*1 WARDEN. PARKER, O’CALLAHAN 2, 1969. June January 23, 1969. Decided Argued 646. No. *2 Victor Rabinowitz argued the cause and filed briefs petitioner. James vanR. Springer argued the cause for respondent. With him on the brief were Solicitor Griswold, General Assistant Vinson, General Attorney Rosenberg, Beatrice and A. Roger Pauley. Douglas
Mr. opinion delivered the Court.
Petitioner, then a sergeant in the United States Army, was in July stationed 1956, at Fort Shafter, Oahu, the Territory of Hawaii. On night July 20, while an evening on pass, petitioner and a friend post left the dressed civilian clothes and went into Honolulu. few After a beers in the bar of a hotel, peti- tioner entered the part residential of the hotel where and assaulted girl young a room into
he broke room from her fleeing her. While rape attempted a hotel apprehended he was Beach, Waikiki onto city Honolulu him to delivered who security officer was a he determining that After questioning. police city рolice delivered Forces, the Armed member inter- extensive After military police. to the petitioner placed was confessed petitioner rogation, confinement. house- rape, attempted charged with
Petitioner rape, in violation intent with and assault breaking, Code 134 of the Uniform of Articles con- court-martial, tried He was Military Justice.1 years' of 10 a sentence counts, given all victed *3 and pay of all labor, forfeiture hard imprisonment (10 Military S. C. U. of Code the Uniform 80 of Article 880) part: provides § offense under commit an specific intent to “(a) act, done with An tending, preparation and mere amounting to more than chapter, this attempt commit commission, is an to though failing, effect its to even that offense. attempts chapter commit subject who to Any to this “(b) person punished a court- by chapter this shall be any punishable offеnse prescribed.” specifically may direct, unless otherwise martial 930) provides: (10 U. S. C. Article § unlawfully chapter who enters “Any person subject to this to commit criminal with intent a structure of another building or housebreaking punished as a guilty and shall be of therein offense may direct.” 934) (10 provides: C. U. S. Article § chapter, disorders specifically in this all “Though not mentioned good discipline in prejudice order and of neglects to the bring upon the of a nature to discredit forces, all conduct armed persons capital, offenses not forces, and crimes and armed cognizance guilty, be taken chapter be shall subject to this summary according to by general, special, court-martial, punished degree offense, at the and shall nature of that court.” discretion
<N CO allowances, discharge. dishonorable His conviction by Army affirmed Board of Review and, subse- quеntly, United States Appeals. Court Under confinement at the United Penitentiary States at Lewisburg, Pennsylvania, petitioner filed a petition writ habeas corpus the United States District Court for the Middle District of alleging, Pennsylvania, alia, inter that the court-martial was jurisdiction without try him for nonmilitary offenses off-post committed while on an evening pass. The District Court denied relief without considering the issue on the merits, and the Court of Appeals for the Third Circuit affirmed. This Court granted certiorari limited to the question:
“Does a court-martial, held under the Articles of
War, Tit. 10, U. S. C. 801§
et seg.,
have
try
a member of the Armed Forces who
charged
with commission of a
cognizable
crime
in a civilian
having
court and
no
alleged
significance,
to have been committed off-post and while on leave,
thus depriving
him
his
rights
constitutional
indictment
grand
jury
trial
a petit jury
in a civilian court?”
