Kinsella v. Krueger

• Citation: 351 U.S. 470,76 S.Ct. 886,100 L.Ed. 1342
• Decision Date: 11 June 1956
• Docket Number: No. 713,713
• Parties: Nina KINSELLA, Warden of the Federal Reformatory for Women, Alderson, West Virginia, Petitioner, v. Walter KRUEGER
• Court: United States Supreme Court

351 U.S. 470

76 S.Ct. 886

100 L.Ed. 1342

Nina KINSELLA, Warden of the Federal Reformatory for Women, Alderson, West Virginia, Petitioner,

v Walter KRUEGER.

No. 713.

Argued May 3, 1956.

Decided June 11, 1956.

Mr.

Marvin E. Frankel, Washington, D.C., for petitioner.

Mr. Frederick Bernays Wiener, Washington, D.C., for respondent.

Mr. Justice CLARK delivered the opinion of the Court.

Congress, in Article 2(11) of the Uniform Code of Military Justice, has provided that all persons 'accompanying the armed forces without the continental limits of the United States' and certain named territories shall be subject to the Code if such jurisdiction is authorized under 'any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law.' 50 U.S.C. § 552, 50 U.S.C.A. § 552. Pursuant to this article and a subsequent agreement between the United States and Japan, ¹ Mrs. Dorothy Krueger Smith was tried by a gen- eral court-martial in Tokyo, Japan, for the premeditated murder of her husband, a colonel in the United States Army. She was found guilty and sentenced to life imprisonment. 10 C.M.R. 350. Her conviction was affirmed by the Board of Review, 17 C.M.R. 314, and the Court of Military Appeals, 5 U.S.C.M.A. 314, and she began serving her sentence in the Federal Reformatory for Women, Alderson, West Virginia.

Thereafter, a petition for a writ of habeas corpus was filed on Mrs. Smith's behalf by her father, respondent herein. The petition alleged that the court-martial had no jurisdiction to try Mrs. Smith because Article 2(11) of the Uniform Code of Military Justice violates both Art. III, § 2, and Amendment VI of the Federal Constitution, which guarantee the right to trial by jury to a civilian. The United States District Court for the Southern District of West Virginia issued a preliminary writ. After a hearing, which included the submission of briefs and unlimited oral argument, the writ was discharged and Mrs. Smith was remanded to the custody of the Warden. 137 F.Supp. 806. In order to expedite the determination of the case, the Government itself sought certiorari while an appeal was pending before the Court of Appeals for the Fourth Circuit. We granted review on March 12, 1956, 350 U.S. 986, 76 S.Ct. 476, because of the serious constitutional question presented and its far-reaching importance to our Armed Forces stationed in some sixty-three different countries throughout the world. We agree with the decision of the District Court.

In its entirety, Art. 2(11), 50 U.S.C. § 552, 50 U.S.C.A. § 552, provides that:

'The following persons are subject to this chapter:

'(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States and without the following territories: That part of Alaska east of longitude one hundred and seventy-two degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands * * *.'

Mrs. Smith comes squarely within the terms of this provision. As a military dependent, she had accompanied her husband beyond the continental limits of the United States. Prior to her husband's death they lived together in Washington Heights, an American community in Tokyo composed exclusively of American servicemen and their dependents. Japan, at the time of the offense, had ceded to the United States 'exclusive jurisdiction over all offenses which may be committed in Japan by members of the United States armed forces, the civilian component, and their dependents * * *.' Art. XVII, 3 UST (Part 3) 3354. Since Article 2(11) concededly applies to this case if it was within the power of Congress to enact, the constitutionality of that provision is the sole question presented. Essentially, we are to determine only whether the civilian dependent of an American serviceman authorized to accompany him on foreign duty may constitutionally be tried by an American military court-martial in a foreign country for an offense committed in that country.

