Aubrey Dewitt Smith – Colonel, United States Army

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At 45, Colonel Aubrey Dewitt Smith, Chief of the Plans & Operations Division (Logistics Section) of the U.S. Army in Japan, was destined for bigger things. An up & coming West Pointer (class of ’30), decorated at Okinawa (Silver Star) and a Korean war veteran, his life was all Army.

He was at his desk all day, relaxed in the Officers’ Club, and was married to a general’s daughter: Dorothy Krueger Smith, 40, the only daughter of retired General Walter Krueger, World War II commander of the island-hopping Sixth Army. But to Dorothy Smith, brunette and high-strung, the lot of a conscientious soldier’s wife was not a happy one. Monotony unnerved her, loneliness oppressed; she sought excitement in alcohol, forgetfulness in dope. The Colonel, she believed, regarded his wife as a clinging handicap to his professional career.

Last October Colonel Smith got orders to leave for Washington, where a promotion awaited him. That night, as he slept, he was stabbed to death.

“Willful Murder.”

In Tokyo last week a U.S. Army court-martial, headed by a Major General and including a WAC Lieutenant Colonel, heard the prosecution accuse Dorothy Smith of “willful and premeditated murder.” Shigeko Tani, her Japanese maid, testified that she found the Colonel bleeding to death in bed and Mrs. Smith, in bra and panties, clutching a bloody, ten-inch-long hunting knife. A neighbor, Lieutenant Colonel Joseph S. Hardin, found the defendant sitting alongside her dying husband, trying to light two cigarettes at once. She blurted out: “I’m sorry I didn’t get him in the heart.”

“Primitive Impulse.”

For the defense, Lieutenant Colonel Howard S. Levie challenged the court-martial’s legal competence on the grounds that the Army ceases to have jurisdiction over a soldier’s wife at the moment of her husband’s death. Overruled, Levie entered a plea of “temporary insanity” and came close to making it stick. Mrs. Smith, said a witness, “didn’t know what she was doing” when under the influence of drugs or liquor; at the time of the murder she was “doped” with paraldehyde, a sedative.

Brigadier General Rawley E. Chambers, the Army’s top psychiatrist and Mrs. Smith’s former personal physician, told the court that the defendant is subject to “neurotic explosions,” that she has frequently slashed her wrists, and that once she knocked down another officer’s wife. “I believe she would be able to tell right from wrong,” the general said. “But I do not believe that she had any ability to adhere to the right.”

By six votes to three, the court found Dorothy Smith guilty of first-degree murder and sentenced her “to be confined at hard labor for the rest of her natural life.” * Major General Joseph P. Sullivan choked up as he read the sentence.

A unnaminous verdit of guilty would have made the death sentence mandatory.

Until recently, civilians working with or accompanying military members overseas during wartime were subject to court-martial by military authorities.

Maj. Susan Gibson wrote about the issue in the 1995 edition of Military Law Review, citing numerous instances of military justice meted out to civilians.

Military lawyers convicted a Civil War-era civilian paymaster for tampering with the ledgers and two civilians for desertion during World War I.

A pivotal case addressing the issue developed in 1952. At a U.S. military housing area in Tokyo, 40-year-old Dorothy Krueger Smith fatally stabbed her sleeping husband, U.S. Army Colonel Aubrey Smith. A military court-martial panel sentenced Smith to life in prison. Her father, retired Gen. Walter Krueger, filed an appeal on her behalf, arguing a military court had no jurisdiction over a civilian dependent.

The U.S. Supreme Court rejected the appeal, ruling the military had jurisdiction over Smith. A year later, with fresh arguments and a new justice seated, the court changed its position and Smith was released.

Smith’s case, and one involving a woman convicted by the Army of killing her sergeant husband in Germany, sounded the death knell for U.S. court-martial authority over civilians.

As recently as the Vietnam War, a civilian was court-martialed by the military in an isolated case of justice misapplied. An Army contractor was convicted of conspiring to steal 36,000 U.S. government batteries. He was freed after a military appeals court ruled Vietnam didn’t count as a war.

WIFE IMPROVES; STUDY OF SLAYING OF COLONEL SMITH
Hunting Knife Called Death Weapon

TOKYO, Japan, October 2, 1952 – The daughter of General Walter Krueger showed improvement in her mental condition today as the army dug deeper into the tragedy that took the life of her solder husband.

The army said Mrs. Dorothy Smith allegedly stabbed her husband fatally with a hunting knife in her home Saturday.  He husband, Colonel Aubrey D. Smith, 45 was a high-ranking officer in the Far East Command.

Mrs. Smith was found in what appeared to be a coma in the Smith bedroom, a knife in her hand, the army report said.

Major General William E. Shambora, Surgeon General of the Far East Command, said Mrs. Smith “is now more lucid and making some improvement. She is under psychiatric evaluation which has by no means been completed.”

Mrs. Smith’s father in the retired World War II commander of the 6th Army.  Smith, Chief of the Plans and Operations Division of the Far East Command’s Logistic Section, was a West Point graduate and veteran of both World War II and the Korean War.

Smith died at Tokyo Army Hospital Saturday of loss of blood.

An unofficial report said no charges have been filed.

Mrs. Smith has been under observation in the isolation ward of the 8167th Station Hospital.

