The successful petition for rehearing in Reid v. Covert.

• Jurisdiction: United States

Section 173. The successful petition for rehearing in Reid v. Covert.—Only the cover and the index have been omitted from the Covert-Krueger petition for rehearing that is here set out.

IN THE SUPREME COURT OF THE UNITED STATES October Term, 1955 No. 701 CURTIS REID, Superintendent of the District of Columbia Jail, Appellant, v. CLARICE B. COVERT On Appeal from the United States District Court for the District of Columbia No. 713 NINA KINSELLA, Warden of the Federal Reformatory for Women, Alderson, West Virginia, Petitioner, v. WALTER KRUEGER On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITION FOR REHEARING

Now come Clarice B. Covert, Appellee in No. 701, and Walter Krueger, Respondent in No. 713, and respectfully pray the Court to grant rehearings in these causes.

[*2] Mrs. Covert and Mrs. Smith, the two civilian women whose fate is here in issue, were tried by court-martial, pursuant to Article 2 (11) of the Uniform Code of Military Justice, and had their convictions successively reviewed by Boards of Review in the Offices of the Judge Advocate General of the Air Force and of the Army, respectively, and then by the Court of Military Appeals. The latter tribunal held, while the present cases were under advisement here, that 'Article 2(11) of the Code is a valid exercise of Congressional power granted by the Constitution 'to make Rules for the Government and Regulation of the land and naval Forces.' " United States v. St. Clair, 7 USCMA 82, 83, 21 CMR 208, 209, decided May 25, 1956. But this Court declares (slip opinion, No. 713, pp. 6-7) that there is no need to examine the power of Congress under that clause of the Constitution.

The concept of presenting Hamlet without the Prince of Denmark doubtless has fascination. But just as the Melancholy Dane cannot, despite heroic efforts, be completely exorcised from the play, just as he constantly flits back and forth into the action regardless of nomenclature, so in these cases, where the results were reached after ostensible rejection of whatever powers the Constitution has conferred upon Congress to govern the armed forces, a reading of the Court's opinions makes obvious that military considerations were necessarily relied upon to uphold the court-martial proceedings here under review.

A. Thus it is said (slip opinion, No. 713, pp. 7-8) that the United States must maintain American forces in many foreign countries; that "the lives of military [*3] and civilian personnel alike are geared to the local military organization"; and that by enacting Article 2 (11) "Congress has provided that all shall be subject to the same system of justice and that the military commander who bears full responsibility for the care and safety of those civilians attached to his command shall also have authority to regulate their conduct." [Italics added.] These, without question, are purely military considerations relevant to—and relevant only to—the power "To make Rules for the Government and Regulation of the land and naval Forces."

B. It is said (slip opinion, No. 713, pp. 10-11) that "this case presents no problem of * * * the power of Congress to provide for trial of Americans sojourning, touring, or temporarily residing abroad." But In re Ross, 140 U. S. 453, on which the jurisdiction in the present cases is rested, involved the trial by an American consular court of a British subject who was temporarily in Japan only while the American ship in whose crew he served was lying at anchor in Yokohama harbor. See 140 U. S. at 456-457, 470-475. The difference between Ross's situation and that of the two women involved here is that they were abroad for a far less temporary stay, the exact length of which was dependent on their respective husbands' tours of military duty, and that their American links were far less tenuous than those of Ross. Again, the governing consideration is their relationship to the American armed force of which their husbands were members.

C. In No. 701, the Court's opinion (pp. 4-5) speaks of "military jurisdiction," of "military prisoners," and cites decisions of "military courts" in considering whether Mrs. Covert may be retried by a court-martial within the District of Columbia.

[*4] Thus, the Court sustains, in these two cases, an obvious exercise of the power "To make Rules for the Government and Regulation of the land and naval Forces" while disclaiming all inquiry into the extent of that power. And for the first time in the Court's history, it approves the trial of civilian women by court-martial in time of peace.

II

The Court says (slip opinion, No. 713, p. 8) that "The choice among different types of legislative tribunals is peculiarly within the power of Congress," citing Ex parte Bakelite Corp., 279 U. S. 438, 451. But to deal with these cases in terms of legislative choice is to rest on a demonstrable fiction, for it is the incontrovertible fact that Congress never considered that it was being faced with any "choice among different types of legislative tribunals."

The...