By Mr. Dwight H. Sullivan
Two of the U.S. Supreme Court’s most significant military justice
decisions share a party’s name. In both O’Callahan v. Parker1and
Parker v. Levy,2the “Parker” was Warden Jacob J. Parker of the Federal penitentiary at
Lewisburg, Pennsylvania. This article contributes to military justice
heritage by providing a biography of Parker. Studying Parker’s role in two
landmark military justice cases also highlights a significant and ongoing
shift in the Supreme Court’s approach to review of court-martial cases
resulting from the Military Justice Act of 1983.3
Jacob Jordan Parker was born in Bloomington, Illinois, on 9 December
1923.4A
recent high school graduate, he was working for the Campbell Soup Company
in Chicago when he enlisted in the Marine Corps on 29 July 1942—almost
eight months after the “day that will live in infamy.”5His term of enlistment was “for the DURATION OF THE NATIONAL
EMERGENCY.”6At the time, he was 5-feet-8.5-inches tall and weighed 153 pounds.7He had light brown hair, blue eyes, and a “[r]uddy” complexion.8
Parker reported to Marine Corps Recruit Depot San Diego for basic
training.9He stayed put after completing the arduous program, serving as a drill
instructor from September 1942 to June 1944.10Then, as a corporal, he participated in the Marine Corps’s Pacific
island-hopping campaign. From 15 September through 28 October 1944, as a
member of the newly formed 3d Armored Amphibian Battalion (Provisional),
Amphibian Tractor Group, Fleet Marine Force, Pacific Troops, he engaged in
combat operations against Japanese forces on Peleliu.11
General Roy S. Geiger—who by the end of World War II commanded Fleet
Marine Force, Pacific—called the battle for Peleliu the toughest in the
Pacific campaign.12One veteran of the battle observed that the island’s Japanese “defenders
would delay the attacking Marines as long as they could, attempting to
bleed them as heavily as possible.”13They did so by combining “the devilish terrain with the stubborn,
disciplined, Japanese soldiers to relinquish Peleliu at the highest cost
to the invaders.”14As a result, what was expected to be a four-day battle dragged out into
seventy-three days of close combat.15U.S. casualties numbered 9,615, of whom 1,656 died.16Almost all of Peleliu’s Japanese garrison fought to the death; an
estimated 10,900 Japanese service members were killed while only nineteen
were captured during the operation.17
As the Marines slowly advanced inland over the following days, the
amphibian tanks evacuated casualties and delivered ammunition, food,
water, and other supplies to Marines on the frontline.22The LVT(A)s’ 75mm howitzers and mounted .50 caliber machine guns
sometimes augmented infantry units’ firepower.23But Parker’s battalion was mostly employed on reef-patrol duty to protect
against Japanese counter-landings.24Utilizing their amphibious capability, the LVT(A)s also executed special
direct-fire missions against targets best approached from offshore.25On 28 September (D-plus 13), thirty-five of the battalion’s LVT(A)s led
an amphibious assault against Ngesebus—an adjacent island.26The Marines completed their seizure of the island the following day.27
Like the other U.S. Service members on Peleliu, amphibian tank crews
performed their duties in sweltering heat and humidity.28On most days, the temperature reached 105 degrees, sometimes spiking to
as high as 115.29The U.S. Service members on Peleliu were also plagued by ubiquitous
blowflies. As one member of Parker’s battalion later recalled:
No wonder so many men got deathly sick on Peleliu. These flies had a
perfect dinner on Marines and Japanese dead that lay bloated and black in
the tropical sun. When you ate one, you didn’t know which kind of body
they had just finished working on.30
As the battle progressed and the need for amphibious vehicles waned, many
members of Parker’s unit were reassigned to infantry duties.31Their primary mission was to support a clearing operation against a
heavily defended Japanese cave complex.32Later, many of the battalion’s Marines became stretcher bearers.33
The battalion began reboarding U.S. transport ships on 25 October (D-plus
40).34Parker left Peleliu on 29 October 1944—a little more than a week after
the Marine Corps relinquished command of the operation to the Army’s 81st
Infantry Division.35His 819-member battalion suffered roughly 15 percent casualties during
the Peleliu campaign.36
A month-and-a-half after withdrawing from Peleliu, Parker was transferred
to an officer training program.37Assigned to study at the University of Southern California, he did not
last long.38Parker washed out of the program, displaying what we would now recognize
as symptoms of post-traumatic stress disorder39—probably resulting from the horrific combat at Peleliu. He was honorably
discharged, having served in the Marine Corps for three years and
seventeen days.40
Following his military service, Parker studied at the University of Notre
Dame.41He probably used his GI Bill benefits to attend.42While still an undergraduate, Parker became engaged to Hedy Klein of
Evergreen Park, Illinois.43At that time, she worked as an executive secretary at Inland Steel
Corporation.44They would go on to marry and have eight children.45Parker graduated with a degree in social studies in 1949.46The following year, he received a master’s degree in criminal justice,
also from Notre Dame.47
Parker began his career in the Federal prison system in March 1950 as a
tower guard at the Terre Haute, Indiana, penitentiary.48He rose quickly. After sixteen months as a correctional officer, he
became a case worker and then a classification officer.49In 1959, he was elevated to associate warden in charge of treatment at
the McNeil Island Federal penitentiary in Washington State.50Five years later, he was transferred to the Atlanta Federal penitentiary,
where he held the same position.51After just one year in Georgia, Parker was selected as warden of the U.S.
Federal Penitentiary, Lewisburg, Pennsylvania.52
Parker was forty-one years old when he became Lewisburg’s warden on 4
October 1965.53Built in an Italian Renaissance architectural style, Lewisburg
(originally named the Northeastern Penitentiary) was designed as a model
correctional facility that would emphasize rehabilitation of inmates.54When it opened on 15 November 1932, it was considered “the world’s most
modern penal institution in operation.”55The facility’s 1,000-acre grounds included both the medium-security
penitentiary and a minimum-security farm camp.56The prison staff numbered approximately 300.57About 1,400 inmates were confined at the facility.58Roughly 250 to 350 more were located at the minimum-security Allenwood
Camp, which also fell under Parker’s authority.59
Consistent with the guiding concept for the Lewisburg penitentiary’s
establishment, Parker’s penological philosophy emphasized
rehabilitation.60An oft-repeated saying of his was, “These men are committed as
punishment, not for punishment.”61
The position as Lewisburg’s warden came with certain perquisites. The
warden’s official residence was “a fifteen-room house resting on a very
ample plot of land atop a hill.”62Three prisoners served year-round as “houseboys” at the residence, where
they would “clean house, polish floors, wash, hang, and iron the clothes,
cook the food, and wash the dishes—as well as do the baby sitting.”63From spring through fall, another three prisoners tended the warden’s
garden.64The warden and his staff also enjoyed a clubhouse operated by inmate
labor.65
Parker received considerable newspaper coverage in 1967 resulting from the
arrival of a new inmate: Jimmy Hoffa. In 1964, the Teamsters Union
president was convicted in two separate Federal trials of jury tampering
and fraud related to his union’s pension fund; he was sentenced to two
consecutive terms of confinement totaling thirteen years.66Following aggressive but ultimately unsuccessful efforts to overturn his
convictions,67Hoffa arrived at Lewisburg on 7 March 1967 to begin serving his
sentence.68Upon the Teamster president’s incarceration, Parker was widely quoted as
saying the high-profile inmate would be treated like any other prisoner.69While confined at Lewisburg, Hoffa played a role in Parker’s name
becoming associated with one of the Supreme Court’s most significant
military justice rulings.
