Kinsella v. United States/Dissent Whittaker

Mr. Justice WHITTAKER, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.

In No. 22, one Joanna Dial (whose cause is prosecuted here by respondent Singleton), an American civilian wife accompanying her husband, an American soldier serving in Germany, was there tried and convicted in 1957 by a general court-martial for manslaughter in violation of Article 119 of the Uniform Code of Military Justice, 10 U.S.C. § 919, 10 U.S.C.A. § 919, and was sentenced to imprisonment for a term of three years. In No. 21, respondent Guagliardo, an American civilian employed as an electrical lineman by the United States Air Force at Nouasseur Air Depot in Morocco, was there tried and convicted in 1957 by a general court-martial for conspiring to commit larceny from the stores of the Air Force in violation of Article 81 of the Code, 10 U.S.C. § 881, 10 U.S.C.A. § 881, and was sentenced to imprisonment for a term of three years. In No. 37, petitioner Wilson, an American civilian employed as an auditor by the United States Army in Berlin, Germany, was there tried and convicted in 1956 by a general courtmartial for three acts of sodomy committed upon military personnel in violation of Article 134 of the Code, 50 U.S.C. § 728, and was sentenced to imprisonment for a term of five years. In No. 58, petitioner Grisham, an American civilian employed as a cost accountant by the United States Army Corps of Engineers in Orleans, France, was there tried by a general court-martial for the capital offense of premeditated murder and convicted of the lesser included offense of unpremeditated murder in violation of Article 118 of the Code, 50 U.S.C. § 712, #fn-s-s and was sentenced, as reduced by clemency action of the Secretary of the Army, in 1957, to imprisonment for a term of 35 years.

Each of the accused persons objected to trial by court-martial upon the ground that it had no jurisdiction to try him. After their convictions, sentences, and return to the United States, each sought release by habeas corpus in a Federal District Court. Two were successful-Singleton (United States ex rel. Singleton v. Kinsella, D.C.S.D.W.Va., 164 F.Supp. 707) and Guagliardo (United States ex rel. Guagliardo v. McElroy, 104 U.S.App.D.C. 112, 259 F.2d 927)-but the other two were not-Wilson (United States ex rel. Wilson v. Bohlander, D.C.Colo., 167 F.Supp. 791) and Grisham (Grisham v. Taylor, 3 Cir., 261 F.2d 204)-and the four cases were brought here for review.

These cases fall into three categories. No. 22, the Singleton case, involves a civilian dependent tried for a noncapital offense; Nos. 21 and 37, the Guagliardo and Wilson cases, involve civilian employees of the military tried for noncapital offenses, and No. 58, the Grisham case, involves a civilian employee of the military tried for a capital offense. Each claims that, being a civilian, he was not constitutionally subject to trial by court-martial but, instead, could constitutionally be tried by the United States only in an Article III court, upon an indictment of a grand jury under the Fifth Amendment, and by an impartial petit jury under the Sixth Amendment to the Constitution.

The cases present grave questions and, for me at least, ones of great difficulty. Our recent decision in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, makes clear that the United States Constitution extends beyond our territorial boundaries and reaches to and applies within all foreign areas where jurisdiction is or may be exercised by the United States over its citizens-that when the United States proceeds against its citizens abroad '(i) t can only act in accordance with all the limitations imposed by the Constitution.' 354 U.S. at page 6, 77 S.Ct. at page 1225.

The broad question presented, then, is whether our Constitution authorizes trials and punishments by courts-martial in foreign lands in time of peace of civilian dependents 'accompanying' members of the armed forces and of civilians 'employed by' the armed forces, for conduct made an offense by the Uniform Code of Military Justice, whether capital or noncapital in character.

The source of the power, if it exists, is Art. I, § 8, cl. 14, of the Constitution. It provides:

'The Congress shall have Power * *  *

'To make Rules for the Government and Regulation of the land     and naval Forces.'