In a 500-word statement, the army said investigation by the 2nd Military Police Criminal Investigation Division showed: “Smtih, while laying in bed, adjacent to that of his wife, Mrs. Dorothy K. Smith, was stabbed in the right side with a knife.  Colonel Smith, after attempting to stop the flow of blood from the stab wound for approximately 30 minutes, called the Japanese house maid who was living in the colonel’s quarters and instructed her to summon Lieutenant Colonel Joseph S. Hardin, who resided nearby.  Interview of the housemaid revealed that at the time she entered the bedroom occupied by the Colonel and Mrs. Smith she observed Colonel Smith lying across his bed, holding his right side, which was bloody, and observed Mrs. Smith sitting on her own bed, adjacent to that of Colonel Smith’s, holding a knife in her hand.”

U. S. COLONEL SLAIN; WIFE HELD IN TOKYO

TOKYO, Japan, October 5, 1952 – Colonel Aubrey D. Smith, Chief of the Far East Command’s Plans and Operations Supply Section, died Saturday of a knife wound that General Mark Clark’s headquarters said was “allegedly inflicted by his wife, Mrs. Dorothy K. Smith.”

Mrs. Smith is identified by Who’s Who in America as the daughter of General Walter Krueger, retired, the famous World War II commander of the United Sates Sixth Army.

Colonel Smith, 45, a resident of San Antonio, Texas, was rated as an officer with a brilliant future.  His death rocked Army circles here.

The Army announcement said the Colonel’s wife was being held for observation at a hospital in Tokyo.  No charge has been made against her.  The Army pubic information office said: “It is considered inappropriate to discuss any details of the case until the investigation has been completed.”

Colonel Smith was wounded at his quarters at Washington Heights, an Army residential center about four miles from downtown Tokyo, the Army said.

Smith had been in the Army twenty-six years. Before he joined the Far East Command Headquarters he served in the Supply Section of the Tenth United States Army Corps and the United States Eighth Army in Korea.

He entered the United States Military Academy at West Point from Boonville, Missouri, and was graduated in 1930.  He had been awarded the Legion of Merit with oak leaf cluster, Silver Star with oak leaf cluster and the Bronze Star Medal.

In addition to his wife and two children, Colonel Smith is survived by his mother, Mrs. Kathryn Smith of Boonville, Missouri, and three brothers.

ACCUSED ARMY WIFE HELD SANE

TOKYO, Japan, December 2, 1952 – An Army Medical Board reported today that Mrs. Aubrey D. Smith, 40 years old, accused of killing her husband, a colonel, was sane at the time of the fatal stabbing.  The spaying took place on the night of October 3 in the Smith home in an Army housing unit in Tokyo.  Mrs. Smith is a daughter of Lieutenant General Walter Krueger, retired.

KIN OF KRUEGER BREAKS DOWN AT MURDER HEARING
General’s Daughter on Trial for Killing

TOKYO, Japan, January 5, 1953 – Dorothy Krueger Smith, daughter of retired American General Walter Krueger, sobbed uncontrollably today as she went on trial before an army court-martial on a charge of murdering her husband, Colonel Aubrey D. Smith, in their Tokyo quarters, October 13.

Mrs. Smith, 40, broke as an army prosecuting attorney read from an autopsy report that a vein in Smith’s abdomen had been severed and that a kidney had been pierced.  Mrs. Smith sobbed violently, covered her face with her hands and whispered: “No, no, no.”

Her defense attorney promptly sprinkled smelling salts on a paper tissue and held it to Mrs. Smith’s nose.

Later, when the prosecution introduced a morgue picture of the colonel’s body, the photograph came within view of the widow.  Again her body was wracked with sobs and she screamed: “O, no.  They wouldn’t do that, O, help.”

The court was recessed briefly to allow her to regain her composure.

Richard J. Murphy, son of an army major, testified that Mrs. Smith threatened to kill her husband two week before he was slain.  Earlier, the trail judge ruled that the court-martial had jurisdiction in the case.  The defense had contended at the start of the hearing that the Japanese courts had jurisdiction.

Shigecko Tani, 28, a Japanese maid in the Smith quarters, testified that Mrs. Smith had two knives in her hand the night Smith was slain.  The maid said she took a long knife away from Mrs. Smith after the colonel had been stabbed in his bed.  She said she tried to wake a neighboring officer but was unsuccessful.  When she returned to the Smith home, she said, Mrs. Smith was holding another knife in her hand and the wounded colonel was holding the weapon way from him by grasping Mrs. Smith’s wrist.

The army refused to disclose in advance today whether the prosecution would ask for the death penalty for Mrs. Smith, and attractive mother of two children.  According to the defense, Mrs. Smith was confined for mental treatment for about two months in 1951 and attempted suicide while en route to Japan aboard a ship a year earlier.  Colonel Smith headed the logistics section, Far East Command.

MRS. SMITH GUILTY, SENTENCED TO LIFE
Tokyo Court-Martial Decides General’s Daughter Slew Colonel Deliberately

TOKOYO, Japan, Saturday, January 10, 1953 – An Army Court Martial today found Mrs. Dorothy Krueger Smith, daughter of a four-star General, guilty of premeditated murder in the stabbing of her Colonel-husband and sentenced her to life imprisonment.

