Also known as: civilian populations · civilians
Written by attorneys — see sources below.
A group of individuals who are not members of the armed forces.
Lopez worked as a civilian dispatcher for a private freight company. After a domestic uprising, the President ordered troops to secure a rail hub and directed that Lopez be tried by military tribunal for diverting trains. State and federal courts in the area continued to hold criminal trials under heightened security. Lopez challenged the tribunal's authority over him as a member of the civilian population.
A resident of the District of Columbia sought to keep a handgun in his home for self-defense. District law banned possession of handguns by private citizens. The resident argued that members of the civilian population enjoy Second Amendment rights that the government may not eliminate through outright prohibition.
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for one-year periods. District of Columbia law also requires residents to keep their lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device unless they are located in a place of business or are being used for lawful recreational activities. Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home. The District Court dismissed respondent's complaint. The Court of Appeals for the District of Columbia Circuit reversed, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense. The Court of Appeals directed the District Court to enter summary judgment for respondent. The Supreme Court granted certiorari.
View caseHamdan, a driver for a private contractor, was captured abroad and held at Guantanamo. Military authorities convened a commission to try him on conspiracy charges. Hamdan contended that his status as part of the civilian population required compliance with court-martial procedures and Geneva Convention protections before any military forum could proceed.
Salim Ahmed Hamdan, a Yemeni national, was captured by militia forces in Afghanistan in November 2001 during hostilities between the United States and the Taliban regime that then governed the country. The militia turned him over to the United States military, which transported him to the detention facility at Guantanamo Bay, Cuba, in June 2002. Over a year later, on July 3, 2003, the President determined that Hamdan was eligible for trial by military commission for then-unspecified crimes. Subsequently, on July 13, 2004, the government charged Hamdan with one count of conspiracy to commit offenses triable by military commission. The charging document alleged that from February 1996 to November 2001 he had joined an enterprise with al Qaeda members and committed four overt acts in furtherance of that conspiracy. Hamdan then filed petitions for writs of habeas corpus and mandamus in the United States District Court for the District of Columbia to challenge both the authority of the military commission and the procedures it would employ. The District Court granted Hamdan's habeas petition on November 8, 2004, stayed the commission proceedings, and concluded that the commission lacked authority under the law of war and violated both the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. The Court of Appeals for the District of Columbia Circuit reversed that decision, holding that the Geneva Conventions were not judicially enforceable and that the commission's jurisdiction and procedures were lawful. The Supreme Court granted certiorari on November 7, 2005. On December 30, 2005, Congress enacted the Detainee Treatment Act, after which the government moved to dismiss the case for lack of jurisdiction. The Supreme Court postponed ruling on the motion and later denied it, retaining jurisdiction over the appeal.
View caseBalsys faced deportation proceedings based on alleged wartime conduct abroad. He invoked the Fifth Amendment to avoid answering questions that might expose him to foreign prosecution. The government argued that his civilian status did not extend self-incrimination protections to potential foreign charges.
In 1961 Aloyzas Balsys obtained admission to the United States on an immigrant visa and alien registration issued at the American Consulate in Liverpool. He stated that he had served in the Lithuanian army between 1934 and 1940 and had lived in hiding in Plateliai, Lithuania, between 1940 and 1944. In 1992 Balsys applied for naturalization and answered no when asked whether he had ever participated in any persecution of any person because of race, religion, or national origin under the direction of a foreign government. The Office of Special Investigations of the Criminal Division of the Department of Justice began investigating whether Balsys had in fact participated in Nazi persecution during World War II. Such activity would subject him to deportation under several provisions of the Immigration and Nationality Act. OSI issued an administrative subpoena requiring Balsys to testify at a deposition about his wartime activities between 1940 and 1944 and his immigration to the United States in 1961. Balsys appeared and gave his name and address but refused to answer any other questions. He invoked the Fifth Amendment privilege against self-incrimination on the ground that his answers could subject him to criminal prosecution in Lithuania, Israel, or Germany. The Government filed a petition in the United States District Court for the Eastern District of New York to enforce the subpoena. The District Court found that Balsys would face a real and substantial danger of prosecution by Lithuania and Israel if he provided the requested information. It granted the enforcement petition and ordered Balsys to testify, treating the Fifth Amendment as inapplicable to a claim of incrimination solely under foreign law. Balsys appealed. The Court of Appeals for the Second Circuit vacated the District Court's order. It held that a witness with a real and substantial fear of prosecution by a foreign country may assert the Fifth Amendment privilege to avoid giving testimony in a domestic proceeding. The Supreme Court granted certiorari to resolve a conflict among the Circuits on the issue.
