Kinsella v. Krueger, 351 U.S. 470 (1956)
Kinsella v. Krueger, 351 U.S. 470 (1956)
Kinsella v. Krueger, 351 U.S. 470 (1956)
470
76 S.Ct. 886
100 L.Ed. 1342
Mr.
Marvin E. Frankel, Washington, D.C., for petitioner.
Mr. Frederick Bernays Wiener, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
Thereafter, a petition for a writ of habeas corpus was filed on Mrs. Smith's
behalf by her father, respondent herein. The petition alleged that the courtmartial had no jurisdiction to try Mrs. Smith because Article 2(11) of the
Uniform Code of Military Justice violates both Art. III, 2, and Amendment VI
of the Federal Constitution, which guarantee the right to trial by jury to a
civilian. The United States District Court for the Southern District of West
Virginia issued a preliminary writ. After a hearing, which included the
submission of briefs and unlimited oral argument, the writ was discharged and
Mrs. Smith was remanded to the custody of the Warden. 137 F.Supp. 806. In
order to expedite the determination of the case, the Government itself sought
certiorari while an appeal was pending before the Court of Appeals for the
Fourth Circuit. We granted review on March 12, 1956, 350 U.S. 986, 76 S.Ct.
476, because of the serious constitutional question presented and its farreaching importance to our Armed Forces stationed in some sixty-three
different countries throughout the world. We agree with the decision of the
District Court.
3
In its entirety, Art. 2(11), 50 U.S.C. 552, 50 U.S.C.A. 552, provides that:
'(11) Subject to the provisions of any treaty or agreement to which the United
States is or may be a party or to any accepted rule of international law, all
persons serving with, employed by, or accompanying the armed forces without
the continental limits of the United States and without the following territories:
That part of Alaska east of longitude one hundred and seventy-two degrees
west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and
the Virgin Islands * * *.'
Mrs. Smith comes squarely within the terms of this provision. As a military
dependent, she had accompanied her husband beyond the continental limits of
the United States. Prior to her husband's death they lived together in
Washington Heights, an American community in Tokyo composed exclusively
of American servicemen and their dependents. Japan, at the time of the offense,
had ceded to the United States 'exclusive jurisdiction over all offenses which
may be committed in Japan by members of the United States armed forces, the
civilian component, and their dependents * * *.' Art. XVII, 3 UST (Part 3)
3354. Since Article 2(11) concededly applies to this case if it was within the
power of Congress to enact, the constitutionality of that provision is the sole
question presented. Essentially, we are to determine only whether the civilian
dependent of an American serviceman authorized to accompany him on foreign
duty may constitutionally be tried by an American military court-martial in a
foreign country for an offense committed in that country.
In making this determination, we are not faced with the question 'whether the
Constitution is operative, for that is self-evident, but whether the provision
relied on is applicable.'2 Entirely aside from the power of Congress under
Article III of the Constitution, it has been well-established since Chief Justice
Marshall's opinion in American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed.
242, that Congress may establish legislative courts outside the territorial limits
of the United States proper. The procedure in such tribunals need not comply
with the standards prescribed by the Constitution for Article III courts. In cases
arising from Hawaii,3 the Philippines, 4 and Puerto Rico,5 this Court has
recognized the power of Congress to enact a system of laws which did not
provide for trial by jury. By 1922 it was regarded as clearly settled' that the jury
provisions of Article III and the Sixth and Seventh Amendments 'do not apply
to territory belonging to the United States which has not been incorporated into
the Union.' Balzac v. People of Porto Rico, 258 U.S. 298, 304305, 42 S.Ct.
343, 345, 66 L.Ed. 627.
1929, citing Ross with approval in Ex parte Bakelite Corp., 279 U.S. 438, 451,
49 S.Ct. 411, 413, 73 L.Ed. 789, this Court reaffirmed the doctrine that
'legislative courts * * * exercise their functions within particular districts in
foreign territory, and are invested with a large measure of jurisdiction over
American citizens in those districts. The authority of Congress to create them
and to clothe them with such jurisdiction has been upheld by this Court and is
well recognized.' These cases establish beyond question that the Constitution
does not require trial before an Article III court in a foreign country for offenses
committed there by an American citizen and that Congress may establish
legislative courts for this purpose.
10
Having determined that one in the circumstances of Mrs. Smith may be tried
before a legislative court established by Congress,6 we have no need to
examine the power of Congress 'To make Rules for the Government and
Regulation of the land and naval Forces' under Article I of the Constitution. If it
is reasonable and consonant with dur process for Congress to employ the
existing system of courts-martial for this purpose, the enactment must be
sustained.
11
In the present day, we, as a Nation, have found it necessary to the preservation
of our security to maintain American forces in some sixty-three foreign
countries. The practical necessity of allowing these men to be accompanied by
their families where possible has been recognized by Congress as well as the
services, and the result has been the creation of American communities of
mixed civilian and military population at bases throughout the world. In all
matters of substance, the lives of military and civilian personnel alike are
geared to the local military organization which provides their living
accommodations, medical facilities and transportation from and to the United
States. We could not find it unreasonable for Congress to conclude that all
should be governed by the same legal standard to the end that they receive
equal treatment under law. The effect of a double standard might well create
sufficient unrest and confusion to result in the destruction of effective law
enforcement.7 By the enactment of Article 2(11) of the Code, 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.