Mrs. Smith, 40, could have been sentenced to death.

The slender brunette showed no emotion as Major General Joseph Sullivan read the verdict of the court of nine officers, including one woman.

He said the board found the daughter of retired General Walter Krueger “guilty as charged” for the slaying October 3 of her husband, Colonel Aubrey D. Smith, 45, whom she stabbed fatally with a ten-inch hunting knife as he slept in their Tokyo apartment.

The general court-martial then went into immediate closed session to decide on the sentence.  The finding of guilty was made on a vote of six to three.  A three fourths majority or, in this case, seven votes, was required to ender the life imprisonment sentence.  A death sentence would have required a unanimous decision.

Defense attorneys immediately announced that they would appeal the verdict and the sentence.

The case now goes to Brigadier General Onslow Rolfe, Commanding General of the Army’s Headquarters and Service Command in Tokyo, then to a military board of review in Washington.  It may be appealed before a new court of military appeals, sitting in Washington and composed of three civilian jurists.  A final appeal for clemency can be placed before the President.

Mrs. Smith walked out of the courtroom with defense counsel, Lieutenant Colonel H. S. Levie, her head down to avoid photographers.  She was taken to a guard cell in the mental ward of an Army hospital here, which has been her home since the night of the murder, and during the long examination of her sanity.

Defense attorneys believed she would be transferred to a mental hospital in the United States while the case is taken through appeal channels in Washington.

Mrs. Smith was sentenced less than an hour after the court found her guilty.  The court rejected defense claims that she was insane and possible under the influence of narcotics when she killed her husband.

In a voice quivering with emotion and barely audible in the bleak Army barrack courtroom, General Sullivan sentenced Mrs. Smith “to be confined at hard labor for the term of her natural life.”

COLONEL’S WIFE TAKES SENTENCE TO LIFE CALMLY
Will be Imprisoned as Case is Reviewed

TOKYO, Japan, January 11, 1953 – Dorothy Krueger Smith’s attorney called his client a “wrecked personality” but when a court martial convicted her yesterday of murdering her officer husband she took it like a soldier’s daughter and a soldier’s widow.

No one stood straighter in the tiny barracks courtroom.  As the conviction and sentence to life imprisonment at hard labor was read, her shoulders went back and her chin lifted.

Tears welled in her eyes as she left the room, but she mustered a small smile for a military policeman at the door.

It was an astonishing windup for the daughter of General Walter Krueger, leader of the United States 6th Army in World War II.

When she plunged the foot-long blade of a hunting knife into her sleeping husband, Colonel Aubrey D. Smith, at midnight October 3, it was premeditated murder, the court-martial ruled, and not temporary insanity as her defense had pleaded.

The case will be reviewed by the commanding officer of the Headquarters and Service Command of the Far East Command, Brigadier General Onslow S. Rolfe, and the Judge Advocate General.  It will also be examined by the Army Board of Review in Washington and, upon Mrs. Smith’s request, by a three-man civilian tribunal.

“We have hopes that the decision of the court will not be sustained on appeal,” said Lieutenant Colonel Howard S. Levie, defense attorney.

Mrs. Smith, 40, will be taken to some Federal prison, probably the federal reformatory for women at Anderson, West Virginia, pending review.  Examination of the testimony by higher authority will take months.

The nine member court-martial, after six days of testimony, deliberated 64 minutes before reaching the verdict.  It then took 30 minutes to decide on the life sentence.

SLAIN COLONEL’S WIFE IN U.S.

SAN FRANCISCO, February 25, 1953 – Dorothy Krueger Smith, under life sentence for slaying her husband, Colonel Aubrey D. Smith, in Japan last October 3, reched California today in a Military Air Transport plane.  After landing at Travis Air Force Base near here, she was taken to the base hospital. And an hour later, under military guard, she was driven to San Francisco’s Presidio.

ARMY WIFE’S GUILT IN MURDER SEALED
Military Appeals Court Backs Conviction of Mrs. Smith in Death of Husband

WASHINGTON, December 30, 1954 – The United States Court of Military Appeals upheld today the conviction of Mrs. Dorothy K. Smith for the premeditated murder of her husband, Colonel Aubrey D. Smith.

Colonel Smith was stabbed in his home in Tokyo, Japan, on the nights of October 3, 1952 and died at 6 A.M. October 4.  Mrs. Smith was tried by a court-martial and sentenced to life imprisonment.

Mrs. Smith is a daughter of General Walter Krueger, wartime commander of the Sixth Army in the Pacific, now retired.

In the case the mental condition of Mrs. Smith was at issue.  Colonel and Mrs. Smith were stationed in Tokyo and occupied quarters provided by the Government.  He was stabbed in his bedroom but died in a hospital.

According to the military court, Mrs. Smith admitted to the stabbing.  Physicians who examined her after the stabbing testified that she was rational and not intoxicated.

At the court-martial her defense was insanity.  Psychiatrists who testified for the Government, the court noted, agreed that she suffered from “a form of psychopathic state” that would be considered a character disorder rather than a mental one.

The military court said that the court-martial was required to take into account Mrs. Smith’ mental condition at the time of the crime, in determining whether she had the capacity to premeditate the murder of her husband.  The court-martial determined that she possessed that capacity and found her guilty.  An Army board of review affirmed the court-martial findings.

