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Abstract

A civilian was arrested in Pennsylvania by the military police. Without any hearing before a civil court as to the sufficiency of the charge, he was taken to Korea to face a military court on charges of murder committed while serving with the army in Korea. He petitioned for a writ of habeas corpus challenging the constitutionality of article 3(a) of the Uniform Code of Military Justice authorizing the arrest of civilians for crimes committed before discharge and the legality of the procedure followed in his apprehension and removal to Korea. Held: although the question of the constitutionality of article 3(a) of the Uniform Code was premature, the writ was issued on the grounds that the military had been granted no authority to arrest civilians, and no machinery had been established in the Code for preliminary procedure necessary to a trial of a civilian. When petitioner appeared before the Federal District Court as ordered by the writ, Judge Holtzoff further stated that the provision in article 9(c) of the Code providing the manner in which arrest of civilians shall be carried out calls for arrest only by order of the commanding officer, and, since civilians aren't subject to orders of any commanding officer, there is no authority for the military to order a civilian into arrest.

Before the passage of article 3(a) of the Uniform Code, military personnel who committed grave crimes while serving in foreign lands were not subject to trial in any United States court. However, article 3(a) granted court martials jurisdiction to try civilians who committed major crimes while in the military service. Although this was a large extension of the military into the civil field, it was not new. Under the 94th Article of War, which the Uniform Code superseded, the military had authority over civilians honorably discharged from service when the civilian was charged with fraud committed while in service. The constitutionality of this power has been in issue. Recently a court stated, " ... there is no intimation of possible doubt as to the authority of Congress to make such a grant in circumstances believed by it to be necessary."

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