12
It was conceded before this Court that Congress could have established, or
might yet establish, a system of territorial or consular courts to try offenses
committed by civilian dependents abroad. While this would be within the
power of Congress, In re Ross, supra, clearly nothing in the Constitution
compels it. The power to create a territorial or consular court does not preclude,
but must necessarily include, the power to provide for trial before a military
tribunal unless that alternative is 'so clearly arbitrary or capricious that
legislators acting reasonably could not have believed it to be necessary or
appropriate for the public welfare.'8 The choice among different types of
legislative tribunals is peculiarly within the power of Congress, Ex parte
Bakelite Corp., 279 U.S. 438, 451, 49 S.Ct. 411, 413, 73 L.Ed. 789, and we are
concerned only with the constitutionality, not the wisdom, of this choice.
13
In selecting the Uniform Code of Military Justice, Congress might have sought
to avoid needless and potentially harmful duplication of a legal system already
extant in every foreign nation where our troops are stationed. On the other
hand, Congress could well have determined that the Code was adequate to the
purpose to be achieved and would afford more safeguards to an accused than
any other available procedure. The Code is a uniform system of legal
procedure, applicable beyond any constitutional question to all servicemen
stationed abroad. It was adopted by Congress only after an exhaustive study of
several years duration and the consultation of acknowledged authorities in the
fields of constitutional and military law.9 In addition to the fundamentals of due
process, it includes protections which this Court has not required a State to
provide10 and some procedures which would compare favorably with the most
advanced criminal codes. We find no constitutional defect in the fact that the
Code does not provide for indictment by grand jury or trial by petit jury. In
these respects it does not differ from the procedures specifically approved by
this Court in other types of legislative courts established abroad by Congress. In
re Ross, supra; Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47
L.Ed. 1016; Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128;
Balzac v. Porto Rico, supra.
14
Furthermore, since under the principles of international law each nation has
jurisdiction of the offenses committed within its own territory, The Schooner
Exchange v. McFaddon, 7 Cranch 116, 136, 3 L.Ed. 287, the essential choice
involved here is between an American and a foreign trial. Foreign nations have
relinquished jurisdiction to American military authorities only pursuant to
carefully drawn agreements which presuppose prompt trial by existent
authority.11 Absent the effective exercise of jurisdiction thus obtained, there is
no reason to suppose that the nations involved would not exercise their
sovereign right to try and punish for offenses committed within their borders.
Under these circumstances, Congress may well have determined that trial
before an American court-martial in which the fundamentals of due process are
assured was preferable to leaving American servicemen and their dependents
throughout the world subject to widely varying standards of justice unfamiliar
to our people.12
15
16
17
Affirmed.
18
19
20
The Uniform Code of Military Justice which governed these proceedings, and
the international arrangements with England and Japan whereby the United
States was allowed to exercise jurisdiction over the alleged crimes, are
concerned with, directed toward, and explicitly acknowledged as legan
measures that had their source in, and were obviously to be an exercise of, the
constitutional power of Congress 'To make Rules for the Government and
Regulation of the land and naval Forces.' As provided by the Uniform Code of
Military Justice, Mrs. Smith and Mrs. Covert were tried as though they were
members of the Armed Forces. In view of this Court's opinion in Toth v. United
States ex rel. Quarles, 350 U.S. 11, 76 S.Ct. 1, and the fact that the Constitution
'clearly distinguishes the military from the civil class as separate communities'
and 'recognizes no third class which is part civil and part militarymilitary for
a particular purpose or in a particular situation, and civil for all other purposes
and in all other situations * * *,' Winthrop, Military Law and Precedents (2d ed.
1896), 145, the Court's failure to rest its decision upon the congressional power
'To make Rules for the Government and Regulation of the land and naval
Forces' is significant.
21
22
The Court derives its second line of argument from the decisions of this Court
which have evolved the power of Congress to deal with territory acquired by
purchase or through war, beginning with the statute of 1822, which set up the
government of Florida. See American Insurance Co. v. Canter, 1 Pet. 511, 7
L.Ed. 242. I must confess inability to appreciate the bearing of the series of
complicated adjudications dealing with the difficult problems relating to
'organized' and 'unorganized' territories of the United States to legislation by
Congress treating civilians accompanying members of the Armed Forces
abroad as though they were part of the Armed Forces and therefore amenable to
the Code of Military Justice.
