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MADSEN v. KINSELLA, 343 U.S. 341 (1952)

U.S. Supreme Court

MADSEN v. KINSELLA, 343 U.S. 341 (1952)

343 U.S. 341

MADSEN v. KINSELLA, WARDEN.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 411.
Argued January 8, 1952.
Decided April 28, 1952.

The United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try petitioner, a civilian citizen of the United States who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband, in October 1949, within the United States Area of Control in Germany, in violation of 211 of the German Criminal Code. Pp. 342-362.

188 F.2d 272, affirmed.

In a habeas corpus proceeding seeking petitioner's release from federal custody, the District Court discharged the writ and remanded petitioner to the custody of respondent. 93 F. Supp. 319. The Court of Appeals affirmed. 188 F.2d 272. This Court granted certiorari. 342 U.S. 865 . Affirmed, p. 362.

Joseph S. Robinson argued the cause for petitioner. With him on the brief were Dayton M. Harrington and James D. Graham, Jr.

Robert W. Ginnane argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosenberg, J. F. Bishop and John M. Raymond.

MR. JUSTICE BURTON delivered the opinion of the Court.

The principal question here is whether a United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try a civilian citizen of the United States, who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband in violation of 211 of the German Criminal [343 U.S. 341, 343]   Code. The homicide occurred in October, 1949, within the United States Area of Control in Germany. For the reasons hereafter stated, we hold that such court had that jurisdiction.

The present proceeding originates with a petition for a writ of habeas corpus filed by petitioner, Yvette J. Madsen, in the United States District Court for the Southern District of West Virginia, seeking her release from the Federal Reformatory for Women in West Virginia where she is serving a sentence imposed by a United States Court of the Allied High Commission for Germany. She contends that her confinement is invalid because the court which convicted and sentenced her had no jurisdiction to do so. The District Court, after a hearing based on exhibits and agreed facts, discharged the writ and remanded petitioner to the custody of the respondent warden of the reformatory. 93 F. Supp. 319. The Court of Appeals affirmed. 188 F.2d 272. Because of the importance and novelty of the jurisdictional issues raised, we granted certiorari. 342 U.S. 865 .

I. Petitioner's status in Germany. - Petitioner is a native-born citizen of the United States who lawfully entered the American Zone of Occupied Germany in 1947 with her husband, Lieutenant Madsen of the United States Air Force. In 1949, she resided there, with him, in a house requisitioned for military use, furnished and maintained by military authority. She was permitted to use the facilities of the United States Army maintained there for persons in its service and for those serving with or accompanying the United States Armed Forces. In brief, her status was that of a civilian dependent wife of a member of the United States Armed Forces which were then occupying the United States Area of Control in Germany.

October 20, 1949, following her fatal shooting of her husband at their residence at Buchschleg, Kreis Frankfurt, Germany, she was arrested there by the United [343 U.S. 341, 344]   States Air Force Military Police. On the following day, before a "United States Military Government Court," 1 she was charged with the murder of her husband in violation of 211 of the German Criminal Code. 2 In February, 1950, she was tried by "The United States Court of the Allied High Commission for Germany, Fourth Judicial District." 3 That court was composed of three United States civilians, two of whom had been appointed as district judges and one as a magistrate by or under the authority of the Military Governor of the United States Area of Control. 4 The court adjudged her guilty and sentenced [343 U.S. 341, 345]   her to 15 years in the Federal Reformatory for Women at Alderson, West Virginia, or elsewhere as the Secretary of the Army might direct. In May, the "Court of Appeals of the United States Courts of the Allied High Commission for Germany," composed of five United States civilians appointed by the Military Governor of the Area, 5 affirmed the judgment but committed her to the custody of the Attorney General of the United States or his authorized representative. The Director of the United States Bureau of Prisons designated the Federal Reformatory for Women at Alderson, West Virginia, as the place for her confinement. 6  