Pursuant to that grant of power, Congress by the Act of August 10, 1956, c. 1041, 70A Stat. 36 et seq.-revising the pre-existing Articles of War-enacted the Uniform Code of Military Justice. Article 2(11) of that Code, 10 U.S.C.A. § 802(11), provides, in pertinent part:

'The following persons are subject to this chapter:

'(11) Subject to any treaty or agreement to which the United     States is or may be a party or to any accepted rule of      international law, persons serving with, employed by, or      accompanying the armed forces outside the United States *  *      * .'

It is not disputed that existing treaties with each of the foreign sovereignties, within whose territory the alleged offenses occurred, permitted the armed forces of the United States to punish offenses against the laws of the United States committed by persons embraced by Article 2(11) of the Code. Arguments challenging the reasonableness of Article 2(11) are presently put aside, for if Clause 14 does not grant to Congress the power to provide for the court-martial trial and punishment of the persons embraced in Article 2(11) of the Code it may not do so, however reasonable. Reid v. Covert, supra, 354 U.S. at page 74, 77 S.Ct. at page 1260 (concurring opinion).

Did Clause 14 empower Congress to enact Article 2(11) of the Code? Certain aspects of that broad question have recently been determined in Reid v. Covert, supra, and, though not a Court opinion, I consider that decision to be binding upon me. In that case four members of the Court held that Article 2(11) of the Code cannot constitutionally be applied to civilian dependents 'accompanying' members of the armed forces outside the United States in time of peace, because, in their view, to do so would violate Art. III, § 2, and the Fifth and Sixth Amendments of the Constitution; and two members of the Court, in separate concurring opinions, agreed with that result, but only with respect to capital offenses.

Like my Brother CLARK who writes for the Court today, I am unable to find any basis in the Constitution to support the view that Congress may not constitutionally provide for the court-martial trial and punishment of civilian dependents for capital offenses but may do so for noncapital ones. Certainly there is nothing in Clause 14 that creates any such distinction or limitation. Legalistically and logically, it would seem that the question is one of status of the accused person, and that courts-martial either do or do not have jurisdiction and, hence, power to try the accused for all offenses against the military law or for none at all. Sympathetic as one may be to curtailment of the awesome power of courts-martial to impose maximum sentences in capital cases, the question, for me at least, is the perhaps cold but purely legal one of constitutional power. There would seem to be no doubt that Congress may constitutionally prescribe gradations of offenses and punishments in military cases. The question is solely whether Clause 14 has granted to Congress any power to provide for the court-martial trial and punishment of civilian dependents 'accompanying,' and civilians 'employed by,' the armed forces at military posts in foreign lands in time of peace. If it has, then Congress has acted within its powers in enacting Article 2(11) of the Code-otherwise not. Inasmuch as six members of the Court have held in Covert that Congress may not constitutionally provide for the court-martial trial and punishment of civilian dependents 'accompanying the armed forces' overseas in peacetime in capital cases, and because I can see no constitutional distinction between Congress' power to provide for the court-martial punishment of capital offenses, on the one hand, and noncapital offenses, on the other hand, I conclude that the holding in Covert means that civilian dependents accompanying the armed forces in peacetime are not subject to military power, and that it requires affirmance of No. 22, the Singleton case.

But each of the three opinions supporting the conclusion reached in Covert was at pains to limit the decision to civilian dependents. '(T)he wives, children and other dependents of servicemen cannot be placed in that category (of being 'in' the armed services for purposes of Clause 14), even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government.' 354 U.S. at page 23, 77 S.Ct. at page 1233. 'The mere fact that these women had gone overseas with their husbands should not reduce the protection the Constitution gives them.' 354 U.S. at page 33, 77 S.Ct. at page 1239. See also 354 U.S. at page 45, 77 S.Ct. at page 1245 (concurring opinion of Frankfurter, J.), and 354 U.S. at pages 75 76, 77 S.Ct. at pages 1260-1261 (concurring opinion of Harlan, J.). The main opinion carefully pointed out that 'Mrs. Covert and Mrs. Smith * *  * had never been employed by the army, had never served in the army in any capacity.' 354 U.S. at page 32, 77 S.Ct. at page 1238. (Emphasis added.)