Victor Rabinowitz—who earlier in his career had co-founded the National
Lawyers’ Guild—was friendly with Hoffa.70The union leader had previously retained Rabinowitz to represent two
local Teamster officials charged with mail fraud.71During one of Rabinowitz’s visits with Hoffa at Lewisburg, the Teamster
chief introduced him to James F. O’Callahan.72O’Callahan was a former Army sergeant who had been convicted at a 1956
general court-martial of attempted rape, assault with intent to commit
rape, and housebreaking.73His convictions arose from his unlawful entry into a Honolulu hotel room,
where he accosted a fourteen-year-old girl.74O’Callahan battered the girl’s face, gagged her, and bound her wrists
before she managed to flee from the room.75The court-martial sentenced him to confinement for ten years, a
dishonorable discharge, and forfeiture of all pay and allowances.76The entire contested case, including sentencing, lasted less than seven
hours; the parties were on the record for less than four hours.77Remarkably, the trial counsel began his closing argument by telling the
members that the “prosecution has taken an unusually long time in
presenting its case,”78suggesting that general courts-martial of the era tended to be rather
cursory.
Rabinowitz disliked O’Callahan but believed his case presented a
compelling legal issue: the constitutionality of applying the Uniform Code
of Military Justice (UCMJ) to an offense unconnected to military
service.87Rabinowitz later recalled that “O’Callahan had no money for legal fees,
but Jimmy [Hoffa], very generous with my time, quickly talked me into
taking the case and talked O’Callahan into assigning to me the substantial
back pay he would get if he won his case.”88Rabinowitz added, “I didn’t think the assignment was worth anything, but
I couldn’t resist the legal issue and Jimmy’s blandishments.”89He thought O’Callahan’s case would probably go before the Supreme
Court.90Rabinowitz’s view was that “when I get paid for arguing an issue at the
Supreme Court level, I regard it as gravy. The argument itself is
compensation enough.”91
Until Hoffa talked Rabinowitz into taking on the case, O’Callahan had been
representing himself.92Both the U.S. District Court for the Middle District of Pennsylvania and
the U.S. Court of Appeals for the Third Circuit had already ruled against
O’Callahan, who had also failed to persuade the Court of Military Appeals
to grant habeas relief.93But Rabinowitz secured a fresh look from the Third Circuit, which again
ruled against O’Callahan.94A little more than three months after that decision, the Federal Bureau
of Prisons transferred O’Callahan from Lewisburg to Federal Correctional
Institution (FCI) Sandstone, Minnesota.95His prison record explains that he was transferred because “he was the
suspected leader of a strike at Lewisburg for the purpose of demanding
more Industries pay and better working conditions.”96
Rabinowitz had been right when he predicted that O’Callahan’s case would
interest the Supreme Court. On 14 October 1968, the Court granted
certiorari to consider whether a court-martial has “jurisdiction to try a
member of the Armed Forces who is charged with commission of a crime
cognizable in a civilian court and having no military significance,
alleged to have been committed off-post and while on leave.”97After hearing oral argument, a 6-3 majority of Supreme Court justices
initially voted to uphold O’Callahan’s conviction.98Justice Harlan circulated a draft opinion for the Court that would have
rejected the argument that the Constitution forbids “the military trial
and punishment of a soldier for a purely civilian offense.”99Two days later, Justice Douglas circulated a draft dissent that began:
The day after Justice Douglas circulated that draft dissent, Justice
Fortas sent a memorandum to Justice Harlan, with copies to the other
Justices.101Although Justice Fortas had voted with the majority in conference, he
informed Justice Harlan that “I cannot go along with your draft.”102He proposed that the Court
Justice Harlan responded on 14 April, rejecting Justice Fortas’s proposed
disposition.104He circulated a memorandum arguing against a “‘status’ test” for
court-martial jurisdiction.105He also opposed a remand, noting that the court-martial had occurred more
than a decade earlier. “I doubt that either the respondent or petitioner
can now garner relevant information as to the circumstances of, and
military interests affected by, petitioner’s crime,” he observed.106
By 19 May, Justice Harlan had lost the majority. Justice Douglas
circulated a draft opinion of the Court setting aside O’Callahan’s
court-martial conviction.109With some minor revisions, that became the opinion of the Court issued on
2 June 1969.110The final ruling was 5-3, with Chief Justice Warren and Justice Brennan
having reversed their initial votes to deny habeas relief.111The landmark ruling held that a court-martial did not have subject-matter
jurisdiction to try a Service member for an offense unconnected to
military service.112Because there “was no connection—not even the remotest one—between
[O’Callahan’s] military duties and the crimes in question,” the Supreme
Court set aside his convictions under its newly announced
service-connection test.113But it was not Warden Parker whose resulting duty it was to release
O’Callahan from confinement. Because of O’Callahan’s transfer the previous
year, that responsibility fell on FCI Sandstone’s warden.114
While Rabinowitz had the satisfaction of prevailing at the Supreme Court,
he obtained no monetary recompense. After the Supreme Court’s decision,
the U.S. Court of Claims ruled that O’Callahan was entitled to back pay
only until 8 March 1961, the date his enlistment would have expired had he
not been dishonorably discharged.115Although the Court of Claims rejected Rabinowitz’s argument that
O’Callahan was entitled to back pay through his release from confinement
in 1969, O’Callahan still received what Rabinowitz characterized as “quite
a tidy sum for back pay and allowances lost—money he had assigned to us
for legal fees.”116But, contrary to the fee agreement Jimmy Hoffa had brokered, Rabinowitz
received none of O’Callahan’s back pay. Nor did his client provide him
with “even a ‘thank you.’”117Rabinowitz added, “A year or so later, I did hear from him again—he was
in trouble in Massachusetts, and he asked me for help. This time I
declined.”118
Captain Howard B. Levy’s case was the subject of an extraordinary volume
of litigation, much of it bearing Parker’s name.
Levy was assigned as the chief of the Dermatological Service of the U.S.
