United States v. Bohlander

• Decision Date: 10 November 1958
• Docket Number: Civ. No. 6161.
• Parties: UNITED STATES of America ex rel. Bruce WILSON, Petitioner, v. Major General John F. BOHLANDER, Commander, Fitzsimons Army Hospital, Denver, Colorada, Respondent.
• Court: U.S. District Court — District of Colorado

167 F. Supp. 791

UNITED STATES of America ex rel. Bruce WILSON, Petitioner, v. Major General John F. BOHLANDER, Commander, Fitzsimons Army Hospital, Denver, Colorada, Respondent.

Civ. No. 6161.

United States District Court D. Colorado.

November 10, 1958.

Arthur John Keefe, Washington, D. C., and William C. McClearn, Denver, Colo., for petitioner.

Donald E. Kelley, U. S. Atty., and John S. Pfeiffer, Asst. U. S. Atty., Denver, Colo., and F. M. Sasse, Colonel, JAGC, Fitzsimons Army Hospital, Denver, Colo., and Lt. Col. Peter S. Wondolowski, JAGC, U. S. Army, Washington, D. C., for respondent.

ARRAJ, District Judge.

This matter is before the Court on a petition for a Writ of Habeas Corpus. The petitioner is and at all times pertinent hereto was a citizen of the United States employed as a civilian auditor by the Department of the Army in the Comptroller's Division in Berlin, Germany. During the time he was so employed, petitioner was charged with certain offenses in violation of Articles 125 and 134 of the Uniform Code of Military Justice, 10 U.S.C.A. §§ 925, 934. On his plea of guilty a General Court Martial convicted him of various violations of the said Articles and sentenced him to 10 years at hard labor; the Commanding General approved the conviction and reduced the sentence to 5 years. The Board of Review affirmed the conviction and the Court of Military Appeals affirmed the Board's action. United States v. Bruce Wilson, 9 USCMA 60, 25 CMR 322 (1958).

Petitioner has been detained and confined under the jurisdiction of the United States Army, under said sentence, since August 21, 1956, and is presently confined in this district at Fitzsimons Army Hospital, Denver, Colorado.

Petitioner has filed his Petition for a Writ of Habeas Corpus in this Court contending that his arrest, detention and confinement by the military authorities has been and is unlawful and in violation of the Constitution of the United States; he further contends that as an American citizen and civilian he could not be tried by court martial, and that only a Court constituted under Article III of the Constitution has jurisdiction to try him.

Respondent defends on the ground that jurisdiction was proper under Article 2(11) of the Uniform Code of Military Justice. Thus, the sole question to be determined by this Court is whether Article 2(11) of the Uniform Code of Military Justice can be constitutionally applied to an American citizen employed by the Department of the Army overseas as a civilian who is charged with a crime in time of peace.

Article 2 of the Uniform Code of Military Justice, 10 U.S.C.A. § 802, reads as follows:

"Art. 2. Persons subject to this chapter.

"The following persons are subject to this chapter:

* * * * * *

"(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the following: that part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands."

The relevant portions of the Constitution under which respondent seeks to sustain the constitutionality of Article 2(11) are Article I, Section 8, Clause 14, which provides that,

"The Congress shall have Power * * * To make Rules for the Government and Regulation of the land and naval Forces."

and the final clause of Article I, Section 8, which empowers Congress to make all laws which shall be necessary and proper for carrying into execution,

"* * * the foregoing Powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof."

The starting point in any discussion of Article 2(11) is Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1245, 1 L.Ed. 2d 1148, which for the first time, raised serious doubts concerning court martial jurisdiction over civilians generally, although the case was directly concerned only with dependents in capital cases. That case involved the trial by court martial of a dependent wife for the premeditated murder of her serviceman husband. Justice Black, speaking for himself, the Chief Justice, and Justices Douglas and Brennan, held that the necessary and proper clause could not expand jurisdiction to cover persons not within the terms of Clause 14. Although he did not define the precise boundary between civilians and those in the land and naval forces, he held that dependents were not within Clause 14, and therefore no authority existed for depriving them of their rights as civilians under other provisions of the Constitution. The language of the opinion is broad in certain phases and it appears to embrace civilians generally, without restriction to dependents. Justice Frankfurter concurred in the result, but limited his opinion strictly to dependents in capital cases. He found it necessary to,

"weigh all the factors involved in these cases in order to decide whether these women dependents are so closely related to what Congress may allowably deem essential for the effective `Government and Regulation of the land and naval Forces' that they may be subjected to court-martial jurisdiction in capital cases, when the consequence is loss of the protections afforded by Article III and the Fifth and Sixth Amendments."