for the Government and Regulation of the land and naval Forces,” I, Art. § cl. and it recognizes that exigencies discipline require the existence *4 of a special system of military courts which not all of the specific procedural protections deemed essential in Art. Ill trials apply. need The Fifth Amendment specifically exempts arising “cases in the land or naval forces, or in the when Militia, in actual service of War or public danger” from the requirement of prose- cution indictment and, inferentially, from the right by jury. to trial (Emphasis supplied.) See Ex parte Quirin, 317 U. S. 40. The result has been the estab- military justice of system of development and
lishment in the practices from differences with fundamental civilian courts. forces,” or naval “in land not arise does
If the case indictment of an benefit first, the gets then accused civil- before a second, by jury a trial by grand jury Amendment Sixth by the guaranteed ian court аs in part: provides which the Constitution of Ill, 2,§ Art. Im- of except Cases Crimes, Trial of all “The Trial shall by Jury; and shall be such peachment, shall the said Crimes State where be held committed but when not committed; have been such Place Trial shall be at any State, within have directed.” may by Law Congress as the or Places in the constitutional stakes rights are the Those civil Quarles, in Toth v. wrote we litigation. What present emphasis: 17-18, is worth S.U. or history in the constitutional nothing find “We them which entitles tribunals treatment adjudicators III courts as with Article along to rank with people charged innocence of or guilt deprived of their they can be offenses for which Unlike it is the property. courts, liberty life, fight of armies and navies primary business the occasion arise. fight wars should ready be discipline merely to maintain But trial soldiers primary function. army’s fighting incidental responsible performance that those To the extent are diverted from it function primary of this cases, fighting necessity trying basic conceding served. And of armies is not purpose high degree honesty personnel nearly undoubtedly all them justice sense remains true that tribunals it still have, never probably can constituted not been have can have the they same kind way in such *5 es- has deemed the Constitution qualifications courts. in federal of civilians sential to fair trials life provide not does instance, For the Constitution functions judicial performing tenure for those appointed by They trials. are Nor at will. commanders be removed may it does protect does the Constitution their salaries toward judicial have been made salaries. Strides the will subject less making courts-martial supervises department appoints, the executive very But from ultimately controls them. independence more nature of courts have things, do than people life passing liberty on the military tribunals. between difference
“Moreover, great there is a members of trial and trial selected by jury military personnel true military forces. It is experience of their training because for infractions especially competent try soldiers par- is no doubt training rules. Such against important charged where an offense ticularly military, such as disobedience purely a soldier is right etc. But whether order, leaving post, premise underlying constitutional wrong, in federal determining guilt method for innocence specialists to is that are better than laymen courts idea inherent perform this task. This by jury.” institution of trial jury of the defend- tried, A court-martial by a but unanimously, which must decide peers ant’s vote. empowered to act two-thirds panel officers2 Military Justice, 10 (c) Art. 25 of the Uniform. Code of Under court- (c), C. 825 at leаst one-third the members U. S. § required if trying man men martial an enlisted to be enlisted requests personnel in the court- accused that enlisted be included e., i. usually only practice personnel, In martial. senior enlisted *6 judge not a is a court-martial officer at presiding The by protected independence objectivity whose by the nurtured salary and tenure undiminishable Sub- military a law officer.3 is but judicial tradition, apply procedure rules of evidence stantially different differences, from those Apart in trials.4 actions on the possibility of influence suggestion of the it, who convenes selects by the officer court-martial of the who sides, on both and the counsel its members over its members authority command has direct usually strenuous military law, despite one pervasive is a danger.5 eliminate the efforts to officers, United States v. Craw are selected. See noncommissioned 3, to file 31, 35 M. R. motion leave ford, 15 C. M. A. C. U. S. generally Schiesser, denied, 970. See petition 380 U. S. for certiorari Courts-Martial, 15 on Catholic Enlisted Members Peers: Trial (1966). 171 ü. L. Rev. 3 tried, general petitioner a court-martial was At was required officer,” presided “law who to be a member over a duty Judge bar and Advocate General of the certified (a). M. The “law officer” could be a law officer. U. C. J. Art. authority. convening of the Manual for Courts- a direct subordinate ¶4g (1). Military States, 1951, Justice Act Martial, United “military judges” system 1335, establishes a 82 Stat. possible presiding officer of a intended to insure that where directly military judge, professional will be a authority. convening to the subordinate court-martial, example, For a the access of the defense to obtaining is, compulsory process for evidence and witnesses to a approval prosecution. significant extent, deрendent on the Harvey, 25 M. United States 8 U. S. C. M. A. C. R. approving Courts-Martial, States, 1951, 115a. Manual for United ¶ Right to An Melnick, The Defendant’s Obtain Evidence: Exam See (1965). Military Viewpoint, 29 Mil. L. Rev. ination g., Hearings Rights on See, e. the cases listed Constitutional Rights on Personnel before the Subcommittee Constitutional Judiciary pursuant on the of the Senate Committee S. Res. No. Sess., Cong., (1962), 2d 780-781 in each of which the 87th Military Appeals reversed court-martial Court of convictions ground of excessive command influence. instrument independent yet is not A court-martial specialized a degree a significant remains to justice but discipline by of the overall mechanism part preserved.6 proceed- courts, system specialized That in the obtaining from those ing by practices different defend- favorable to less general courts and regular estab- national defense to an effective ants, necessary for such justification But the deny. few would lishment, military, and special needs of the rests on the system military discipline expansion history teaches *7 it threat carries with a proper its domain beyond genuine need mindful of the liberty. Court, This propriety recognized their military courts, has special Wilson, g., Burns v. e. appropriate sphere, in their jurisdiction, of their examining in the reach but U. S. recognized it has lurking in trials dangers are
“There Rights Bill by the of sought to be avoided were of Free countries III of our Constitution. Article military tribunals to tried to restrict the world have absolutely essen- deemed narrowest among troops active maintaining discipline tial to service. . . .
“Determining
scope
of the constitutional
trial
Congress
to authorize
power
calling for limitation
another
instance
presents
pro-
the end
adequate to
possible power
‘the least
”
Quarles,
22-23.
