Reid v. Covert Kinsella v. Krueger, s. 701

Citation1 L.Ed.2d 1148,77 S.Ct. 1222,354 U.S. 1
Decision Date10 June 1957
Docket Number713,Nos. 701,s. 701
PartiesCurtis REID, Superintendent of the District of Columbia Jail, Appellant, v. Clarice B. COVERT. Nina KINSELLA, Warden of the Federal Reformatory for Women, Alderson, West Virginia, Petitioner, v. Walter KRUEGER
CourtUnited States Supreme Court

[Syllabus from pages 1-2 intentionally omitted] Solicitor General J. Lee Rankin, Washington, D.C., for appellant in No. 701 and for petitioner in No. 713.

Mr. Frederick Bernays Wiener, Washington, D.C., for appellee in No. 701 and for respondent in No. 713.

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

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 USCMA 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, 76 S.Ct. 1, 100 L.Ed. 8, as holding that 'a civilian is entitled to a civilian trial' the District Court held that Mrs. Covert could not be tried by courtmartial and ordered her released from custody. The Government appealed directly to this Court under 28 U.S.C. § 1252, 28 U.S.C.A. § 1252. See 350 U.S. 985, 76 S.Ct. 476, 100 L.Ed. 852.

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 USCMA 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 accom- panying 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, 76 S.Ct. 476, 100 L.Ed. 853.

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, 76 S.Ct. 886, 100 L.Ed. 1342; 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352. 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, § 8, cl. 14 of the Constitution.

Subsequently, the Court granted a petition for rehearing, 352 U.S. 901, 77 S.Ct. 124, 1 L.Ed.2d 92. 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 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 encroach- ments of Government by express provisions of our written Constitution. 6

Among those provisions, Art. III, § 2 and the Fifth and Sixth Amendments are directly relevant to these cases. Article III, § 2 lays down the rule that:

'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.'

The Fifth Amendment declares:

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * *.'

And the Sixth Amendment provides:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.'

The language of Art. III, § 2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. After declaring that all criminal trials must be by jury, the section states that when a crime is 'not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.' If this language is permitted to have its obvious meaning,7 § 2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held.8 From the very first Congress, federal statutes have implemented the provisions of § 2 by providing for trial of murder and other crimes committed outside the jurisdiction of any State 'in the district where the offender is apprehended, or into which he may first be brought.'9 The Fifth and Sixth Amendments, like Art. III, § 2, are also all inclusive with their sweeping references to 'no person' and to 'all criminal prosecutions.'

This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States.10 While it has been suggested that only those constitutional rights which are 'fundamental' protect Americans abroad,11 we can find no...

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