ÀҾ˹éÒ˹ѧÊ×Í
PDF
ePub

Opinion of the Court.

339 U.S.

executed an act of unconditional surrender, expressly obligating all forces under German control at once to cease active hostilities. These prisoners have been convicted of violating laws of war, by engaging in, permitting or ordering continued military activity against the United States after surrender of Germany and before surrender of Japan. Their hostile operations consisted principally of collecting and furnishing intelligence concerning American forces and their movements to the Japanese armed forces. They, with six others who were acquitted, were taken into custody by the United States Army after the Japanese surrender and were tried and convicted by a Military Commission constituted by our Commanding General at Nanking by delegation from the Commanding General, United States Forces, China Theatre, pursuant to authority specifically granted by the Joint Chiefs of Staff of the United States. The Commission sat in China, with express consent of the Chinese Government. The proceeding was conducted wholly under American auspices and involved no international participation. After conviction, the sentences were duly reviewed and, with immaterial modification, approved by military reviewing authority.

The prisoners were repatriated to Germany to serve their sentences. Their immediate custodian is Commandant of Landsberg Prison, an American Army officer under the Commanding General, Third United States Army, and the Commanding General, European Command. He could not be reached by process from the District Court. Respondents named in the petition are Secretary of Defense, Secretary of the Army, Chief of Staff of the Army, and the Joint Chiefs of Staff of the United States.

The petition alleges, and respondents denied, that the jailer is subject to their direction. The Court of Appeals assumed, and we do likewise, that, while prisoners are

763

Opinion of the Court.

in immediate physical custody of an officer or officers not parties to the proceeding, respondents named in the petition have lawful authority to effect their release.

The petition prays an order that the prisoners be produced before the District Court, that it may inquire into their confinement and order them discharged from such offenses and confinement. It is claimed that their trial, conviction and imprisonment violate Articles I and III of the Constitution, and the Fifth Amendment thereto, and other provisions of the Constitution and laws of the United States and provisions of the Geneva Convention governing treatment of prisoners of war.

A rule to show cause issued, to which the United States made return. Thereupon the petition was dismissed on authority of Ahrens v. Clark, 335 U. S. 188.

The Court of Appeals reversed and, reinstating the petition, remanded for further proceedings. 84 U. S. App. D. C. 396, 174 F. 2d 961. It concluded that any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he can show that extension to his case of any constitutional rights or limitations would show his imprisonment illegal; that, although no statutory jurisdiction of such cases is given, courts must be held to possess it as part of the judicial power of the United States; that where deprivation of liberty by an official act occurs outside the territorial jurisdiction of any District Court, the petition will lie in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer.

The obvious importance of these holdings to both judicial administration and military operations impelled us to grant certiorari. 338 U. S. 877. The case is before us only on issues of law. The writ of habeas corpus must be granted "unless it appears from the application" that the applicants are not entitled to it. 28 U.S. C. § 2243.

Opinion of the Court.

339 U.S.

We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes. Absence of support from legislative or juridical sources is implicit in the statement of the court below that "The answers stem directly from fundamentals. They cannot be found by casual reference to statutes or cases." The breadth of the court's premises and solution requires us to consider questions basic to alien enemy and kindred litigation which for some years have been beating upon our doors.1

I.

Modern American law has come a long way since the time when outbreak of war made every enemy national

1 From January 1948 to today, motions for leave to file petitions for habeas corpus in this Court, and applications treated by the Court as such, on behalf of over 200 German enemy aliens confined by American military authorities abroad were filed and denied. Brandt v. United States, and 13 companion cases, 333 U. S. 836; In re Eichel (one petition on behalf of three persons), 333 U. S. 865; Everett v. Truman (one petition on behalf of 74 persons), 334 U. S. 824; In re Krautwurst, and 11 companion cases, 334 U. S. 826; In re Ehlen "et al.," and In re Girke “et al.,” 334 U. S. 836; In re Gronwald "et al.," 334 U. S. 857; In re Stattmann, and 3 companion cases, 335 U. S. 805; In re Vetter, and 6 companion cases, 335 U. S. 841; In re Eckstein, 335 U. S. 851; In re Heim, 335 U. S. 856; In re Dammann, and 4 companion cases, 336 U. S. 922-923; In re Muhlbauer, and 57 companion cases, covering at least 80 persons, 336 U. S. 964; In re Felsch, 337 U. S. 953; In re Buerger, 338 U. S. 884; In re Hans, 339 U. S. 976; In re Schmidt, 339 U. S. 976; Lammers v. United States, 339 U. S. 976. And see also Milch v. United States, 332 U. S. 789.

These cases and the variety of questions they raised are analyzed and discussed by Fairman, Some New Problems of the Constitution Following the Flag, 1 Stanford L. Rev. 587.

763

Opinion of the Court.

an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.

With the citizen we are now little concerned, except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens. Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship nor have they sapped the vitality of a citizen's claims upon his government for protection. If a person's claim to United States citizenship is denied by any official, Congress has directed our courts to entertain his action to declare him to be a citizen "regardless of whether he is within the United States or abroad." 54 Stat. 1171, 8 U. S. C. § 903. This Court long ago extended habeas corpus to one seeking admission to the country to assure fair hearing of his claims to citizenship, Chin Yow v.

24 . . . In the primary meaning of the words, an alien friend is the subject of a foreign state at peace with the United States; an alien enemy is the subject of a foreign state at war with the United States (1 Kent Comm., p. 55; 2 Halleck Int. L. [Rev. 1908], p. 1; Hall Int. Law [7th ed.], p. 403, § 126; Baty & Morgan War: Its Conduct and Legal Results, p. 247; 1 Halsbury Laws of England, p. 310; Sylvester's Case, 7 Mod. 150; The Roumanian, 1915, Prob. Div. 26; affd., 1916, 1 A. C. 124; Griswold v. Waddington, 16 Johns. 437 [438], 448; White v. Burnley, 20 How. [U. S.] 235, 249; The Benito Estenger, 176 U. S. 568, 571; Kershaw v. Kelsey, 100 Mass. 561; so all the lexicographers, as, e. g., Webster, Murray, Abbott, Black, Bouvier). . . ." Cardozo, J. in Techt v. Hughes, 229 N. Y. 222, 229, 128 N. E. 185, 186.

874433 O-5053

Opinion of the Court.

339 T.S.

and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage. Judge Cardozo commented concerning this distinction: "Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects." Techt v. Hughes, 229 N. Y. 222, 237, 128 N. E. 185, 189.

American doctrine as to effect of war upon the status of nationals of belligerents took permanent shape following our first foreign war. Chancellor Kent, after considering the leading authorities of his time, declared the law to be that ". . . in war, the subjects of each country were enemies to each other, and bound to regard and treat each other as such." Griswold v. Waddington, 16 Johns. (N. Y.) 438, 480. If this was ever something of a fiction, it is one validated by the actualities of modern total warfare. Conscription, compulsory service and measures to mobilize every human and material resource and to utilize nationals-wherever they may be in arms, intrigue and sabotage, attest the prophetic realism of what once may have seemed a doctrinaire and artificial principle. With confirmation of recent history, we may reiterate this Court's earlier teaching that in war "every individual of the one nation must acknowledge every individual of the other nation as his own enemy-because the enemy of his country." The Rapid, 8 Cranch 155, 161. See also White v. Burnley, 20 How. 235, 249; Lamar v. Browne, 92 U. S. 187, 194. And this without regard to his individual sentiments or disposition. The Benito Estenger, 176 U. S. 568, 571. The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his alle

« ¡è͹˹éÒ´Óà¹Ô¹¡ÒõèÍ
 »