk. _Id. at 2387.
The committee noted the provisions of the legislation would
result in the disallowance of the invocation of the fifth amend
ment's incrimination clause as a ground for escaping military
service. It then stated:
If upon investigation the physician or dentist is found
to be a communist, or is a dangerous security risk, then
he may be administratively discharged as undesirable. Id. at
2388
Of course, even though Dr. Levy entered the armed forced
under the Doctors Draft Act, he did not invoke the fifth amend
ment as did Orloff, but was then also considered a security
risk. He was not "administratively discharged as undesirable."
He was prosecuted and made a "pariah" instead— and a jailed
"pariah" at that.
- 163-
2. The conf1ict between medical ethics and Colonel Fancy 1s order.
The order must relate to military duty and be one
which the superior officer is authorized under the
circumstances to give the accused.
A person cannot be convicted under this article if
the order was illegal; but an order requiring the per
formance of a military duty is presumed to be lawful
and is disobeyed at the peril of the subordinate.^
Acts involved in the disobedience of an illegal order
might under some circumstances be charged as insub
ordination under Article 134.
That obedience to a command involved a violation
of the religious scruples of the accused is not a
defense.
— MCM para. 169b, 3 21. (emphasis
added) 1 * * * S.
1. The burden of proof is thereby shifted to the defendant.
In holding a shift of the burden to prove alibi to the defendant
unconstitutional, the Eighth Circuit said:
. . . this much is clear: when the burden of persuasion
is shifted to the defendant to disprove essential
elements of a crime . . . then it is certain that the
due process clause of the Fourteenth Amendment has
been violated. Stump v. Bennett, 398 F.2d 111, 118
(8th Cir.), cert, denied, 89 S. Ct. 483 (1968).
The vital prejudice here is that the instruction com
pels the jury to belive [sicj the state's evidence .
. . unless the defendant is able to overcome its
effect by preponderating proof. 398 F.2d at 119
(footnote omitted)
Stump was approved by the Supreme Court in Johnson v. Bennett, 89
S. Ct. 436 (1968). Cf. Morissette v. United States, 342 U.S. 246,
249, 274-75 (1952). It should be noted that the presumption here
is not statutory: " . . . incriminating presumptions are not to
be improvised by the judiciary. Even congressional power to facil
itate convictions by substituting presumptions for proof is not
without limit." 342 U.S. at 275. (citation omitted)
-164-
*
I gave the written direct order to Captain Levy in
order to obtain from him basic dermatology training
for special forces aid men. I regarded this as a
strong corrective measure, a strong educational
measure, if you will. a . 86.
— Colonel Henry Franklin Fancy ̂
______*______
I swear . . . that according in my ability and
judgment, I will keep this stipulation:
that by my precept, lecture and every other mode
of instruction, I will impart a knowledge of the
art to . . . disciples bound by a stipulation and
oath, according to the law of medicine but to no
others. . . . Whatever . . . I may see or hear in
the lives of men which ought not to be bespoken
abroad, I will not divulge, as reckoning that all
such should be kept secret. A. 271.
— Oath of Hippocrates.
*
Well, I would say that the whole thrust of progress
has been to separate the functions of the doctor and
his auxiliary from the main function of our means
which has to do with the destruction of life and
property . . . . A. 288. . . . I am certainly too
convinced that it's absolutely essential from the
evolution of man, not to permit any abuse of medicine
and to remove its partisan character. . . .A. 290.
It is an ethical judgment and it is one which is
based on the whole thrust of what professional men
have for the past twenty-five hundred years have
tried medicine to make. A. 294.
— Dr. Jean Mayer, Harvard Medical
School.
-165-
*
I believe that in order to be a good and ethical
physician he must refuse to obey an order which he
believes violates his medical ethics. A. 299.
The decision I believe must be made on medical
grounds rather than on political grounds if the
medical profession is to be able to help the
people. If they are being sent there to do a
political and military job rather than a medical
job, they will end up in my opinion doing neither
a good medical job nor a good military job. a . 307.
— Dr, Victor W. Sidel, Harvard
Medical School .
______ *_______
Q. Now you discussed the political use of medicine.
That merges into a military use of medicine also,
doesn't it?
A. Certainly. The military is after all only a
political instrument. R. Vol. 7, 2154.
--Colonel Richard L. Coppedge.
______ * ______ _
The substantive issue is the role of. medicine in
military service. Traditionally the military has
kept separate its wounding and healing functions,
a separation rooted in both sociology and pragma
tism. What is meat for the military ■— command,
obedience, reliance on authority, willingness to
kill — is not easily reconcilable with the healing
arts. Within the Army organization, physicians, both
draftees and career officers have special status.
. . . [I]f the officers of a unit become unable to
exercise command, the highest-ranking enlisted man
takes precedence over the medical officer. The
Army has not necessarily learned to love its doc
tors, but it has at least devised ways to accommodate
to the traditions of their profession.
-166-
The Special Forces program for which Levy was
asked to provide training violates these traditions.
. . . E. Langer, The Court-Martial of Captain Levy:
Medical Ethics v. Military Law, 156 Science 1346,
1347 (June 9, 1967).______ * -------
When Col. Fancy first arrived, of course, he is
wholeheartedly in support of [Special Forces] train
ing, and, of course, being taken over command he was
interested in the full evaluation of the training
program, because the Special Forces are one aspect
of training that we are responsible for. A. 542.
— Sgt. George B. Curry.
The following answers to questions posed by
members of the press were supplied by the Informa
tion Office, U.S.A., Special Warfare Center, JFK,
Fort Bragg.
Q. If Special Forces aid men are captured do you
expect them to be treated as medics or combat
troops ?
A. Combat troops.
Q- Do they carry arms?
A. Most assuredly.
Q. Are their ID cards specially annotated to reflect
that they are medics as opposed to combat soldiers ?
A. No, they are not so annotated. R. Vol . 18, Exh.
22. See also R. 2011-17.
. . *
. . . [I]n a struggle like this which is in many re-'
sepcts a social struggle that we have got to turn to
the use of social instruments such as medicine. So
in this way we sought to use medicine as a means of
approaching the enemy and imposing our will on his. a . 279
— Colonel Richard L. Coppedge.
He said that he felt that what he was doing was jus
tified and right and ethical, and he would continue
not to train special forces, a . 606.
— the position of Howard Brett
Levy, M.D.
-167-
3. The Special Forces of the United States Army— the elite corps.
"Sort of an elite corps," with a GT score (measure of intel
ligence) "higher generally for special forces than others," de
scribes this comparatively small segment of the Army. R. Vol. 4,
721.
Its basic fighting unit consists of twelve men, each of
whom is made by cross-training a specialist in at least two and
hopefully more guerrilla skills. A. 225.
On each A-Team there is an officer in charge, a second offi
cer in charge, and an operations and intelligence sergeant.
There are two aid men, demolitions men, weapons sergeants, and com
munications men. The twelfth man comes from one of these special
ties. R. Vol. 2, App. Exh. 4, Exh. 5, 64.
They are ". . . a highly motivated, well disciplined group.
They are all volunteers." Id.
Special Forces aidman cross-training includes:
1. " . . . [Ajmbush . . . . [h]ow to make different
types of bombs, shotguns, etc. To set off, usually
in a circle-type defense, to trap people in the cen
ter." R. Vol. 2, App. Exh. 4, Exh. 2, 24.
2. " . . . [H]ow to set a charge, how to ignite
a charge, how to set up an ambush, and a few . . .
just little old bombs, a few types of bombs and
explosives you can make." Id. at 10. (ellipsis in
original)
-168-
id. at 25,3. Use of "anti-personnel mines,
"[d]emolitions," "engineering, weapons, commo,"
id. at 109-09a, " . . . machine gun, 50 calibre
machine gun, automatic rifle," id. at 60.
4. "[T]actics and techniques," id. at 68.
5. "Advanced Infantry Training," "jump school"
id., "electronics," id. at 85.
6. " . . . [C]ivil projects to try and build
churches and things they need. Not bring them to
our way of thinking if they didn't want to come, but
to help them in their own life." Id. at 43.
They train indigenous people, among other things:
1. To do that which Special Forces know how
to do. A. 232.
2. To organize and fight as independent units.
Record, passim
3. To operate assassination teams. A. 231.
As the Staff Judge Advocate noted in his summary of the tes
timony of Colonel Juel: 1
1. In Panama we train Latin America's armies. R. Vol. 4,
650. See, e,g., R. Vol. 4, 649 where one witness was involved in
training the " . . . Panama Police Force, sort of like the National
Guard, called the Guardia Nacionale . . . ." We have Special
Forces " . . . all over the world." A. 232. The group in Germany
" _ _ is probably the most famous and oldest operational group.
Id. In South Vietnam there were 72 A-Teams, approximately ten
3—Teams and four C-Teams. A. 229. As their alphabetizing sug
gests each B-Team has under it several A-Teams and each C-Team
has under it several B-Teams. B-Teams may have physicians as
signed to them; A-Teams do not. R. Vol. 4 , 574-75.
-169-
The approximate objectives of the Special Forces are:
(a) To plan and conduct unconventional warfare opera
tions in areas not under friendly control; (b) to or
ganize, equip, train, and direct indigenous forces in
the conduct of guerrilla warfare; (c) to train, advise,
and assist indigenous forces in the conduct of a
counter-insurgency and counterguerrilla operations in
support of United States cold war objectives; and (d)
to perform such other Special Forces missions as may
be inherent in or essential to the primary mission of
guerrilla warfare. The decision to evacuate patients
or abandon patients is that of the commanding officer
and not of the individual Special Forces aidman. The
Special Forces aidman is basically a soldier first an_
aidman second. R. Vol. 19, 51. (emphasis added)
See also A. 224.
n # [U]nconventional warfare is composed of interrel
fields of guerrilla warfare, evasion, and subversion against hostile
states." A. 226-27.
" . . . [ G ]uerrilla warfare forces . . . interdict enemy lines of
communication and . . . interdict enemy installations and centers
of war production, and . . . conduct other defensive operations in
support of conventional military operations.
The " . . . supporting tasks are intelligence, psychological
warfare, evasion, and escape, and subversion against hostile states."
Id.
-170-
4.
"The special forces trooper is basically a soldier" said
Colonel Roger A. Juel, "and an aid man as a secondary occupation."
A. 226. Colonel Juel was ". . .in charge of Special Forces aid-
man training . . . ." R- Vol. 5, 930.
" [T]he actual GT score that special forces aidmen have is
higher than the average for OCS." A. 223. Their average score,
comparable to I.Q., is "127." A. 221.
The people who come into the [Aidman] program are first of
all volunteers for the program. Secondly, they have to
have a GT score of 110, which is ten points above the GT
score asked for for other Special Forces volunteers. We
feel that the higher intelligence of these people adds to
their trainability. During the time they're there besides
the GT score, we find that because they are volunteers, they
have a higher motivation than I've seen in most other troops,
indeed in many of the students I've seen in other schools.
R. Vol. 8, 2466.
" . . . [T]hey have been one of the greatest weapons we have
had against communist subversion and this is particularly true to
Vietnam." A. 228. Theirs is the most important part of special
forces work. Id.
By the nature of their work they are often on combat patrols.
A. 224. Thus a conscientious objector could be a medic but not an
Aidman since Aidmen kill. A. 225-26, see also A. 236-37.
They sometimes use sodium pentathol on prisoners, A. 229-30,
for there is no way ". . .to fight guerrilla warfare by the rules."
A. 231.
The Special Forces Aidman— the elite of the elite.
-171-
Assassination . . is an integral part of guerrilla warfare
just as is medical people trying to help the people of an
area to win the hearts and minds of the people." A. 231.
Aidmen work with the CIDG-Civilian Irregular Defense Groups—
and, sometimes two A-Teams will work with a force of up to 1500
men. A. 233.
They must have medical training for " . . . it's part of their
job when you got twelve Americans and five hundred indigenous people,
those Americans have to do everything." A. 235.
[1 ]The Aidmen do ". . . very little treatment of the Americans,
most superficial of basic treatment. If it was anything requiring
serious treatment, he [the American] would be evacuated where he
would be treated by doctors . . . . [T]he major portion of
his [the Aidman's] . . . practice of medicine, would be the treat
ment of local civilians . . . ." A. 239.
1.
A. 524.
. . [T]hey are not as well trained as practical nurses.
5. The Pol itical Use of Medicine by the American Military.
"This is a political use of medicine; certainly its effects
are political," said Colonel Richard L. Coppedge. "The motives
of those who engage in it may differ." A. 270.
Colonel Coppedge-*-, formerly Chief Surgeon for the Special
Forces' Warfare Center originated the Aidman program. He did not:
. . . see anything incompatible really in the human
itarian aims of this program and the political aims
of the program and the military aims of the program. 1
1. According to one of the revealed documents from the G-2
Dossier (an Agent's report prepared, once again, by Special Agent
West) :
Lieutenant Colonel Richard E. Coppedge, Surgeon, John F.
Kennedy Special Warfare Center, Fort Bragg, N.C., held a
conference with the Commanding Officer and his staff con
cerning the training of Special Forces Mecical personnel
at the US Army Hospital, Fort Jackson, and SUBJECT'S [Levy's]
attitude and handling of Special Forces Medical personnel
was brought to their attention by someone, because Lieuten
ant Colonel Coppedge, who is now at Johns Hopkins Hospital,
Baltimore, Maryland, stated that he was going to attempt
to have the New York Medical Association bar SUBJECT from
the practice of medicine in the State of New York. Source
has never heard anything more about this matter. A. 415.
At trial the "source" of this report, Sgt. Curry, pointed up
another of Mr. West's "errors." It was not Colonel Coppedge who
said this; it was Sgt. Curry. A. 314.
Q. Is this statement untrue?
A. It is not as I said it there, sir. A. 315.
Colonel Coppedge said he made no such statement about the New
York Medical Society, R. Vol. 8, 2135, but was called by a "CID"
investigator about the alleged conversation. He recalled no dis
cussion about Dr. Levy, id., 2158-59. No correction of or docu
ment about this "error" appears in the revealed portion of the
G-2 Dossier.
-173-
Some people might object to medicine being prostituted
to political purposes, but I don't see it that way. I
see us in medicine as using the politicians for our
purposes which are purely humanitarian, and why not?
At the same time we assume, we in the service assume
that we are pursuing the right policy and is the
proper one. fsic] A. 281.
The Staff Judge Advocate summarizing Colonel Coppedge's tes
timony said:
The purpose of the Special Forces medical aidmen
training at the time of its institution in 1954
was primarily geared to the type of situation where
the Special Forces would be deployed behind enemy
lines to assist in the organization, training, supply,
and direction of guerrilla forces. With the advent
of the Vietnam war the mission of the Special Forces
changed somewhat; there were more counterguerrilla
forces than there were guerrilla forces. It became
recognized that the struggle was more than a matter
of weapons, that the struggle was in many respects
a social war in which social instruments such as
medicine would have to be utilized. So "we sought
to use medicine as a means of approaching the enemy
and imposing our will on his." This is a peculiarly
American approach and is opposed to the Viet Cong
approach which is more likely to be terroristic.
This is a political use of medicine. Colonel Cop-
pedge believes that in the next fifteen or twenty
years we will see people like the Special Forces
medic employed by the physician as his assistant
in the practice of civilian medicine. When the
Special Forces aidman training program was estab
lished, there was quite a great deal of opposition.
There was an attempt to explain to physicians what
Special Forces aidmen were and what they were doing.
Colonel Coppedge and Colonel Juel made trips to all
the hospitals which were expected to carry out a cer
tain part of the training. R. Vol. 19, 58.
-174-
. . . [T]he one great "in" that you have is this
medic [Special Forces Aidman] because people are short
on doctors and trained medical personnel in there;
that the thing to do is sort of push a medic up
there in front and let him get the confidence of
these people by treating them; usually it starts
off— sometimes it starts off very slow, but the
word gets around. More and more people are coming
for this treatment; certain dependency is sometimes
involved; then, of course, this lays the way open
now for the rest of the team to come in and organ
ize them in their primary mission which could be
border surveillance; it could be CIDG strike force;
it could be regional forces, popular forces.
That is part of the medical program in that this is
the propaganda value of the medical program.
A. 240. --------------- - y
"Medicine as a weapon" has now become admitted military policy.
One of the techniques recommended to gain the confidence of the
guerrilla force is the establishing of a medical facility to provide
limited treatment to noncombatant people. Field Manual (FM) 31-21,
par. 52. 1
1. And on July 15, 1967, 3 U.S. Medicine, No. 14 (a govern
ment publication distributed to Army doctors and medical installa
tions) bore on its cover a picture captioned "Green Beret Medic
SFC Donald E. Bradshaw on duty with Army exhibit at AMA meeting
in Atlantic City," along with the legend, "MEDICINE AS A WEAPON,"
giving the title of an article on page 3 as, "In the War to Win
Men's Minds Medicine Can Be Considered to be a Weapon."
175-
One of the stated objectives of guerrilla operations is to re
inforce civilian beliefs in the strength of the guerrilla force and
in its political as well as military objectives. See PM 31-21, par.
56. The Special Forces commander is urged to implement certain
"psychological operations" to accomplish this objective. In the
words of FM 31-21: "Within the limitations of resources available,
operations initiated primarily for their psychological effects may
include— (1) Supporting the civilian population by sharing medical
services and supplies." Id.
Aidmen may be placed at any time in the position of abandoning
strictly humanitarian concerns in the care and treatment of the sick
and wounded in favor of the limited military mission of the A-
Team.
Aidmen learn their political lessons well.
"Your main purpose was you wanted them to have confidence in
you," said one of them. R. Vol. 2, App. Exh. 4, Exh. 10, 109.
They treat those they can and send the others elsewhere. id.
"And we were making friends," the Aidman continued. Id.
By doing so they " . . . were assisting our war effort or military
1intervention." .Id. at 109a.
l7 For yet another example of political use of medicine see
R. Vol. 7, 2154. Indeed, medicine is even used as a form of money,
a barter item. See R. Vol. 7, 2201.
