No. 701

354 U.S. 1, 3-5 (Facts), 15-19 (Part II), 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)

Argued: May 3, 1956   Decided: June 11, 1956   Rehearing Granted: Nov. 5, 1956   Reargued: Feb. 27, 1957   Decided: June 10, 1957

MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN join.

These cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. These cases are particularly significant because for the first time since the adoption of the Constitution wives of soldiers have been denied trial by jury in a court of law and forced to trial before courts-martial.

In No. 701 Mrs. Clarice Covert killed her husband, a sergeant in the United States Air Force, at an airbase in England. Mrs. Covert, who was not a member of the armed services, was residing on the base with her husband at the time. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice (UCMJ).1 The trial was on charges preferred by Air Force personnel and the court-martial was composed of Air Force officers. The court-martial asserted jurisdiction over Mrs. Covert under Article 2 (11) of the UCMJ, 2 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, [354 U.S. 1, 4]   all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States . . . ."

Counsel for Mrs. Covert contended that she was insane at the time she killed her husband, but the military tribunal found her guilty of murder and sentenced her to life imprisonment. The judgment was affirmed by the Air Force Board of Review, 16 CMR 465, but was reversed by the Court of Military Appeals, 6 USCMA 48, because of prejudicial errors concerning the defense of insanity. While Mrs. Covert was being held in this country pending a proposed retrial by court-martial in the District of Columbia, her counsel petitioned the District Court for a writ of habeas corpus to set her free on the ground that the Constitution forbade her trial by military authorities. Construing this Court's decision in United States ex rel. Toth v. Quarles, 350 U.S. 11 , as holding that "a civilian is entitled to a civilian trial" the District Court held that Mrs. Covert could not be tried by court-martial and ordered her released from custody. The Government appealed directly to this Court under 28 U.S.C. 1252. See 350 U.S. 985 .

In No. 713 Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him. She was tried for murder by a court-martial and despite considerable evidence that she was insane was found guilty and sentenced to life imprisonment. The judgment was approved by the Army Board of Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals, 5 USCMA 314. Mrs. Smith was then confined in a federal penitentiary in West Virginia. Her father, respondent here, filed a petition for habeas corpus in a District Court for West Virginia. The petition charged that the court-martial was without jurisdiction because Article 2 (11) of the UCMJ was unconstitutional insofar as it authorized the trial of civilian dependents accompanying [354 U.S. 1, 5]   servicemen overseas. The District Court refused to issue the writ, 137 F. Supp. 806, and while an appeal was pending in the Court of Appeals for the Fourth Circuit we granted certiorari at the request of the Government, 350 U.S. 986 .

The two cases were consolidated and argued last Term and a majority of the Court, with three Justices dissenting and one reserving opinion, held that military trial of Mrs. Smith and Mrs. Covert for their alleged offenses was constitutional. 351 U.S. 470, 487 . The majority held that the provisions of Article III and the Fifth and Sixth Amendments which require that crimes be tried by a jury after indictment by a grand jury did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there and that Congress could provide for the trial of such offenses in any manner it saw fit so long as the procedures established were reasonable and consonant with due process. The opinion then went on to express the view that military trials, as now practiced, were not unreasonable or arbitrary when applied to dependents accompanying members of the armed forces overseas. In reaching their conclusion the majority found it unnecessary to consider the power of Congress "To make Rules for the Government and Regulation of the land and naval Forces" under Article I of the Constitution.

Subsequently, the Court granted a petition for rehearing, 352 U.S. 901 . Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities.

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At the time of Mrs. 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 [354 U.S. 1, 16]   killed her husband.30 Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that Art. 2 (11) of the UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States' obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

Article VI, the Supremacy Clause of the Constitution, declares:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . ."

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [354 U.S. 1, 17]   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.32 In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.33 For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

"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. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18]   government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.34 It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

There is nothing in Missouri v. Holland, 252 U.S. 416 , which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.35 

In summary, we conclude that the constitution in its entirety applied to the trials of Mrs. Smith and Mrs. [354 U.S. 1, 19]   Covert. Since their court-martial did not meet the requirements of Art. III, 2 or the Fifth and Sixth Amendments we are compelled to determine if there is anything within the Constitution which authorizes the military trial of dependents accompanying the armed forces overseas.

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In No. 701, Reid v. Covert, the judgment of the District Court directing that Mrs. Covert be released from custody is


150 U.S.C. 712.

29Executive Agreement of July 27, 1942, 57 Stat. 1193. 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. VII, 2 (b). However, the Agreement contains provisions which require that the foreign nations provide procedural safeguards for our nationals tried under the terms of the Agreement in their courts. Art. VII, 9. Generally, see Note, 70 Harv. L. Rev. 1043. Apart from those persons subject to the Status of Forces and comparable agreements and certain other restricted classes of Americans, a foreign nation has plenary criminal jurisdiction, of course, over all Americans - tourists, residents, businessmen, government employees and so forth - who commit offenses against its laws within its territory.

30See Administrative Agreement, 3 U.S. Treaties and Other International Agreements 3341, T. I. A. S. 2492.

31See the references collected in 4 Farrand, Records of the Federal Convention (Rev. ed. 1937), 123.

32See the discussion in the Virginia Convention on the adoption of the Constitution, 3 Elliot's Debates (1836 ed.) 500-519.

33E. g., United States v. Minnesota, 270 U.S. 181, 207 -208; Holden v. Joy, 17 Wall. 211, 242-243; The Cherokee Tobacco, 11 Wall. 616, 620-621; Doe v. Braden, 16 How. 635, 657. Cf. Marbury v. Madison, 1 Cranch 137, 176-180. We recognize that executive agreements are involved here but it cannot be contended that such an agreement rises to greater stature than a treaty.

34In Whitney v. Robertson, 124 U.S. 190 , the Court stated, at p. 194: "By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. . . . [I]f the two are inconsistent, the one last in date will control the other . . . ." Head Money Cases, 112 U.S. 580 ; Botiller v. Dominguez, 130 U.S. 238 ; Chae Chan Ping v. United States, 130 U.S. 581 . See Clark v. Allen, 331 U.S. 503, 509 -510; Moser v. United States, 341 U.S. 41, 45 .

35See United States v. Darby, 312 U.S. 100, 124 -125, and the authorities collected there.


MR. JUSTICE FRANKFURTER, concurring in the result.

MR. JUSTICE HARLAN, concurring in the result.

I concur in the result, on the narrow ground that where the offense is capital, Article 2 (11)1 cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace.

Since I am the only one among today's majority who joined in the Court's opinions of June 11, 1956, which sustained the court-martial jurisdiction in these cases, 351 U.S. 470, 487 , I think it appropriate to state the reasons which led to my voting, first, to rehear these cases, 352 U.S. 901 , and, now, to strike down that jurisdiction.

150 U.S.C. 552 (11).

MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON joins, dissenting.

. . . MR. JUSTICE BURTON and I remain convinced that the former opinions of the Court are correct and that they set forth valid constitutional doctrine under the long-recognized cases of this Court. The opinions were neither written nor agreed to in haste and they reflect the consensus of the majority reached after thorough discussion at many conferences. In fact, the cases were here longer both before and after argument than many of the cases we decide. We adhere to the views there expressed since we are convinced that through them we were neither "mortgaging the future," as is claimed, nor foreclosing the present, as does the judgment today. We do not include a discussion of the theory upon which those former judgments were entered because we are satisfied with its handling in the earlier opinions. See 351 U.S., at 470 and 487.


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