354 U.S. 1 (1956), 701, Reid v. Covert

Docket Nº:No. 701, October Term, 1955
Citation:354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148
Party Name:Reid v. Covert
Case Date:June 10, 1957
Court:United States Supreme Court

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354 U.S. 1 (1956)

77 S.Ct. 1222, 1 L.Ed.2d 1148




No. 701, October Term, 1955

United States Supreme Court

June 10, 1957

Argued May 3, 1956

Rehearing granted November 5, 1956

Reargued February 27, 1957

Decided June 10, 1957



Article 2(11) of the Uniform Code of Military Justice, providing for the trial by court-martial of "all persons . . . accompanying the armed forces" of the United States in foreign countries, cannot constitutionally be applied, in capital cases, to the trial of civilian dependents accompanying members of the armed forces overseas in time of peace. Kinsella v. Krueger, 351 U.S. 470, and Reid v. Covert, 351 U.S. 487, withdrawn. Pp. 3-78.

Judgment below in No. 701, October Term, 1955, affirmed. 137 F.Supp. 806, reversed and remanded.

MR. JUSTICE BLACK, in an opinion joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN, concluded that:

1. When the United States acts against its citizens abroad, it can do so only in accordance with all the limitations imposed by the Constitution, including Art. III, § 2, and the Fifth and Sixth Amendments. Pp. 5-14.

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2. Insofar as Art. 2(11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is "necessary and proper" to carry out obligations of the United States under international agreements made with those countries, since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution. Pp. 15-19.

3. The power of Congress under Art. I, § 8, cl. 14, of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces," taken in conjunction with the Necessary and Proper Clause, does not extend to civilians -- even though they may be dependents living with servicemen on a military base. Pp. 19-40.

4. Under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States. Pp. 40-41.

MR. JUSTICE FRANKFURTER, concurring in the result, concluded that, in capital cases, the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by the power of Congress under Article I to regulate the "land and naval Forces," when considered in connection with the specific protections afforded civilians by Article III and the Fifth and Sixth Amendments. Pp. 41-64.

MR. JUSTICE HARLAN, concurring in the result, concluded that, where the offense is capital, Art. 2(11) of the Uniform Code of Military Justice cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace. Pp. 65-78.

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BLACK, J., lead opinion

MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN join.

These cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States, thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. These cases are particularly significant because, for the first time since the adoption of the Constitution, wives of soldiers have been denied trial by jury in a court of law and forced to trial before courts-martial.

In No. 701, Mrs. Clarice Covert killed her husband, a sergeant in the United States Air Force, at an airbase in England. Mrs. Covert, who was not a member of the armed services, was residing on the base with her husband at the time. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice (UCMJ).1 The trial was on charges preferred by Air Force personnel, and the court-martial was composed of Air Force officers. The court-martial asserted jurisdiction over Mrs. Covert under Article 2(11) of the UCMJ,2 which provides:

The following persons are subject to this code:

* * * *

(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,

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all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States. . . .

[77 S.Ct. 1224] Counsel for Mrs. Covert contended that she was insane at the time she killed her husband, but the military tribunal found her guilty of murder and sentenced her to life imprisonment. The judgment was affirmed by the Air Force Board of Review, 16 CMR 465, but was reversed by the Court of Military Appeals, 6 U.S.C.M.A 48, because of prejudicial errors concerning the defense of insanity. While Mrs. Covert was being held in this country pending a proposed retrial by court-martial in the District of Columbia, her counsel petitioned the District Court for a writ of habeas corpus to set her free on the ground that the Constitution forbade her trial by military authorities. Construing this Court's decision in United States ex rel. Toth v. Quarles, 350 U.S. 11, as holding that "a civilian is entitled to a civilian trial," the District Court held that Mrs. Covert could not be tried by court-martial, and ordered her released from custody. The Government appealed directly to this Court under 28 U.S.C. § 1252. See 350 U.S. 985.

In No. 713, Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him. She was tried for murder by a court-martial and, despite considerable evidence that she was insane, was found guilty and sentenced to life imprisonment. The judgment was approved by the Army Board of Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals, 5 U.S.C.MA 314. Mrs. Smith was then confined in a federal penitentiary in West Virginia. Her father, respondent here, filed a petition for habeas corpus in a District Court for West Virginia. The petition charged that the court-martial was without jurisdiction because Article 2(11) of the UCMJ was unconstitutional insofar as it authorized the trial of civilian dependents accompanying

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servicemen overseas. The District Court refused to issue the writ, 137 F.Supp. 806, and, while an appeal was pending in the Court of Appeals for the Fourth Circuit, we granted certiorari at the request of the Government, 350 U.S. 986.

The two cases were consolidated and argued last Term, and a majority of the Court, with three Justices dissenting and one reserving opinion, held that military trial of Mrs. Smith and Mrs. Covert for their alleged offenses was constitutional. 351 U.S. 470, 487. The majority held that the provisions of Article III and the Fifth and Sixth Amendments which require that crimes be tried by a jury after indictment by a grand jury did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there, and that Congress could provide for the trial of such offenses in any manner it saw fit, so long as the procedures established were reasonable and consonant with due process. The opinion then went on to express the view that military trials, as now practiced, were not unreasonable or arbitrary when applied to dependents accompanying members of the armed forces overseas. In reaching their conclusion, the majority found it unnecessary to consider the power of Congress "To make Rules for the Government and Regulation of the land and naval Forces" under Article I of the Constitution.

Subsequently, the Court granted a petition for rehearing, 352 U.S. 901. Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities.


At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely

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a creature of the Constitution.3 Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.4 When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later, an English historian wrote:

In a Settled Colony, the inhabitants have all the rights of Englishmen. They take with them, in the first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown, the duty of obedience to the lawful commands of the Sovereign, and obedience to the Laws which Parliament may think proper to make with reference to such a Colony. But, on the other hand, they take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country.5

The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone; they have been jealously preserved from the encroachments

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