“Since this court lacks the power to determine the weight of the evidence, even as to the issue of sanity, we are without authority to disturb the board’s determination – regardless of whether we might have reached an opposite conclusion,” the opinion stated.

Judge Paul W. Brosman wrote the opinion, Judge George W. Latimer concurred. Chief Judge Robert F. Quinn dissented.

Judges Brosman and Latimer were of the opinion that tests of sanity applicable in many civilian cases might not be proper under military procedures.

In civilian cases, they noted, there often was some uncertainty concerning the type of mental disease that would exempt a defendant from being convicted and punished.  There was much less doubt in the military, the judges asserted, since various directives specify which psychiatric ailments are sufficient to show irresponsibility.

Psychotics and psychoneurotic, they said, qualify for outright acquittal if they do know right from wrong or cannot adhere to the right.  Psychopaths, however, are viewed as sufficiently normal to be subject to punishment.

Chief Judge Quinn would have granted Mrs. Smith a rehearing.  He asserted that from the record it was evident that the prosecution’s expert witnesses did not testify according to their own knowledge and medical experience, but in accordance with the strictures of Army regulations.

“Under the circumstances,” he said, “their testimony was so seriously compromised as to require, in the interests of justice a rehearing.”

GRANT HEARING IN MRS. SMITH FREEDOM FIGHT
General Krueger Daughter Serving Life Term

WASHINGTON, December 9, 1955 – Attorneys for the daughter of retired General Walter Krueger today started habeus corpus action to free her from a court-martial life sentence for stabbing to death her colonel husband in Tokyo in 1952.

The legal action was based on a decision by Federal District Court Judge Edward A. Tamm here last November 22 that civilians who accompany military forces overseas cannot be imprisoned by military courts.

Attorneys Frederick E. Weiner and Adam Richmond, acting through Attorney John C. Morrison of Charleston, West Virginia, filed a writ of habeas corpus with Federal Judge Ben Moore at Charleston, asking for the release of Dorothy K. Smith, 43, mother of two children.  Judge Moore granted a hearing and set it for December 20.

She is serving a life sentence at the Federal Women’s Prison at Anderson, West Virginia, where she was sent after the United States Court of Military Appeals turned down her insanity plea nearly a year ago.

The legal question of the authority of military courts over civilians was raised by Wiener in the case of Mrs. Clarice B. Covert, 34, who killed her husband, an Air Force Sergeant, in England with an ax in 1953.

In this case, Judge Tamm ordered Mrs. Covert freed under $1,000 bond pending an appeal by the Air Force.

Military justice officers in the Pentagon said that the Covert decision would upset military law under which civilians accompanying the military have been considered as if they were in uniform and subject to military law.

Judge Tamm based his decision on the United States Supreme Court opinion November 7 in the case of Robert W. Toth, former Air Force Sergeant.  The high court rules that the Air Force had no right to arrest Toth and attempt to take him before a court-martial to face trial for complicity in a murder that occurred before he was discharged from the Air Force.

MRS. SMITH TO BE RELEASED

ANDERSON, West Virginia, June 18, 1957 – Dorothy Krueger Smith will be freed from the Federal Women’s Prison tomorrow after serving less than five years of a life sentence for the slaying of her husband, Colonel Aubrey D. Smith, in Tokyo in 1952.  The Supreme Court reversed last week Mrs. Smith’s conviction by an Army Court-Martial in Tokyo in 1953.

MRS. SMITH RELEASED
Supreme Court Ruling Frees Slayer of Army Husband

ALDERSON, West Virginia, June 19, 1957 – Mrs. Dorothy Krueger Smith, who killed her husband, an Army Colonel, four years ago, was freed today from a Federal Prison.

Nine days ago the Supreme Court rules that Mrs. Smith had been tried illegally by a court-martial in Japan.  She was convicted of having stabbed Colonel Aubrey D. Smith to death as he slept.  She was sentenced to life at hard labor.

Mrs. Smith, 44-year-old mother of two children, plans to go to San Antonio, Texas, to join her father, General Walter Krueger, retired, who won fame in the Pacific during World War II.

KINSELLA v. KRUEGER

351 U.S. 470
Case Number: 713
Case Number: 713
Decided: 05/03/1956
United States Supreme Court
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Cite as: 1956 US, 351 U.S. 470,
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U.S. Supreme Court

KINSELLA v. KRUEGER, 351 U.S. 470 (1956)

351 U.S. 470
KINSELLA, WARDEN, v. KRUEGER.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 713.
Argued May 3, 1956.
Decided June 11, 1956.

Pursuant to Article 2 (11) of the Uniform Code of Military Justice, a dependent wife of an officer of the United States Army residing in quarters provided by the Army in Japan, where her husband was stationed, was tried and convicted by a court-martial in Japan for the murder of her husband there. She was sentenced to life imprisonment and brought to a federal prison in the United States, where she brought this habeas corpus proceeding. Held: Article 2 (11) of the Uniform Code of Military Justice is constitutional. Pp. 471-480.

(a) A civilian dependent of an American serviceman authorized to accompany him on foreign duty may constitutionally be tried by an American military court-martial in a foreign country for an offense committed there. Pp. 474-480.