23
Grave issues affecting the status of American civilians throughout the world are
raised by these cases; they are made graver by the arguments on which the
Court finds it necessary to rely in reaching its result. Doubtless because of the
pressure under which the Court works during its closing weeks, these
arguments have been merely adumbrated in its opinion. To deal adequately with
them, however, demands of those to whom they are not persuasive more time
than has been available to examine and to analyze in detail the historical
underpinning and implication of the cases relied upon by the Court, as a
preliminary to a searching critique of their relevance to the problems now
before the Court. For the moment, it must suffice, by way of example, to
indicate that by resorting to In re Ross the Court has torn from its historical
context an institutionthe consular courtthat had a totally different source
and a totally different purpose than the source and purpose of Art. 2(11) of the
Uniform Code of Military Justice, 64 Stat. 107, 109. A glimpse into the
international environment and political assumptions out of which the consular
court system derived and of which it was a part suffices to indicate the scope of
the inquiry for which the Court's opinion calls. Such a glimpse is afforded by
the justification for consular courts urged by the Government on this Court 65
years ago. Reliance was placed on this authoritative view of Secretary of State
Hamilton Fish:
24
25
Time is required not only for the primary task of analyzing in detail the
materials on which the Court relies. It is equally required for adequate
reflection upon the meaning of these materials and their bearing on the issues
now before the Court. Reflection is a slow process. Wisdom, like good wine,
requires maturing.
26
Moreover, the judgments of this Court are collective judgments. They are
neither solo performances nor debates between two sides, each of which has its
mind quickly made up and then closed. The judgments of this Court presuppose
full consideration and reconsideration by all of the reasoned views of each.
The circumstances being what they are, I am forced, deeply as I regret it, to
reserve for a later date an expression of my views.
28
Mr. Chief Justice WARREN, Mr. Justice BLACK, and Mr. Justice
DOUGLAS, dissent.
29
30
For these reasons, we need more time than is available in these closing days of
the Term in which to write our dissenting views. We will file our dissents
during the next Term of Court.
Mr. Justice White concurring in Downes v. Bidwell, 182 U.S. 244, 292, 21
S.Ct. 770, 789, 45 L.Ed. 1088. See Dorr v. United States, 195 U.S. 138, 24
S.Ct. 808, 49 L.Ed. 128. 'The Dorr Case shows that the opinion of Mr. Justice
White of the majority, in Downes v. Bidwell, has become the settled law of the
court.' Taft, C.J., in Balzac v. Porto Rico, 258 U.S. 298, 305, 42 S.Ct. 343, 346,
66 L.Ed. 627.
Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016.
Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128.
Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627.
In this respect this case is entirely different from United States ex rel. Toth v.
Quarles, supra, where the defendant, after discharge from military service and
return to this country, was entitled to trial before an Article III court, and we
found 'no excuse for new expansion of court-martial jurisdiction at the expense
of the normal and constitutionally preferable system of trial by jury.' 350 U.S.
at pages 2223, 76 S.Ct. at page 8. In Toth we found that Article 3(a) of the
Uniform Code of Military Justice 'necessarily encroaches on the jurisdiction of
federal courts set up under Article III of the Constitution.' 350 U.S. at page 15,
76 S.Ct. at page 4. No like constitutional bar exists in the present case.
One need only consider the disruptive effect of establishing another type of
legislative court to deal with the same offenses in the same territorial
jurisdiction as the military tribunals. In cases of conspiracy or joint crime,
parallel trials would have to be held in separate courts. Since the trials could not
proceed at the same time, one would of necessity precede and influence the
other, and results could understandably be disparate. Nor is the problem of
insignificant proportions. Reliable figures show that our Armed Forces overseas
are accompanied by approximately a quarter of a million dependents and
civilian workers. Figures relating to the Army alone show that in the 6 fiscal
years from July 1, 149, to June 30, 1955, a total of 2,280 civilians were tried by
courts-martial. While it is true that the vast majority of these prosecutions were
for minor offenses, the volume alone shows the serious problem that would be
presented by the administration of a dual system of courts.
Mr Justice Brandeis dissenting in Burns Baking Co. v. Bryan, 264 U.S. 504,
534, 44 S.Ct. 412, 421, 68 L.Ed. 813.
10
E.g., self-incrimination, compare Art. 31 and 149b, and 72b, Manual for
Courts-Martial, with Adamson v. People of State of California, 332 U.S. 46, 67
S.Ct. 1672, 91 L.Ed. 1903; former jeopardy, compare Arts. 44 and 63 with
Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; use of illegally obtained
evidence, compare 152, Manual for Courts-Martial, with Wolf v. People of
State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.
11
See note 1, supra, and Schwartz, International Law and the NATO Status of
Forces Agreement, 53 Col.L.Rev. 1091; Re, The NATO Status of Forces
Agreement and International Law, 50 N.W.U.L.Rev. 349.
12
It has been suggested that bringing American citizens to this country for trial
See the opinion, in 1855, of Attorney General Caleb Cushing: 'The legal
rationale of the treaty stipulations as to China, with which we are now chiefly
concerned, and their relation to the legislative authority of the United States,
are explained in a dispatch of the Minister who negotiated the treaty, as
follows:
"I entered China with the formed general conviction that the United States
ought not to concede to any foreign state, under any circumstances, jurisdiction
over the life and liberty of a citizen of the United States, unless that foreign
state be of our own family of nations,in a word, a Christian state. * * *" 7
Op.Atty.Gen. 495, 496497.