Reid v. Covert

PETITIONER:Curtis Reid, Superintendent of the District of Columbia Jail
RESPONDENT:Claris Covert
LOCATION: RAF Station Brize Norton

DOCKET NO.: 701
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

ARGUED: May 03, 1956
DECIDED: Jun 11, 1956
REHEARING GRANTED: Nov 05, 1956
REARGUED: Feb 27, 1957
DECIDED: Jun 10, 1957

ADVOCATES:
Frederick Bernays Wiener – for the appellee Covert and the respondent Kreuger at argument and reargument
J. Lee Rankin – Solicitor General, Department of Justice, at reargument for the appellant Reid and the petitioner Kinsella
Marvin E. Frankel – for the appellant Reid and the petitioner Kinsella

Facts of the case

While residing at an airbase in England as a military dependent, Mrs. Clarice Covert was tried and convicted by court-martial for the murder of her husband, a sergeant in the United States Air Force. Mrs. Covert was not a member of the armed forces. Her trial and subsequent conviction by court martial in the United States was authorized under Article 2(11) of the United States Code of Military Justice. Mrs. Covert filed a petition for a writ of habeas corpus in federal district court alleging that her conviction by military authorities had violated her constitutional rights under the Fifth and Sixth Amendments. The district court, holding that “a civilian is entitled to a civilian trial,” granted her petition. The Government appealed directly to the United States Supreme Court.

In its initial decision of the case (351 U.S. 487), the Court held that Mrs. Covert’s military trial was constitutional, that the Constitutional right to a trial by jury did not apply to American citizens tried in foreign lands. Congress, the Court held, could provide for trial by any means it saw fit so long as such means were reasonable and consistent with due process. Justice Felix Frankfurter issued a lengthy reservation, and Chief Justice Earl Warren together with Justices Hugo L. Black and William O. Douglas issued a strong dissent. The Court subsequently granted a petition for rehearing.

Question

Do American citizens abroad retain the rights granted to them by the Bill of Rights thus rendering Article 2(11) of the United State Code of Military Justice unconstitutional?

Earl Warren:

Number 701, Curtis Reid, Superintendent versus Clarice B. Covert and Number 713, Nina Kinsella, Warden et cetera versus Walter Krueger.

Mr. Frankel.

Marvin E. Frankel:

May it please the Court.

The important question common to both of these consolidated cases is whether Congress violated the Constitution when it provided 40 years ago and again in Article 2 (11) of the Uniform Code of Military Justice, that civilians accompanying the armed forces outside the United States, where foreign courts would normally have jurisdiction, could be tried by an American courts-martial for their offenses in those foreign places where international law or international agreement permit.

The Covert case, Number 701, is here on direct appeal from the District Court for the District of Columbia where Mrs. Covert was ordered discharged on habeas corpus.

In March 1953 and for sometime theretofore, Mrs. Covert was living on an American Air Force base in England.

She had been brought to England by military service transport.

She had come to England under statute and regulations providing that dependents of armed forces personnel overseas might, in stated circumstances, come overseas to live with them.

As such a dependent living on the Air Force base, Mrs. Covert used commissary facilities, post-exchange and other military facilities, medical and so on and lived with her husband in quarters furnished by the military.

On March 10, 1953, Mrs. Covert killed her husband with an axe.

At that time, there was in effect an agreement between the United States and the United Kingdom and a British statute implementing that agreement, both of which are set out in the appendix to our brief in the Covert case beginning at page 74.

Under that agreement for the duration of the war and for such further period as the parties might agree which ultimately extended to the time as relevant in this case.

The United Kingdom agreed to relinquish its normal local jurisdiction over American person subject — over a person subject to American military law in England.

And the United Kingdom agreed that American military tribunals might exercise in England their military jurisdiction over such persons for offenses committed in England.

In accordance with that agreement, a certificate was made by the commanding officer of the Air Force base stating that Mrs. Covert was a person subject to American military law.

The British, thereafter, refrained from taking any action with reference to this murder and Mrs. Covert was tried by court-martial.

She was convicted.

Her conviction was affirmed by a board of review in a divided vote, 2-to-1.

Thereafter, her conviction was reversed by the Court of Military Appeals, again in a divided vote on two grounds which are not important here but which might be mentioned.

One, that prosecution witnesses had misinterpreted and misapplied in Air Force manual on the question of legal insanity in giving their testimony, and two, that the law officer of the court-martial had erred in failing to instruct on mental impairment as affecting premeditation as well as the question of guilt or innocence totally.

On the reversal, the Court of Military Appeals ordered that there be a rehearing if practicable.

Thereafter, such a rehearing was ordered.

What does impractical — impracticable mean?

Marvin E. Frankel:

Impracticable means as I understand it, Your Honor, if in the judgment of the prosecuting authorities, there is reason to hold a rehearing if it would be just to do so if the other man is warranted.

And this leads to the convening authority the power to determine whether there’s a rehearing and there’s no — no issue as to that.

And meanwhile to trace the location of Mrs. Covert during this offense as to which a non-constitutional issue was raised, they can be summarized as follows.

On June — in June, 1953, following her conviction, Mrs. Covert, following her conviction but before review in the military appellate tribunal, Mrs. Covert was flown in Air Force custody from England and confined in the Federal Reformatory for Women at Alderson, West Virginia.

She remained there until after the rehearing was ordered.

When she was brought to the District of Columbia, the rehearing having been ordered to be held at Bolling Air Force Base near here.

Here, because the Air Force did not have appropriate facilities, it arranged as everybody apparently agrees was its right for her confinement in the District of Columbia jail of which the appellant Curtis Reid is superintendent.

Marvin E. Frankel:

Then before the rehearing, which was scheduled to take place sometime in November 1955 and 10 days after this Court’s decision in Toth against Quarles, this — the petition for habeas corpus was filed.

On November 22nd, on the return day of the writ, Judge Tamm held that Toth against Quarles required the invalidation of Article 2 (11) and ordered Mrs. Covert — Covert’s release.

Now, in Number 713, the Krueger case, the facts are strikingly similar and for our purposes at least for purposes of this constitutional issue, substantially identical.

Mrs. Dorothy Krueger Smith, the daughter of the respondent in Number 713, General Krueger, who brought the petition for habeas corpus on her behalf, Mrs. Dorothy Krueger Smith killed her husband on October 4, 1952 in Japan.

Like Mrs. Covert in England, Mrs. Smith had gone to Japan to live with her husband, an army colonel.

She lived in government provided quarters at a place called Washington Heights, an American installation in Tokyo, used government commissary, post-exchange, medical and other facilities.

In her case, the basis for the exercise of American military jurisdiction was a security treaty with Japan and an administrative agreement thereunder whereby Japan agreed to the exercise of such jurisdiction by American military courts of a person subject to American military law.

Mrs. Smith was convicted by the court-martial, sentenced to life imprisonment and her conviction has been affirmed by all the military appellate tribunals.

Her conviction was finally affirmed by the Court of Military Appeals on December 30, 1954.One year later, in December 1955, again on the basis of this Court’s decision in Toth, the petition for habeas corpus is denied.

In this case, which came before Judge Moore in West Virginia, it was held that Toth was not applicable, that Article 2 (11) was constitutional and that she was probably — properly held under the sentence of the court-marital.

Now, at the outset of Number 701, the Covert case on direct appeal under 28 U.S.C. 1252, there is a question as to the jurisdiction of this Court and obedient to this Court’s rules, I would like to address myself briefly first to that question.

Now, Section 1252 of Title 28, under which we have brought this appeal, appears in the Government’s brief in Number 701 at pages 2 and 3.

It provides that there may be an appeal from any judgment, decree or order of any court of the United States holding any Act of Congress unconstitutional in any civil action suit or proceeding and here we reach the controverted words.

Any suit, action or proceeding to which the United States or any of its agencies or any officer or employee thereof as such officer or employee is a party.

Now, the appellee claims that Curtis Reid, being the superintendent of the District of Columbia jail is not the type of party within that final language warranting this direct appeal, that because he is an employee of the District of Columbia, he cannot here be viewed as an employee of the United States or one of its agencies and the appeal therefore must be dismissed.

Now, the reason and purpose of this jurisdictional statute are, of course, familiar to the Court.

As the Court said in Fleming against Rhodes, its purpose was to provide the Federal Government with proper view by this highest tribunal of cases where Acts of Congress had been held unconstitutional.

There is no question that that standard is met here.

The same statute enacted in 1937 provided in what is now 28 U.S.C. 2403, for a notification to the Attorney General in any action where a federal statute was being drawn in question where the United States or an agency or an officer or employee of the United States or an agency was not a party.

The obvious purpose there being to avoid the invalidation of federal statutes behind the back of the Government’s responsible officers as it were.

Now, that aspect of what Congress sought is met here too.

The Attorney General has been in this suit from the outset.

There was no notice to the Attorney General.

There was no occasion for it.

We think it was not an accident that the Attorney General was here.

Everybody, our opponents, as well as we, have assumed from the outset that Curtis Reid was an officer who could properly interpose the authority of the United States and against whom the appellee could test the authority of the United States in a way that would bind the United States and all its officers.

