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[Cite as Johnson v. Eisentrager, 339 U.S. 763, 784 (1950). NOTE: This decision concerns German nationals accused of war crimes for assisting Japan after the surrender of Germany, but prior to the surrender of Japan. The German prisoners claimed Fifth Amendment violations. The Court denied the Germans could claim Fifth Amendment protections. To make its point, the Court referred to application of the rest bill of rights to hostile combatants as absurd. IThe Court listed the First, Fourth, Fifth and Sixth amendments as "companion civil-rights" along with the "right to bear arms as in the Second."(P. 784)]

JOHNSON, SECRETARY OF DEFENSE, et al. v. EISENTRAGER, alias EHRHARDT, et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

No. 306. Argued April 17, 1950.--Decided June 5, 1950.

Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian. Held:

1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.

(a) Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and 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. P. 769.

(b) In extending certain constitutional protections to resident aliens, this Court has been careful to point out that it was the aliens' presence within its territorial jurisdiction that gave the Judiciary power to act. P. 771.

(c) Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security. P. 774.

(d) A resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and (p.764)whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment. P. 775.

(e) A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts. P. 776.

2. These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States. Ex parte Quirin, 317 U.S. 1; In re Yamashita, 327 U.S. 1, distinguished. Pp. 777-781.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. Pp. 781-785.

(a) The term "any person" in the Fifth Amendment does not extend its protection to alien enemies everywhere in the world engaged in hostilities against us. Pp. 782-783.

(b) The claim asserted by respondents and sustained by the court below would, in practical effect, amount to a right not to be tried at all for an offense against our armed forces. P. 782.

4. The petition in this case alleges no fact showing lack of jurisdiction in the military authorities to accuse, try and condemn these prisoners or that they acted in excess of their lawful powers. Pp. 785-790.

(a) The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long-established. P. 786.

(b) It being within the jurisdiction of a military commission to try these prisoners, it was for it to determine whether the laws of war applied and whether they had been violated. Pp. 786-788.

(c) It is not the function of the Judiciary to entertain private litigation--even by a citizen--which challenges the legality, wisdom or propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. P. 789.

(d) Nothing in the Geneva Convention makes these prisoners immune from prosecution or punishment for war crimes. P. 789.

(e) Article 60 of the Geneva Convention, requiring that notice of trial of prisoners of war be given to the protecting power, is inapplicable to trials for war crimes committed before capture. Pp. 789-790.

(f) Article 63 of the Geneva Convention, requiring trial of prisoners of war "by the same courts and according to the same (p.765)procedure as in the case of persons belonging to the armed forces of the detaining Power," is likewise inapplicable to trials for war crimes committed before capture. P. 790.

5. Since there is no basis in this case for invoking federal judicial power, it is not necessary to decide where, if the case were otherwise, the petition should be filed. Pp. 790-791.

84 U.S. App. D.C. 396, 174 F.2d 961, reversed.

The District Court dismissed a petition for a writ of habeas corpus to inquire into the confinement of respondents by the United States Army in occupied Germany. The Court of Appeals reversed. 84 U.S. App. D.C. 396, 174 F.2d 961. This Court granted certiorari. 338 U.S. 877. Reversed, p. 791.

Solicitor General Perlman argued the cause for petitioners. With him on the brief were Assistant Attorney General McInerney, Oscar H. Davis, Robert S. Erdahl and Philip R. Monahan.

A. Frank Reel and Milton Sandberg argued the cause for respondents. With them on the brief were Wallace M. Cohen and Richard F. Wolfson.

Mr. Justice Jackson delivered the opinion of the Court.

The ultimate question in this case is one of jurisdiction of civil courts of the United States vis--vis military authorities in dealing with enemy aliens overseas. The issues come here in this way:

Twenty-one German nationals petitioned the District Court of the District of Columbia for writs of habeas corpus. They alleged that, prior to May 8, 1945, they were in the service of German armed forces in China. They amended to allege that their employment there was by civilian agencies of the German Government. Their exact affiliation is disputed, and, for our purposes, immaterial. On May 8, 1945, the German High Command (p.766)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 Theater, 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 (p.767)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.(p.768)

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.[768.1]

I.