Tоth v.
350 U. S.
posed.’
Appeals
cognizance
takes
While
Court
who are
accused
rights
of some constitutional
as an institution
courts-martial
court-martialed,
with the nice subtleties
inept
dealing
singularly
punishes
134, already quoted,
law. Article
constitutional
Covert,
354 U. S.
36.
Reid v.
See
prejudice
neglects
a
“all disorders
as
crime
Does this
discipline in the armed forces.”
order and
good
developed by vagueness
satisfy
standards
say
that a court-martial
enough
courts?
It is not
civil
appeal.
of the benefits of a
be reversed on
One
may
of Article 134
trap
trial
is
civilian
declaratory judgment proceeding
other-
avoided
Pfister,
A
wise.
Dombrowski
As stated: “None travesties perpetratеd really very under the surprising, UCMJ always law has been and pri- continues to be marily an instrument of discipline, justice.” Glasser, Captain Justice and Levy, Columbia Forum (1969). petitioner mere fact that was at the time of his
offense and of his court-martial on duty active Armed dispose Forces does not automatically of this prior case under our decisions.
7 sobering impact military justice For of accounts of so-called rights Hearings on civil of members of the Armed Services see on Rights Military Constitutional of Personnel before the Subcommittee Rights on of Judiciary Constitutional the Senate Committee on the pursuant 260, to S. Cong., Sess., Res. No. 2d 21, 87th 20 Feb. 1, 2, 6, 9, 12, 1962; March Hearings Joint before the Subcom Rights mittee on Constitutional of the Senate Committee on the Judiciary Special and a Subcommittee of the Senate Armed Services Committee, Cong., Sess., 89th 2d al., 1, on S. 745 18, et Pt. Jan. 19, 25, 26, 1, 2, March newly and Pt. 2. For a Military enacted Justice Act see 82 Summary- Stat. 1335. And see Report Hearings Rights of Constitutional Personnel, by the Rights Subcommittee on Constitutional of the Senate Com pursuant Judiciary, mittee on the S. Res. No. 88th Cong., (1963) (Comm. Print). 1st Sess. court-martial held in á series of decisions that
We have person not any extended to reach jurisdiction cannot be Armed the times both Forces at member cannot discharged soldiers Thus, offense and the trial. in service. committed while be court-martialed offenses Quarles, 11. neither civilian Similarly, Toth S. v. U. McElroy v. overseas, of the Armed Forces employees Hagan, 361 S. Guagliardo, 281; S. Grisham v. U. 361 U. military personnel ac- dependents of 278; nor civilian Singleton, Kinsella v. them companying overseas, Covert, may be tried Reid v. S. 234; S. U. U. court-martial. juris- no have decide that courts-martial
These cases Armed try who are not members diction to those between the connection no matter how intimate Forces, military discipline. and the concerns their offense Government us draw cases, From invites these that the accused that once it is established conclusion relationship lack of Forces, is a member the Armed is interests offense and identifiable between the jurisdiction of a court-martial. irrelevant to the no over jurisdiction fact that courts-martial have necessarily offense, whatever their does nonsoldiers, soldiers, over they have unlimited imply that charged. of the offenses Nor regardless nature suggest any interpreta- such cases of this Court do the emphasizes that these deci- The Government tion. Singleton Kinsella especially —establish sions— is a liability question to trial court-martial in the the accused “status” —“whether regarded falling can proceeding person who ” S., naval within the term ‘land and Forces.’ U. in- merely beginning of the 241. But jurisdic- necessary not its end. “Status” is quiry, but it does not follow that ascertainment “status” tion; *9 inquiry, regardless nature, time, of the completes of the offense. place the American Revolution prior to England
Both com- history military trial soldiers own national our suspicion.8 has been viewed with civilian offenses mitting important were an power court-martial Abuses of the English in the con- forces grievance parliamentary of the century. The resolution of the 17th stitutional crises acceptance William that came with the conflict Bill in 1689 which established Mary Rights of the would have the Parliament, Crown, not the in the future, of courts-martial. power jurisdiction define the century conflict over the c. 2. The 17th M., 2, W. & Sess. of the role of courts-martial the enforcement proper merely dispute however, law was not, domestic criminal It also organ government jurisdiction. ovеr had what disapproval general use involved substantive ordinary courts for trial of crimes.9 possessed in the Parliament, power last final subject renewal, to annual matter, quick authorize, standing army give authority and to maintenance of closely for trial of certain crimes related court-martial military discipline. power But Parliament’s new over only very sparingly courts-martial was exercised to ordain over acts which were also jurisdiction offenses mutiny first of the acts, at common law. The annual general W. & c. set the tone. It established the M., rule
