Fifth and Sixth Amendments. In making this adjudication, I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question. The Court has not before it, and therefore I need not intimate any opinion on, situations involving civilians, in the sense of persons not having a military status, other than dependents. Nor do we have before us a case involving a non-capital crime. This narrow delineation of the issue is merely to respect the important restrictions binding on the Court when passing on the constitutionally of an Act of Congress. "In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully." Steamship Co. v. Emigration Commissioners, 113 U. S. 33, 39.

We are also not concerned here with the substantive aspects of the grant of power to Congress to "make Rules for the Government and Regulation of the land and naval Forces." What conduct should be punished and what constitutes a capital case are matters for congressional discretion, always subject of course to any specific restrictions of the Constitution. These cases involve the validity of procedural conditions for determining the commission of a crime in fact punishable by death. The taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests must be weighted most heavily in favor of the procedural safeguards of the Bill of Rights. Thus, in Powell v. Alabama, 287 U. S. 45, 71, the fact "above all that they stood in deadly peril of their lives" led the Court to conclude that the defendants had been denied due process by the failure to allow

them reasonable time to seek counsel and the failure to appoint counsel. I repeat. I do not mean to imply that the considerations that are controlling in capital cases involving civilian dependents are constitutionally irrelevant in capital cases involving civilians other than dependents or in non-capital cases involving dependents or other civilians. I do say that we are dealing here only with capital cases and civilian dependents.

The Government asserts that civilian dependents are an integral part of our armed forces overseas and that there is substantial military necessity for subjecting them to court-martial jurisdiction. The Government points out that civilian dependents go abroad under military auspices, live with military personnel in a military community, enjoy the privileges of military facilities, and that their conduct inevitably tends to influence military discipline.

The prosecution by court-martial for capital crimes committed by civilian dependents of members of the armed forces abroad is hardly to be deemed, under modern conditions, obviously appropriate to the effective exercise of the power to "make Rules for the Government and Regulation of the land and naval Forces" when it is a question of deciding what power is granted under Article I and therefore what restriction is made on Article III and the Fifth and Sixth Amendments. I do not think that the proximity, physical and social, of these women to the "land and naval Forces" is, with due regard to all that has been put before us, so clearly demanded by the effective "Government and Regulation" of those forces as reasonably to demonstrate a justification for court-martial jurisdiction over capital offenses.

The Government speaks of the "great potential impact on military discipline" of these accompanying civilian dependents. This cannot be denied, nor should its impli

cations be minimized. But the notion that discipline over military personnel is to be furthered by subjecting their civilian dependents to the threat of capital punishment imposed by court-martial is too hostile to the reasons that underlie the procedural safeguards of the Bill of Rights for those safeguards to be displaced. It is true that military discipline might be affected seriously if civilian dependents could commit murders and other capital crimes with impunity. No one, however, challenges the availability to Congress of a power to provide for trial and punishment of these dependents for such crimes.2 The method of trial alone is in issue. The Government suggests that if trial in an Article III court subject to the restrictions of the Fifth and Sixth Amendments is the only alternative, such a trial could not be held abroad practicably, and it would often be equally impracticable to transport all the witnesses back to the United States for trial. although there is no need to pass on that issue in this case, trial in the United States is obviously not the only practical alternative and other alternatives may raise different constitutional questions. The Government's own figures for the Army show that the total number of civilians (all civilians "serving with, employed by, or accompanying the armed forces" overseas and not merely civilian dependents) for whom general courts-martial for alleged murder were deemed advisable was only 13 in the 7

3

But

2 Article III, § 2, cl. 3, provides that "The Trial of all Crimes when not committed within any State . . . shall be at such Place or Places as the Congress may by Law have directed." Since 1790, 1 Stat. 113-114, Congress has provided for such trial in the district where the offender is found (apprehended) or first brought. See 18 U. S. C. § 3238.

3 Under Article 19 of the Uniform Code of Military Justice, 64 Stat. 114, 50 U. S. C. § 579, a special court-martial may impose any punishment not forbidden by the Code "except death, dishonorable

fiscal years, 1950-1956. It is impossible to ascertain from the figures supplied to us exactly how many persons were tried for other capital offenses, but the figures indicate that there could not have been many. There is nothing to indicate that the figures for the other services are more substantial. It thus appears to be a manageable problem within the procedural restrictions found necessary by this opinion.

A further argument is made that a decision adverse to the Government would mean that only a foreign trial could be had. Even assuming that the NATO Status of Forces Agreement, 4 U. S. Treaties and Other International Agreements 1792, T. I. A. S. No. 2846, covering countries where a large part of our armed forces are stationed, gives jurisdiction to the United States only through its military authorities, this Court cannot speculate that any given nation would be unwilling to grant or continue such extraterritorial jurisdiction over civilian dependents in capital cases if they were to be tried by some other manner than court-martial. And even if such were the case, these civilian dependents would then merely be in the same position as are so many federal employees and their dependents and other United States citizens who are subject to the laws of foreign nations

discharge, dismissal, confinement in excess of six months, hard labor without confinement in excess of three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for a period exceeding six months." Under Art. 20, 64 Stat. 114, 50 U. S. C. § 580, a summary court-martial may impose any punishment not forbidden by the Code "except death, dismissal, dishonorable or badconduct discharge, confinement in excess of one month, hard labor without confinement in excess of forty-five days, restriction to certain specified limits in excess of two months, or forfeiture of pay in excess of two-thirds of one month's pay." In order to impose a punishment in excess of these limits, a general court-martial must be convened under Art. 18, 64 Stat. 114, 50 U. S. C. § 578.

when residing there. See also the NATO Status of Forces Agreement, supra, Art. VII, §§ 2, 3.

The Government makes the final argument that these civilian dependents are part of the United States military contingent abroad in the eyes of the foreign nations concerned and that their conduct may have a profound effect on our relations with these countries, with a consequent effect on the military establishment there. But the argument that military court-martials in capital cases are necessitated by this factor assumes either that a military court-martial constitutes a stronger deterrent to this sort of conduct or that in the absence of such a trial no punishment would be meted out and our foreign policy thereby injured. The reasons why these considerations carry no conviction have already been indicated.

I therefore conclude that in capital cases the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by Article I, considered in connection with the specific protections of Article III and the Fifth and Sixth Amendments.

Since the conclusion thus reached differs from what the Court decided last Term, a decent respect for the judicial process calls for re-examination of the two grounds that then prevailed. The Court sustained its action on the authority of the cases dealing with the power of Congress to "make all needful Rules and Regulations" for the Territories, reinforced by In re Ross, 140 U. S. 453,

A report of the Joint Committee on Reduction of Nonessential Federal Expenditures on Federal Personnel and Pay indicates that the executive agencies of the Federal Government, excluding the Department of Defense, alone employed 51,027 persons outside the continental United States in February 1957, excluding employees of the Panama Canal. S. Comm. Print No. 157, 85th Cong., 1st Sess. Although these figures include "some foreign nationals," they nevertheless indicate a substantial number of United States citizens subject to foreign law. See Cong. Rec., April 9, 1957, pp. 4746-4749.