*1 KINSELLA, WARDEN, KRUEGER. Argued May 3, 1956. Decided June No. 713. argued petitioner.
Marvin E. Frankel the cause for Sobeloff, him With brief were Solicitor General Olney, Assistant Attorney Rosenberg General Beatrice and Richard J. Blanchard. Bernays
Frederick Wiener argued respond- the cause for ent. him on With the brief was Adam Richmond. Mr. Justice Clark delivered the opinion Court. *2 Congress, in Article of Mili- (11) the Uniform Code tary Justice, provided has persons “accompanying all the armed forces without the continental limits of United States” and certain named territories shall be subject jurisdiction to the Code if such is authorized under “any treaty agreement or to which the is or United States may party any be a or to accepted rule of international S. C. § law.” U. 552. Pursuant to this article and a subsequent agreement between the and United States Japan,1 Dorothy Mrs. Krueger by gen- Smith was tried portions agreement Relevant of the administrative are: IX
“Article right “1. The bring Japan United States shall have the to into Agreement purposes persons who are members of forces, component, United States armed their civilian and dependents.
“Article XVII Upon coming respect “1. into force with to the States United ‘Agreement Treaty between the Parties to the North Atlantic regarding signed 19, Forces’, Status of their at London on June 1951, immediately Japan, the United States will conclude with at option Japan, agreement jurisdiction on criminal similar corresponding provisions Agreement. of that Pending coming
“2. respect into force to the United Treaty Agreement para- States of the North Atlantic referred to 1, graph the United States service courts authorities shall have right Japan jurisdiction to exercise within over all exclusive may Japan by offenseswhich be committed in members of the United forces, component, dependents, States armed the civilian and their excluding dependents nationality. Japanese who have jurisdiction may any Such case be waived States. United “4. The United States undertakes that the United States service willing try and, courts and authorities shall be and able conviction, against punish Japan all offenses the laws of forces, component, members of the United States armed civilian premeditated for the Japan, Tokyo, eral court-martial in the husband, a colonel of her murder life guilty and sentenced found was Army. She was Her conviction M. R. 350. 10 C. imprisonment. 17 M. Review, C. R. by the Board affirmed M. A. S. C. Military Appeals, the Court Reformatory in the began her sentence Federal serving she Alderson, Virginia. West Women, corpus was for a writ of habeas Thereafter, petition father, respondent her filed on Mrs. Smith’s behalf had alleged that court-martial petition herein. The 2 (11) Mrs. because Article try no Smith *3 Military Justice violates both the Uniform Code VI of the Federal Con- Ill, 2, Art. and Amendment § by jury to trial stitution, guarantee right which Court for a The States District civilian. United alleged dependents may to have be on sufficient evidence and appropriately with Japan, investigate deal and to and committed any alleged by committed members of the United offense forces, dependents, component, and their which armed the civilian may brought Japanese or be their notice authorities which they may place. States further find to have taken The United disposition notify Japanese made undertakes to authorities of arising para- under this United States service courts of all cases give sympathetic graph. consideration to States shall United jurisdiction request of its Japanese a from authorities for a waiver arising paragraph Japanese where the Govern- in cases under Upon importance. particular be of ment considers such waiver to may jurisdiction. waiver, Japan exercise its own such option paragraph to in 1 is not exer- In the event the referred “5. paragraph 2 Japan, jurisdiction provided for in cised following paragraphs in effect. In the event the said shall continue Treaty Agreement has not come into effect within North Atlantic year Agreement, the one from the effective date of this United States request Japanese government, will, reconsider the sub- at the Japan by ject members over offenses committed forces, component, the civilian and their of the States armed 3) (Part 3346, dependents.” 3 UST 3353-3356. District Virginia preliminary Southern of West issued After writ. hearing, included the submission of briefs and unlimited oral dis- argument, writ was charged custody and Mrs. was to the Smith remanded of the expedite 137 F. In order to Supp. Warden. case, the Government determination itself sought appeal certiorari while was before the pending Appeals Court of for the Fourth granted Circuit. We 12, review 986, on March U. because question presented serious constitutional far- its reaching importance to our Armed Forces stationed sixty-three some different countries throughout the world. agree We with the decision of the District Court. entirety, (11), its Art. 2 S. C. provides § that: following
“The persons subject are to this chapter: “(11) Subject provisions of any treaty or agreement to which the or may United States is be party any or to accepted rule of law, international persons all serving with, employed by, or accom- panying the armed forces without the continental limits of the United States without follow- *4 ing part territories: That of Alaska east longitude of seventy-two one hundred and degrees west, Zone, group Canal the main of the Islands, Hawaiian Rico, Virgin Puerto and the . .” Islands . . Mrs. Smith squarely comes within the terms of this provision. a military As she dependent, accompanied had her beyond husband the continental limits the United States. Prior to her they husband’s death together lived in Washington Heights, an American in community Tokyo composed exclusively of American servicemen and their dependents. Japan, at the time offense, of the had ceded to the United States “exclusive all over