Army Hospital, Fort Jackson, South Carolina, from July 1965 until his
court-martial in 1967.121He opposed the United States’ military operations in Vietnam.122One of his duties was to provide dermatology training to Special Forces
medics.123In the summer of 1966, the hospital’s commander determined that the
training Levy was providing was “totally unsatisfactory.”124Believing that “strong corrective action was demanded,” he gave Levy a
written order to conduct the training.125Levy “read the order, acknowledged that he understood it, but stated that
he would not obey it because he did not feel that obedience of it would be
consistent with his sense of medical ethics.”126The hospital commander replied that Levy must nevertheless obey the
order.127When Levy thereafter failed to conduct the training, “the order was in
essence repeated.”128Levy nevertheless “persisted in his refusal to obey, frequently remarking
to associates and enlisted subordinates during this period that he had
received the order but that he would not obey it, and in fact, he did
not.”129When his enlisted subordinates offered to conduct the training in his
place, Levy “ordered them not to, and accompanied his order with a threat
of punishment.”130
Levy also made statements to enlisted personnel expressing his opposition
to the war in Vietnam. For example, he stated that he would not go to
Vietnam if ordered, that Black Soldiers should refuse to fight because
they are subjected to discrimination, and that Special Forces personnel
are “thieves and killers of peasants and murderers of women and
children.”131He also told some Special Forces enlisted personnel that “I hope when you
get to Vietnam something happens to you and you are injured.”132
Levy was charged with violating Article 90, UCMJ, by willfully disobeying
an order to establish and operate a dermatology training program for
Special Forces medics; violating Article 134, UCMJ, by promoting
“disloyalty and disaffection among the troops”; and violating Article 133,
UCMJ, by making “[i]ntemparate, defamatory, provoking, and disloyal
statements.”133At the conclusion of a fifteen-day general court-martial, the members
found him guilty and sentenced him to a dismissal, forfeiture of all pay
and allowances, and confinement at hard labor for three years.134
Before his court-martial, Levy engaged in extensive—although ultimately
unsuccessful—litigation in Article III courts to prevent his trial.135After Levy’s conviction, the convening authority and the Secretary of the
Army declined his requests to defer confinement while the case was under
review.136The Court of Military Appeals rejected Levy’s request that it
intercede.137Levy then unsuccessfully asked Article III courts to order his release on
bail pending disposition of his appeal.138Justice Douglas dissented from the Supreme Court’s denial of certiorari
to review the Fourth Circuit’s rejection of Levy’s bail request.139
The Army Board of Review affirmed the findings and sentence on 29 August
1968 and the Court of Military Appeals denied review on 6 January 1969.140Following completion of the direct appeal process, military officials
executed Levy’s dismissal on 20 January 1969.141Eleven days later, Levy was transferred from the U.S. Disciplinary
Barracks to the Lewisburg Federal penitentiary.142Levy spent most of his time there assigned to the minimum-security farm
camp.143Charles Morgan of the American Civil Liberties Union filed a habeas
petition for Levy on 19 April 1969.144That petition named Levy’s immediate custodian—Warden Jacob J. Parker—as
the first respondent.145
On the same day they filed the habeas petition, Levy’s legal team also
asked the district court to grant him bail.146The district court denied that request on 7 May 1969.147The Third Circuit similarly denied bail on 2 June 1969.148Levy’s counsel then applied to Justice William J. Brennan—the Third
Circuit justice—for bail on 3 July 1969.149Five days later, Justice Brennan denied the request.150Undeterred, Levy’s counsel submitted a new bail application to Justice
Douglas on 19 July.151
On 2 August 1969—exactly two months after issuance of his opinion for the
Court in O’Callahan mentioning Levy’s case—Justice Douglas
ordered Levy’s release from confinement on bail.152Justice Douglas acknowledged that the application to him “carries a
special burden, for we very seldom grant an order that has been denied by
the Circuit Justice,” as Levy’s had.153The normal practice in such an instance “is to refer such renewed
application to the full Conference of this Court.”154But, Justice Douglas rationalized, “We are now in recess and widely
scattered; hence referral to the Conference is not immediately
possible.”155Justice Douglas suggested that relief was appropriate given questions
about whether Article 134 of the UCMJ is unconstitutionally vague and
because some of Levy’s convictions presented the issue of the extent to
which First Amendment rights apply in the military.156He ordered Levy released on bail of $1,000.157The order was captioned Levy v. Parker.158
Levy was freed on the evening of 5 August—just nine days before his
confinement was set to expire.159Newspapers quoted Warden Parker as saying, “He left no forwarding
address.”160The year after his release, Levy co-authored a book with an anti-Vietnam
War protestor convicted of burning his draft card about their experiences
in the prison system.161The book referred to Warden Parker by name in only one passage; the
reference was not favorable.162
In October 1969, the Supreme Court left in place Justice Douglas’s order
granting Levy bail.163Although the full Court’s published order did not indicate any dissents,
a handwritten note in Justice Douglas’s papers recorded the vote as
four-to-three.164
Almost a year after Levy’s release on bail, Parker left Lewisburg. In July
1970, Parker became the warden at the Federal correctional facility at
McNeil Island in Washington State.165Levy’s collateral challenge to his court-martial convictions continued.
After being denied habeas relief at the district court level, Levy
appealed to the Third Circuit.166Parker’s name remained on the case, even though it should not have.
Federal Rule of Appellate Procedure 43(c)(1) then provided:
Thus, Marvin R. Hogan—Lewisburg’s warden at the time of the Third
Circuit’s proceedings in the case—should have been substituted for Parker.
The Supreme Court’s landmark decision in the case should be known as
Hogan v. Levy. But, for whatever reason, Jacob Parker’s name
remained.
In 1973, the Third Circuit concluded that “Articles 133 and 134 are void
for vagueness.”168The court also expressed concern that those articles would “chill
protected speech.”169The court held that Captain Levy’s findings of guilty for violating those
statutes were constitutionally infirm.170
Four months after hearing oral argument, in a landmark 5-3 ruling, the
Court rejected Levy’s vagueness and overbreadth challenges to Articles 133
and 134.175Justice Rehnquist’s opinion for the Court emphasized the unique military
needs of discipline and obedience to orders:
Following that decision, Levy was not required to return to confinement to
serve the few remaining days of his sentence.177
Parker was no longer a warden when the Supreme Court issued its decision
in Levy’s case. Following his transfer to the McNeil Island Federal
Penitentiary, he remained for only seventeen months.180His tenure there was tempestuous, including an extended strike by a large
portion of the inmate population.181Upon leaving the McNeil Island facility, Parker became a correctional
program advisor for the Law Enforcement Assistance Administration.182
In 1975, he made another career change. Parker left the Federal Government
for a position as coordinator and instructor for the criminal justice
program at Tacoma Community College.183In April 1980, Washington’s governor appointed him to the state’s Board
of Prison Terms and Paroles.184But when a new governor assumed office in January 1981, he replaced
Parker on the board.185After retiring from his position at Tacoma Community College in 1993,
Parker volunteered with Tacoma Crime Stoppers.186
The National Defense Authorization Act for Fiscal Year 2024 greatly
expanded the Supreme Court’s jurisdiction over military justice cases,
broadening the right to seek certiorari to any case in which review or
extraordinary relief was sought from the Court of Appeals for the
Armed Forces, regardless of whether that court granted the petition.194Before that legislation, the Supreme Court had no statutory certiorari
jurisdiction over cases in which the Court of Appeals for the Armed
Forces denied a petition for grant of review or a petition for
extraordinary relief.195
The existence of the direct review option has two important implications
compared to the pre-Military Justice Act of 1983 regime. First, it allows
the United States to challenge a ruling issued by the Court of Appeals for
the Armed Forces; before adoption of the Military Justice Act of 1983, the
United States had no practical means to seek further judicial review of an
adverse decision by the Court of Military Appeals.
Second, the certiorari route allows for more searching review of Court of
Appeals for the Armed Forces decisions compared to the habeas route, in
which review is constrained by the Supreme Court’s Burns v. Wilson standard.196Under the Supreme Court’s plurality opinion in Burns, “when a
military decision has dealt fully and fairly with an allegation raised in
[a habeas petition], it is not open to a Federal civil court to grant the
writ simply to re-evaluate the evidence.”197Only if “the military courts manifestly refused to consider” a claim is a
Federal civilian court “empowered to review” it de novo.198Although there has been some disagreement across and even within the
Article III courts of appeals as to the precise scope of review under
Burns,199that standard is unquestionably more constrained than that which the
Supreme Court applies when reviewing court-martial cases on direct review.