II. Both United States courts-martial, and United States Military Commissions or tribunals in the nature of such commissions, had jurisdiction in Germany in 1949-1950 to try persons in the status of petitioner on the charge against her. - Petitioner does not here attack the merits of her conviction nor does she claim that any nonmilitary court of the United States or Germany had jurisdiction to try her. 7 It is agreed by the parties to this proceeding that a regularly convened United States general court-martial would have had jurisdiction to try her. The United States, however, contends, and petitioner denies, that the United States Court of the Allied High Commission for Germany, which tried her, also had jurisdiction [343 U.S. 341, 346]   to do so. In other words, the United States contends that its courts-martial's jurisdiction was concurrent with that of its occupation courts, whereas petitioner contends that it was exclusive of that of its occupation courts.

The key to the issue is to be found in the history of United States military commissions 8 and of United States occupation courts in the nature of such commissions. Since our nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war. 9 They have been called our common-law war [343 U.S. 341, 347]   courts. 10 They have taken many forms and borne many names. 11 Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in [343 U.S. 341, 348]   each instance to the need that called it forth. See In re Yamashita, 327 U.S. 1, 18 -23.

In the absence of attempts by Congress to limit the President's power, it appears that, as Commander-in-Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States. His authority to do this sometimes survives cessation of hostilities. 12 The President has the urgent and infinite responsibility not only of combating the enemy but of governing any territory occupied by the United States by force of arms. 13 The policy of Congress to refrain from legislating in this [343 U.S. 341, 349]   uncharted area does not imply its lack of power to legislate. That evident restraint contrasts with its traditional readiness to "make Rules for the Government and Regulation of the land and naval Forces; . . . ." 14 Under that clause Congress has enacted and repeatedly revised the Articles of War which have prescribed, with particularity, the jurisdiction and procedure of United States courts-martial.

Originally Congress gave to courts-martial jurisdiction over only members of the Armed Forces and civilians rendering functional service to the Armed Forces in camp or in the field. 15 Similarly the Articles of War at first dealt with nonmilitary crimes only by surrendering the accused to the civil authorities. Art. 33, American Articles of War of 1806, Winthrop's Military Law and Precedents (2d ed. 1920 reprint) 979. However, in 1863, this latter jurisdiction was enlarged to include many crimes "committed by persons who are in the military service of the United States . . . ." 16 Still it did not cover crimes committed by civilians who, like petitioner, were merely accompanying a member of the Armed Forces. [343 U.S. 341, 350]  

Finally, in 1916, when Congress did revise the Articles of War so as to extend the jurisdiction of courts-martial to include civilian offenders in the status of petitioner, it expressly preserved to "military commissions, provost courts, or other military tribunals" all of their existing concurrent jurisdiction by adding a new Article which read in part as follows:

Article 15 thus forestalled precisely the contention now being made by petitioner. That contention is that certain provisions, added in 1916 by Articles 2 and 12 extending the jurisdiction of courts-martial over civilian offenders and over certain nonmilitary offenses, automatically [343 U.S. 341, 352]   deprived military commissions and other military tribunals of whatever existing jurisdiction they then had over such offenders and offenses. Articles 2 and 12, together, extended the jurisdiction of courts-martial so as to include "all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States . . . ." 18 The 1916 Act also increased the nonmilitary offenses for which civilian offenders could be tried by courts-martial. 19 Article 15, however, completely disposes of that contention. It states unequivocally that Congress has not deprived such commissions or tribunals of the existing jurisdiction which they had over such offenders and offenses as of August 29, 1916. 39 Stat. 653, 670. See In re Yamashita, 327 U.S. 1 , and Ex parte Quirin, 317 U.S. 1 . [343 U.S. 341, 353]  

The legislative history strengthens the Government's position. During the consideration by Congress of the proposed Articles of War, in 1916, Judge Advocate General of the Army Crowder sponsored Article 15 and the authoritative nature of his testimony has been recognized by this Court. In re Yamashita, supra, at 19 note, 67-71. Before the Senate Subcommittee on Military Affairs he said:

