Court-Martial Jurisdiction of Civilian-A Glimpse at Some Constitutional Issues

• Author: By Marion Edwyn Harrison
• Pages: 03

1. INTRODUCTION

   Sir Walter Scott once wrote: "The sun never sets on the immense empire of Charles V."1 What Sir Walter wrote of the Holy Roman Empire in the Sixteenth Century could also be said of the United States in the Sixth Decade of the Twentieth Century, for whether or not one desires to admit it, the resources, infiuence and power of the United States appear everywhere outside the Iron and Bamboo Curtains. In particular, the American military arm is ubiquitous. Called a communications zone, a military assistance group, a special task force, a mutual defense army, or whatever, American soldiers, sailors and airmen, together with civ'ilian employees and dependents, are scattered across the face of the globe. It io axiomatic that wherever there are people, there must be either law or anarchy. The question with respect to these several hundred thousand Americans who are abroad serving "in" or "with" the armed forces Is simply: What law? Specifically, absent applicable diplomatic agreements, of which there are many) the precise question is: Are those persons who are not uniformed military personnel subject to court-martial jurisdiction? And that, in turn, is essentially a constitutional question, for Congress has already clearly indicated an affirmative policy answer.

   On May 6, 1960, the Uniform Code of Military Justices became law.' It was effective on May 31. 1951, together with the aecom-Pawing Manual for Courts-Martial,6 an explanatory and procedural set of regulations. The Code introduced new concepts of

   Captnin, JAGC, USAR. Special Assistant to the General Counsel and member Bmrd of Contract Appeals. Post OWee Department. B.A. UdverdQ of Virginia; L.B., LL.M., The George Washington University. Mhber, D.O., Virginia. Supreme Court Bars.

   1 Scott, His o i Napohon, 1807.zE.g., The North Atlantic Theatre of operatima Status of Farces Agreement, and aptcifieally Art. VI1 thereof, known a8 NATO-SOFA, TlAS 2846 (71191613, ratified99 Cong.Ree. 8837-8838 (7il6l63).

   8 "An Act to unify, conmlids.te, rediae, and codify the articles ai war, the srtielei for the government of the Naw, and the dirciplinarg laws af the Cosat Gusrd, and to enact and establish s uniform code of military justice."

   4 10 USC $0 801-940 (1952 ed. Supp V)

   6 EO No. 10214,8 F'eb 1961.16 FR 1303.

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   military justice.' It also reaffirmed a tradition, namely, that certain persons not actually serving as uniformed personnel of the armed forces would be subject under given conditions to military jurisdiction. Thus, Article 2(11)' provides that: "All persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States" shall be subject to military jurisdiction.8 Because of the uncertainty generated by the Supreme Court's decision in the combined c a m of Kinsella v. Krueger and Reid v. Co~ert,~holding that the civilian wivea of

   military personnel who murdered their spouses overseas were not constitutionally amenable to court-martial jurisdiction, and cases now on appeal relating to variations of the Same issue, it is the purpose of this paper to discuss the history and constitutional questions implicit in the problem of military jurisdiction over civilians located overseas. Ninimum consideration will be given to questions of policy.10

   11. THE PRESENT STATE OF UNCERTAINTY IN THE LAW, A PLETHORA OF PEXDING APPEALS

   In the cases of Kiasella v K~ueger and Reid V. Couert, after a tortuous appellate history," the Supreme Court decided that the civilian wives of uniformed military personnel who committed the capital offense of murdering their spouses while "without the continental iimits"'2 were not constitutionally amenable to court-martial jurisdictian.'3 In so deciding, the Court, acting upon a P1-1-2 split, failed to adjudicate ather isme8 which it now ap-pears likely will be heard at the October 1959 Term.I4 In the KRM~EYand Conert cases, the Supreme Court mas confronted with the problem whether a wife Iq-ha was charged with a capital crime

   a See U. S. Y. Clay, 1 L'SCllA 74, 1 CYR 74 (1961).7 10 USC D 802(11) (1862 ed. Supp VI.

   8 Complete relevant text rends BI faiiosi: "Artieie 2. Perions subject tathe code. The fallowing persons ape subject to rhls eode: . . . (11) evbjeet ta the pro~irionr of any treaty or agreement to which the United Stater IS or may be a party or to any accepted rule of international law, ail perions ~erving with, employed by, or ~eeampan)mg the armed foreea without the continents1 limits of the United Srarei snd without tke following territories: that part of Alaska east of longitude 172' west, the Canai Zone, the mainpoup of the Haxsiian Islands, Pureta Rim, and the Virgin Idands."e354 US 1 (18571.1OPolicy is a cangreiaional prerogative. In the face of conflicting court decisions, Congress-confused perhaps-hsr not elected to change its policy. Yihtsry officials stili feel the miiitai) must have eriminal jurisdiction over those civilians enumerated in Art. 2(11), for IOB$D~I of sound militsry administration.