Despite the availability of review of military justice cases on direct
appeal, perhaps we have not seen the last of Supreme Court military
justice cases bearing a warden’s name. There is currently a significant
habeas challenge on appeal before the Fourth Circuit raising the question
of military retirees’ susceptibility to court-martial jurisdiction.200And a habeas petition raising significant challenges in a military
capital case is currently pending before the U.S. District Court for the
District of Kansas.201Either of those cases could conceivably become the first habeas challenge
to a court-martial conviction to obtain Supreme Court review in half a
century. But notwithstanding such a possibility, the prospect of another
warden’s name being affixed to two significant Supreme Court military
justice decisions is remote. Jacob J. Parker’s feat will probably remain
unrivaled.
1. O’Callahan v.
Parker, 395 U.S. 258 (1969).
2. Parker v. Levy, 417
U.S. 733 (1974).
3. Military Justice Act
of 1983, Pub. L. No. 98-209, 97 Stat. 1393.
4. Certificate of
Birth, Jacob Jordan Parker (on file with Nat’l Pers. Rec. Ctr., St.
Louis, Mo., Jacob Jordan Parker Official Military Personnel File, Serial
No. 425864) [hereinafter Parker OMPF], https://perma.cc/LJ5X-EET9.
5. Enlistment contract,
in Parker OMPF, supra note 4; Occupational
Qualification Record in Parker OMPF, supra note 4.
6. Enlistment contract,
in Parker OMPF, supra note 4.
7. Id.
8. Id.
9. Professional and
Conduct Record of Parker, Jacob Jordan, in Parker OMPF,
supra note 4.
10. Ratings as
Specialist and Special Duty Details, in Parker OMPF,
supra note 4.
11. Expeditions,
Engagements, Distinguished Service, in Parker OMPF,
supra note 4. Parker was a member of the battalion’s
headquarters and service company. Larry L. Woodard,
Before the First Wave: The 3d Armored Amphibian Tractor
Battalion—Peleliu & Okinawa 200
(1994); see also Frank O. Hough,
The Assault on Peleliu 30 (1950) (discussing the battalion’s
formation).
12. Hough,
supra note 11, at 1.
13. Gordon D. Gayle,
Bloody Beaches: The Marines at Peleliu 4 (1996).
14. Id.
15. Hough,
supra note 11, at 35, 178.
16. Gayle,
supra note 13, at 48.
17.
Id. Another thirty-three Japanese naval personnel who had been
hiding in a Peleliu cave complex surrendered on 21 April 1947—more than
nineteen months after Japan’s formal surrender ended hostilities in
World War II. Id. at 44–45.
18. Expeditions,
Engagements, Distinguished Service, in Parker OMPF,
supra note 4.
19. Gayle,
supra note 13, at 1; Hough, supra note 11, at 30,
36–37.
20. Woodard,
supra note 11, at 1–3 (quoting Operation Plan 1-44, First
Marine Division).
21. Id. at
19.
22. Hough,
supra note 11, at 41, 75; Woodard, supra note 11, at
125.
23. Woodard,
supra note 11, at 103–04; Hough, supra note 11, at 66,
78, 87.
24. Hough,
supra note 11, at 101, 105.
25. Id. at
101.
26. Id. at
123–26; Woodard, supra note 11, at 106–09.
27. Woodard,
supra note 11, at 109; Hough, supra note 11, at 126.
28. Hough,
supra note 11, at 94.
29. Id.
30. Woodard,
supra note 11, at 99–100 (quoting Henry Harris, a private first
class assigned as a gunner on one of the battalion’s LVT(A)s,
id. at 13, 204–05).
31. Id. at
109–10; Hough, supra note 11, at 101.
32. Woodard,
supra note 11, at 110–13.
33. Id. at
118.
34. Id.
35. Expeditions,
Engagements, Distinguished Service, in Parker OMPF,
supra note 4; Hough, supra note 11, at 172–75.
36. Woodard,
supra note 11, at 200–14.
37. Memorandum from
Commanding Officer, Third Armored Amphibian Battalion (Provisional),
Amphibian Tractor Group, to Corporal Jacob Jordan Parker, Jr., subject:
Orders to Officer Candidates’ Battalion, Camp Lejeune, North Carolina,
for assignment to College Training Program (12 Dec. 1944),
in Parker OMPF, supra note 4.
38. Transfer Order (2
May 1945), in Parker OMPF, supra note 4.
39. Navy V-12 Program
Separation Report (2 May 1945); Report of Medical Survey, U.S. Naval
Hospital, Long Beach, California, Name PARKER, Jacob Jordan Jr. (18 June
1945); Memorandum from Commanding Gen., Marine Corps Base, San Diego, to
Commanding Officer, First Separation Co., subject: Discharge of enlisted
men, order for, modification of (23 July 1945); all in Parker
OMPF, supra note 4. See generally Am. Psychiatric
Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 301–03,
305–12 (5th ed., text rev. 2022) (discussing post-traumatic stress
disorder and its symptoms).
40. Honorable
Discharge, United States Marine Corps, Jacob J. Parker, Jr. (15 Aug.
1945), in Parker OMPF, supra note 4.
41.
Evergreen Park Engagement, Chi. Sunday Trib., Apr. 6, 1947, at
pt. 3, 3; Jacob Parker, News Trib. (Tacoma, Wash.), Feb. 15,
2009, at B4 [hereinafter Parker Obituary].
42.
See Servicemen’s Readjustment Act, Pub. L. No. 78-346, § 400,
58 Stat. 284, 287–90 (1944) (popularly known as the GI Bill).
See generally Keith W. Olson,
The G.I. Bill and Higher Education: Success and Surprise, 25
Am. Q. 596 (1973) (discussing G.I. Bill benefits and their usage).
43.
Evergreen Park Engagement, supra note 41.
44.
Hedy G. Parker, News Trib. (Tacoma, Wash.), Dec. 30, 1995, at
B4.
45.
Parker Obituary, supra note 41.
46.
New Warden Assesses Lewisburg Challenge, Sunbury Daily Item,
Aug. 21, 1965, at 3.
47. Id.;
Parker Obituary, supra note 41.
48.
New Warden at Lewisburg, Times-Leader (Wilkes-Barre, Pa.), July
30, 1965, at 20; Parker Obituary, supra note 41.
49.
New Warden Assesses Lewisburg Challenge, supra note
46.
50.
New Warden at Lewisburg, supra note 48.
51. Id.
52. Id.
53.
US Pen Inmates to Be Permitted Home Visitations, Sunbury Daily
Item, Oct. 6, 1965, at 1.
54. John W. Roberts,
The Origins of USP Lewisburg, in
The History of the Federal Penitentiary at Lewisburg 125, at 6,
9 (M. Lois Huffines ed., 2005) [hereinafter
History of the Federal Penitentiary].
55. Id. at
13.
56. Diana Medina
Lasansky,
The Architecture of Redemption: The Federal Prison at Lewisburg, in History of the Federal Penitentiary,
supra note 54, at 20, 21; Lee Linder,
Justice Department Says ‘Untrue’ to Charges Against Federal Prison
System, Greenville News, Mar. 8, 1969, at 1; Bureau of Prisons,
U.S. Penitentiary Lewisburg, Pa. (1958) [hereinafter
U.S. Penitentiary Lewisburg, Pa.].
57.
U.S. Penitentiary Lewisburg, Pa., supra note 56, at 2.
58. Bureau of
Prisons, Federal Bureau of Prisons Statistical Report Fiscal Year 1966,
at 22 (1966) [hereinafter 1966 BOP Report]; Bureau of Prisons,
Federal Bureau of Prisons Statistical Report Fiscal Years 1969 and 1970,
at 22 (1970) [hereinafter 1969 & 1970 BOP Report].