-176-
6. Aside from the use of medicine as a political and military
tool the ethical requirement of confidentiality rendered the
order invalid.!
2A. Privil eged communications, women and Special Forces Aidmen.
A . I strongly believe that special forces aidmen should be
exposed to women and children during their training peri
od, and venereal disease is an important part of their 1
1. _Cf. The Principles of Medical Ethics of the American
Medical Association which require the rendering of . . service to
humanity with full respect for the dignity of man." Physicians
". . . should make available to their patients and colleagues
the benefits of their professional attainments." A Doctor must
". . . safeguard the public . . . against physicians deficient
in moral character or professional competence." He ". . .
should not dispose of his services under terms or conditions
which tend to interfere with or impair the free and complete
exercise of his medical judgment and skill or tend to cause a
deterioration of the quality of medical care." He ". . . may
not reveal the confidences entrusted to him. . . . unless he is
required to do so by law or unless it becomes necessary to pro
tect the welfare of the individual or of the community." Ameri
can Medical Association, Opinions and Reports of the Judicial
Council (1964), VI-VII.
"There is but one code of ethics for all . . . ." .Id. at
1. And "[t]he avowed objective of the profession of medicine
is the common good of mankind." Id., at 9.
"It is unethical . . . to be false in any manner to the
trust imposed in him by his patients." _Id. at 15. "Confidences
concerning individual or domestic life . . . and defects in the
disposition or character of patients . . . should never be re
vealed unless . . . required by the laws of the state." Id.
at 55 .
2. There is considerable question as to whether or not
Col. Fancy would have been able to obey his own order under the
circumstances. He obviously knew nothing about the actual sta
tus of Special Forces Aidmen. For example, he would not have
allowed his own daughter to be examined by non-medical person
nel. A. 116.
-177-
training familiarity with venereal disease. The major
part of this training would be conducted on males and
a very-very limited extent on females.
Q. You believe with respect to all that female training
should be explained in detail to the women before the
aidmen examines?
A. I believe that any patient deserves a few words of ex
planation as to why people other than the doctor or
possibly the nurses in the room.
Q. Do you have any 'estimation of how many physicians in
your hospital explain that to women?
A. No, I have no idea.
Q. You have ordered them to do so haven't you?
A KTo c i r
--Colonel Henry Franklin Fancy.
_____ * ______
MORGAN: In your statement you state "Levy told me he
had only women patients and I was not allowed there."
Does that mean in there with women patients?
WASCUS [s_ic]: I assumed it did, yes sir.
MORGAN: You didn't assume that meant the clinic or any
thing like that— you just assumed he meant where the
patients were?
WASCUS [sic]: Right. R. Vol. 2, 80.
--Sp. 6 Joseph Anthony Waskas.
________* _______ _
When I was assigned to the dermatology clinic I did not
receive any training at all.
When I went to Capt. Levy to work with him He told me
in a very rude and disrespectful manner that "there were
nothing but female patients." From the way he said this
I decided that he didn't want to teach me anything and that
I didn't care to be around him so I didn't go back to the
dermatology clinic. R. Vol. 2, App. Exh. 4, Exh. 9, 100.
--Sgt. Richard Mauldin Campbell.
________* _________
A. No, sir, the patient does not give a written consent
for us to do it.
-178-
Q . He doesn't give a written consent at all, does he?
A. No. A. 644.
--Prosecution witness, Sgt. Landing.
______ * ________
Well, I had an appointment on January 17th at the dermatology
clinic, and Captain Levy was not there. They had Dr. Alli
son in his place; and when I went in the room, I handed him
my records, and all the special forces was in the room.
He asked me where my trouble was. I told him below the
waist, below my belt, and on my legs. He asked could I
$how him without going to the examination room. I did not
make an answer whatsoever; I gave him a dirty look. So
he sent for the sergeant to get a nurse. So when the nurse
came, I went in to undress, and told her the story of what
Dr. Allison had said to me. So then, thinking Dr. Allison
would be the only one coming in to examine me— It was Dr.
Allison, Dr. Caras, and eight or ten Special Forces men.
Well, I was undressed. He pulled the sheet down, looked
at it, showed those men the private part of my body, and
said those dark spots were cold spots or nerves or some
other name— some medical name I don't know. R. Vol. 6,
1098-. , . t . . .— Mrs. Helton, a military dependent patient.
________* _________
. . . [H]e [Colonel Fancy] told me that if we were going
to use Fort Jackson facilities, we would have to accept
this .
Q. . . . [D]id Colonel Fancy say to you, "We have to take
our patients where we find them"?
A. Yes, sir, he did make that statement— on the phone.
Q. And did you discuss with him your wife being made a
guinea pig?
A. Yes, sir, I did.
Q. And did he respond that, "She will just have to accept
that if she accepts treatment"?^ 1
1. Cf. The Oath of Hippocrates. A. 271. Also see, the
Oath of Maimonides: "[F]or the enemies of truth and philanthropy
could easily deceive me and make me forgetful of my lofty aim of
doing good to thy children. May I never see in the patient any
thing but a fellow creature in pain."
-179-
A. Yes, he did. A. 247-48. See also A. 243-49, 382-88.
— Defense witness, Sgt. Helton.
b. Venereal disease.
Dr. Levy's practice in dermatology included treatment of
large numbers of patients who had contracted venereal disease.
After clinical diagnosis ". . .he referred them to Preventative
Medicine." R. Vol. 6, 1070. There since " . . . everyone places a social
stigma on this individual as soon as the word venereal disease
1is mentioned . . . a confidence . . . " is developed. Id.
". . . [I]nterviews must be strictly confidential, and we must
make sure the person realizes it is extremely confidential."
Id. From the interview the names of contacts are obtained, they
are traced and contacted through "medical and health" agencies.
Cards are coded and secrecy is stressed. J[d. at 1060-79.
In the Office of Venereal Disease Control in Columbia, South
Carolina, work the Venereal Disease Contact Investigators (V.D.I.s) 1
1. "Fear of possible 'social disgrace' is preventing the
eradication of social disease in this country, the surgeon gen
eral of the U.S. Public Health Service" has said. Atlanta Jour
nal , Feb. 14, 1968, p. 4-A. But " . . . fear of public ridicule
causes V.D. sufferers not to report the disease to doctors." Id.
"He compared the social barriers in reporting of V.D. as
similar to ones early in the century about yellow fever and
tuberculosis." Id.
-180-
Id. atassigned there by the United States Public Health Service. —
1082. 1 There V.D.I.s receive " . . . a lecture on confidentiality
on the first day." Id. at 1083.
The law requires that reports be made to the state health
authorities but
[i]t would be a violation of ethics to talk to one of
his [a physician's] patients without his permission. It
would tend to break down the doctor-patient relationship,
and we must maintain that. Id. at 1086.
So, if the physician refuses to give his permission there
is no attempt made to contact the patient, despite the law. R.
Vol. 6, 1087 . And, to assure the confidentiality of the records
the Director, Division of Venereal Disease Control, testified that
information regarding venereal disease:
1. Most cases of syphilis are treated by private physicians.
Of those only about one-fourth are reported to public health
authorities. U.S. Dept, of Health, Education and Welfare
Public Health Service, The Eradication of Syphilis, 11 (1961) . Contact:
searches are extremely important since two of every three patients
yield at least one contact with infectious syphilis. Id. at 12.
But, contact searching fails because public hospitals fail to re
port, private physicians refuse to allow public health officials
to interview their patients or, in some instances, the patient
fails to give his or her correct name or address. Id. at 14.
-181-
is filed by what we call a phonetic code, and it's a locked
file. No one has access to it except two clerks whose re
sponsibility it is to keep that closed and keep it classi
fied. I don't know the code, and I don't intend to learn
it. No one knows that code except those two clerks.
Id. at 1081.
The order to Captain Levy required his Special Forces "stu
dents" to have some experience concerning " . . . Gonorrhea,
Chancroid, Granuloma inguinale, Preparation of smears for bac
teriological study, Gram staining method, and Identification of
gram negative and gram positive organisms." (R. Vol. 10, Pros.
Exh. 2.
That order was issued in the face of a Technical Bulletin
which provided that:
Every patient diagnosed as having venereal disease will be
interviewed . . . . Information on contacts is reported
to appropriate medical investigative agencies . . . . In
formation contained in these reports will not be disclosed
to other than medical or health agencies without the patient's
consent. T.B. Med. 230, Treatment and Management of Venereal
Disease. 7 July 1965, Sec. I 3 d (2). (emphasis added)
And Army Regulation 40-554, par. 5, itself provided:
The patient will be advised that the information derived
from the venereal disease contact interview and entered on
the venereal disease epidemiologic report will be used only
by health agencies authorized to locate, examine and treat
the named contact and otherwise will be held in strictest
confidence. (emphasis added)
Special Forces is hardly a "medical or health" agency.
The Technical Bulletin and the Army Regulation providing for
the secrecy of "the information contained in these reports,"
- 1 8 2 -
the very information acquired in medical examination, rendered
the order to train, unlawful.
But the Law Officer refused to instruct the Court-Martial
that if they found that Special Forces was not a medical or health
agency and that aidmen would have learned the names of venereal
disea.se contacts in the training program (a dead certainty) then
the order was unlawful. (R. Vol. 18, App. Exh. 24)
7. Principles of medical ethics are protected by the first, thi~db
fourth, fifth and ninth amendments of the Constitution.1
Dr. Levy refused to train combat troops rather than Geneva
Convention covered medical personnel. They were to be trained to
use medicine "as a weapon", an instrument of national and political
1. See Cantwell v . Connecticut, 310 U.S. 296 (1940) (the
relationship between free exercise of religion and liberty of
conscience); Prince v. Massachusetts, 321 U.S. 158 (1944) (free
dom of speech, religion, conscience and, in the larger sense, of
the mind, are inextricably bound together); United States v. See-
ger, 380 U.S. 163, 170 (1965) (importance of protection of ethical
beliefs); United States v. Macintosh, 283 U.S. 605, 634 (1931)
("Freedom of conscience . . . implies respect for an innate
conviction of paramount duty" Hughes, C.J., dissenting, approved
in, e •9•, Girouard v. United States, 328 U.S. 61 (1946)); West Vir
ginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (conscientious
--not necessarily religious, _id. at 634-35,— scruples against
patriotic exercises upheld); Meyer v. Nebraska, 262 U.S. 390 (1923),
and Bartels v. Iowa, 262 U.S. 404 (1923)(right to cling to native
tongue); Pierce v. Society of Sisters, 268 U.S. 510 (1925)(right
to be educated by church rather than state); Engle v. Vitale, 370
U.S. 421 (1962)(". . . leave . . . religious function to the peo
ple themselves . . . " _id. at 435) .
[continued on following page]
-183-
policy. The defense of medical ethics was ruled admissible only
in extenuation and mitigation and not as a defense to the lawful
ness of the order. Cf. Whelchel v, McDonald, 341 U.S. 22 (1950).
In Poe v. Ullman, 357 U.S. 497, 513-515 (1961), Mr. Justice
Douglas, dissenting, noted that:
The leading cases on freedom of expression are generally
framed with reference to public debate and discourse.
But as Chafee said, "the First Amendment and other parts
of the law erect a fence inside which men can talk. The
lawmakers, legislators and officials stay on the outside
of that fence. But what the men inside the fence say when
they are let alone is no concern of the law." The Bless
ings of Liberty (1956) p. 108.
The teacher [citation omitted] as well as the public
speaker [citation omitted] is included. The actor on stage
or screen, the artist whose creation is in oil or clay or
marble, the poet whose reading public may be practically
non-existent, the musician and his musical scores, the
counselor whether priest, parent or teacher no matter how
small his audience--these too are beneficiaries of freedom
of expression. The remark by President James A. Garfield
that his ideal of a college was a log in the woods with a
student at one end and Mark Hopkins at the other (9 Diet.
Am. Biog., p. 216) puts the present problem in proper First
Amendment dimensions. Of course a physician can talk freely
and fully with his patient without threat of retaliation by
_____ the State. . . .
[continued from preceding page]
Protection of individual rights of conscience is at the
heart of the cases prohibiting broad or vague loyalty oaths and
inquiries. See, e.q., Schneider v. Smith, 390 U.S. 17 (1968);
United States v. Robel, 389 U.S. 258 (1967); Whitehall v. Elkins,
389 U.S. 54 (1967); Keyishian v. Board of Regents, 385 U.S. 589
(1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Baggett v.
Bullitt, 377 U.S. 360 (1964); Shelton v. Tucker, 364 U.S. 479
(1960) .
The exercise of these rights is not limited to the time or
place where there is no danger that the expression of views
arising from these beliefs will affect others or perhaps raise
some risk of disruption— "Freedom of expression would not truly
exist if the right could be exercised only in an area that a
benevolent government has provided as a safe haven for crack
pots." Tinker v. Des Moines Ind. Comm. School Dist., 89 S. Ct.
733, 740 (1969).
- 184-
. . . The State has no power to put any sanctions of any kind on
[the doctor] for any views or beliefs that he has or for
any advice he renders. These [advice concerning the use of
legally prohibited contraceptive devices] are his professional
domains into which the state may not intrude. The chronicles
are filled with sad attempts of government to stamp out ideas,
to ban thoughts because they are heretical or obnoxious."
Poe v, Uliman, supra, involved the giving of medical advice,
advice considered reprehensible by many men on moral and religious
grounds. It is apposite to Levy only in that Dr. Levy refused to
train Special Forces Aidmen (and only that small group and no
others in advanced medical techniques— not "First Aid") bn the
same ground that the physician in Poe desired to impart birth con
trol knowledge to his patients. Each felt professionally and
ethically that as physicians their duty lay in their imparting
or refusing to impart medical knowledge in accordance with stan
dards of ethical medicine.
In Griswold v. Connecicut, 381 U.S. 479 (1965), the statute
attacked in Poe was declared unconstitutional. Even the dissent
of Mr. Justice Black, 381 U.S. at 507-508, seems applicable here
for Levy is charged merely with the failing to do an act and with
the expressing of opinions, albeit on political subjects as well
medical. There was no conduct. See also dissenting opinion of
Stewart, J., 381 U.S. at 529 n. 3.
-185-
DR. LEVY'S PROSECUTION WAS
SELECTIVE AND INVOLVED THE
UNEQUAL APPLICATION OF MIL
ITARY LAW. THE CONVICTION
ON EACH CHARGE VIOLATED THE
FIRST AND FIFTH AMENDMENTS.
The investigation of Dr. Levy was instigated because of
Negro voter registration activity. Thus, federal statutes and
the thirteenth, fourteenth and fifteenth amendments were by
implication and probable state involvement, infringed.
But on basic first and fifth amendment (freedom of expression,
due process and equal protection) grounds this conviction should
be set aside.
Yick Wo v. Hopkins, 118 U.S. 356 (1886) and Hague v. C_._I_̂ 0. ,
307 U.S. 496 (1939) forbade the unequal and discriminatory enforce
ment of penal statutes.
In Hadnott v. Amos, C.A. No. 2757-N (M.D. Ala. Oct. 11, 1968)
(three judge court) Johnson, J., dissented, contending that the
first state instigated enforcement of provisions of the Corrupt
Practices Act was invalid under Yick Wo. The facial constitutionality
of the statute he upheld. But previously the Act had been enforced
solely by private persons against their political enemies.
As Alabama made its first foray into the enforcement field,
Judge Johnson breathed new life into Yick Wo. The Supreme Court,
agreeing, reversed. Hadnott v. Amos, 37 U.S.L.W. 4256 (U.S. Mar.
25,1969) .
- 186 -
Hadnott. primarily a first, fourteenth and fifteenth amend
ment case, clearly forbids the selective application of facially
valid statutes to those unpopular people1 who take unpopular
political and racial positions. Hadnott joins Dombrowski as a
guarantor of the right to speak.
______ * ________
The affidavit of Laughlin McDonald, Esq., states, in part:
2. I am informed by a person who is known to me
to be reliable, and who has related to me information
in the past which I know to be correct, and who is a
Commissioned Officer-physician at the United States
Army Hospital, Fort Jackson, South Carolina, that:
a. Approximately one year ago he confronted
an officer charged with the duty of obtaining
Special Forces Aidmen training and informed him
that he did not wish to continue training Special
Forces Aidmen, telling the officer that to attempt
to train them in medicine in the time allotted was
"absurd."
b. He questioned the ethics of the training
program.
c. He requested that Special Forces Aidmen
be removed from his sphere of work.
d. He requested that he be relieved of the
duty of participating in the Special Forces train
ing program.
e. Thereafter, Special Forces Aidmen were so
removed and have not been returned to him.
f. Although he did not and has not partici
pated in the program since raising objections to
it, he has not been reprimanded or subjected to any
form of disciplinary action.
1. As early as 1716 South Carolina specifically disenfran
chised Jews and "free" Negroes. DuBois, Black Reconstruction in
America (1935). In 1862, the Confederate Government declared
that the officers of the First South Carolina Infantry (Negro)
formed by Gen. Hunter would be considered outlaws not covered by
the laws of war and subject to execution as felons for the crime
°f ". . . inciting Negro insurrection."
-187-
g. He, like Dr. Levy, is a medical
specialist.
h. He, like Dr. Levy, based his objection
to teaching on the grounds of medical ethics and
[sic--plus] the absurdity of the program.
i. He is a member of the white race and
is a gentile.
j. He has taken no personal or spoken
position on the war in Viet Nam save one of
ambivalence. ̂
k. He has engaged in no activities
remotely relating to civil rights or the
registration of Negro voters. Exh. C. 117-18. 1
1. General David M. Shoup, U.S.M.C., Retired, a former member
of the Joint Chiefs of Staff, has taken a public position, similar
to Dr. Levy's private position expressed in The Letter. See Shoup,
supra, 51:
America has become a militaristic and aggressive nation.
Our massive and swift invasion of the Dominican Republic
in 1965, concurrent with the rapid buildup of U.S. military
power in Vietnam, constituted an impressive demonstration
of America's readiness to execute military contingency plans
and to seek military solutions to problems of political dis
order and potential Communist threats in the areas of our
interest.