(b) The Constitution does not require trial in a foreign country before a court conforming to Article III for offenses committed there by an American citizen, and Congress may establish legislative courts for that purpose. Pp. 474-476.

(c) In the circumstances of this case, it was reasonable and consonant with due process for Congress to employ the existing system of courts-martial for this purpose. Pp. 476-480.

(d) There is no constitutional defect in the fact that the Uniform Code of Military Justice does not provide for indictment by grand jury or trial by a petit jury, since in these respects it does not differ from the procedures specifically approved by this Court in other types of legislative courts established abroad by Congress. P. 479.

137 F. Supp. 806, affirmed.

Marvin E. Frankel argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Richard J. Blanchard.

Frederick Bernays Wiener argued the cause for respondent. With him on the brief was Adam Richmond. [351 U.S. 470, 471]

MR. JUSTICE CLARK delivered the opinion of the Court.

Congress, in Article 2 (11) of the Uniform Code of Military Justice, has provided that all persons “accompanying the armed forces without the continental limits of the United States” and certain named territories shall be subject to the Code if such jurisdiction is authorized under “any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law.” 50 U.S.C. 552. Pursuant to this article and a subsequent agreement between the United States and Japan, 1 Dorothy Krueger Smith was tried by a general [351 U.S. 470, 472]   court-martial in Tokyo, Japan, for the premeditated murder of her husband, a colonel in the United States Army. She was found guilty and sentenced to life imprisonment. 10 C. M. R. 350. Her conviction was affirmed by the Board of Review, 17 C. M. R. 314, and the Court of Military Appeals, 5 U.S.C. M. A. 314, and she began serving her sentence in the Federal Reformatory for Women, Alderson, West Virginia.

Thereafter, a petition for a writ of habeas corpus was filed on Mrs. Smith’s behalf by her father, respondent herein. The petition alleged that the court-martial had no jurisdiction to try Mrs. Smith because Article 2 (11) of the Uniform Code of Military Justice violates both Art. III, 2, and Amendment VI of the Federal Constitution, which guarantee the right to trial by jury to a civilian. The United States District Court for the [351 U.S. 470, 473]   Southern District of West Virginia issued a preliminary writ. After a hearing, which included the submission of briefs and unlimited oral argument, the writ was discharged and Mrs. Smith was remanded to the custody of the Warden. 137 F. Supp. 806. In order to expedite the determination of the case, the Government itself sought certiorari while an appeal was pending before the Court of Appeals for the Fourth Circuit. We granted review on March 12, 1956, 350 U.S. 986 , because of the serious constitutional question presented and its farreaching importance to our Armed Forces stationed in some sixty-three different countries throughout the world. We agree with the decision of the District Court.

In its entirety, Art. 2 (11), 50 U.S.C. 552, provides that:

“The following persons are subject to this chapter:

“(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 and without the following territories: That part of Alaska east of longitude one hundred and seventy-two degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands. . . .”

Mrs. Smith comes squarely within the terms of this provision. As a military dependent, she had accompanied her husband beyond the continental limits of the United States. Prior to her husband’s death they lived together in Washington Heights, an American community in Tokyo composed exclusively of American servicemen and their dependents. Japan, at the time of the offense, had ceded to the United States “exclusive jurisdiction over all [351 U.S. 470, 474]   offenses which may be committed in Japan by members of the United States armed forces, the civilian component, and their dependents . . . .” Art. XVII, 3 UST (Part 3) 3354. Since Article 2 (11) concededly applies to this case if it was within the power of Congress to enact, the constitutionality of that provision is the sole question presented. Essentially, we are to determine only whether the civilian dependent of an American serviceman authorized to accompany him on foreign duty may constitutionally be tried by an American military court-martial in a foreign country for an offense committed in that country.

Trials by court-martial are governed by the Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. 551 et seq. The Code was carefully drawn by Congress to include the fundamental guarantees of due process, and in operation it has provided a fair and enlightened system of justice. However, courts-martial are not required to provide all the protections of constitutional courts; therefore, to try by court-martial a civilian entitled to trial in an Article III court is a violation of the Constitution. Toth v. Quarles, 350 U.S. 11 . Accordingly, our first inquiry is directed to the question whether, as a matter of constitutional right, an American citizen outside of the continental limits of the United States and in a foreign country is entitled to trial before an Article III court for an offense committed in that country.

In making this determination, we are not faced with the question “whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable.” 2 ly aside from the power of Congress [351 U.S. 470, 475]   under Article III of the Constitution, it has been well-established since Chief Justice Marshall’s opinion in American Insurance Co. v. Canter, 1 Pet. 511, that Congress may establish legislative courts outside the territorial limits of the United States proper. The procedure in such tribunals need not comply with the standards prescribed by the Constitution for Article III courts. In cases arising from Hawaii, 3 ilippines, 4 erto Rico, 5 ourt has recognized the power of Congress to enact a system of laws which did not provide for trial by jury. By 1922 it was regarded as “clearly settled” that the jury provisions of Article III and the Sixth and Seventh Amendments “do not apply to territory belonging to the United States which has not been incorporated into the Union.” Balzac v. Porto Rico, 258 U.S. 298, 304 -305.