Now, we think you can reach the result of holding that the jurisdiction exists by two rules.

One, by holding as we think would be perfectly proper that in the context of this case, Curtis Reid is an employee of an agency of the United States.

And two, by holding alternatively or also that he is an employee of the United States directly.

First, it is familiar, of course, in particular context to refer to the District of Columbia as an agency of the United States.

Marvin E. Frankel:

There are contexts where that is not true.

The meaning of the word “agency” of the United States, the propriety of using the word “agency” must, of course, be determined by the purpose for which the question is asked.

Here, where Curtis Reid obviously exercised Air Force authority, general federal authority on behalf of the Air Force, in turn on behalf of the United States, we think it appropriate to consider the District of Columbia jail or the District of Columbia an agency of the United States and Curtis Reid an employee of such an agency.

Earl Warren:

Mr. Frankel, would you mind stating to us what relationship this particular jail as to the present system — federal present system and if there is any difference in responsibility or the way they take their prisoners and so forth.

Marvin E. Frankel:

Well, there is a difference and that the District of Columbia jail is under the Department of Corrections, I believe it’s called, under ultimately the Commissioners of the District of Columbia.

But it is in many respects a jail of the United States.

Its activities and the confinement of prisoners therein are supervised by statute by the Attorney General who determines what prisoners should be assigned there and what prisoners should be assigned elsewhere.

Offenses in the District of Columbia are offenses against the United States and the terms and the place of confinement are subject to the authority of the Attorney General.

Now, here, the action was taken on behalf of the Air Force.

This was Air Force custody as our opponent recognize when he wanted the custody changed.

He wanted Mrs. Covert taken to St. Elizabeth’s for sanity test which was made and were — she was determined to be sane.

He addressed his request to the Air Force and the Air Force took the necessary action.And that leads to our second point.

Earl Warren:

Well, on that point.

May — may the — this jail refuse to take any — any prisoners as in the case of states and — and cities and counties or — or have they the right to — to send them to this prison in any circumstances?

Marvin E. Frankel:

Well, the Attorney General may designate for federal prisoners, any available, suitable and appropriate institutions whether maintained by District of Columbia, the Federal Government or otherwise.

And if he determines that the District of Columbia jail was appropriate, Curtis Reid takes the prison.

Earl Warren:

He must take them.

Marvin E. Frankel:

He must take them to prison.

Now, there’s been no issue and I cannot say as flattening that Curtis Reid must take an Air Force prisoner.

I think the issue would never arise.

Nobody has ever questioned the propriety of what was put as a request by the Air Force.

Curtis Reid acted for the Air Force.

The only question in this case is whether Article 2 (11) is valid.

Curtis Reid is here claiming his right to hold her under Article 2 (11) or the consequences of Article 2 (11).

Now, Curtis Reid may also be viewed as an employee of the United States directly.

This Court said long ago in an opinion by Mr. Justice Stewart that even where a federal prisoner is confined in a state jail, the keeper of the state jail for that purpose may be viewed as the keeper of the United States.

We quote that at page 24 and unfortunately for ourselves we left out the next sentence which is also interesting, it says, but this — this fact, the state keeper is the keeper of the United States would no more make the marshal, who was involved in that case, liable for his acts then for the acts of any other officer of the United States whose appointment is all together independent.

Now, there in another context it’s true, the state keeper was referred to expressly as an officer of the United States.

Here, where Curtis Reid asserts federal custody under a general federal statute, we say he acts as an officer of the United States within the meaning of the statute, all of the purposes of which are clearly served by holding that this appeal properly lies to this Court.

Now, I would like to turn with that to the important common question in these cases, the validity of Article 2 (11).

Marvin E. Frankel:

Judge Tamm in his opinion from the bench on the return day of the writ held that Article 2 (11) had to be invalidated because of this Court’s decision in Toth against Quarles, which he said has virtually turned inside out, a great many earlier decisions specially in Courts of Appeal and in U.S. District Courts.

In this, Judge Tamm was reflecting the views of Colonel Wiener, my opponent, himself an eminent military lawyer who had pointed out to Judge Tamm and also pointed out to Judge Moore in the Krueger case that the filing of his petition for habeas corpus was the direct result of the Toth decision, that he had handled these cases for Covert, I believe both of them, certainly Covert, in the military appellate tribunals and had not raised any question about the validity of Article 2 (11) but, said Colonel Wiener, the Toth case very much shook the thinking of military lawyers thus explaining these petitions filed so promptly thereafter.

Now, it would be my purpose to show that this case is not ruled at all by Toth and that the 40-year old provision, which is now Article 2 (11), is clearly within the powers of Congress.

And I would like to pursue to make that showing, two main lines of argument.

First, I shall argue that under the settled principles stated in this Court’s decision in In re Ross.

Congress has power to provide for a trial in a foreign country for an offense committed in that foreign country where that foreign country will somehow relinquish its own jurisdiction without granting the right to trial by jury or without requiring an indictment.

I shall argue further that Article 2 (11) is sustained by the power of Congress in Article 1 (a) in Clause 14, the power to make rules for the Government and Regulation of the land and naval Forces under the War Power and under the Necessary and Proper Clause which gives Congress the power to enact, although it’s necessary and proper for its own powers and for powers which reside elsewhere in the Government including the President’s powers as Commander-in-Chief and our organ of foreign relations.

Now, first, the point — and in — in making these points, it will be my effort throughout to indicate at the appropriate places where we think the Toth decision is clearly distinguishable.

Now, in the Toth case, this Court said and I think this might be regarded as the main theme of the opinion that where you were dealing with a person like Toth, with a civilian ex-service man who had no more relationship with the military and who would normally, like Toth, be within the United States when a military jurisdiction was asserted over them.

This Court said in such a situation any expansion of court-martial jurisdiction like that in the 1950 Act, Article 3 (a), necessarily encroaches on the jurisdiction of federal courts setup under Article 3 of the Constitution.

Now here, we say there is no such encroachment for a trial in a foreign country for an offense committed in that foreign country where Congress by agreement or international law can obtain jurisdiction from that foreign country.

There is no right to trial in an Article 3 court, to trial by jury followed only by indictment or even to trial by — or to trial by judges with life tenure.

And that principle, we think, is made clear by the decision in In re Ross.

The Court will recall that in that case there was a seaman on an American ship charged with a murder of the ship’s officer in the court of Yokohoma.Under a treaty, Japan had relinquished to the United States its — its jurisdiction over offenses committed by Americans in Japan.

A federal statute, a statute of Congress authorized the exercise of this jurisdiction in Japan and other countries by consular tribunals.

In accordance with the statute, merely on the sworn complaint of the ship’s captain, Ross was brought to trial before the consul and four associates drawn by the consul from a list kept for that purpose.

He was sentenced to death, a sentence later commuted to life imprisonment by the President.

Here, he contented that his sentence was unlawful, unconstitutional, he had no indictment, no trial by jury.

This Court in a unanimous decision by Mr. Justice Field rejected those contentions.

It held that in this situation, Congress could validly provide for a non-Article 3 trial of the type Ross had had, that where these arrangements were made between this country and another country and where our officers were given jurisdiction to exercise in a foreign country the right of indictment, the right of trial by jury is not applied.

The Court used very sweeping language to the effect that the Constitution does not — the world receives.

Now, we — the Court need not reiterate language quite that broad to hold as we believe that the particular principles of In re Ross are squarely applicable here and require sustaining Article 2 (11).

Felix Frankfurter:

Mr. Frankel, was the Ross case appealed to in Toth?

Marvin E. Frankel:

No, Your Honor.

There were other deficiencies in the — in the brief in Toth.

Felix Frankfurter:

Pardon?

Marvin E. Frankel:

There may have been other deficiencies in the brief in Toth —

Felix Frankfurter:

(Voice Overlap) —

Marvin E. Frankel:

— that Colonel Wiener relies on here but —

Felix Frankfurter:

All I want to know is Toth — that Toth’s (Inaudible) defendant on the basis of law.

Marvin E. Frankel:

No, Your Honor, I — I think we might have invoked it to some extent but, of course, it was not applicable.

The jurisdiction, the military —

Felix Frankfurter:

(Voice Overlap)

Marvin E. Frankel:

The Ross decision would not have been applicable in Toth.

Felix Frankfurter:

Why not?

Marvin E. Frankel:

Because the military jurisdiction we asserted there was asserted in the United States where Toth was apprehended and whence he was brought to Korea.

Now, the analogy would be if Mrs. Covert’s murder of her husband had not been discovered and if she had come back to the United States, under Article 3 (a) which the Court struck down in Toth, there would have been continuing military jurisdiction but that can no longer be exercised at the courts.

Here, you have jurisdiction which is designed to operate only outside the United States where foreign countries normally have jurisdiction and was so applied here, so applied in Mrs. Covert’s case and in Mrs. Krueger’s.

Now, the rule of the Ross case has never been questioned and we think it’s not seriously questioned here.

As a matter of fact, it’s been reaffirmed on several occasions cited in our briefs.