View caseCovert, the civilian wife of a servicemember stationed abroad, was charged with murdering her husband. A court-martial convicted her under an agreement allowing military trials of accompanying civilians. She argued that her membership in the civilian population entitled her to a civilian jury trial despite the overseas location.
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. 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. 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. The court-martial that tried Mrs. Covert was composed of Air Force officers after charges were preferred by Air Force personnel. 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. Mrs. Smith was tried by an Army court-martial. 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. 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. That court ordered her release. The Government appealed directly to the Supreme Court under 28 U.S.C. § 1252. Mrs. Smith's father petitioned the United States District Court for the Southern District of West Virginia for habeas corpus relief on her behalf. That court denied the writ, and while an appeal was pending in the Fourth Circuit the Supreme Court granted certiorari. The two cases were consolidated for argument. 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. A similar administrative agreement governed jurisdiction in Japan. 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.
View caseBarnette, a student whose family belonged to a religious minority, refused to salute the flag in public school. State law required the salute of all pupils. Barnette claimed that compulsory participation violated the free-speech rights of members of the civilian population who hold conscientious objections.
Following the Supreme Court's 1940 decision in Minersville School District v. Gobitis, the West Virginia legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and the Constitutions of the United States and West Virginia for the purpose of teaching, fostering, and perpetuating the ideals, principles, and spirit of Americanism. The State Board of Education was directed to prescribe the courses of study covering these subjects for public schools. Private, parochial, and denominational schools were required to prescribe similar courses. On January 9, 1942, the West Virginia State Board of Education adopted a resolution ordering that the salute to the flag become a regular part of the program of activities in the public schools, with all teachers and pupils required to participate. The resolution specified the stiff-arm salute with the right hand raised and palm turned up while repeating the pledge: "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all." Refusal to salute was defined as an act of insubordination to be dealt with by expulsion. Readmission was denied by statute until compliance. The expelled child was treated as unlawfully absent. Parents or guardians faced prosecution with fines not exceeding $50 and jail terms not exceeding thirty days. The appellees are citizens of the United States and West Virginia who are Jehovah's Witnesses, an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which prohibits making or bowing down to any graven image or likeness. They consider the flag an image within this command, leading them to refuse to salute it on religious grounds. Children of the appellees who were pupils in the public schools were expelled for their refusal to salute the flag and take the pledge of allegiance. Their parents were prosecuted for causing delinquency. Officials threatened to send the children to reformatories maintained for criminally inclined juveniles. The appellees brought suit in the United States District Court for themselves and others similarly situated to enjoin enforcement of the laws and regulations against them. The Board of Education moved to dismiss the complaint setting forth these facts. The complaint alleged that the law and regulations denied religious freedom and freedom of speech and were invalid under the due process and equal protection clauses of the Fourteenth Amendment. The cause was submitted on the pleadings to a District Court of three judges, which restrained enforcement as to the plaintiffs and those of that class. The Board of Education brought the case to the Supreme Court by direct appeal.
View caseMilitary tribunals may not try members of the civilian population while civilian courts remain open and functioning. The Constitution requires that such persons receive Article III trials with jury protections under the Fifth and Sixth Amendments.
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No. Declaring an emergency or deploying troops does not convert a civilian into a member of the armed forces. The status of the accused and the availability of civilian courts remain the controlling factors.
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No. Treaties and status-of-forces agreements cannot override constitutional protections. A member of the civilian population retains the right to jury trial and other criminal safeguards even when tried abroad under an agreement.
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Jurisdictional facts establishing that the individual is properly subject to military authority must be determined through adequate process. Classified summaries alone are insufficient when the accused is part of the civilian population.
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