William O. Douglas

“ Moreover, important constitutional guarantees come into play once the citizen-whether soldier or civilian-is charged with a capital crime such as murder or rape. The most significant of these is the right to trial by jury, one of the most important safeguards against tyranny which our law has designed. [6] We must assume that the Congress, as well as the courts, was alive to the importance of those constitutional guarantees when it gave Article 92 its particular phrasing. ”

“ We will attribute to Congress a purpose to guard jealously against the dilution of the liberties of the citizen that would result if the jurisdiction of military tribunals were enlarged at the expense of civil courts. General Enoch H. Crowder, Judge Advocate General, in testifying in favor of the forerunner of the present proviso of Article 92, spoke of the protection it extended the officer and soldier by securing them 'a trial by their peers.' [7] We think the proviso should be read generously to achieve that end. ”

“ Entirely apart from Kahn, I think today's decision is demonstrably wrong. This Court has consistently for nearly 100 years recognized, in many contexts, that a cessation of active hostilities does not denote the end of 'war' or the beginning of 'peace' as those or similar terms have been used from time to time by Congress in legislation. ”

“ The Court now dismisses this square holding as 'dictum' and as 'quite unnecessary for the decision,' pointing out that the statement of facts in Kahn shows that the capital offense for which petitioner there was tried was committed before the Armistice which resulted in the termination of active hostilities in World War I, and that the court-martial which tried him was also convened before the Armistice. I think that Kahn can hardly be dismissed so lightly. ”

“ These cases deal with the reach of the war power, as a source of regulatory authority over national affairs, in the aftermath of hostilities. The earlier case of McElrath v. United States, 102 U.S. 426, 26 L.Ed. 189, is likewise irrelevant to our problem. It was a suit for back pay by an officer, the outcome of which turned on a statute which allowed dismissal of an officer from the service 'in time of peace' only by court-martial. ”

“ The conclusion there as to the meaning of 'in time of peace' might have been regarded as unnecessary to decision only had the Court, proceeding on a theory entirely different from that which it actually adopted, relied on the date of the offense or of the beginning of trial as dispositive. ”

“ Statutory language is construed to conform as near as may be to traditional guarantees that protect the rights of the citizen. See Ex parte Endo, 323 U.S. 283, 301-304, 65 S.Ct. 208, 218, 219, 89 L.Ed. ”