Hugo Black

“ We cannot close our eyes to the fact that, today, the peoples of many nations are ruled by the military.
We should not break faith with this Nation's tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. The country has remained true to that faith for almost one hundred seventy years. Perhaps no group in the Nation has been truer than military men themselves. ”

“ I 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 [p6] 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. ”

“ Not only does Clause 14, by its terms, limit military jurisdiction to members of the "land and naval Forces," but Art. III, § 2 and the Fifth and Sixth Amendments require that certain express safeguards, which were designed to protect persons from oppressive governmental practices, shall be given in criminal prosecutions—safeguards which cannot be given in a military trial. In the light of these as well as other constitutional provisions, and the historical background in which they were formed, military trial of civilians is inconsistent with both the "letter and spirit of the constitution." ”

“ Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of Clause 14. ”

“ No, Let us rouse our attention to the common law—which is our birthright, our great security against all kinds of insult and oppression. . . . [49] Colonials had also seen the right to trial by jury subverted by acts of Parliament which authorized courts of admiralty to try alleged violations of the unpopular [p29] "Molasses" and "Navigation" Acts. [50] This gave the admiralty courts jurisdiction over offenses historically triable only by a jury in a court of law, and aroused great resentment throughout the colonies. ”

“ Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right. ”

“ The generation that adopted the Constitution did not distrust the military because of past history alone. Within their own lives, they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston at various times from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and to intimidate the local populace. The trial of soldiers by courts-martial and the interference of the military with the civil courts aroused great anxiety and antagonism not only in Massachusetts, but throughout the colonies. ”

“ To the extent that these cases can be justified, insofar as they involved trial of persons who were not "members" of the armed forces, they must rest on the Government's "war powers." In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront. From a time prior to the adoption of the Constitution, the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of some civilians in that area by military courts under military rules. ”

“ Because of its very nature and purpose, the military must place great emphasis on discipline and efficiency. Correspondingly, there has always been less emphasis in the military on protecting the rights of the individual than in civilian society and in civilian courts. ”

“ The right to trial by jury in a criminal case is twice guaranteed by the Constitution. It is common knowledge that the fear that jury trial might be abolished was one of the principal sources of objection to the Federal Constitution, and was an important reason for the adoption of the Bill of Rights. ”

“ We agree with Colonel Winthrop, an expert on military jurisdiction, who declared: "a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace." [64] (Emphasis not supplied.)
As this Court stated in United States ex rel. Toth v. Quarles, 350 U.S. 11, the business of soldiers is to fight and prepare to fight wars, not to try civilians for their alleged crimes. ”

“ For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged, rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance ”

“ Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. ”

“ According to the Government's figures, almost 95% of the civilians tried abroad by army courts-martial during the six-year period from 1949-1955 were tried for minor offenses. In this country, "petty offenses" by civilians on military reservations are tried by civilian commissioners unless the alleged offender chooses trial in the Federal District Court. ”

“ 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 [p9] those constitutional rights which are "fundamental" protect Americans abroad, [11] we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of "Thou shalt nots" which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. ”

“ The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. ”

“ 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 ”

“ War, would remain in effect. [31] It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. ”

“ The exception in the Fifth Amendment, of course, provides that grand jury indictment is not required in cases subject to military trial, and this exception has been read over into the Sixth Amendment, so that the requirements of jury trial are inapplicable. Ex parte Quirin, 317 U.S. 1, 40. In Swaim v. United States, 165 U.S. 553, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable, such a practice would be unconstitutional. ”

“ The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship's officer, was seized and tried before a consular "court" in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other "non-Christian" countries. [14] These [p11] statutes provided that the laws of the United States were to govern the trial except:
. . . ”

“ The officer who convenes the court-martial also has final authority to determine whether charges will be brought in the first place, and to pick the board of inquiry, the prosecutor, the defense counsel, and the law officer who serves as legal adviser to the court-martial. ”

“ Seward, at a time when he was Consul-General, declared:
[t] here is no reason, excepting the absence of appropriate legislation, why American citizens in China, charged with grave offenses, should not have the privilege of a trial by jury as elsewhere throughout the world where the institution of civilization prevails. ”

“ Covert's alleged offense, 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. [29] For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith [p16] killed her husband. ”

“ Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the Kings Courts are open for all Persons to receive Justice, according to the Laws of the 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. ”

“ Secretary of State Blaine referred to these consular powers as
greater than ever the Roman law conferred on the pro-consuls of the empire, to an officer who, under the terms of the commitment of this astounding trust, is practically irresponsible. ”

“ Covert and Mrs. Smith. If the President can provide [p39] rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials. Such blending of functions in one branch of the Government is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers. ”

“ The arrangement now in effect in Great Britain and the other North Atlantic Treaty Organization nations, as well as in Japan, is the NATO Status of Forces Agreement, 4 U.S. Treaties and Other International Agreements 1792, T.I.A.S. 2846, which, by its terms, gives the foreign nation primary jurisdiction to try dependents accompanying American servicemen for offenses which are violations of the law of both the foreign nation and the United States. Art. VII, §§ 1 (b) , 3 (a) . The foreign nation has exclusive criminal jurisdiction over dependents for offenses which only violate its laws. Art. ”