There is a marked and clear difference between civilian dependents 'accompanying the armed forces' and civilian persons 'serving with (or) employed by' the armed forces at military posts in foreign lands. The latter, numbering more than 25,000 employed at United States military bases located in 63 countries throughout the world-mainly highly trained specialists and technicians possessing skills not readily available to the armed forces-are engaged in purely military work,-as in the case of Guagliardo, employed as an electrical lineman by the Air Force to construct and maintain lines of communication and airfield lighting apparatus and equipment, as also in the case of Wilson, an auditor employed to audit the accounts of the United States Army in Berlin, and as in the case of Grisham, employed as a cost accountant by the United States Army Corps of Engineers to assist in setting up a cost accounting system for the building of a line of communications from Pardeau, france, to Kossalater in the American-occupied section of Germany. These civilian employees thus perform essential services for the military and, in doing so, are subject to the orders, direction and control of the same military command as the 'members' of those forces; and, not infrequently, members of those forces who are assigned to work with and assist those employees are subject to their direction and control. They have the same contact with, and information concerning, the military operations as members of those forces and present the same security risks and disciplinary problems. They are paid from the same payroll, and have the same commissary, housing, medical, dental, mailing, transportation, banking, tax-exemption, customs, border-crossing and other privileges as members of the armed forces. They are so intertwined with those forces and military communities as to be in every practical sense an intergral part of them. On the other hand, civilian dependents 'accompanying the armed forces' perform no services for those forces, present dissimilar security and disciplinary problems, have only a few of the military privileges, and generally stand in a very different relationship to those forces than the civilian employees. Nor should there be any confusion about the fact that the materials found in Covert to be 'too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication' (354 U.S. at page 64, 77 S.Ct. at page 1255, concurring opinion), related, as did the whole case, to 'civilian dependents in particular,' id., not to persons employed at foreign military bases to do essential military work. And I readily agree with the Court today that under the severability clause in the Code, 70A Stat. 640, ' * *  * legal effect can be given to each category standing alone.' McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305.

Determination of the scope of the powers intended by the Framers of the Constitution to be given to Congress by Clause 14 requires an examination into the customs, practices and general political climate known to the Framers and existing at that time. The first Articles of War in this country were those adopted by the Provisional Congress of Massachusetts Bay on April 5, 1775. Those Articles, initially governing the 'civilian' army of farmers and tradesmen-the minutemen-who were first involved in the War of the Revolution, were made applicable to 'all Officers, Soldiers, and others concerned'. Winthrop (Reprint 1920) 947. Article 31 provided:

'All sellers and retailers to a camp, and all persons     whatsoever serving with the Massachusetts Army in the field,      though not enlisted Soldiers, are to be subject to the      Articles, Rules and Regulations of the Massachusetts Army.'      Id., at 950.

The American Revolutionary Army initially was governed by 'Articles of War' adopted by the Continental Congress on June 30, 1775. Nine of the original 69 Articles provided for the trial by court-martial of persons serving with the army but who were not soldiers. Those Articles were revised by the Continental Congress on September 20, 1776, and, save for minor revisions not here pertinent, governed the Revolutionary Army during the remainder of the war. Thirteen of those Articles provided for the trial by court-martial of civilians serving with the army, such as 'commissaries,' 'suttlers,' 'storekeepers,' persons 'belonging to the forces employed in the service of the United States,' and persons 'belonging to the forces of the United States, employed in foreign parts.' In 1778, a relevant addition was made. It provided, in pertinent part: 'That every person employed either as Commissary, Quarter Master, forage Master, or in any other Civil Department of the Army shall be subject to trial by Court Martial for neglect of duty, or other offence committed in the execution of their office * *  * .' Journals of the Continental Congress, Vol. X, p. 72. (Emphasis added.) Wagon drivers 'receiving pay or hire' in the service of the artillery were made subject to court-martial jurisdiction under the American Articles of 1775 and 1776. Throughout the Revolutionary period, 'drivers' and 'artillery gunners' were civilian experts. 'Horses or oxen, with hired civilian drivers, formed the transport' for the cannon. Manucy, Artillery Through The Ages (G.P.O. 1949), p. 10. Their civilian status in Washington's army is concretely shown by his writings.

