Kinsella v. United States ex rel. Singleton

PETITIONER:Nina Kinsella
RESPONDENT:United States ex rel. Singleton
LOCATION:Federal Reformatory for Women in West Virginia

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: State trial court

CITATION: 361 US 234 (1960)
ARGUED: Oct 22, 1959
DECIDED: Jan 18, 1960
GRANTED: Feb 24, 1959

Frederick Bernays Wiener – for the appellee
Harold H. Greene – for the appellant

Facts of the case

Specialist Second Class James W. Dial of the United States Army and his wife, Joanna Dial, were charged with involuntary manslaughter for the death of their one-year-old child while stationed in Germany. James Dial was convicted of involuntary manslaughter, sentenced to three years in prison, and dishonorably discharged. His wife was not an active member of the military, but because she was a dependent of an active military member, she was tried in military court in Germany. She moved to challenge the jurisdiction of the military court over her case, but the motion was denied. She pled guilty to involuntary manslaughter and was sentenced to three years’ imprisonment.

Mrs. Dial’s mother, Alberta Singleton, filed a writ of habeas corpus on her daughter’s behalf and argued that civilian dependents of military personnel cannot be tried in a military court. The circuit court judge stated he did not want to grant the writ of habeas corpus but was bound by the Supreme Court caseReid v. Covert, in which the Court held that non-military personnel cannot be court martialed for capital offenses. Nina Kinsella, the warden where Mrs. Dial was serving her time, appealed the writ and argued that the defendant inReid v. Covert was on trial for a capital offense, whereas Mrs. Dial was on a trial for a non-capital offense. Therefore, the court was not bound by that case.


Do military courts have jurisdiction over civilian dependents of military personnel?

Earl Warren:

Number 22, Kinsella, Warden, Appellant, versus United States on the Relation of Singleton.

Mr. Greene, you may proceed.

Harold H. Greene:

Mr. Chief Justice, may it please the Court.

This is an appeal from the judgment of the District Court for the Southern District of West Virginia in which the Court granted the writ of habeas corpus to the appellee and declared Article 2(11) of the Uniform Code of Military Justice unconstitutional in so far as it applies to civilian dependents versus accompanying the armed forces who are convicted or tried for noncapital offenses.

The appellee was the wife of the soldier stationed in Germany.

In May of 1957, both the appellee and her husband were accused and charged under the Uniform Code with unpremeditated murder in violation of Article 118(2) of that code.

In two specifications, it was alleged that the appellee and her husband killed their one-year-old son.

Subsequently, the charge was reduced from unpremeditated murder to manslaughter in violation of Article 119 of the Uniform Code.

And the appellee — both the appellee and her husband pleaded guilty to that charge.

The appellee did, at the time of the trial, object to the jurisdiction of the Court on the ground that she was a civilian and therefore not subject constitutionally to the Uniform Code of Military Justice.

This objection was overruled and pursuant to the plea of guilty that both the appellee and her husband were found guilty and the appellee was sentenced to imprisonment for a period of three years.

The judgment and the sentence were approved by the convening authority and by the Board of Review and ultimately by the Court of Military Appeals.

A habeas corpus petition was filed in the Southern District of West Virginia where the appellee was incarcerated and the Court held, as I stated, that Article 2(11) was unconstitutional as applied.

Now this case, of course is like the case – like the two cases before this Court in Covert and Krueger in that involved the dependents, persons accompanying the armed forces except for this fact that here a noncapital rather than the capital offense is involved.

And the problem here is whether this difference, this distinction should make for a difference in the result.

The problem can really be broken down in two questions first, where the capital and noncapital distinction can be relevant at all for jurisdictional purposes, and secondly, if it can be relevant whether it should be decisive to the — to the outcome of the case, in other words, whether the result here should be different in the result that was reached in Covert.

On the first issue, it’s argued by the appellee that jurisdiction is a matter of fixed content which cannot, in any event, be varied depending on the gravity of the offense.

Well, that may well be true as a general matter, although it isn’t entirely in all cases.

For example, the military for many years from 1863 to 1916 had jurisdiction over common law offenses other than capital offenses, did not — did not have jurisdiction over capital offenses even the time of war until 1916.

It certainly is true in this situation and that is for these reasons.

The problem of course here is a constitutional one.

Now, the capital and noncapital distinction has relevance and has been held by the Court to have relevance in other types of constitutional cases and I’m specifically I’m referring to due process cases.

In our view, the problem that is here involved is essentially similar to a due process type of problem, and the techniques and the approach of the due process determination should be used and this arises essentially out of the fact that the offense was committed overseas outside of the jurisdiction of the United States proper.

Now, we recognize that In re Ross and the Insular Cases which this Court discussed at length both in the first Covert opinion and in the second Covert case, cannot be read to put the proposition that the Constitution cannot in any event have any application abroad.

But I think those cases do stand for the proposition that the circumstances of a particular case, the practicalities and the necessities do have relevance in determining whether any particular power, any particular provision does apply when the problem arises outside of the United States proper.

For example, in the Ross case itself it was deemed relevant that the — it was — it appeared necessary for the protection of Americans of Counselor Courts be established.

I’m not saying at the Ross case without more just because this was held to be true in the Ross case that therefore we could establish Counselor Courts or similar type of Courts in this situation, but it does stand for the proposition and — as far as we can determine and has not been overruled, it does stand for the proposition that in particular circumstances, various factors such as practicalities and necessities do have a bearing on the scope and the breadth of various constitutional provisions and policies.