Modern American law has come a long way since the time when outbreak of war made every enemy national (p.769)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,[769.2] nor between resident enemy aliens who have submitted themselves to our laws and non-resident 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. (p.770)United States, 208 U.S. 8, and has secured citizenship against forfeiture by involuntary formal acts, Perkins v. Elg, 307 U.S. 325.[770.3] Because the Government's obligation of protection is correlative with the duty of loyal support inherent in the citizen's allegiance, Congress has directed the President to exert the full diplomatic and political power of the United States on behalf of any citizen, but of no other, in jeopardy abroad. When any citizen is deprived of his liberty by any foreign government, it is made the duty of the President to demand the reasons and, if the detention appears wrongful, to use means not amounting to acts of war to effectuate his release.[770.4] It is neither sentimentality nor chauvinism to repeat that "Citizenship is a high privilege." United States v. Manzi, 276 U.S. 463, 467.

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, (p.771)this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. The Japanese Immigrant Case, 189 U.S. 86; Low Wah Suey v. Backus, 225 U.S. 460; Tisi v. Tod, 264 U.S. 131; United States ex rel. Vajtauer v. Comm'r, 273 U.S. 103; Bridges v. Wixon, 326 U.S. 135; Wong Yang Sung v. McGrath, 339 U.S. 33. And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties--such as the due process of law of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356.

But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act. In the pioneer case of Yick Wo v. Hopkins, the Court said of the Fourteenth Amendment, "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; ...." (Italics supplied.) 118 U.S. 356, 369. And in The Japanese Immigrant Case, the Court held its processes available to "an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here." 189 U.S. 86, 101.

Since most cases involving aliens afford this ground of jurisdiction, and the civil and property rights of immigrants or transients of foreign nationality so nearly approach equivalence to those of citizens, courts in peace time have little occasion to inquire whether litigants before them are alien or citizen.

It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane (p.772)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 allegiance, (p.773)regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.

The United States does not invoke this enemy allegiance only for its own interest, but respects it also when to the enemy's advantage. In World War I our conscription act did not subject the alien enemy to compulsory military service. 40 Stat. 885, c. XII, 4. The Selective Service Act of 1948, 62 Stat. 604, 50 U.S.C. App. 454 (a), exempts aliens who have not formally declared their intention to become citizens from military training, service and registration, if they make application, but if so relieved, they are barred from becoming citizens. Thus the alien enemy status carries important immunities as well as disadvantages. The United States does not ask him to violate his allegiance or to commit treason toward his own country for the sake of ours. This also is the doctrine and the practice of other states comprising our Western Civilization.[773.5]

The essential pattern for seasonable Executive constraint of enemy aliens, not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government, was laid down in the very earliest days of the Republic and has endured to this day. It was established by the Alien Enemy Act of 1798. 1 Stat. 577, as amended, 50 U.S.C. 21. And it is to be noted that, while the Alien and Sedition Acts of that year provoked a reaction which helped sweep the party of Mr. Jefferson into power in 1800, and though his party proceeded to undo what was regarded as the mischievous legislation of the Federalists, (p.774)this enactment was never repealed.[774.6] Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. This is in keeping with the practices of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that (p.775)which has prevailed among any of our enemies and some of our allies. This statute was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation's obligations to its foes could ever be put on a parity with those to its defenders.

The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment. Ludecke v. Watkins, 335 U.S. 160.[775.7](p.776)

The standing of the enemy alien to maintain any action in the courts of the United States has been often challenged and sometimes denied. The general statement was early made on combined authority of Kent and Story "That they have no power to sue in the public courts of the enemy nation." Griswold v. Waddington, 16 Johns. (N.Y.) 438, 477. Our rule of generous access to the resident enemy alien was first laid down by Chancellor Kent in 1813, when, squarely faced with the plea that an alien enemy could not sue upon a debt contracted before the War of 1812, he reviewed the authorities to that time and broadly declared that "A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity." Clarke v. Morey, 10 Johns. (N.Y.) 70,72. A unanimous Court recently clarified both the privilege of access to our courts and the limitations upon it. We said: "The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today." Ex parte Kawato, 317 U.S. 69, 75.

