174 F.2d 961 (D.C. Cir. 1949), 10053, Eisentrager v. Forrestal

Docket Nº:10053.
Citation:174 F.2d 961
Party Name:EISENTRAGER et al. v. FORRESTAL, Secretary of Defense, et al.
Case Date:April 15, 1949
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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174 F.2d 961 (D.C. Cir. 1949)



FORRESTAL, Secretary of Defense, et al.

No. 10053.

United States Court of Appeals, District of Columbia Circuit.

April 15, 1949

Argued Feb. 8, 1949.

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Mr. A. Frank Reel, of Boston, Mass., of the Bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Mr. Wallace M. Cohen, of Washington, D.C., was on the brief, for appellants.

Mr. Ross O'Donoghue, Assistant United States Attorney, of Washington, D.C., with whom Mr. George Morris Fay, United States Attorney, and Mr. John D. Lane, Assistant United States Attorney, both of Washington, D.C., were on the brief, for appellees.

Before EDGERTON, PRETTYMAN, and PROCTOR, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellant is a German national confined in Landsberg Prison, Germany, in the custody of the United States Army. He was a petitioner, on behalf of himself and twenty others in the same situation, 1 for writs of habeas corpus in the District Court of the United States for the District of Columbia. Appellees are the Secretary of Defense, the Secretary of the Army, the Chief of Staff of the Army, and the Joint Chiefs of Staff of the United States. They were respondents in the action below. The District Court dismissed the action for want of jurisdiction, upon the authority of Ahrens v. Clark. 2 The statute, Rev.Stat. 752, 28 U.S.C.A. § 452, now 28 U.S.C.A. § 2241, is that 'the several judges * * * of the district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus * * *.'

Prior to May 8, 1945, appellants were civilian employees of the German government in China. 3 On that date Germany surrendered. Thereafter, and until August 15, 1945, the cities in which appellants were located were under control of the military Forces of the Japanese Empire, which continued to wage war against the United States until that date. In August, 1946, appellants were served with charges of violation of the laws of war, in that they had engaged in military activity against the United States after the surrender of Germany. They were tried and convicted by a military commission.

This commission was a United States military commission, constituted by the Commanding General, Nanking, Headquarters Command, by delegation from the

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Commanding General, United States Forces, China Theater, pursuant to authority specifically granted by the Joint Chiefs of Staff of the United States. No question of international action or authority is presented. 4

The immediate jailer of appellants is the Commandant of Landsberg Prison, an American Army officer, who derives his authority from the Commanding General, Third United States Army, and the Commanding General, United States Forces, European Theater (now designated Commanding General, European Command). The petition alleges that the Commandant of the Prison 'is subject to the direction of the respondents'. The reply of respondents to the rule to show cause says that the Commandant is subject to the supervision of the Commanding Generals of the United States Army in Europe 'and not to that of respondents.' This conflict in the pleadings seems merely to relate to the immediate physical custody of appellants, and not to concern the supervisory directive power of the Joint Chiefs of Staff or the Chief of Staff of the United States Army over the Commanding Generals. Such is the purport of the brief of respondents. For purposes of this appeal, we assume this to be the situation. 5 Appellants alleged and respondents admitted that appellants are confined in the custody of the United States Army.

Appellants alleged in their petition that their confinement is in violation of Articles I and III of the Constitution of the United States, of the Fifth Amendment thereto, and of other provisions of the Constitution and laws of the United States and of the Geneva Convention of July 27, 1929. They alleged that the military commission was without jurisdiction to try them or the offenses with which they were charged or in the manner in which the proceeding was had.

The question is whether the District Court has power to entertain appellants' petition. This is the question reserved in Ahrens v. Clark 6 and in Ex parte Endo. 7 In fact, the question was not involved in the decision of those cases.