The concurrent jurisdiction thus preserved is that which "by statute or by the law of war may be triable by such military commissions, provost courts, or other military tribunals." (Emphasis supplied.) 39 Stat. 653, 41 Stat. 790, 10 U.S.C. 1486. The "law of war" in that connection includes at least that part of the law of nations which defines the powers and duties of belligerent powers occupying enemy territory pending the establishment of [343 U.S. 341, 355]   civil government. 21 The jurisdiction exercised by our military commissions in the examples previously mentioned extended to nonmilitary crimes, such as murder and other crimes of violence, which the United States as the occupying power felt it necessary to suppress. In the case of In re Yamashita, 327 U.S. 1, 20 , following a quotation from Article 15, this Court said, "By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction, as we held in Ex parte Quirin, to any use of the military commission contemplated by the common law of war." 22 The enlarged jurisdiction of the courts-martial therefore did not exclude the concurrent jurisdiction of military commissions and of tribunals in the nature of such commissions. [343 U.S. 341, 356]  

III. The United States Courts of the Allied High Commission for Germany were, at the time of the trial of petitioner's case, tribunals in the nature of military commissions conforming to the Constitution and laws of the United States. - Under the authority of the President as Commander-in-Chief of the United States Armed Forces occupying a certain area of Germany conquered by the allies, the system of occupation courts now before us developed gradually. The occupation courts in Germany are designed especially to meet the needs of law enforcement in that occupied territory in relation to civilians and to nonmilitary offenses. Those courts have been directed to apply the German Criminal Code largely as it was theretofore in force. (See Appendix, infra, pp. 362-371, entitled "Chronology of Establishment of United States Military Government Courts and Their Jurisdiction Over Civilians in the United States Area of Control in Germany 1945-1950.") The President, as Commander-in-Chief of the Army and Navy, in 1945 established, through the Commanding General of the United States Forces in the European Theater, a United States Military Government for Germany within the United States Area of Control. Military Government Courts, in the nature of military commissions, were then a part of the Military Government. By October 20, 1949, when petitioner was alleged to have committed the offense charged against her, those courts were known as United States Military Government Courts. They were vested with jurisdiction to enforce the German Criminal Code in relation to civilians in petitioner's status in the area where the homicide occurred.

September 21, 1949, the occupation statute had taken effect. Under it the President vested the authority of the United States Military Government in a civilian acting as the United States High Commissioner for Germany. He gave that Commissioner "authority, under the immediate supervision of the Secretary of State (subject, [343 U.S. 341, 357]   however, to consultation with and ultimate direction by the President), to exercise all of the governmental functions of the United States in Germany (other than the command of troops) . . . ." Executive Order 10062, June 6, 1949, 14 Fed. Reg. 2965, Appendix, infra, p. 367; Office of the United States High Commissioner for Germany, Staff Announcement No. 1, September 21, 1949, Appendix, infra, p. 368. Under the Transitional Provisions of Allied High Commission, Law No. 3, Article 5, 14 Fed. Reg. 7458, Appendix, infra, p. 369, preexisting legislation was applied to the appropriate new authorities. Finally by Allied High Commission, Law No. 1, Article 1, 15 Fed. Reg. 2086, Appendix, infra, p. 370, effective January 1, 1950, the name of the "United States Military Government Courts for Germany" was changed to "United States Courts of the Allied High Commission for Germany." They derived their authority from the President as occupation courts, or tribunals in the nature of military commissions, in areas still occupied by United States troops. Although the local government was no longer a "Military Government," it was a government prescribed by an occupying power and it depended upon the continuing military occupancy of the territory.

