REID v. COVERT
While residing at an airbase in England as a military dependent, Mrs. Clarice Covert was tried and convicted by court-martial for the murder of her husband, a sergeant in the United States Air Force. Mrs. Covert was not a member of the armed forces. Her trial and subsequent conviction by court martial in the United States was authorized under Article 2(11) of the United States Code of Military Justice. Mrs. Covert filed a petition for a writ of habeas corpus in federal district court alleging that her conviction by military authorities had violated her constitutional rights under the Fifth and Sixth Amendments. The district court, holding that “a civilian is entitled to a civilian trial,” granted her petition. The Government appealed directly to the United States Supreme Court.
In its initial decision of the case (351 U.S. 487), the Court held that Mrs. Covert’s military trial was constitutional, that the Constitutional right to a trial by jury did not apply to American citizens tried in foreign lands. Congress, the Court held, could provide for trial by any means it saw fit so long as such means were reasonable and consistent with due process. Justice Felix Frankfurter issued a lengthy reservation, and Chief Justice Earl Warren together with Justices Hugo L. Black and William O. Douglas issued a strong dissent. The Court subsequently granted a petition for rehearing.
Do American citizens abroad retain the rights granted to them by the Bill of Rights thus rendering Article 2(11) of the United State Code of Military Justice unconstitutional?
Legal provision: Uniform Code of Military Justice
Yes. In a plurality opinion written by Justice Hugo L. Black and joined by Chief Justice Earl Warren, and Justices William O. Douglas and William J. Brennan, Jr., the Court held that American citizens outside of the territorial jurisdiction of the United States retain the protections guaranteed by the United States Constitution. Accordingly, the decision below granting Mrs. Covert’s habeas petition was affirmed. Black wrote: “[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.” Consequently, the plurality asserted that neither a treaty nor the Necessary and Proper Clause could confer upon Congress the sweeping power to try civilians by military court martial.
While a majority of the Court agreed with the ultimate result, they did so for different reasons. Concurring in the decision, Justice Felix Frankfurter rejected the idea that the Necessary and Proper Clause could prevent Congress from mandating the court martial of civilians in all cases. He opposed what he termed a “recourse to the literal words” of the Constitution. Merely to hold that Mrs. Covert could not stand trial before a military tribunal since she was not a member of the armed forces signified too narrow a review. In his opinion, that determination required the Court to assess the Constitution in its entirety and not simply the single provision granting Congress the power to regulate the nation’s land and naval forces. He advocated a balancing test that would require a court to weigh “all the factors involved...in order to decide whether [military dependents] are so closely related to what Congress may allowably deem essential for the effective...regulation of the land and naval forces that they may be subjected to court-martial jurisdiction in...capital cases, when the consequence is loss of [their constitutional] protections.”
Also concurring in the judgment, Justice John Marshall Harlan II essentially agreed with Frankfurter. Accordingly, he saw the determination as “analogous to issues of due process.” Having first determined that military dependents overseas bear a rational connection to the armed forces such that they could be validly subjected to court martial, he then asserted that the analysis turned on a question of what process was due a military dependent under the “particular circumstances of a particular case.” While capital cases such as this one certainly necessitated a full Article III trial, most petty offenses committed by military dependents almost certainly would not. He thus advocated a case-by-case approach, rejecting the sweeping conclusion set forth by the plurality. Since Harlan had originally voted with the majority in the initial decision of this case, his concurrence on rehearing was narrow but significant. Perhaps as a consequence of his earlier vote in the previous term, his opinion on rehearing was considerably less at odds with the arguments set forth in the dissent written by Justice Tom C. Clark and joined by Justice Harold Burton.
In that staunch dissent, Clark gave substantial weight to historical practice. He asserted that the “military has always exercised jurisdiction by court-martial over civilians accompanying armies in time of war,” and that for explicit reasons of policy concerning military morale and discipline, none of the Court’s relevant precedents had ever questioned that authority. He pointed out several troublesome and practical consequences of the Court’s holding. Not least among these were the vast distances between the United States and its various military instillations around the world. By setting forth an overly broad standard, the plurality, argued Clark, had opened the door to a myriad of petty offenses to be tried in the federal court system, thus incurring needless cost, delay, and disruption.
Justice Charles Whitaker took no part in the decision.
Reid v. Covert has the distinction of being the only case in the history of the Supreme Court in which the Court reversed itself on rehearing. In successfully persuading the Court to do so, Mrs. Covert’s lawyer, Colonel Frederick Bernays Wiener, secured for himself a seat among the giants of the legal profession. A seasoned veteran of Supreme Court litigation, Colonel Wiener considered his triumph in Reid v. Covert to be among his greatest professional accomplishments. His oral argument in the case has attained legendary status and remains a preeminent exemplar in the art of persuasion and appellate advocacy.
Matthew Lognion contributed this abstract.