Indeed, the decisions of this Court go further.

They hold that in unincorporated territories and possessions which are not foreign countries but are under the sovereignty of the United States, even there Congress need not provide for indictment jury trial, judges with life tenure.

Now, the appellee, as nearly as I can understand it, attempts to distinguish the Ross case only on the ground that Ross involved consular courts and here we deal with courts-martial.

We think the distinction must fail.

The Constitution makes no mention of consular courts at all.

The principles that justified the kind of extraterritorial jurisdiction exercised in Ross applies perfectly here nor will a comparison between the consular courts and their exercise of jurisdiction and the military courts and their exercises of jurisdiction favor the appellee.

Now, if you compare the provisions of the revised statutes mentioned in the Ross decision which are now still on the statute books found in Title 22 of the U.S. Code beginning at Section 141.

If you compare those provisions with the careful detail safeguarded provisions of the Uniform Code of Military Justice, the comparison must necessarily be favorable to the Uniform Code.

You may note the fact that consuls who were given this consular jurisdiction over much of our history were frequently not lawyers.

The Code provides for judicial officers and counsel in important cases who are trained lawyers.

You will note that the consular courts, the consuls and the courts that they set up ad hoc had no special relationship to the people they were empowered to try.

As I shall emphasize more fully later, the military tribunals which try Americans accompanying and living with the armed forces overseas have a direct and important concern with the control and the discipline of such people.

Now, in these cases and today with some 60 countries we have agreements providing for the exercise of this kind of extraterritorial jurisdiction in the foreign countries where our troupes are stationed.

Now, the problem of these agreements has presented difficult and disputed questions of policy in our Congress and among the public.

There were some who say that all of these cases were to be left to the foreign countries to try, all these countries all over the world.

Mrs. Covert having been tried by an American military tribunal now says she’d have preferred that.

There were some who’s saying on the other hand and this problem is, I assume, well known to the Court and is referred to in our briefs, hearings and so forth.

There are some who say that we have already relinquished too much jurisdiction over American nationals in these places where we set up military establishments and that we must denounce these agreements and somehow get these foreign countries to give all the jurisdiction to our American military tribunals.

Now, these problem of high international policy is of course not one to be resolved here as a policy matter.

But what we say is that if Article 2 (11) is struck down, if this provision which empowers our officers to exercise this American jurisdiction when they can get it by agreement overseas, if this provision is struck down, this problem will be pro tanto resolved and not on policy grounds but on constitutional grounds.

Marvin E. Frankel:

Now, we say that under the doctrine of In re Ross, well settled in our history and in the history of international law, Congress is free to make this choice and can provide for the exercise of this American jurisdiction wherein particular cases, it is obtained from foreign countries.

Felix Frankfurter:

Mr. Frankel, I don’t mean to raise any question about argument to the briefs of the Toth case but after this question — but because of the important relevance.

Does not your argument or does your argument reject or imply that prosecution could be had of Toth under Ross if he’d remained (Inaudible)

Marvin E. Frankel:

Well —

Felix Frankfurter:

And secondly, if that is so, for myself I cannot see how the constitutional parley evaporates simply because it states for the mainland of the United States.

Marvin E. Frankel:

Well, I would — I would say this, Your Honor.

That first of all, if we had had an agreement with Korea which provided for the exercise of American jurisdiction there, apart from military jurisdiction which terminated over Toth that under In re Ross, it seems clear we could exercise such jurisdiction in the foreign country.

Felix Frankfurter:

But the subject clause which begins to mean that you must be free under or you must not be subject to the limitations of the foreign country and you’re not subject to the limitation if there’s nothing against you’re doing it asserted by the foreign country.

Subject doesn’t mean the power of the country must give you the permission which you claim was established by laws but you must be — not shackled by the authority of a foreign country.

Marvin E. Frankel:

Well, Your Honor, the — I think that that poses constitutional questions arising from legislation Congress has never attempted —

Felix Frankfurter:

Well —

Marvin E. Frankel:

— and you have to go back —

Felix Frankfurter:

It has attempted because I don’t see why it passed or (Inaudible)

Marvin E. Frankel:

Well, it doesn’t because where Article 2 (11) —

Felix Frankfurter:

Not in the case, I don’t mean the case.

I mean the Toth situation, I’m sorry.

Marvin E. Frankel:

Yes, I — I think — I think I understand.

In — in the Toth’s case, Toth had come back to the United States.

Felix Frankfurter:

Would that make a difference?

Marvin E. Frankel:

Yes, Your Honor, it does make a difference.

I think if Ross had been permitted freely to come back to the United States without being tried, you would have a very serious question —

Felix Frankfurter:

(Voice Overlap) —

Marvin E. Frankel:

— whether he could be —

Felix Frankfurter:

I thought why the use of the — I thought the essence is what crime is punished, not where you catch the fellow.

Marvin E. Frankel:

I think — I think that where you catch him or when you catch him makes the difference as it did in Toth.

If we had caught him a day before his discharge, then there would have been no question.

Felix Frankfurter:

Well, he’d been still a military.

Marvin E. Frankel:

Yes.

Well, there — there the point was that the jurisdiction constitutionally could subsist only so long as that certain status remain.

And when it terminated, it could not be recaptured.

Marvin E. Frankel:

Now, I think — or maybe we — we argued Toth erroneously and I realized you’re not —

Felix Frankfurter:

(Voice Overlap) —

Marvin E. Frankel:

— you’re not — you’re not troubled about that.

Felix Frankfurter:

(Inaudible)

[Laughter]

Marvin E. Frankel:

But in Toth, we felt that we had to show that this continuing jurisdiction — this provision for continuing jurisdiction was felt.

Felix Frankfurter:

As part of — as part of the scheme of military justice.

Marvin E. Frankel:

As part of the scheme of military justice.

Felix Frankfurter:

Subject to all that court-martial is applied and the purpose under the court-martial and the nature of the incorporation of the individual in the military establishment and not the problem abroad for what you do whether (Inaudible) from foreign country where you’re practically exercising the power to a foreign county.

Marvin E. Frankel:

Well, as to that, Your Honor, the — the basis for — the occasion for this extraterritorial jurisdiction has changed, true.

Now, we deal with equal sovereigns upon we — whom we do not impose our will but who instead recognize all these civilized countries the important need we have for the exercise of this American jurisdiction in their country.

But I cannot see how it could possibly make a constitutional difference whether we get this extraterritorial jurisdiction in this relatively dignified and happy way, though the occasion for it may not be happy or whether we thrust it down the throat of a foreign nation, it can’t make a constitutional difference as to the nature of the power of Congress to implement that jurisdiction without attempting the impossible, without attempting to set up Article 3 tribunals and to create in the 60 countries across the world a grand jury and petit jury —

Felix Frankfurter:

(Voice Overlap) —

Marvin E. Frankel:

— for the trial of offenses.

Felix Frankfurter:

But it may well make a difference if we’d have before us a statute in which Congress says we, being these and these people of — of the military — the Armed Forces of the United States and that’s the precondition of determining, that’s the base source of power upon which we draw for the exercise of jurisdiction as against the scheme of things that was involved as I said in the date (Inaudible)

Marvin E. Frankel:

Your Honor, I’m going to turn to the point about the military need which I — I think must be troubling you.

But before I get to that —

Felix Frankfurter:

Not need — not need.

Congressional (Voice Overlap) —

Marvin E. Frankel:

Military —

Felix Frankfurter:

— of power in drawing on its constitutional power over domestic.

Marvin E. Frankel:

Yes.

But — but before I go to the — the justifications for this statute in Article 1, Section 8, Clause 14 in the war power, I want to meet what I perceive to be an implicit problem in what Your Honor has said.

I want to say first that when General Crowder in 1916 proposed Article 2 (d), the precursor of Article 2 (11), he made clear the international situation to which it refers.

I want to say second that we don’t think Congress needs to write a brief or invoke specifically the particular constitutional powers which justified its action when it passes the statute.

So, I say Congress was aware of the international implications of this statute and I say further even if it had not been, it would be perfectly proper for us to sustain the statute on this basis.

Now —

Stanley Reed:

Now, just to — what — what is the basis that you’re arguing now, the constitutional basis for this?

Marvin E. Frankel:

Well, I have come about to the end of point one of my two points.

And that point is that for the exercise of jurisdiction in a foreign country, for an offense committed in that foreign country where the foreign country would normally have jurisdiction but where it has waived or otherwise recognized our right to exercise such jurisdiction.

Marvin E. Frankel:

In such cases, under In re Ross, Congress need not provide for an Article 3 tribunal or for indictment or jury trial but may provide for legislative courts, consular courts in the Ross case.

Here, an established system of military courts as to which we think no constitutional distinction can be made.

Stanley Reed:

But it isn’t because it’s — as I — if I understand your argument, it’s not because it’s military in its sense.

It would be just like the Ross case where he was a seaman on a ship and he’s out in an American ship.

Marvin E. Frankel:

That — the Ross case — the Ross argument shows the breadth of this power to confer extraterritorial jurisdiction on American officers.