474 by members Japan in may be committed
offenses which component, the civilian forces, armed United (Part 3 XVII, . UST . . Art. their dependents concededly to (11) applies 2 Article 3) 3354. Since enact, to Congress power if it was within case question is sole constitutionality provision of that to whether Essentially, we are determine presented. author- an American serviceman dependent of the civilian may constitu- foreign duty him on accompany to ized an court-martial American tionally be tried in that committed country for an offense foreign in a country. governed by the Uniform
Trials court-martial are § 50 U. S. C. 551 Military Justice, Stat. Code carefully seq. et was drawn Code guarantees process, fundamental of due include the provided enlightened system a fair and operation in has justice. However, required courts-martial are courts; there- provide protections all of constitutional to trial try by court-martial civilian entitled fore, III of the Constitution. in an Article court is violation Quarles, Accordingly, Toth 11. our first v. U. S. question is directed to the as a matter inquiry whether, an right, of constitutional American citizen outside limits of the States and continental United an Article III foreign country is entitled trial before in that country. court for offense committed determination, are making this we not faced with question operative, “whether the is Constitution self-evident, provision is but whether the relied applicable.” Entirely aside from Con- Bidwell, Downes v. concurring Mr. 182 U. Justice White States, See Dorr 138. “The Dorr v. Case U. S. opinion majority, shows that of Mr. Justice White of the Bidwell, Downes Taft, has become settled law court.” *5 Rico, in Balzac v. J., Porto 298, C. 258 U. S. 305.
475
gress under Article III
Constitution,
it has been
well-established since Chief Justice Marshall’s opinion
Canter,
American Insurance Co. v.
1 Pet.
511,
Congress may
legislative
establish
courts outside the ter-
ritorial
proper.
limits
The procedure
United States
in such tribunals need
comply
not
with the standards
prescribed
Constitution
Article III
courts.
arising
cases
from Hawaii,3 the Philippines,4 and Puerto
Rico,5 this Court has recognized the power
Congress
system
to enact a
of laws
did
provide
not
for trial
by jury. By 1922
regarded
it was
as “clearly settled” that
provisions
jury
Article III
Sixth and Sev-
enth Amendments
not apply
territory belonging
“do
to the United States which has
been incorporated
into
Rico,
the Union.” Balzac v. Porto
258 U. S.
304-305.
In an
case,
earlier
this Court had sustained the consti-
tutionality of an
Act of
which created consular
pursuant
courts to try,
treaties, American citizens
China,
crimes committed
Japan,
and other countries.
Ross,
In re
consul Corp., in Ex Bakelite parte citing approval Ross with that the doctrine reaffirmed 438, 451, this Court S.U. within . their functions courts . . exercise “legislative invested territory and are foreign in particular districts citizens American jurisdiction of over a measure large Congress to create authority of The in districts. those jurisdiction has them with such to clothe them and These recognized.” and well by this Court upheld been that the Constitution beyond question establish cases III court an Article require trial before does not by an Amer- committed there for offenses foreign country may legislative that establish Congress ican citizen and purpose. courts this of the circumstances
Having determined one may legislative court estab- Mrs. Smith be tried before examine the Congress,6 lished we have no need to for the “To make Government Congress of Rules under Regulation of land and naval Forces” If it is reasonable and Article I the Constitution. process Congress employ due consonant with existing system purpose, of courts-martial for this enactment must be sustained. present day, we, Nation, as have found
necessary preservation security our to maintain sixty-three foreign American forces some countries. practical necessity men allowing to be entirely Quarles, respect In this case is different from Toth supra, discharge military defendant, where the from after service country, and return to this was entitled before an III to trial Article court, expansion and we found “no excuse for new of court-martial jurisdiction expense constitutionally prefer at normal and system by jury.” S., able at In Toth we of trial 22-23. (a) Military found that Article 3 Uniform Code of Justice “necessarily up encroaches federal courts set S., under Article III of Constitution.” 350 U. at 15. No like present constitutional bar exists in the case. possible
accompanied their families where has been recognized by services, as well been the creation of American communities of result has population through- mixed civilian at bases substance, out the In all world. matters the lives *7 military personnel geared and civilian alike are to the military local organization provides living accommodations, transportation medical facilities and from and to the United States. could not find it We Congress unreasonable to conclude that all should be governed by legal they the same standard to end that receive equal treatment under law. The effect of a double might standard well create sufficient unrest and confusion result the destruction of effective law enforcement.7 By the enactment of of (11) Article the Code, Congress has provided that all subject system shall be to the same justice and that military commander who bears full responsibility for the and safety care of those civilians attached his command shall also have authority to regulate their conduct.
