Trial of Civilian Personnel by Foreign Courts

• Author: by Lt Colonel E. G. Schuck
• Pages: 02

The decision of the United States Supreme Court following the rehearing of the case8 of Reid Y. Covert and Krueger v. Kinsello,' both involving the question of jurisdiction of courts-martial over dependents "accompanying" the armed forces overseas in peacetime, may eventually result in the loss of all court-martial jurisdiction over all civilians "serving with, employed by or accompanying" the armed forces in time of peace. Although four justice8 clearly denied court-martial jurisdiction over any civilian for any offense in time of peace, two concurring justices limited their opinions to the narrow issue presented by the cases under consideration, i.e., jurisdiction over dependents for capital crimes. Accordingly, it is not clear that a majority of the Supreme Court would hold that a court-martial has no jurisdiction over civilian employees, or over dependents for noncapital crimm. These doubts will probably be resolved shortly: it is inconceivable that Several civilian ex-employees now confined by reason of court-martial sentences for capital and non-capital crimes will not bring actions for release, based upon the cases mentioned above! Similarly, one of the dependents recently tried in Europe for noncapital crimes will probably bring habeas corpua, thus requiring judicial resolution of the other outstanding issue.a Pending judicial clarification of the questions which the Court has not answered, it is asmmed in this memorandum, in order to present the problem in its broadest terms, that the denial of court-martial jurisdiction over civilian dependents in capitol m e s will el;entuallv eztend to employees as well as to dependents. and in all cases.

In the absence of jurisdiction over such persons in any other United States court, it appears, as a matter of law, that criminal jurisdiction will be exercised over dependents and civilian employees

* Ansirtsnt Chief, International ARairs Division, ORice of The Judge Ad-weate General U. s, Army Washington 26 D. C: member of the New Yaik Bar; &duate of Coivmbia univerdtv Lab School. The views herein expressed are those of the author nd do nol necessarily represent those of the Secretary of the Amy or.'; The Judge Aduocate Generalof the Army.

I 354 U.S. 1 (1957).

8 See CI 396739, Tyler, 11 Oct 1967 58 Chron Ltr Ills in which a board of review denied the military juksdictian to try a bivilian dependent over~esa in a ease initiated 88 B capital CBS~but tried as a noncapital

ease.

.(10 7148 87

by the courts of the countries in which such personnel are stationed unless, under applicable international agreements, they enjoy diplomatic immunity (the comments which follow have no application to MAAG, or Mission civilian...