“noe Man of Life forejudged Limbe, subjected any punishment by kinde of Martiall scope The record of historical concern over extensively opinion in Mr. Black’s reviewed Justice Covert, in Reid v. plurality for a Court 354 U. S. 23-30. also, Vogel, Standing Army: See Duke & The Constitution and the Jurisdiction, Another Problem of Court-Martial 13 Vand. L. Rev. (1960); Wiener, 441-449 F. Civilians Under (1967) (hereinafter Wiener). cited as Covert, Reid See 354 U. S. 23-26. *10 any by Judgement in manner
Law or other than the according of his Peeres and to knowne Established Laws this Realme.” only proceeded grant jurisdiction courts-martial And it sedition, In all re- mutiny, over and desertion. other military personnel to the spects, subject were to be “Ordinary Processe of Law.” jurisdiction military of British courts-martial over
The which were also common-law felonies was from offenses time to extended,10 but, exception with of one year,11 any general military there was never try ordinary in soldiers for committed crimes British Isles. in was, therefore, It rule Britain at the time of the American Revolution a soldier could by not be tried court-martial for a civilian offense com- Britain; in required mitted instead officers were energies to use and office insure their that the accused soldier would be tried before a civil court.12 Evasion
10See Wiener c. 1. 11 Mutiny provided The Act of c. a soldier Geo. “any Capital any Crime, could be or court-martialed . . . Person, against Estate, Property any Violence Offence Subjects Kingdom, by punishable of the known this days eight Laws the Land” unless the civil authorities within the offense demanded that the accused soldier be turned over to them Army for trial. In November the law officers of the relied on provision Mutiny give opinion this new Act to that it was try proper ordinary in soldier Scotland—where civil courts were functioning by for an offense which would have been — prosecuted if murder the civil courts. See Wiener 245-246. The very year perhaps response ruling, next to that Wiener 14— — provision reappear. eliminated and did not The 1721 Act provided and its successors trial of common-law crimes only ordinary Prichard, where civil courts were unavailable. See Army Abroad, 232; Act and Murder 1954 Camb. L. J. Wiener 14, 24r-2S. produce Failure to a soldier for civil trial was offense g., 1765, 11, the officer concerned. E. British Articles of ofWar § committed crimes principle that erosion pro- regular judicial according to be tried should soldiers any available, were courts, if military, civil, cedure American protested among grievances were Colonists.13 the British model.14 practice followed
Early American of war articles Congress, enacting The Continental *11 military authority importance of emphasized in the who committed crimes that soldiers cooperating to insure clear from the context brought justice. But it is were reprinted Winthrop, Law and Precedents in W. Art. (hereinafter (2d reprint) *1448, *1456 cited ed. Winthrop). Covert, 1, 27-28 and 49. Reid v. 354 U. S. n. See large a number of courts-martial In brief lists its the Government very early days which it claims indicate that in the of the Nation period. The military common in that triаl for civil offenses was are cases, in brief summaries which facts of the as reflected the every us, suggest In almost case available to no such conclusion. military summarized, appears special interest existed. that some it Many desertions, on and peculiarly are assaults crimes— stealing government soldiers, property. thefts from other While Revolutionary felonies, by might time of those acts also be distinctively long such as these had been defined as War offenses Many Mutiny in the Acts. of the remainder crimes abusing military position by plundering identifiably prosecutions for duty. Many population abusing on of civil its women while stealing in which the offense is or assault on the other cases especially perhaps also, of this sort where the individual were victim simply of is referred to as “inhabitant.” Most the rest recite the give judging relationship offender and the offensе and no basis military discipline. appear Those few which do of the offense to clearly settings appear civilian to involve civilian crimes also to century In have been committed officers. the 18th at least the thought give specific military “honor” of an officer was connec military significance. Moreover, to a crime otherwise without tion held between 1773 and 1783 were for all those courts-martial the trial and, given pattern fighting in wartime acts committed operations. days, in immediate those theater provision it expected enacted that it the trials would civil “general be courts.15 The which article,” punished not all capital, crimes “[a] disorders neglects, officers and guilty soldiers of, to the prejudice good order discipline, though not mentioned the foregoing articles war,” was interpreted to embrace only crimes the commission of which had some impact direct military discipline. Winthrop *1123. practice While altogether consistent, during the 19th century court-martial con- victions for civil ordinary crimes were from time aside set the reviewing authority on the ground charges only recited violation general criminal law and failed to state a military offense. Id., *1124, nn. 88.16