The same would be true of the Insular Cases.

The Court there held in these various cases that — that, for example, jury trials need not be provided in Criminal Cases in the Philippines or in Hawaii and Puerto Rico and so on because it was said that the traditions and institutions in those territories didn’t lend themselves to that type of procedural device.

And again, while we’re not arguing if this has to be carried over as such into these cases, it does show that the approach is essentially one of determining each situation on its particular facts and on the circumstances as they arise.

Harold H. Greene:

So, the basic conclusion that can be drawn from those decisions is that — that practical matters, circumstances of the era, circumstances of — of the — the power that can be exercised properly in the particular — in the particular country at a particular time, do have relevance to the scope of — of constitutional powers and constitutional provisions and guarantees generally abroad.

Now, that’s true generally and then I suppose assuming that the conditions here are present for the same — in the same way that — that would come to the conclusion would it be relevant in this situation as well.

Now, the — that — that type of an issue as to whether the practicalities of the situation demand and the circumstances at least are relevant to determining the scope of powers is best and can really only be determined and — and decided by a due process type of approach.

On the one hand, the interests of the various parties have to be considered, on the other hand, the practicalities and necessities of the situation and that type of an approach, traditionally, the capital, noncapital distinction has been irrelevant factor.

I might say too that the same conclusion can be reached irrespective really of Ross or the Insular Cases simply on the — on the problem of the content of Clause 14 itself, the clause which permits Congress to provide for the Government and Regulation of the land and naval Forces.

As was indicated, as — as we quote in our brief from Alexander Hamilton from The Federalist, he had the view that the circumstances and necessities are relevant to the — to the determination of the scope of this Clause 14 power.

Now, we don’t mean to say that the Clause 14 power can be expanded at will, at the expense as it’s suggested by our opponents at the Fifth and Sixth Amendments, but we do suggest that the — the circumstances are appropriate in any — in any given case to determine how far the power extends.

For example, as we read the history, the power does extend — did extend in frontier type situations where there were no civil courts.

The power does extend and did extend in war time for civilians as — as some of the cases hold.

So, it — it seems to us that if those types of considerations can give content to the power and have given content to the power, then in this situation too, these — these same considerations maybe considered and maybe relevant to determine what the content of the power is.

We contend of course that in a — in a – certainly in the general way, the situation we have here overseas is analogous to the types of situations that were confronted by the British Parliament when the — the Articles of War 1765 were passed when — when they were talking about giving Court Martial Jurisdiction over persons who were in places where the — where our civil judicature as it is said in the — in the article is absent.

He — our the civil judicature is absent as the same way as it was in Gibraltar or in Annapolis in — at time when those articles were first enacted.

Now, assuming that it is capital, noncapital, distinction can be relevant across the problem still is whether the — whether that distinction should have a decisive impact on the case so as to cause a result that’s different from that was reached in Covert and we think that it does.

It has that impact and does have that significance.

In two respects, one that might be called that has negative and the other positive and negative aspect is simply the fact that here, the very important consideration that — that was so much discussed in the Covert opinions and concurring opinions, certainly, that life was at stake and that the — the death was irrevocable.

That factor is simply absent here.

That type of the factor which many times in the past has led the Court to make a sharp distinction between one type of process that may — maybe that do appropriate in one type of situation.

It has led the Court to hold that the same type of process need not be given, where noncapital cases involve.

But beyond that merely negative factor of the absence of the — of the capital nature of the case, there is also a positive factor and that has to do with the alternatives that are available to the exercise of Court Martial Jurisdiction.

Briefly, it’s our view that the only real alternative to the exercise of Court Martial Jurisdiction is also attractive and palatable and desirable from the overall American interest not only of the American government but also of this — of the persons involved themselves is a trial in this country.

And that I think was the rationale in which the decision — the ultimate decision in Convert can be explained.

In other words, it was possible to bring back to transport the few persons involved in capital cases back to this country for a trial.

The — It warranted and — and physically and practically possible, but I think it’s not realistic or practical to expect the same kind of approach in the many noncapital cases that are committed at all times overseas by the — almost half a million persons who make up this contingent that these cases are concerned with.

For — for these minor offenses, it would simply not be one that the said in motion, the elaborate apparatus that would be necessary to bring about a trial in the United States.

For example, the problem of witnesses alone would be a — a staggering problem.

The — some of the witnesses might be local police officials.

You would bring them back to the United States and they might have to wait for a considerable period of time until the trial could be held.

It would disrupt the operations.

They probably would not — wouldn’t — wouldn’t want to, wouldn’t feel like abandoning their duties in their respective countries to come here to participate in those trials.

Other persons — other witnesses might be co-conspirators or other persons who would be — might be reluctant to come here.

Harold H. Greene:

Now, I say that in capital cases, it would be warranted to make the specialized effort that would be necessary to overcome all those difficulties, but I don’t think that this kind — some kind of an effort either can be made or would be warranted in every type of minor or — or noncapital offense that might be committed by anyone, anywhere in the world that would be covered by this article.

Potter Stewart:

Mr. Greene, when you are referring to trial in this country, you’re talking about a trial in an Article III Court?

Harold H. Greene:

In Article III Court, yes.

Potter Stewart:

Upon indictment and trial by jury?

Harold H. Greene:

Yes, Your Honor.

That is the alternative that was suggested basically at the time the Covert cases were argued.

And I think the alternative is still suggested now but — because the other problems aside from the problem of witnesses, there is a problem of a speedy trial.

