81

The expansion of military jurisdiction over capital civil offenses has not been accomplished by the use of a general article, which has existed, with slight modification, in the Articles of War and Articles for the Government of the Navy since the nation's founding.30 To conclude that Congress intended such an expansion under the present general article seems illogical and is not supported by the legislative history of the Code. Nor does the power of the convening authority to designate a capital case as not capital support such a conclusion. It has long been the practice in courts-martial to deny the use of depositions in the trial of capital cases. If this prohibition were absolute, justice would frequently be frustrated because of the unavoidable absence of witnesses. The enactment of Article 49 (f) was obviously intended to circumvent this prohibition, where the exigencies of the individual case required the use of depositions. There is nothing, however, in the legislative history of the Code to indicate that this power of the convening authority was to be used to expand the jurisdiction of courts-martial under the general article. TITLE 18, UNITED STATES CODE, and other Federal statutes extraneous to the Uniform Code of Military Justice, defined several offenses for which the death penalty may be adjudged. The general nature of these offenses are: gathering or delivering defense information to aid a foreign government, 18 USC 794 (this provision is part of Chapter 37, Title 18, USC, which is known as the "Espionage Act"); willfull destruction or damage to aircraft, or motor vehicles, or their facilities, which results in death, 18 USC 32, 33, 34; kidnapping, where the abducted person has not been released unharmed, 18 USC 1201; wrecking trains or train facilities, which results in death, 18 USC 1992; bank robbery during commission of which death occurs or where hostages abducted, 18 USC 2113; rape, 18 USC 2031; levying war against the United States or

30. Compare the general articles as they existed at the time of the adoption of the UCMJ, footnotes 7, 8 supra, with the general articles as they existed in 1776:

All other faults, disorders, and misdemeanors, which shall be committed on any ship belonging to the thirteen United colonies, and which are not herein mentioned, shall be punished according to the laws and customs in such cases at sea. (Rules for the Regulation of the Navy as passed by the Continental Congress on March 28, 1775).

Art. 5. All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general or regimental court-martial, according to the nature and degree of the offense, and punished at their discretion. (Section XVIII, American Articles of War of 1776). 31. See Winthrop, ibid., p. 355.

adhering to their enemies (treason), 18 USC 2381; and violations of various provisions of the Atomic Energy Act, such as communicating "restricted data", with intent to injure the United States or secure an advantage to a foreign nation, 42 USC 2272-2274. Two of these offenses, murder and rape, are defined and made punishable by death in punitive articles of the Uniform Code (Articles 118, 120). Their commission, under any circumstances, by persons subject to the Code, may be tried by courtmartial and the death penalty adjudged without regard to the general article or Federal statutes. As the remaining offenses have no exact counterpart in the punitive articles of the Code, their commission could only be alleged as violations of the general article.32

In United States v. French,33 the accused was convicted of, inter alia, two specifications under Article 134. One specification alleged that the accused had unlawfully attempted to communicate information relating to the national defense of the United States to Russia, having reason to believe that the information would be utilized to secure an advantage to that nation. The other specification charged that the accused had offered to sell "restricted data" to Russian agents, having reason to believe that the data would be used to secure an advantage to Russia. Both of these offenses were alleged to have been committed within the continental United States. While neither of the specifications expressly charged the violation of any Federal statute, the facts alleged in the first specification contained every element of the crime defined in 18 USC 794 (a) (peacetime espionage), and the facts alleged in the other specification constituted a