During the Civil War, Congress provided for military trial of certain civil offenses17 regard without to their effect on order and discipline, but the act applied only “in time of war, insurrection, or rebellion.” Act of 3,Mar. 1863, c. 75, § *12 12 30, 736; Stat. Rev. Stat. § 1342, (1874). 58 Art. In 1916, the eve of World I,War Articles of War were revised, 39 650, Stat. provide to for military trial, even in peacetime, of certain specific civil- 15 War, 1776 Articles of 10, 1, reprinted Art. Winthrop § in *1494. parte Mason, Cf. Ex 696, 698, U. S. in Court, which the a sustaining conviction, court-martial general under article, military guard of a who prisoner, killed а said, hooting with “[s] intent to kill crime, is a civil shooting by but army a soldier of the standing guard over a prison, with prisoner intent kill to a confined therein, only against is not a society, crime but an atrocious breach discipline.” 17Larceny, robbery, burglary, arson, mayhem, manslaughter, murder, battery assault and with kill, wounding by intent to shooting or stabbing with an intent murder, to commit rape, or assault and battery with an intent rape. commit Rev. Stat. 1342, Art. 58 § (1874). “subject by persons committed crimes ian modified was 96, Art. article, general and the law” not or offenses “all crimes military trial provide Military Justice Code Uniform 1950, In capital.” well. capital crimes military jurisdiction extended under crime to that concluded haveWe arising “cases lest connected, service must be when Militia, or in the forces, naval or in the land as used danger,”18 public or of War in time service actual phrase “when times, that the at various suggested, It has been be read to danger” public should or of War in time service in actual “arising in the land all cases jury grand indictment a require is the defendant except when Militia,” in the forces, or or naval decided at danger.” It was public or time War in “service only modifies clause the above however, that very early date, indictment accepted is that rule generally Thus, the “Militia.” or naval arising in the land necessary “in cases jury never grand is except when militia, members necessary for but is forces” of the United actual into the Service “called they have been Const.) “to Laws execute §2, S. (Art. II, U. States” §8, I, Art. repel Invasions.” suppress Insurrections Union, S. Const. U. public in time war 'actual service as to “The limitation Mason, S. parte 105 U. Ex only militia.” to the danger’ relates 186; v. Kurtz Whitney, 116 U. S. v. Smith also 701. See Hoover, How. 65. Dynes 500; v. Moffitt, 115 S.U. Navy in which a case Sayre, 158 U. S. Johnson conviction corpus from his sought habeas paymaster entitled to by arguing he was peace in time of embezzlement by grand jury: indictment upon the construction based below is “The decision refer, danger’ public of war in actual service 'when
words militia,’ also to the antecedent, but ‘or in the merely to the last That construction or naval forces.’ clause, 'in land previous meaning opposed evident to the possible. But it grammatically *13 so, it is itself, more when by and still provision, taken of the Constitution.” provisions together the other with considered Willingham, Supp. 901 Thompson 217 F. Id., And see at 114. Cir.). (C. A. 3d aff’d, 2d 657 Pa.), 318 F. (D. D. C. M. in the Fifth Amendment, expanded be deprive to every member of the armed services of the benefits of an indictment a grand jury a trial jury his peers. power of Congress to make “Rules for the Regulation Government land and naval Forces,” I, 8,§ cl. 14, Art. need not sparingly read preserve order to those imрortant two constitutional guarantees. For is express it assumed that an grant of general power Congress is to be harmony exercised in express with guarantees of the Bill of Rights. We were advised on oral argument that Art. 134 is construed the military give power it try a member of the armed services for income tax This evasion. article has been called “a catch-all” that “incorporates every almost Federal penal statute into the Uniform Code.” R. Ev- erett, Military the Armed Forces United (1956). States 68-69 The catalogue put of cases within reach of the military indeed long; way we no see of saving to servicemen and in any servicewomen case the benefits of indictment and of by jury, trial if we conclude that this petitioner was properly tried by court- martial.
In the present petitioner case was properly absent from his military base when he committed the crimes with he is charged. There no connection— not even the remotest one—between his military duties and the in question. crimes The crimes were not com- mitted on military post or enclave; nor person was the whom he attacked performing any duties relating military. Hawaii, Moreover, of the crime, situs not an armed camp under military control, as are some of our far-flung outposts.