59.
1966 BOP Report, supra note 58, at 22;
1969 & 1970 BOP Report, supra note 58, at 22;
Linder, supra note 56, at 1;
New Warden Assesses Lewisburg Challenge, supra note
46.
60.
New Warden Assesses Lewisburg Challenge, supra note
46.
61. Patrick J. Owens,
No. 33298 at Lewisburg (That’s Hoffa) Sorts Shoes, Evening News
(Harrisburg, Pa.), Mar. 24, 1967, at 3 (quoting Parker).
62. Howard Levy &
David Miller, Going to Jail: The Political Prisoner 209 (1970).
63. Id.
64. Id.
65. Id.
66. Walter Sheridan,
The Fall and Rise of Jimmy Hoffa 352–55, 376–77 (1972).
See generally United States v. Hoffa, 437 F.2d 11 (6th Cir.
1971); United States v. Hoffa, 436 F.2d 1243 (7th Cir. 1970) (providing
background of Hoffa’s prosecutions and convictions).
67.
See generally Sheridan, supra note 66, at 377–413
(discussing Hoffa’s various efforts to overturn his convictions). Hoffa
ultimately served less than five years of his term of confinement. On 23
December 1971, President Richard M. Nixon granted Hoffa a conditional
commutation that resulted in his release from the Lewisburg
penitentiary. Fred P. Graham,
Nixon Commutes Hoffa Sentence, Curbs Union Role, N.Y. Times,
Dec. 24, 1971, at 1; see generally Hoffa v. Saxbe, 378 F. Supp.
1221 (D.D.C. 1974) (discussing President Nixon’s partial commutation of
Hoffa’s sentence and rejecting Hoffa’s challenge to conditions on that
commutation). Three years and seven months later, Hoffa disappeared,
presumably murdered at the direction of an organized crime boss.
See generally John Wisely,
Hoffa 40 Years Gone, the Mystery Never Dies, Detroit Free
Press, July 30, 2015, at A1 (discussing Hoffa’s disappearance and
competing theories as to his fate).
68. David R. Jones,
Hoffa, Manacled, Is Led into Prison, N.Y. Times, Mar. 8, 1967,
at 1.
69. E.g.,
Warden at Lewisburg Rules Out Special Privileges for Hoffa,
Wilkes-Barre Times Leader, Mar. 8, 1967, at 1.
70. Victor
Rabinowitz, Unrepentant Leftist: A Lawyer’s Memoir 290 (1996).
For a biographical sketch of Rabinowitz, see Marjorie Cohn,
Peace Profile: Victor Rabinowitz, 20 Peace Rev. 398 (2008);
see also Douglas Martin,
Victor Rabinowitz, 96, Leftist Lawyer, Dies, N.Y. Times, Nov.
20, 2007, at B7 (obituary of Rabinowitz).
71. Rabinowitz,
supra note 70, at 290. The case against the two Teamster local
officials resulted in an acquittal. Id. at 291;
Teamster Cleared of Fraud, Miami Herald, Dec. 3, 1965, at 31-A.
72. Rabinowitz,
supra note 70, at 291.
73. Record of Trial
of O’Callahan, James F., RA 11 221 278, Sergeant, Field Station (8605)
APO 957, by General Court-Martial Appointed by the Commanding General,
United States Army, Pacific, Tried at Fort Shafter, T.H., APO 958 on 11
October 1956, Case No. 393590 (on file with Nat’l Pers. Rec. Ctr., St.
Louis, Mo.) [hereinafter O’Callahan ROT], https://perma.cc/BJ5Y-ZYWU.
74.
Id. Pros. Exs. 1, 5.
75.
Id. Pros. Exs. 1, 5.
76. Id.,
Trial Tr. 67.
77. Id.,
Trial Tr. 1–67.
78. Id.,
Trial Tr. 49.
79. Id.,
Action of the Officer Exercising General Court-Martial Jurisdiction (Nov
6, 1956).
80. The Army Board of
Review affirmed the findings and sentence in a one-sentence decision on
4 January 1957. United States v. O’Callahan, CM 393590 (A.B.R. Jan. 4,
1957), in O’Callahan ROT, supra note 73.
81. The Court of
Military Appeals denied review on 1 March 1957. United States v.
O’Callahan, 7 C.M.A. 800 (1957) (mem.).
82. General
Court-Martial Order No. 168 (28 Mar. 1957), in O’Callahan ROT,
supra note 73; Admission Classification Summary, O’Callahan,
James F. (28 Mar. 1957) (on file with Nat’l Pers. Rec. Ctr., St. Louis,
Mo., James F. O’Callahan Official Military Personnel File, Service No.
RA 11221278) [hereinafter O’Callahan OMPF], https://perma.cc/926B-QXGX.
For information about the Branch United States Army Disciplinary
Barracks, Lompoc, California, see, e.g., Jerry S. Price,
History of the United States Disciplinary Barracks, 1875–Present,
Student Study Project #4016, USACGSC, Ft. Leavenworth, Kan. 37 (7 May
1978), https://apps.dtic.mil/sti/pdfs/ADA437867.pdf
[https://perma.cc/4CT6-PN8J]; U.S. Dep’t of Just. & U.S. Dep’t of
Def., Report to Congress Pursuant to Section 20413 of the Violent Crime
Control and Law Enforcement Act of 1994, Conversion of Closed Military
Installations into Federal Prison Facilities, at I-2, app. B-3 (Feb.
1995),
https://www.esd.whs.mil/Portals/54/Documents/FOID/Reading%20Room/Other/BRAC/Conversion_of_Closed_Military_Installations_into_Federal_Prison_Facilities_749.pdf
[https://perma.cc/4F9M-635H].
83. O’Callahan v.
Parker, Respondents’ Return and Answer to Petition, app. at 16,
O’Callahan v. Parker, 395 U.S. 258 (1969) (No. 646) [hereinafter
O’Callahan Appendix].
84. Id.
85. Id.
86.
Id. First the U.S. District Court for the District of
Massachusetts and then the U.S. Court of Appeals for the First Circuit
rejected O’Callahan’s argument that the Federal civilian parole board
had no authority to parole him as a military prisoner, and thus his
confinement time had continued to run since his release from Lewisburg
in 1960. O’Callahan v. Att’y Gen., 230 F. Supp. 766 (D. Mass.),
aff’d, 338 F.2d 989 (1st Cir. 1964);
see also O’Callahan v. Att’y Gen., 351 F.2d 43 (1st Cir. 1965)
(per curiam) (ruling against O’Callahan’s claim that it was
unconstitutional to deny him confinement credit for time spent on
parole); accord O’Callahan v. United States, 293 F. Supp. 122
(D. Minn. 1968). The judge in the Minnesota case aptly referred to
O’Callahan’s “litigation life.” O’Callahan, 293 F. Supp. at
122.
87. Rabinowitz,
supra note 70, at 292–93.
88. Id. at
293.
89. Id.
90. Id. at
292.
91.
Id. O’Callahan was one of nine cases Rabinowitz argued at the
Supreme Court. See Alfred Dunhill of London, Inc. v. Republic
of Cuba, 425 U.S. 682, 684 (1976); First Nat’l City Bank v. Banco
Nacional de Cuba, 406 U.S. 759, 760 (1972); Samuels v. Mackell, 401 U.S.
66, 66 (1971); O’Callahan, 395 U.S. at 259; Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 399 (1964); Yellin v. United States, 374 U.S.
