Article 2(11) of the Uniform Code of Military Justice, providing
for the trial by court-martial of "all persons serving with,
employed by, or accompanying the armed forces" of the United States
in foreign countries, cannot constitutionally be applied in
peacetime to the trial of a civilian employee of the armed forces
serving with the armed forces in a foreign country and charged with
having committed a capital offense there.
Reid v. Covert,
354 U. S. 1. Pp.
361 U. S.
278-280.
261 F.2d 204 reversed.
MR. JUSTICE CLARK delivered the opinion of the Court.
This Case tests by habeas corpus the validity of Article 2(11)
of the Uniform Code of Military Justice, 10 U.S.C. ยง 802, [
Footnote 1] as applied to a civilian
tried by court-martial
Page 361 U. S. 279
for a capital offense while employed overseas by the United
States Army. It is a companion case to No. 22,
Kinsella v.
Singleton, ante, p.
361 U. S. 234,
which involves the application of the same Article to noncapital
offenses committed by dependents accompanying soldiers stationed
outside the United States, and to No. 21,
McElroy v.
Guagliardo, and No. 37,
Wilson v. Bohlender, post, p.
361 U. S. 281,
involving noncapital offenses committed by armed services employees
while stationed overseas -- all of which cases are decided
today.
Petitioner, a civilian employee of the United States Army
attached to an Army installation in France, was tried by a general
court-martial for the capital offense of premeditated murder as
defined in Article 118(1) of the Uniform Code of Military Justice.
He was found guilty of the lesser and included offense of
unpremeditated murder, and sentenced to confinement at hard labor
for the term of his natural life. The sentence was subsequently
reduced to 35 years. While serving this sentence at the United
States Penitentiary at Lewisburg, Pennsylvania, he filed this
petition for a writ of habeas corpus, claiming that Article 2(11)
was unconstitutional as applied to him for the reason that Congress
lacked the power to deprive him of a civil trial affording all of
the protections of Article III and the Fifth and Sixth Amendments
of the Constitution. The writ was dismissed,
161 F.
Supp. 112, and the Court of Appeals affirmed, 261 F.2d 204. In
the light of the opinion of this Court on the rehearing in
Reid
v. Covert, 354 U. S. 1 (1957),
as well as that of the Court of Appeals on the issue of the
severability of Article 2(11) in
Guagliardo v. McElroy,
259 F.2d 927, [
Footnote 2] we
granted certiorari. 359 U.S. 978 (1959).
Page 361 U. S. 280
We are of the opinion that this case is controlled by
Reid
v. Covert, supra. It decided that the application of the
Article to civilian dependents charged with capital offenses while
accompanying servicemen outside the United States was
unconstitutional as violative of Article III and the Fifth and
Sixth Amendments. We have carefully considered the Government's
position as to the distinctions between civilian dependents and
civilian employees, especially its voluminous historical materials
relating to court-martial jurisdiction. However, the considerations
pointed out in
Covert have equal applicability here .
Those who controlled the majority there held that the death penalty
is so irreversible that a dependent charged with a capital crime
must have the benefit of a jury. The awesomeness of the death
penalty has no less impact when applied to civilian employees.
Continued adherence to Covert requires civilian employees to be
afforded the same right of trial by jury. Furthermore, the number
of civilian employees is much smaller than the number of
dependents, and the alternative procedures available for
controlling discipline as to the former more effective.
See
McElroy v. Guagliardo, post, p.
361 U. S. 281. For
the purposes of this decision, we cannot say that there are any
valid distinctions between the two classes of persons. The judgment
is therefore reversed.
It is so ordered.
[For opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE
FRANKFURTER,
see ante, p.
361 U. S.
249.]
[For opinion of MR. JUSTICE WHITTAKER, joined by MR. JUSTICE
STEWART,
see ante, p.
361 U. S.
259.]
Page 361 U. S. 281
[
Footnote 1]
Art. 2.
"The following persons are subject to this chapter:"
"
* * * *"
"(11) Subject to any treaty or agreement to which the United
States is or may be a party or to any accepted rule of
international law, persons serving with, employed by, or
accompanying the armed forces outside the United States and outside
the following: that part of Alaska east of longitude 172 degrees
west, the Canal Zone, the main group of the Hawaiian Islands,
Puerto Rico, and the Virgin Islands."
[
Footnote 2]
In the light of our opinion in No. 21,
McElroy v.
Guagliardo, handed down today,
post, p.
361 U. S. 281, we
deny the contention that the article is nonseverable.