It is not peculiarly —

Stanley Reed:

(Voice Overlap) —

Marvin E. Frankel:

— a military —

Stanley Reed:

— that they wouldn’t have to be officers, would they?

Marvin E. Frankel:

They would not have to be military officers or civilian officers.

Stanley Reed:

Which conferred on — conferred on any duly appointed official of the United States (Voice Overlap) —

Marvin E. Frankel:

Or non-official — or non-official.

Well, I — I don’t know —

Stanley Reed:

Well (Voice Overlap) —

Marvin E. Frankel:

— how you confer a foreign or local judicial power on a non-official, Your Honor.

Felix Frankfurter:

What?

Marvin E. Frankel:

I — I mean —

Felix Frankfurter:

Why do you —

Marvin E. Frankel:

— by the conferring of that power, he would be an official and I hope an adequate one but —

Felix Frankfurter:

Well, all I meant to say is that the Ross document, I take it the power of the jury to revoke the Ross power if for instance with the Government’s position, American artist will perform not at all in the employ of the United States, at the various stages (Inaudible) that the Ross power is extended, isn’t it?

Marvin E. Frankel:

I think it goes that far, Your Honor.

After all, Ross didn’t work for the consul or have anything else to do with them.

Felix Frankfurter:

Well, I think he doesn’t have to be.

Marvin E. Frankel:

Yes, I think it’s a very powerful argument —

Stanley Reed:

I know but the — the person who tries it must be an official.

Marvin E. Frankel:

I think he — he must ipso facto by the conferring —

Stanley Reed:

By — by the very —

Marvin E. Frankel:

— of that power be —

Stanley Reed:

— the very fact that he can try it.

Marvin E. Frankel:

Yes, Your Honor.

Marvin E. Frankel:

By the very fact that — that Congress has given him that power, that’s his official power and he is thereby an official.

Stanley Reed:

So, that — that any American, any place with the permission of the country where he is may be tried by an official duly appointed by the United States for that purpose.

Marvin E. Frankel:

Yes, Your Honor.

Now, I — I don’t come down to the minimum problems of due process, although Ross spoke sweepingly, I don’t think you’d use tortured confessions or —

Stanley Reed:

According to the due process of law —

Marvin E. Frankel:

Yes.

Stanley Reed:

— that are perhaps —

Marvin E. Frankel:

Yes.

Stanley Reed:

— to bring out the jury.

Marvin E. Frankel:

We — we certainly assume that and I think we ought to assume it here.

Hugo L. Black:

Under what law?

Marvin E. Frankel:

Pardon, Your Honor?

Hugo L. Black:

Under what law you were defining the crime?

Marvin E. Frankel:

Well, in the Ross case, under — under extremely — they — law under the statutes to the United States where they might apply if they were conformable to the treaty or if they didn’t work under the common law or if that didn’t work on the decrees or regulations administered.As for procedure, mostly, whatever the minister prescribed.

Now, in our case under a code of military justice which Congress has carefully safeguarded because three million or more American men and women are certainly subject to it under a code which I think — which this Court has said affords the basic due process guarantees in both substantively and procedurally presents an admirable system of justice.

Now, I turn to my second point which is that here, unlike the provision involved in Toth, Congress acted within its power to make rules for the Government and Regulation of the land and naval Forces within the War Power, within the Necessary and Proper Clause and that this sustain this enactment.

Now, in Toth, this Court pointed out as we had said in our brief that Article 3 (a), when it was introduced in 1950, was opposed by the Judge Advocate General.

This Court in that same thing said, “Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who’s been wholly separated from the service for months, years or perhaps decades.”

And the Court said that Toth had several relationships with the military so that, at the time of arrest, he held no relationship of any kind with the military.

Compared with that, Article of War 2 (d) was actively sought by the Judge Advocate General 40 years ago.

It has been enforced and supported by successive Judge Advocates General ever since.

It pertains, we believe, to persons who in the language of this Court in Duncan against the Kahanamoku are directly connected with the armed forces and as to whom there is, again in the language of that case, a well established power to confer a court-martial jurisdiction.

Now, our very first Articles of War, preceding the establishment of our Constitution and continuing thereafter, provided for court-martial jurisdiction over all settlers and retainers and all persons whatsoever serving with the Army in the field.

As Mr. Wiener has — Colonel Wiener has emphasized in his brief and I’m sure he will emphasize again, these early articles and their successors were construed and applied until 1916 to apply only in war time and only “in the field.”

And I might add in that connection that under the decisions cited with approval by this Court in Duncan as showing a well-established power in the field included places within the United States.

So, for example, it included in the Falls case which this Court cited, a court-martial in New Jersey during World War I, in the Jochen case, if that’s how it’s pronounced, a court-martial in Texas during World War I and in Hines against Mikell, a court-martial in South Carolina.

In all of these places, the courts were open and peacefully functioning.

The civilians who were tried by these courts-martial would normally have been entitled, of course, to a trial in an Article 3 court or a state court with indictment and it’s your — under Article 2 (11) and former Article 2 (d) on the other hand, these people are overseas, where a foreign country would have jurisdiction and where as I have noted this Article 3 right, the jury trial right do not exist.

Now, our opponents concede the correctness, as Duncan and Kahanamoku indicate they should, of these World War I cases.

They say, however, that they have no bearing here because this represented exercise of the War Power and they say moreover that the ladies in this case — these cases who murdered their husbands, unlike the civilian employees in those cases, cannot be regarded as included within the power of provided by Article 1, Section 8, Clause 14 to make rules and regulations for the Government of the land and naval — “To make Rules for the Government and Regulation of the land and naval Forces,” because these women cannot be regarded as being in or a part of the land and naval Forces.

Marvin E. Frankel:

Now, in this connection it’s important to know, first, Article 1, Section 8, Clause 14, as Colonel Wiener points out in providing for rules and regulations governing the armed forces, makes no mention of war or peace.

Second, we agree with Colonel Wiener that it’s appropriate and proper to look to the War Power to explain this long history of court-martial power over civilian.

And finally, we say that even though in the much different situation before this century, Congress limited such jurisdiction at the time of war in the field.

The War Power which need not await the dropping of bombs is equally relevant and may properly be invoked in the circumstances of our times to support Article 2 (11) and its predecessor Article 2 (d).

What do you think would have been the case if these women had been assigned to their husbands on an American station, American base, could they have been court-martialed under those circumstances?

Marvin E. Frankel:

Within the United States?

No, sir.

Well, they could not as a matter of statute and then I think we have a much harder question, although I should be careful how I refer to harder and easier questions after Toth.

In that situation, Congress had not attempted to provide for it.

It provided only that civilians accompanying the armed forces outside the United States should be subject to military jurisdiction in peace talk.

And that in time of war, civilians serving with or employed by the armed forces should be subject to court-martial jurisdiction in the field which has in the past presented some problems, but as I say, has included in war time places in the United States with the civilian courts open and peacefully functioning.

Today, as we point out —

Felix Frankfurter:

Is the present — was the present form explicit by qualifying it in the field was that in any construction?

Marvin E. Frankel:

No, it — it —

Without a continental (Inaudible)

Felix Frankfurter:

No, no, no.

I know if you just — no, but the — the other part (Voice Overlap) —

Marvin E. Frankel:

The — the war time provision is Article 2 (10) —

Felix Frankfurter:

Yes, and I wanted to —

Marvin E. Frankel:

— and it says after — the introduction of the article says the following prisoners shall be subject to this Code, 2 (10) says in time of war all persons serving with or accompanying an armed force in the field and 2 (11) which we are concerned with refers to —

Stanley Reed:

But, do you make a distinction between the War Power, you do as I understand it, between the War Power and the clause which gives it all over the armed forces.

Marvin E. Frankel:

Well, I — I would rather say, Your Honor, not that I make a distinction but that just as our opponent reads the powers together in sustaining these World War I cases and prior cases of court-martial jurisdiction over civilians in war time, so we think the powers must be read together in seeing, in — in determining the validity of this different jurisdiction in foreign countries in the circumstances of our times.

Now, today, we have 250,000 dependents living overseas with our military establishments in foreign countries and some 20,000 civilian employees.

This compares with just over a million men in uniform overseas.

In other words, roughly a quarter of our military establishments overseas consist of civilians.

As I say, they live in close-knit military communities, where the offenses of any individual, in or out of uniform, may affect the morale, the safety, the effectiveness of the establishment or its acceptability to the foreign country.

Now, our allies receiving these military establishments with their civilians received as unitary whole general agreements and provisions applying to all these people together.

Our allies expect that these people will be controlled to prevent injury or offense to the foreign country receiving.

From our own point of view, the military authorities having control of these military establishments and responsible both for the effectiveness of their mission and for maintaining satisfactory relations with our allies, which is part of the same thing, need control over these people living so intimately with the forces.

As to our allies, black marketeering, customs violations and other economic or political offenses whether by a person in uniform or out, identified with these military communities will cause the kind of friction that our military mission requires us to prevent.

Marvin E. Frankel:

On the military establishment, drunk and driving, assault, larceny, dope peddling and all manner of other offenses including killing members of the military establishment are just as much concerns of the military authorities whether they’re committed by persons in or out of uniform.

