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[Cite as Laird v. Tatum, 408 U.S. 1, 22-23 (1972). Note: This decision concerns military surveillance and whether this activity exceeded constitutional uses of the Army, and whether it violated the First Amendment. In his dissent, Justice Douglas quoted a law review article by Chief Justice Warren which referred to numerous bill of rights guarantees, including the Second Amendment, as safeguards intended to protect America from rule by a standing army: "the Bill of Rights Amendments 2 and 3, specifically authorizing a deventralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner." (P. 22) In a later dissent, Justice Douglas said, "There is no reason why all pistols should not be barred to everyone except the police." (Adams v. Williams, 407 U.S. 143, 150 (1972)). He clarified this position and indicated the Second Amendment did apply to invidiuals and thus subject to watering down, "But if watering down is the mood of the day, I would prefer to water down the second amendment rather than the fourth amendment." (Id. at 151). This is consistent with Justice Douglas's views a decade eariler: "The closest the framers came to the affirmative side of liberty was in the right to bear arms. Yet this too has been greatly modified by judicial construction." (Douglas, The Bill of Rights is Not Enough, 38 N.Y.U. L. REV. 207, 233 (1963).)]

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


Mr. Justice Douglas, with whom Mr. Justice Marshall concurs, dissenting.


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

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

This obviously means that the "militia" cannot be sent overseas to fight wars. It is purely a domestic arm of the governors of the several States,[16.1] save as it may be called under Art. I, § 8, of the Constitution into the federal service. Whether the "militia" could be (p.17)given powers comparable to those granted the FBI is a question not now raised, for we deal here not with the "militia" but with "armies." The Army, Navy, and Air Force are comprehended in the constitutional term "armies." Article I, § 8, provides that Congress may "raise and support Armies," and "provide and maintain a Navy," and make "Rules for the Government and Regulation of the land and naval Forces." And the Fifth Amendment excepts from the requirement of a presentment or indictment of a grand jury "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."

Acting under that authority, Congress has provided a code governing the Armed Services. That code sets the procedural standards for the Government and regulation of the land and naval forces. It is difficult to imagine how those powers can be extended to military surveillance over civilian affairs.[17.2]

The most pointed and relevant decisions of the Court on the limitation of military authority concern the attempt of the military to try civilians. The first leading case was Ex parte Milligan, 4 Wall. 2, 124, where the Court noted that the conflict between "civil liberty" and "martial law" is "irreconcilable." The Court which made that announcement would have been horrified at the prospect of the military--absent a regime of martial law--establishing a regime of surveillance over civilians. The power of the military to establish such a system is obviously less than the power of Congress to authorize such surveillance. For the authority of Congress is restricted by its power to "raise" armies, Art. I, § 8; and, to repeat, its authority over the Armed Forces is stated in these terms, "To make Rules for the Government and Regulation of the land and naval Forces."(p.18)

The Constitution contains many provisions guaranteeing rights to persons. Those include the right to indictment by a grand jury and the right to trial by a jury of one's peers. They include the procedural safeguards of the Sixth Amendment in criminal prosecutions; the protection against double jeopardy, cruel and unusual punishments--and, of course, the First Amendment. The alarm was sounded in the Constitutional Convention about the dangers of the armed services. Luther Martin of Maryland said, "when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army."[18.3] That danger, we have held, exists not only in bold acts of usurpation of power, but also in gradual encroachments. We held that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times both of the offense and of the trial, which eliminates discharged soldiers. Toth v. Quarles, 350 U.S. 11. Neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U.S. 281; Grisham v. Hagan, 361 U.S. 278, nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U.S. 234; Reid v. Covert, 354 U.S. 1, may be tried by court-martial. And even as respects those in the Armed Forces we have held that an offense must be "service connected" to be tried by court-martial rather than by a civilian tribunal. O'Callahan v. Parker, 395 U.S. 258, 272.

The upshot is that the Armed Services--as distinguished from the "militia"--are not regulatory agencies or bureaus that may be created as Congress desires and granted such powers as seem necessary and proper. The authority to provide rules "governing" the Armed Services means the grant of authority to the Armed (p.19)Services to govern themselves, not the authority to govern civilians. Even when "martial law" is declared, as it often has been, its appropriateness is subject to judicial review, Sterling v. Constantin, 287 U.S. 378, 401, 403-404.[19.4]

Our tradition reflects a desire for civilian supremacy and subordination of military power. The tradition goes back to the Declaration of Independence, in which it was recited that the King "has affected to render the Military independent of and superior to the Civil power." Thus, we have the "militia" restricted to domestic use, the restriction of appropriations to the "armies" to two years, Art. I, § 8, and the grant of command over the armies and the militia when called into actual service of the United States to the President, our chief civilian officer. The tradition of civilian control over the Armed Forces was stated by Chief Justice Warren:[19.5]

"The military establishment is, of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset. The maintenance of the balance is made more difficult by (p.20)the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in a free society....


"In times of peace, the factors leading to an extraordinary deference to claims of military necessity have naturally not been as weighty. This has been true even in the all too imperfect peace that has been our lot for the past fifteen years--and quite rightly so, in my judgment. It is instructive to recall that our Nation at the time of the Constitutional Convention was also faced with formidable problems. The English, the French, the Spanish, and various tribes of hostile Indians were all ready and eager to subvert or occupy the fledgling Republic. Nevertheless, in that environment, our Founding Fathers conceived a Constitution and Bill of Rights replete with provisions indicating their determination to protect human rights. There was no call for a garrison state in those times of precarious peace. We should heed no such call now. If we were to fail in these days to enforce the freedom that until now has been the American citizen's birthright, we would be abandoning for the foreseeable future the constitutional balance of powers and rights in whose name we arm."

Thus, we have until today consistently adhered to the belief that

"[i]t is an unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires." Raymond v. Thomas, 91 U.S. 712, 716.(p.21)

It was in that tradition that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, was decided, in which President Truman's seizure of the steel mills in the so-called Korean War was held unconstitutional. As stated by Justice Black:

"The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities." Id., at 587.

Madison expressed the fear of military dominance:[21.6]

"The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations, and rendered her the mistress of the world.

"Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive [paragraph continues next page]

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

[17.2] See Appendix I to this opinion, infra, p. 29.

[18.3] 3 M. Farrand, Records of the Federal Convention 209 (1911).

[19.4] Even some actions of the Armed Services in regulating their own conduct may be properly subjected to judicial scrutiny. Those who are not yet in the Armed Services have the protection of the full panoply of the laws governing admission procedures, see, e.g., McKart v. United States, 395 U.S. 185; Oestereich v. Selective Service Board, 393 U.S. 233. Those in the service may use habeas corpus to test the jurisdiction of the Armed Services to try or detain them, see, e.g., Parisi v. Davidson, 405 U.S. 34; Noyd v. Bond, 395 U.S. 683, 696 n.8; Reid v. Covert, 354 U.S. 1; Billings v. Truesdell, 321 U.S. 542. And, those in the Armed Services may seek the protection of civilian, rather than military, courts when charged with crimes not service connected, O'Callahan v. Parker, 395 U.S. 258.

[19.5] The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 182, 193 (1962).

[21.6] The Federalist No. 41.