The government of the occupied area thus passed merely from the control of the United States Department of Defense to that of the United States Department of State. The military functions continued to be important and were administered under the direction of the Commander of the United States Armed Forces in Germany. He remained under orders to take the necessary measures, on request of the United States High Commissioner, for the maintenance of law and order and to take such other action as might be required to support the policy of the United States in Germany. Executive Order 10062, supra. [343 U.S. 341, 358]  

The judges who served on the occupation courts were civilians, appointed by the United States Military Governor for Germany, and thereafter continued in office or appointed by the United States High Commissioner for Germany. Their constitutional authority continued to stem from the President. The members of the trial court were designated by the Chief Presiding District Judge as a panel to try the case. The volume of business, the size of the area, the number of civilians affected, the duration of the occupation and the need for establishing confidence in civilian procedure emphasized the propriety of tribunals of a nonmilitary character. 23 With this purpose, the Military Government Courts for Germany, substantially from their establishment, have had a less military character than that of courts-martial. 24 In 1948, provision [343 U.S. 341, 359]   was made for the appointment of civilian judges with substantial legal experience. The rights of individuals were safeguarded by a code of criminal procedure dealing with warrants, summons, preliminary hearings, trials, evidence, witnesses, findings, sentences, contempt, review of cases and appeals. 25 This subjected German and United [343 U.S. 341, 360]   States civilians to the same procedures and exhibited confidence in the fairness of those procedures. 26  

It is suggested that, because the occupation statute took effect September 21, 1949, whereas the crime charged occurred October 20, 1949, the constitutional authority for petitioner's trial by military commission expired before the crime took place. Such is not the case. The authority for such commissions does not necessarily expire upon cessation of hostilities or even, for all purposes, with a treaty of peace. It may continue long enough to permit the occupying power to discharge its responsibilities fully. Santiago v. Nogueras, 214 U.S. 260 ; Neely v. Henkel, 180 U.S. 109, 124 ; Burke v. Miltenberger, 19 Wall. 519; Leitensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164. 27  

IV. Petitioner and the offense charged against her came within the jurisdiction assigned to the court which tried her. - Under United States Military Government Ordinance [343 U.S. 341, 361]   No. 31, August 18, 1948, Article 7, 14 Fed. Reg. 126, Appendix, infra, p. 365, the United States gave its Military Government District Courts "criminal jurisdiction over all persons in the United States Area of Control except persons, other than civilians, who are subject to military, naval or air force law and are serving with any forces of the United Nations." It thus excepted from the jurisdiction of those occupation courts military men and women who were subject to military law but expressly gave those courts jurisdiction over civilian men and women who were subject to military law. Article of War 2 (d) further defined "any person subject to military law" as including "all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States . . . ." 28 This included petitioner.

Article 7 of United States Military Government Ordinance No. 31 further provided, however, that "No person subject to military law of the United States shall be brought to trial for any offense except upon authorization of the Commander-in-Chief, European Command." 14 Fed. Reg. 126, Appendix, infra, p. 365. That authorization appears in the official correspondence relating to the case of Wilma B. Ybarbo. The correspondence includes a written endorsement from the proper authority, dated December 11, 1948, covering not only the Ybarbo case but also the case "of any dependent of a member of the United States Armed Forces . . . ." See Appendix, infra, p. 367.

The applicability of the German Criminal Code to petitioner's offense springs from its express adoption by the United States Military Government. The United States Commanding General, in his Proclamation No. 2, September 19, 1945, stated that, except as abrogated, suspended or modified by the Military Government or by the Control [343 U.S. 341, 362]   Council for Germany, "the German law in force at the time of the occupation shall be applicable in each area of the United States Zone of Occupation . . . ." 12 Fed. Reg. 6997, Appendix, infra, p. 363. 29 Section 211 of the German Criminal Code accordingly was applicable to petitioner on October 20, 1949. The United States also expressly required that its civilians be tried by its occupation courts rather than by the German courts. United States Military Government Law No. 2, German courts, Art. VI (i) (c) and (d), 12 Fed. Reg. 2191, 2192, Appendix, infra, p. 364. United States Military Government Ordinance No. 2, Art. II (2) (iii), 12 Fed. Reg. 2190-2191, Appendix, infra, p. 363.

The jurisdiction of the United States Courts of the Allied High Commission for Germany to try petitioner being established, the judgment of the Court of Appeals affirming the discharge of the writ of habeas corpus for petitioner's release from custody is

(Emphasis supplied throughout except in headings.)