It was conceded before this Court that could have established, might yet or establish, system a territorial or consular courts try offenses committed only One need disruptive establishing consider effect of legislative type another court to deal with the same offenses in military same territorial as the tribunals. In cases of conspiracy joint crime, or parallel trials would have to be held in separate proceed courts. Since the time, trials could not at the same necessity one precede would of other, influence and results understandably disparate. problem could be insignifi Nor is the proportions. cant figures Reliable show that our Armed Forces accompanied by overseas approximately quarter are a of a million dependents Figures relating Army civilian workers. alone years July show that in the 1, 1949, 30, 1955, 6 fiscal from to June 2,280 total of civilians were tried courts-martial. it is While majority true prosecutions that vast of these were for minor offenses, problem the volume alone shows the serious that would be presented by system administration a dual of courts. within would be abroad. While dependents civilian Ross, nothing clearly supra, In re Congress, power of to create power it. compels the Constitution but must preclude, court does or consular territorial for trial before power provide necessarily include, the clearly is “so that alternative unless tribunal reasonably acting legislators capricious or arbitrary necessary or appropriate believed could not have among types different The choice public welfare.”8 peculiarly within tribunals is legislative 438, 451, Bakelite parte Corp., Ex Congress, constitutionality, not the are we concerned of this wisdom, choice. Justice, Con- Military Code of selecting the Uniform
gress might sought potentially have to avoid needless and already legal system of a extant duplication harmful *8 every foreign troops nation are stationed. On where our Congress could well have determined that hand, the other adequate purpose was to be achieved and Code any more to an than safeguards would afford accused procedure. sys- is a uniform other available Code any applicable beyond tem consti- legal procedure, tutional to all servicemen stationed abroad. It question study adopted by Congress only was after an exhaustive years of several duration and the consultation acknowl- in mili- edged authorities the fields constitutional and tary process, law.9 addition to fundamentals due protections has required includes which Court 10 provide procedures to and some which would State 8 Baking Bryan, dissenting Mr. in Burns v. Justice Brandéis Co. 264 U. S. 9 Hearings See Before a Subcommittee of the Committee on Armed (1949). Services, Representatives, Cong., House of 81st 1st Sess. 10 g., self-incrimination, compare T149b, 172b, E. Art. 31 and Courts-Martial, California, v. Manual for with Adamson 332 U. S. 46; jeopardy, compare former Arts. and 63 with Palko v. Con- compare favorably with the most advanced criminal codes. find no constitutional We defect the fact that the Code provide does not by grand jury indictment or trial by petit jury. respects In these it does not differ from procedures specifically approved this Court other types legislative courts by Congress. established abroad Ross, Mankichi, In re v. supra; Hawaii S. 197; U. States, Rico, Dorr v. United 138; Balzac v. Porto supra.