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 . 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. In rejecting this claim, the Court pointed out that these constitutional guarantees were not applicable to a consular court sitting outside the continental United States. 140 U.S., at 464 . Recounting the long-established practice of governments to provide “for the exercise of judicial authority in other countries by [their] officers appointed to reside therein,” id., at 463, the Court noted that the requirement of a grand and petit jury in these circumstances “would defeat the main purpose of investing the [351 U.S. 470, 476]   consul with judicial authority.” 140 U.S., at 465 . In 1929, citing Ross with approval in Ex parte Bakelite Corp., 279 U.S. 438, 451 , this Court reaffirmed the doctrine that “legislative courts . . . exercise their functions within particular districts in foreign territory and are invested with a large measure of jurisdiction over American citizens in those districts. The authority of Congress to create them and to clothe them with such jurisdiction has been upheld by this Court and is well recognized.” These cases establish beyond question that the Constitution does not require trial before an Article III court in a foreign country for offenses committed there by an American citizen and that Congress may establish legislative courts for this purpose.

Having determined that one in the circumstances of Mrs. Smith may be tried before a legislative court established by Congress, 6 e 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 due 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 [351 U.S. 470, 477]   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. We could not find it unreasonable for Congress to conclude that all should be governed by the same legal standard to the end that they receive equal treatment under law. The effect of a double standard might well create sufficient unrest and confusion to result in the destruction of effective law enforcement. 7 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 [351 U.S. 470, 478]   civilian dependents abroad. While this would be within the power of Congress, In re Ross, supra, clearly nothing in the Constitution compels it. The power to create a territorial or consular court does not preclude, but must necessarily include, the power to provide for trial before a military tribunal unless that alternative is “so clearly arbitrary or capricious that legislators acting reasonably could not have believed it necessary or appropriate for the public welfare.” 8 oice among different types of legislative tribunals is peculiarly within the power of Congress, Ex parte Bakelite Corp., 279 U.S. 438, 451 , and we are concerned only with the constitutionality, not the wisdom, of this choice.

In selecting the Uniform Code of Military Justice, Congress might have sought to avoid needless and potentially harmful duplication of a legal system already extant in every foreign nation where our troops are stationed. On the other hand, Congress could well have determined that the Code was adequate to the purpose to be achieved and would afford more safeguards to an accused than any other available procedure. The Code is a uniform system of legal procedure, applicable beyond any constitutional question to all servicemen stationed abroad. It was adopted by Congress only after an exhaustive study of several years duration and the consultation of acknowledged authorities in the fields of constitutional and military law. 9 ition to the fundamentals of due process, it includes protections which this Court has not required a State to provide 10 me procedures which would [351 U.S. 470, 479]   compare favorably with the most advanced criminal codes. We find no constitutional defect in the fact that the Code does not provide for indictment by grand jury or trial by petit jury. In these respects it does not differ from the procedures specifically approved by this Court in other types of legislative courts established abroad by Congress. In re Ross, supra; Hawaii v. Mankichi, 190 U.S. 197 ; Dorr v. United States, 195 U.S. 138 ; Balzac v. Porto Rico, supra.

Furthermore, since under the principles of international law each nation has jurisdiction of the offenses committed within its own territory, Schooner Exchange v. McFaddon, 7 Cranch 116, 136, the essential choice involved here is between an American and a foreign trial. Foreign nations have relinquished jurisdiction to American military authorities only pursuant to carefully drawn agreements which presuppose prompt trial by existent authority. 11 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 [351 U.S. 470, 480]

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. No question of the legal relation between treaties and the Constitution is presented. On the question before us, we find no constitutional bar to the power of Congress to enact Article 2 (11) of the Uniform Code of Military Justice.

The judgment is Affirmed.

Footnotes

[ Footnote 1 vant portions of the administrative agreement are: “Article IX “1. The United States shall have the right to bring into Japan for purposes of this Agreement persons who are members of the United States armed forces, the civilian component, and their dependents. . . . . . “Article XVII “1. Upon the coming into force with respect to the United States of the `Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces’, signed at London on June 19, 1951, the United States will immediately conclude with Japan, at the option of Japan, an agreement on criminal jurisdiction similar to the corresponding provisions of that Agreement. “2. Pending the coming into force with respect to the United States of the North Atlantic Treaty Agreement referred to in paragraph 1, the United States service courts and authorities shall have the right to exercise within Japan exclusive jurisdiction over all offenses which may be committed in Japan by members of the United States armed forces, the civilian component, and their dependents, excluding their dependents who have only Japanese nationality. Such jurisdiction may in any case be waived by the United States. . . . . . “4. The United States undertakes that the United States service courts and authorities shall be willing and able to try and, on conviction, to punish all offenses against the laws of Japan which members of the United States armed forces, civilian component, [351 U.S. 470, 472]   and their dependents may be alleged on sufficient evidence to have committed in Japan, and to investigate and deal appropriately with any alleged offense committed by members of the United States armed forces, the civilian component, and their dependents, which may be brought to their notice by Japanese authorities or which they may find to have taken place. The United States further undertakes to notify the Japanese authorities of the disposition made by United States service courts of all cases arising under this paragraph. The United States shall give sympathetic consideration to a request from Japanese authorities for a waiver of its jurisdiction in cases arising under this paragraph where the Japanese Government considers such waiver to be of particular importance. Upon such waiver, Japan may exercise its own jurisdiction. “5. In the event the option referred to in paragraph 1 is not exercised by Japan, the jurisdiction provided for in paragraph 2 and the following paragraphs shall continue in effect. In the event the said North Atlantic Treaty Agreement has not come into effect within one year from the effective date of this Agreement, the United States will, at the request of the Japanese government, reconsider the subject of jurisdiction over offenses committed in Japan by members of the United States armed forces, the civilian component, and their dependents.” 3 UST (Part 3) 3346, 3353-3356.