There was a protracted controversy in the Constitutional Convention over whether there should be a standing army or whether the militia of the various States should be the source of military power. There was, on the one hand, fear that a standing army might be detrimental to liberty; on the other was the necessity of an army for the preservation of peace and defense of the country. The problem of providing for essential forces and also of assuring enforcement of the unanimous determination to keep them in subjection to the civil power was resolved by inserting the provision that no appropriation for the support of the army could be made for a longer period than two years (Art. I, § 8, cl. 12), and by the continuance of the militia 'according to the discipline prescribed by Congress.' Art. I, § 8, cls. 15 and 16, and Amend. II.

It was in the light of this background and upon these considerations that the Framers gave to the representatives of the people-the Congress-the power 'To make Rules for the Government and Regulation of the land and naval Forces.' Clause 14. That language was taken straight from the Articles of Confederation. In respect thereto, Hamilton said in Beloff, The Federalist, No. XXIII, p. 111:

'These powers ought to exist without limitation; because it     is impossible to foresee or to define the extent and variety      of national exigencies, and the corresponding extent and      variety of the means which may be necessary to satisfy them *      *  * .'

Soon after the formation of the Government under the Constitution, Congress, by the Act of September 29, 1789, c. 25, § 4, 1 Stat. 96, adopted the Articles of War which were essentially the Articles of 1776. By that Act, Congress-it is almost necessary to assume-approved the consistent practice of exercising military jurisdiction over civilians serving with the armed forces, although not actually soldiers. The first complete enactment of the Articles of War subsequent to the adoption of the Constitution was the Act of April 10, 1806. Article 60 of that Act (2 Stat. 366) re-enacted the provisions for jurisdiction over sutlers, retainers, and 'all persons whatsoever, serving with the armies of the United States in the field, though not enlisted soldiers.' Provisions similar to Article 60 have been made in all subsequent re-enactments of the Military Code: In the revision of 1874, Rev.Stat. (2d ed. 1878), p. 236 (Article 63); in 1916, 39 Stat. 651; in 1920, 41 Stat. 787; and in the adoption of the Uniform Code of Military Justice, 64 Stat. 109, codified in 70A Stat. 37, 10 U.S.C. § 802(11), 10 U.S.C.A. § 802(11).

In the 1916 general revision of the Articles of War, Congress used language which is substantially equivalent to that of Article 2(11), and it appears it did not consider that any new concept was being adopted. After full consideration by an eminent committee of experts, Congress, in 1956-recognizing that, although we are not at war, turbulent world conditions require large military commitments throughout the world-reenacted, in Article 2(11), the provision that civilians 'serving with' the armies of the United States 'outside the United States' are subject to military jurisdiction, and it redefined that concept by adding the 'employed by' classification.

Clause 14 does not limit Congress to the making of rules for the government and regulation of 'members' of the armed forces. Rather, it empowers Congress to make rules for the government and regulation of 'the land and naval Forces.' The term 'land and naval Forces' does not appear to be, nor ever to have been treated as, synonymous with 'members' of the armed services.

Viewed in the light of its birth and history, is it not reasonably clear that the grant of Clause 14, to make rules for the government and regulation of the land and naval forces, empowers Congress to govern and reulate all persons so closely related to and intertwined with those forces as to make their government essential to the government of those forces? Do not civilians employed by the armed forces at bases in foreign lands to do essential work for the military establishment, such as was being done by respondent Guagliardo and petitioners Wilson and Grisham, occupy that status and stand in that relationship to the armed forces for which they worked?