But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy. Our law on this subject first emerged about 1813 when the Supreme Court of the State of New York had occasion, in a series of cases, to examine the foremost authorities of the Continent and of England. It concluded the rule of the common law and the law of nations to be that alien enemies resident in the country of the enemy could not maintain an action in its courts during the period of hostilities. Bell v. Chapman, 10 Johns. (N.Y.) 183; Jackson v. Decker, 11 (p.777) Johns. (N.Y.) 418; Clarke v. Morey, 10 Johns. (N. Y.) 70, 74-75. This Court has recognized that rule, Caperton v. Bowyer, 14 Wall. 216, 236; Masterson v. Howard, 18 Wall. 99, 105, and followed it, Ex parte Colonna, 314 U.S. 510, and it continues to be the law throughout this country and in England.[777.8]

II.

The foregoing demonstrates how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to our courts.

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied (p.778)protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.

Another reason for a limited opening of our courts to resident aliens is that among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law. But these prisoners were actual enemies, active in the hostile service of an enemy power. There is no fiction about their enmity. Yet the decision below confers upon them a right to use our courts, free even of the limitation we have imposed upon resident alien enemies, to whom we deny any use of our courts that would hamper our war effort or aid the enemy.

A basic consideration in habeas corpus practice is that the prisoner will be produced before the court. This is the crux of the statutory scheme established by the Congress;[778.9] indeed, it is inherent in the very term "habeas corpus."[778.10] And though production of the prisoner may be dispensed with where it appears on the face of the application that no cause for granting the writ exists, Walker v. Johnston, 312 U.S. 275, 284, we have consistently adhered to and recognized the general rule. Ahrens v. Clark, 335 U.S. 188, 190-191. To grant the (p.779)writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers. Except in England, whose law appears to be in harmony with the views we have expressed, and other English-speaking peoples in whose practice nothing has been cited to the contrary, the writ of habeas corpus is generally unknown.

The prisoners rely, however, upon two decisions of this Court to get them over the threshold--Ex parte Quirin, 317 U.S. 1, and In re Yamashita, 327 U.S. 1. Reliance on the Quirin case is clearly mistaken. Those prisoners were in custody in the District of Columbia. One was, or (p.780)claimed to be, a citizen. They were tried by a Military Commission sitting in the District of Columbia at a time when civil courts were open and functioning normally. They were arrested by civil authorities and the prosecution was personally directed by the Attorney General, a civilian prosecutor, for acts committed in the United States. They waived arraignment before a civil court and it was contended that the civil courts thereby acquired jurisdiction and could not be ousted by the Military. None of the places where they were acting, arrested, tried or imprisoned were, it was contended, in a zone of active military operations or under martial law or any other military control, and no circumstances justified transferring them from civil to military jurisdiction. None of these grave grounds for challenging military jurisdiction can be urged in the case now before us.

Nor can the Court's decision in the Yamashita case aid the prisoners. This Court refused to receive Yamashita's petition for a writ of habeas corpus. For hearing and opinion, it was consolidated with another application for a writ of certiorari to review the refusal of habeas corpus by the Supreme Court of the Philippines over whose decisions the statute then gave this Court a right of review. 28 U.S.C. 349, repealed by Act of June 25, 1948, c. 646, 39, 62 Stat. 992, 1000. By reason of our sovereignty at that time over these insular possessions, Yamashita stood much as did Quirin before American courts. Yamashita's offenses were committed on our territory, he was tried within the jurisdiction of our insular courts and he was imprisoned within territory of the United States. None of these heads of jurisdiction can be invoked by these prisoners.

Despite this, the doors of our courts have not been summarily closed upon these prisoners. Three courts have considered their application and have provided their counsel opportunity to advance every argument in their (p.781)support and to show some reason in the petition why they should not be subject to the usual disabilities of nonresident enemy aliens. This is the same preliminary hearing as to sufficiency of application that was extended in Quirin, supra, Yamashita, supra, and Hirota v. MacArthur, 338 U.S. 197. After hearing all contentions they have seen fit to advance and considering every contention we can base on their application and the holdings below, we arrive at the same conclusion the Court reached in each of those cases, viz.: that no right to the writ of habeas corpus appears.

III.

