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William S. Johnson v. Beverly E. Powell, Etc
It was for these reasons that I felt that the full Court should consider the question of law at the October 25, 1968, Conference. Since, however petitioners have been spirited out of the country, I have concluded to treat the case in practical effect, though not legally, as moot.
Rule 49 of the Rules of the Court were flouted by the Solicitor General and the Army as subdivision (1) provides:
'Pending review of a decision in a habeas corpus proceeding commenced before a court justice or judge of the United States for the release of a prisoner, a person having custody of the prisoner shall not transfer custody to another unless such transfer is directed in accordance with the provisions of this rule. Upon application of a custodian showing a need therefor, the court, justice or judge rendering the decision may make an order authorizing transfer and providing for the substitution of the successor custodian as a party.'
Ex parte Endo, 323 U.S. 283, 306, 65 S. Ct. 208, 89 L. Ed. 243; Jones v. Cunningham, 371 U.S. 236, 243-244, 83 S. Ct. 373, 9 L. Ed. 2d 285.
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