A trial would not take place in a local community.

All those problems would be attended on a trial in Article III trial in this country.

And we simply think that wouldn’t be warranted to — to do that in the run of the mill cases that occur overseas.

Potter Stewart:

A basic problem that troubles me, I’m so dull about it and I think it’s not even mentioned in the opinions in Reid against Covert is this.

This particular — this particular respondent killed their little girl together with her — her child — together with her husband.

Now, how and why is that an offense against the United States at all to — to require a trial or discovery if it’s an offense — if it’s an offense against the United States of America, it’s only so because it’s an offense against military laws, isn’t that true?

Harold H. Greene:

It’s correct.

At the present time, that is certainly true.

We would — we would of course — it — it is also true that —

Potter Stewart:

If these people had been tourist in Germany until their little child has been — even though they had been American citizens this would not have offended the laws of the United States, but they were violating the laws of Germany?

Harold H. Greene:

That is correct.

But of course, Congress could presumably make it a law against the United States trialable in Article III Court even though the offense was committed overseas.

Potter Stewart:

But it’s an offense against the United States only because of the —

Harold H. Greene:

At the present time, yes.

Potter Stewart:

— Military Code of Laws.

Harold H. Greene:

That is correct.

At the present time, that is — that is the only reason why it is an offense against the United States.

Potter Stewart:

And how or why would any Article III Court of this country have jurisdiction?

Harold H. Greene:

Well, as I say, at the present time, I think an Article III Court in this country would not — not have jurisdiction, but our opponent suggests that what should be done in these cases is for Congress to enact a whole of Code of Laws covering all offenses that might be committed, covering these particular persons in all country — all countries of the globe and then, they would be brought back here and they would be tried here in Article III Court.

That is what is suggested by — by appellee in this case and that while — while it’s true that the power to do that is there but it seems to us it’s very impractical.


Harold H. Greene:

— to the treason cases.

Now of course that what — that’s what — would have to be done here in the capital cases of dependents at least under the Covert decision.

Harold H. Greene:

And we say that it can be done in the occasional treason case or the — the one or two murders that are committed a year overseas, but it cannot be done and should not be done and shouldn’t be — shouldn’t be required in respect to all of the many offenses that might otherwise be committed.

Felix Frankfurter:

The writ of provision running way back anywhere but trials in a particular — they’ll be getting the face of a trial when there is no venue of any American district.

Harold H. Greene:

Yes, in the place where the person is first brought.

Felix Frankfurter:

Yes —

Harold H. Greene:

Yes, but you would still have to enact the substance of code for the offenses for each of the —

Felix Frankfurter:

For each — have a crime in order to – statue in order to be — lay the foundation for a prosecution.

Harold H. Greene:

What I’m trying to say —

Felix Frankfurter:

But the usual provision that a crime has to be prosecuted in the venue where they were submitted yield to the fact that if there is no — if it isn’t permitted in territory of a continental United States, you can designate the place where the person is brought at the appropriate place.

Harold H. Greene:

Oh yes, that’s quite true.

All I was trying to say is that the present time, the federal statutes on the Federal Criminal Code —

Felix Frankfurter:

Do not make this an offense?

Harold H. Greene:

Doesn’t make this an offense or any of this other offense that might be involved.

Hugo L. Black:

It must have been in the efforts as the Covert case to get Congress to pass a law making capital cases, capital offenses of that trial (inaudible) triable in the United States?

Harold H. Greene:

Not to my knowledge.

Hugo L. Black:

That is the defense department or the Department of Justice has something to do there?

Harold H. Greene:

Not to my knowledge, Mr. Justice Black.

Hugo L. Black:

Is it really the basic argument which you have here you have adopted, does it lead rather strongly to the impression that the ruling should be overruled in reference to capital cases?

Harold H. Greene:

Your Honor, we’re not here arguing —

Hugo L. Black:

Not now.

Harold H. Greene:

No, not at all.

The capital problem really has not been any major problem as — I was informed that in 1958, there wasn’t a single capital case among the civilian contingent.

And if there is one or two, I suppose that problem can be dealt with.

Hugo L. Black:


Harold H. Greene:

Well, either they could be turned over to the — to the foundation for trial if no — if no legislation is passed or I suppose, once these cases have been decided, a provision will simply have to be made for the punishment of capital offenses in the United States.

Hugo L. Black:

Once they have been decided, I thought it was decided by (Inaudible) at least by capital cases were concerned with the other cases.

Harold H. Greene:

I — I simply don’t know and I — I can’t tell why legislation has not been requested or enacted.

Tom C. Clark:

What it means is that you’re waiting to see what the Court would do on noncapital cases.

Harold H. Greene:

Well, of course that would — that would be a fact to the whole problem and so far as it can be solved, it would then be solved in —

Tom C. Clark:

We’re going to take it in two indictments and then take it in one indictment.

Harold H. Greene:

Then — then it can be determined to what — to what extent the problem can be solved and what can be done rather than dealing with it in the piecemeal fashion, but I simply — I can’t —

Hugo L. Black:

That’s the argument you make now to the reason of army and the navy have not (Inaudible)

Harold H. Greene:


I’m — I’m simply (Voice Overlap) I’m speculating.

I don’t know.

Tom C. Clark:

Aside from the numbers, every treason case is proven a — a very burdensome in the approved and in the prosecution.

Do you know?

Harold H. Greene:


I — I — well, I — I don’t know.

