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the part of the authorities of the receiving State. A more and if its applicability in a given foreign territory was sanctioned under
liberal definition of dependent is contained in the NATO "any treaty or agreement to which the United States is or may be a par-
Status of Forces Supplementary Agreement 29 applicable ty" with the foreign sovereignty, or under "any accepted rule of inter-
national law." The existence of such an agreement here is admitted.
in Germany and in the Chinese, 30 Japanese, 31
The constitutionality of Article 2(11) as it applies in time of peace to,
Korean, 32 Spanish, 33 and Turkish 34 SOFAS. civilian dependents charged with noncapital offenses under the Code is
(b) U.S. military jurisdiction over dependents the sole issue to be decided. .. .
abroad. In this field, United States ex rel. Toth v. Quarles, 350 U.S. 11
Kinsella v. Singleton35 and (1955), cited with approval by a majority in the second Covertcase, 351
U.S. 487 is a landmark. Likewise, of course, we must consider the effect
Grisham v. Hagan 36
This direct appeal tests the constitutional validity of peacetime court- of the latter case on our problem. We therefore turn to their teachings.
martial trials of civilian persons "accompanying the armed forces with- The Tothcase involved a discharged soldier who was tried by court-mar-
out the continental limits of the United States" and charged with non- tial after his discharge from the Army, for an offense committed before
capital offenses under the Uniform Code of Military Justice, 10 U.S.C. his discharge. It was said there that the Clause 14 "provision itself does
section 802,70A Stat. 37. Appellee contends that the dependent wife of not empower Congress to deprive people of trials under Bill of Rights
a soldier can be tried only in a court that affords her the safeguards of safeguards," 350 U.S. at pages 21-22, and that military tribunals must
Article 111 and of the Fifth and Sixth Amendments to the Constitution. be restricted "to the narrowest jurisdiction deemed absolutely essential
to maintaining discipline among troops in active service," id., 350 U.S.
'he appellee is the mother of Mrs. Joanna S. Dial, the wife of a at page 22. We brushed aside the thought that "considerations of dis-
soldier who was assigned to a tank battalion of the United States Anny. cipline" could provide an excuse for "new expansion of court-martial
The Dials and their three children lived in government housing quarters jurisdiction at the expense of normal and constitutionally preferable
at Baumholder, Germany. In consequences of the death of one of their systems of trial by jury." Id., at 22-23. (Italics supplied.) We were
children, both the Dials were charged with unpremeditated murder therefore "not willing to hold that power to circumvent these safeguards
under Article 118(2) of the Uniform Code of Military Justice, 10 should be inferred through the Necessary and Proper Clause." Id., at
U.S.C.A. section 918(2). Upon the Dials' offer to plead guilty to in- 22. The holding of the case may be summed up in its own words,
voluntary manslaughter under Article 119 of the Code, 10 U.S.C.A. namely, that "the power granted Congress 'To make Rules' to regulate
section 919, both charges were withdrawn and new ones charging them 'the land and naval Forces' would seem to restrict court-martial jurisdic-
separately with the lesser offense were returned. They were then tried tion to persons who are actually members or part of the med forces."
together before a general court-martial at Baumholder. .. . Id., at 15. The test for jurisdiction, it follows, is one of status, namely,
As has been noted, the jurisdiction of the court-martial was based whether the accusedin the court-martial proceeding is a person wh~ can
upon the provisions of Article 2(11) of the Code. The Congress enacted be regarded as falling within the term "land and naval Forces." The
that article in an effort to extend, for disciplinary reasons, the coverage Court concluded that civilian dependents charged with capital offenses
of the Uniform Code of Military Justice to the classes of persons therein were not included within such authority, the concurring Justices ex-
enumerated. The jurisdiction of the Code only attached, however, when pressing the view that they did 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
29. 119631 14 U.S.T. 53, T.I.A.S. No. 535. Paragraph 2(a), article effective "Government and Regulation" of those forces as reasonably
2, provides "A close relative of a member of a force or of a civilian com- to demonstrate a justification for court-martial jurisdiction over capital
ponent not falling within the definition contained in subparagraph (c) of offenses." Concurring opinion, 354 U.S. at 46-47.
paragraph 1 of Article I of the NATO Status of Forces Agreement who is
financially or for reasons of health dependent on, and is supported by, Moreover, in the critical areas of occupation other legal grounds may
such member, who shares the quarters occupied by such member, and exist for court-martial jurisdiction as claimed by the Government in No.
who is present in the Federal territories with the consent of the 37, Wilson v. Bohlender, 361 U.S. 281. See Madsen v. Kinsella, 343
authorities of the force shall be considered to be, and treated as, a de- U.S. 341 (1952). Another serious obstacle to permitting prosecution of
pendent within the meaning of that provision." noncapital offenses, while rejecting capital ones, is that it would place in
30. [I9661 17 U.S.T. 373, T.I.A.S. No. 5986. '"Dependents' the hands of the military an umeviewable discretion to exercise jurisdic-
means (i) spouse and children under 21; (ii) parents, children over 21, tion over civilian dependents simply by downgrading the offense, thus
or other relatives dependent for over half their support upon a member
of the United States armed forces or civilian component." Id. at art. stripping the accused of his constitutional rights and protections. By
allowingthis assumption of "the garb of mercy," we would be depriving
I(c).
31. (19601 11 U.S.T. 1652, T.I.A.S. No. 4510. The language of arti- a capital offender of hi constitutional means of defense and in effect
cle 1(c) defines 'dependents' as in note 30, supra. would nullify the second Covert case. We do know that in one case,
32. [I9661 17 U.S.T. 1677, T.I.A.S. No. 6127. Wilson v. Girard, 354 U.S. 524 (1957), the Government insisted and
33. [I9701 21 U.S.T. 2259, T.I.A.S. No. 6977. "Dependents. This we agreed that it had the power to turn over the case of an American
term means members of the families [of military personnel and civilian soldier to Japanese civil authorities for trial on an offense committed
employees] who depend upon such persons for their support and who while on duty. We have no information as to the impact of that-trial on
are in Spain, and, in any case, the spouse and minor children in Spain of civilian dependents. Strangely, this itself might prove to be quite an
such persons." Id. at para. 2a(4). effective deterrent. Moreover, the immediate return to the United
34. [I9541 5 U.S.T. 1465, T.I.A.S. No. 3020. "4persons whoare States permanently of such civilian dependents, or their subsequent
relatives of, and in accordance with United States law or regulations, de- prosecution for the more serious offenses in the United States when
pending for support upon and actually residing with any member of a authorized by the Congress, might well be the answer to the disciplinary
United States force or the civilian component, except those who are not
United States citizens, shall be considered dependents and will be treat- problem. Certainly such trials would not involve as much expense nor
be as diffcult of successful prosectuion as capital offenses. ...
ed in all respects as those presons defined in Article I, paragraph 1, sub-
paragraph c, of the aforesaid NATO [Status of Fom] Agreement." Id. We therefore hold that Mrs. Dial is protected by the spedic provi-
at para. 1. sions of Article III and the Fa and Sixth Amendments and that her-
35. 361 U.S. 234 (1960). prosecution and conviction by court-martial are not constitutionally per-
36. 361 U.S. 278 (1960). missible. The judgment must therefore be AFFIRMED.