But see the disclaimer note, i_d. at 56:
The opinions contained herein are the private ones of the
author and are not to be construed as official or reflecting
the views of the Navy Department or the naval services at
large. (emphasis in original)
Perhaps the Chief of Dermatology at Fort Jackson should have placed
a sign bearing similar words over the door to his office. He . . .
talked about the theater . . . history . . . democracy . . . Vietnam,
and a lot of things." R. Vol. 7, 2346. He discussed medicine and
medical ethics, R. Vol. 7, 2347, and " . . . books that he'd read
on civil rights or on Vietnam," R. Vol. 7, 2348. Additionally, in
the training of the elite Special Forces dissent . . . was not dis
couraged." R. Vol. 6, 2123.
See also A . 448: "Levy did not try to pressure me into changing
my opinions." And, Col. Coppedge told why he would " . . . like to
use Captain Levy" in Special Forces:
Because I think Captain Levy is interested in the society
around him. He's interested not only in individual patients
and cities, but he's interested in the people around, and
that's the kind of person that we need. R. Vol. 9, 2626.
-188-
*
Thus, a physician at Fort Jackson, practicing medicine in
the hospital where Dr. Levy practiced, where he was made a crim
inal, and finally imprisoned for not training Special Forces
Aidmen does not do exactly that which Dr. Levy did not do.
His grounds?— medical ethics plus "absurdity".
That white gentile physician who was not involved in civil
rights activity and who remained "ambivalent" about Vietnam has
received not even a reprimand. His wish was the Army's apparent
command. For a year he has not been sent a Special Forces Aidman.
The difference between the two physicians is apparent. Dr.
Levy exercised constitutionally guaranteed rights in the mutually
1unpopular local causes of being pro-Negro and anti-war. His fellow
physician had no interest in exercising these rights or adopting
those positions and he remains free.
_______ * ______ 1
1. Unlike the Thurmonds and Riverses and many other white
South Carolinians of today, Cole Blease was anti-Negro but also
anti-war. Unlike Dr. Levy he was not prosecuted for his statements
regarding World War I :
In South Carolina Cole Blease stated that every American
killed in the war would be charged against Wilson and Congress
as an unwarranted sacrifice in the sight of Almighty God, of
fresh young American manhood. Tindall, supra, 52-53.
But, two of his prominent supporters (both publishers) were jailed
for anti-war expressions. South Carolina fell in love with World
War I too. Id. at 53.
- 189-
It is not merely in the Hospital at Fort Jackson that
Yick Wo standards of discrimination are the rule. Indeed, at
the highest level of American militarism sundry Generals disagree
with the stated policy of past and present Commanders-in-Chief
and Secretaries of Defense, that a peaceful negotiated settlement
in Vietnam is preferable to total military victory.1 These opinions
appear in newspaper articles and on television. They are trans
mitted by both on and off the record conversations to newsmen and
2members of Congress. 1 2
1. But, in South Carolina's Senator Thurmond they have a
champion:
For such a man, forcing a Senate investigation of the
State Department and of the Defense Department for 'muzzling'
generals— something he did almost singlehandedly and which
many considered quite an achievement— was really nothing.
Sherrill, supra, 259-60.
2. Indeed the defense establishment is in the business of
"educating" the public to its own point of view. See, e .g ., Shoup,
supra. 56; Cook, The Warfare State, ch. 4, "Madison Avenue in Uniform"
89-114 (1962). See also, id. at 5, 186; Mollenhoff# The Pentaqo.nr
12-13, 24, 180-81, and passim (1967). An underlying theme of
Mollenhoff's work relates to the manipulation of public opinion bv
the Department of Defense.
In 1961 Senator Fulbright of Arkansas condemned the efforts of
the military to "educate the public." 1961 Cong. Rec. 14433-39
(Memorandum submitted to the Department of Defense on Propaganda
Activities of Military Personnel). Yet on January 30, 1967, the military
was seeking "to convince the American people that the Vietnam war
is necessary." On that day in the Jacksonville (Fla.) Journal, the
following article appeared: "The Vietnam ’Lesson1":
First the United States sent civilians to battle torn
countries to assist and educate the natives. Next, civilians
were urged to aid civilians through the domestic peace corps.
The latest wrinkle is for the military to educate the American
citizens.
"Vietnam veterans are tactically being stationed through
out the United States and are available to speak to any request
ing community group," Col. Raymond I. Wood, Director of the
Marine Corps Reserve Sixth District said during an inspection
tour here this weekend.
[continued on following page]
-190-
As the law officer, Colonel Earl V. Brown, noted: "Well now
let's see if we can make this relevant to these proceedings. Other
people speak for the Army before service clubs and so on" R. Vol. 6,
2110- "Well, I've talked, too, many times before, and they
haven't court-martialed me," he said. "I wonder how we tie it
into the specifics of the case?" R. Vol. 6, 2111. The fact that
only those who express themselves at variance with the
military's policy in Vietnam are punished is precisely the point.
[continued from preceding page]
Their purpose, Col. Wood indicated, is to convince the
American people that the Vietnam War is necessary.
'it is particularly discouraging to me to read about the
draft card burners and the housewives when I realize that so
many American soldiers are quietly extending their tour of
duty in Vietnam," Col. Wood said.
These kids are better soldiers than their brothers in
Korea and their fathers in World War II. They know why they
are there. Let them tell their story and let the American
people decide.— Ken Goldman.
The accuracy of this and a later, similar article stating:
"The war in Vietnam is sending its veterans home to tell the war
story in civic groups across the United States and--the veterans
hope— counteract the voices of 'peaceniks.'" Atlanta Constitution,
April 24, 1967, p. 14, cols. 1-4, was questioned by the person to
whom they were attributed. R. Vol. 6, 2114-15
Indeed, not merely the Department of Defense is engaged in this
effort. The Associated Press (New York Times, March 18, 1967) has
stated:
The Federal Government spends more of the taxpayers' money to
tell and show him what it wants him to hear and see than on
its legislative and judicial branches combined.
The government expends $425 million a year on its public
information, news, views and self pleadings, compared with
$353 million spent this year by Congress and the judiciary.
And the $425 million is more than double the combined outlay
for newsgathering by the two major United States news services
the three major television networks and the ten biggest American
newspapers.
-191-
The Army by allowing, indeed often seeming to encourage,
speech at variance with our stated national policy, that is,
the seeking of a non-militarily victorious negotiated solution
for Vietnam, has in effect established the right of others within its
ranks to express opposing views regardless of their effect on our now
institutionalized military. Civic groups normally request from
the military uniformed speakers who are veterans of the Vietnam
War, and who come during and after duty. They speak in support
of our troops and are not censored in their remarks. And although
a discussion would follow a report that a speaker said, "'i think
we ought to bomb Peking, go on to China,'" it is conceivable that
. . less action would be taken against him than . against the man
who came out against the Vietnam war." R. Vol. 6, 2116-17; see
also R. Vol. 6, 2113-20.
The law officer seemed to try to understand Dr. Levy's point
when he said, "All you are saying is that people who oppose the
Vietnamese war or are involved in Vietnam aren't given free time, I
suppose." R. Vol. 6, 2112. And then he seemed to understand.
"So, therefore, it is an uneven application," he said.'*' Id. 1
1. There is, of course, not a scintilla of evidence that
Dr. Levy caused anyone to become disloyal or disaffectionate.
The trial testimony may have had an effect on the law officer.
See the post-trial, post-active duty advertisement he signed.
"A Statement on Viet Nam," New York Times, Feb. 15, 1968, p. 17,
cols. 6-8.
-192-
As in Yick Wo v. Hopkins, supra, 118 U.S. at 373-74:
Though the law itself be fair on its face, and impartial
in appearance, yet, if it is applied and administered by
public authority with an evil eye and an unequal hand, so
as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to
their rights, the denial of equal justice is still within
the prohibition of the Constitution. This principle of
interpretation has been sanctioned by this court . . .
• • • •
The imprisonment of the petitioners is therefore illegal,
and they must be discharged.
See also Truax v. Raich, 239 U.S. 33 (1915); and regarding
equal protection, Bolling v. Sharpe, 347 U.S. 49 (1954). It, as
the cruel and unusual punishment clause of the eighth amendment, see
Trop v. Dulles, 356 U.S. 86 (1958), of necessity evolves and
changes with the times. "Likewise, the equal protection clause is
not shackled to the political theory of a particular era." Harper
v. Virginia Board of Elections, 383 U.S. 663, 669 (1966). The
selective and unequal application of UCMJ penal provisions is
similarly unlawful and within the prohibitions of the first amend-
1ment and the due process clause of the fifth amendment.
While the concept of due process and equal protection may in
rare cases permit an instrumentality of government to single out
a class of persons for distinctive treatment: 1
1. On the basis of Yick Wo, the validity or non-validity of
Army Regulations is immaterial to a determination of accused's
claim of discriminatory enforcement of Articles 90, 133, and 134
of the UCMJ. "It has indeed been the law for over sixty years that
the [fourteenth] amendment covers the unequal enforcement of valid
laws, as well as any enforcement of invalid laws?" East Coast Lum
ber Terminal v. Town of Babylon, 174 F .2d 106, 112 (2d Cir. 1949)
(footnote omitted). See also, Sunday Lake Iron Co. v. Wakefield
Township, 247 U.S. 350, 352 (1918) and Oney v. Oklahoma City,
120 F .2d 861, 865-66 (10th Cir. 1941).
-193-
The Constitution of the United States . , . embodies
the highest political ideals of which man is capable. It
insists that our government . . . shall respect and observe the
dignity of each individual, whatever may be the name of
his race, the color of his skin or the nature of his beliefs.
Oyama v. California, 332 U.S. 633, 663 (1948) (emphasis added).
Cf. Koteh v. Pilot Commissioners, 330 U.S. 552 (1947).
Here the basis for Dr. Levy's conviction was disagreement
with Army policy concerning the Vietnamese war. Since the right
to disagree and say so is guaranteed by the first amendment the
exercise of that right could never be a "rational basis" for a
criminal prosecution. And, the actions of the Army are doubly
prohibited in that it is only a particular kind of speech, free
and not Army speech, that is rendered criminal.1 1
1. Cf. Tinker v. Des Moines Independent Community School
District, 89 S. Ct. 733, 738-39 (1969):
It is also relevant that the school authorities did not
purport to prohibit the wearing of all symbols of political
or controversial significance. The record shows that students
in some of the schools wore buttons relating to national pol
itical campaigns, and some even wore the Iron Cross, tradi
tionally a symbol of nazism. The order prohibiting the wear
ing of armbands did not extend to these. Instead, a particular
symbol--black armbands worn to exhibit opposition to this Na
tion's involvement in Vietnam--was singled out for prohibition.
Clearly, the prohibition of expression of one particular
opinion, at least without evidence that it is necessary to
avoid material and substantial interference with school work
or discipline, is not constitutionally permissible.
Here, of course, there was not a scintilla of evidence demon
strating that Dr. Levy's speech interfered with anyone's "school
work" or "discipline." The sole "interference with school work" oc
curred when he refused to teach and, necessarily, stopped talking.
Secondly, there was not even a requirement that the prosecution
show a breach of or interference with discipline— the manslaughter
charge took care of that. A. 195-96.
Thirdly, there was not a scintilla of evidence that the pro
hibition of Dr. Levy's right of expression was " . . . necessary to
avoid material and substantial interference with school work or
discipline.. . . . " Indeed, Colonel Fancy thought of issuing him
an order not to express himself but decided not to do so. A . 96.
In Tinker the school authorities not only thought of issuing such
an order but did so. That order was unconstitutional.
-194-
THE REJECTION OF THE DEFENSE
OF TRUTH TO PURE SPEECH CHARGES
RESULTED IN A DEPRIVATION OF
FIRST, FOURTH, FIFTH, AND SIXTH
AMENDMENT RIGHTS.
1. By. raising the defense of truth to the four pure speech
charges Dr. Levy found himself in the first and only domestic
war crimes trial. Denied the right to present truth as a. de
fense to the pure speech charges ̂he was, instead, allowed to
present a_ war crimes defense to the order charge.
a. Doublethink, newspeak, truth and the first amendment.
Dr. Levy relying on New York Times Co. v. Sullivan, 376 U.S. 254
(1964) and Garrison v, Louisiana, 379 U.S. 64 (1964) interjected
truth as a defense to the four pure speech charges.
In Garrison, supra, at 74, the Supreme Court had said:
Truth may not be the subject of either
civil or criminal sanctions where dis
cussion of public affairs is concerned.
Here truth was ruled "irrelevant."
But one of the charged statements was:
Special Forces personnel are liars and thieves and killers
of peasants and murderers of women and children.
This phrase obviously bothered the law officer. It was one of the
statements on which Charge II and Additional Charge I were based.
______ * ________ 1
1. There is no right of privacy question here except as it
relates to Dr. Levy and his patients, and confidentiality. The
denial of the right to present truth to the Court-Martial as a de
fense was of constitutional proportions and totally divested the
military of jurisdiction. C f . . Whelchel v. McDonald, supra.
-195-
Special Forces Aidmen were one of the two groups the prose
cution contended Dr. Levy desired to make disaffectionate.
His refusal to train Special Forces— to have any contact with
them at all— deprived him of the opportunity to even say "hello."
Thus, the refusal to obey the order rationally should have rendered
the pure speech charges severable. These charges were not merely
unconstitutional; they were actually contradictory. A. 199-200. 1
1. Despite this the Law Officer denied a severance between
Charge I (the order charge) and the four pure speech charges thereby
assuring conviction, confounding not merely the defense but everyone
else, including the Law Officer and, of course, depriving Dr. Levy
of additional constitutional rights. See e.g. Pointer v. United
States, 151 U.S. 396, 403 (1893); Williams v. United States, 168
U.S. 382 (1897) . There can be no doubt that the joinder of the four
pure speech charges crippled the defense:
1. The defendant was effectively deprived of the right to
testify on his own behalf; had he taken the stand and testi
fied about either the order charge or the pure speech charges
or the two pure speech charges relating to the letter he
would have tacitly admitted guilt by his silence as to the
other charges. See the "anomalous situation" condemned
in Stump v. Bennett, 398 F .2d 111, 120-21 (8th Cir.),
cert, denied, 89 S. Ct. 483 (1968), and cases there cited.
2. Had he taken the stand as to all charges or the pure
speech charges alone, his testimony regarding purely poli
tical matters and matters of national policy would have so
infuriated his warrior judges that he might have been for
tunate in escaping from that court-room, even hand-cuffed
and in custody.
3. His refusal to train Special Forces Aidmen was not demon
strative of a scheme or design. To the rational non—military
mind exactly the opposite is the case. Had he desired to
make Special Forces disloyal or disaffectionate he would
have maintained at least a speaking acquaintance with them.
As it was he put them totally beyond the range of his voice
barring use of the telephone, walkie-talkie or citizen's band
radio. The reason for joinder clearly and solely was to
prejudice Dr. Levy. This with respect to the letter charges,
at least, is clearly demonstrated herein, see pp. 151-53, supra.
4. By joinder he was forced to a "grisly 'Hobson's Choice,'"
and testified not at all. Cf. Whitus v. Balkcom, 333 F.2d
496, 499 (5th Cir. 1964); Stump v. Bennett, supra.
196
The other group whose disloyalty and disaffection he was
charged with promoting was (and had been since the day Special Agent
West entered the case) those " . . . individuals . . . mostly negro
[sic], . . . many of whom emotionally and educationally were sus
ceptible to being influenced." United States v . Levy, supra, at C. 31
Regarding the racism implicit in this approach, see p p . 91-92, supra.
Special Agent West's seed had taken root in the mind of
the all white Board of Review. Of 17,500 patients visits per year
Dr. Levy had engaged in a maximum of but four conversations with
Negro patients. The others to whom he talked who were black were
also Special Forces Aidrnen, "the elite of the elite", with an aver
age GT score of 127 and from contact with whom he was desperately
trying to escape by refusing them medical training, PP* 1-83 85,
196 supra.
That these are the only two groups of people to whom the charges
could relate— and, they overlap, some Special Forces Aidrnen being
Negroes— is clear from the Record, passim.
In an attempt to clarify just who the prosecution's "divers
personnel were, the following transpired.
INDIVIDUAL COUNSEL: Fine. Now I would like to ask this ques
tion the, the charge says to divers enlisted personnel or
to troops or something, to the prejudice of good order and
discipline in the Armed Forces, I am trying to find out now,
to whom the statements relate with respect to the intention-
assuming the prosecution proved all the elements, who are
they proving he tried to disaffect? Is it special forces,
or is it all the folks around, or—
-197-
LAW OFFICER: I suppose to everybody to whom the statements
were made.
PROSECUTION: That's correct.
LAW OFFICER: And whether they would carry on the— I suppose
it is a broad— I understand some of your difficulty. It
is a very broad charge necessarily because what we are strik
ing down are utterances that have the effect of promoting
disloyalty and disaffection among the troops. Now I really
don't know what the limitation on admissibility as far as
the Government is concerned is here. He must show that
these statements do have the natural and reasonable tendency.
He doesn't have to show that it did in fact result in dis
affection and disloyalty. But he must show it did have that
tendency. I suppose we must consider to whom it was uttered,
the circumstances under which it was uttered, and how far
the word was spread. (A. 200-01) (emphasis added)
No proof was offered regarding any prospective disaffectors
other than Negro patients and, rather impartially, Negro and white
Special Forces Aidmen. But at this juncture the prosecution and the
law officer were still contending that Dr. Levy was trying to disaf-
1
afect " . . . everybody to whom the statements were made." Id.
As the law officer noted "[i]t is a very broad charge . . . ."id.
______ * ________
The law officer had previously given
. . . general guidelines as to the truth and falsity issue at
this moment. Otherwise the testimony is apt to stray far
afield.
. . . A subjectively held belief in the truth of_the_
various statements allegedly made by the accused in these
charges, is no defense to a charge of publicly uttering 1
1. Thereby making even more relevant the 450 prosecution
questionnaires. See pp. 147-50, supra.