In weighing these considerations, he concluded that their proximity to the armed forces was not so clearly demanded for the effective government and regulation of the armed forces as to justify court martial jurisdiction over capital offenses. Justice Harlan also concurred in the result, and on even narrower grounds. He reasoned that Clause 14 was modified by the necessary and proper clause, and that dependents had sufficiently close connection with the proper and effective functioning of our overseas forces to justify court martial jurisdiction. On the other hand, whether an absolute right to the guarantees of the Constitution existed depended on the circumstances, and, in a capital case, those guarantees were so important that the dependents here could not be deprived of them. Justice Clark, with whom Justice Burton joined, dissented. They saw no distinction between capital and non-capital cases, and thought that Article 2(11) was reasonably necessary to the power of Congress to provide for the government of our armed forces. Justice Whittaker took no part in the decision.

The first issue to resolve is whether civilian employees of the armed forces overseas are within the terms of Article I, Section 8, Clause 14 of the Constitution.

In a series of early cases, paymaster's clerks were held to be "in military service" for jurisdictional purposes; however, it is noted that these clerks, although not enlisted or drafted, or regular or reserve officers, nevertheless possessed more than the usual indicia of civilian employees. It appears from the cases that they were appointed by the Secretary of the Army or Navy or the commander of the vessel on which they served, that they were paid by the Department of the Army or Navy, and that they even wore a uniform. One case specifically refers to them as officers. They appear, on the facts, to have been comparable to the present class of Department of the Army civilians, with the exception that they wore uniforms. In re Thomas, D.C.Miss.1869, 23 Fed.Cas., p. 931, No. 13,888; United States v. Bogart, D.C.N.Y.1869, 24 Fed.Cas., p. 1184, No. 14,616; In re Bogart, C.C.Cal.1873, 3 Fed.Cas., p. 796, No. 1,596; In re Reed, C.C.Mass.1879, 20 Fed.Cas., p. 409, No. 11,636.

Another series of cases arose out of Article 2(d) of the Articles of War of 1916, 39 Stat. 651, which subjected to military court martial jurisdiction,

"All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles."

In World War I and again in World War II, military court martial jurisdiction over civilians both in the United States and overseas was upheld under the terms of this article. E. g. Hines v. Mikell, 4 Cir., 1919, 259 F. 28, certiorari denied 250 U.S. 645, 39 S.Ct. 494, 63 L.Ed. 1187 (civilian auditor in South Carolina); Ex parte Gerlach, D.C.N.Y.1917, 247 F. 616 (civilian mate on an Army transport); Ex parte Falls, D.C.N.J.1918, 251 F. 415 (civilian cook on an army transport in New York harbor); Ex parte Jochen, D.C.Tex.1919, 257 F. 200 (civilian superintendent of Quartermaster Corps with troops on the Mexican border); Perlstein v. United States, 3 Cir., 1945, 151 F.2d 167, certiorari granted 327 U.S. 777, 66 S.Ct. 956, 90 L.Ed. 1005, dismissed as moot 328 U.S. 822, 66 S.Ct. 1358, 90 L.Ed. 1602 (assistant mechanical superintendent employed by private army contractor in Eritrea, Africa, in 1942); In re Di Bartolo, D.C.N.Y.1943, 50 F.Supp. 929 (mechanic with Douglas Aircraft Co. in Eritrea, Africa, in 1942); McCune v. Kilpatrick, D.C.Va.1943, 53 F.Supp. 80 (cook on military vessel loading military supplies); In re Berue, D.C.Ohio 1944, 54 F.Supp. 252 (merchant seaman on convoy vessel).

In Grewe v. France, D.C.Wis.1948, 75 F.Supp. 433, the defendant had been a mechanical engineer with the Office of the Chief Engineer, U. S. Forces, European Theater, in Frankfurt, Germany, in 1946. The Court held that Article 2(d) was constitutional and that, since Germany was still a militarily occupied zone and in a state of war, though hostilities had ceased, there was jurisdiction under either section of Article 2(d). This is a borderline case, but probably should be considered as one of the wartime cases. See also, United States ex rel. Mobley v. Handy, 5...