The Court of Appeals dispensed with all requirement of territorial jurisdiction based on place of residence, captivity, trial, offense, or confinement. It could not predicate relief upon any intraterritorial contact of these prisoners with our laws or institutions. Instead, it gave our Constitution an extraterritorial application to embrace our enemies in arms. Right to the writ, it reasoned, is a subsidiary procedural right that follows from possession of substantive constitutional rights. These prisoners, it considered, are invested with a right of personal liberty by our Constitution and therefore must have the right to the remedial writ. The court stated the steps in its own reasoning as follows: "First. The Fifth Amendment, by its terms, applies to 'any person.' Second. Action of Government officials in violation of the Constitution is void. This is the ultimate essence of the present controversy. Third. A basic and inherent function of the judicial branch of a government built upon a constitution is to set aside void action by government officials, and so to restrict executive action to the confines of the constitution. In our jurisprudence, no Government action which is void under the Constitution is exempt from judicial power. Fourth. The writ (p.782)of habeas corpus is the established, time-honored process in our law for testing the authority of one who deprives another of his liberty,--'the best and only sufficient defense of personal freedom.' ..." 84 U.S. App. D.C. 396, 398-399, 174 F.2d 961, 963-964.

The doctrine that the term "any person" in the Fifth Amendment spreads its protection over alien enemies anywhere in the world engaged in hostilities against us, should be weighed in light of the full text of that Amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

When we analyze the claim prisoners are asserting and the court below sustained, it amounts to a right not to be tried at all for an offense against our armed forces. If the Fifth Amendment protects them from military trial, the Sixth Amendment as clearly prohibits their trial by civil courts. The latter requires in all criminal prosecutions that "the accused" be tried "by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." And if the Fifth be held to embrace these prisoners because it uses the inclusive term "no person," the Sixth must, for it applies to all "accused." No suggestion is advanced by the court below, or by prisoners, of any constitutional (p.783)method by which any violations of the laws of war endangering the United States forces could be reached or punished, if it were not by a Military Commission in the theater where the offense was committed.

The Court of Appeals has cited no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses, except to quote extensively from a dissenting opinion in In re Yamashita, 327 U.S. 1, 26. The holding of the Court in that case is, of course, to the contrary.

If this Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. American citizens conscripted into the military service are thereby stripped of their Fifth Amendment rights and as members of the military establishment are subject to its discipline, including military trials for offenses against aliens or Americans. Cf. Humphrey v. Smith, 336 U.S. 695; Wade v. Hunter, 336 U.S. 684. Can there be any doubt that our foes would also have been excepted, but for the assumption "any person" would never be read to include those in arms against us? It would be a paradox indeed if what the Amendment denied to Americans it guaranteed to enemies. And, of course, it cannot be claimed that such shelter is due them as a matter of comity for any reciprocal rights conferred by enemy governments on American soldiers.[783.11](p.784)

[Currently at pages 763-783 (Majority opinion).
Proceed to page 784 (Majority opinion cont.).
Proceed to pages 785-790 (Majority opinion cont.).
Proceed to pages 791-798 (Black, dissent).]


[768.1] 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.

[769.2]

"... 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; aff'd., 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.

[770.3] For cases in lower courts, see Note, 18 Geo. Wash. L. Rev. 410.

[770.4]

"Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress." 15 Stat. 224, 8 U.S.C. 903b.

[773.5] See Delaney, The Alien Enemy and the Draft, 12 Brooklyn L. Rev. 91.

[774.6]

"... In 1798, the 5th Congress passed three acts in rapid succession, 'An Act concerning Aliens,' approved June 25, 1798 [1 Stat. 570], 'An Act respecting Alien Enemies,' approved July 6, 1798 [1 Stat. 577, 50 U.S.C.A. 21 et seq.], and 'An Act in addition to the act, entitled "An Act for the punishment of certain crimes against the United States,"' approved July 14, 1798. [1 Stat. 596.] The first and last were the Alien and Sedition Acts, vigorously attacked in Congress and by the Virginia and Kentucky Resolutions as unconstitutional. But the members of Congress who vigorously fought the Alien Act saw no objection to the Alien Enemy Act. [8 Annals of Cong. 2035 (5th Cong., 1798)]. In fact, Albert Gallatin, who led that opposition, was emphatic in distinguishing between the two bills and in affirming the constitutional power of Congress over alien enemies as part of the power to declare war. [Id. at 1980.] James Madison was the author of the Virginia Resolutions, and in his report to the Virginia House of Delegates the ensuing year after the deluge of controversy, he carefully and with some tartness asserted a distinction between alien members of a hostile nation and alien members of a friendly nation, disavowed any relation of the Resolutions to alien enemies, and declared, 'With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies.' [Madison's Report, 4 Elliot's Deb. 546, 554 (1800).] Thomas Jefferson wrote the Kentucky Resolutions, and he was meticulous in identifying the Act under attack as the Alien Act 'which assumes power over alien friends.' [Kentucky Resolutions of 1798 and 1799, 4 Elliot's Deb. 540, 541.] It is certain that in the white light which beat about the subject in 1798, if there had been the slightest question in the minds of the authors of the Constitution or their contemporaries concerning the constitutionality of the Alien Enemy Act, it would have appeared. None did.