-198-
words ̂ w i t h a design to promote disloyalty and disaffection
among the troops. A. 183. (emphasis added)
Now, the objective truth of the statements allegedly
made by the accused is really not in issue in this c.ase.
Practically all of these statements are merely expressions
of opinion; expressions that become criminal only when^
attended with a design to promote disloyalty and disaffection
among the troops, or under such circumstances that palpably
prejudice good order and discipline in the Armed Forces.
A. 184. (emphasis added)The accused's statements as alleged, again, are basically
expressions of opinion whose truth or falsity is hardly rele
vant. The inquiry in this case is and must be not their
truth or falsity, but were these statements uttered with a
design to promote disloyalty, and did they have a reasonable
and natural tendency to do so. A. 185. (emphasis added) 1
1. At no place in the 19 Volume Record was there evidence of
more than private conversation: — there was not one speech, one
demonstration, one picket sign, one lecture. The only manner in
which Dr. Levy's statements could have been less public would have
been their utterance in a conversation with himself. As the Re
cord discloses the reasons for and the purpose of the prosecution
Dr. Levy, would have been— had his conversations been to any de
gree more private than they were— committed. A sergeant did tes
tify that he left his door open. It was on this open door that
the Board of Review relied. C. 31. This Court could take judi
cial notice that most "subversives," cf. Liveright v. Joint Com
mittee, 279 F. Supp. 205 (M.D. Tenn. 1968) , do not operate behind
open doors. But, then Dr. Levy was also suspect for speaking to
Negro patients behind "closed doors." See, e.q..., A. 426. His
only hope was to avoid doors or, perhaps, just leave them a tri
fle "ajar".
-19 9-
Not only was truth not "relevant" to the speech charges, there
was :
1. No overt act;
2 . No clear danger;
3 . No present danger;
4. No danger at all.
Then, in the weird world of word warfare the following, which
is indescribable, but unfortunately believable, transpired. For a
new standard of law was to be applied to pure speech charges--the
standard of manslaughter.
The interchange:
PROSECUTION: Yes, sir, that's the only one where no
specific intent is alleged, only the intent that is
raised by the word of art, or dishonorable.
LAW OFFICER: And you think that could be proved also
not only by intent but also by grossly negligent disre
gard of the foreseeable consequences.
PROSECUTION: Yes, sir.
LAW OFFICER: That's the Government's position?
PROSECUTION: Yes, sir.
INDIVIDUAL COUNSEL: This is a criminal charge. I don't
know if that could ever make up a--
LAW OFFICER: Well, it's like your involuntary manslaughter
where gross negligence is involved.
INDIVIDUAL COUNSEL: Well, it's like in involuntary man
slaughter, but you have some sort of culpable act like
being sort of intoxicated.
LAW OFFICER: Well, I think the Government's position is
that you pour into those words a culpable or gross disre
gard for the consequences of their utterance. In other
words, the tendency to promote disloyalty.
- 2 0 0 -
INDIVIDUAL COUNSEL: This is going to be very helpful' to
me as a matter of--you know, in the presentation of
our case. Now as I understand the Government's posi
tion is, that they can turn to the culpable nature of
the words —
LAW OFFICER: No. No.
INDIVIDUAL COUNSEL: — utter disregard of the natural
effect or probable effect of the words.
LAW OFFICER: You see the culpable thing here in this
type of thing is a mental operation in the accused's
mind. 13-3 You can never depart from that, because the
words themselves objectively have— are just words.
INDIVIDUAL COUNSEL: Now, but I'm trying to ascertain—
really to just get down to an instance, a position here,
and that is that the question of objective truth doesn't
matter, and consequently if objective truth were spoken
and totally disrupted the Armed Forces, but what was
said was true, a person would not be entitled to make
those statements.
LAW OFFICER Not as long as that Army won, I suppose.
INDIVIDUAL COUNSEL: That is the essence of the position
I think we are getting to. Would Captain Shusterman's
position be sustained on the questions of truth with re
spect to the sufficiency of just a reckless disregard?
LAW OFFICER: Well you see, when we get to instructing
the court on the elements of this offense, that is Addi
tional Charge I, I will instruct the court that they must
find, beyond a reasonable doubt, that the accused wrong
fully and dishonorably made the following statements, and
then I will define for them, wrongfully, and dishonor
ably, which would include not only the intent that these
statements had their effect of disaffection among the 1
1 . cf.: "Our whole constitutional heritage rebels at the
thought of giving government the power to control men's minds."
Stanley v. Georgia, 37 U.S.L.W. 4315, 4317 (U.S. Apr. 7, 1969)
- 2 01-
troops, or, that he uttered them with a total or cul-’
pably negligent or grossly negligent disregard of their
natural and reasonable tendency. Now, they would have
to find as a matter of fact, that these statements have
a natural and reasonable tendency to do that; that is,
create disaffection or disloyalty among the troops.
INDIVIDUAL COUNSEL: That's —
LAW OFFICER: That's what gives them their criminality.
That is the reach of the statute in denouncing such
conduct.
INDIVIDUAL COUNSEL: And so, in order to present— 1 1 m
now trying to go to my experience with the First Amend
ment with those cases that we have been involved in
which relate to speech. Is there any such thing exist
ing here as the clear and present danger test?
LAW OFFICER: I understand that would be an appellate--
that would be a question for me in determining whether
or not we have violated constitutional principles, a
question of law. Not a factual question for the court.
INDIVIDUAL COUNSEL: All right, sir, just one minute.
LAW OFFICER: Your clear and present danger I think is
this, that if I determine on the face of these charges
you made your motion, if I could see no immediate and
present danger, then I would say that he is unconstitu
tionally charged.
INDIVIDUAL COUNSEL: Could the question of truth go to
the question of it being dishonorable?
LAW OFFICER: I wonder about that. Both subjective and
objective?
INDIVIDUAL COUNSEL: Yes, sir. Could a man be dishonor
able who speaks the truth?
LAW OFFICER: But I think the dishonor comes— you see,
the dishonor is not only to the individual as a person,
I'm not concerned solely with that, but the dishonor to
the position he occupies, to the uniform he wears, to
the position as an officer in the United States Army,
- 2 0 2 -
he must dishonor not only himself, but his position.
So where I think the criminality flows here, from
the uttering of these statements, which must have a
natural and reasonable tendency to create disloyalty
under such circumstances, that they are likely to do
that, and with either that intent or a culpable dis
regard of their consequences.
INDIVIDUAL COUNSEL: Let me carry this further then.
Could the question of truth result in dishonor to
the position that the man has as a Captain in the
United States Army?
LAW OFFICER: Oh, yes. I think so.
PROSECUTION: I didn't quite hear that. Surely under
Article 8 8 regardless of whether statements are truth,
if they are made in a contemptuous manner, that would
violate Article 8 8 regardless of whether or not the
statements are true. Somebody could utter true state
ments about a commanding officer for example, in the
presence of enlisted men which shows his contempt,
they may be true statements, but nevertheless there
are certain obligations that personnel have in the
military towards their superior officers.
INDIVIDUAL COUNSEL: But he is not charged with a viola
tion of Article 8 8 . A. 192-95. (emphasis added)
LAW OFFICER: I don't see where truth is really an issue
here. A. 195.
Then, with truth irrelevent and "clear and present danger" rele
gated to "a manslaughter standard" where by the nature of the crime;
there is no crime unless, in fact, a man "is slaughtered" there came
the following:
LAW OFFICER: It's not the words, it's the consequences
of the words, the creation of disloyalty, and disaffection.
INDIVIDUAL COUNSEL: Does he have to prove then— does
the prosecution have to prove that somebody actually was
disloyal or disaffected.
-203-
LAW OFFICER: No, No. No, No. He must prove that-
the prosecution has the burden of showing that the
natural and reasonable tendency of these words is
to create disloyalty or disaffection.
INDIVIDUAL COUNSEL: Could the prosecution show that
since it has people that it introduced as witnesses?
Could it show the natural and probable consequences
without showing that somebody did in fact disaffect,
and how could it be the natural or probable conse
quences if it never happened?
LAW OFFICER: Well the court— the fact finders would
have to take the words in their natural meaning, the
dictionary meaning, and the circumstances under which
they were uttered, to reach a factual determination
that this is the tendency of these words which I
think is a precise legal measure. At least I have so
held in not dismissing the charges. A. 196. (emphasis
added)
-204-
b. Thus cometh Nuremberg.
"Truth" was ruled irrelevant to the four pure speech
charges.
"Medical ethics" was about to be ruled "irrelevant" to the
order charge.
The defense had contended consistently that Dr. Levy was being
tried for crimes which, like heresy and witchcraft, simply do not
constitutionally exist.
Then came the giant step— not through, but into, the looking-
glass. From this point on everything was smaller or larger than
life depending on which way you turned, through which end you looked.
Truth suddenly became a defense to the order charge.
"Now the defense has intimated that the special forces aidmen
are being used in Vietnam in a way contrary to medical ethics," said
the Law Officer. A. 184. He then suggested the Nuremberg defense
but continued, "[h]owever, I have heard no evidence that even re
motely suggests that . . . and until I do, I must reject this de
fense . " Id.
He then recognized ethics in relation to Nuremberg ("a doctor
would be morally bound," A. 187) but as the prosecution pointed out
"There has been not even an intimation of that in this case as I can
see." A. 188.
-205-
LAW OFFICER: No.
No, I have not heard no Fsic] evidence at all; and the
issue has not been raised. Id.
Fresh out of most defenses at the time Dr. Levy's counsel
replied
It is about to be I think.
LAW OFFICER: As I say, I will permit you to attempt to
raise it. Id.
Then came,
INDIVIDUAL COUNSEL: How with respect to the question of
war crimes and wars against humanity, we've previously
talked about the time that we thought we would be ready
for the entire case to move forward next Tuesday. It
might take me an extra day to prove that.
LAW OFFICER: I'll give you an extra day .
INDIVIDUAL COUNSEL: Now, sir, I now want to confer with
military counsel so that he can explain to me that which
I don't understand and I'll be right back.
PROSECUTION: Sir, could we have a five minute recess?
LAW OFFICER: Recess for ten minutes, until 1215. A. 2,02̂
The Law Officer indicated that his problem was Dr. Levy's
phrase relating to Special Forces as liars and thieves and killers
of peasants and murderers of women and children. A. 212. See 1
1. Ten minutes, ten hours or three years would not have been
sufficient for an explanation. Military counsel had no more compre
hension of what was transpiring than did anyone else. Indeed, had
Sigmund Freud been present, he no doubt would have sought psychia
tric assistance from Franz Kafka.
- 2 0 6 -
also A. 218. (Dr. Levy had already told Colonel Fancy that items
had been stolen from his clinic, A. 145, and, it seemed to the
defense, at least that any court could take judicial notice of
the wellknown fact that, excluding North Vietnamese troops, the
struggle in Vietnam was against the Viet Cong who happen to be
"peasants," "women" and "children," cf. the Law Officer: " . . . I
am about ready to take judicial notice that they are not [engaged
in war crimes] ." R. Vol. 5, 947.)
______ * ________
The defense then took "an extra day" or so and proved that the
United States was committing War Crimes.^ 1
1. This was not difficult. FM 27-10 The Law of Land Warfare (1956)
defines war crimes as ". . . a violation of the law of war by any person
or persons, military or civilian." Id. para. 499. Thus, by the simple
use of the Army's own rules the proof was presented.
This manual is an official publication of the United States
Army. However, those provisions of the Manual which are neither
statutes nor the texts of treaties to which the United States
is a party should not be considered binding upon courts and tri
bunals applying the law of war. However, such provisions are of
evidentiary value insofar as they bear upon questions of custom
and practice. Id. para. 1. (emphasis added)
The law of war is binding not only upon States as such but
also upon individuals and, in particular, the members of their
armed forces. Id. para. 3b.
The defense presented witnesses Moore, Duncan and Bourne who had actually
been in a majority of the Special Forces A-Team encampments in South Viet
nam. See R. Vol. 5, 959, 991-92, R. Vol. 6 , 1021, to show the pattern or
practice. It then proved violations of id. para. 31 (forbidding assassina
tion and bounty, see also re assassination, "The Hidden War, Elite 'Phoe
nix' Forces Hunt Vietcong Chiefs In An Isolated Village," Wall Street
Journal. March 25, 1969, p. 1; col. 1.); id. para. 34b (use of weapons
causing unnecessary injury); id. paras. 56, 58, 393, 397, 448, 502 (of
fenses against property and penalties against and mass transfers of civi
lians); id. paras. 266, 433 (mistreatment of civilians); id. paras. 270,
502 (impressment of local inhabitants); id. paras. 85, 8 8 , 89 (treatment
of prisoners), id. para. 504 (treatment of dead bodies--the collection of
ears and payment of bounty thereon). The foregoing references include
"texts of treaties to which the United States is a party."
Complicity, id. para. 500, was demonstrated, see, e.g., Greenspan,
Modern Law of Land Warfare at 467-87 (1949) and cases cited thereat.
Cf. in re Yamashita, 327 U.S. 1 (1946).
-207-
c. The Army Colonel's ruling on whether members of a branch
of his Army were committing war crimes;— the significance
of the ruling.
______ * ________
. . . I know of no court, civilian or military, that
is going to sit in judgment on the President's exercise
of his power in disposing the troops of the United
States. Disposition of troops under our constitution
is peculiarily [sic] an executive power and not a judicial
A. 185.
--The Law Officer.
______ * ________
The high feelings of the moment doubtless will be
satisfied. But in the sober afterglow will come
the realization of the boundless and dangerous im
plications of the procedure sanctioned today. No
one in a position of command in an army, from ser
geant to general, can escape those implications.
Indeed, the fate of some future President of the
United States and his chiefs of staff and military
advisers may well have been sealed by this decision.
327 U.S. at 28.
The indictment permits, indeed compels, the military
commission of a victorious nation to sit in judgment
upon the military strategy and actions of the de
feated enemy and to use its conclusions to determine
the criminal liability of an enemy commander. Life
and liberty are made to depend upon the biased will
of the victor rather than upon objective standards
of conduct. _Id. at 35-36.
At a time like this when emotions are under
standably high it is difficult to adopt a dispassionate
attitude toward a case of this nature. Yet now is pre
cisely the time when that attitude is most essential.
While peoples in other lands may not share our beliefs
as to due process and the dignity of the individual,
we are not free to give effect to our emotions in reck
less disregard of the rights of others. Id,, at 40-41.
--Mr. Justice Murphy, dissenting. In
re Yamashita, 327 U.S. 1 (1946)
one .
- 208-
While there have been perhaps instances of needless
brutality in this struggle in Vietnam about which
the accused may have learned either through con
versations or through publications, my conclusion
is that there is no evidence that would render this
order to train aidmen illegal on the grounds that
eventually these men would become engaged in war
crimes or in some way prostitute their medical train
ing [the testimony on the medical ethics defense came
later] by employing it in crimes against humanity.
A. 243.
______ _ * ______
Thus the law officer did not rule that Special Forces were
or were not, in fact, engaged in the commission of war crimes.
He simply refused to allow the defense to go to the Court Martial.
Cf. Whelchel v. McDonald, supra.
d. The defense does not waive the war crimes issue. It
recognizes facts of life and that the rule of law is
enforced by men. Regardless of the refusal to allow
presentation of the war crimes defense to the court-
martial (cf. Whelchel v. McDonald, supra) the evidence
adduced in the out-of-court hearing directly relates
to the defense of medical ethics.
The ruling (or non-ruling) by the law officer came as no
great surprise for war itself has been known to prejudice the
minds of great jurists let alone members of the intra-military
judicial system. See, e .g ., the words of the late Mr. Justice
Holmes, a veteran of the Civil War:
- 2 0 9 -
For my own part, lately my thoughts
have been turned to
old, unhappy, far-off things,
And battles long ago;
and when once the ghosts of the dead fifers
of thirty years since begin to play in my head,
the laws are silent . 1
Indeed, as Mr. Justice Rutledge noted regarding the "field
of combat."
There the maxim about the law becoming silent
2in the noise of arms applies.
______ * ________
Nations like men do not apply to themselves the standards
they apply to others; they do not consider themselves bound by
the rules they apply to conquered enemies. Compare Yamashita
with the evidence herein— evidence compiled in a few days, with
but few witnesses.
In re Yamashita, supra, 327 U.S. at 26-27, 31, raised however
important due process and habeas considerations relating to the
strength of constitutional guaranties in a time of ". . . hatred,
aggression or fear." Id. at 27. (Murphy, J., dissenting) "It is
not too early, it is never too early, for the nation to follow
its great constitutional traditions, none older or more universally
protective against unbridled power than due process . . . ." id.
at 41 (Rutledge, J., dissenting, joined by Murphy, J.) 1
1. 0. W. Holmes, Learning and Science, in Collected Legal
Papers. 138 (1921). Quoted from Wiener, Helping to Cool the Long
Hot Summer. 53 A.B.A.J. 713, 715 n. 18 (1967).
2. ID Yamashita, 3 27 U.S. 1, 47 (1946) (Rutledge, J., dis
senting, joined by Murphy, J.).
- 2 1 0 -
Thus the War Crimes aspect of the Levy Court-Martial was
limited to the violation by the Army of the Army's own rules.
Evidence was adduced referrable to other constitutional claims
at issue. No Dachau was alleged, indeed nothing but common
knowledge truth was alleged until the law officer raised the
question, nor proved.
What was proved was that by its nature the war in Vietnam
is not subject to being fought by yesterday's rules. Consequently,
the rules should be changed, the war should be ended or, at
least, this nation should not deceive itself as to the nature of
its acts, its own submission to the rule of law or the morality of
its position.
Dr. Levy sought to remain honest to American ideals and to
the truth.
Dr. Levy sought and seeks the protection of the first amendment
for the right to speak and to practice ethical medicine.
These rights are constitutionally guaranteed. He has been de
prived of them. That deprivation, if not corrected, may result in
the eventual loss of freedom for all and render the law officer's
off hand observation not merely speculation but prophecy. As he
put it while rejecting truth as a defense against the Army— "Not so
long as the Army won, I suppose." A. l ^ .