[ Footnote 6 his respect this case is entirely different from 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 22 -23. 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 15 . No like constitutional bar exists in the present case.

[ Footnote 7 need only consider the disruptive effect of establishing another type of legislative court to deal with the same offenses in the same territorial jurisdiction as the military tribunals. In cases of conspiracy or joint crime, parallel trials would have to be held in separate courts. Since the trials could not proceed at the same time, one would of necessity precede and influence the other, and results could understandably be disparate. Nor is the problem of insignificant proportions. 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, 1949, 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.

[ Footnote 10 ., self-incrimination, compare Art. 31 and  149b, and  72b, Manual for Courts-Martial, with Adamson v. California, 332 U.S. 46 ; former jeopardy, compare Arts. 44 and 63 with Palko v. Connecticut, [351 U.S. 470, 479]   302 U.S. 319 ; use of illegally obtained evidence, compare  152, Manual for Courts-Martial, with Wolf v. Colorado, 338 U.S. 25

[ Footnote 11 note 1, supra. and Schwartz, International Law and the NATO Status of Forces Agreement, 53 Col. L. Rev. 1091; Re, The NATO Status of Forces Agreement and International Law, 50 N. W. U. L. Rev. 349.

[ Footnote 12 as been suggested that bringing American citizens to this country for trial for offenses committed abroad may be a preferable solution even if it is not required by the Constitution. Congress [351 U.S. 470, 480]   might well have concluded that this suggestion was completely impractical. First, a condition precedent to trial in this country would be the consent of the foreign nation concerned in each individual case. This consent could always be withheld and it is likely that foreign nations would refuse to cede jurisdiction over serious offenses when trial might be held many thousands of miles away. Even where jurisdiction was obtained, the deterrent effect of such prosecutions might well be vitiated by the distance and delay involved. Secondly, both the Government and the accused would face serious problems in the production of witnesses. Depositions for the Government are not permitted in criminal cases. See Rule 15, Federal Rules of Criminal Procedure. 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. The expense of transporting witnesses would be considerable for the Government and probably impossible for a defendant, whose successful defense may depend on the demeanor of one witness. In fairness, the Government would have to bear the expense of transporting the defendant’s witnesses as well as its own, and the possibilities of abuse are obvious. Finally, a breakdown of the figures on trial by courts-martial of civilians abroad from 1950-1955 shows that some 2,000 of the 2,280 cases tried involved offenses for which the maximum punishment was six months or less. The Government might be unwilling to undergo the heavy expense and inconvenience of trial here for such minor offenses. The alternatives would be either trial by the foreign country or no trial at all; the result must be the practical abdication of American judicial authority, precisely what Congress wished to avoid. [351 U.S. 470, 481]

Reservation of MR. JUSTICE FRANKFURTER.

The Court today sustains Mrs. Clarice B. Covert’s conviction by a general court-martial in England for the murder of her husband, a sergeant in the United States Air Force, and the conviction of Mrs. Dorothy Krueger Smith by a general court-martial in Japan for the murder of her husband, a colonel in the United States Army. The Court does so, although it announces that “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.” The plain inference from this is that the Court is not prepared to support the constitutional basis upon which the Covert and Smith courts-martial were instituted and the convictions were secured.

The Uniform Code of Military Justice which governed these proceedings, and the international arrangements with England and Japan whereby the United States was allowed to exercise jurisdiction over the alleged crimes, are concerned with, directed toward, and explicitly acknowledged as legal measures that had their source in, and were obviously to be an exercise of, the constitutional power of Congress “To make Rules for the Government and Regulation of the land and naval Forces.” As provided by the Uniform Code of Military Justice, Mrs. Smith and Mrs. Covert were tried as though they were members of the Armed Forces. In view of this Court’s opinion in Toth v. Quarles, 350 U.S. 11 , and the fact that the Constitution “clearly distinguishes the military from the civil class as separate communities” and “recognizes no third class which is part civil and part military – military for a particular purpose or in a particular [351 U.S. 470, 482]   situation, and civil for all other purposes and in all other situations . . .,” Winthrop, Military Law and Precedents (2d ed. 1896), 145, the Court’s failure to rest its decision upon the congressional power “To make Rules for the Government and Regulation of the land and naval Forces” is significant.