1. June 5, 1945. - Allied Powers assumed "supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated [343 U.S. 341, 363]   above, of the said authority and powers does not effect the annexation of Germany." Declaration by Commanding Generals representing the United States, the Soviet Union, Great Britain and the French Provisional Government, THE AXIS IN DEFEAT - A Collection of Documents on American Policy Toward Germany and Japan, published by the United States Department of State, p. 63.

2. July 14, 1945. - Commanding General, United States Armed Forces in Europe, established a Military Government under his authority in the United States Zone of Occupation - Military Government - United States Area of Control, Proclamation No. 1, 12 Fed. Reg. 6997.

3. September 19, 1945. - Commanding General, United States Forces, European Theater, proclaimed:

4. 1946. - Military Government Courts, as distinguished from courts-martial, were given jurisdiction over all persons in the occupied territory, including civilians subject to military law and over offenses under the laws of the occupied territory.

5. 1946. - German courts were denied jurisdiction in certain criminal cases, including those involving any national of the United Nations or any dependent accompanying any of the Armed Forces of any of the United Nations.

6. August 18, 1948. - United States Military Government Courts for Germany established.

7. December 11, 1948. - The Commander-in-Chief of the United States European Command endorsement addressed to the Chief Attorney, United States Military Government Courts for Germany:

8. May 12, 1949. - Occupation statute promulgated by Military Governors and Commanders-in-Chief of the Western Zones of Germany - to become effective at a later date. It declared that -

9. June 6, 1949. - Executive Order 10062 of the President Establishing the Position of United States High Commissioner for Germany:

10. September 21, 1949. - Council of Allied High Commission declared occupation statute to be in force as promulgated May 12, 1949. 14 Fed. Reg. 7456.

11. September 21, 1949. - United States High Commissioner for Germany, in accordance with Executive Order 10062, assumed the authority residing in the United States Military Governor and the Office of Military Government for Germany for the governmental functions of the United States in Germany:

12. September 21, 1949. - The United States High Commissioner for Germany announced that the United States Courts for Germany, as established by Staff Announcement No. 1 (and previously established as the "United States Military Government Courts for Germany," pursuant to United States Military Government Ordinance No. 31) "form an independent judicial unit responsible directly to the United States High Commissioner. The integrated system provides for district judges and magistrates at the district court level and for a Chief Judge and associate judges of the Court of Appeals." Office of the United States High Commissioner for Germany, Staff Announcement No. 5, Resp. Ex. 2, R. 69. Similar announcement was made as to the Office of General Counsel and of the Chief Attorney. Staff Announcement No. 6, Resp. Ex. 3, R. 70.

13. September 21, 1949. - "Allied Forces" defined by Allied High Commission:

14. September 21, 1949. - Transitional Provisions proclaimed by Allied High Commission for Germany adapting existing legislation to the provisions of the occupation statute effective September 21, 1949. [343 U.S. 341, 370]  

15. November 25, 1949. - Judicial powers were reserved, from the German courts, as to members of families of members of the Occupation Forces, thus bringing them under the jurisdiction of the occupation courts.

16. December 28, 1949 (Effective January 1, 1950). - Occupation courts were changed.

Footnotes

[ Footnote 1 ] See United States Military Government Ordinance No. 31, August 18, 1948, 14 Fed. Reg. 124-128. See Appendix, infra, p. 365.

[ Footnote 2 ] The agreed statement of facts states:

The agreed statement also contains a translation of 44 and 51 of the German Criminal Code providing for reduction of sentence under circumstances which were deemed applicable to petitioner by the trial court.

[ Footnote 3 ] See Allied High Commission, Law No. 1, Art. 1, December 28, 1949, 15 Fed. Reg. 2086, Appendix, infra, pp. 370-371.

[ Footnote 4 ] See United States Military Government Ordinance No. 31, Art. 13, August 18, 1948, 14 Fed. Reg. 127.