- 2 1 1 -
To this Mr. Justice Rutledge joined by Mr. Justice Murphy
would have replied:
It was a great patriot who said:
"He that would make his own liberty secure must
guard even his enemy from oppression; for if he
violates this duty he establishes a precedent that
will reach himself." [citing: 2 The Complete Writings
of Thomas Paine, 588 (Foner, ed. 1945)]. id. at 81.
Dr. Levy was neither protected by the Army nor from it.
And, it was not Dr. Levy who had committed a crime.
- 2 1 2 -
ARTICLES 133 AND 134 ARE OVER
BROAD AND VAGUE AS WERF THE
CHARGES AND SPECIFICATIONS UNDER
THEM. THUS DR. LEVY'S CONVICTION
WAS VIOLATIVE OF THE FIRST, FIFTH
AND SIXTH AMENDMENTS.
1. Articles 133 and 134 UCMJ are facially invalid.x
Articles 133 and 134 UCMJ are facially vague and overbroad
2m the area of first amendment rights. "Conduct unbecoming an
officer and a gentlemen" and "the general article" are without
the permissible ambit of the first amendment. The Manual for
Courts-Martial, for example, interprets Article 134 "the general
article" as including more than fifty different offenses ranging
from "abusing public animals" to "wearing unauthorized insignia." 1
1. See generally, Amsterdam, Note, The Void-for-Vagueness
Doctrine In The Supreme Court, 109 U. Pa. L. Rev. 67 (1960) .
2. In United States ex rel O'Callahan v. Parker, 256 F. Supp.
679 (M.D. Pa. 1966), aff'd , 390 F.2d 360 (3d Cir.), cert. granted
sub nom. O'Callahan v. Parker, 89 5. Ct. 177. (1968) (No. 646) this
court upheld the constitutionality of Article 134. In the Supreme
Court the petitioner contends that "[t]he General Article is, under
modern constitutional doctrine, totally inadequate to support a
criminal conviction. It suffers from the twin vices of overbreadth
and vagueness." _ld.. Brief for Petitioner at 26. Oral argument was
heard January 23, 1969. 37 U.S.L.W. 3269. A decision favorable to
petitioner there might or might not be dispositive here. A decision
adverse to petitioner there would not be dispositive here since no
first amendment "preferred rights" claim was there made. The intra
military appellate courts have, however, uphold both Articles 133 and
134 UCMJ against the claims here made. See United States v. Howe, 17
U.S.C.M.A. 165, 37 C.M.R. 429 (1967) (upholding Article 133 and, by
implication, 134) and United States v. Levy, CM 416 463 (Army Bd. of
Rev. Aug. 29, 1968) (C. 24 at 32), review denied, No. 21,641 (C.M.A.
Jan. 6 , 1969) (C. 39). The constitutionality of Article 133 is also
being challenged in Howe v. Clifford, Civ. No. 622-68 (D.D.C. filed
1968). Article 134 was last mentioned by the Supreme Court as an ex-
m̂iple of " . . . harsh law, which is frequently cast in very sweeping
and vague terms." Reid v. Covert, 354 U.S. 1, 38 n. 69 (1956) .
-213-
The vice ". . .ofThe list doesn't purport to be exhaustive.
an overly broad statute is that it leaves the definition, and
therefore the creation, of crimes to the discretion of minor
2executive or military officials."
The existence in the statutes of virtually unlimited dis
cretion in the hands of military officials to punish the exercise 1 2
1. See Levy v. Corcoran, supra, 389 F .2d at 932 n. 2 (C. 13)
(Bazelon, C. J., dissenting).
2. Id. And, additionally as Dr. Levy contended in the intra
military system and here the statutes render the prosecution a
forbidden bill of pains and penalties under Article 1, Sec. 9,
Clause 3 of the Constitution. See Cummings v. Missouri, 71 U.S.
(4 Wall.) 277, 323 (1867). The charges themselves are subject to
attack as ex post facto laws. "In Fletcher v. Peck, 6 Cranch
137, Mr. Chief Justice Marshall defined an ex post facto law
to be one'which renders an act punishable in a manner in which
it was not punishable when it was committed.'" Cummings v.
Missouri, supra, at 326. Here, under the pure speech charges
Dr. Levy's words were proscribed after utterance and made criminal
at the whim of Colonel Fancy, Special Agent West or their superior
or inferior officers including those in the office of the Staff
Judge Advocate. The bill of attainder clause was originally in
tended to prohibit legislative trials but its overriding purpose
then and now was to prevent political persecution. See the remarks
of Alexander Hamilton approved in United States v. Brown, 381 U.S.
437, 444 (1965) , and as in United States v. Lovett, 328 U.S. 303, 315
(1946) , the totality of the circumstances here must be considered.
Cf. In re Yamashita, 327 U.S. 1, 43 (1946):
It is not in our tradition for anyone to be charged
with crime which is defined after his conduct, alleged to
be criminal, has taken place; or in language not sufficient
to inform him of the nature of the offense or to enable him
to make defense. (footnotes omitted)
-214-
of protected first amendment rights1 is clearly a facial, and here
resulted in an applicatory, violation of the first, fifth and sixth
2amendments of the Constitution of the United States.
1. Levy was charged, among other things, with making "pro
voking" and "contemptuous" statements to members of the Armed
Forces. The Government at trial adopted the position, in brief,
that " . . . first amendment rights to free speech apply to persons
in the uniform services." R. Vol. 16, App. Exh. 9, 1, citing among
other authorities AR 600-20, para. 42, to the effect that soldiers
". . . while on active duty, retain the right to vote, to express
the opinion privately and informally on all political subjects
and candidates, and to become candidates for public office . . . .
Of course some confusion developed on page 6 of the same brief
where the Government under "The Legal Standard" contended:
The First Amendment to the Constitution provides insofar as
is pertinent here that: "Congress shall make no law abridging
the freedom of speech. . . . " The fact of the matter is that
Congress has made a law, three laws to be precise Articles
133 and 134 .. . and § 2387 . . .— and the Government properly
seeks to apply these statutes against the accused [sic] as-^
sertion that he is to be protected under the umbrella of this
constitutional prohibition. The quest then is for a workable
standard that can be gleaned from this majestic yet simple
statement of law. Id.
The remainder of this document is not subject to understandable
interpretive comment except, to say, that speech may be limited by
a showing of military necessity, a showing incidentally not made in
the record but somehow assumed or perhaps silently noticed by the
same organ of the intra-military system of justice. The Government
demonstrated clearly the invalidity of the statutes in question by
referring to such terms as "insubordination" and disloyalty,
neither of which necessarily require action on their own. Similarly
the offense claimed in Charge II under Article 134 is concerned with
the less tangible mental qualities, disaffection and disloyalty.
Id. at 12, or cf. the totally indecipherable newspeak of "The
'action' to be prevented in the military context is not action at
all but rather a state of mental or emotional disruption." Id. at
14.
2. Trie law officer charged the court-martial that the first
amendment applied to the military. A. 359.
-215
In a long line of cases the Supreme Court has assured the
primacy of the first amendment and resisted the incursions of
vague and overly broad statutes upon the area it protects. In
the 1960's such opinions have been rendered with increasing fre
quency. See, e ,g., NAACP v. Button, 371 U.S. 415 ( .1963); Dom-
browski v. Pfister, 380 U.S. 479 (1965)^; and more recently,
2Shuttlesworth v. City of Birmingham, 89 S. Ct. 935 (1969) ; and
finally Stanley v. Georgia, 37 U.S.L.W. 4315 (U.S. Apr. 7, 1969). 1 2
1. See also, regarding ensnarement under overbroad and vague
statutes which provide no notice to those who speak, Ashton v.
Kentucky, 384 U.S. 195, 200 (1966); Wright v. Georgia, 373 U.S.
284, 293 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Edwards
v. South Carolina, 372 U.S. 229 (1963); Garner v. Louisiana, 368
U.S. 157, 202 (1961)(Harlan, J., concurring). This point was
made at trial:
Nobody ordered Levy not to do anything. Order him. Go
against him under Article 90. Give him a specific order.
But I don't think you can prosecute a man for making
statements like this, unless he had specific notice, and
there is no notice provided by the statute. R. Vol. 3, 161.
2. And see Gregory v. City of Chicago, 89 S. Ct. 946, 950-
51 (1969) (Black, J., concurring, joined by Douglas and (on this
issue) Harlan, J.J.):
To the contrary, it might be described as a meat ax
ordinance, gathering in one comprehensive definition
of an offense a number of words which have a multi
plicity of meanings, some of which would cover act
ivity specifically protected by the First Amendment.
The average person charged with its violation is ne
cessarily left uncertain as to what conduct and at
titudes of mind would be enough to convict under it.
Who, for example, could possibly foresee what kind of
noise or protected speech would be held to be "im
proper"? That, of course, would depend on sensibili
ties, nerves, tensions, and on countless other things.
As pointed out in Cantwell v. Connecticut, 310 U.S.
296, 308 (1940), common law breach of peace is at its
best a confusing offense that may imperil First Amend
ment rights. But how infinitely more doubtful and un
certain are the boundaries of an offense including any
"diversion tending to a breach of the peace. * * *"?
(emphasis added, cf. the law officer’s repetitive use
of "tendency" in defining the speech offenses, supra
pp. 199, 202-04)
The day has ended when pure speech may be restricted by a Govern
mental desire to inhibit disloyalty, Speiser v. Randall, 357 U.S. 513
(1958); or subversion, Dombrowski, supra; or statements in opposition
to the struggle in Vietnam, Bond v. Floyd, 385 U.S. 116 (1966); cf.
Tinker v. Des Moines Ind. Comm. School Dist., 89 S. Ct. 733 (1969).
2• There was no attempt made to show a military necessity for pro
hibiting Dr. Levy's speech or for prosecuting him.
First amendment incursions require a showing of an . .
'overriding and compelling state interest'" , a military necessity
2which must be "striking" , for the amendment " . . . exacts obedience
3even during periods of war." There was no finding regarding Dr.
Levy there in Fort Jackson's Dermatology Clinic (as there could not
have been) " . . . that an immediate check is required to save the
country.
There was no showing of either a "clear" or "present" or for
5
that matter, any "danger" and under no conceivable set of circum
stances was there any "incitement."^ 1 2 3 4 5 6
1. De Gregory v. New Hampshire, 383 U.S. 825, 835 (1966) aftd
only after an exhaustive examination of facts and circumstances has
the Court ruled against claimed first amendment rights. See, e.g.,
Dennis v. United States, 341 U.S. 494 (1951); Communist Party v.
Subversive Activities Control Board, 367 U.S. 1 (1961).
2. Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev.
181 (1962) .
3. Dennis v. United States, 341 U.S. 494, 520 (concurring opinion);
C-f. Emerson, Freedom of Expression in Wartime, 116 U. Pa. L. Rev. 975 (1968)
4. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
dissenting).
5. Schenck v. United States, 249 U.S. 47, 52 (1919). Since nobody
became disloyal or disaffectionate (and truth was ruled out) the con
viction emasculates Mr. Justice Holmes' famous dictum of ". . . a man
falsely shouting fire in a theatre and causinq a panic." Id. (emphasis
added)
6 . Musser v. Utah, 333 U.S. 95, 102 (1948); cf. Carroll v. Presi
dent and Comm'rs. of Princess Anne, 89 S. Ct. 347 (1968).
-217-
The closest to the real "feeling"--and it is only a "feeling",
not a finding--of the military about Dr. Levy's speech is contained
in the opinion of the Army Board of Review. (In this opinion in a
case where twenty-six assignments of error were based almost ex
clusively on the Constitution of the United States the Board of
Review cited not a single decision of the Supreme Court.)
Their feeling is found in these words:
More to be condemned than his refusal to obey the order,
however, is his effort to promote disloyalty and disaf
fection and the dishonor which he brought upon himself
and his office. "] That irreparable harm has been done
is evident, but the extent of it cannot yet be assessed.
United States v. Levy, supra, at C. 38.
But, it was not Dr. Levy who was dishonored by this prosecu
tion and his conviction and incarceration.
The dishonor lies elsewhere and arose from a failure of law
and the men who enforce it to uphold and defend the Constitution
of the United States against its enemies, domestic as well as foreign. 1 2
1. In an extraordinary passage explaining Article 133, Winthrop
indicates that it was deliberately broadened so as to be applicable
to a greater range of conduct:
It is the effect of this omission to extend materially
the scope of the Article, and thus indeed to establish a
higher standard of character and conduct for officers of the
army. As the Article now stands, it is no longer essential
to expose an officer to dismissal, that his conduct as charged
should be infamous either in the legal or the colloquial sense;
nor is it absolutely necessary (though this will often be its
effect) that it scandalize the military service or the community.
It is only required that it should be 1 unbecoming1--a compre
hensive term including not only all that is conveyed by the words
'scandalous' and 'infamous' but more. Winthrop, Military Law
1 0 - 1 1 (1886). (emphasis added)
2. The reason for non-assessment no doubt being the simple fact
that no one was made disloyal or disaffectionate. Or, perhaps,
Articles 133 and 134 UCMJ will be ruled unconstitutional and "ir
reparable harm" would then be "done" to those who would make inroads
on first amendment freedoms.
- 218 -
3. The application of Articles 133 and 134 UCMJ:̂
2. i ourney into wonder, wonder land.
The prosecution set the pattern for the trial in its
earliest stages. The applicable " . . . rule, paraphrased
from a number of opinions, is that while freedom to think is
absolute of its own nature, the right to express thoughts,
orally or in writing, at any time or place, is not." R. Vol. 3,
To this the defense responded that it ". . . was quite
pleased that we now know what the case is all about. I be
lieve that Captain Shusterman correctly stated the issues
when he said freedom to think is guaranteed but freedom of
speech is not. We will join issue there. And that's what
is involved in this case."^ R. Vol. 3, 173-74.
Thus was the issue joined. From there it sundered into a
Kafkaesque word game, the stakes high, the ante Dr. Levy. 1 2
1. Article 134 UCMJ has probably been preempted in so far
as it formed the basis for Charge II by 18 U.S.C. § 2387. Cf.
Nelson v. Pennsylvania, 330 U.S. 497 (1956) and Gibson v. Florida
Legislative Investigation Comm., 372 U.S. 539 (1963) .
2. Colonel Coppedge of Special Forces thought that the
training provided entering medical men at Fort Sam Houston
"• • .is valuable . . . . and its non-recipient . . . at a
disadvantage." R. Vol. 7, 2229-30. Dr. Levy received no
military training except for one hour or so on how to shoot a
pistol and the annual "gas chamber exercise." " . . . [T]raining
at Fort Sam Houston . . . involve[d] the concept of think, but
don't talk." A. 156.
168.
-219-
The overbreadth of the statutes, the charges, the speci
fications, and their vagueness led from one never beginning alley
down an almost never ending street.
Captain Joseph H. Peinstein, Chaplain and rabbi, was on
the stand.
INDIVIDUAL COUNSEL: . . . the nature of the charge
is based on words and I am just trying to find out
if there is a norm of speach [sic] around here. R. Vol. 6 ,
2040.
LAW OFFICER: But I am not particularly interested
in any witness' idea of what is or is not disloyal.
I will define that term to the court myself when
I submit the case to them. That would be a mere
personal opinion. I am sure both sides could present
witnesses from many extremes to testify as to that.
INDIVIDUAL COUNSEL: That is one of the points we are
trying to make.
LAW OFFICER: I will permit him to testify as to
whether or not under the circumstances he thought
the accused acted disloyal or whether his character
is loyal or disloyal. I'll permit that as a char
acter issue, but not as his ideas as to what is
loyal or disloyal. That is hardly relevant.
Q. With respect to his character, is he loyal?
A. I believe he is.
Q. Now, what do you base that belief on?
2 2 0
PROSECUTION: Objection.
LAW OFFICER: Sustained. You are going into the
same area.
INDIVIDUAL COUNSEL: I'm trying to go into an area—
he has stated an ultimate conclusion. I want to
find out the reason for his ultimate conclusion.
LAW OFFICER: You can do that--I'm permitting him
to testify as to a character trait, loyalty, not as
to what this witness might think an act may or may
not be disloyal to the United States. That is a
very difficult abstract concept and if we are going
to have testimony as to that we will be going through
many, many hours of discussion and debate on that
particular point. A.253 (emphasis added)
LAW OFFICER: You are asking strictly for a conclusion
of this witness under what circumstances may or may
not be disloyal or not disloyal to the United States.
I don't think you have any expert who can testify
as to that.
Q. May I ask you this question. You ever known of
any enlisted man or any other officer or anyone else
to your knowledge, that became disloyal because of
Doctor Levy and his statements?
A. No.
Q. How about anyone who became disaffectionate?
A. No. A.254 (emphasis added)
At another stage of the trial, individual counsel questioned
a physician, Captain Robert Petres. The following occurred:
221
Q. He never made you disloyal, did he?
A. No, sir.
Q. He never made you disaffect, did he?
A. What does disaffect mean?
Q. I don't know.
LAW OFFICER: Mr. Morgan, if you don't know the
questions, don't ask them.
« • •
INDIVIDUAL COUNSEL: Could I have a meaning from
the court what disaffection is?
LAW OFFICER: Should have asked it before you
asked the question.
INDIVIDUAL COUNSEL: I asked for a ruling on dis
loyalty the other day and you said you would supply
it before the case went to the jury. I am trying to
make out a case of proof on disloyalty and disaffect
i o n . ^ I have difficulty understanding what the
words mean.
LAW OFFICER: Well, if you are going to ask the
question you had better get the definitions before
you go any further. R. Vol. 7, 2183-84.
Then after a continuing colloquy in which an out-of-court
hearing was requested, the following occurred: 1
1. Throughout the trial the Law Officer had been providing
advisory rulings. See, e .g ., A.185.
2 2 2
INDIVIDUAL COUNSEL: I understand, Colonel. I am
trying to get from you now, a ruling as to the legal
definition of disaffection.