Felix Frankfurter:

Well, that implies to — which would bear on antithesis being controlled by military or no control at all.Control by the military is still making part of the control right here in the United States, is that not true?

The military — the military justice plays part of its role here in every case that arises in a foreign country, doesn’t it?

Marvin E. Frankel:

Yes, Your Honor.

Now, I want to say that this is a problem not merely of 250,000 civilians but of — and we showed this in our reply brief, of some 400 cases arising yearly on an average between the six-year period we have figures for involving trials by civilians accompanying or serving with the armed forces overseas.

Now, these military communities overseas are, in fact, American military governmental enclaves allowed to be established in a foreign country.

They have schools, they hospitals, they provide recreation and welfare facilities, fire and police facilities.

They are responsible in all manners of ways for the safety, the welfare and the behavior of all these civilians.

To accomplish this effectively and to accomplish their military mission effectively, they need control on-the-spot disciplinary authority over these people.

The alternative that Colonel Wiener suggests of sending these people back to the United States for trial in our district courts is probably impracticable and is, in any event, not required of Congress under the Constitution as to its impracticability.

The Court knows and we’ve pointed it out in the briefs that these sessions of jurisdiction by the foreign countries are made with reluctance when they made it all.

As Anthony even said in his note connected with the agreement in this case and as everyone knows, it represented a considerable departure from traditional British practice.

Now, the concession is made because as our allies have recognized expressly in some places and as everybody knows they would, first, without listing these in order of importance because we want it, Congress has thought that in many instances where it could be obtained, an American trial by a military tribunal was to be preferred to a trial by a foreign court in any one of a number of countries.

And I preach no narrow chauvinism here and I do not claim as Colonel Wiener charges that we believe a foreign trial is, to quote his language, “the ultimate horrible.”

It may and this is debatable in a particular country be as good as or somebody might think better than an American trial in a military court-martial.

Certainly, it maybe and many people so believe worst than a trial in an American court-martial.

Foreign language, foreign procedures, foreign counsel are certainly important difficulties for a defendant to face but the question of the better and the worst, we say, could properly be resolved by Congress as it is being resolved by both Congress and the executive in the continuing pattern of agreements we make with the scores of foreign countries where this problem arises.

Now, we want it.

The foreign countries make this waiver to our military authorities to have the military jurisdiction exercised within their boarders.

That would make sense to them and they have said that, “We recognize that you, American military authorities have a primary responsibility for the discipline and behavior of all the people in your military community.”

And so, they make the waivers of varying degrees and different cases for authority to be exercised on the scene.

Query whether any of these countries would make a similar waiver for these people in the 400 or so cases a year that arise to be brought back to the United States for trial in the Federal District Court.

Now, the fact is that any such concession is certainly unprecedented and the facts and the realties of international law are largely a matter of what nations have done and what they can be persuaded to do.

Felix Frankfurter:

Is your 435 figure for the major countries or just for England, Mr. Frankel?

Marvin E. Frankel:

That 400 figure, Your Honor, is for the fiscal years 1949 through 1955, the total of army courts-martial of civilians overseas during that period.

I have — I do not have it —

Felix Frankfurter:

In all — in all the countries?

Marvin E. Frankel:

In all the countries, yes.

Felix Frankfurter:

Only 75 a year?

Marvin E. Frankel:

400 or —

Felix Frankfurter:

(Inaudible)

Marvin E. Frankel:

Pardon?

Felix Frankfurter:

I am just saying they’re ratifying figures (Inaudible)

Marvin E. Frankel:

The people perhaps and this may well be true deterred by the discipline on the scene generally behave themselves.

Now —

Felix Frankfurter:

That’s a large account that you’re making.[Laughter]

Marvin E. Frankel:

The white light is on, Your Honor —

Felix Frankfurter:

(Voice Overlap)

Marvin E. Frankel:

— and I feel obliged to make large rather than — than little jumps.

Hugo L. Black:

Does the 435 include both civilians who work for the Army and civilians who do not work for the Army?

Marvin E. Frankel:

Yes, Your Honor, they included both.

Hugo L. Black:

What — how do you divide it up (Inaudible)

Marvin E. Frankel:

I don’t —

Felix Frankfurter:

(Inaudible)

Marvin E. Frankel:

I don’t —

Felix Frankfurter:

— 166 of them couldn’t conform (Voice Overlap) —

Marvin E. Frankel:

For those are — for those are figures where we’ve gotten waivers of — of foreign jurisdiction.

Well, we have a number of figures —

Felix Frankfurter:

Perhaps, are those from — certainly England was (Inaudible)

Marvin E. Frankel:

Well, the — the waiver figures we give, and I — I’m sorry, I misunderstood Your Honors question, are for NATO countries and in a footnote —

Felix Frankfurter:

(Voice Overlap)

Marvin E. Frankel:

— in a footnote we give the figures for Japan.

Felix Frankfurter:

Well, I’m saying that those figures are not make the very case to be as (Inaudible) and happened to Toth.

Marvin E. Frankel:

Well, I think they —

Felix Frankfurter:

They say it’s for the whole — for the — for all the major countries together (Voice Overlap) —

Marvin E. Frankel:

Well, I think they represent on the trial figures perhaps one trial by court-martial for every seven or so hundred civilians overseas.

I don’t know how that compares with civilian justice in the United States.

Felix Frankfurter:

Maybe we ought to extend the charge effects (Inaudible)

Marvin E. Frankel:

We — we make no such argument, Your Honor.

We do say — [Laughter] that Congress acted well within its powers in making the position it did that we probably would not get more from foreign countries that the result is striking down Article 2 (11) at least for the foreseeable future would mean that American jurisdiction we are now able to exercise in foreign countries, we would not be able to exercise.

Marvin E. Frankel:

And we say that Congress need not be compelled to attempt the District Court in the United States alternative.

That same argument could have made — been made in In re Ross.

It could certainly have been made in Madsen against Kinsella where an American wife accompanying her husband true and occupied Germany and my time doesn’t permit my showing except to say it quickly that that does not, in our view, make a constitutional difference.

Thereto you could have said, “Well, Congress must provide a trial in the Federal District Court and not without indictment and jury over in Germany.”

And it would have been easy because Germany was subject to our plenary control.

Congress didn’t do it and we claim Congress is not required under the Constitution to do it when it provides the kind of American trial it has for these people in these foreign countries.

Earl Warren:

Colonel Wiener.

Frederick Bernays Wiener:

If the Court please.

The basic question in these cases is whether the power to make rules for the Government and Regulation of the land and naval Forces is the power to try by court-martial the wives of members of those forces.

But before I can reach that issue, I must, in compliance with the rule, address myself to the jurisdictional problem in Number 701.

It is perfectly plain that Curtis Reid was an — an officer or employee of the District of Columbia and not of the United States and that this distinction is well recognized by judicial and administrative decisions and preeminently by many, many sections of the U.S. Code, I found about 40 of them just glancing at the index there in the brief.

It is also perfectly clear that although Curtis Reid is the keeper of the United States so that he can bind the United States just as any state custodian holding a federal prisoner would be, the statute speaks only of officer and employee.

It is further clear that agency is defined for purposes of Title 28 of the United States Code, not generally as of course every municipality as an agency of its superior sovereignty, it is very specifically defined so as to exclude the District of Columbia.

And the proof that the District of Columbia couldn’t have been included as an agency within the meaning of Title 28 is in the witness fee provisions and basically the witness fee provision is that if anyone is an employee of the United States, he doesn’t draw to get the subpoena money, the witness fee in addition to itself.

And this is what 1823 (b) said.

And now, we’ll ask Your Honors to consider in the light of this Section, it’s quite short and I’ll read it.

Consider how the District of Columbia could possibly be an agency of the United States within the meaning of the 1252.

It’s on page 17 of the white brief, “Employees of the United States or an agency thereof in active service, called as witnesses on behalf of the District of Columbia in any judicial proceeding in which the Government of the District of Columbia is a party shall not be paid witness fees.”

Well, that Section would be sheer unadulterated nonsense if the District of Columbia were an agency of the United States within Title 28.

So that we submit that the appeal in 701 must be dismissed.

Now, in 701 there is a non-constitutional issue which I would be bound to discuss ahead of the constitutional issue but for one thing and that is that the constitutional issue is the only one in 713, therefore if 713 is decided adversely to the Government, it disposes of 701 that if only the jurisdictional point is — if — if the appeal is dismissed, if the constitutional issue is decided adversely to these wives then the District — the Court of Appeals to which an appeal was taken, but which under the last sentence of 1252 is here, can on the remand consider that non-constitutional issue and of course I have in mind also the rather unprecedented lateness of the hour which all but suggest the old days when it was the jurors and not the judges who were kept together without food or drink until they arrive with the decision.

Now, on the basic issue of the constitutional validity of 2 (11), the Government has taken three positions.

First, it argued it in the district courts with the question of the court-martial policy.