Of course in the Provo case, I believe was the treason case and that gave rise to — to a great problems of venue and then — and — and the speedy trial was — was held ultimately and the speedy trial was denied.

But I’m — I’m not suggesting that the problem would be so burdensome in the capital cases that it couldn’t be overcome.

But what I am suggesting if the problem is burdensome and is difficult to overcome, and really it wouldn’t be — it couldn’t for practical purposes be overcome in the noncapital types of cases.

Now —

Potter Stewart:

How long has it been historically that Military Law has taken cognizance of this conduct which constitutes fundamentally, non-military criminal offenses such as murder, rape, and so on and so on, about a hundred years at the time of the Civil War?

Harold H. Greene:

When the common law type crimes were made punishable under the — under the (Inaudible)

William O. Douglas:

Do you have any treaties with foreign countries who are civilian — dependents are stationed concerning the Military trail in the — in the Courts of the — of that nation?

Harold H. Greene:

Well, the NATO Status of course an agreement which apply — applies only to the NATO treaties provides for certain a procedural safeguards with respect to those persons of our visiting force, which would be tried in those Courts to certain minimum guarantees.

William O. Douglas:

Would this lady was going to fall on that — turning to that treaty?

Harold H. Greene:


No, Your Honor.

William O. Douglas:

Why not?

Harold H. Greene:

This treaty doesn’t apply to Germany.

It applies only to the NATO countries as it is — and negotiations have been had to make the NATO treaty apply to Germany, but at the present time, the United States has exclusive jurisdiction in Germany over any member of the visiting force including civilians.

William O. Douglas:

Are there any other countries that have that NATO type of agreement with?

Harold H. Greene:

Japan and the 14 or 15 NATO countries, I believe, have that type of — of the basic agreement.

Now, I would say this that probably —

William O. Douglas:

But then, we have any horrible hiatus that you are talking about here.

We have — we have a provision by Congress then for the trial of these people who violate the laws of another country.

Is that right?

That’s the policy apparently of the Federal Government.

Harold H. Greene:

No, the — well, the policy of the Congress expressed both in — in enacting Article 2(11).

Harold H. Greene:

And in — in the Senate reservation to the — to the ratification of the NATO Status of Forces Treaty was that waiver was where to be sought whenever possible and the Senate felt and the Congress felt that whenever possible, we should attempt to get a waiver of jurisdiction from the foreign nation so as to permit the trial rather in American Court Martial.

William O. Douglas:

By terms, those as I had gathered what you say the foreign countries would have primary jurisdiction.

Harold H. Greene:

The Congress would have a primary jurisdiction in some types of — it — it depends on the offense and it depends on the — on the status of the person.

Basically, with respect to dependents, they would have a primary jurisdiction in — in the NATO countries certainly not in Germany, of course.

In — with respect to employees, the foreign nations would not have primary jurisdiction if the offense is — is an offense against an American citizen or American property or the American base — the American government itself, we would have primary jurisdiction.

But I might say this, even in those cases, where the foreign nations do have primary — primary jurisdiction, the practice is shown that they have waived that jurisdiction in about 80% of the cases.

They have not exercised but have permitted the American Court — Courts Martial to be exercised rather than their own jurisdiction.

Charles E. Whittaker:

Who are the (Inaudible) that require the most countries to give respect to the request of this country to waive such jurisdiction and let this country pass this?

Harold H. Greene:

Only if — no, we cannot — we — in those cases where the host country has exclusive jurisdiction or primary jurisdiction, they are under no obligation to waive, but they have in fact waived their jurisdiction in most of the cases.

William J. Brennan, Jr.:

(Inaudible) situation here, this should been a capital offense, the Singleton case committed in Germany, what would have been the alternative?

Harold H. Greene:

Well, at the present time, the only alternative would have been to turn to — to relinquish our exclusive jurisdiction and permit the Germans to try.

William J. Brennan, Jr.:

Well, I thought I understood you to say that there was some impediment of doing that.

Harold H. Greene:

That we have exclusive jurisdiction under the treaties, that’s true.

But we — we can —

William J. Brennan, Jr.:

Under the treaties as —

Harold H. Greene:

Not under the treaties themselves but the practice has been at least — I know of at least one case which happen to be a capital case but it wasn’t — it wasn’t unpremeditated murder case in which the United States did not proceed and the — the woman was simply turned loose and she was tried in the German Courts subsequently.

William J. Brennan, Jr.:

Turned loose, you mean not turned over but turned loose?

Harold H. Greene:

Well, it’s — it’s a little hard to say whether she was actually turned over.

I — I think the — the German police was right there when she was released from —

Tom C. Clark:

You mean there’s no — you mean there is no convention between West Germany and United States providing to such a situation in terms, is that what you mean?

Harold H. Greene:

That’s correct because —

Tom C. Clark:

As against the situation for instance in Japan.

Harold H. Greene:

That’s correct.

Yes, Your Honor.

Now —

Potter Stewart:

There are some offenses, no doubt, are there not against Military Law, very grave offenses possibly against Military Law that would not be — would not violate the law of the — criminal law of the host country at all.

I’m thinking of security violations.

Harold H. Greene:

That’s correct.

That’s correct, Your Honor.

And no case —

Potter Stewart:

Some of which offenses might be committed by dependents as well as —

Harold H. Greene:

Those — the treaties provide that the host country — that the — that the concurrent jurisdiction exists only where the offense is an offense both under the law of the host country and of the — of the ascending state, where the offense is in — is an offense exclusively under the laws of the — of the host country, then only the host country has jurisdiction but it’s exclusively an offense under the — under the laws of descending state, and that state would have jurisdiction in all cases.