   11 361 US 470 (19551.352 L'S 901 (19663.

   11 see in. 8, mpra. 13 364 US 1 (1967). 14 Infra, Part VI.

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   COURT-MARTIAL JURISDICTION OF CIVILIANS

   and who was not an employee of the Cnited States but merely a dependent of her military Spouse could be prosecuted by court-martial. Four justices held that she could not. T m others concurred in the decision for special reasons. The remaining two dissented.

   Mr. Justice Frankfurter, concurring, stated that he did not understand the Opinion of the Court to hold that a civilian over-Be@ could not be prosecuted by court-martial. Rather, he felt that the question of the trial of a civilian dependent in a capital ca8e in Peacetime was the sole issue.15 Mr. Justice Harlan, the other concurring jurist, similarly limited the Scope of his opinion."

   From the language of the two concurring opinions and from Some of Mr.

   Justice Black's o m language,'? it appears obvious that the Supreme Court opened a Pandora's box of questions when it finally resolved the Covert and Kmeger cases. If one thinks otherwise, he should note that the interpretation of Nr. Justice Black's ruling has already been disputed by eminent judicial minds.18

   It appears that the Supreme Court will have to cansider a minimum of five caaea presenting in one form or another a canstitu- 16".

   . . In making this adjudication, I must emphasize that it is only the trial af civilian dependents in a capital case in time af peace that is in question. The Court has not before it, and therefore I need not intimate an? opinion on, situations inrolwng civilians, in the sense of peram8 not having B military status, other than dependents. Nor do we have before us B ease involving a nonca.plts.1 crime. This mmow delineation of the isue is merely to reaped the important rentrietione binding on the Court when paaaing an the constitutionality of an act of Congrees." 364 US 1, 46 (1557).

   16''.

   . . . Again, I need not go into details, beyond stating that except for capital affenles, such 8s we have here, to which, ~n my opinion, special eon-siderations apply, I am by no mean3 read? to say that Congress' power to provide far trial by court-martial of eiwlian dependents overseas is limited by Article I11 and the Fifth and Sixth Amendments. ahere, if at 811, the dividing line should be drawn among C B E ~ S not capital, need not now be decided. We are emfronted here with eaprtal offenses alone; and it seam to me Partitularly unwise now to decide more than we have to. Our far-flung foreign military establishments are a ne-. phenomenon in our national life,

   involved in maintaining the effeetivenesa of these national outposts, in the light of eontinump experience with these Problems. "Sa far BJ capital easel are eoneerned, I think they stand on 9ute a different footing than other offensel. In such case8 the law is eipee~allg ienrltire to demands far that procedural fairnear which inheres in B civilian trisl where the judge and trier of fact are nor rerpannive to the command of the convening authority. I do not eoncei~e that whatever pmcena is 'due' an offender faced with a flns UT a prison sentence neeeaiarily natiihea the requirements of the Conetihition in B capital case." 314 US 1, 7677 (1817). Query: Are these distinetions a8 to procedure or substance?

   17 364 US 1, 83-36 (1557),16 But cf In the Matter of Wiilism K. Yokoysrna, 170 F. Supp. 467 (S.D. Cai. 1969); and U. S. as vel Guagliarda V. JlcEiroy, 265 F. 2d 827 (1868).

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   tional question concerning overseas court-martial jurisdiction over civilians. These cases are Grisham V. Taylor,'o U.S. ex vel Guagli-ardo v. MCEI.TO~I,Z~ U.

   19. ex vel Wilson V. Bohlander,2L In re Yoko-uama.la and Kinaella v. U.S. ex re1 Singleton.'s In another case:' the Government decided not to contest petition. Thus, the petitioner was released in Germany to the German authorities, who have prosecuted. All the other cases involve the filing of writs of habeas corpus after the clients had been transported to the United States, 80 that, if freed, they could not, as a practical matter, be tried by an alternative jurisdiction.

   111. SOME PRELIMINARY CONSTITUTIONAL CONCEPTS

   Before discussing either specific cases upon appeal or the history of court-martial jurisdiction, it seem appropriate to consider briefly several aspects of Constitutional interpretation as they relate tc court-martial jurisdiction.

   At the outset, one should note that the principle of atare decisis has been severely limited and progressively weakened in constitutional adjudications since the Supreme Court proceeded to correct "a century of error" in the case of Pollock v. Fanned Lwn and Trust Company.Pa History has shown the difficulty in amending the Constitution and perhaps for this r e a m the Supreme Court has long taken the position that it will reverse its previous decisions on constitutional issues when convinced thy are erroneous more speedily...