[ Footnote 5 ] See notes 1, 3 and 4, supra.

[ Footnote 6 ] See 38 Stat. 1084-1085, 10 U.S.C. 1452, and, since May 31, 1951, see Art. 58 of the Uniform Code of Military Justice, 64 Stat. 126, 50 U.S.C. (Supp. IV) 639.

[ Footnote 7 ] There was no nonmilitary court of the United States in Germany. She enjoyed the immunity from the jurisdiction of all German courts which had been granted to nationals of the United Nations and to families of members of the occupation forces. United States Military Government Law No. 2, Art. VI (1), 12 Fed. Reg. 2191, 2192, Appendix, infra, p. 364; Allied High Commission, Law No. 2, Art. 1, 14 Fed. Reg. 7457, Appendix, infra, p. 369; Allied High Commission, Law No. 13, Art. 1, 15 Fed. Reg. 1056-1057, see Appendix, infra, p. 370.

[ Footnote 8 ] "By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the reason that the jurisdiction of courts-martial, creatures as they are of statute, is restricted by law, and can not be extended to include certain classes of offenses which in war would go unpunished in the absence of a provisional forum for the trial of the offenders. . . . There [Their] competency has been recognized not only in acts of Congress, but in executive proclamations, in rulings of the courts, and in the opinions of the Attorneys General. During the Civil War they were employed in several thousand cases; . . . ." Howland, Digest of Opinions of the Judge-Advocates General of the Army (1912), 1066-1067.

[ Footnote 9 ] In speaking of the authority and occasion for the use of a military commission, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (2d ed. 1920 reprint), says at 831:

For text of General Scott's General Order No. 20, as amended by General Order No. 287, September 17, 1847, authorizing the appointment of military commissions in Mexico, see Birkhimer, Military Government and Martial Law (2d ed. rev. 1904), App. I, 581-582. See also, Duncan v. Kahanamoku, 327 U.S. 304 ; In re Yamashita, 327 U.S. 1 ; Santiago v. Nogueras, 214 U.S. 260 ; Neely v. Henkel, 180 U.S. 109 ; Mechanics' & Traders' Bank v. Union Bank, 22 Wall. 276, 279 note; The Grapeshot, 9 Wall. 129, 132; Cross v. Harrison, 16 How. 164, 190; II Halleck, International Law (3d ed. 1893), 444-445. For an example of the exercise of jurisdiction in a murder case by a Provisional Court established in Louisiana, in 1862, by executive order of the President of the United States and an opinion by the Provisional Judge reviewing the constitutional authority for the establishment of his court, see United States v. Reiter, 27 Fed. Cas. No. 16,146.

[ Footnote 10 ] While explaining a proposed reference to military commissions in Article of War 15, Judge Advocate General Crowder, in 1916, said, "A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law." S. Rep. No. 130, 64th Cong., 1st Sess. 40.

[ Footnote 11 ] Such as Military Commission, Council of War, Military Tribunal, Military Government Court, Provisional Court, Provost Court, Court of Conciliation, Arbitrator, Superior Court, and Appellate Court. And see Winthrop, op. cit. 803-804.

[ Footnote 12 ] It has been recognized, even after peace has been declared, pending complete establishment of civil government. See Duncan v. Kahanamoku, 327 U.S. 304 ; In re Yamashita, 327 U.S. 1, 12 -13; Santiago v. Nogueras, 214 U.S. 260 ; Neely v. Henkel, 180 U.S. 109 ; Burke v. Miltenberger, 19 Wall. 519; Leitensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164.

[ Footnote 13 ] See Article 43 of The Hague Regulations respecting the laws and customs of war on land with special relation to military authority over the territory of a hostile state (1907):

[ Footnote 14 ] U.S. Const., Art. I, 8, cl. 14.