LAW OFFICER: And I am going to tell you now that
you don't need it at this time. All you have to do
is ask this witness what he means by the use of that
word.
Q. What do you mean by the use of that word?
A. I never used it.
Q . Did you say you never—
A. Never used the word. I'm sorry.
Q. Fine.
LAW OFFICER: Then you will have to rephrase your
question to approach something what you mean by it.
R. Vol. 7, 2184. (emphasis added )
*
INDIVIDUAL COUNSEL: ". . . if I don't know the
definition I don't know how to proceed.
LAW OFFICER: Certainly, there is a legal definition
of those terms, but we do not expect the witnesses to
know these legal definitions or to speak only in
legal terms.
They are to describe certain acts or feelings or
ideas that they themselves have as a factual content
223
of meaning and certainly . . . you could reach that
through questioning . . . without going through a
legal definition. R. Vol. 7, 2185.
Then the Law Officer himself asked:
Q. Doctor, you were asked some questions which
apparently Mr. Morgan found some confusion on. He
used the word disaffection. I am going to ask you
that in your conversations or contact with Doctor
Levy, did he create in you feelings of hostility
toward authority or a feeling that you should dis
obey or turn away from authority in the hospital
the re ?
A. No sir. R. Vol. 7, 2187.
And, he then held an out-of-court hearing in which he
defined both "disloyalty," and "disaffection" using such
words as "unfaithful," "disgust" or "discontent", "ill will"
and with respect to "disaffection", the word "disloyalty".
Other words used were "respect", "obedience", and "allegiance".
He stated: ". . .in this case as a general rule, as a general
idea, I will give you a definition because I am going to have
both counsel supply me with definitions". And: "Now here
again, that is just a broad general statement, and I may not
define these terms for the court in those terms because I
am not satisfied with them myself. R.Vol. 7, 2191.
(emphasis added)
-224-
Then:
INDIVIDUAL COUNSEL: I don't mean. . .
LAW OFFICER: I cannot tolerate in any courtroom
a lawyer posing questions where he is confused
by the words. Id. (ellipsis in original)
At the conclusion of the trial, the Law Officer again
defined "disloyalty" and "disaffection" in words as vague as
the words defined. "Disloyalty", according to the Law
Officer " . . . imports not being true to or being unfaithful
to an authority to whom respect, obedience or allegiance is
due and tending toward insubordination, refusal of orders or
mutiny. The term disaffection imports disgust and discon
tentment, ill will, disloyalty and hostility, toward an auth
ority to whom respect, obedience and allegiance is due".
A. 351. The vagueness of these words must then be considered
in context with Charge II. The Law Officer there said:
To find the accused guilty of this offense, you must be
convinced by legal and competent evidence beyond a reason
able doubt:
• • • •
(2) That such statements were publicly made;
(3) . . . with the design to promote disloyalty and dis
affection . . . .
-225-
• • • [T]his offense, as I have defined it, contains
six separate elements:
(1) The making of the statements;
(2) Publicly made;
(3) Made with the design to promote disloyalty;
(5) . . . Finally, their prejudicial nature. A. 348.
Thus, in the preceding forays into the weird world of
language the following had occurred.
A rabbi had determined that appellant was "loyal", an:
"ultimate conclusion", "a very difficult abstract concept",
but was not allowed to testify as to what he meant by "loyal".
But then the rabbi was not allowed to testify as to "a con
clusion . . . under what circumstances may or may not be dis
loyal . . ." but was allowed to testify that he knew of no one
made "disloyal" or "disaffectionate" because of Dr. Levy and
his statements. Thus, a rabbi did and yet somehow did not
define Dr. Levy's crime.
A physician witness was asked, at the suggestion of the
Law Officer himself, what he meant "by the use of that word".
He, the witness, "never used it" so counsel for the appellant
was invited by the Law Officer to define it as something "you
mean by it". Then the Law Officer, an Army Colonel, defined
-226-
the words but was "not satisfied with" his own definition.
Later the question of whether the statements made "were
disloyal" was left up to a court-martial of ten Army officers
ranging in rank from Major to Colonel.1
Thus, among others, a rabbi, a physician, 10 court
members, the Law Officer, the convening authority, a hospital
commandant, a Staff Judge Advocate, prosecuting attorneys,
and compilers of a G-2 dossier all were allowed a word or so
1. Perhaps, this portion of the proceedings was more
Carrollesque that- a production by Kafka. See L. Carroll,
Alice1s Adventures in Wonderland, and Through The Looking
Glass, (Airmont Pub. Co. ed. 196 5) :
"There's glory for youl"
"I don't know what you mean by 'glory,'" Alice said.
Humpty Dumpty smiled contemptuously. "Of course
you don't— til I tell you. I meant 'theres a nice
knock-down argument for you'.'"
"But 'glory' doesn't mean 'a nice knock-down
argument,'" Alice objected.
"When I use a word," Humpty Dumpty said, in
rather a scornful tone, "it means just what I
choose it to mean-— neither more nor less."
"The question is," said Alice, "whether you
can make words mean so many different things."
"The question is," said Humpty Dumpty, "which
is to be master— that's all."
Alice was too much puzzled to say anything . . . .
Id. at 198
-227-
in defining Dr. Levy's alleged crime. Even Dr. Levy's
attorney was invited to participate. Neither he nor Dr.
Levy, who did not testify, did so. It didn't matter for
at that late stage of the proceedings it would have been
difficult for even Dr. Levy to have gotten a word in
edgewise.
But had he testified, he too might have had an oppor
tunity to participate in the definition of his own crime.
But then again, he might have been asked if he were "disloyal”
or "disaffectionate” . Had he answered, he might have been
tried for perjury. And, had that been the case, who can
imagine the standard of proof?
228
THE CONVICTION VIOLATES THE DUE
PROCESS CLAUSE OF THE FIFTH
AMENDMENT SINCE THERE WAS NO
EVIDENCE TO PROVE THE NECESSARY
ELEMENTS OF THE PURE SPEECH CHARGES.
In Garner v. Louisiana, 368 U.S. 157, 163 (1961) the Supreme
Court held that a conviction in a state court must be set aside
under the due process clause if it is "totally devoid of eviden
tiary support." Accord, Thompson v. City of Louisville, 362 U.S.
199 (1960); Fields v. City of Fairfield, 375 U.S. 248 (1963) (per curiam);
Gregory v. City of Chicago, 89 S. Ct. 946 (1968). Garner, Thompson, Fields
and Gregory say simply that if there is no evidence to prove one or
more of the essential elements of a charge, the conviction cannot
stand. "In addition," as the Court stated in Garner, the concern
is not:
. . . whether the evidence proves the commission of some other
crime, for it is as much a denial of due process to send
an accused to prison following conviction for a charge
that was never made as it is to convict him upon a charge
for which there is no evidence to support that conviction.
Id. at 164. 1
1. Charge II (under Article 134 UCMJ).
There was no evidence that Dr. Levy's remarks were made
publicly or with a design to promote disloyalty and disaffection.
Nor was there any evidence that his remarks had a clear and reason
able tendency to do so. Not a person became either "disloyal" or
"disaffectionate."
-229-
Thus, there was absolutely no evidence of any relationship
between Dr. Levy's words and their alleged "manslaughter charge"
effect. There simply was no effect. It is clear that the
words did not, in fact could not, have had a "clear and reasonable
tendency to promote disloyalty and disaffection." Or, to put it
in other words:
INDIVIDUAL COUNSEL: Could the prosecution show that
since it has people that it introduced as witnesses?
Could it show the natural and probable consequences
without showing that somebody did in fact disaffect,
and how could it be the natural or probable conse
quences if it never happened? A. 196. (emphasis added)
The Army Board of Review maintained:
The circumstances under which the remarks were uttered, the
persons to whom they were directed and the very nature of
the statements themselves, compel the obvious and inescapable
conclusion that they were _in fact disloyal and were intended
to and had the reasonable tendency to promote disloyalty and
disaffection. The evidence is overwhelming that such conduct
is discrediting and prejudicial to good order and discipline.
C. 31. (emphasis added)
The clear language of the Board of Review has absolutely no
corroboration in the Record.
2. Additional Charge 1 (under Article 133 UCMJ):
In his instructions the law officer first defined "conduct
unbecoming an officer and a gentleman" substantially in accordance
with the Manual for Courts-Martial, para. 212, the key words being:
. . . action or behavior in an official capacity which,
in dishonoring or disgracing the individual as an officer,
seriously compromises his character as a gentleman . . . .
[T]he act . . . must have a double significance and effect
. . . it must offend so seriously against justice, law,
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morality, or decorum as to expose to disgrace, socially,
or as a man, the actor. Additionally, the act must . . .
bring dishonor or disrepute upon the military profession
which he represents. Further, unbecoming . . . mean[s]
not merely inappropriate or unsuitable, as being opposed
to good taste or propriety, or not consonant with usage,
but morally unbefitting and unworthy. A. 352. (emphasis
added)
The gravamen of the offense must be something (words? actions?
behavior? conduct?) seriously reflecting upon the character of
Dr. Levy.
It does not involve a tendency to incite others to action
(as might be the case with offenses charged under Article 134).
And the record is replete with testimony as to the excellent
character of Dr. Levy; it is barren of testimony to the contrary.
Nor could the lack of evidence of reprehensible character,
be justified by inference from the words themselves. The in
struction, as does the Manual for Courts-Martial, requires evi
dence that Dr. Levy actually had been "disgrace[d], socially, or
as a man."
The instruction enumerated conjunctively a number of elements
for which proof did not exist.
Dr. Levy must, in his official capacity, have so "dishonored"
or "disgraced" himself that his own character was seriously com
promised. But the witnesses had praise for his character.
See, e .g ., testimony of witness Travis, R. Vol. 7, 2342-51. 1
1. The law officer prefaced his charge with the statement
that Article 133 provides " . . . that any officer who is convicted
of conduct unbecoming an officer and a gentleman violates this
article." A. 351. Since there was no evidence of a prior con
viction, the finding could not conform to the instruction.
-231-
Secondly, he must so seriously have offended "decorum 1 as
to disgrace himself as a man. Here again, there is no proof.
Additionally, he must have brought "dishonor or disrepute
upon the military profession which he represents." The prosecution
offered no evidence that the Army had suffered any loss of public
2esteem because of Dr. Levy's statements. And any loss of esteem
the Army suffered was self-inflicted by its prosecuting and jailing
of Dr. Levy.
Further, he must have not merely offended propriety, but
must have been "morally unbefitting and unworthy." These are
strong and, of course, vague words, but the evidence merely demon
strates strong political disagreement.
The evidence in support of this finding fails so miserably
that the conviction lacks even the rudimentary ingredients of due
process.
The quoted portion of the charge accurately reflects the re
quirements of the Manual for Courts-Martial. Had the court been
restricted to impartial consideration of the evidence under the
proper instruction, as given at A. 351-53, a finding of not guilty
would have been inevitable--in a fair system of justice. Two
serious errors could rationally explain the mistaken findings. 1
1. No offense against "law, justice" or "morality" is alleged
or raised by the proof. Indecorum cannot be constitutionally pro
hibited. See, e.g., Terminiello v. Chicago, 337 U.S. 1 (1949);
Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966)(three-judge
court), but it is the only one of the four words that the specifi
cation under this charge could conceivably refer to.
2. There is also some doubt that appellant could even be con
sidered a representative of the military profession, since those to
whom the statements were made seemed to think of him as a doctor
rather than a soldier. See testimony of prosecution witnesses,passim.
-232-
First, there was the prejudice, confusion, and cumulation^
resulting from denial of the motion to sever.
Secondly, after giving that instruction, the law officer
gave a second definition of "conduct unbecoming an officer and a
gentleman." This instruction was totally erroneous and completely
erased the first definition:
The term "unbecoming an officer and a gentleman" is satis
fied in this specification by proof beyond a reasonable
doubt that these statements, if any, were in fact intem
perate, contemptuous, defamatory, provoking, and/or dis
loyal as alleged, were uttered under the circumstances al
leged, and compromised the accused's position as an officer
and a gentleman." A. 354.
After hearing this the court could not help but feel that once
the objective facts were established, all they had to find was
that the statements were either intemperate, _or contemptuous, or
defamatory, or provoking, or disloyal. Gone is the series of
epithets importing moral disgrace; in its place is a series of
words, this time in the disjunctive, most of which describe con
stitutionally protected speech. 1
1. No doubt the prejudice and cumulation, and certainly the
confusion, were compounded by inclusion in the instruction of:
. . . or action or behavior in an unofficial or private
capacity which in dishonoring or disgracing the individual
personally seriously compromises his standing as an officer,
A. 352, (emphasis added)
when although only action in an official capacity was alleged—
"while in the performance of his duties at the United States Army
Hospital," A. 2. The problem is further aggravated by the fact
that frequent references were made during the trial to Dr. Levy's
off-duty activities.
-233-
3. The applicability of Army Regulation (AR) 600-20 para. 42.
AR 600-20 protects some of the first amendment rights of men in
the Army by providing that they,
. . . while on active duty, retain the right to vote, to express
their opinion privately and informally on all political subjects
and candidates, and to become candidates for public office . . . .
AR 600-20 para. 42
This regulation totally covered Dr. Levy on the pure speech charges,
and the Law Officer incorporated languate similar to this into his
instructions A. 359.
Again there is not a scintilla of evidence that Dr. Levy's words
went beyone the limits of protection.
Dr. Levy spoke to no groups, toted no picket signs, conducted no
1demonstrations but merely carried on conversations with "groups of
one" expressing his " . . . opinion privately and informally on all
political subjects . . . ."
The Government acknowledged that he ". . . did not choose the
method of soap box oratory to promote his design."
The facts support the conclusion that the accused uttered
the statements in question with the specific intent that the
message take hold, that it be carried far and circulated to all
that it might be vulnerable. The repeated utterances to diverse
persons over a long period of time is clear and convincing sup
port that they were in fact "public." R. Vol. 10, App. Exh. 3 at last
page thereof^ 1
1. Compare AR 600-20 para. 46, which allows picketing and demon
strations except under certain circumstances.
2. The Law Officer defined "publicly utter" as "to make, to state,
to publish, to put forth, or to put in circulation openly, generally,
or notoriously, as distinguished from doing so privately or in secret"
A. 351.
-234-
This means that on the face of this entire record, if this con
viction stands, the only way a person in the service can express a
private political opinion (be it "up with Agnew!" "Wallace!" "Peo
ple I" or "Impeach Earl Warren!" or "Down with Shanker!", "Nixon!",
"Daley!" or "Schultz is a mighty nice fella") will be to do so in an
unbugged bed, closet or telephone booth. Cf. Katz v. United States,
389 U.S. 347 (1967).
As construed in Katz, privacy follows the person (in that case
into a bugged telephone booth). In United States v. Hagarty, 388
F .2d 713 (7th Cir. 1968), an Internal Revenue Service investigator
was said to be engaged in a constitutionally protected private conver
sation, even though it was held on government property in his office.
Dr. Levy's conversation was private and informal and was pro
tected by the applicable regulations as well as the Constitution.
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THE BILL OF RIGHTS APPLIES TO THE
MILITARY EITHER OF ITS OWN FORCE
OR AS A REQUISITE OF DUE PROCESS
OF LAW GUARANTEED BY THE FIFTH
AMENDMENT.
The Government concedes that the Bill of Rights applies to the
members of the Armed Forces. At the Court-Martial the prosecution
stated:
the first amendment as well as other applicable provisions
of the Constitution surely and clearly apply to the military.
In the proceedings before the Board of Review Counsel for the
Army agreed that: 1
. . . the Bill of Rights applies to the armed services as a
general proposition . . . . Brief for Appellee, at 2, n. 1.
This concept grew from Burns v. Wilson, 346 U.S. 137, 142 (1953)
the Court stating:
The military courts, like the state courts, have the same
responsibilities as do the federal courts to protect a person
from violation of his Constitutional rights.
The preferable view is that the amendments on their face and
of their own force apply to the Federal Government and all of its
1
institutions including the military. As the Court of Claims said
1. See Warren, The Bill of Rights and The Military, 37
N.Y.U.L. Rev. 181, 187-88 (1962); Note, Servicemen inCivi1ian
Courts, 76 Yale L. J. 380, 391-92 (1966) .
- 2 36-
in Shapiro v. United States 6° F.Supp. 70S, "07 ( J O 4 7 ) :
It would seem to go without saying that these Amendments
apply as well to military tribunals as to civil ones. Why
they should not, we cannot conceive. It has been so held.
Schita v. King, 133 F.2d 283 (8th Cir. 1943) ; United States
ex rel. Innes v. Hiatt, 141 F.2d 664 (3rd Cir. 1944).
But assuming arguendo, the rejection of the view of "own-force
application," the undisputed applicability of the due process clause
of the fifth amendment requires no less of the military than the due
process clause of the fourteenth amendment requires of the states.
In either case basic protections must be enforced against the
arbitrary exercise of power by an institution with an all-pervasive
influence on the people of the land at least as great as that of
1
state government. 1
1. See e.g. some recent but not current figures. Of course,
with the Vietnam escalation the military share of America's eco
nomic and other power has grown. Total state revenues in 1965 were
$48,826,921,000; total state expenditures were $45,507,280,000.
California's revenues were $6,216,449,000; her expenditures,
$ 6,122,871,000. New York's revenues were $4,948,658,000; her ex
penditures, $4,600,888,000. Britannica Book of the Year (1967),
States Statistical Supplement, 18, citing the United States Dept.of
Commerce, Bureau of the Census, Compendium of State Government Fi
nances . National defense spending in 1965 was $52,554,000,000 and
the 1966 and 1967 estimated expenditures were$59,374,000,000 and
$53,446,000,000 respectively. Budget of the United States Government,
Fiscal Year Ending 30 June, 1967, p. 394, Table B-9. Cf. $800,000,000
federal and $55,000,000 state expenditures on the Army and Air Force
National Guard. Information Please Almanac (1967) p. 237. Military
land ownership in the United States was 15,849,000 acres. Statistical
Abstract of the United States (1966) p. 197, a larger land area than
that of seventeen states. (This figure excludes airfields.) The
Office of Information, Department of Defense, estimated military
land owned at 7,221,000 acres; land controlled at 27,000,000 acres.
