The opinion of the court was delivered by: FOLLMER
This habeas corpus proceeding poses the question as to whether a civilian employee attached to the armed forces of the United States stationed in a foreign country is subject to trial by court-martial for a capital offense.
The issue arises on a return and answer to a rule to show cause granted in response to a petition for a writ of habeas corpus filed by petitioner, a prisoner confined at the United States Penitentiary at Lewisburg, Pennsylvania, against the Warden of the Penitentiary.
The record of the court-martial was introduced into evidence.
The petitioner, Albert H. Grisham, a Department of the Army civilian employee assigned to the Corps of Engineers, United States Army, Nashville District, Nashville, Tennessee, arrived in France on October 1, 1952 and was assigned for temporary duty with the Orleans District Engineer Office Headquarters USA REUR Communications Zone, Orleans, France. On November 1, 1952 he was joined by his wife, Dolly Dimples Grisham, and they established residence at 74 Boulevard Alexander Martin in Orleans, France.
Petitioner was arrested by the French authorities. On December 23, 1952, France waived jurisdiction over the petitioner and the offense and released the petitioner to the jurisdiction of the American Military Authorities. Petitioner was subsequently tried by a United States Army General Court-Martial between March 20 and 27, 1952, for the premeditated murder of his wife, in violation of Article 118, Uniform Code of Military Justice (10 U.S.C. § 918). At the trial the petitioner objected to his trial by general court-martial on the ground that the court-martial lacked jurisdiction over his person and the offense charged. Petitioner contended that exclusive jurisdiction over the offense upon which he was arraigned was vested in France and was punishable only under French law. The general court-martial denied the motion to dismiss the charge and specification on the ground of lack of jurisdiction. Petitioner remained mute at the time of arraignment and a plea of not guilty was entered on his behalf by the law officer. Petitioner was found not guilty of premeditated murder but guilty of the lesser and included offense of unpremeditated murder in violation of Article 118, Uniform Code of Military Justice (10 U.S.C. § 918), and was sentenced by the Court-martial to be confined at hard labor for the term of his natural life. The sentence was subsequently reduced by clemency action to thirty-five years.
The alleged authority for the jurisdiction of the general court-martial which tried petitioner is Article 2(11) of the Uniform Code of Military Justice (64 Stat. 107, 109), 10 U.S.C. § 802(11), which provides:
'The following persons are subject to this code:
'(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States * * *.'
It is the contention of the petitioner that the court-martial was without jurisdiction because Article 2(11) of the Uniform Code of Military Justice was unconstitutional in so far as it authorized the trial by court-martial of this petitioner admittedly a civilian employee of the United States Army, and that as a civilian he had been deprived of his constitutional rights to indictment by a grand jury and trial by jury.
In United States of America ex rel. Dominic Guagliardo v. McElroy, D.C.D.C., 158 F.Supp. 171, a habeas corpus proceeding, Judge Holthoff concluded that civilian employees attached to the armed forces of the United States abroad may be subjected to trial by court-martial and that Article 2, subsection (11) of the Uniform Code of Military Justice is constitutional; that the court-martial by which the petitioner was tried had jurisdiction over him; that the petitioner was not unlawfully restrained of his liberty, and dismissed the petition. The petitioner there was employed by the Department of the Air Force as an electrical lineman at Nouasseur Air Depot, Morocco. He was charged with larceny of Government property and in addition, with two other persons, he was charged with conspiracy to commit larceny. He was tried and convicted by a general court-martial at the Air Depot and sentenced. The convening authority disapproved the finding of guilty on the first of the two charges, but approved the sentence on the second charge.
As in the instant case, the court's attention in the Guagliardo case was directed to United States ex rel. Toth v. Quarles, Secretary of the Air Force, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8, and Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148. In the Toth case it was held that a former member of the armed forces who had been discharged from the service and was no longer under the control of the armed forces was not subject to trial by court-martial for an offense committed during his term of service.
The Covert case involved the status of a wife of a member of the armed forces of the United States, who accompanied her husband while he was stationed on foreign soil and who killed her husband. The case was heard and decided by eight members of the Supreme Court as Mr. Justice Whittaker did not participate. Mr. Justice Black delivered an opinion in which the Chief Justice, Mr. Justice Douglas and Mr. Justice Brennan joined. This opinion held in effect that civilian wives, children, and other dependents of members of the armed forces could not be constitutionally subjected to trial by court-martial since they could not be regarded as any part of the armed forces. Mr. Justice Frankfurter and Mr. Justice Harlan wrote separate opinions concurring in the result but limiting their conclusion to the view that in capital cases civilian dependents of members of the armed forces could not be constitutionally tried by court-martial. Mr. Justice Clark, with whom Mr. Justice ...