Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges.
This is an appeal from an order discharging a writ of habeas corpus granted to review the conviction of the relator by a general court-martial. The respondent, General Webster, filed a return to the writ, and the judge heard the case upon the record of the trial before the court-martial at Wiesbaden, Germany, in March, 1948. The conviction was upon three charges: (1) Selling whisky to soldiers; (2) causing "travelorders to be falsely made" by which enlisted men were authorized to go to Holland to get the whisky; (3) uttering the same forged "travel orders." The only question raised upon the appeal is whether Becker was denied the rights secured to him by the Seventieth Article of War, 10 U.S.C.A. § 1542, and § 35(a) the "Manual of Courts-Martial." Orginally only the first two of the three charges were filed, of which an officer, named Adcock, was detailed to conduct the investigation as the Seventieth Article requires. In the course of this he tried to take the testimony of one, Ilse Dieringer, a German who had been Becker's secretary. This examination was conducted in Becker's presence, and Becker tried to cross-examine her; but both upon the direct and upon the cross she refused to answer all but a few unimportant questions. Nevertheless, Adcock found in other evidence enough support for the two charges to recommend to his superior officer that a general court-martial be convened. That officer transmitted Adcock's report and the testimony to the Staff Judge Advocate, who, although he reported back that there appeared to be enough proof to sustain the two charges, for good measure recommended that the third charge be added; and that was also referred to Adcock for investigation. Thereafter Adcock telephoned to the manager of the "PX store," where Ilse Dieringer worked, told him that in a few days he would question her again, and "asked him if he couldn't put her at ease so that she would be able to talk sensibly, or put her at ease when he questioned her," and the manager told him "that he would try." Apparently he succeeded, because, when Adcock examined her the second time - this time in the absence of Becker and his lawyer - she made a full disclosure of what she knew regarding the preparation and use of the "travel orders." The lest part of her examination was as follows:
"Q. What made you decide to tell the truth now and why didn't you tell me the truth the first time I talked to you? A. Because I thought I wouldn't have to go to a court-martial and wouldn't have to testify against any American. Maybe you don't see the way I feel, it is hard to make myself understood.
"Q. I think I know how you feel, Susie. I don't have any more questions, is there anything more you would like to say, Susie? A. Maybe you don't believe me any more because I wouldn't tell the truth in the first place, but today I told you really what I know about it, everything I can remember so far. If you want to ask me again in front of Lt. Becker, its O.K. I see that I must have been - I don't know what it was."
Before the second examination Adcock had told Chase, Becker's lawyer, that he proposed to examine Ilse in Becker's absence; and to this Chase had objected, because that would not comply with the Seventieth Article. Adcock disregarded this protest, but before reporting upon the third charge, he offered to show the testimony to Chase, and told him that, if he wished, he might call the witness and cross-examine her in Becker's presence. Chase refused on the ground that cross-examination would be useless after the direct had been taken in Becker's absence. Adcock then recommended that a general court-martial should be convened to try the third charge as well as the first two, and the trial proceeded on all three.
A trial before a general court-martial, convened without any preliminary investigation under the Seventieth Article, would of course be altogether irregular; but the court might nevertheless have jurisdiction. Certainly such a trial would not deny to the accused "due process of law" in the broad sense that that phrase is sometimes used: i.e., that he must be fully advised of the evidence used against him; that he must have opportunity to cross-examine and answer; that he must have assistance of counsel; and that judges must be without bias or commitment. The preliminary investigation is a creature of statute, which Congress need not have provided at all; for the Fifth Amendment expressly exempts courts-martial from the necessity of indictment.*fn1 Indeed, in any criminal prosecution a bare information satisfies the Fourteenth Amendment.*fn2 The effect of irregularities in the conduct of the investigation has been considered in numerous cases;*fn3 but in Smith v. Hiatt, supra,*fn3 alone has any court of appeals made the result depend upon whether there was substantial compliance with the article; for, although in Benjamin v. Hunter, supra,*fn3 the court said that compliance was necessary, the decision did not demand it. Nevertheless, we shall assume for argument that Smith v. Hiatt, supra,*fn3 was right, without committing ourselves, should the question recur.