We must answer these questions: (1) Are these petitioners entitled to the writ 8 as a matter of substantive right? (2) If a federal jurisdictional statute deprive them of the privilege? (3) If they are entitled to the writ and cannot be deprived of the privilege, in what court does their petition lie, they and their immediate jailer being outside the territorial jurisdiction of any district court? The answers stem directly from fundamentals. They cannot be found by casual reference to statutes or cases.

We shall not elaborate our discussion but merely state the principles from which we derive our conclusion.

1. We think that any person who is deprived of his liberty by officials of the United States, acting under purported authority of that Government, and who can show that his confinement is in violation of a prohibition of the Constitution, has a right to the writ. This conclusion necessarily follows from the following premises. First. The Fifth Amendment, by its terms, applies to 'any person'. 9

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Second. Action of Government officials in violation of the Constitution is void. 10 This is the ultimate essence of the present controversy. Third. A basic and inherent function of the judicial branch of a government built upon a constitution is to set aside void action by government officials, 11 and so to restrict executive action to the confines of the constitution. In our jurisprudence, no Government action which is void under the Constitution is exempt from judicial power. Fourth. The writ of habeas corpus is the established, time-honored process in our law for testing the authority of one who deprives another of his liberty, 12 - 'the best and only sufficient defense of personal freedom.' 13 The writ is the indispensable implementation of constitutional guarantees in respect to personal liberty.

At common law the writ issued to test the validity of confinement under English authority beyond the seas, although the decided cases dealt with British subjects. 14

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[5] It is established in our law 15 that enemy aliens may resort to habeas corpus, and that habeas corpus is the proper proceeding by which to test the jurisdictional authority of military tribunals. 16

If it be held that no court has jurisdiction to issue a writ of habeas corpus upon petition of a person confined outside the territorial United States, the ruling would deny the protection of the Constitution to citizens of the United States confined abroad by action of and in custody of officials of the United States. The only escape from that conclusion would be to distinguish between citizens and aliens. 17

We think that constitutional prohibitions apply directly to acts of Government, or Government officials, and are not conditioned upon persons or territory. That is the nub of this whole matter. If the action of Government officials be beyond their constitutional power, it is for that reason a nullity. No more need be proven to establish its invalidity. Absent constitutional power, neither the objective nor the subject matter of an act is material. Whether given circumstances place a given action outside an apparent constitutional prohibition and so within constitutional power, is a different question, to be established by proof and not to be considered unless raised and supported. That is a matter of decision and not of judicial jurisdiction. For these reasons, we think that a distinction between citizens and aliens cannot be made in respect to the applicability of constitutional restrictions upon the power of government.

There is a vast difference between the delegated power of our Federal Government and the unrestricted power of the British Crown and Parliament. 18 Whatever may be the concept of restrictions upon governmental power in that country, and so of the applicability of the writ there, in this country constitutional restrictions are absolute and the writ must apply wherever such a restriction is transgressed and no other remedy is available.

Upon the foregoing considerations, we see no escape from the conclusion we have stated, that any person deprived of his liberty by an official of the United States Government in violation of constitutional prohibitions, has a substantive right to a writ of habeas corpus.

2. We think that if a person has a right to a writ of habeas corpus, he cannot be deprived of the privilege by an omission in a federal jurisdictional statute. This conclusion follows from these premises. First. The right to habeas corpus is an inherent common law right. 19 Second. The Federal Government cannot suspend the privilege, except when, in cases of rebellion or invasion, the public safety may so require. 20 This prohibition is in

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the First Article of the Constitution itself, its importance gauged by the fact that the Constitutional Convention did not leave the possibility of misunderstanding upon the topic to later determination, as they did the several prohibitions later incorporated in the first Ten Amendments. Third. Congress could not effectuate by omission that which it could not accomplish by affirmative action. So, if the existing jurisdictional act be construed to deny the writ to a person entitled to it as a substantive right, the act would be unconstitutional. It should be construed, if possible, to avoid that result.

It may be reasoned that 'courts which are...

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