354 U.S. 1 (1957)
Mrs. Clarice Covert, a civilian, killed her husband, a sergeant in the United States Air Force, at an airbase in England where she was residing with him.1
Mrs. Dorothy Smith, also a civilian, killed her husband, a colonel in the United States Army, at a post in Japan where she was living with him.2 Both women were tried by courts-martial convened under Article 118 of the Uniform Code of Military Justice for the offense of murder and were sentenced to life imprisonment.3
The court-martial that tried Mrs. Covert was composed of Air Force officers after charges were preferred by Air Force personnel.4 The judgment was affirmed by the Air Force Board of Review but reversed by the Court of Military Appeals on grounds related to the defense of insanity, leaving a retrial pending in the District of Columbia.5 Mrs. Smith was tried by an Army court-martial.6 Her conviction was approved by the Army Board of Review and the Court of Military Appeals, after which she was confined in a federal penitentiary in West Virginia.7
While Mrs. Covert was held pending retrial, her counsel petitioned the United States District Court for the District of Columbia for a writ of habeas corpus.8 That court ordered her release.9 The Government appealed directly to the Supreme Court under 28 U.S.C. § 1252.10 Mrs. Smith's father petitioned the United States District Court for the Southern District of West Virginia for habeas corpus relief on her behalf.11 That court denied the writ, and while an appeal was pending in the Fourth Circuit the Supreme Court granted certiorari.12
The two cases were consolidated for argument.13 An executive agreement between the United States and Great Britain permitted United States military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents.14 A similar administrative agreement governed jurisdiction in Japan.15 Both women were tried pursuant to Article 2(11) of the Uniform Code of Military Justice, which extends court-martial jurisdiction to persons accompanying the armed forces outside the continental United States subject to treaty or international law provisions.16
Whether Congress may constitutionally authorize the trial by court-martial of civilian dependents accompanying members of the armed forces overseas for capital offenses committed abroad?17
The power granted to Congress by Article I, Section 8, Clause 14 to make rules for the government and regulation of the land and naval forces is limited to members of the armed services and does not extend to civilian dependents.18 The Bill of Rights protections of Article III, Section 2 and the Fifth and Sixth Amendments apply to American citizens wherever the government acts against them.19
No. The established facts establish the following circumstances.20 Mrs. Clarice Covert, a civilian, killed her husband, a sergeant in the United States Air Force, at an airbase in England where she was residing with him. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice.21 The trial was on charges preferred by Air Force personnel and the court-martial was composed of Air Force officers. The judgment was affirmed by the Air Force Board of Review but reversed by the Court of Military Appeals because of prejudicial errors concerning the defense of insanity.22 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.23
Subsequently, Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him.24 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.25 The judgment was approved by the Army Board of Review and the Court of Military Appeals.26 Mrs. Smith was then confined in a federal penitentiary in West Virginia.27 Her father filed a petition for habeas corpus in a District Court for West Virginia.28 The District Court refused to issue the writ.29
The two cases were consolidated and argued.30 An executive agreement was in effect between the United States and Great Britain which permitted United States military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents.31 A similar situation existed in Japan.32 Both women were tried pursuant to Article 2(11) of the UCMJ.33
The Constitution limits the power of Congress to make rules for the government and regulation of the land and naval forces to members of the armed services.34 The wives of servicemen are not members of the land and naval forces.35 The Bill of Rights protections apply to American citizens when the government acts against them abroad.36 Therefore the trials by court-martial of these civilian dependents for capital offenses were unconstitutional.37
Congress may not constitutionally authorize the trial by court-martial of civilian dependents for capital offenses committed abroad.38
Related opinions on this issue
Justice Frankfurter agreed with the judgment but would rest the decision on narrower grounds.39 He concluded that in capital cases the constitutional guarantees must be observed.40 The proximity of these women to the land and naval forces is not so clearly demanded by the effective government and regulation of those forces as to justify court-martial jurisdiction over capital offenses.41
The practical situations bear some relation to the military.42 Yet the question for the Court is not merely whether the relation is sufficiently close to preclude a finding that Congress has been arbitrary.43 The Court must weigh all factors to decide whether these dependents are so closely related to what Congress may allowably deem essential.44 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.45
Justice Harlan concurred in the result.46 He did so on the narrow ground that where the offense is capital, Article 2(11) cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace.47 He emphasized that capital cases stand on a different footing than other offenses.48 In such cases the law is especially sensitive to demands for procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority.49
The distinction between capital and non-capital cases is literally that between life and death.50 The number of capital cases would appear to be so negligible that the practical problems of affording the defendant a civilian trial would not present insuperable problems.51
Joined by Justice Burton
Justice Clark dissented, arguing that the Constitution grants to Congress the power to make rules for the government and regulation of the land and naval forces.52 This power includes the authority to provide for the trial by court-martial of civilians accompanying the armed forces overseas.53 The Status of Forces Agreements are valid exercises of the treaty power.54
The trials were lawfully conducted.55 He would affirm the judgments below.56 Historically the military has always exercised jurisdiction by court-martial over civilians accompanying armies in time of war.57
Congress has provided that military personnel and civilians alike shall be governed by the same law administered by the same courts.58 The use of the Uniform Code of Military Justice was the only practicable alternative available.59
Whether the jury trial guarantees of Article III, Section 2 and the Fifth and Sixth Amendments apply to the trial of American citizens by the United States government in foreign countries?60
Yes. The established facts show that the trials of Mrs. Covert and Mrs. Smith were conducted by courts-martial without the protections of indictment by grand jury or trial by jury.64 The Constitution's provisions in Article III, Section 2 and the Fifth and Sixth Amendments are fundamental and apply when the government reaches out to punish a citizen who is abroad.65
The jury trial guarantees apply to the trial of American citizens by the United States government in foreign countries.66
Whether executive agreements or treaties with foreign nations can authorize procedures for trying American citizens that depart from the constitutional requirements of indictment by grand jury and trial by jury?67
No. The established facts indicate that the trials were conducted pursuant to executive agreements with Great Britain and Japan and Article 2(11) of the UCMJ.7071 The Supremacy Clause does not permit treaties to override constitutional protections.72 The court-martial proceedings cannot stand because they departed from the requirements of the Bill of Rights.73
Executive agreements or treaties cannot authorize procedures that depart from the constitutional requirements of indictment by grand jury and trial by jury.74