32. The proof required to establish the Federal offense may, in some situations, also prove an offense under a punitive article of the Code. Thus evidence which establishes damage to a train, aircraft, or motor vehicle, in violation of 18 USC 1992, 32, 33, would also often prove a violation of Art. 109 (destruction of other than military property). This is not to say that the offenses are the same, however; each of the Federal statutes contain elements not contained in Art. 109: damage to a specific object used in foreign or interstate commerce. Similarly, while most acts which violate Articles 104 (aiding the enemy) and 106 (Spies) would normally constitute treason, the elements of the treason statute embrace acts not proscribed by these articles of the Code, e.g., conspiracy to prevent the enforcement of a Federal statute or resistance to Federal troops. The Federal Kidnapping and Bank Robbery statutes contain elements not included in Articles 97 (unlawful detention) and 122 (Robbery). It is believed that the capital Federal offense which has been most nearly defined in the punitive Articles of the Code, excepting murder and rape, is 18 USC 794 (b) (gathering or communicating national defense information with the intent that it shall be communicated to the enemy in wartime). Articles 104 and 106 of the Code proscribe "acting as a spy", "aiding or attempting to aid the enemy" and “(giving) intelligence to the enemy." The Federal statute is slightly broader, however, and proscribes one act, an attempt to elicite defense information, which, if committed without dissimulation, would probably not violate the punitive articles mentioned.

33. 10 USCMA 171, 27 CMR 245 (1959).

violation of 42 USC 2274(b) (of the Atomic Energy Act). The death penalty is authorized under Federal law for a violation of the section of the Espionage Act, while ten years imprisonment is the maximum penalty for the offense under the Atomic Energy Act.

The Law Officer, in instructing the court on the maximum sentence authorized, stated that the first offense charged was closely related to 18 USC 794, and used that statute for determining the maximum sentence imposable. However, in conformity with Articles 18 and 52, which stipulate that a court-martial may adjudge the death penalty only when expressly authorized by the Code, the court was advised that the maximum punishment which could be adjudged was life imprisonment. The court sentenced the accused to life imprisonment. The Board of Review affirmed the conviction of both specifications. Concerning the first offense, the Board found no jurisdictional defect since it considered that the accused had been charged with a military offense which consisted of service discrediting conduct. Further, the Board considered that the charges were multiplicious, and reduced the sentence to ten years imprisonment, using the maximum sentence authorized under 42 USC 2274 (b) as the standard; the Federal statute authorizing the death penalty was considered inappropriate for use in determining the maximum sentence which could be adjudged for the commission of the noncapital offense charged. On appeal to the Court of Military Appeals, the accused challenged the jurisdiction of the court-martial to try the offense. alleged in the first specification on the grounds that a capital Federal offense could not be tried under Article 134. The members of the Court did not agree on the resolution of this issue.

One member of the Court considered that the first specification did allege a capital offense in violation of 18 USC 794 (a), and, although the conduct alleged was assuredly service discrediting, the court-martial did not have jurisdiction over the offense charged. This member of the Court stated that the history and construction of Article 134 showed that Congress intended not to permit the prosecution of any capital offense in a military court under any guise except which specifically authorized by statutory enactments.35 Until the Uniform Code, Con

34. Par. 127 (c), MCM (1951), provides for the punishment of offenses not listed in the table of maximum punishments, as follows: Offenses not listed in the table, and not included within an offense listed, or not closely related to either, remain punishable as authorized by the United States Code (see, generally, Title 18) or the District of Columbia, whichever prescribed punishment is the lesser, or as authorized by the custom of the service.

35. Citing Lee v. Madigan, 358 US 228 (1959).

gress had denied to military courts jurisdiction to try such civilian capital offenses as murder and rape when committed within the United States or District of Columbia in peace time, reserving the trial of these offenses to the civil courts. To allow the service discrediting clause of the general article to be used to accomplish indirectly what could not be accomplished directly, would violate these principles and the intent of Congress.36 It was further stated, in the principle opinion rendered by the court, that:

We know of no offense that carriers such serious maximum punishment, which, if committed by one subject to the code, could not bring discredit on the armed services. Accordingly, if we were to say that an offense made punishable by death can be alleged and tried under subsection (2), we would render meaningless subsection (3), for every capital offense could then be tried by military courts merely by asserting it was discrediting to the service."7

There had been no prejudice to the accused, it was reasoned in the principal opinion, as the Board of Review had reassessed the sentence on the basis of a single finding of the transaction in its most serious aspect, using the Atomic Energy Act to determine the maximum sentence imposable. In separate opinions, the other members of the Court concurred in the result reached in the principal opinion. One member indicated his agreement with the treatment afforded the jurisdictional question in the principal opinion. The third member of the Court concurred with the Board of Review in that, notwithstanding similarity of language between the allegations of the specification and the Espionage Act, the specification set out conduct to the discredit of the armed forces in violation of Article 134.