Potter Stewart:

Is there such a thing as an offense — as exclusively an offense under the laws is our country that is capital if that’s not even an offense at all against the —

Harold H. Greene:

Well, I — I suppose —

Potter Stewart:

— treason against our country, I suppose to deal with.

Harold H. Greene:

Espionage might be —

Potter Stewart:


Harold H. Greene:

Espionage, yes.

Potter Stewart:

What would happen to somebody — to a dependent guilty of that kind of an offense under Reid against Covert?

William J. Brennan, Jr.:


Harold H. Greene:

Well, I — I don’t suppose anything would happen.

Potter Stewart:

So you go unpunished —

Hugo L. Black:

That is not necessary, is it?

Harold H. Greene:

It’s not known.

The point is that — that of course the statutes could be passed to provide — to take care of that situation, but at the present time, if I understand your question correctly, nothing is —

Potter Stewart:

Under the existing law —

Harold H. Greene:

— under existing law, yes, Your Honor.

Potter Stewart:

Under this Court decisions in — under this Court’s decision on Reid against Covert and under the present statutes.

Harold H. Greene:

Under the decisions and on the statute as presently — as they presently stand —

Potter Stewart:

That kind of offense would go unpunished — unprosecuted.

Harold H. Greene:

That’s correct.

I — I will reserve if I have any time left?

Earl Warren:

Do you think we could go from little consequence variable around the variable consequences of the power — of the power to let the consequence before it went there?

Harold H. Greene:

Well, I think the — the consequence is that the necessities and the practicalities have an impact on the scope of the power.

We’re not attempting to extend — extend the power but the — the necessities.

I don’t know if the consequences — evil consequences is the — there’s a term I would use — they are trying to make an interim argument.


Harold H. Greene:

But consequences, practicalities, circumstances do have and have traditionally had an impact on the scope of the power to make Rules and Regulations for the Government — of land and naval Forces and they have also had an impact on the power of the — on the — on the scope of provisions of the Constitution outside —

Felix Frankfurter:

Imagining the power of what you claim in this?

Harold H. Greene:

We have the power, yes.

Harold H. Greene:

Basic —

Felix Frankfurter:

The basic power and the right of the power to (Inaudible) that’s rational, reliable (Inaudible)

Harold H. Greene:

Well —

Felix Frankfurter:

Just go on and say — what you’re saying is that has been certainly because these are the consequences that lead that to military law constitutionally recognized as a matter of history.

But then, you underline it, what would happen specifically right now by merely suggesting that you can’t (Inaudible) consequences to the undesirable and therefore there is power.

That is your argument.

Harold H. Greene:

It isn’t — that isn’t the argument but the same — the same considerations which led in history to the — to the scope of the power, in those situations, those similar types of considerations should — should lead to the interpretation of the scope of the power in this situation.

Felix Frankfurter:

If (Inaudible) it would rise the 70 pages in your brief of history rarely in that as an entity — we would have much of a foundation on this stand that is —

Harold H. Greene:

Well, we’re not saying that we have — that — that the historical analysis shows that at that time, there were — there was precisely the same situation where we had hundreds of thousands of — of American civilians overseas.

But what we are trying to show is that in the historical perspective, similar situations or — or situations of — of the same kind, of the same quality have given rise to an interpretation.

Felix Frankfurter:

You got to have a (Inaudible) the hundred thousand.

Harold H. Greene:

Well, we — we have — we have a paper —

Earl Warren:

Colonel Wiener.

Frederick Bernays Wiener:

The Court please, having argued the Covert case twice, I would prefer not to have to reargue its basic doctrinal considerations on other time within the confines of the summary calendar.

And so, I will address myself simply to the narrow question of whether this case should be decided differently because Mrs. Dial was charged with a noncapital offense.

Does it make any difference?

Well, the Board of Review in this case, page 22 of the record, the Board of Review composed of three army officers gave this answer, “We conclude that the necessity for military jurisdiction over dependents charged with noncapital offenses is sufficient to overcome the requirements of Article III in the Fifth and Sixth Amendments.”

Well, that’s a very simple method of amending the Constitution by the sword, but I will give this gentleman a credit for being forthright, for being candid, for not shading the facts and for not omitting anything.

Felix Frankfurter:

(Inaudible) that the Congress had —

Frederick Bernays Wiener:

I think it will prove to be a very dull sword.

Let us — let us look for a minute on this solid basis of history on which the government relies as infusing into constitutional interpretation, a well-established practice of trying civilian dependents.

Now, from 1778 in the snows at Valley Forge during the revolution until 1950 in Tokyo, only two women were punished by American — by the American Military, neither of them dependents.

One Polly Tommy, a soldier slut flogged without trial in 1795 and Lydia Connor, who sold whiskey to soldiers, drummed out of the camp at Detroit in a place where the Civil Courts were functioning and that —

Neither of them were dependents?

Frederick Bernays Wiener:

Neither were dependents, and that is supposed to be if the Court please a solid basis of history.

Now, it is said there is no acceptable or practical alternative to deal with dependents charged with noncapital offenses.

The fact of the matter is that Article 7 of the NATO Agreement specifically concedes primary jurisdiction to the foreign country, the host country, over all offenses committed by dependents, primary jurisdiction.

Now, there is therefore a solid, practical, and acceptable alternative arrived at by solemn international agreement.

What about Berlin or Mrs. Cheaps also charged originally with unpremeditated murder as was Mrs. Dial?

