No Man's Land

On June n, 1956, the U.S. Supreme Court by a 5-to-3 vote upheld the right of military courts to try civilian dependents accompanying the U.S. armed forces overseas. Last week, ruling on the same two cases, and precisely 364 days after its first decision, the Supreme Court completely reversed itself.

In so doing it threw some 390,000 overseas dependents, along with 23,500 U.S. civilian employees of the armed forces, into a sort of legal no man's land. It also proved, if anyone had doubted it previously, that Supreme Court decisions depend heavily on the personalities and philosophical underpinnings of the justices who make them.

Wisdom & Wine. Before the court were the 1953 cases of Dorothy Krueger Smith and Clarice Covert. Mrs. Smith, daughter of wartime Army General Walter Krueger, was found guilty by a court-martial of stabbing her husband, an Army colonel, to death in their quarters in Japan. A court-martial convicted Mrs. Covert of the ax murder of her husband, an Air Force master sergeant, in England. Last year the Supreme Court ruled that their military convictions and life sentences for murder were valid, with Justices Tom Clark, Harold Burton, Stanley Reed. Sherman Minton and John Marshall Harlan in the majority, and Chief Justice Earl Warren and Justices Hugo Black and William Douglas in the minority. (Justice Felix Frankfurter reserved his opinion, noting blandly that "wisdom, like good wine, requires maturing.")

In the year intervening since the court's first decision Minton was replaced by William J. Brennan, and last week Justice Brennan joined the liberal-tending War ren-Douglas-Black bloc to hold court-martial trials unconstitutional for overseas dependents. Reed was succeeded by Justice Charles Evans Whittaker, who did not participate in last week's decision. Harlan switched sides with the candid admission that time had given him "an opportunity for greater reflection.'' And Frankfurter, his mind finally made up. voted with last week's majority (but. like Harlan, only insofar as it affected capital cases). That left only two--Clark and Burton--where a year before had stood five.

"We reject the idea that when the U.S. acts against citizens abroad it can do so free of the Bill of Rights ..." wrote Justice Black in the majority opinion. "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 . . . We have no difficulty in saying that such persons do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier's family."-

"Whatever It Is." Inevitably, there were some observers who found the Supreme Court's quick turnabout in itself an ample reason for criticism. Commented Columnist David Lawrence caustically: "It all adds to the bewilderment of the public, which is being solemnly told that it must always bow to 'the supreme law of the land'--whatever that is today."

But Government lawyers after they studied the decision had an even sounder ground for bewilderment: in taking jurisdiction away from military courts, the Supreme Court provided no substitute. If military courts cannot try such civilians as Mrs. Covert and Mrs. Smith, who can? Clearly, no U.S. civilian court now has venue in such overseas cases. -Should Mrs. Covert and Mrs. Smith--and others like them--be turned over to the countries in which they committed their crimes? That answer would raise such a row as to make the noisy case of Specialist William Girardt seem a quiet thing indeed. Or are Mrs. Covert and Mrs. Smith answerable to no force of justice? Discussing the decision with other officers last week, a top Pentagon lawyer joked grimly: "Watch your wives, boys, that's all I can say."

-The majority also took an obiter dictum potshot at the celebrated argument of Ohio's Senator John Bricker that the Constitution leaves doubt whether treaties can supersede constitutional rights, hence .needs the so-called Bricker Amendment establishing constitutional supremacy. Said Black: "This court has regularly and uniformly recognized the supremacy of the Constitution over a treaty."

-f The court's decision has no effect on Girard, since Girard, a serviceman, has no right to trial by U.S. civil courts. Point at issue in his case: whether under the status-of-forces agreement he should be tried by a U.S. court-martial or a Japanese court for allegedly killing a Japanese woman on a U.S. Army rifle range.

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