And then when it came here, it argued it as an aspect of the treaty power and now in the reply brief, it says, “Well, we’ve written 60 treaties on the assumption that we have the power, so please don’t upset our assumptions that we’ll have to renegotiate which is a new form of confession of error.”

Now, I will take up those three positions (Inaudible)

The Government’s first position was that a court-martial jurisdiction over all accompanying civilians was traditional and in the briefs we were treated to a historical novel that — that began with the Emperor Maximilian who was the contemporary of Columbus, continued through the articles of James II, I bring the exponent to the liberties of the subject and went through the bloodied snows of Valley Porch down to the present time.

Faced, however, with the authorities which have unfortunately made this brief rather more voluminous than I would’ve like to have it, the Government takes a new date and point from its — for its historical excursions and that’s 1916 because up to 1916, it is perfectly clear that the traditional American court-martial jurisdiction over a civilian was limited to those who in time of war accompanied the armies in the field and that was the scope whether the person was a relative and a matching (Inaudible) they said they didn’t find any such trial or whether the accompanying civilian was functionally connected with the forces like the contract is in the old post traders.

And there just isn’t any question about it and when we got — when the Judge Advocate General and the Attorney General dealt within the field, both in the — in a classical period defined that very narrowly as meaning an area where military operations were in progress.

Now, it is true that in the First World War under what appears to be the influence of great martial zeal, places in the United States were considered to be in time of — to be in the field.

I don’t consider — I don’t understand that the citations of some of those cases in the Duncan versus Kahanamoku at a portion of the text where the Court says this is not what we’re considering, we’re not considering this situation implies their approval.

Frederick Bernays Wiener:

I don’t concede for one minute, as my brother appears to understand, that those were an exercise of the War Power.

They weren’t.

I don’t concede for a minute that they were rightly decided but the point is that up to 1916 there was no doubt about it in anybody’s mind, the power to court-martial a civilian, it was limited to those in time of war accompanied the armies in the field that is where military operation were in progress.

And anytime — anytime any extension of that jurisdiction was sought, it was always considered unconstitutional.

It was considered unconstitutional by Colonel Winthrop, whose old-fashioned views are receiving the approval of 20th century this Court in the 20th century.

It was always considered unconstitutional by the Judge Advocate General in published opinions over a 40-year period and I suggest that this might be an appropriate opportunity to apply the rule enunciated by Your Honors that in the field of military law, the opinions of the Judge Advocate General are entitled to some weight.

So that for a period of over a 140 years from 1775 to 1916, content and substance was given to Clause 14 and we know what in the minds of — of military lawyers, of military men, of civilian judges, the land and naval Forces meant.

And it is also a fact and it is not disputed that for a 175 years from 1775 to 1950, no American wife was ever tried by an American court-martial.

And that brings us to 1916 which is the Government’s correct new date and point for its history and that was when the present jurisdiction was first asserted.

And it is a very strange thing that in the hearings on the 1916 Articles of War, General Crowder’s presentation doesn’t mention a historical problem at all and as far as one can ascertain from what he said, what the point that waived particularly on his mind was that in the second Cuban intervention, a peeving quartermaster clerk had escaped punishment because he was included within a Cuban amnesty proclamation.

But not a word was said at the earlier precedence, Congress wasn’t told, there wasn’t a word in the hearings or in the debates that there was a constitutional question.

It passed without question none of the war — World War I cases involved this extension.

That the World War I cases involved simply the scope of in the field and it was not until 1941 that the over — at the Atlantic basis under the destroyer (Inaudible), it was not until then that a civilian was ever tried by an American court-martial in time of peace with the approval of higher authority.

So that the tradition which the Government invoked in its brief is of only 15 years’ standing and I can’t help being reminded of the freshwater college that was trying to inch into the Ivy League, announcing that, “It was traditional here that freshmen will uncover as they cross the Memorial Quadrangle.

This tradition began last Monday.”

The tradition of trying civilians by court-martial in time of peace in the American service is only 15 years old and through — well into the end of World War II, a compilation in June of 1945, every civilian who had been tried by court-martial — by American court-martial since the civil war when they first had a Judge Advocate General was all — was functionally connected with the forces and there wasn’t a single case of a wife or any other defendant tried by a court-martial.

And then again we get to 1949 and 1950.

We have this voluminous volume which is a hearing and the reports, the legislative history of the Uniform Code, there were floor debates also.

In all of that material, there isn’t a whisper of a question, there isn’t an assertion, there isn’t — well, I don’t know.

There isn’t even that as to whether 2 (11) was constitutional, all they supposed is that they were carrying forward 2 (d) with perhaps a little texture or revision.

But nobody raised any constitutional question and nobody expressed a constitutional doubt so that the — the basic issue which is now before Your Honors wasn’t even whispered.

And it is these cases which for the first time raised this question.

Now, we think — we think that Toth controls, that’s what Judge Tamm in 701, because Toth laid down three propositions and the first one was that the Fifth Amendment wasn’t a source of military jurisdiction.

I’ve covered that in the brief, I shall through the Elliot’s Debates but that is the historically correct interpretation.

My brother Frankel quoted me to the contrary.

I think it’s in the Book of Joe, although my desire is that my adversary had written a book along with the lower federal courts for 80 years, along with the manual for courts-martial for 60 years, I assume that the Fifth Amendment was a source of military jurisdiction.

And as Mr. Frankel pointed out, it didn’t take me more than 10 days to revise my view.

So the test is not whether the case arises in the land and naval Forces.

The test is rather the second Toth proposition that to justify trial by court-martial the person sought to be affected must be either a member or a part of the armed forces and third that the content of Clause 14 in the court-martial clause is not to be enlarged by anything in the Necessary and Proper Clause.

And on that proposition that Toth controlled, again, Mr. Frankel and I were in accord and if I may read his very excellent Toth brief, what is now known in the — among the Article 2 (11) bar as the Frankel footnote, indeed we think the constitutional case is of anything clearer for the court-martial of Toth, who was a soldier at the time of his offense than it is for a civilian accompanying the forces.

Frederick Bernays Wiener:

And so, I agree with my brother that Toth is a fortiori and that it controls this case.

And then — then we — we come to what is on analysis really the heart of this problem.

Now, of course it’s conceived that the wives of members of the armed forces in this country cannot be tried by court-martial.

And so, the question is why is there greater power overseas?

And we don’t have to deal with the very tangled and disputed ground over whether the Sixth Amendment applies ex proprio vigore overseas.

Although, I must say it is a little difficult for me to understand why the basic instrument, including the part that makes the President in commander-in-chief is deemed available for export so as to permit our armed forces to operate overseas whereas the procedural and other guarantees of the Bill of Rights must somehow stop at the waters end.

But I don’t think we have to go into that for this reason.

Plainly, the Sixth Amendment and Article 3, Section 2 is both guaranteeing a trial by jury apply in the United States.

Now, seated about this courtroom are gentlemen in uniform who are undoubtedly subject to trial by court-martial in the United States where the Sixth Amendment is offered.

I don’t suggest that these particular individuals will ever be accused before a courtroom, but they are subject to trial by court-martial and if they were on trial they couldn’t for one minute invoke the Sixth Amendment and — and insist on the jury because they are members of the land and naval Forces and Clause 14 means that members of the land and navel Forces may be tried by court-martial.

So it isn’t where, it is who.

If you’re in uniform in the United States, you’re subject to trial by court-martial, if you’re not in uniform, you are not living out of force in the war, in the field, possibly martial law.

So that the question being who and having 175 years of construction of Clause 14 as not including why, it is our position that the content of Clause 14 is not broadened or enlarged once the transport bearing the wives passes the three mile limit or perhaps the continental ship.

And we say that the women or the wives overseas are no more part of the armed forces there than they are here.

They’re no more intimately connected with the forces there than they are here.

Oh, says my brother Frankel disciplinary problems, traffic violations, narcotics and black market.

We have the same problems on every army, navy and air force installation in the United States.

Somebody has to control the wives but that doesn’t mean you try them by court-martial and I put to one side as completely irrelevant the fact that they can get pre-medical assistance from the military medical authorities that they live in public quarters that they get commissary and post-exchange privileges, emoluments don’t confer jurisdiction and I take it that these women did not sell their constitutional birthright for a mess of commissary partnership.

Now, it is said well they’re overseas — they’re overseas, they affect foreign relations, they affect the continued acceptability of our forces to the host government.

But that’s true of other Americans overseas.

As nearly as I could break down the figures furnished by the committee on government operations which are in the brief, we have almost as many if perhaps not more civilian employees of the United States of non-Department of Defense overseas then we have Department of Defense employee.

And I suppose that a great many of those are accompanied by their dependents and true they don’t live on military post but then a great many military personnel in the NATO countries don’t live in military quarters and that’s one of the causes of unhappiness over there.

Now, those persons by misconduct could affect American.

Then the dependents have children if the dependent wives are part of the armed forces as the Government contends are the adolescent, they misbehave, the mixed-up teenage children who commit offenses, aren’t they similarly subject to trial by court-martial?

Every week, one reads in the public crest of some minor from 20 and a half down to 11 committing a homicide.

Very unfortunate but we know what happened.