She brought the habeas — habeas corpus here and she was turned over to the Germans.

Frederick Bernays Wiener:

And I think that the new German agreement which we mentioned will make the NATO arrangement.

Now, on the impact of Article VII of NATO, a noncapital crime is committed by dependents.

Your Honors will not be confused by any discussion in the government’s brief because they don’t mention it in their brief at chief and they don’t deny it in their reply.

Let me address myself to this capital, noncapital distinction.

It’s our position that with one narrow war time objection, which I’ll come to in a great length in just a minute.

With one narrow war time exception, military jurisdiction rest upon military stages.

Now, there are a whole lot of decisions here that when someone becomes a member of an armed force, he assumes new rights, he assumes new obligations, new liabilities, obligations and liabilities, so comprehensive in their totality as to constitute a state.

Now, that must mean something and only about 10 years ago, this Court had occasion to refer to the vast gulf between the civil and the military jurisdiction and it is a vast gulf because each rests on a separate head of power, one on Article III, the other on Clause 14.

And I say that that isn’t a due process question at all. Due process considerations are eminently proper, where the question concerns the exercise, the mode of exercise of an admitted power.

But due process has nothing to do with the question whether the power exists at all.

And we are speaking now of constitutional power and not of legislative judgment whether or not particular capital offenses should be triable by a Court Martial.

Now, what is the exception to the rule of states?

It is the war time exception of jurisdiction over persons in the field.

That is a war time jurisdiction.

It rests on the war power and there is all the difference in the world between peace and war in this connection.

In time of field in war — in war, in time of field is where military operations are in progress.

War may be a declared war.

It may be an actual, undeclared war such as the hostilities with the Indians or the hostilities in Korea.

As long as there is shooting it’s in the field, and war is a fact and not a legal condition.

Now, the very words of the old camp-follower article, can in the field where words that imply a condition of hostilities.

As the Judge Advocate General said, strictly speaking, “There’s no such thing as a camp-follower in time of peace because if it’s peaceful, you don’t have a camp.”

And it is not a basis for overseas military jurisdiction in time of peace that there happen to be no domestic civilian courts around.

(Inaudible) regular employees and dependents?

Frederick Bernays Wiener:

I do not, I’m not — I — it’s a question of status by both civilians as the government said in 1957 in their brief on re-argument for purposes of Court Martial jurisdiction, there is no valid distinction between civilians employed by the Armed Forces and civilian dependents.

The only difference is the difference of degree as to connection — functional connection with the service and there’s a difference that there are more trials of accompanying civilians who aren’t dependents.

You accept that premise.

You are on agreement on that premise?

Frederick Bernays Wiener:

We are in agreement —

Where your split is on the historical?

Frederick Bernays Wiener:

Exactly and — and I — I think that the government on the history splits not only for me but also from the history.

Frederick Bernays Wiener:

Now, let us go — let us go for a minute on the “in the field” jurisdiction.

The government has quoted a passage — rather lengthy passage from Samuel, historical account of the law of military.

That was quoted two years ago, it is cited I think Mr. Justice Harlan on the footnote in Your Honor’s opinion.

Now, what it isn’t quoted is the introductory paragraph from 691 which says this.

“The second description of persons to which the article refers, namely settlers and retainers of the camp and persons serving with the king’s armies in the field, though they should not be enlisted soldiers, are subject to military orders not by the letter of the Mutiny Act but by the usage and customs of war.”

In other words, it is in exercise of the war power.

Now, I brushed off when I dealt with the Samuel quotation, I brushed that off, “Oh that’s in the field” and I went on to digging into our own history.

But thanks to Mr. Kehoe who represents the petitioner in 1958 and it wasn’t prepared to brush the matter off, he looked in to Samuel.

He got the book and he finds that after the section quoted by the government, there are three instances of trials, some brutal punishments, one of a thousand lashes, all of these three instances from the Peninsular War in Spain in the British Army.

And then, this paragraph on page 697, this article so far as it respects settlers and retainers and persons serving the armies and actual service and in the field does not attach to the same persons in camp Toemans or in barracks at home or in similar establishments which are of a permanent and domestic nature abroad where the ordinary laws have their force and are administered through the medium of the Civil Courts.

In other words, even in the British service, this jurisdiction wouldn’t be exercised where there was any kind of a civil court around.

And in all of these three instances — the four cases here, there were foreign civil courts functioning.

That’ not true with present British jurisdiction?

Frederick Bernays Wiener:


No, since January 1957, the British have expanded their jurisdiction but they don’t —

There’s always a — there’s always debates.

I have read them at the time of that expansion indicate they were breaking traditions in creating this present jurisdiction?

Frederick Bernays Wiener:

I can’t say whether the debates do but it’s perfectly fine if you examine the text of the Army Act 1955 with the text of the Army Act 1951, that it was a wider jurisdiction.

I think the reason given was that they were giving up the consular courts.

But of course, the British don’t have Clause 14 to contend with.

They would have decided Reid v. Covert differently.

They would have decided the Toth case differently and they would have decided the Hirschberg case differently.

They don’t have this problem at all but they did say way back that if there is any kind of civil court functioning, this war time jurisdiction won’t be exercised.