Finally, peacetime we deal with offenses, not with authority stemming from the war power. Civil courts open. were The offenses were committed within our terri- limits, torial not in the occupied zone of a foreign coun- *14 any question involve not did try. The offenses military security of a the military authority, flouting of military property.19 integrity or the post, petitioner’s since decided that accordingly have We not be tried he could connected, not crimes were service thе entitled to trial but rather by court-martial courts. civilian
Reversed. Harlan, Justice Stewart whom Justice Mr. Mr. White dissenting. join, and Mr. the the Constitution and
I terms of consider that sustaining court- clearly to precedents point in this Court largely The Court’s in this instance. martial and competing individual discussion of the one-sided upon reliance governmental interests and its stake, fall wholly data, what historical are at best inconclusive contrary far supporting short of conclusion I sum, has reached. In think that majority good Winthrop commenting phrase prejudice in on the “to the military discipline” predecessor order a article to Article said: crime, therefore, cognizable
“A to be a court-martial under Article, this must have been committed under such circumstances as directly against government discipline to have offended military robbery state. Thus such crimes as from or of an theft officer, soldier, trader, post camp-follower; forgery or name officer, manslaughter, kill, mayhem, assault with intent to battery, or upon military they person; committed a inasmuch as directly military prejudice discipline, affect relations may properly they frequently subject be—as have been—the charges present hand, under the Article. On other where such civilians, upon against crimes are committed or and not at or near camp military duty post, inor breach or violation of a order, they general regarded to be as within the description Article, but are to be civil treated as rather than Pp. offenses.” *1124-*1125. grasped making has Court for itself the determina- tion which placed the Constitution has the hands of Congress, doing and that the Court has so thrown the law in this realm into a demoralizing state of uncer- *15 tainty. I must dissent.
I. My starting point is the language Art. I, 8, 14, § cl. of the Constitution, еmpowers which Congress “[t]o make Rules for the Government Regulation land and naval Forces,” and the Fifth Amendment’s exception correlative for arising “cases in the land or naval forces.”
Writing for a plurality
Covert,
of the Court in Reid v.
1
354 U. S.
Mr. (1957),
explained that
Black
if
“language
14
given
Clause
its natural mean-
ing . . .
term ‘land and naval
[t]he
Forces’ refers to per-
sons who are members
id.,
of the armed services . .. ,”
19-20, and that accordingly the Fifth Amendment’s ex-
“
ception encompasses persons
‘in’ the armed services.”
Id., at 22-23.
In
Singleton,
Kinsella v.
In
many
these cases and
Ex
others,
parte Milligan,
4 Wall.
(1866);
123
Tennessеe,
Coleman v.
97 U. S.
(1879); Smith
v. Whitney,
Parliament and at jurisdiction Mutiny both abroad home. See 13; Mutiny Act of Anne, 1803, Act of c. 1712, And, significantly, § 46 of the 3, Mutiny c. 20. Geo. c. authorized 1720, 1, 6, Geo. trial court- Act if nonmilitary nature, injured for offenses of a martial that the request made no accused be tried civilian Military- courts. See F. Civilians Wiener, civil Under (1967).1 246-246 13-14, English history The burden was not lost on the Constitution, Framers of our who doubtless feared the assertion of independent Executive’s author- ity people acting through Legisla- unchecked § ture. Article 9, 4, Articles Confederation— from which I, 14, § Art. cl. was the Constitution responsive taken2 —was apprehension: this “The United in Congress States assembled shall . . have the sole and right power . exclusive of . . . making rules the government regu- lation of the . . land and naval forces, directing . operations.” their (Emphasis added.) But nothing the debates over our Constitution Congress indicates that was forever to be limited to precise scope of jurisdiction existing in 17th To century England. contrary, Alexander Hamilton Congress’ power stated that to prescribe for the government rules of the armed forces “ought to exist without limitation: Because impossible it is foresee or define the extent and variety of national exigencies, or the corresponding variety extent & the means which may necessary tо satisfy them.” Federalist, (Emphasis omitted.) No. 23. proviso dropped Mutiny This Act of 8 Geo. c. and court-martial over such offenses was there *17 by alia, after to, beyond limited the articles of war inter “Place [s] the Seas . . . where there is no form of Our Civil Judicature in Wiener, Military Force.” F. (1967). Civilians Under Justice 14 2 Farrand, 2 See M. The Records of the Federal Convention of p. 1787, (1911); 5 Elliot, 330 J. Debates the Several State Con Adoption on ventions the of the Federal Constitution as Recom by mended Philadelphia p. the General Convention at 443 (1836).