109, 110 (1963); Silber v. United States, 370 U.S. 717, 717 (1962) (per
curiam); Harmon v. Brucker, 355 U.S. 579, 579 (1958) (per curiam); Am.
Comm’ns Ass’n v. Douds, 339 U.S. 382, 384 (1950). He prevailed in five
of them: O’Callahan,
Banco Nacional de Cuba v. Sabbatino, Yellin,
Silber, and Harmon.
92. Rabinowitz,
supra note 70, at 292; Petition for Writ of Habeas Corpus, No.
756 (M.D. Pa. 1966), in O’Callahan Appendix,
supra note 83, at 3–12; Petitioner’s Traverse, No. 756 (M.D.
Pa. 1966), in O’Callahan Appendix, supra note 83, at
21–26.
93. O’Callahan v.
Parker, 256 F. Supp. 679 (M.D. Pa. 1966), aff’d, 372 F.2d 136
(3d Cir. 1967); United States v. O’Callahan, 16 C.M.A. 568, 37 C.M.R.
188 (1967).
94. United States
ex rel. O’Callahan v. Parker, 390 F.2d 360 (3d Cir. 1968).
95. Notice of Change
– Military Prisoner, O’Callahan, James F. (June 19, 1968),
in O’Callahan OMPF, supra note 82.
96. Current Data for
Restoration, Clemency and Parole Review, O’Callahan, James F. (5 Mar
1969), in O’Callahan OMPF, supra note 82.
97. O’Callahan v.
Parker, 393 U.S. 822 (1968) (mem.). The issue statement erroneously
averred that O’Callahan’s court-martial was “held under the Articles of
War” rather than the UCMJ. Id.
98. The majority
consisted of Chief Justice Warren and Justices John Marshall Harlan II,
William J. Brennan, Potter Stewart, Byron White, and Abe Fortas. Justice
William O. Douglas’s conference notes include a cautionary caveat: “but
AF [Fortas] is dubious – at least says authority is very narrow.” The
dissent consisted of Justices Douglas, Hugo L. Black, and Thurgood
Marshall. Conference January 24, 1969, No. 646 – O’Callahan v. Parker
(on file with Lib. of Cong., Manuscript Div., William J. Brennan, Jr.
Papers [hereinafter Brennan Papers]); Box I:180, “Case File O.T. 1968,
Administrative File, Dockets, 68-601 to 68-800” Folder; Lib. of Cong.,
Manuscript Div., William O. Douglas Papers [hereinafter Douglas Papers],
Box 1450, “No. 646(d) O’Callahan v. Parker MISC. MEMOS, CERT MEMOS, VOTE
OF CT” Folder.
99. O’Callahan v.
Parker opinion circulated Apr. 8, 1969, at 10, in Brennan
Papers, supra note 98, Box I:197, Case File No. 68-646 (1 of
2).
100. O’Callahan v.
Parker dissent circulated Apr. 10, 1969, in Brennan Papers,
supra note 98, Box I:197, Case File No. 68-646 (2 of 2).
Justice Douglas omitted Airmen and Coast Guardsmen from his list of
those subject to the UCMJ.
101. A.F. to Mr.
Justice Harlan, Re: O’Callahan v. Parker, No. 646 (Apr. 11, 1969),
in Brennan Papers, supra note 98, Box I:197, Case File
No. 68-646 (2 of 2).
102. Id.
103.
Id. (emphasis adjusted from underline to italics).
104. J. M. H. to
Mr. Justice Fortas (Apr. 14, 1969), in Brennan Papers,
supra note 98, Box I:197, Case File No. 68-646 (1 of 2).
105. Id.
106. Id.
107. Fred P.
Graham,
Fortas Quits the Supreme Court, Defends Dealings with Wolfson;
Liberal Majority May Be Curbed, N.Y. Times, May 16, 1969, at 1; see also
The Texts of Letters and Statements Involving the Resignation of
Justice Fortas, N.Y. Times, May 16, 1969, at 20 (reprinting statements of Chief
Justice Earl Warren and the Justice Department and correspondence from
Justice Fortas concerning his resignation). See generally Laura
Kalman, Abe Fortas: A Biography 322–25, 359–78 (1990)
(describing ties between Justice Fortas and financier Louis Wolfson, who
was convicted of Federal offenses, and Fortas’s resulting resignation).
108. O’Callahan v.
Parker dissenting opinion (“May –, 1969”) (on file with Lib. of Cong.,
Manuscript Div., Earl Warren Papers [hereinafter Warren Papers], Box
565, “No. 646 – O’Callahan v. Parker” Folder); Chambers of Justice Abe
Fortas, Memorandum for the Conference (May 15, 1969), in Warren
Papers, supra, Box 565, “No. 646 – O’Callahan v. Parker” Folder
(“Mr. Justice Fortas thought the members of the Court might like to see
the dissent which he prepared in No. 646 – O’Callahan v. Parker.”).
109. O’Callahan v.
Parker opinion circulated May 19, 1969, in Brennan Papers,
supra note 98, Box I:197, Case File No. 68-646 (1 of 2).
110. O’Callahan v.
Parker, 395 U.S. 258 (1969).
111.
Compare id., with supra note 98.
112. O’Callahan,
395 U.S. at 272–74.
113.
Id. at 273.
114.
See supra notes 95–96 and accompanying text.
115. O’Callahan v.
United States, 451 F.2d 1390 (Cl. Ct. 1971).
116. Rabinowitz,
supra note 70, at 293.
117. Id.
118. Id.
119. Solorio v.
United States, 483 U.S. 435, 450 (1987).
120. O’Callahan v.
Parker, 395 U.S. 258, 266 (1969) (citing Ira Glasser,
Justice and Captain Levy, 12 Colum. Forum 46 (1969)).
121. United States
v. Levy, 39 C.M.R. 672, 675 (A.B.R. 1968), petition denied, 18
C.M.A. 627 (1969); Parker v. Levy, 417 U.S. 733, 736 (1974).
122. Levy, 417 U.S.
at 736–37.
123. Levy, 39
C.M.R. at 675.
124. Id.
125. Id.
126.
Id. at 675–76.
127.
Id. at 676.
128. Id.
129. Id.
130. Id.
131.
Id. at 674.
132.
Id. at 673–75.
133.
Id. at 675.
134.
Id. at 673, 675. The convening authority approved the sentence
as adjudged. Id. at 675.
135.
See, e.g., Levy v. Corcoran, 387 U.S. 915 (1967); Levy v.
Corcoran, 389 F.2d 929 (D.C. Cir.) (per curiam), cert. denied,
389 U.S. 960 (1967).
136. Robert N.
Strassfeld,
The Vietnam War on Trial: The Court-Martial of Dr. Howard B. Levy, 1994 Wis. L. Rev. 839, 949 n.482.
137. Levy v. Resor,
17 C.M.A. 135, 37 C.M.R. 399 (1967) (per curiam).
138. Levy v. Resor,
384 F.2d 689 (4th Cir. 1967), cert. denied, 389 U.S. 1049
(1968).
139. Levy v. Resor,
389 U.S. 1049 (1968) (mem.).
140. United States
v. Levy, 39 C.M.R. 672 (A.B.R. 1968), petition denied, 18
C.M.A. 627 (1969).
141.
I Move for Howard Levy, Kan. City Star, Jan. 31, 1969, at 4.
142. Id.
143.
See generally Howard Levy & David Miller,
Going to Jail: The Political Prisoner (1970) (discussing,
inter alia, Levy’s conditions of confinement at the USDB and
Lewisburg).