[ Footnote 15 ] Article XXXII of the American Articles of War of 1775 was taken from Article XXIII of Section XIV of the British Articles of War of 1765. It provided only that "All suttlers and retailers to a camp, and all persons whatsoever, serving with the continental army in the field, though not inlisted soldiers, are to be subject to the articles, rules, and regulations of the continental army." (Emphasis supplied.) Winthrop's Military Law and Precedents (2d ed. 1920 reprint) 956, and see 941 and 950. Article 60 of the Articles of War of 1806 was similar. It substituted "retainers" for "retailers." Id., at 981. Article 60 was slightly amended in 1874. By 1916, as Article 63, Congress still provided, as to civilians, merely that "All retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war." (Emphasis supplied.) Id., at 991, and see 98-99.

[ Footnote 16 ] The Enrollment Act of 1863 conferred upon courts-martial jurisdiction over many nonmilitary crimes if committed by soldiers in time of war. That Act incidentally recognized a concurrent jurisdiction over such crimes in military commissions:

In the codification published as the Revised Statutes of 1874, the incidental reference to military commissions was omitted. Article of War 58 at 234. Petitioner attaches substantial significance to the omission. It seems clear, however, that regardless of what effect, if any, may attach to that omission in its relation to the jurisdiction of military commissions over persons in the military service, it has no effect on the jurisdiction of military commissions over civilians not "in the military service." This section of the Act of 1863 was enacted so as to place soldiers who committed certain nonmilitary crimes under the jurisdiction of military courts. See Caldwell v. Parker, 252 U.S. 376 . The section did not relate to the jurisdiction of courts or commissions over civilians not in the military service. Cong. Globe, 37th Cong., 3d Sess. 988, 1256, 1377, 1384 (1863). For discussion of the phrase "in the military service" as used in Articles 58 and 60, see Gen. Crowder's testimony. S. Rep. No. 229, 63d Cong., 2d Sess. 104.

[ Footnote 17 ] In 1920, Article of War 15 was reenacted with the addition of "by statute or" before the words "by the law of war." 41 Stat. 790, 10 U.S.C. 1486. It was in that form in 1949 and 1950. It was again reenacted May 5, 1950, as the present Article 21 of the Uniform Code of Military Justice, effective May 31, 1951. 64 Stat. 115, 145, 50 U.S.C. (Supp. IV) 581. The hearings, in 1949, on the latter legislation are of some significance here. They disclosed that the United States Military Government Courts in Germany were then exercising, in the occupied territory, criminal jurisdiction over United States civilians accompanying the Armed Forces. Attention even was called to the recent case of Wilma B. Ybarbo. Like petitioner in the instant case, she was a civilian dependent wife of a member of the United States Armed Forces in Germany, charged with the murder of her husband in violation of the German Criminal Code. She was convicted by the United States Military Government Court for the Third Judicial District. The Court of Appeals of the United States Military Government Courts, March 14, 1949, upheld her conviction, on a lesser charge, and sentenced her to five years' imprisonment. In its opinion, the latter court reviewed the basis for its jurisdiction. United States Military Government v. Ybarbo, 1 U.S. M. G. Court of Appeals 207. See also, Hearings before a Subcommittee of the House Committee on Armed Services on H. R. 2498, Uniform Code of Military Justice, 81st Cong., 1st Sess. 876, 975, 1061. With this practice before them, the Committees of both Houses of Congress recommended the reenactment of Article of War 15 as Article 21 of the new code. They said, "This article preserves existing Army and Air Force law which gives concurrent jurisdiction to military tribunals other than courts martial." S. Rep. No. 486, 81st Cong., 1st Sess. 13; H. R. Rep. No. 491, 81st Cong., 1st Sess. 17.