This Court has consistently held, in various contexts, that Clause 14 does not limit the power of Congress to the government and regulation of only those persons who are 'members' of the armed services. In Ex parte Milligan, 4 Wall. 2, 123, 18 L.Ed. 281, it was said, relative to the discipline necessary to the efficient operation of the army and navy, that 'Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts.' In Duncan v. Kahanamoku, 327 U.S. 304, 313, 66 S.Ct. 606, 610, 90 L.Ed. 688, this Court recognized the 'well-established power of the military to exercise jurisdiction over members of the armed forces (and) those directly connected with such forces * *  * .' (Emphasis added.) In United States ex rel. Toth v. Quarles, 350 U.S. 11, 15, 76 S.Ct. 1, 4, 100 L.Ed. 8, this Court said that Clause 14 'would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.' (Emphasis added.) Of even greater relevance, the main opinion in Covert, although expressing the view that Clause 14 authorized military trials only of persons 'in' the armed forces, recognized 'that there might be circumstances where a person could be 'in' the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform.' 354 U.S. at page 23, 77 S.Ct. at page 1233. To repeat the query of this Court, made under very similar circumstances, in Ex parte Reed, 100 U.S. 13, 22, 25 L.Ed. 538, 'If these (civilian employees) are not in the (armed) service, it may well be asked who are.' (Emphasis added.) That case held that a civilian, employed to serve aboard ship as the clerk of a paymaster of the United States Navy and who was dismissable at the will of the commander of the ship, occupied such 'an important (place) in the machinery of the navy * *  * (that) (t)he good order and efficiency of the service depend(ed) largely upon the faithful performance of (his) duties' and brought him 'in the naval service,' so that he was subject to trial and punishment by court-martial for an offense committed in a Brazilian port. 100 U.S. at pages 21-22. Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914, reaffirmed the principle on practically identical facts.

The provisions of Art. III, § 2, and the Fifth and Sixth Amendments of the Constitution requiring the trial of capital or otherwise infamous crimes in an Article III court, upon an indictment of a grand jury, by an impartial petit jury, are not applicable to 'cases arising in the land or naval forces.' The Fifth Amendment expressly excepts those cases. It cannot be said that the 'words in the fifth amendment, relating to the mode of accusation, restrict the jurisdiction of courts martial in the regular land and naval forces.' Johnson v. Sayre, supra, 158 U.S. at page 115, 15 S.Ct. at page 776. The exception in the Fifth Amendment 'was undoubtedly designed to correlate with the power granted Congress to provide for the 'Government and Regulation' of the armed services * *  * .' (Reid v. Covert, supra, 354 U.S. at page 22, 77 S.Ct. at page 1233), and so was the jury-trial provision of the Sixth Amendment, for 'the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth.' Ex parte Milligan, supra, 4 Wall. at page 123. See also Ex parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 2, 17, 87 L.Ed. 3. The power conferred upon Congress by Clause 14 to provide for court-martial trials of offenses arising in the land and naval forces is independent of and not restricted by Article III or the Fifth and Sixth Amendments to the Constitution.