Now, I think if your — if, Your Honors look at the definitions of “in the field”, the opinions of the Judge Advocate General, and the Attorney General that stressed the limits of military jurisdiction, Your Honors will find that this is something sought to be brushed aside by the government as though it were a personal aberration of Colonel Wilkins and yet, these distinctions appear in four published editions of the digest of opinions of the Judge Advocate General, and I think this would be a good case to apply the doctrine which is expressed in opinions of this Court that the opinions of the Judge Advocate General on questions of military law are entitled to some respect.

And the Attorney General also held that this jurisdiction could only be exercised in time of war in the field.

And in that connection, I must confess to an error in my — in the Singleton brief, I accredited to Attorney General Devens the opinion in 14 of 22 which defines “in the field”.

That was Attorney General Williams.

Attorney General Devens wrote the opinions in 16 up, which says, “You can’t try civilians except in time of war or in the field.”

Now, except for this settled exception which rests on the war power, I think it’s plain from the cases and the discussions that the camp, the military jurisdiction without military states and I will now proceed to set forth additional grounds where the capital, noncapital distinction is untenable.

First, you cannot get it out of the Constitution.

Frederick Bernays Wiener:

The only place where the Constitution mentions capital offenses is in the Fifth Amendment.

And there, the grouping is not capital versus noncapital, but capital and other infamous crimes on the one hand and all others on the other.

These — all of these cases would be infamous in the constitutional sense had they been tried in the Civil Courts and second, even that distinction by — by the terms — by the next Clause of the Fifth Amendment is not applicable to military cases.

Second, you cannot get the capital, noncapital distinction out of the — out of Clause 14.

We’re dealing with four words land and naval Forces.

What is the content of those four words?

Now, I submit that it is impossible for the — even the most refined constitutional exegesis to say that land and naval Forces plainly excludes women charged with premeditated murder but equally, plainly includes them when they are charged with unpremeditated murder.

There’s no difference — there’s no distinction —

Felix Frankfurter:

Unless making relevant to the constitutional (inaudible) legislative power.

Frederick Bernays Wiener:

I don’t think so.

I think that the —

Felix Frankfurter:

I’m not saying it is.

I’m saying they become relevant.

I don’t have — that’s the question of defining land and naval Forces.

Frederick Bernays Wiener:

Well, you can only get it from land and naval Forces plus Clause 18.

And I say that both are amended by the Sixth Amendment and that you don’t throw the three into the pot and jumble them in a way interest.

The very purpose of the Bill of Rights was to preclude precisely the kind of expansible meaning in a prohibited zone.

Now, the — there’s a –there’s a vast difference between what Hamilton said would be Necessary and the Proper Clause, the Sweeping Clause as they called it in those days, there’s a vast difference between what he said of the Sweeping Clause in 1787 when he was writing The Federalist and what he put in his memorandum on the bank in 1790, which became the basis from McCulloch against Maryland.

And the fact — the historical fact is that people weren’t willing to trust this new government unless some boundary were drawn.

Now, Hamilton in Number 83 of The Federalist is all what jury trial is left unimpaired.

They prefer to have an amendment.

And therefore, I say that to — to suggest that the scope of the Sixth Amendment is to be less by anything in the original instrument is to do violence to the very notion of the Bill of Rights and to the very thing which the Bill of Rights was to prevent namely, success for the argument that land and naval Forces is an expansible concept which sweeps into its small civilians.

(Inaudible) what you’re saying as I understand, in determining the scope of the Article 1 power, you cannot resort to any degree to the Necessary and Proper clause.

Frederick Bernays Wiener:


I — I say you can — the resort of the Necessary and Proper Clause but both are amended by the Sixth Amendment.

Now, if it is a question of federal power, I an as staunch a Hamiltonian as you find in any courtroom, but if it’s a question of what are the limitations, those limitations are fixed by the Bill of Rights and the power can’t go beyond that.

Now, if they want to charter a bank, fine.

If you want to punish somebody for stealing from a National Bank, fine.

But you can’t cut off the right to a jury trial.

I’ve got — as I say, limited in my time.

Frederick Bernays Wiener:

I’ve discussed that in the brief but it is not a question of weighing interest because the Sixth Amendment says, “Thou shalt not.”

Now, another capital, noncapital distinction historically, well, historically, when 1787 most — many, many military offenses were capital that the — the most important ones were capital and the only noncapital, capital distinction that you’ll find is on records of Courts of inquiry and depositions.

You couldn’t use those in capital cases.

Under the older jurisdictional test of the scope of — of the review of judgments of conviction by Court Martial, you look to was the Court properly appointed, did it have jurisdiction of the person, did it have jurisdiction of the subject matter, did it exceed the permissible sentence.

I don’t know whether that’s still law today.

But the capital, noncapital distinction would make jurisdiction of the person depend on subject matter.

And finally, it is untenable in the context of military law.

The first place, Reid v. Covert when it reached the Civil Courts was a noncapital case.

It was a noncapital case when she petitioned for habeas corpus because she was to be held for rehearing which couldn’t have adjudged the capital sense and that’s why the prosecution is going to use the deposition.

In the second place, Article 118, the homicide article has four branches of homicide one, unpremeditated murder — premeditated two, unpremeditated; three, reckless murder, the one disregard and fourth, felony murder.

Well now, how can we say that you can try for Article I — you can’t for Clauses 1 and 4 but you can for 2 and 3?

It’s even more confusing.

Among the offenses which constitute felony murder, this is 118(4) is someone engaged in the perpetration or attempted perpetration of burglary and four other offenses.

Now, burglary is denounced by Article 129 of the Code, housebreaking, which doesn’t figure in felony murder, is denounced by 130.