278 prior of court-martial exercise
American of the Constitu- adoption with, contemporaneous to, and Military- position. Court’s support no lends tion and Independence of the War end records between instances frequent show of 1812 War of the beginning offenses frontier, for of the east court-martial, of trials assault, theft, such as laws, civil civilians and against try soldiers authority Military killing livestock.3 and “general initially from derived offenses for such Con- Continental first enacted war, article” 10 today in Art. incorporated 1775,4 and gress Prece- Military Law and Winthrop’s 934. W. §C. U. S. century treatise leading 19th 1896), the (2d ed. dents encom- article general recognized that military law, . . . against cimliahs upon or crimes “committed passed id., (1920 at 724 post,” or camp near a at report Washington George general example: The orders For , stealing . . , Fowls . “killing Cow . . . for of soldiers the trial Washington George Writings .” stealing eleven . . . and Geese January 28,1783), and “for steal Newburgh, ed.) (H. Q., (Bieent. public store out of the ing of Shirts and blanketts a number 1783). Newburgh, April 15, Id., (H. Q., Newburgh at 322 . . . .” report Engineers Corps Artillerists and Orderly Books of the “beating Williams a Mr. Sergeant Harris the court-martial 1, pp. garrison,” 157-158 living Book near this inhabitant “abusing Kelly for 1795), Point, of Private (West and October Cronkhyte, a citizen United using on Mrs. violence and 1796). (West Point, July 5, Numerous 45-46 pp. Book States.” nonmilitary during crimes military punishment instances of other Brief appendix to the are summarized period 1775-1815 35-52. States for the United neglects, which capital, all disorders and crimes, and not “All good order of, prejudice of guilty to the be and soldiers officers war, articles of though mentioned in the military discipline, regimental general court- cognizance of be taken degree offence, according martial, the nature Winthrop, Law discretion.” punished at their W. reprint). (2d 1896,1920 ed. Precedents *18 reprint) (second emphasis added), and noted that even limiting principle this Id., strictly was not observed. at 725, 730-732. And in States, v. United Grafton U. S. 348 (1907), the Court held, with respect to the general article, that:
“The crimes referred to in that article manifestly embrace those not capital, by committed officers or soldiers of the in Army violation of public law as enforcеd civil power. No crimes committed by officers or Army soldiers excepted are . . article . from jurisdiction thus conferred upon courts-martial, except those that capital their nature. ... jurisdiction of general [T]he courts-martial . . . concurrent [is] with that of the civil courts.” In Congress for the first explicitly authorized peacetime specific noncapital offenses. Article Articles War, 39 Stat. 664. It also general revised the article, renumbered Article to read: “Though not mentioned articles, these all neglects disorders and prejudice to the good military order discipline, all conduct of a bring nature to upon discredit service, all crimes capital, or offenses not persons subject law be guilty, shall be cognizance taken general special summary court-martial, according to degree the nature and offense, punished аt the discretion of such court.” Testifying before the Senate Subcommittee on Affairs, Brigadier Crowder, General Judge Advocate General of the Army, explained (cf. the revision 4, supra) n. : “You will transposition notice some of language. phrase prejudice 'to the good order and discipline’ put way in such a qualifies it only that ‘all neglects.’ disorders and As the law to-day stands it was often contended phrase this qualified also ‘all capital.’ crimes not There was argument some about whether it would reach back through clause, ‘all disorders and neglects,’ to the clause ‘all crimes capital’ qualify latter clause. . . . Harlan, [B]ut the decision in the case, Grafton seems to have set the matter rest, and I am courts-martial American early practice if the
Even *19 the con- lead to otherwise, hardly would this been had to authorize power lacked Cоngress that clusion cannot be It circumstances. present under trials the constitu- matter that general aas seriously argued coterminous power congressional of limits tional 18th in the late exercise of its the extent with restrictively And however centuries.6 19th early be con- jurisdiction to define power limit wrong so patently it would strued, armed today’s requirements disciplinary The power. from manifestly different men7 are 3,000,000 over force of Cf. in 1789. army8 in existence 718-man those By the 277. supra, quoted, 23, Federalist, No. The valid exercise otherwise token, given same judicial no basis perceive I can I power, Article Congress jurisdiction of court-martial curtailment it. enacted has decision.” Harlan's lines of legislation along the proposing Military Affairs, an Subcommittee
Hearings before the Senate 25, Sess., 91. Cong., 130, 1st 64th Rep. No. S. Appendix to pun- 736, authorized 1863, 30, Stat. 3, 12 of March § Act ones, capital including nonmilitary crimes, specific ishment 1916 92 of the insurrection, Article or rebellion. war, in time of punishable rape murder and 664, made War, 39 Stat. Articles tried court- person shall be “no death, provided that but limits geographical within the rape committed for murder martial of Columbia and the District Union of the States of Code of Uniform deleted proviso was peace.” This today 918, 920, so that 118, 120, 10 U. S. C. Justice, §§ Articles noncapital capital and jurisdictional distinction between no there offenses. 6 per Congress not have example, could theory, for such On 1875, 1, 3, March did, Act of waited, § until see missibly as it federal-question jurisdiction on general confer Stat. jurisdiction, see courts; present-day exercise this district unconstitutional. would be C. 28 U. S. § (1968). States of The United Statistical Abstract Army (1967). History States the United Weigley, 8 R.