Counsel for the convicted employees argue, with the citation and force of much history, that even if civilians 'serving with (or) employed by' the armed forces are subject to the military power of courts-martial, such could be so only in respect of offenses committed while those forces are 'in the field.' Some of the early Articles of War limited military jurisdiction over certain civilian employees to the period when the army was 'in the field.' What is really meant by the term 'in the field'? Seemingly, it does not mean 'in actual war' or even 'in time of war.' 'The essential element was thought to be, not so much that there be war, in the technical sense, but rather that the forces and their retainers be 'in the field." Reid v. Covert, supra, 354 U.S. at page 71, n. 8, 77 S.Ct. at page 1259 (concurring opinion). Historically, the term has been thought to include armed forces located at points where the civil power of the Government did not extend or where its civil courts did not exist. Prior to the Civil War, a number of civilians employed by the armed forces were tried and punished by courts-martial in time of peace. In 1814, the Attorney General expressed the opinion that civilian employees of the navy were subject to punishment by court-martial for offenses committed on board vessels beyond the territorial jurisdiction of our civil courts. 1 Op.Atty.Gen. 177. The term 'in the field' was thought to apply to organized camps stationed in remote places where civil courts did not exist or were not functioning. In 1866, the Judge Advocate General of the Army so declared. But thereafter, Winthrop expressed the view that the term 'in the field' is to be 'confined both to the period and pendency of war and to acts committed on the theatre of the war.' This would seem to ignore the fact that the constitutional authority involved is Clause 14, not the war power, and that the Clause 14 powers apply to times of both peace and war. Moreover, even at the time when Winthrop wrote, there was no consensus of interpretation supporting his view. In 1872, the Attorney General issued an opinion which concluded that civilians serving with troops in Kansas, Colorado, New Mexico, and the Indian Territory (where civil courts did not exist or were not functioning) in the building of defensive earthworks to protect against threatening Indians were 'in the field.' 14 Op.Atty.Gen. 22. As earlier observed, this Court held, in 1879, in Ex parte Reed, supra, and again in 1895, in Johnson v. Sayre, supra, that the civilian clerk of a paymaster of the navy might be tried and punished by a court-martial for a military offense committed in peacetime aboardship in a foreign port.

Doubtless, with the passing of the frontier and the extension of civil courts throughout the territorial boundaries of the United States, detachments of troops stationed within our borders may not in time of peace be regarded as 'in the field.' But, it seems to me that armed forces of the United States stationed at bases in foreign lands-where jurisdiction of our civil courts does not extend-must, under turbulent world conditions, be otherwise regarded. Because of longexisting world tensions and with the fervent hope of preventing worse, the United States Government has stationed armed forces at military bases in 63 foreign lands throughout the world. We are told that they must be kept constantly alert and ready to prevent or, if and when they arise, to put down 'brush fires' which if allowed to spread might ignite a world-wide holocaust of atomic war. Because of physical necessities, such a war, like the frequently recurring 'brush fires,' could be suppressed, if at all, mainly from those bases. The forces at those bases are as much 'in the field' in the one case as in the other. Though there be no war in the technical sense, those forces while so engaged in foreign lands-where our civil courts do not exist-are in every practical sense 'in the field.' They are as clearly 'in the field' as were American soldiers while building fortifications to protect against threatening Indians in New Mexico and the Indian Territory, where our civil courts did not exist, in the days of the frontier. Op. J.A.G. of the Army, Nov. 15, 1866, 23 Letters sent, 331 (National Archives) and see note 26; 14 Op.Atty.Gen. 22, and see note 28.

Clause 14 empowers Congress to 'make Rules'-all necessary and proper rules-' for the Government and Regulation of the land and naval Forces'-not just for 'members' of those forces, but the 'Forces,' and not only in time of war but in times of both peace and war. In the exercise of that granted power, Congress has promulgated rules, the Uniform Code of Military Justice, for the government of the 'armed forces' and, to that end, has deemed it necessary, as witness Article 2(11), to include persons 'employed by' those forces when 'outside the United States'-where our civil courts have no jurisdiction and do not exist-in times of both peace and war. In the light of all the facts, it would seem clear enough that Congress could rationally find that those persons are 'in' those forces and, though there be no shooting war, that those forces, in turn, are 'in the field'; and hence Congress could and did constitutionally make those employees subject to the military power. Both the practical necessities and the lack of alternatives, so clearly demonstrated by Mr. Justice Clark in the Covert case, 354 U.S., at page 78, 77 S.Ct. at page 1262 (dissenting opinion), strongly buttress this conclusion, if, indeed, it could otherwise be doubted.

For these reasons, I would affirm No. 22, the Singleton case; reverse No. 21, the Guagliardo case; and affirm Nos. 37 and 58, the Wilson and Grisham cases.