[ Footnote 18 ] The 1916 Act substituted, for Article 63 (see note 15, supra), a new Article 12 which provided that "General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles, and any other person who by the law of war is subject to trial by military tribunals: . . . ." (Emphasis supplied.) 39 Stat. 652, 41 Stat. 789, 62 Stat. 629, 10 U.S.C. (Supp. IV) 1483. A new Article 2 then defined "any person subject to military law" so as to include -

[ Footnote 19 ] In 1916, new Articles 92 and 93 expanded the jurisdiction of courts-martial over murder and certain other nonmilitary crimes so as to cover their commission by any "person subject to military law." That phrase, through Article 2, included civilians in the status of petitioner. See note 18, supra. For Articles 92 and 93, see 39 Stat. 664, 41 Stat. 805, 62 Stat. 640, 10 U.S.C. (Supp. IV) 1564, 1565. See note 16, supra, for the substance of Article 30 of the Articles of War of 1863 and of Article 58 of the Articles of War of 1874.

[ Footnote 20 ] In explaining like provisions to the House Committee on Military Affairs in 1912, General Crowder previously had said:

[ Footnote 21 ] See note 9, supra.

[ Footnote 22 ] In Ex parte Quirin, 317 U.S. 1, 28 , this Court said:

In that case the military commission's conviction of saboteurs, including one citizen of the United States, was upheld on charges of violating the law of war as defined by statute. Id., at 35-38.

[ Footnote 23 ] The Government estimates that the United States Area of Control has a German population of about 17,000,000, plus United Nations nationals, including refugees. As of November 30, 1949, it estimates that there were in Germany about 34,000 dependents of members of United States Armed Forces, plus 4,700 civilian employees with 5,000 dependents. Other United States agencies had 4,100 employees in Germany. The occupation courts have been handling at least 1,000 criminal cases a month, including from 25 to 30 cases involving American civilians. See also, general account of the development of the Military Government Courts in Clay, Decision in Germany (1950), 246-248.

[ Footnote 24 ] United States Military Government Ordinance No. 2, in 1946, provided -

[ Footnote 25 ] United States Military Government Ordinances 32 and 33, code of criminal procedure for United States Military Government Courts for Germany, 14 Fed. Reg. 128-133.

Field Manual 27-5 (1947), at page 66, provides:

Cf. the order of President Lincoln of October 20, 1862, establishing a Provisional Court in New Orleans, Louisiana, as a "court of record for the State of Louisiana" with a civilian as -

[ Footnote 26 ] They did not provide for juries. The presentment or indictment of a grand jury required in a federal capital case by the Fifth Amendment to the Constitution of the United States, under the terms of that Amendment, has no application to "cases arising in the land or naval forces . . . ." The right of trial by jury required in federal criminal prosecutions by the Sixth Amendment is similarly limited. See Ex parte Quirin, 317 U.S. 1, 40 , 43-45; Ex parte Milligan, 4 Wall. 2, 123, 138.

[ Footnote 27 ] ". . . The status of military government continues from the inception of the actual occupation till the invader is expelled by force of arms, or himself abandons his conquest, or till, under a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the prevailing belligerent." Winthrop, op. cit. 801.

[ Footnote 28 ] See note 18, supra.

[ Footnote 29 ] Cf. Dow v. Johnson, 100 U.S. 158, 166 ; Ketchum v. Buckley, 99 U.S. 188 , as illustrations of the practice of recognizing the existing law of the occupied area; and Winthrop, op. cit. 800.

MR. JUSTICE BLACK, dissenting.

Petitioner, a United States citizen, is now serving a fifteen-year sentence for murdering her husband. At the time of the alleged crime, she was living in the United States Area of Control in Germany with her husband who was an Air Force lieutenant on active duty in Germany. It appears that the court that tried her and the law she was judged by were not established or authorized by the [343 U.S. 341, 372]   Congress. Executive officers acting under presidential authority created the system of courts that tried her, promulgated the edicts she was convicted of violating, and appointed the judges who took away her liberty.

The very first Article of the Constitution begins by saying that "All legislative Powers herein granted shall be vested in a Congress" and no part of the Constitution contains a provision specifically authorizing the President to create courts to try American citizens. Whatever may be the scope of the President's power as Commander in Chief of the fighting armed forces, I think that if American citizens in present-day Germany are to be tried by the American Government, they should be tried under laws passed by Congress and in courts created by Congress under its constitutional authority. [343 U.S. 341, 373]  

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