Madsen v. Kinsella

• Citation: 96 L.Ed. 988,72 S.Ct. 699,343 U.S. 341
• Decision Date: 28 April 1952
• Docket Number: No. 411,411
• Parties: MADSEN v. KINSELLA
• Court: United States Supreme Court

343 U.S. 341

72 S.Ct. 699

96 L.Ed. 988

MADSEN

v KINSELLA.

No. 411.

Argued Jan. 8, 1952.

April 28, 1952.

[Syllabus from pages 341-342 intentionally omitted]

Mr. Joseph S. Robinson, New York City, for petitioner.

Mr. Robert W. Ginnane, Washington, D.C., for respondent.

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 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. D.C., 93 F.Supp. 319. The Court of Appeals affirmed. 4 Cir., 188 F.2d 272. Because of the importance and novelty of the jurisdictional issues raised, we granted certiorari. 342 U.S. 865, 72 S.Ct. 115.

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 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 sen- tenced 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 non-military 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 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 commissions⁸ 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 commonlaw war 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 each instance to the need that called it forth. See In re Yamashita, 327 U.S. 1, 18—23, 66 S.Ct. 340, 349—351, 90 L.Ed. 499.

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 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 (22d 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.

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:

'II. COURTS-MARTIAL.

'C. JURISDICTION.

'Art. 15. Not exclusive.—The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals.' 39 Stat. 651, 652, 653.¹⁷

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, auto- matically 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, 66 S.Ct. 340, 90 L.Ed. 499, and Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3.

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, 327 U.S. at page 19 note, and at pages 65, 67—71, 66 S.Ct. at pages 350, 371—374. Before the Senate Subcommittee on Military Affairs he said:

'Article 15 is new. We have included in article 2 as subject to military law a number of persons who are also subject to trial by military commission. A military commission is our commonlaw war court. It has no statutory existence, though it is recognized by statute law. As long as the articles...