"The courts, in an unbroken line of cases from Fries' case [Case of Fries, C. C. D. Pa. 1799, 9 Fed. Cas. at pages 826, 830 et seq., No. 5,126], in 1799 to Schwarzkopf's case [United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 1943, 137 F.2d 898] in 1943, have asserted or assumed the validity of the Act and based numerous decisions upon the assumption. [Brown v. United States, 1814, 8 Cranch 110, 3 L. Ed. 504; De Lacey v. United States, 9 Cir., 1918, 249 F. 625, L. R. A. 1918E, 1011; Grahl v. United States, 7 Cir., 1919, 261 F. 487; Lockington's Case, Brightly (Pa., 1813) 269, 283; Lockington v. Smith, C. C. D. Pa., 1817, 15 Fed. Cas. page 758, No. 8,448; Ex parte Graber, D.C. N. D. Ala. 1918, 247 F. 882; Minotto v. Bradley, D.C. N. D. Ill. 1918, 252 F. 600; Ex parte Fronklin, D.C. Miss. 1918, 253 F. 984; Ex parte Risse, D.C.S.N.Y. 1919, 257 F. 102; Ex parte Gilroy, D.C.S.D.N.Y. 1919, 257 F. 110.] The judicial view has been without dissent.

"At common law 'alien enemies have no rights, no privileges, unless by the king's special favour, during the time of war.' [1 Blackstone *372, 373.]" Prettyman, J. in Citizens Protective League v. Clark, 81 U.S. App. D.C. 116, 119-120, 155 F.2d 290, 293.

[775.7] See also Notes, 22 So. Calif. L. Rev. 307; 60 Harv. L. Rev. 456; 47 Mich. L. Rev. 404; 17 Geo. Wash. L. Rev. 578; 27 N.C. L. Rev. 238; 34 Cornell L.Q. 425. In this respect our courts follow the practice of the English courts. 44 Am. J. Int'l L. 382.

[777.8] See cases collected in Annotations, 137 A. L. R. 1335, 1355; 1918B L. R. A. 189, 191. See also Borchard, The Right of Alien Enemies to Sue in Our Courts, 27 Yale L. J. 104; Gordon, The Right of Alien Enemies to Sue in American Courts, 36 Ill. L. Rev. 809, 810; Battle, Enemy Litigants in Our Courts, 28 Va. L. Rev. 429; Rylee, Enemy Aliens as Litigants, 12 Geo. Wash. L. Rev. 55, 65; Notes, 5 U. of Detroit L. J. 106, 22 Neb. L. Rev. 36, 30 Calif. L. Rev. 358, 54 Harv. L. Rev. 350.

[778.9] 28 U.S.C. 2243 provides in part: "Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained."

[778.10]

"Habeas corpus ... thou (shalt) have the body (sc. in court).

"A writ issuing out of a court of justice ... requiring the body of a person to be brought before the judge or into the court for the purpose specified in the writ; ... requiring the body of a person restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined." The Oxford English Dictionary (1933), Vol. V, p. 2.

[783.11]

"All merchants, if they were not openly prohibited before, shall have their safe and sure conduct to depart out of England, to come into England, to tarry in, and go through England, as well by land as by water, to buy and sell without any manner of evil tolles by the old and rightful customs, except in time of war; and if they be of a land making war against us, and be found in our realm at the beginning of the wars, they shall be attached without harm of body or goods, until it be known unto us, or our chief justice, how our merchants be entreated who are then found in the land making war against us; and if our merchants be well intreated there, theirs shall be likewise with us." (Emphasis added.) C. 30 of the Magna Carta, in 3 The Complete Statutes of England (Halsbury's Laws of England 1929) at p. 27.