III. In light history of the language 1, 8, of Art. § cl. the Constitution, and this Court’s hitherto con- intеrpretation sistent I this do not believe provision, controversy resolution of the calls for before us any balancing of engage interests. But if one does balancing process, fairly one hope up cannot to come with a meaningful answer unless the interests on both fully sides are explored. The Court does not do this. it Rather, ignore strong gov- chooses to legitimate ernmental interests which support of court- exercise martial over “nonmilitary” even crimes.
The States a creating United has vital interest and maintaining an armed force of honest, upright, and well-disciplined in preserving and the persons, reputation, morale, integrity and of military the services. Further- more, personnel its because must, perforce, live and another, work proximity close to military one the has an obligation protect to each of its members from the miscоnduct of fellow servicemen.9 The commission of against offenses the civil order qualities manifests of attitude and character equally destructive of safety. order and The part soldier who acts the of Mr. Hyde while on is, leave precarious Jekyll a best, Dr. duty. when back on as Thus, George General Wash- ington recognized:
“All improper by of an treatment inhabitant officer or being soldier good destructive of order 9 Congress may responsibility protecting also assume the of perpetrated civilians from harms members of the armed forces. responsible For the bringing locality often a personnel thousands of its great as, numbers be as —whose exceed, neighboring sometimes population thereby imposing — local agencies law-enforcement they may a burden which carry. unable to of rights of the as subversive well as
discipline law as civil military, of breach much is as society other.'” as the one by punishable ed.). (Bicent. 140-141 Washington George of Writings more- civilians, against directed misconduct A soldier’s is a he of which service upon brings discredit over, member: gov- military law system every
“Under jurisdic- forces, naval land either ernment trial martial extends courts tion officers military or naval acts punishment upon reproach disgrace and bring tend those members, whether they are of which service duties, performance in the are done acts Whitney, Smith . .” . position . civil in a (1886). 183-184 S. 116 U. keeping concern proper has thus, Government,
The deterring members order, house own its on or misconduct in criminal engaging from forces armed return rehabilitating offenders base, and off military service.10 to useful them responsive also military jurisdiction exercise A soldier forces. armed needs practical to other or subse- trial, pending the civil authorities *21 detained to useless rendered that extent is to imprisoned, quently recog- on bail is released if he Even the service. civil on probation, placed ultimately nizance, juris- within remain him to require may authorities 10 Powell testified Captain hearing, presentence Thus, petitioner’s at good a make can rehabilitation, O’Callahan “through proper that Major testified: Turner Transcript 61, and soldier,” Record He know. I ... as performance, as far superior given “He has money a lot of Army have does through and the school gone has a time, here that this I at think man. ... up in this wrapped Id., 64. at in order.” is program rehabilitation 283 diction, him making thus unavailable for transfer with the rest of his unit or as the service otherwise requires.
In contrast, person awaiting trial by court-martial may simply be restricted to limits, “participate and may in all military duties and activities of his organization while under such restriction.” Manual for Courts-Mar tial, (1969), States 6. The United trial need not ¶20 be held in jurisdiction where the offense was com Id., Voorhees, e. g., United mitted. States See, v. ¶8. 4 U. S. C. M. A. 16 509, 515, (1954); C. M. R. cf. Gravitt, United States 5 U. S. C. M. 249, 256, A. C. R. (1954). M. punishments And as —such forfeiture of pay, restriction to limits, and hard labor without may be imposed that do keep confinement — the convicted serviceman from mili performing his tary duties. See Manual supra, for Courts-Martial, ¶¶ g, h, k.
IV. The Court does not explain scope of the “service- connected” crimes to which jurisdiction it appropriate, appears may but that ex- “nonmilitary” tend to in appropriate offenses circum- Thus, stances. Court intimates it is relevant jurisdictional petitioner issue this case that wearing civilian clothes rather than a uniform when he Ante, committed the crimes. at 259. implies And it also plundering, abusing, stealing from, civilians may punishable sometimes constitute a abuse of ante, position, n. and that officers be court- for purely martialed civilian crimes, because “[i]n century 18th . . . the ‘honor’ of an thought officer was give specific military connection to a crime otherwise military significance.”11 without Ibid. But if these is, say least, strange It that as a constitutional matter authority discipline without an enlisted man for punishable an offense that is if committed an officer. *22 general no stand- suggests cases, the Court are illustrative of court-martial determining when the exercise ard permissible. have judicial approach may ad hoc role an Whatever Congress law, the areas of the some certainty know with some entitled to at least Otherwise, scope jurisdiction. allowable factors are possibly relevant permutations the infinite litigation proliferate confusion over bound to create Absolutely issue each instance. jurisdictional history, logic of the Consti- nothing language, justifies uneasy state of affairs which the Court tution this today has created. judgment
I Appeals. would affirm Court of