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

[paragraph continued from previous page] None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.

We hold that 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.


The Court of Appeals appears to have been of opinion that the petition shows some action by some official of the United States in excess of his authority which confers a private right to have it judicially voided. Its Second and Third propositions were that "action by Government officials in violation of the Constitution is void" and "a basic and inherent function of the judicial branch ... is to set aside void action by government officials ...." For this reason it thought the writ could be granted.

The petition specifies four reasons why conviction by the Military Commission was in excess of its jurisdiction: two based on the Geneva Convention of July 27, 1929, 47 Stat. 2021, with which we deal later; and two apparently designed to raise constitutional questions. The constitutional contentions are that "the detention of the prisoners as convicted war criminals is illegal and in violation of Articles I and III of the Constitution of the United States and of the Fifth Amendment thereto, and of other provisions of said Constitution and laws of the United States ..., in that:

"(a) There being no charge of an offense against the laws of war by the prisoners, the Military Commission was without jurisdiction.

"(b) In the absence of hostilities, martial law, or American military occupation of China, and in view of treaties between the United States and China (p.786)dated February 4, 1943, and May 4, 1943, and between Germany and China, dated May 18, 1921, the Military Commission was without jurisdiction."

The petition does not particularize, and neither does the court below, the specific respects in which it is claimed acts of the Military were ultra vires.

The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long-established. By the Treaty of Versailles, "The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war." Article 228. This Court has characterized as "well-established" the "power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war." Duncan v. Kahanamoka, 327 U.S. 304, 312, 313-314. And we have held in the Quirin and Yamashita cases, supra, that the Military Commission is a lawful tribunal to adjudge enemy offenses against the laws of war.[786.12]

It is not for us to say whether these prisoners were or were not guilty of a war crime, or whether if we were to retry the case we would agree to the findings of fact or the application of the laws of war made by the Military Commission. The petition shows that these prisoners were formally accused of violating the laws of war and fully informed of particulars of these charges. As we observed in the Yamashita case, "If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed (p.787)facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions." 327 U.S. 1, 8. "We consider here only the lawful power of the commission to try the petitioner for the offense charged." Ibid.

That there is a basis in conventional and long-established law by which conduct ascribed to them might amount to a violation seems beyond question. Breach of the terms of an act of surrender is no novelty among war crimes. "That capitulations must be scrupulously adhered to is an old customary rule, since enacted by Article 35 of the Hague Regulations.[787.13] Any act contrary to a capitulation would constitute an international delinquency if ordered by a belligerent Government, and a war crime if committed without such order. Such violation may be met by reprisals or punishment of the offenders as war criminals." II Oppenheim, International Law 433 (6th ed. rev., Lauterpacht, 1944). Vattel tells us: "If any of the subjects, whether military men or private citizens, offend against the truce ... the delinquents should be compelled to make ample compensation for the damage, and severely punished...." Law of Nations, (p.788)Book III, c. XVI, § 241. And so too, Lawrence, who says, "If ... the breach of the conditions agreed upon is the act of unauthorized individuals, the side that suffers ... may demand the punishment of the guilty parties and an indemnity for any losses it has sustained." Principles of International Law (5th ed.) p. 566. It being within the jurisdiction of a Military Commission to try the prisoners, it was for it to determine whether the laws of war applied and whether an offense against them had been committed.

We can only read "(b)" to mean either that the presence of the military forces of the United States in China at the times in question was unconstitutional or, if lawfully there, that they had no right under the Constitution to set up a Military Commission on Chinese territory. But it can hardly be meant that it was unconstitutional for the Government of the United States to wage a war in foreign parts. Among powers granted to Congress by the Constitution is power to provide for the common defense, to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Art. I, § 8, Const. It also gives power to make rules concerning captures on land and water, ibid., which this Court has construed as an independent substantive power. Brown v. United States, 8 Cranch 110, 126. Indeed, out of seventeen specific paragraphs of congressional power, eight of them are devoted in whole or in part to specification of powers connected with warfare. The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. Art. II, § 2, Const. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution.(p.789)

Certainly it is not the function of the Judiciary to entertain private litigation--even by a citizen--which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. China appears to have fully consented to the trial within her territories and, if China had complaint at the presence of American forces there, China's grievance does not become these prisoners' right. The issue tendered by "(b)" involves a challenge to conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. United States v. Curtiss-Wright Corp., 299 U.S. 304; Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103.

These prisoners do not assert, and could not, that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes.[789.14] Article 75 thereof expressly provides that a prisoner of war may be detained until the end of such proceedings and, if necessary, until the expiration of the punishment. 47 Stat. 2021, 2055.

The petition, however, makes two claims in the nature of procedural irregularities said to deprive the Military Commission of jurisdiction. One is that the United States was obliged to give the protecting power of Germany (p.790)notice of the trial, as specified in Article 60 of the Convention. This claim the Court has twice considered and twice rejected, holding that such notice is required only of proceedings for disciplinary offenses committed during captivity and not in case of war crimes committed before capture. Ex parte Quirin, supra; Ex parte Yamashita, supra.

The other claim is that they were denied trial "by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power," required by Article 63 of the Convention. It may be noted that no prejudicial disparity is pointed out as between the Commission that tried prisoners and those that would try an offending soldier of the American forces of like rank. By a parity of reasoning with that in the foregoing decisions, this Article also refers to those, and only to those, proceedings for disciplinary offenses during captivity. Neither applies to a trial for war crimes.

We are unable to find that the petition alleges any 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.


The District Court dismissed this petition on authority of Ahrens v. Clark, 335 U.S. 188. The Court of Appeals considered only questions which it regarded as reserved in that decision and in Ex parte Endo, 323 U.S. 283. Those cases dealt with persons both residing and detained within the United States and whose capacity and standing to invoke the process of federal courts somewhere was unquestioned. The issue was where.

Since in the present application we find no basis for invoking federal judicial power in any district, we need [paragraph continues next page]

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

[786.12] See Green, The Military Commission, 42 Am. J. Int'l L. 832.

[787.13] Article XXXV of Convention IV signed at The Hague, October 18, 1907, 36 Stat. 2277, 2305, provides: "Capitulations agreed upon between the contracting parties must take into account the rules of military honour.

"Once settled, they must be scrupulously observed by both parties." And see VII Moore, International Law Digest (1906) 330: "If there is one rule of the law of war more clear and peremptory than another, it is that compacts between enemies, such as truces and capitulations, shall be faithfully adhered to; and their non-observance is denounced as being manifestly at variance with the true interest and duty, not only of the immediate parties, but of all mankind. Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842, 6 Webster's Works, 438."

[789.14] We are not holding that these prisoners have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of July 27, 1929, 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.