144. Levy v.
Parker, No. 1057, Petition for Writ of Habeas Corpus (M.D. Pa. Apr. 19,
1969), reprinted in App. at 12–21, Parker v. Levy, 417 U.S. 733
(1974) (No. 73-206) [hereinafter Levy Appendix].
145.
Id. at 1, reprinted in Levy Appendix,
supra note 144, at 12. The other respondent was Secretary of
the Army Stanley R. Resor.
Id.
146. Levy Appendix,
supra note 144, at 1.
147. Id.
148. Memorandum for
the Respondents in Opposition 2, Levy v. Parker 396 U.S. 1204 (1969),
in Douglas Papers, supra note 98, Box 1468, “App. For
Bail – Levy v. Parker O.T. 69” Folder.
149. Application
for Bail Addressed to the Honorable William J. Brennan, Jr., As Circuit
Justice for the Third Circuit, Levy v. Parker (received 3 July 1969),
in Douglas Papers, supra note 98, Box 1468, “App. For
Bail – Levy v. Parker O.T. 69” Folder.
150.
Id. (handwritten note on petition).
151. Application
for Bail Addressed to the Honorable William O. Douglas, Associate
Justice of the Supreme Court (received 19 July 1969),
in Douglas Papers, supra note 98, Box 1468, “App. For
Bail – Levy v. Parker O.T. 69” Folder.
152. Levy v.
Parker, 396 U.S. 1204 (1969) (Douglas, J., chambers opinion).
153.
Id. at 1204–05.
154.
Id. at 1205.
155. Id.
156. Id.
157. Id.
158.
Id. at 1204.
159. Phil Gailey,
Levy Says GI Dissent Prods Volunteer Army, Atlanta Const., Aug.
7, 1969, at 16-A.
160. E.g.,
Dr. Levy Leaves Prison; Refused to Train Medics, Indianapolis
Star, Aug. 7, 1969, at 72.
161. Levy &
Miller, supra note 143.
162.
Id. at 65–66 (“At Lewisburg there was recently a horrendous
newspaper article posted on the Jaycee bulletin board. Two inmates, a
bank robber and a dope pusher, were photographed while attending a
Jaycee convention some distance away from the institution. They were
reported as saying that prison was tough but that the Jaycees gave new
hope and Warden Parker was as helpful as he could be. Warden Parker,
they said, would give prisoners any possible break. This was sheer
propaganda.”).
163. Levy v.
Parker, 396 U.S. 804 (1969).
164. Justice
Thurgood Marshall did not participate in the case and there was a vacant
seat on the Court at the time. The note in Justice Douglas’s papers
indicated that Chief Justice Warren Burger and Justices Byron White and
Potter Stewart voted to vacate the order granting bail while Justices
Douglas, Brennan, Hugo Black, and John Marshall Harlan II voted to
continue the order granting bail. Levy v. Parker, Application for bail
pending habeas, in Douglas Papers, supra note 98, Box
1468, “App. For Bail – Levy v. Parker O.T. 69” Folder.
165.
Reassign Warden at Lewisburg Pen, Tribune (Scranton, Pa.), July
7, 1970, at 9.
166. Levy v.
Parker, 478 F.2d 772, 778 (3d Cir. 1973).
167. Fed. R. App.
P. 43(c)(1); Federal Rules of Appellate Procedure with Conforming
Amendments to Federal Rules of Civil Procedure and Federal Rules of
Criminal Procedure, 43 F.R.D. 61, 105–06 (1968). A similar provision is
included in the current Fed. R. App. P. 43(c)(2).
168. Levy,
478 F.2d at 795. Future U.S. District Judge Royce C. Lamberth—then a
captain in the Office of the Judge Advocate General of the Army—was
among the counsel for the respondents before the Third Circuit.
See id. at 776.
169.
Id. at 794.
170.
Id. at 796. In addition to setting aside Levy’s convictions for
the violating Articles 133 and 134, the Third Circuit held that the
finding of guilty to the Article 90 charge may have been influenced by
evidence the court-martial would not have heard but for the
constitutionally infirm charges. Id. at 796–99. The court,
therefore, granted relief as to the Article 90 conviction as well.
Id. at 799. Chief Judge Seitz dissented from the portion of the
opinion setting aside the Article 90 conviction. Id. at 808–13
(Seitz, C.J., concurring in part, dissenting in part).
171. Levy,
417 U.S. at 733. That same day, the Court heard oral argument in
Secretary of the Navy v. Avrech. Sec’y of Navy v. Avrech, 418
U.S. 676, 676 (1974) (per curiam). In Avrech, the United States
Court of Appeals for the District of Columbia—in an opinion by United
States Supreme Court Justice Tom C. Clark sitting by designation—had
held Article 134, UCMJ, unconstitutionally vague. Avrech v. Sec’y of
Navy, 477 F.2d 1237 (D.C. Cir. 1973). The Supreme Court would ultimately
reverse that ruling. Avrech, 418 U.S. at 676–77.
172. Levy,
417 U.S. at 735. See generally Steven G. Calabresi,
In Memoriam: Robert H. Bork, 36 Harv. J.L. & Pub. Pol’y
1235 (2013) (discussing Bork’s legal career); Ethan Bronner,
A Conservative Whose Supreme Court Bid Set the Senate Afire,
N.Y. Times, Dec. 20, 2012, at A1 (same).
173. Don McKee,
Jury Trial Sought in Army Case, Burlington Times-News, Apr. 23,
1969, at 15-A.
174. Levy,
417 U.S. at 735.
175.
See id. at 758.
176. Id.
177. Charles
Morgan, One Man, One Voice 149 n.* (1979).
178. Bangor Punta
Operations v. Bangor & A.R. Co., 417 U.S. 703 (1974); Florida Power
& Light Co. v. International Brotherhood of Elec. Workers, 417 U.S.
790 (1974).
179.
See Solorio v. United States, 483 U.S. 435, 448 (1987).
180.
See supra note 165 and accompanying text;
McNeil Bids Its Warden 2 Goodbyes, Tacoma News Trib., Jan. 8,
1972, at 2.
181.
See generally There’s Trouble at McNeil Island, Wash.
State Bar News, May 1971, at 5 (discussing prisoner strike at the McNeil
Island Federal Penitentiary and litigation in Federal district court
over conditions of confinement there); Dwight Jarrell,
McNeil ‘Normal,’ but Prisoners Can’t Tell Story, News Tribune
(Tacoma, Wash.), Mar. 11, 1971, at A-1 (reporting on an interview with
Warden Parker concerning the prisoner strike).
182. Win Anderson,
Warden in Line for Adviser Post, Tacoma News Trib., Dec. 10,
1971, at A-3; McNeil Bids Its Warden 2 Goodbyes,
supra note 180, at 2; William F. Powers,
The Law Enforcement Assistance Administration, An Administrative
History
(D.P.A. dissertation, Nova University),
https://www.ojp.gov/pdffiles1/Photocopy/153696NCJRS.pdf
[https://perma.cc/63NM-PJJC].
183.
Former Warden Turns Teacher, News Trib. (Tacoma, Wash.), July
25, 1975, at A-4.
184.
Ex-Warden Named to Parole Board, Spokane Daily Chronicle, Apr.
15, 1980, at 10.
185. Adele
Ferguson, City Attorney Named to Parole Board Post, Bremerton
Sun, Jan. 28, 1981, at 2.
186.
Parker Obituary, supra note 41.