A VIOLATION of the Espionage Act by a person in the armed forces could, if committed within the territorial limits of the United States, be tried and punished by a Federal court. If, however, a person subject to the Code were engaged in this activity, or in fact committed any of the other capital offenses not defined in the Code, at a military base overseas, only a military court would be in a position to try the accused. It could not be anticipated that a foreign court would undertake the prosecution of an offense which did not involve injury to the foreign country or any of its citizens. If a court-martial would be barred from 36. See Winthrop, ibid, p. 721, who states that a court-martial could not, under the general article, "take cognizance of a case of homicide charged as “manslaughter" or otherwise the averments of the specification set forth a case of murder." 37. 10 USCMA at p. 178.

exercising jurisdiction over such capital Federal offenses because of the "not capital" limitation in the general article, an obvious hiatus exists in the law. The issue of whether a courtmartial would have jurisdiction to try a violation of the Espionage Act committed on foreign soil in peacetime by a person subject to the Uniform Code was raised in the French case, supra. Dictum in the principal opinion indicated that a court-martial would have jurisdiction to try such an offense. In the words of the court:

If the espionage statute which authorizes the death penalty is not effective except within the continental United States and on the high seas, then the services are not confronted with the bar erected by subsection (3) of Article 134 . . . The statute is non-effective outside that area and, absent the obstacle of the death sentence, the crime could be tried in military courts.39 Although a Congressional act 39 limits the territorial application of the Espionage Act, not all capital Federal offenses are so limited. Specifically, violations of 18 USC 1992 (treason), committed on foreign soil by American citizens, have been held to be offenses within the jurisdiction of Federal courts sitting in the United States.40 Following the reasoning of the principal opinion in the French case, the determination of whether a court-martial can exercise jurisdiction over a capital Federal offense committed at a base on foreign soil may rest on whether the specific Federal statute defining the offense is extra-territorial in application.

EXTRATERRITORIALITY

Paragraph 213 (c) of the Manual provides that for the purposes of court-martial jurisdiction, the Federal laws which may be applied under the clause "crimes and offenses not capital" are divided into two groups. The first group, the Manual states, is comprised of these Federal statutes which involve offenses directly injurious to the government, and which may be prosecuted wherever they occur. Such statutes are said to be "extraterritorial" in application, i.e., they apply to persons located outside of the territory or jurisdiction of the power enacting them. As an example of this type of offense, the Manual cites 18 USC 471 (counterfeiting) and various frauds against the Government not mentioned in Article 132. The venue for trial of offenses committed outside the jurisdiction of the United States is set by 18 USC 3238 to be the Federal court in the District in which the 38. ibid, at p. 179.

39. 18 USC 791.

40. United States v. Chandler, 171 F. 2d 921, 1st Cir. (1948), cert.

den. 336 US 918.

offender is found. The second group of Federal offenses which may be tried under the general article, the Manual states, are these offenses defined in Federal statutes of local application. These offenses, when committed by persons subject to the Code, may be prosecuted under Article 134 when the offense occurred within the geographical limits of the areas in which the statute is applicable. Examples of this type of offense are the Federal statutes which provide for the punishment of arson when committed within the "special maritime and territorial jurisdiction of the United States"," 18 USC 81, the enlisting in a foreign service "within the United States", 18 USC 1855, placing an advertisement on a flag of the United States within the District of Columbia, 4 USC 3, or destruction of monuments in certain national parks, 16 USC 428i. As the terms "special maritime and territorial jurisdiction of the United States" and "United States" are defined in Title 18 to include the high seas or insular places and waters subject to the jurisdiction of the United States, it is apparent that Federal statutes which limit their applicability in these terms are actually applicable in areas outside the geographical limits of the United States (including Alaska and Hawaii). This does not mean that they are applicable in foreign countries, however.