Active military personnel (all services) as of June 30, 1966, was
3,093,356. Office of Information, supra. Cf. total number of state
employees (50 states), 1,639,000. Book of the States, 1966-67,
Council of State Governments (1967) , p. 166, citing United States
_23 7
Under the Bill of Rights the Uniform Code of Military Justice
is a non sequitur. For justice in the military is, at best,
an anomaly.
From the peacetime Army of President Washington (672 men en
listed; 840 authorized) to today's more than 25,000,000 veterans
. . . the wisdom of treating the military establishment as an en
clave beyond the reach of the civilian courts almost inevitably is
1
drawn into question."
Today "[t]he professional soldier who could be said to have
chosen his world and the law that went with it has been replaced,
in large measure, by the draftee or reluctant volunteer."2
Regardless of draftees and reluctant volunteers, or perhaps
because of them this nation's leaders are currently debating an
other non-question: whether to turn or not to a "volunteer pro
fessional army. Thus the President has proposed that we turn to
that which we presently have. Those who favor the "non-professional
civilian army" desire to retain— with more just selection methods—
that which we do not have.
[^footnote continued from preceding page]
— •-■Qmmerce' ,.Pureau 2 ^ . the Census, State Distribution of Public
_mployment, 1964. The Ready Reserves (inactive) June 30, 1966,
numbered 1,965,626; the Stand-by Reserves 467,650; and those retired
3 - 1 5 , 0 0 0 . O f f i c e of Information, supra. Thus, as of June 30, 1966
American military personnel (excluding those retired) on active
uty and in the Ready and Stand-by Reserves numbered 5,526,632.
The 2,690,441 Federal Civil Service and 133,361 New York State
Civil Service Bureau. Those on active military duty numbered 3,093,356-
the population of Maryland in 1960 was 3,100,689. The active dn-t-v
nulitary population exceeded the population of 29 states.
1. Warren, supra, 187-88 (1962).
2. Note, Servicemen in Civilian Courts, 76 Yale L. J. 380, 391 (1966)
-238-
The simple truth is that every decision of importance within
the military is, in fact, made by professionals. The sergeants,
the warrant officers, the majors and their superiors are professionals.
They are the narrow disciplinarians, the career men to whose whims
two years of the lives of our young men are surrendered.
There was a time (pre-1940) when "that young Johnson boy who
got in all that trouble" was allowed by the judge to enlist in the
Army or face the charges pending against him.1 "The Army'll straighten
him out" the judge would say to a pleased father and son.
______ * ________
Peacetime conscription,unthinkable before 1939, debatable in
1940 and "the order of the day" since 194L lent the professional
soldier respectability. Everyone became members of the Army, rich
and poor alike, socially acceptable or not.
But with that respectability came a new kind of quasi-civilian
citizen, the veteran. He need not have joined the American Legion
or the Veterans of Foreign Wars or even the American Veterans Com
mittee. He had undergone the military experience and he had been
changed.
1. A practice now prohibited by Army Reg. 601-270 para. 23d_.
-239
The veteran remembers the good times--if not wounded or maimed
or deprived of a family member or dear friend— of World War II. It
was then that they took that first trip away from home and poverty,
had that first drink and, perhaps, first woman. They remember mus
tering out pay, the GI Bill of Rights, the 52-20 Club, an education,
a home, veteran’s preference, a bonus, life insurance, an escape
from the tedium of small-town or poverty stricken rural America.
Many, but not all of these men look upon their Army years as
do those professionals who view their days at "the Point" as the
good old days; like hazing there or in a college fraternity many
of them now see the service as something "I went through so should
they."
For these reasons many fathers do not understand their sons
who recognize that the military totally deprives them of their
civil liberty.
It is not by great acts but by small failures that freedom
dies. The sense of justice dies slowly in a people. They grow used
to the unthinkable and sometime they may look back and even wonder
when "things" changed. They will not find the day or a time or a
place. Justice and liberty die quietly because men first learn to
ignore injustice and then no longer recognize it.
-240-
Once militarism captures the mind of a people it spreads slowly—
it is endemic; it moves undramatically.
Unless military incursion on civilian life is stopped at con
stitutional walls, our nation and the world may go with either a
bang or a whimper. But, it will matter little, for freedom will
have fallen not under a conqueror's heel but more gloriously— it
will simply have marched away to a cadence count.
The irony is that an Adolph Hitler, defeated and dead, may have
caused this nation to commit itself to the militarization of the
democracy— something that his Panzer Divisions could have never done.
-241
1. No Constitutionally permissible system of justice can exist
solely on an intra-military basis.
It is assumed that men will not fight for their country un
less imbued with "military discipline"; that men will fight only
if moulded and Pavlovized into the instant green of Army obedience,
an instinctive response to command.
That these assumptions are false is so obvious that they re
main unchallanged.
The Martin Kings and James Chaneys and their non-violent coun
terparts were willing to walk lonely roads in hostile territory,
to charge up that next hill, to seek the mountain top unarmed and
unprotected. In the 50's and early 60‘s there were more casual
ties from guerilla warfare in the Deep South than in South Viet
nam. These non-violent men refused the discipline of the harsh
order into which they were born, but they were willing to die.
Other kinds of men - undisciplined and violent - have fought
and killed and burned and looted and died in Watts, Detroit and a
hundred other ghettoes.
In labor struggles, on wagon trains, in slave rebellions and
on every week's Saturday night men are willing to fight and die.
But to win?— the assumption that top-down discipline with the
threat of criminal punishment is essential for victory was dispelled
in the American and French Revolutions; in militias where officers,
including General Andrew Jackson, were elected. The Alamo is not
-242-
remembered for its disciplined troops. To put a Crockett or Bowie
through basic training at Fort Jackson would be ludicrous.
Yet it is on this assumption that our Army, by tradition, operates.
In_Israel they don’t salute, they wear beards, they follow
and they win. As in the revolutionary world of 1776, in 1969 men
will fight for ideals if they believe in their dream.
But we, by forced conscription, subject young men to the pro
fessionals and their" [m]ilitary law [which] is . . . harsh law
which is frequently cast in very sweeping and vague terms. [foot
note citing Article 134 UCMJ omitted] It emphasizes the iron hand
of discipline more than it does the even scales of justice." Reid
v. Covert, 354 U.S.l, 38 (1956) .
The very concept of American intra-military justice is a fiction.
A civilian court must soon decide whether or not, citizens
in the conscripted military service are " . . . stripped of basic
rights simply because they have doffed their civilian clothes."
warren, supra, 188.
______ * ________
Can the American military really be governed by the Bill of
Rights— a document based not on blind obedience but itself a ques
tioner of authority?
Levy presents this question squarely and unavoidably. At
every proper point in these proceedings, these easy, simple, rational
constitutional questions have been properly raised. Clear rulings
-243-
on these questions will allow the nation to confront a major prob
lem, heretofore difficult of recognition. For under the facade
of the UCMJ and the Manual for Courts-Martial (MCM), justice is as
murky as was Kafka’s painting.
There:
This play of shadow bit by bit surrounded the head like a
halo or a high mark of distinction. But the figure of Jus
tice was left bright except for an almost imperceptible
touch of shadow; that brightness brought the figure sweeping
right into the foreground and it no longer suggested the
goddess of Justice, or even the goddess of Victory, but
looked exactly like a goddess of the Hunt in full cry.
Kafka, supra, 184.
2. The military must provide jury trials.
a. The Levy case: — With a. packed jury there can be no
fair trial.
Dr. Levy demanded a jury trial. R. Vol. 3, 136-37.
Instead ten career infantry officers were thrust upon him.
They ranged in rank from Major to Colonel. They entered and left
according to rank. They dressed alike, were punctual, attentive,
accepted the salutes of witnesses and occasionally asked questions.
Each of them wore khaki with well shined shoes and brass.
Their ancestry?— eight Caucasian, one Oriental and one Negro.
The Nisei and the Negro were majors.
They were Catholics and Protestants.
Eight of the ten were Southerners, five from South Carolina;
two from Texas and one from Florida. The other two were from West
-244-
Virginia and California.
Three had attended college in South Carolina. Three of them
had attended military colleges#--one the Citadel.
Two had graduated from counter-insurgency courses.
Their average age was 41 years and, including time spent in
1
military colleges, their average length of service was 19.3 years.
Four had served in Vietnam, one of them losing an eye there in
a "friendly" mine field.
Each member of the Court professed impartiality; agreed to pro
vide Dr. Levy a fair trial; expressed respect for the Constitution
including the right to freedom of expression.
There were no grounds for challenge for cause and, under the
intra-military system of justice, the mere exercise of that right
prejudices the defendant.
b. The system is controlled by those more concerned with
discipline than justice.
Thus Dr. Levy was faced by a "venire" selected by the General
who ordered him court-martialed. His G-2 dossier was in the posses
sion of one of the General's Colonels. His article 32 Investigation
had been conducted by one of the General's Lieutenant Colonels. 1
1. Exh. C , Morgan
- 2 4 5
The charges had been brought by the Colonel who commanded the Gen
eral's hospital. The military defense and prosecuting attorneys
had been selected by the senior partner in the General1s law firm—
the Staff Judge Advocate. The General's "corporate counsel" had
other members of the firm draw up the charges; he reviewed the
proceedings and gave his client post-trial recommendations re
garding the trial and sentence.
Then the General had the right to reverse the conviction or
1
reduce the sentence.
Colonel Chester H. Davis, the Hospital's executive officer
put it best:
Q. So, the initial decision was made by you?
A. I can make decisions, but I cannot take the responsibility.
Q. That is a problem that we often find. A.739.
Literal compliance with the Sixth Amendment mandates trial
by jury. It is no answer to say that civilians lack expertise on 1 2
1. "The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a few, or many,
and whether hereditary, self-appointed, or elective, may justly
be pronounced the very definition of tyranny. " The Federalist,
No. 47, (A. Hamilton) as quoted in United States v. Brown, supra,
381 U.S. at 443.
2. See e.g., Shoup,supra, passim.
-246
military matters. One of the nation's major problems is that dur
ing the last thirty years the civilian population has been militar
ized. Jurors traditionally are not expected to be experts,
reverse problem appears: it would be difficult to select a
on which there did not serve veterans of one or more of our
four major wars.
so the
jury
last
247
C • The packed jury and a_ fair trial - historically.
Sacco and Vanzetti and the packed jury.
Packed juries always remain to haunt a nation and its
people. Like Dr. Levy, Sacco and Vanzetti were " . . . strangers
within the gates."'*'
They too were tried by a packed jury.
As far as the jury is concerned, it was inevitable
that the quality of the verdict should be tainted. A
sick society makes sick decisions.
. . . . There was, however, a real defect in the
Sacco-Vanzetti jury list. The names of 153 talesmen
have been preserved in the record, and it is interesting
to note that there are few "foreign" names and not one
which appears to be "Italian."
Eugene V. Debs and the packed 1ury.
Eugene V. Debs, socialist leader, the scourge of 1918
middle-class America, the enemy of capitalism and one of the
radical leaders of the American labor movement, never had a
chance. At his trial in 1918:
1• L. Joughin & E. M. Morgan, The Legacy of Sacco
and Vanzetti 207 (1964) .
-248-
Jury panels were not chosen at random. . . .
. . . [T]he entire venire of one hundred men, from
which Debs' jury was chosen, had an average age of seventy
years, and came from the wealthy and respectable class of
citizens.
. . . The twelve jurors were . . . worth from fifty
to sixty thousand dollars each, and were "retired from
business, from pleasure, and from responsibility for all
troubles arising outside of their own families," . . . .
Seven of them were former merchants or farmers. All of
them said that they believed in Ijdie Constitution and had
no prejudice against Socialists.
The effect of packed juries on freedom of expression.
Alabama vs. The New York Times
In Alabama, where to have sued the New York Times for
libel seemed akin to qualification for high public office,
the effect of white man's justice may be seen clearly.
Truth, if allowed, is of little defensive use when
juries are packed.
It is from such a jury that New York Times v . Sullivan, 1
1. R. Ginger, Eugene V. Debs: A Biography 383-84 (1962)
249
This was but one of eleven suits376 U.S. 254 (1964) arose.1
brought against the Times by men who knew the white man's system
of justice could rise above truth and find against the "nigger-
lover". The Supreme Court, of course, reversed.
But, in Bessemer, Alabama, 42 counts of criminal libel
await Harrison E. Salisbury if he should return to that Deep South
state of white mans justice.
The Crown vs. John Peter Zenger and Tom Paine.
Free expression came alive at the trial of John Peter Zenger.
Zenger alone was not responsible for its birth. His jury shares
that responsibility. Then as now there was an attempt to pack the
2jury. There, it failed.
In England a few years later Tom Paine fared less well.
Paine dared author The Rights of Man. A fearful England put him 1 2
1. Libel actions became fashionable in Alabama and for a
time a number of mini-suits were filed against the Columbia Broad
casting System, Inc. and others. But soon matters got out of
hand. A related matter, an editorial on election day, in the
Birmingham Post-Herald brought criminal charges against the
editor-- and he was an ardent segregationist and states righter and
typically critical of the Supreme Court. He received relief in
Mills v. Alabama, 384 U.S. 214 (1966) . Whether the Mills and Times
cases ended the style or, the turning of the weapon against
segregationists ended the epidemic cannot be known. One thing,
is certain though: it was not packed juries that turned
the spigot off packed juries are weapons not arbiters.
2. J|. JB. Morris, . Fair Trial (1952).
-250-
on trial " . . . before no ordinary jury. For this cause a
'special jury* would be called.""*" As Stryker put it:
A special jury is an anomaly in a democratic state;
it is the expression of a conviction that only the well
born and educated are capable of doing justice. That this
disparagement of the common man was still prevalent in the
latter part of the nineteenth century is proved by Sir Jart̂ s
Stephen's History of Criminal Law which appeared in 1882. ^
Cf. The plight of Dr. Levy:
The reading of that letter was an ordeal for Erskine
[Paine's barrister]. The jury, as they heard it, displayed
their cold displeasure. It had everything with which to
inflame the listeners against the author, and it had that
prime prerequisite for insurance of an adverse verdict:
It was a special jury to whom the Attorney General
read the letter, and when he read the next two sentences,
it seemed designedly composed to insult the twelve "edu
cated gentlemen" who listened. "I know," wrote Paine,
"that I speak what other men are beginning to think. That
you cannot obtain a verdict; and if you do, it will signify
nothing without packing a jury, and we both know that such
practices are tricks."-^
The Dreyfus Case and a_ packed court-martial.
The Dreyfus case— although before a military court-martial—
involved the question of a cross-sectional trial panel, and the
failure of it to contain a single artillery (and, in Levy, medical) 1 2 3
1. L. P. Stryker, For the Defense 211 (1949).
2. Id. at 211.
3. Id. at 215.
-251-
officer. In L'Affaire Dreyfus in the Works of Emile Zola,
Ruth. H. Bond1 noted,
The trial of Dreyfus, which lasted four sessions, opened
December 19, 1894. Colonel Maurel was president of the
court-martial, and with him as associate judges were Lieut
enant-Colonel Echermann, Majors Florentin, Patron, and
Gallet, and Captains Roche and Freysta&tler. Not one of
these was from the artillery division of which Dreyfus was
a member. All the sessions were held behind closed doors,
in spite of objections made by Maitre Demange, Dreyfus'
lawyer. There were seventeen witnesses for the prosecution;
but none for the defense.
. . . . Toward the end of the last session Major Georges Picquart,
who had been ordered to follow the trial, rushed over to
the War Office with the information that there was not a
particle of evidence against the defendant and that a verdict
of "not guilty" was certain. Consequently, Mercier ordered
DuPaty to lay before the judges a secret file of eight
documents, which Henry had previously assembled. The judges
used the dossier as evidence against Dreyfus. The accused
and his lawyer knew nothing about the secret papers until
many months after the trial. . . . Id.
1. Unpublished Master 1s Thesis, Emory University Library,
at 12, March 21, 1938.
-252-
d . As a beginning the Sixth Amendment right to trial by jury,
must be granted in military cases. No other system can
possibly work.
The problem of "command influence" has plagued the system
of military justice both before and after the passage of the
Uniform Code of Military Justice. See Reid v. Covert, 354 U.S.
1, 36 (1956); Note, Judicial Checks on Command Influence Under
the Uniform Code of Military Justice, 63 Yale L.J. 880 (1954).
The principal author of the UCMJ, Professor Edmund M.
Morgan, saw the problem as pervasive, the protections as
inadequate, and the solution as nearly insurmountable short
of civilian control. Morgan, The Background of the Uniform
Code of Military Justice, 6 Vand. L. Rev. 169, 179, 183-84 (1953)
Any trial lawyer would trade every procedural right in
the Bill of Rights for the right to choose the jury. Most
critically, commanders control courts-martial through the
explicit or implicit use of their disciplinary powers over
other officers and their power to build or destroy military
careers through efficiency reports.
253-
The members of a court-martial panel must personally feel
that professional, social, and economic consequences to them
may hinge on their decision. They know that the General would
not have convened them in the first place unless he felt that
the accused had done something wrong;"*" thus a finding of guilt
2cannot hurt, and probably will help, their careers. 1
1. Indeed, this is the law: "The convening authority
shall not refer a charge to a general court-martial for trial
unless he has found that the charge alleges an offense under
this code and is warranted by evidence . . ." UCMJ art. 34(a) .
(emphasis added)
Cf. Kafka, supra, ,187:
K. . . « said: "You know the Court much better
than I do, I feel certain, I don't know much more
about it than what I've heard from all sorts and .
conditions of people. But they all agree on one
thing, that charges are never made frivolously,
and that the Court, once it has brought a charge
against someone, is firmly convinced of the guilt
of the accused and can be dislodged from that con
viction only with the greatest difficulty." "The
greatest difficulty?" cried the painter, flinging
one hand in the air. "The Court can never be dis
lodged from that conviction. If I were to paint
all the Judges in a row on one canvas and you were
to plead your case before it, you would have more
hope of success than before the actual Court."