Trials by court-martial are governed by the Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. § 551 et seq., 50 U.S.C.A. § 551 et seq. The Code was carefully drawn by Congress to include the fundamental guarantees of due process, and in operation it has provided a fair and enlightened system of justice. However, courts-martial are not required to provide all the protections of constitutional courts; therefore, to try by court-martial a civilian entitled to trial in an Article III court is a violation of the Constitution. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1. Accordingly, our first inquiry is directed to the question whether, as a matter of constitutional right, an American citizen outside of the continental limits of the United States and in a foreign country is entitled to trial before an Article III court for an offense committed in that country.

In making this determination, we are not faced with the question 'whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable.'² Entirely aside from the power of Con- gress under Article III of the Constitution, it has been well-established since Chief Justice Marshall's opinion in American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242, that Congress may establish legislative courts outside the territorial limits of the United States proper. The procedure in such tribunals need not comply with the standards prescribed by the Constitution for Article III courts. In cases arising from Hawaii,³ the Philippines,⁴ and Puerto Rico,⁵ this Court has recognized the power of Congress to enact a system of laws which did not provide for trial by jury. By 1922 it was regarded as clearly settled' that the jury provisions of Article III and the Sixth and Seventh Amendments 'do not apply to territory belonging to the United States which has not been incorporated into the Union.' Balzac v. People of Porto Rico, 258 U.S. 298, 304—305, 42 S.Ct. 343, 345, 66 L.Ed. 627.

In an earlier case, this Court had sustained the constitutionality of an Act of Congress which created consular courts to try, pursuant to treaties, American citizens for crimes committed in Japan, China, and other countries. In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581. Ross, an American Seaman convicted of murder by a consular court in Yokohama, Japan, contended that he had been deprived of his constitutional right to both grand and petit juries. In rejecting this claim, the Court pointed out that these constitutional guarantees were not applicable to a consular court sitting outside the constinental United States. 140 U.S. at page 464, 11 S.Ct. at page 900. Recounting the long-established practice of governments to provide 'for the exercise of judicial authority in other countries by (their) officers appointed to reside therein', 140 U.S. 463, 11 S.Ct. 900, the Court noted that the requirement of a grand and petit jury in these circumstances 'would defeat the main purpose of investing the consul with judicial authority.' 140 U.S. at page 465, 11 S.Ct. at page 900. In 1929, citing Ross with approval in Ex parte Bakelite Corp., 279 U.S. 438, 451, 49 S.Ct. 411, 413, 73 L.Ed. 789, this Court reaffirmed the doctrine that 'legislative courts * * * exercise their functions within particular districts in foreign territory, and are invested with a large measure of jurisdiction over American citizens in those districts. The authority of Congress to create them and to clothe them with such jurisdiction has been upheld by this Court and is well recognized.' These cases establish beyond question that the Constitution does not require trial before an Article III court in a foreign country for offenses committed there by an American citizen and that Congress may establish legislative courts for this purpose.

Having determined that one in the circumstances of Mrs. Smith may be tried before a legislative court established by Congress,⁶ we have no need to examine the power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces' under Article I of the Constitution. If it is reasonable and consonant with dur process for Congress to employ the existing system of courts-martial for this purpose, the enactment must be sustained.

In the present day, we, as a Nation, have found it necessary to the preservation of our security to maintain American forces in some sixty-three foreign countries. The practical necessity of allowing these men to be accompanied by their families where possible has been recognized by Congress as well as the services, and the result has been the creation of American communities of mixed civilian and military population at bases throughout the world. In all matters of substance, the lives of military and civilian personnel alike are geared to the local military organization which provides their living accommodations, medical facilities and transportation from and to the United States. We could not find it unreasonable for Congress to conclude that all should be governed by the same legal standard to the end that they receive equal treatment under law. The effect of a double standard might well create sufficient unrest and confusion to result in the destruction of effective law enforcement.⁷ By the enactment of Article 2(11) of the Code, Congress has provided that all shall be subject to the same system of justice and that the military commander who bears full responsibility for the care and safety of those civilians attached to his command shall also have authority to regulate their conduct.

It was conceded before this Court that Congress could have established, or might yet establish, a system of territorial or consular courts to try offenses...