If the — those children do that overseas and they are the children of servicemen, are they going to be tried by court-martial?

The Government’s arguments are broadened up to reach it and what about tourists, it’s perfectly possible and it isn’t at all imaginary to suppose that a tourist, American tourist abroad may adversely affect the American position.

Consider some country that we wish very much to get into our orbit of alliances.

Tourists are there, the — the historic shrine revered by the inhabitants and a couple of American tourists go there in shorts, the country is outraged, the editorial scream, the consulate is stoned and the country doesn’t sign a defense pack with it.

Frederick Bernays Wiener:

Are you going to try the tourist by court-martial for wearing improper uniform just as (Inaudible)

Now, this is not an occupied territory case and that requires me to elucidate some of the fundamentals about the occupied territory cases.

In the first place, when the United States occupies military — military — enemy territory, it operates under the War Power and by the right of contrast.

Madsen versus Kinsella was such a case.

The only novelty really in Madsen v. Kinsella is that the military government tribunal was appointed by a civilian high commissioner instead of by a commanding general.

Madsen v. Kinsella was not a trial by a court-martial.

It was a trial by a military court.

Now, there was a dictum saying there was confirmed jurisdiction in the court-martial and so there was because ever since 1916 under old Article 12, A.W. 12 and the present Article 18, a general court-martial has military government powers and therefore sitting an occupied territory it can try, it happens and that was the only meaning of the dictum in Madsen against Kinsella, although I must point out that the issue wasn’t contested.

And I may say that this concurrent jurisdiction of the general court-martial in occupied territory is not mentioned in the Government briefs.

Now, that — that was War Power because occupation rests on War Power where, however — where, however, the person tried is in time of war in the field in the United States as in the — what is now known as the confederate war to avoid arousing anyone’s sensibility or has happened in the undeclared Indian wars and on the theaters of those wars, that is in the field, it is not the War Power.

And to analogize this situation here in Japan after the treaty of peace and in England, in Mrs. Covert’s case to the occupied territory cases is simply wrong.

Then I may say, Your Honor, that if Mrs. Smith had been tried before the treaty of peace with Japan went into effect, if we would never have brought the proceeding because then the jurisdiction couldn’t have been questioned.

But to say that this — that — that the War Power covers these situations, I think if this were a patent case, I should have to concede priority of invention but that would be its only memory.

Now, we come to the Ross case.

I think there is some difference between this, between the parties as to the present validity of the Ross case but that interesting speculation need not be pursued because this is not a consular court.

This is a court-martial and a court-martial’s powers are limited to those who are members — to try those who are members of the land and naval Forces and that power doesn’t expand when you get overseas and to — to suggest that women are part of the armed forces.

Well, even Judge Moore couldn’t — couldn’t buy that.

Now, this business of discipline, here is what the Government told the Court only four years ago in Madsen against Kinsella, compare this with the impassioned reply brief as to the necessity for disciplining wives.

The compelling reasons of policy which precludes subjecting soldiers of the occupying forces to the law and the tribunals of the occupied territory have much less weight when applied to civilians of the occupying power, particularly those such as soldier’s dependents who bear no functional relationship to the occupying troupes.

Now, I ask what has happened in four short years to make it so necessary to discipline the wife.

And I say it’s only a question of disciplining the wife, it has nothing to do with disciplining the service — the situation so far as the discipline of the troupes is concerned would have been the same as if a bystander had killed these people.

So I say, I suggest, that it would be much better for the Air Force to devote its very considerable talents to the material and terrific problem of maintaining our air supremacy, in a word, of sticking to the wild blue yonder, instead of trying civilian women by court-martial.

Now, I take up the Government’s second position which was —

Felix Frankfurter:

What do you say to Mr. Frankel’s calling that if in fact the statute satisfies or does not offend the constitutional restriction, the phrasing in which such power is exercised is immaterial or indeed this Act of Congress had — comes under the military forces rather than under broad power is immaterial?

Frederick Bernays Wiener:

Well, I think that when you have a — a mass of legislative history such as you have on the Uniform Code and when no one has said a word about it but when the Code has been considered by the committees on — in the armed services, not by the committees on foreign affairs and foreign relation, I think it’s a pretty clear indication that Congress was acting under Clause 14 and wasn’t thinking of the treaty.

Felix Frankfurter:

It implies that it is unsustainable, like —

Frederick Bernays Wiener:

Well —

Felix Frankfurter:

— giving an indictment with the wrong section.

Frederick Bernays Wiener:

— I will — I will now address myself to that point and show that it is unsustainable because after all it has applied to the Covert case, if the Court please.

The proposition is that the treaty power authorizes the trial by court-martial of a civilian woman here in the District of Columbia.

Frederick Bernays Wiener:

Now, how can the treaty possibly reach that?

But let us see first what is involved in this invocation of the treaty power.

Very obviously, if the Clause 14 power is adequate, it is not necessary to talk about treaty power.

Therefore, the treaty power is being invoked because the Clause 14 power is inadequate.

It is inadequate because these persons have a right to trial by juror and, therefore, the treaty power is invoked to deprive them of that right.

Now, that argument, of course, is an afterthought, it’s an afterthought as shown by the pleadings, it’s an afterthought as shown by the legislative history and preeminently it is an afterthought as shown by the practice.

I have cited some cases in the brief where the treaty power couldn’t possibly have been invoked as a British woman, a British subject in Alderson today under her life sentence.

She was tried by an American court-martial sitting in Asmara, Eritrea.

She was an excludable alien because she was convicted of a crime involving moral turpitude.

They took the Attorney General’s parole to let her into Alderson.

The British had jurisdiction because under British law, a British subject guilty of a homicide anywhere in the world is triable in a British court.

What aspect of the treaty power has put — inured that woman in Alderson for the rest of her life?

Now, let’s consider the — the so-called treaties that are invoked because it’s always well to be reasonably specific.

The — in the Covert case, it’s the Visiting Forces Act and Section 2 (1) of that Act says, “All persons who are, by the law of the U.S.A. for the time being, subject to the military or naval law of that country shall be deemed to be members of said forces.”

Well, that begs the question whether Mrs. Covert was subject to military law because I take it that the law of that country, meaning the law of the United States does not exclude the law of the United States Constitution.

Now, in the administrative agreement with Japan, which is involved in the Krueger case, there was a section that said we represent that our service courts are ready, willing and able to try these people.

I think it would have surprised the signatories of that agreement if they have thought that they were thereby extending beyond what would otherwise be the limits, the jurisdiction of American courts-martial.

I think that fairly construe Article 17 (4) of that agreement means we will exercise our jurisdiction vigorously and honestly, and we won’t turn loose without a trial of these people about whom you complain simply because they’re victims or nationals of the former enemy.

Felix Frankfurter:

May I trouble you into — just for the clear facts for the provisions that you should — and whatever it is (Inaudible)

Frederick Bernays Wiener:

Yes.

Felix Frankfurter:

(Inaudible)

Frederick Bernays Wiener:

Yes, Your Honor.

Felix Frankfurter:

Very well.

Frederick Bernays Wiener:

That is in the Government’s brief in 701 at page 76.

It’s Section 2 (1) of the Visiting Forces Act.

Felix Frankfurter:

Pardon me, page 76?

Frederick Bernays Wiener:

76 of the Government’s brief in 701.

Felix Frankfurter:

Thank you very much.

Frederick Bernays Wiener:

But if we can assume that these agreements purported to enlarge the jurisdiction of the American courts-martial then we have this situation that as applied to the Covert case, a woman in the District of Columbia who normally could claim her double — constitutional guarantee of jury trial is by reason of the act of a foreign parliament following an executive agreement which doesn’t mention women deprived of that right to a jury trial right here in the District of Columbia.

And of that I say, in the language of Mr. Justice Grier, on the last page of the 24th of Howard, Haud equidem invideo, mirror magis.

Frederick Bernays Wiener:

It is not so much that I am angry, but rather that I marvel at it.

Now, in the Japanese situation, if again that is be — to be construed as enlarging the jurisdiction of American courts-martial beyond what it would have been had there not been such an agreement, then you have a square conflict between the executive agreement and the Bill of Rights.

Now, there are, of course, cases here that say you can’t do that and only at the last term in the (Inaudible) case, the Government told this Court together with statutes and treaties, executive agreements are subject to the Bill of Rights and the other clauses of the Constitution which protect all Americans from the excesses of official authority.

Now, I submit, if the Court please, that that is a bit of constitutional doctrine too fundamental to change from term to term in each passing case.

It’s far too basic to be treated like an automobile that you trade in for a new model every year.

Now, I come to the Government’s third proposition, namely, the claim that they have NATO-like treaties with some 60 countries, which they’ll have to renegotiate if they’re wrong on Article 2 (11).

Now, the basic Article 1s 7 (1) (a) on page 35 of the Government’s reply brief and this is what it says, “The military authorities of the sending state,” which means the United States, “shall have the right to exercise within the receiving state,” that is the NATO countries, “all criminal and disciplinary jurisdiction conferred on them by the law of the sending state over all persons subject to the military law of that state.”

