MILITARY LAW THE JUNGLE OF JURISDICTION *

Military justice to the uninitiated, is a tangled mass of rules, illogical exercise of power and usurpation of individual rights. The decision of the Supreme Court of the United States in Toth v. Quarles on November 7, 1955, 350 U.S. 11, 76 S. Ct. 1, clears some of this confusion, by declaring that the military has no jurisdiction over discharged servicemen for offenses alleged to have been committed while in a military status and subject to the Code. Members of the United States Armed Forces are indoctrinated in the special process of military justice. Each newly enrolled serviceman is briefly oriented in the operation of military law and of its system of courtsmartial. If the serviceman is an average law-abiding citizen, he usually completes his term of service without having been the subject of a courtmartial. However, some individuals who are maladjusted to military life fail to comply to the various requirements of military service and become military offenders. Others commit civilian type crimes. This discussion will not attempt to examine and evaluate the problems presented by military offenses as such. It is limited to the question of jurisdiction in cases involving offenses which, until recent years, generally did not involve American military personnel--offenses against other American military personnel and against the United States, while prisoners of an enemy force. Military jurisdiction over offenses commited by military personnel and certain specified civilians has its source in the Constitution of the United States and international law. The specific provisions of the constitution relating to miltary jurisdiction are found in the powers granted to Congress, in the authority vested in the President, and in a provision of the Fifth Amendment. Military necessity may give jurisdiction over a civilian offender who otherwise would only be subject to the jurisdiction of civilian courts. (Madsen v. Kinsella, 343 U.S. 341, 1952; Ex Parte Quirin, 317 U.S. 1, 1942.) In areas where martial law is imposed, this factor applies. The term of service, mental capacity of the accused and locus and nature of the offense are other factors. In some cases, there may be dual jurisdiction, but usually one yields to the other. Only Congress can authorize the substitution of military tribunals for civil tribunals, and then only in time of war. Within the territorial limits of the United States and its territories, a policy of cooperation between military and civilian authorities has resulted in a workable program. But, the jurisdiction over cases involving felonies committed within a territory over which civil courts have jurisdiction is not involved here, nor is the question of jurisdiction over crimes committed by military personnel against other nationals or other sovereigns in overseas theaters of any concern. Certain types of offenses committed by military personnel assume the aspect of treason and present a rather difficult problem, not in establishing the fact that the act was committed, but in establishing that the act was
*

Lucrus E. YouNG, Lt. Col., Inf., U.S.A., 2nd year student, Washington College of

Law, American University.

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committed with a specific intent and therefore is a treasonable act. To convict a person of treason in a civil federal court, the specific intent must be shown; in military courts, no specific -intent must be shown. Articles 99, 100, 104 and 105 of the Code (M.C.M. 1951, pp. 443-444) provide military jurisdiction over offenses involving surrender, compelling surrender, aiding the enemy and misconduct as a prisoner of war. Three of these Articles specifically confer jurisdiction upon "any person subject to this code," while Article 104 (aiding the enemy) confers jurisdiction over "any person who" aids or attempts to aid the enemy or communicates with the enemy. All of them, in varying degrees, may be said to be acts of betrayal of one's country. A special problem arises in the disposition of cases involving military personnel. who were prisoners of the Communist Forces in North Korea. Reports of the conduct of some of these former prisoners of war, recently given considerable publicity in the press and by other media, indicate that various offenses were committed by a few such prisoners. These offenses included acts against other military personnel then being held prisoners, acts against the combat forces then engaged with the enemy, and acts against the United States. Whether such conduct constitutes treason under the concept of the civil federal courts, is problematical and difficult of proof. No such question arises where such cases are tried by courtsmartial. Several former prisoners of war of the Communist Forces in North Korea have been convicted by general court-martial following their return to the United States upon their release by the North Korean Forces. The charges in these cases allege violations of Articles of the Uniform Code of Military Justice (M.C.M. 1951), and the specifications generally allege misconduct as prisoner of war, collaboration with the enemy and activities affecting Armed Forces generally. In cases ruled upon by the Court of Military Appeals, the court has held that the failure to contest an accused's status as a person subject to trial by court-martial at the trial does not deprive him of the right to contest jurisdiction over his person at any stage of the proceedings (United States V. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154, Oct. 17, 1955). Robert W. Toth was arrested in Pittsburgh, Pa., five months after he was honorably discharged from the Air Force, and taken to Korea to stand trial before a court-martial under authority of Article 3a. He was one of three accused charged with murder and conspiracy to commit murder while stationed in Korea, a typical civilian type crime. This offense differs from those charged in the cases of United States v. Dickenson and Martin v. Young (No. 34803, Dist. Court, N.D. Cal. 1 Sept. 1955), 134 F. Supp. 204, which allege among other acts, offenses against military personnel. Toth and his co-defendants were charged with the murder of a Korean National. In both the Toth and Martincases, the alleged offenses occurred while each was in a status subject to the Code, but such status was terminated by an honorable discharge. In Martin v. Young a petition for a writ of habeas corpus was granted a soldier in confinement awaiting trial by court-martial on a charge of violation of Article 104. The specifications alleged that between June 1951 and April 1953, while he was a prisoner of war, he wrongfully, unlawfully, [ 221

