The Problem of Jurisdiction Over Civilians Accompanying The Forces Overseas-Still With Us

• Author: by Captain Gregory A. MeClelland
• Pages: 02

I. THE PROBLEM: THE JURISDICTIONAL VOID A. THE SETTING

Could a civilian United States citizen accompanying our armed forces overseas murder a United States service member and escape trial and punishment for the crime? The Supreme Court's 1957 decision in Reid U. Couert' created such a possibility. Covert resolved two cases. both involving women who had murdered their service member husbands overseas. The previous term, the Court had decided in both ca8es lthese original 1956 decisions are hereinafter jointly referred to as the Kiuegrr cases) that military courts could exercise criminal jurisdiction over military dependents for crimes they committed while accompanying the forces overseas. Now, in an unusual rehearing of both cme8, the Court reversed itself.

Mrs. Dorothy Krueger Smith was convicted by general court-martial in Tokyo, Japan, for the

In one of the Krueger

*Judge Adweate Geneds Corps. Urvted States Army Currently assigned as Instmetor, Department of Law. United States Mhtary Academy, West Point. New York Formerly assigned 08 Chief, MlLtsry Affus. and Chief. International Law, 193d Infantry Brigade Ilanamsl, 1982 to 1981: Chief Legal Assiitance. and Trial Counsel. Office of the Staff Judge Advwste, Fort Du. New Jersey, 1980 ta 1951: edrted aerwce, 3 35th Field ArtlYely. Werrheun, Federal Repubhe of Germany. I972 to 1974. B.A, Dartmouth Cabge, 1972, JD. Suffolk Umvemity, 1979. Graduate. 34th Judge Advoeale Officer Graduate Course, 1986, Graduate, 92d Judge Advocate Officer Baiic Course. 1980 Author of Assassing Damnpa m Churning Cares An Argument far Lars-oiBorpain Reeo~ery. 9 The Advocate ISuffOk Umvernty Law Journdl No. 1 at 18 119771: Dmid of Delay. A Limitation on the Right to Civilian Counsel an Lhs Military. The Army Lawyer, Jan. 1984, BI 13, Amck 139 A Remedy for Vienmi of Soidmi Misconduct. The Army Lawyer. Aug. 1986. at 18. Member of the bars of Lha Commonwealth of Isisaehuietti. the Umfed Scac8s Court of Military Appeals. the Cnited Scam8 Army Court af Mditary Review, and the Umted States Svpreme Court This article XBI origvlally rubmicted in iatiafaction of che thesis eiecwe of the 34th Judge Advoeale Officer Graduate Course

364 US 1 119571'Kinseiia Y Krueger, 361 U S 470 119561

premeditated murder of her husband. a calanel in the United States Army. Court-martial jurisdiction over civilians in Japan was based an article 21111, Uniform Code of Military Justice IUCMJl,3 and an administrative agreement with Japan4 allowing United States service courts to try offenses against the laws af Japan committed by members of the United States armed forces. civilian component, and their dependents. While Mrs. Smith was serving her life sentence in West Virginia, her father filed a habeas corpus action in her behalf, and in 1956 the Supreme Court granted review of the federal district court's discharge of the writ.

The other Kruegei caaej concerned the courtmartid conviction of .Mrs. Clarice Covert for the murder of her Air Force sergeant husband at a United States air base in England. Under the United States of America Visiting Forces Act of 1942.6 Mrs. Covert's C B S ~ was released by British authorities for trial by

court.martial upan certification by United States authorities that she was subject to American military law. The basis of her amenability to military law. as in Mrs. Smith's case, was article 21111 UCMJ. After Mrs. Covert's conviction. she was returned to the United States to serve her life sentence. The Court of Military Appeals ordered a retrial based an errors in the adjudication of her insanity defense. and while awaiting retrial she filed a habeas carpus petition. The Supreme Court granted a government request for review of the district court's release of Mrs. Covert from Air Force custody.