187. Id.
188. Id.
189. “[T]he Supreme
Court did not review a court-martial habeas case until 1879.” Santucci
v. Commandant, 66 F.4th 844, 853 (10th Cir. 2023). Significant Supreme
Court military justice decisions arising from habeas petitions starting
in that year include Ex parte Reed, 100 U.S. 13 (1879);
Ex parte Mason, 105 U.S. 696 (1881); In re Grimley,
137 U.S. 147 (1890); Johnson v. Sayre, 158 U.S. 109 (1895); Carter v.
Roberts, 177 U.S. 496 (1900); Carter v. McClaughry, 183 U.S. 365 (1902);
McClaughry v. Deming, 186 U.S. 49 (1902); Givens v. Zerbst, 255 U.S. 11
(1921); Kahn v. Anderson, 255 U.S. 1 (1921); Collins v. McDonald, 258
U.S. 416 (1922); Billings v. Truesdell, 321 U.S. 542 (1944); United
States ex rel. Hirshberg v. Cooke, 336 U.S. 210 (1949);
Humphrey v. Smith, 336 U.S. 695 (1949); Wade v. Hunter, 336 U.S. 684
(1949); Hiatt v. Brown, 339 U.S. 103 (1950); Gusik v. Schilder, 340 U.S.
128 (1950); Whelchel v. McDonald, 340 U.S. 122 (1950); Burns v. Wilson,
346 U.S. 137 (1953); United States ex rel. Toth v. Quarles, 350
U.S. 11 (1955); Kinsella v. Krueger, 351 U.S. 470 (1956); Jackson v.
Taylor, 353 U.S. 569 (1957); Fowler v. Wilkinson, 353 U.S. 583 (1957);
Reid v. Covert, 354 U.S. 1 (1957); Lee v. Madigan, 358 U.S. 228 (1959);
McElroy v. United States, 361 U.S. 281 (1960); Kinsella v. United
States, 361 U.S. 234 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); Noyd
v. Bond, 395 U.S. 683 (1969); Reliford v. Commandant, U.S. Disciplinary
Barracks, 401 U.S. 355 (1971); Gosa v. Mayden, 413 U.S. 665 (1973); and
Middendorf v. Henry, 425 U.S. 25, 29–30 (1976) (noting that the case
originated as a “class action seeking habeas corpus (release from
confinement), an injunction against future confinement resulting from
unconseled summary court-martial convictions, and an order vacating the
convictions of those previously convicted”). Military justice cases have
also sometimes reached the Supreme Court on review of other forms of
collateral challenges to court-martial convictions. E.g.,
McLucas v. DeChamplain, 421 U.S. 21 (1975) (reviewing a Federal district
court’s injunction precluding proceeding with a court-martial);
Schlesinger v. Councilman, 420 U.S. 738, 744 (1975) (presuming that “the
District Court found jurisdiction under 28 U.S.C. § 1331, which grants
subject-matter jurisdiction of civil actions where the matter in
controversy exceeds $10,000 ‘and arises under the Constitution, laws, or
treaties of the United States’”); United States v. Augenblick, 393 U.S.
348 (1969) (reviewing Court of Claims’ ruling on collateral challenge to
court-martial conviction); Mullan v. United States, 212 U.S. 516 (1909)
(same); United States v. Brown, 206 U.S. 240 (1907) (same); United
States v. Smith, 197 U.S. 386 (1905) (same); Swaim v. United States, 165
U.S. 553 (1897) (same); Ide v. United States, 150 U.S. 517 (1893)
(same); United States v. Fletcher, 148 U.S. 84 (1893) (same); United
States v. Page, 137 U.S. 673 (1891) (same); Runkle v. United States, 122
U.S. 543 (1887) (same); Smith v. Whitney, 116 U.S. 167 (1886) (reviewing
Supreme Court of the District of Columbia’s denial of petition for writ
of prohibition to stop a naval court-martial); Keyes v. United States,
109 U.S. 336 (1883) (reviewing Court of Claims’ ruling on collateral
challenge to court-martial conviction); Dynes v. Hoover, 61 U.S. 65
(1857) (reviewing collateral challenge to a naval court-martial
conviction brought as an action for assault and battery and false
imprisonment against the marshal of the District, who confined Dynes as
a result of a court-martial conviction).
190. Military
Justice Act of 1983, Pub. L. No. 98-209, § 10, 97 Stat. 1393, 1405.
191. Congress gave
the court its present name in 1994. See National Defense
Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 924, 108
Stat. 2663, 2831 (1994); see also Special Session for Court
Name Change, 41 M.J. LIII (C.A.A.F. 1994) (marking the change of the
court’s name); Notice of Court Name Change, 42 M.J. 9 (C.A.A.F. 1994)
(same).
192. On the other
hand, the Court did hear a challenge to the military commission system
via review of lower Article III courts’ rulings on a habeas petition.
See Hamdan v. Rumsfeld, 548 U.S. 557, 567 (2006).
193. Solorio v.
United States, 483 U.S. 435 (1987); Weiss v. United States, 510 U.S. 163
(1994); Davis v. United States, 512 U.S. 452 (1994); Ryder v. United
States, 515 U.S. 177 (1995); Loving v. United States, 517 U.S. 748
(1996); Edmond v. United States, 520 U.S. 651 (1997); United States v.
Scheffer, 523 U.S. 303 (1998); United States v. Denedo, 556 U.S. 904
(2009); Ortiz v. United States, 585 U.S. 427 (2018); United States v.
Briggs, 592 U.S. 69 (2020). The Supreme Court engaged in plenary review
of another case via writ of certiorari to the Court of Appeals for the
Armed Forces that involved not a court-martial, but rather the
President’s action in dropping an officer from the rolls. The Supreme
Court held that the Court of Appeals for the Armed Forces had exceeded
its jurisdiction by granting extraordinary relief in that case.
See Clinton v. Goldsmith, 526 U.S. 529 (1999).
194. National
Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, §
533, 137 Stat. 136, 261 (2023). That expansion applies to cases in which
a petition for grant of review was filed on or after 22 December 2024.
Id. § 533(b), 137 Stat. at 261.
195.
See 10 U.S.C. § 867a (2018); 28 U.S.C. § 1259 (2018).
196. Burns v.
Wilson, 346 U.S. 137 (1953).
197.
Id. at 142.
198. Id.
199.
See, e.g., Santucci v. Commandant, 66 F.4th 844, 855 (10th Cir.
2023) (“[O]ur interpretation of ‘the language in Burns’—as expressed in
our post-Burns decisions—had been anything but clear.” (quoting Dodson
v. Zelez, 917 F.2d 1250 (10th Cir. 1990))), cert. denied, 144
S. Ct. 191 (2023). See generally Clara D. Crenshaw, Note,
Habeas Review of Courts-Martial: Revisiting the Burns Standard,
99 Tex. L. Rev. 787, 797–802 (2021) (surveying various circuits’
application of Burns).
200. Bork v.
Infante, C/A No. 9:23-CV-01073/JFA, 2024 U.S. Dist. LEXIS 9288 (D.S.C.
Jan. 17, 2024), appeal filed, No. 24-6218 (4th Cir. Mar. 8,
2024).
201. Gray v.
Curtis, No. 5:18-cv-03305-EFM (D. Kan.). The case is before the district
court on remand from the U.S. Court of Appeals for the Tenth Circuit.
See Gray v. Gray, 645 F. App’x 624 (10th Cir. 2016) (per
curiam).