Furthermore,
principles
since under the
of interna
tional
law
each nation has
of the offenses
committed within its own territory,
Exchange
Schooner
McFaddon,
116, 136,
Cranch
the essential choice
involved here is
between
American and a foreign
trial. Foreign nations have relinquished jurisdiction to
American
pursuant
carefully
authorities
agreements
drawn
presuppose prompt
trial by
authority.11
existent
juris
Absent the effective
exercise
diction
obtained,
thus
there is no reason to suppose that
the nations
sovereign
involved would not exercise their
right
try
punish
for offenses committed within their
borders.
circumstances, Congress may
Under these
well
have determined that
trial before an American court-
martial
which the
process
fundamentals of due
are as
sured
preferable
leaving
was
American servicemen and
dependents
throughout
subject
the world
widely
standards
varying
justice
unfamiliar
people.12
to our
*9
necticut,
319;
illegally
302 U.
evidence, compare
use of
obtained
¶152,
Courts-Martial,
Colorado,
Manual for
Affirmed. completely suggestion might was well have concluded that country impractical. First, precedent to trial in this a condition foreign of the nation in each indi- would be consent concerned likely always be case. This consent could withheld and vidual foreign over serious nations would refuse to cede away. many might thousands of miles offenses when trial be held obtained, effect of such jurisdiction was the deterrent Even where delay might prosecutions be the distance and well vitiated Secondly, would both the and the accused involved. Government Depositions problems production in the of witnesses. face serious permitted Rule for the are not in criminal cases. See Government foreign wit- Rules of Attendance Federal Criminal Procedure. voluntary testimony and the of no nesses could be on a basis foreign government his compelled be if the witness or witness could expense transporting be refused. The witnesses would consider- probably impossible defendant, for a able for Government may wit- depend on the demeanor of one whose successful defense expense fairness, the Government would have to bear ness. transporting own, as its and the defendant's witnesses well possibilities of abuse are obvious. figures
Finally, trial a breakdown of the courts-martial 2,000 2,280 1950-1955 shows that some civilians abroad from punishment the maximum was cases tried involved offenses for which might undergo unwilling be six months or less. The Government heavy expense of trial here for such minor and inconvenience foreign be either trial coun- offenses. The alternatives would practical try all; or no trial at the result must be abdication judicial authority, precisely wished to American what avoid. *10 of Mr. Reservation Justice Frankfurter.† today B. The Court sustains Mrs. Clarice Covert’s general England a in for the conviction court-martial her in husband, sergeant murder of a the United States Force, Dorothy Krueger Air and the conviction of Mrs. by general Japan for Smith court-martial the murder Army. husband, her colonel so, The does “we have although Court announces that no need to examine the ‘To make Regulation Rules Government and land I and naval Forces’ under Article of the Constitution.” plain from this is that inference the Court is prepared support upon the constitutional basis which the Covert and courts-martial Smith were instituted and the convictions were secured. of Military
The Uniform Code Justice governed and proceedings, arrangements the international England Japan whereby the United States was allowed to over alleged crimes, exercise are concerned with, explicitly directed ac- toward, knowledged legal as in, measures that had their source obviously and were be an of, exercise the constitutional power of Congress “To make Rules for the Government Regulation pro- of the land and naval As Forces.” vided Military Justice, Mrs. Uniform Code though they Smith and Mrs. Covert were tried as were members of the Armed Forces. In view of this Court’s opinion Quarles, in Toth v. and the fact U. S. “clearly Constitution distinguishes the from the civil class separate communities” and “rec- ognizes no part third class which is part civil and mili- tary military a particular or purpose particular — applies Covert, post, This reservation also to Reid v. †[Note: p. 487.] *11 other purposes other and all for all situation, and civil and Prece- ,” Winthrop, Military . . Law situations . to rest its 145, the Court’s failure (2d 1896), ed. dents power “To make Rules upon congressional the decision of the land and naval Regulation the and Government significant. Forces” imme
Having put out of consideration reliance on the diately provision bearing on the pertinent constitutional by cases, the difficulties raised the Court sustains argument obviously have by two lines of that convictions regulation of the Armed nothing whatever to do with In re relies on States. The Court Forces of United historically and Ross, represents, a case that 140 U. juridically, episode past of the dead about unrelated today shay is to the latest as the one-hoss world jet disregard political and airplane. complete purporting to render women like Mrs. Smith legal sources amenable to courts-martial and Mrs. Covert the Court draws on abroad, crimes committed whereby countries, in capitulations Western system of compelled powerless Eastern cluding States, the United authority and to surrender over Asiatic nations conduct within their confines citizens of these Western nations to courts.” The the rule of Western “consular yield Eastern nations were made because “of bar punishments barous and cruel inflicted those coun use torture to enforce confession tries, frequent and Ross, supra, from . . . In re at 463. parties accused .” arrangements by which Great suppose I do not Japan Britain gave United Mrs. the murders Mrs. over with which Smith wrung charged were are to be deemed concessions Covert capitulations wrung, States as were other by force, Empire often from the Ottoman they Eastern nations because were deemed inferior the West, long ago away.* and far
