Tom C. Clark

“ I must confess inability to appreciate the bearing of the series of complicated adjudications dealing with the difficult problems relating to 'organized' and 'unorganized' territories of the United States to legislation by Congress treating civilians accompanying members of the Armed Forces abroad as though they were part of the Armed Forces and therefore amenable to the Code of Military Justice.
Grave issues affecting the status of American civilians throughout the world are raised by these cases ”

“ Smith may be tried before a legislative court established by Congress, [6] we have no need to examine the power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces' under Article I of the Constitution. If it is reasonable and consonant with dur process for Congress to employ the existing system of courts-martial for this purpose, the enactment must be sustained.
In the present day, we, as a Nation, have found it necessary to the preservation of our security to maintain American forces in some sixty-three foreign countries. ”

“ The practical necessity of allowing these men to be accompanied by their families where possible has been recognized by Congress as well as the services, and the result has been the creation of American communities of mixed civilian and military population at bases throughout the world. In all matters of substance, the lives of military and civilian personnel alike are geared to the local military organization which provides their living accommodations, medical facilities and transportation from and to the United States. ”

“ By the enactment of Article 2 (11) of the Code, Congress has provided that all shall be subject to the same system of justice and that the military commander who bears full responsibility for the care and safety of those civilians attached to his command shall also have authority to regulate their conduct.
It was conceded before this Court that Congress could have established, or might yet establish, a system of territorial or consular courts to try offenses committed by civilian dependents abroad. ”

“ Absent the effective exercise of jurisdiction thus obtained, there is no reason to suppose that the nations involved would not exercise their sovereign right to try and punish for offenses committed within their borders. ”

“ Under these circumstances, Congress may well have determined that trial before an American court-martial in which the fundamentals of due process are assured was preferable to leaving American servicemen and their dependents throughout the world subject to widely varying standards of justice unfamiliar to our people. [12]
We note that this case presents no problem of the jurisdiction of a military court-martial sitting within the territorial limits of the United States or the power of Congress to provide for trial of Americans sojourning, touring, or temporarily residing abroad. ”

“ Reliable figures show that our Armed Forces overseas are accompanied by approximately a quarter of a million dependents and civilian workers. Figures relating to the Army alone show that in the 6 fiscal years from July 1, 149, to June 30, 1955, a total of 2,280 civilians were tried by courts-martial. While it is true that the vast majority of these prosecutions were for minor offenses, the volume alone shows the serious problem that would be presented by the administration of a dual system of courts.↑ Mr Justice Brandeis dissenting in Burns Baking Co. ”

“ Toth v. Quarles, supra, where the defendant, after discharge from military service and return to this country, was entitled to trial before an Article III court, and we found 'no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.' 350 U.S. at pages 22-23, 76 S.Ct. at page 8. In Toth we found that Article 3 (a) of the Uniform Code of Military Justice 'necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution.' 350 U.S. at page 15, 76 S.Ct. ”

“ In an earlier case, this Court had sustained the constitutionality of an Act of Congress which created consular courts to try, pursuant to treaties, American citizens for crimes committed in Japan, China, and other countries. In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581. Ross, an American Seaman convicted of murder by a consular court in Yokohama, Japan, contended that he had been deprived of his constitutional right to both grand and petit juries. ”

“ See Rule 15, Federal Rules of Criminal Procedure, 18 U.S.C.A. Attendance of foreign witnesses could be only on a voluntary basis and the testimony of no foreign witness could be compelled if the witness or his government refused. ”