The decision in Couert, the Supreme Court's 1957 consolidated rehearing of bath cases, was a split one. Four Justices signed the lead opinion, which Justice Black wrote. Justices Frankfurter and Harlan each wrote concurring opinions, and Justices Clark and Burton pined in a dissenting opinion. The Black opinion started by emphasizing that United States citizens retain all their constitutional rights when they go abroad. Primary among these rights. according to Justice Black. are the rights to trial and indictment by jury. The opinion stated that In re Ross' and the

21111. 64 Stat 108, 108 118501 !current version at 10 U S C 8 802 1198211 This article made all persons accompanying the forcer ouraide the United States subject Lo the UCMJ 11 authorized by the host iAdmnritrafive hrreernenr with Jaoan Februars 28 1952. art XVII, 3 UST

'Urnform Code of Mllltary Juitles art

countr) !p"ra"8nt ro fresly or agreement1 (Part 31 3342. TI A 5 2492

Reid Y Ca~err 3E1 US 457 119561 '5 & 6 Gea 6 c 31

110 us 463 '1891,

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Insular Coses.8 authorities an which the Court relied in the Krueger cases to justify curtailment of constitutional rights in trials of Americans overseas, were anachronisms, and their application should be limited to their facts. Because courtmartial proceedings do not offer trial and indictment by jury and other rights, Justice Black felt courtmartial jurisdiction must be limited.

Justice Black acknowledged that Congress' power to "make Rules for the Government and Regulation of the land and naval Farees"s allows Congress to authorize trial of service members without certain constitutional safeguards; however, he rejected the government's argument that the term "land and naval farces" includes dependents of service members. He also stated that Congress' power to take all acts "necessary and proper"l0 to regulate the forces does not allow it to extend military jurisdie. tion beyond the "land and naval forces" to military dependents. According to Justice Black, the limited scope of the term "land and naval forces," coupled with the affirmative grants of rights in article 111. section 2 and the fifth and sixth amendments to the Constitution. which limit the government's power, make "military trial of civilians. . .inconsistent with both the 'letter and spirit of the constitution.' "11

After summarizing the history of British and American experi. ences with military authority, Justice Black harshly criticized military justice and military law. Calling the former "a rough form of justice emphasizing summary procedures, speedy convie. tions and stern penalties,"'z he stated, "[?here has always been less emphasis in the military on protecting the rights of the individual than,, , in civilian colirt~.''~~

He noted that, because courts-martial often consist of officers subservient to the eanven. ing authority. they are susceptible to command influence. But "[llooming far above all other deficiencies of the military trial. of coume. is the absence of trial by jury before an independent judge after an indictment by a grand jury."'d

Military law "is, in many respects. harsh law which is fre.

'B&ac Y. herto Rlco. 264 0.S 298 119121; Dam V. United States. 196 U.S. 138119011, Hawu Y Mlanlneh, 190 U S 197 119031. Daaner Y BidweU. 182 US 244119011.

'US consr art I 4 6 el I4

Id'cauoit. 854 us mc 22*Id BL 38'Id"Id at 37

quently cast in very sweeping and vague terms. It emphasizes the iron hand of discipline more than it does the even scales of justice."'j Justice Black noted that the President's power to create substantive as well as procedural military law unites legislative. executive. and judicial power over the military in one branch, which runs counter to the principle of separation of powers. The President or Congress, stated Justice Black, has arbitrary power to change military law at any time and make it even less congruous with constitutional guarantees.'#

Justice Black's opinion never states a holding in succinct form. It does make clear that the result-release of the civilian defendants-was justified by the need to stop the encroachment of military authority over civilians and reaffirm the eatraterritorial validity of Bill of Rights guarantees.

Justice Frankfurter was unwilling to decide the eases by simply excluding military dependents from the definition of "land and naval forces." He cited the language from the fifth amendment granting a right to grand jury indictment "except in cases arising in the land or naval forces,"'. suggesting that cases involving civilians accompanying the forces might fairly be said to come within those wards. The significance of the necessary and proper clause, he said, is to enable Congress, "in the exercise of a power specifically granted to it,. . . [to] sweep in what may be necessary to make effective the explicitly worded power."1B Thus, anything (such as control of accompanying civilians1 reasonably within Congress' power to "make Rules for the Government and Regulation of the land and naval Forces" is arguably constitutional.

"The issue in these cases involves regard for considerations not dissimilar to those involved in a determination under the Due Process Clause."Lg From this point of departure, Justice Frank. furta proceeded to balance government necessity against the individual rights of the defendants. He carefully limited the scope of his opinion to trial of civilian dependents in capital eases in peacetime. In capital case8, he said. the balance must be weighted in favor of individual rights. On the government side of the scale, he found particularly significant the small number of capital cases among all civilians accammnving the forces OYBTSeaS and the

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speculative nature of the consequences of the absence of military jurisdiction over dependents.*O He concluded that "in capital cases the exercise of caurt.martial jurisdiction over civilian dependents in time of peace cannot be justified by Article I, considered inconnection with tho specific protections of Article Ill and the Fifth and Sixth Amendments."g1

Justice Harlan was the only member of the Covert majority who had also voted with...