43

IN A CASE recently decided by the Court of Military Appeals, the construction of a noncapital Federal criminal statute was interpreted to support the statute's extraterritorial application to an offense committed in Japan. In United States v. Wilmot, the accused had been charged under Article 134 with a violation of the Federal Drugs Import and Export Act (21 USC 1710185) by bringing narcotics into a military air base in Japan. A person violates section 174 of the Narcotics Act when he knowingly imports or brings any narcotic drug into the United States or "any territory under its control or jurisdiction." A majority of the Court reasoned that the military base in Japan was a territory under the control of the United States within the meaning of the quoted portion of the Federal statute. The Court equated control with the power to regulate the base, which power the United States certainly exercised under the

41. This phrase is defined in 18 USC 7 to include, inter alia, the high seas, vessels registered under the laws of the United States, and lands acquired for the use of the United States and under the exclusive or concurrent jurisdiction thereof.

42. This term is defined in 18 USC 5, as follows:

The term "United States", as used in this title in a territorial sense, includes all places and waters, continental and insular, subject to the jurisdiction of the United States, except the canal zone.

43. 11 USCMA 698, 29 CMR 514 (1960).

agreements with Japan. In dictum, the Court also indicated that the United States Naval Base at Guantanamo Bay, and the Panama Canal Zone were areas within the purview of the Narcotics Act. In a dissenting opinion, however, one member of the Court considered that Congress did not intend the term quoted above to embrace military installations overseas, but only territorial waters of the United States. This interpretation was based upon the legislative history of the Narcotics Act. Both dissenting and majority opinions used the same starting point in their resolution of Congressional purpose: the construction of the statute. MANY FEDERAL STATUTES do not contain descriptive terms which indicate the geographic areas in which they are intended to apply. In many instances the acts proscribed in such statutes could be committed on foreign soil or outside the territorial jurisdiction of the United States. The Supreme Court, in United States v. Bowman," stated that the necessary locus of offenses, when not defined in the Federal statute proscribing the offense, depends upon the purpose of Congress, "as evinced by the description and nature of the crime, and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations."

The construction of a few Federal criminal statutes support the conclusion that Congress intended them to apply to acts committed on foreign soil. When interpreted in conjunction with the definition of the "United States," which is defined in Title 18 to include not only the continental United States but territory and waters subject to the jurisdiction of the United States, language in a statute which fixes the locus of an offense to be "within or without the United States", 45 obviously implies extraterritorial application. In regard to the capital Federal offenses not defined in the Code, the construction of only two, the Treason statute 46 and the Atomic Energy Act," support the proposition that they apply to acts committed in foreign countries. The Treason statute states that the locus of the offense is "within the United States or elsewhere." As noted above, the Supreme Court has indicated that this statue applies to acts committed by American citizens on foreign soil. The nature of the Atomic Energy Act, and some aspects of its construc

tion, indicate certain offenses described therein are punishable by death when committed in a foreign country. One section specifically makes the engaging in the unauthorized production of nuclear materials "outside of the United States", when accompanied by a requisite intent, punishable by death.48 Concerning a capital offense of communicating restricted data with intent to injure the United States,49 no locus is fixed in the statute. To conclude that Congress did not intend this statute to apply to acts committed on foreign soil seems unwarranted, however. The implementation of the provisions of the Atomic Energy Act which authorize the foreign distribution of atomic materials 50 might logically entail sending technicians to foreign countries. Certainly the statute proscribing the communication of restricted data is not limited to territorial application because of any local acts required to commit the offense. It is difficult to conceive of any offense more inimical to the welfare of the United States as revealing atomic secrets to foreign nations with intent to injure the United States; as indicated in the Bowman case, supra, such a statute should be given the broadest application. As noted in the French case, supra, the Espionage Act applies only to acts committed within the United States or on the high seas; a provision of the act specifically limits the locus to this area. Of the remaining Federal statutes which permit the death penalty, three define crimes which involve the damage to aircraft, motor vehicles, and trains (or their facilities), which are used in interstate, foreign or overseas commerce. While the terms foreign and overseas commerce may connote activity outside the territorial limits of the Uinted States, these terms describe the use of the object damaged, rather than the locus of the criminal act, and hence do not conclusively support the Congressional purpose to proscribe acts committed on foreign soil. In accord with the rationale of the Bowman case, these statutes, which would normally involve injury to private individuals or their property rather than a government, should not be interpreted to apply to acts committed outside the jurisdiction of the United States. The Federal Kidnapping statute contains as one of its elements the requirement that the person abducted be transported in foreign or interstate commerce. The use of the term "foreign commerce" in this statute does not define the use of an object, but rather actual ac

48. 42 USC 2077, 2272.