and knowingly collaborated, communicated, and held intercourse with the enemy in specified manners and thereby gave aid and comfort to the enemy. The petitioner alleged lack of jurisdiction because the term of enlistment during which the offense was allegedly committed had expired, and he was honorably discharged from the Army in August 1953, although on the day following such discharge he re-enlisted for a 6-year term. The petition was granted upon the ground that the conduct alleged violates at least three criminal statutes under which petitioner could be tried in a United States District Court (citing 18 U.S.C. 2381-treason; 18 U.S.C. 953-private correspondence with foreign governments; and 18 U.S.C. 2387-activities affecting armed forces generally). The Government contended that no Federal Court could try the offense alleged; that the offense alleged (aiding the enemy) did not require allegation or proof of a specific intent, whereas each of the cited possible Federal offenses required proof of a specific intent; and that, before a writ should issue, the accused should be required to exhaust his administrative remedies. The Articles, as alleged, do not require a specific intent, but only a general intent as expressed in "knowingly." The locus of the crime is also a factor in determining jurisdiction of the person, except in military cases. Article 3a of the Code provides that "any person charged with having committed, while in a status in which he was subject to this Code, an offense against this code, punishable by five years or more and for which the person cannot be tried in the courts of the United States or any state or territory thereof or in the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status." The Court held that such provision was "not a general grant of jurisdiction but confers it only if such person cannot be tried in the civil courts." Martin v. Young presents the same problems discussed by Myers and Kaplan in Crime Without Punishment (35 Georgetown Law Journal 303, 1947). The authors noted that "Courts in the U. S. were neither proper nor competent tribunals before which individuals who have committed crimes outside the United States are to be tried." The writers noted the existence of a "flagrant gap in the power of the United States Government to administer criminal jurisdiction over members of its armed forces, implicated in crimes overseas, whose separation from the service has terminated military jurisdiction over them." Although Article 3a of the Code was designed to bridge such a gap, the Court in this case avoided this issue in holding that the petitioner could be tried for the alleged offenses in a civilian court. Article 3a was designed to give military tribunals jurisdiction over a person who committed certain offenses while in a status in which he was subject to the Code. The Supreme Court held in Toth v. Quarles, by a 6-3 decision, that Article 3a was an unconstitutional extension of the powers of military tribunals, denying to civilians like Toth "the benefit of safeguards afforded those tried in the regular courts authorized by Article II of the Constitution." The split decision in this case, and the decisions of intervening courts, indicate that diverse opinions exist as to the extent former servicemen may be tried by military tribunals for offenses committed while subject to the Code. In the Toth case, the majority opinion found that the [23 1

procedures of military tribunals were at too great a variance from the constitutional safeguards required in civil courts to extend military jurisdiction to civilian ex-servicemen. The minority opinion, on the other hand, considered the fact that Toth was a former serviceman distinguished him from a full-fledged citizen. His discharge was conditional, and "he was still a soldier to answer in court-martial for the crime he had committed while a soldier." The Armed Forces are faced with a very difficult problem in disposing of cases involving acts committed by former prisoners of war, and the various services differ in the approach to a satisfactory solution. It is not difficult to envision the effect upon the defense establishment of taking administrative action alone in such cases, where the term of service has expired. Similar acts committed within territory occupied by United States Forces usually receive prompt and decisive action and rarely does the offender question the jurisdiction. His acts are known to his fellow servicemen. The returned prisoner of war, however, may consider himself immune to severe condemnation of his acts. Or he may for other reasons, object to being tried by a military court. Is such a man to be allowed to escape punishment? Should the military establishment encourage such crimes by refusing jurisdiction in such cases? Will denial of military jurisdiction in such cases contribute toward an effective military establishment? Are the present criminal codes sufficiently extensive to include offenses of this nature? Is the alleged offender immune to trial because of the absence of proof required for conviction in a civil court? In the Toth case, a civilian escapes trial for an alleged murder committed while he was a serviceman subject to the Code. In the Martin case, a soldier escapes trial for alleged acts against other servicemen and against the Armed Forces, committed during a prior term of service. There was no such termination of service in the Dickenson case, and it appears that his trial and conviction are without serious objection. However, there was no necessity for questioning the constitutionality of Article 3a in this case. Nor was that question passed upon by the lower courts in the Toth case. The United States District Court granted a writ of habeas corpus upon the ground that Toth should have been given a hearing before being taken from the United States to Korea. The Air Force had no authority to transport him to a distant point for trial without a hearing even if there was authority to apprehend him. The United States Court of Appeals for the District of Columbia discharged the writ on the ground that Article 3a of the Code was constitutionally valid and provided the necessary authorization for the action taken. The Supreme Court in reversing this latter decision, established that the military has no jurisdiction over persons for offenses committed while in the military service, if such service is terminated prior to apprehension and trial. Assuming that appellate courts will uphold Martin v. Young, which the decision in Toth v. Quarles seems to indicate, the Martin case raises the question of whether further legislation is necessary either to give federal courts exclusive jurisdiction over all persons charged with offenses of this nature, or, in cases such as this, wherein military jurisdiction is here held to have terminated upon Martin's Honorable Discharge in 1953, to provide specific continuing military jurisdiction over persons committing certain crimes without reference to term of service or military status. [24]