Now, how does that enlarge American military power?

Is — is it — is it — the Government says there is, of course, no question that the appellee is within the terms of Article 2 (11) and in this sense subject to American military law.

I submit, if the Court please, that that is question begging.

That is — that is bootstrapped because if — if under the Constitution, 2 (11) is not valid then certainly these treaties, even though there maybe 60 of them, don’t enlarge.

I submit that is an argument of desperation.

But it’s more serious than that.

It’s much more serious than just two cases that the Government feels it’s losing so much so that they filed a District Court opinion on the same issue rendered only last week whether that’s like picketing the courthouse or — or tabulating (Inaudible) or perhaps a little of both might be the same.

But this contention that we’re not going to renegotiate treaties and that the court-martial power is going to be enlarged and the right to jury trial curtailed by reason of treaty seems to me a very dangerous argument.

Now, there are people who for the past 10 years have been urging a curve on the treaty power and an amendment to the Supremacy Clause which would reduce us from potentially the most powerful nation in the world to an impotent league of 48 separate states unable to speak with a single voice in the world.

But nothing that the proponents of the treaty power limitations have dreamed up in their most insomniac dyspeptic hour is anything near as fantastic as the proposition that is advanced here in apparent seriousness that because of the treaty power you can try a civilian woman in the District of Columbia.

Now, the Necessary and Proper Clause, the Toth case says that the court-martial power wasn’t enlarged by that.

The Government not undaunted says, “Oh, yes, it is.

We — we just don’t believe Toth because many years ago in Johnson and (Inaudible) there was something said to the contrary.

I think in the time remaining, I can demonstrate that the power to court-martial wives is neither necessary and preeminently improper.

To begin with, under the NATO treaties, any offense committed by Americans against foreign nationals is primarily triable in foreign courts whether they’re civilians or soldiers.

And secondly, serious offenses are very few, the trials by general court-martial in the Army amount to 12 for a fiscal year, of course not more than 20 certainly and there are only six persons who have ever — six civilians convicted by court-martial who have committed offenses serious enough to warrant their incarceration in federal penal institutions and two of those six are before this Court at this moment.

Now, how to deal with them.

I have suggested the traditional method for punishing extra-territorially committed crime, namely, by trial in the first district to which the person is found or brought.

That wasn’t deemed too difficult in the post-war treason cases.

It is true there is no power to subpoena witnesses, but the Government had no difficulty last month in flying 18 Italian subjects, whom it couldn’t subpoena, here for the Icardi case.

Of course, when that case was thrown out, it was rather too bad because those were witnesses that couldn’t have been used over again in other cases.

But, says Mr. Frankel, that’s only for the serious case, what about the run-of-the-mill cases?

Well, there’s a fine — a fine opportunity to test the continued validity of the Ross case.

Frederick Bernays Wiener:

And if the Ross case is still good law as he believes, I see no reason why it isn’t possible to provide for a consulate jurisdiction to try these persons who are accompanying the Army overseas.

I can’t believe — I can’t believe that any country friendly enough to permit us to station our troops on its soil in time of peace and willing to let us by our tribunals try American national for offenses committed against the American national is going to boggle over whether that trial is by a court-martial or by a consular court just so long as the jurisdiction is carefully restricted.

As to the others, whether you’re going to militarize the civilian employees or whether you’re going to stern them over to foreign courts, those are legislative considerations.

I only suggest that the — if the Government instead of fighting the problem will try to solve it, we could get on much better because it is not proper, it is simply not proper to have these civilian women tried by courts-martial.

Look at the constitutional rights they lose.

You can talk all you like about the beneficent provisions of the Code and it’s working much better than the old articles did and the Court of Military Appeals is doing a good job, but think of the constitutional rights those people lose.

There’s no right to bail at military law.

The decisions of the Court of Military Appeals show that the Fourth, Fifth and Sixth Amendment rights are perceptively diluted over what they would be in Article 3 court.

Now, for certain military situations, nobody would quarrel with that when you’re dealing governing armies composed of strong men particularly when those armies are on the march, of course, you’ve got to have restrictions that aren’t justified in civilian life but these are unarmed women in time of peace and I have collected some of the cases and there are still some pretty rough conditions and they’re not all reversal as my brother indicates in his reply brief, a great many very doubtful convictions in my judgment have been sustained.

And look at the — I don’t have to generalize.

Look at the records here.

Look what happened with these two women, with these two civilian women, they didn’t enlist in the Army, they may have had the — the obligation to obey in their marriage vows but they didn’t subscribe to the Articles of War and the Uniform Code when the chaplains announced them man and wife.

Look at what happened to these women who faced the court-martial and the agencies of military appellate review.

In the Covert case, the only issue was (Inaudible)

The witnesses were three-to-two against her.

All of them were commissioned officers of the Air Force.

There were no higher chances.

After the trial, two of the prosecution witnesses presented unsolicited affidavits, one of them said the findings are a miscarriage of justice, the other said they are completely wrong, a third witness spelled out in detail why he considered this poor distraught woman to have been psychotic and not neurotic.

What did the Board of Review say?

These aren’t sufficient to raise even a reasonable doubt as to resent.

And in both cases — in both cases, the final determination of whether these women were or were not sane was controlled by an army Air Force manual published to the services by order of the secretaries of the Army and Air Force, and that is how the sanity was determined not by the professional views of the — of the witnesses, not by the civilian doctor, not by what the military doctor might have said in the civilian capacity but by this man.

There’s a different test applied the — during the — the McNaughton rule with modification to steal the military rule.

Judge Sobeloff, I think, has only recently indicated the — the defects of that rule but they’re still here and then look at the sentence — look at the sentence that’s in the Toth case, as the Government pointed out to Your Honors the persons who were accused with Toth had been tried and punished.

The lieutenant who gave the order to kill was convicted, his sentence was cut to five years, it was — he served 20 months and then he got out.

The — Kinder, the airman who actually pulled the trigger, his sentence was cut to two years.On the review, he got out in 15 months with an honorable discharge.

And this poor woman who was — who was so — so far gone mentally that after she killed her husband she climbed into the narrow caught with his bloody corpse, she has a life sentence affirmed by a board of review which says anything less would be unwarranted or inappropriate.

Now, is that justice or is it vindictiveness and preeminent?

Do we want to turn over to an armed force the dispensing of justice to unarmed women?

And there’s one more — one more point on the Dorothy Smith case.

Dorothy Smith was tried in Tokyo in January of 1953.

Frederick Bernays Wiener:

The Korean War was almost at an end.

It was alleged but the — the dependents could not go to Korea, they could go to Japan.

It was alleged in the return to the writ in Mrs. Smith’s case that Japan was in time of war in the field within the meaning of Article 2 (10).

And that allegation was denied in the Congress, so the issue was framed.

The Government presented no evidence on that issue.

When the Government sought and was granted certiorari here before judgment in the Court of Appeals it said nothing about 2 (10).

In my brief in the Krueger case, I mentioned that, of course, it wasn’t in the field either in the light of the earlier and classical decisions, Winthrop in the old Judge Advocate General’s opinions in the digest and the Attorney General nor was it in the field as that term had been defined in the Committee Reports on the Uniform Code and that I said that they were well advised to drop it.

Now, we get in a footnote saying, “Oh, no, we’re not going to drop it and we want to go back to the District Court in case we lose on 2 (11) we want to go back under 2 (10).

We want to produce more evidence.”

That’s not just desperation, that maybe panic, but what troubles me about — what troubles me is that it is really — it really reflects vindictiveness.

We will not let this woman go, she killed her husband.

That’s worst than felony, that’s petty treason.

And that is why we say that the standard of the Toth case should be applied here, the least possible power adequate to the end proposed.

It is maybe desirable as a philosophical matter to discipline wives in the old common law a way just as long as it’s no thicker than one’s thumb.

But it is not necessary to the discipline of an armed force to try wives by court-martial.

And I submit that under the Constitution, it can’t be done.

Marvin E. Frankel:

If the Court please.

At the risk of this character — in carrying your displeasure I would like to use my two minutes.Colonel Wiener and I understand the Ross case entirely differently from each other.

As I read the case it does not hold that the treaty with Japan created American constitutional power to create consular courts, that’s not what the Court said.

The Court said that Congress had power to create such courts to exercise such foreign jurisdiction when we could get it.

And Colonel Wiener has misunderstood what we’re saying whether it’s right or wrong when he accuses us of saying that a British statute or treaty adds to American constitutional power.

As in Ross, we say, Congress had power to provide for these tribunals just like consular tribunals to exercise this foreign jurisdiction in a foreign country when the foreign country would recognize our right to it and that’s what’s been done.

And we think that Colonel Wiener’s concession today that Congress could create consular courts to try these Americans overseas, consular courts by the vague standards that you can read in Title 22, we think that that concession, if we understand the principles correctly, concedes his case because we think that the fact that the officers who seat in courts-martial, the fact that they wear uniform and the fact that they administer a detailed code safeguarded for three million Americans does not make their jurisdiction constitutionally less permissible than that of the ad hoc consular courts.