2. This influence is certainly more pervasive than the
mere " . . . reasonable likelihood that prejudicial news prior
to trial will prevent a fair trial . . ." that will, on due
process grounds, necessitate a change of venue. Sheppard v.
Maxwell, 334 U.S. 333, 362 (1966) .
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C l a r e n c e D a r r o w o n c e s a i d :
Few remarks about court proceedings are more common than
"I wouldn't trust a jury; I^would rather have one or two
judges pass upon the case."
But,
People believe in jury trials, when behind closed
doors star-chamber courts convict innocent men for treason
and other crimes. Then they consider a jury a sacred in
stitution. They get the right of trial by jury imbedded
in constitutions and laws, and after that judges and
powerful interests seek to take it away. This they do
by urging that juries are not competent to weigh evidence
and that^they acquit the guilty through sympathy and
feeling.
And so goes the argument to judges by the most powerful
interest in our lives— the military establishment.
But one thing is certain— the people don't trust Courts-
Martial. And they shouldn't! 1
1. C. Darrow, The Story of My Life 373 (1932)
2. Id. at 352-53.
-255-
e. Trial by j ury is required by the sixth amendment.
Sixth Amendment rights including the right to an impartial
tribunal have been made applicable to the states. In a line
of cases extending from Turney v. Ohio, 372 U.S. 510 (1927)
(the right to an impartial tribunal) , to Pointer v. Texas,
380 U.S. 415 (1955), and Douglas v. Alabama, 380 U.S. 400
(1965) (the rights to confrontation and cross-examination),
and Duncan v. Louisiana, 391 U.S. 145 (1968) (the right to
jury trial in serious criminal cases) , the Supreme Court has
steadily moved to require state compliance with the Sixth
Amendment. See also, Cole v. Arkansas, 333 U.S. 196 (1948)
(notice of charges); in re Oliver, 333 U.S. 257 (1948)
(public trial); Gideon v. Wainwright, 372 U.S. 335 (1963)
(incorporating right to counsel); Klopfer v. North Carolina,
388 U.S. 213 (1962) (speedy trial) ; and Washington v. Texas,
388 U.S. 14 (1967) (compulsory process). And even if a con
stitutional forfeiture occurs and the fact-finding body is
called the "court-martial" instead of the "jury" its members
are at the heart of the judicial system and should be subject
-256-
to the most rigorous standards of impartiality possible.
The sixth amendment command is clear: "In all
criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial by an impartial jury . . . (emphasis
added) As previously noted and as conceded by the prosecution
R. Vol. 3, 165, the sixth amendment applies to the military.
Certainly as an aspect of due process, it must apply to the
military at least as fully as it does to the states.
Nor, in this case can it be said that military exigencies
precluded the Army from obtaining civilians to serve; perhaps
at sea or on foreign soil the failure to find civilians for
jury duty could be justified. But ships do dock and airplanes
do fly. And, in any event, Dr. Levy was tried within marching
distance of the capital of one of the United States.
By dicta the Supreme Court has said that the fifth amend
ment exception regarding indictment by grand jury is dispositive
of the applicability to the military of the sixth amendment's
right of trial by jury. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
Ex parte Quirin, 317 U.S. 1 (1942). But the Supreme Court's
extension of previously non-applicable fifth and sixth amendment
-257-
Therights to the states and to the military continues,
right to trial by jury should be enunciated here. All
statutes depriving military personnel— especially those
forced to serve involuntarily, no waiver of rights being
applicable to them— must eventually fall.
" . . . [T]radition cannot justify failure to comply
with the constitutional mandate . . . ." Eubanks_v _ ^ _
Louisiana, 356 U.S. 584, 588 (1958).
-258-
3. The military hierarchical systern affords no re 1 ie_f
a . Systematic exclusion of groups from the court, arid com
mand influence and discretion of the qener._a.l_ AG iG2
pointing them must be eliminated.
Failing the right to jury trial, the system of selecting court
members is still unconstitutional. Ever since Strauder v . .West Vir
qinia, 100 U.S. 303 (1880) (or, as noted therein, since the time
of Blackstone, or, before that, at the signing of the Magna Carta
--the barons winning the right to be tried by other barons as a
captain should these seven centuries later at least be tried by
other captains) the law of systematic exclusion has been devel
oping. The following groups were excluded from Dr. Levy's fact
finding body in violation of the cross-sectional representation
principle, see, e.g., Thiel v. Southern Pacific Company, 318 U.S.
217 (1946):
(1) Non-career personnel. UCMJ art. 25(d)(1).
(2) Enlisted men. _ld. c f . Thiel; Labat v. Bennett, 365 F.
2d 698, 727 (5th Cir. 1966) (en banc), cert, denied,
386 U.S. 291 (1967)
(3) Officers equal to or lower in rank than Dr. Levy., Id.
-259-
(4) Medical personnel. AR 40-1 para. 9-B.
(5) Women.1 R. Vol. 3, 138-45, 208, 213-14. See Ballar d ^ ,
United States, 329 U.S. 187 (1946); White v. Crook, 251
F. Supp. 401 (M.D. Ala. 1966) (three-judge court)
The root of the problem, though, is still command influence
coupled with the general's absolute discretion to appoint right
2thinking men" to the panel. 1 2
1. Women might have better or perhaps differently understood
some of the evidence. See the experience of Mrs. Helton, pp. 179-
80 supra.
2. The Supreme Court has recently noted probable jurisdic
tion in two cases in which the Court is asked to declare the facial
unconstitutionality of subjective (i.e., discretionary) standards
for selection of jurors, Carter v. Jury Comm'n of Greene County,
89 S. Ct. 990 (1969); Turner v. Fouche, 89 S. Ct. 863 (1969). C_f.
the adoption of the Jury Selection and Service Act of 1968, 28 U.
S.C. § § 1861-69, abolishing the vestiges of discretion in select
ing federal jurors.
Other cases condemning discretion at the hands of officials
where there is an opportunity for discrimination are: Whitus v.
Georgia, 385 U.S. 547 (1967); United States v. Mississippi, 380
U.S. 128 (1965); Williams v. Georgia, 349 U.S. 375 (1955); Avery
v. Georgia, 345 U.S. 559 (1953); Witcher v. Peyton, No. 12,025
(4th Cir. Jan. 10, 1969); Baker v. City of St. Petersburg, 400
F.2d 294 (5th Cir. 1968); United States v. Jefferson County Board
of Education, 372 F.2d836 (1966), aff'd on rehearing en banc, 380
F .2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967); Rabino-
witz v. United States, 366 U.S. 34 (5th Cir. 1966); United States
v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963) (three judge court),
aff'd, 380 U.S. 145 (1965); Smith v. Paris, 257 F. Supp. 901, 904
(N.D. Ala. 1966), modified and aff'd, 386 F.2d 979 (5th Cir. 1967);
United States v. Alabama, 252 F. Lupp. 95, 101 (M.D. Ala. 1966)
(three judge court).
-260-
The Article 32 UCMJ investigative procedure is.b .
unconstitutiona1.
(1) The General controls this proceeding also.
The pervasive effect of command influence applies with
equal force to the Article 32 Investigation; the investigating
officer is subject to the same tangible and intangible influences.
Whether he be likened to a judge at a preliminary hearing or
to a grand jury the result is the same.
The bill of rights applies to preliminary hearings.
Proceedings here can determine conviction or acquittal. See
Hamilton v. Alabama, 368 U.S. 52 (1961); White v. Maryland,
372 U.S. 59 (1963) .
(2) The exclusion of the press from the Article 32.
investigation violated first, fifth and sixth amendment
guarantees. R. Vol. 3, 47, 125.
The self-evident potential for evil inherent in secret
proceedings is awesome. Our nation has an "historic distrust
of secret proceedings, their inherent dangers to freedom . . . .
In re Oliver, 333 U.S. 257, 273 (1948).
-261-
The public trial guarantee was designed not only to safe
guard against the most evident potential abuses, but also with
"[t]he knowledge that every criminal trial is subject to con
temporaneous review in the forum of public opinion [which] is
an effective restraint on possible abuse of judicial power.
Id. at 270.1
1. Other benefits noted were that (1) publicity may
move witnesses unknown to the parties to come forward, and (2)
the spectators may learn about their government and acquire
confidence in judicial remedies. Cf_. the some 450 potential
witnesses concealed from the defense.
-262-
c . The atmosphere at Fort Jackson required a change of venue.
Here, Major Parsons who had lost the sight of one eye in
a mine field in Vietnam was threatened on the night before the
deliberations began. A.370. A physician witness attempted
to take the fifth amendment because he feared the "military
law", he feared the Army's power to send him to Vietnam if he
testified adversely to Army interests, see R. Vol. 6, 2012,
2094, 2100-2101; A. 263, 274. Another defense witness, a
Fort Jackson physician felt the mood and knew the pressure,
R. Vol. 7, 2181-82, and had, in fact, been threatened by an
enlisted man who thought he was Dr. Levy. Id. Finally, the
Public Information Officer circulated a brochure discrediting
a defense witness. R. Vol. 7, 2246-48
The Army nurtured an aura of prejudice at Fort Jackson.
Under constitutional standards for changing venue, see
Sheppard v. Maxwell, 384 U.S. 333 (1966) ; Estes v. Texas,
381 U.S. 532 (1965); Turner v- Louisiana, 379 U.S. 466 (1965);
Rideau v. Louisiana, 373 U.S. 723 (1963) ; Irvin v. Dowd,
-263-
366 U.S. 717 (1961); Marshall v. United States, 360 U.S. 310
(1959), Dr. Levy was entitled to be tried far from Fort
Jackson. Cf. ABA Standards Relating to Fair Trial and.Free
Press §§ 2.1, 3.2(c) (1968)
The Supreme " . . . Court itself has found instances in
which a showing of actual prejudice is not a prerequisite
to reversal." Estes v. Texas, supra, 381 U.S. at 542.
d. The prosecutor is a_ part of the system, an insider.
His preferred position must be eliminated.
The prosecutor serves as a sort of clerk, bailiff, district
attorney, sheriff, amicus, and custodian. He even administers
oaths and issues subpoenas; his own and those of the defense,
unless he decides he doesn't want to issue the defense sub
poenas. Then he requires the defense to tell the General who
convened the Court-martial in the first place why they are
relevant.
He sends notices to the Court, takes muster when the
Court convenes, announces the appointing order, and generally 1
1. And, for Dr. Levy, as special investigator.
-264-
serves as the man upon whom the Court-martial can safely
rely, He identifies witnesses, swears them in and has them
appoint the accusing (identifying finger) at the defendant.
R . passim.
And, as if all this were not enough to make defendant
and his counsel appear as pariahs, the law officer, in the
presence of the court, at one point informs the accused s
counsel that if he does not understand that which was in
fact to a sane man not understandable— he "should withdraw
from the case." R. Vol. 7, 2185, 2192. Even the Army Board
of Review perceived (but, by discussing it in isolation from
other factors avoided the significance of) the " . . . lapse
. . . from proper judicial deportment . . . ." C. 37
-265-
e . The staff judge advocate's role insures unfairness.
The staff judge advocate, the General's lawyer, appoints both
the prosecution and defense counsel, helps draft charges, advises
the General, no doubt helps select court members, and at the con
clusion of the trial makes recommendations to the General.
Here he and his deputies performed above, beyond, and contrary
to the UCMJ's1 call to duty. His presence permeates the Record.
See, e.g., A. 101-3; R. Vol. 2, report of 1 March 1967 Exh. 2,
22; id. Exh. 3, 2; id. Vol. 13, App. Exh. 7, 310-11, 387, 711;
R. Volumes 13-15, 19 passim.
f . The mathematics of the Court-Martial Process and the
self-challenging "jury."
1. It takes but a two-thirds vote to find guilt.
2. Each side has but one peremptory challenge.
3. Challenges for cause are voted on by the challenged
officer's fellow court members.
The defense chose not to run the risk of antagonizing the
1. See, e.g., the disqualifications of Art. 6(c), partic
ularly as to an investigating officer thereafter acting as Staff
Judge Advocate.
- 266-
court, R. Vol. 3, 42, in light of its "grisly 'Hobson's
c h o i c e ' Whitus v. Balkcom, 333 F. 2d 494, 499 (5th Cir. 1954). 1
1. But by this time it really doesn't matter:
They all wore these badges, so far as he could see. They
were all colleagues, these ostensible parties of the Right
and the Left, and as he turned round suddenly he saw the
same badges on the coat-collar of the Examining Magistrate,
who was sitting quietly watchinq the scene with his hands
on his knees. "Sol" cried K., flinging his arms in the air,
his sudden enlightenment had to break out, "every man jack
of you is an official . . . ."
Kafka, supra, 59.
-267-
IN CONCLUSION
*
We have found him to be the perfect gentleman.
He is truthful; he is honest; he is reliable;
and he had made an outstanding contribution
to our way of life in South Carolina. R. Vol. 5,
905
I can truthfully say this. Of all the people
that we have had the pleasure of working with,
Dr. Howard B. Levy has made one of the most out
standing contributions to the fight for human
dignity that we have had rendered to^us in the
state of South Carolina. Id. at 9061
— Mr. Billie S. Flemming,
Negro
________________ * ______________ _—
In Source's opinion, LEVY took stands against
everything the US was for. In Source's opinion,
HE expressed very leftist ideas and viewpoints.
. . Source does not consider SUBJECT a loyal
American because of HIS statements condemning US
policies. . . . LEVY was quite pro-Negro, to
the side of the Negroes when discussing Civil
Rights matters, and appeared to think more of the
Negroid race than the White race. A. 466.
— A Special Agent of the Counter
Intelligence Corps 1
1. See also the testimony of Matthew J. Perry, Esq. (presently
acting as General Counsel for the National Association for the Ad
vancement of Colored People), R. Vol. 5, 855-61, and other Negro
civil rights leaders. R. Vol. 5, 861—65, 869—73, R. Vol. 6, 2122—24
-268-
What manner of man would rely on ethics in the face of an or
der, refuse to "fake it," accept a physician's responsibility, work
in the day-to-day hard tasks of democracy while in the service and
speak his mind.
More importantly, what manner of men would condemn him for this
and, having done so, jail him.
Dr. Levy never once compromised. He would not do that which
a physician should not do. He did not do that which a court should
not do.
He, unlike the "officers and gentlemen" who sat in judgment on
him, must have learned that he was in some larger sense free. It
was his "judges" who were imprisoned by the past and their present,
trapped by the slavery they never knew and the structured security
of the career officer.
Like Nerzhin he also learned that his fellow prisoners, not at
Leavenworth, but the "free men" of the military structure
. . . were blinder and more trusting about informers.
They were more prone to believe the crude deception
of the bosses. They awaited amnesties— which Stalin
[or a General] would have rather died than give them.
If some camp martinet happened to be feeling good
and smiled, they hastened to smile at him. And they
were also greedier for petty things . . . .
What was lacking in most of them was that personal
-269-
point of view which becomes more precious than
life itself.
There was only one thing left for Nerzhin [Levy]
to do--be himself.
Everyone forges his inner self year after
year. One must try to temper, to cut, to polish
one's own soul so as to become a human being.
And thereby become a tiny particle of one's
own people.^
That he had done.
But like K. he must now say:
"The only thing I can do now," he told himself,
and the regular correspondence between his steps and
the steps of the other two confirmed his thought,
"the only thing for me to go on doing is to keep
my intelligence calm and analytical to the end.
I always wanted to snatch at the world with twenty
hands, and not for a very laudable motive, either.
That was wrong, and am I to show now that not even
a year's trial has taught me anything? Am I to leave
this world as a man who has no common sense? Are
people to say of me after I am gone that at the be
ginning of my case I wanted to finish it, and at the
end of it I wanted to begin it again? I don't want
that to be said. I am grateful for the fact that
these half-dumb, senseless creatures have been sent
to accompany me on this journey, and that I have been
left to say to myself all that is needed."[2]
But he is not left to say to himself "all that is needed."
At trial Captain David Travis, Negro, who rose from a ghetto
to become a college graduate, youth counselor, school teacher,
1. A.I. Solzhenitsyn, The First Circle 389 (1968).
2. Kafka, supra, 282-83.
-270-
veteran of more than fifty combat missions in South Vietnam, decorated
with two Bronze Stars, approved for the Cross of Gallantry, and a
man who knew Dr. Howard Brett Levy very well (R- Vol. 6, 2143-45) summed
it up:
Q. You view him as an officer and a gentleman?
A. I do.
Q. How can you maintain a friendly relationship
with Howard Levy when he disagrees with you so
deeply on the question of Vietnam?
A. Well, I — I think that's what I'm in Vietnam
for. Even though we disagree, we live in a free
society. I think all individuals we feel the
same way, but I only speak for myself. The
reason I'm in Vietnam is to protect the way of
life — a way of life that presupposes a lot of
the other rights and privileges we have in this
country.
Q. And where do you go from this courtroom?
A. Back to Vietnam. R. Vol. 7 , 2349.
Dr. Levy should not merely be freed from his unconstitutional
imprisonment.
By those who love liberty, he should be thanked.
Respectfully submitted.
s/ Charles Morgan, Jr.
Charles Morgan, Jr.
Five Forsyth Street, NW
Atlanta, Georgia 30303
-271-
Peber F. Boult, Jr.
Morris Brown
Five Forsyth Street, NW
Atlanta, Georgia 30303
Laughlin McDonald
17 South Circle Drive
Chapel Hill, North Carolina
George W. Dean, Jr.
P. 0. Box 248
Destin, Florida
Ambrose Campana
36 West Willow Street
Williamsport, Pennsylvania
Attorneys for Petitioner
Anthony G. Amsterdam
School of Law
University of Pennsylvania
Philadelphia, Pennsylvania
Alan H. Levine
Burt Neuborne
Eleanor Holmes Norton
Melvin L. Wulf
156 Fifth Avenue
New York, New York 10010
Of Counsel
27 2