This we may do, because, there was not only "substantial compliance" with the article; but literal compliance as well. The text contains nothing about "confrontation" on the direct; and the omission is most significant, because of the express grant of the right to cross-examine: "at the investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available." It is at the outset to be observed that even this right is not absolute, for "availability" admits of much latitude of interpretation.*fn4 But even if it had been absolute, it would not have implied the right of "confrontation" upon the direct in cases where the accused has had access to the direct testimony before he is called upon to cross-examine. Indeed, "the main and essential purpose of confrontation is to secure for the opponent the opportunity for cross-examination. * * * That this is the true and essential significance of confrontation is clear from the language of counsel and judges from the beginning of the Hearsay rule to the present day."*fn5 It is true that there is "a secondary advantage to be obtained by the personal appearance of the witness"; but that is in order that the tribunal shall be able to observe his "deportment while testifying," and by that "a certain subjective moral effect is produced upon the witness" also. Any such advantage will be secured, however, if the direct is before the tribunal, because if "does not arise from the confrontation of the opponent and the witness; it is not the consequence of the two being brought face to face."*fn6 Perhaps this is not a complete account of all the interests at stake. It is at least theoretically possible that at the outset of his cross-examination an "opponent" who has not been present on the direct may be at some disadvantage even though he has had access to the direct; but that is a handicap which will soon disappear as the demeanor of the witness develops, and certainly it is not enough to justify the interpolation into this statute of an apparently deliberate omission.
Moreover, this prima facie interpretation is borne out by administrative interpretation. The "Manual for Courts-Martial" is a publication, promulgated by the President under the authority of the Thirty-Eighth Article of War, 10 U.S.C.A. § 1509. Section 35(a) deals with investigations under the Seventieth Article, and concludes with "Instructions" for their conduct. The only part here relevant is that "all available witnesses who appear to be reasonably necessary for a thorough and impartial investigation, will be called and examined in the presence of the accused. * * * Where the investigating officer makes known to the accused the substance of the testimony expected from a witness as ascertained by written statement of the witness, interview with the witness, or other similar means, and the accused states that he does not desire to cross-examine such witness, the witness need not be called even if available." This gloss is in perfect accord with the text, and makes it read as we should have read it independently. Adcock followed it literally and in so doing gave to Becker the full measure of his rights.
Certainly there was no basis for the reason which Chase gave for refusing Adcock's proposal that he cross-examine the witness. He did not suggest that Adcock's mind had been more impressed by Ilse Dieringer's testimony because it had been taken in Becker's absence than if Becker had been present: - that would have been absurd. His reason was that she would yield less readily to cross-examination than if her direct had been given in his, or Becker's, presence. If that is a good ground, it forbids reducing any witness's testimony to written form in advance of a trial, or indeed even examining him orally. Nothing would then be permissible except that all parties must put their witnesses on the stand, as tabulae resae; and the custom - universal so far as it is practicable - of interviewing one's witnesses before trial and reducing their proposed testimony to writing would become unprofessional. To such fantastic extremes can the pursuit of legal will-o-the-wisps be pushed.
Finally, there is as little substance to the undeserved slur, based upon Adcock's letter to the "PX manager," asking that he put Ilse Dieringer "at ease so that she would be able to talk sensibly"; and the manager's answer. The intimation (perhaps it is an imputation) from this is apparently that Adcock was asking the manager to put pressure upon her to support the prosecution. That is an utterly unfair interpretation. Upon her first examination the witness had not favored Becker or evinced any bias against the prosecution; for practical purposes she had stood mute. That, as she said on her second examination, was because she had been afraid of what might befall her, if she aroused the resentment of an American officer. Apparently Adcock had already inferred as much from her first examination; and it was part of his duty to search out the truth, to try to allay her fears, and to make her "talk sensibly," which she had not done. So far as the record discloses, throughout the investigation Becker was not only given the full benefit of the Seventieth Article, but was treated with entire impartiality.
FRANK, Circuit Judge (dissenting).
The Manual is more than a gloss on, or an administrative interpretation of, the statute. For it was promulgated pursuant to Article 38 of the Articles of War, 10 U.S.C.A. § 1509, which authorizes the President, by regulation, to prescribe the procedure of courts-martial, provided his regulations are not "contrary to or inconsistent with" the Articles. Thus the President may ...