The Court derives its argument second line of from the decisions this Court which have evolved the territory acquired by deal with purchase or through war, beginning with the statute of up set government of Florida. See American Insur- Canter, ance Co. v. inability Pet. 511. I confess must to appreciate bearing complicated of the series of *12 adjudications dealing relating with the difficult problems “organized” to and “unorganized” territories of the United by legislation Congress treating to civilians accompanying members of the Armed Forces abroad as they though part were of the Armed Forces and therefore amenable to the of Military Code Justice. affecting
Grave issues the of status American civilians throughout they the world are raised by cases; these are graver by arguments made on which the Court finds necessary rely it to in reaching its result. Doubtless pressure because of the under which works the Court during its closing weeks, arguments have been merely opinion. adumbrated its adequately To deal them, demands of however, they those to whom are persuasive more than time has been exam- available to opinion, Attorney Cushing:
*See General Caleb legal treaty China, stipulations “The rationale of the as to with which chiefly concerned, legislative we are now and their relation to the authority States, explained dispatch of the are United in a of the Min- negotiated ister treaty, who as follows: “ general T entered China with the formed that conviction ought foreign any state, any United States not to to concede under circumstances, liberty over the life and of a citizen States, foreign family unless that our state be of own nations, word, Op. Atty. a a . .”’ 7 Christian state. . Gen. —in 495, 496-497. underpinning the historical analyze detail
ine and to Court, upon by relied of the cases implication critique a of their relevance searching preliminary a moment, For problems now before the Court. re- way example, indicate suffice, by must torn from its historical to In the Court has sorting re Ross a court —that had consular context institution —the purpose totally different totally different source and (11) of Art. Uniform purpose than the source and A Military glimpse 64 Stat. Justice, Code political assump- into the international environment system tions out of which the consular court derived part scope of which it was suffices indicate the inquiry opinion Court’s calls. Such for which the afforded.by justification for glimpse is consular courts urged years ago. Government this Court placed Reliance was on this authoritative view Secre- tary of State Hamilton Fish: report Congress my
“A made to Mr. predecessor, . . . it has Seward shows that been the habit of *13 Department judicial regard of our resting upon Japan consular officers as of the kingdom, assent Government of that whether by expressed acquies- formal convention or tacit cence in the notorious of the consular courts. practice words, they In other were esteemed in the somewhat if light they same as were they would have been constituted the Mikado with American citizens judges, authority as and with all the with which Japanese respect tribunal is invested to the native subjects of Japan, to the extent that our Government extremely will admit a understood to be arbitrary. They were, speak, agents so to of a depotism [sic], only safeguards restrained such may interpose for the protec- our own Government sway.” come within its Brief for tion citizens who Ross, in In States, p. 25, re 140 U. S. for the task of required primary Time analyzing in detail the materials on which the Court required adequate equally upon relies. It is reflection of these meaning bearing materials and issues before the a slow process. now Court. Reflection is good Wisdom, wine, requires maturing. like Moreover, judgments this Court are collective judgments. They neither performances are solo nor debates two each of has mind sides, between its quickly up made judgments then closed. The of this Court presuppose full consideration and reconsideration by all of the reasoned adequate views each. Without study there cannot adequate be reflection. Without adequate reflection be adequate there cannot deliberation and discussion. And without cannot these, there be that full interchange of minds indispensable which is to wise decision persuasive and its formulation.
The circumstances being they are, what I am forced, regret as I deeply it, to reserve a later an expres- date my sion views. Warren,
Mr. Black, Chief Justice Mr. Justice Douglas dissent.* Mr. Justice The decisions just announced have far-reaching impor- They subject tance. court-martial, even in time wives, peace, mothers and children of members serving Armed Forces though abroad even dependents have no connection whatever with the Armed except Forces their kinship military personnel and their *14 presence questions abroad. The raised are complex, Covert, post, p. also to Reid applies This dissent
*[Note: 487.] drastic, consequences far-reaching upon and the remedy given powers the lives civilians. new thought not hitherto consistent our scheme government. reasons,
For these we need more time than is available days of the Term in closing which to write our dissenting during file our views. We will dissents next Term of Court.