The manual construing and explaining the burglary article says that a tent cannot be the subject of burglary, but that out houses in an inhabitant area can be.

In other words, if you are attempting to commit — enter — if you kill a person who is sleeping in a tent while you’re burglarizing the tent or you want to steal something from it, it is a noncapital offense but it is – and it’s a capital offense.

Now, I say it’s not only ridiculous to make the very constitutional power to try at all depend on this kind of distinction.

It’s revolving.

Potter Stewart:

Isn’t Colonel Wiener that this very distinction, the knowledge of counties existed in the military law for good many years, isn’t it true that in time of peace in this country even a soldier had to be tried in the Civil Courts for —

Frederick Bernays Wiener:

There was —

Potter Stewart:

— for capital offenses but not for noncapital offenses (Voice Overlap) rape and murder —

Frederick Bernays Wiener:


The distinction — the distinction was different, Your Honor.

The distinction was that until 1951, in time of peace, the soldier should be turned over to the civil authorities on request but it didn’t have to be in time of war.

Also, —

Potter Stewart:

For what offenses?

Frederick Bernays Wiener:

What’s that?

Potter Stewart:

For what offenses?

Frederick Bernays Wiener:

Any offenses, any civil offenses.

Potter Stewart:

What was the statute that this Court was concerned within Lee against Madigan?

Frederick Bernays Wiener:

In Lee against Madigan, AW-92 of 1920 or 1948, which said, “Nobody shall be tried for rape or murder committed within the States of the union in time of peace.”

I have phrased in the brief the development of the extension of military jurisdiction for military persons in respect of civil offenses.

There were certain offenses in time of war in 1863.

The civil felonies were not specifically made punishable in time of peace until 1916.

And in the — in an Ex Parte Mason, 105 U.S, the trial of the — by Court Martial of the soldier who shot at Guiteau, President Garfield’s assassin, he was charged under the general article as convict attending to the prejudice of good order in military discipline.

In the Grafton case in the 206 U.S., homicide by assassin, he was tried by the Court Martial under the general article because manslaughter was not specifically an offense in time of peace.

But what I’m saying is that military jurisdiction in those instances is a matter of legislative judgment.

There’s no question of the power of Congress to make punishable by Court Martial all capital offenses committed by persons in uniform, although it’s never yet may imprison punishable under the Articles of War.

But what we’re dealing here — with here is constitutional power and I say when you go into the context of military law, you cannot find that capital, noncapital distinction as a question of, “Can we try this person at all?”

And incidentally, it’s interesting and perhaps amusing that the government’s position on the capital, noncapital distinction is very different in this case than it is in the Grisham case.

Now, here is a dependent woman charged of a noncapital case and the government says, “Oh, this is a tremendous distinction.”

And then, we have Grisham who is a civilian employee charged with a capital offense and the government says, “Oh well, it’s no — no distinction at all.

The same business, he’s a civilian employee and not a dependent and therefore it’s not like Covert.”

But at any rate, the point I want to make is that when you are dealing here with the narrow question of civilian dependents, I don’t think you will find any basis in history or practice for their trial by Court Martial in time of peace, after all, two incidents, two incidents in a 172 years and both of them in manuscript, one in the archives and the other at the west point.

Now, as to the practical necessities, I’ve mentioned Article VII, I’ve mentioned the fact that they turned this mischief charged with the same offense over to the Germans.

I might say that they have acquiesced and that the government acquiesced in the number of earlier cases holding that there was no jurisdiction and I think I will mention the Girard case.

In the Girard case, the government came here and obtained a decision that it had power to turn Girard over to the Japanese.

Now, of course it did, no question about it.

Well now, if it was a — a matter of national honor to turn Girard over to the Japanese, why couldn’t these four people have been tried by the local court?

Why couldn’t Guagliardo have been tried by the Moroccan court?

He was in a Moroccan jail for sometime.

Why couldn’t Mrs. Dial have been tried by a German Court just as well as Mrs. Cheaps?

Why couldn’t Wilson in the next case as — which I’ll come to — been turned over to the Germans.

And as for Grisham, he killed his — he killed his wife on French soil, he is the self-made widower.

He killed his wife on French soil, he was held in the custody of the French police for two weeks.

Why wasn’t it an acceptable alternative to turn Grisham over to the French when his only connection with the Army was that he was a civilian employee from the National — from the Nashville Engineer District to his on six months temporary duty at Orleans, France.


Frederick Bernays Wiener:

Well, we have a lot of the — I think the government’s prize exhibit is Saudi Arabia.

How would you like to have your wife tried in a Saudi Arabian Court and have her hand cut off?

This makes quite an impression on District judges I may say.

Frederick Bernays Wiener:

Well we have looked at all the — Ramco civilians we’ve got in — in Saudi Arabia.

They are not subject to trial by Court Martial.

And — and as Mr. Shakett pointed out, we have given up our consular jurisdiction in Morocco because we felt that it was appropriate to do so.

And that was the last outpost of consular jurisdiction.

In other words, we proceed on the basis that all of these people are civilized.

We held on the extra territoriality in China for a long time saying we can’t trust the Chinese Courts.

We gave it up in 1943.

We’ve given it up everywhere so that I would say that as long as we permit American civilians to travel to those countries on American passports where they will be subject to the jurisdiction of the local courts, we can’t say that it is an unacceptable alternative to turn over particular classes.

So, the conclusion I arrive at is that Reid v. Covert governs this case that the District Judge was right in so holding and that his judgment freeing Mrs. Dial from custody should be affirmed.