Having put out of consideration reliance on the immediately pertinent constitutional provision bearing on the difficulties raised by these cases, the Court sustains the convictions by two lines of argument that obviously have nothing whatever to do with the regulation of the Armed Forces of the United States. The Court relies on In re Ross, 140 U.S. 453 , a case that represents, historically and juridically, an episode of the dead past about as unrelated to the world of today as the one-hoss shay is to the latest jet airplane. In complete disregard of the political and legal sources purporting to render women like Mrs. Smith and Mrs. Covert amenable to military courts-martial for crimes committed abroad, the Court draws on the system of capitulations whereby Western countries, including the United States, compelled powerless Eastern and Asiatic nations to surrender their authority over conduct within their confines by citizens of these Western nations to the rule of Western “consular courts.” The Eastern nations were made to yield because “of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused . . . .” In re Ross, supra, at 463. I do not suppose that the arrangements by which Great Britain and Japan gave the United States jurisdiction over the murders with which Mrs. Smith and Mrs. Covert were charged are to be deemed concessions wrung by the United States as were the capitulations wrung, often by force, from the Ottoman Empire and other [351 U.S. 470, 483]   Eastern nations because they were deemed inferior by the West, long ago and far away. *

The Court derives its second line of argument from the decisions of this Court which have evolved the power of Congress to deal with territory acquired by purchase or through war, beginning with the statute of 1822, which set up the government of Florida. See American Insurance Co. v. Canter, 1 Pet. 511. 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; they are made graver by the arguments on which the Court finds it necessary to rely in reaching its result. Doubtless because of the pressure under which the Court works during its closing weeks, these arguments have been merely adumbrated in its opinion. To deal adequately with them, however, demands of those to whom they are not persuasive more time than has been available to examine [351 U.S. 470, 484]   and to analyze in detail the historical underpinning and implication of the cases relied upon by the Court, as a preliminary to a searching critique of their relevance to the problems now before the Court. For the moment, it must suffice, by way of example, to indicate that by resorting to In re Ross the Court has torn from its historical context an institution – the consular court – that had a totally different source and a totally different purpose than the source and purpose of Art. 2 (11) of the Uniform Code of Military Justice, 64 Stat. 107, 109. A glimpse into the international environment and political assumptions out of which the consular court system derived and of which it was a part suffices to indicate the scope of the inquiry for which the Court’s opinion calls. Such a glimpse is afforded by the justification for consular courts urged by the Government on this Court 65 years ago. Reliance was placed on this authoritative view of Secretary of State Hamilton Fish:

 report made to Congress by my predecessor, Mr. Seward . . . shows that it has been the habit of this Department to regard the judicial power of our consular officers in Japan as resting upon the assent of the Government of that kingdom, whether expressed by formal convention or by tacit acquiescence in the notorious practice of the consular courts. In other words, they were esteemed somewhat in the same light as they would have been if they were constituted by the Mikado with American citizens as judges, and with all the authority with which a Japanese tribunal is invested in respect to the native subjects of Japan, to the extent that our Government will admit a jurisdiction understood to be extremely arbitrary. They were, so to speak, the agents of a depotism [sic], only restrained by such safeguards as [351 U.S. 470, 485]   our own Government may interpose for the protection of citizens who come within its sway.” Brief for the United States, p. 25, In re Ross, 140 U.S. 453.

Time is required not only for the primary task of analyzing in detail the materials on which the Court relies. It is equally required for adequate reflection upon the meaning of these materials and their bearing on the issues now before the Court. Reflection is a slow process. Wisdom, like good wine, requires maturing.

Moreover, the judgments of this Court are collective judgments. They are neither solo performances nor debates between two sides, each of which has its mind quickly made up and then closed. The judgments of this Court presuppose full consideration and reconsideration by all of the reasoned views of each. Without adequate study there cannot be adequate reflection. Without adequate reflection there cannot be adequate deliberation and discussion. And without these, there cannot be that full interchange of minds which is indispensable to wise decision and its persuasive formulation.

The circumstances being what they are, I am forced, deeply as I regret it, to reserve for a later date an expression of my views.

Fn [351 U.S. 470, 481]   [NOTE: This reservation applies also to Reid v. Covert, post, p. 487.]

[ Footnote * the opinion, in 1855, of Attorney General Caleb Cushing: “The legal rationale of the treaty stipulations as to China, with which we are now chiefly concerned, and their relation to the legislative authority of the United States, are explained in a dispatch of the Minister who negotiated the treaty, as follows: “`I entered China with the formed general conviction that the United States ought not to concede to any foreign state, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States, unless that foreign state be of our own family of nations, – in a word, a Christian state. . . .'” 7 Op. Atty. Gen. 495, 496-497.

MR. CHIEF JUSTICE WARREN, MR. JUSTICE BLACK, and MR. JUSTICE DOUGLAS dissent. *

The decisions just announced have far-reaching importance. They subject to military court-martial, even in time of peace, the wives, mothers and children of members of the Armed Forces serving abroad even though these dependents have no connection whatever with the Armed Forces except their kinship to military personnel and their presence abroad. The questions raised are complex, the [351 U.S. 470, 486]   remedy drastic, and the consequences far-reaching upon the lives of civilians. The military is given new powers not hitherto thought consistent with our scheme of government.

For these reasons, we need more time than is available in these closing days of the Term in which to write our dissenting views. We will file our dissents during the next Term of Court.

SMITH, AUBREY DEWITT

  • COL INF USA
  • DATE OF BIRTH: 03/14/1907
  • DATE OF DEATH: 10/04/1952
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