49. 42 USC 2274 (a). 50. 42 USC 2074, 2094.

The fact that courts-martial are not vested with jurisdiction over capital Federal offenses which involve injury to private individuals or their property under the third clause of the general article does not represent a serious hiatus in the military law as jurisdiction over and punishment of such offenses is usually provided for under one of the punitive articles of the Code. Absent a specific article proscribing the offense, e.g., kidnapping, the criminal act could normally be punished in a Federal court as a violation of Federal law, if committed within the United States, or punished as a violation of foreign law in a foreign court if committed in a foreign country. A more serious problem is raised in regard to those Federal statutes which deal with the communication of national defense information or atomic secrets to foreign powers (18 USC 794 (a), 42 USC 2274(a)) by persons in the armed forces at overseas bases. The acts constituting these Federal offenses, if committed in peacetime, would violate none of the punitive articles of the Code. The commission of such offenses represent a great threat to national security, however, and constitute a direct injury to the government. Because members of the armed forces naturally deal with national defense matters and atomic weapons while stationed at overseas bases, the need for application of the judicial sanctions provided in these Federal statutes to such members of the armed forces is obvious. As Federal courts do not function in foreign countries, and as foreign courts would not take jurisdiction over such offenses, it is patent that courts-martial should be vested with jurisdiction over the acts proscribed by these Federal statutes when committed on foreign soil, if offenders in the armed services are to 51. For instance, take the following situations: A U.S. serviceman on vacation in Mexico City kidnaps an infant, leaving a ransom note, and boards a train bound for El Paso, Texas (transportation in foreign commerce). Before reaching the border the child is injured and abandoned. The offender proceeds alone and is later apprehended in the United States.

be punished. Because of questions related to extraterritoriality, however, court-martial jurisdiction over the acts proscribed in these Federal statutes, when committed on foreign soil, is not at all certain and in no case could the death penalty be adjudged under the general article for their commission. Certainly, there is no justification for the imposition of a lesser punishment for acts committed by a member of the armed forces overseas which, if committed by a civilian in the United States, could be punished by death. In view of this jurisdictional uncertainty and punishment limitation, it is believed that Congress should amend the Code to make the provisions and punishments provided in the Atomic Energy and Espionage Acts applicable to persons subject to the Code.

The main problem associated with prosecuting non-capital Federal offenses under the third clause of the general article is not in establishing jurisdiction over the offense, but in actually showing that a Federal offense has been committed. Many non-capital Federal statutes are intended to apply to acts committed only within the United States, or a certain locus, and if committed elsewhere, no Federal offense has occurred; other statutes have special elements such as the requirement that the act proscribed have some impact or relationship to interstate or foreign commerce and, absent this showing, there is no violation of the Federal statute. The fact that many non-capital Federal criminal statutes are so limited or composed, does not mean that members of the armed forces, particularly those stationed at bases overseas, enjoy a broad immunity to prosecution for many acts which, if committed by their fellow servicemen stationed in the United States or under slightly different circumstances, could be punished by courts-martial. The Court of Military Appeals has held that any act or conduct which does not actually violate a non-capital Federal statute, but which is service discrediting or prejudicial to good order and discipline, may be punished as a violation of clauses (1) and (2) of the general article, even though a violation of the Federal statute had been originally alleged. The broad power to punish acts or conduct which are service discrediting or prejudicial to good order and military discipline renders the power to punish acts which violate non-capital Federal statutes an unimportant jurisdictional grant. The inability of courts-martial to punish an act which does not meet either of the standards prescribed in the first two clauses of the general article can hardly be classified as an important hiatus in the military law.