Johnson v. Eisentrager, 339 U.S. 763 (1950) grew out of World War II and dealt with the question of what rights, if any, detained enemy aliens, who had never entered the United States, could claim. The Court split 6-3.
The Facts: The case involved petitions of habeas corpus from 21 German nationals being held in Landsberg Prison in Germany, then under U.S. control. They had been captured in China while supporting German forces following Germany's unconditional surrender on May 8, 1945, but prior to the surrender of Japan. These prisoners were tried and convicted of war crimes by a military commission sitting in China with the express permission of the Chinese Government. They were repatriated to Germany to serve their sentences. The German prisoners claimed that their trial, conviction and imprisonment violated Articles I and III of the U.S. Constitutition, the Fifth Amendment, and other provisions of the Constitution and laws of the United States, as well as provisions of the Geneva Conventions.
Procedural History: The trial court initially dismissed the case, but the Court of Appeals reversed, concluding that any person, including an enemy alien, deprived of his liberty anywhere under the purported authority of the United States, can challenge his confinement if he can show that such confinement violates any constitutional rights or limitations, and that where the deprivation of liberty occurs outside the jurisdiction of any district court, jurisdiction lies in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer. The Court reversed.
Majority Opinion: Justice Jackson, writing for the majority, rejected the claim that these individuals could claim the protections of the writ of habeas corpus. He stated "[w]e 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...." 339 U.S. at 768.
While acknowledging that the law no longer recognized every enemy alien as an outlaw, it did not abolish the distinctions between citizens and aliens, nor between friendly and enemy aliens, nor between those alien enemies who had submitted themselves to our laws by coming to the United States and those who have at all times remained with and adhered to enemy governments.
After setting aside the question of citizenship as a basis of jurisdiction, which the majority called "old when Paul invoked it in his appeal to Caesar[,]" the Court went on to write its most famous line from this case:
"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." 339 U.S. at 770-771.
While acknowledging that the Court had recognized several rights as belonging to non-citizens, the majority argued that in extending rights beyond the citizenry, the Court was at great pains to note that "it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." 339 U.S. at 771. The Court also distinguished peacetime and wartime in determining the rights of aliens even in the United States. It noted that when an alien is deprived of rights after becoming an enemy, it is the incident of war, not alienage, which is the cause.
The Court then pointed to the Alien Enemy Act of 1798, which was passed by an early Congress, who also helped write the Bill of Rights and noted that, while its companion pieces of legislation, the Alien and Sedition Acts were repealed by Jeffersonians, the Alien Enemy Act remained in place. But even this law, which allowed qualified access to courts, applied only to aliens physically present within the United States. At no time were nonresident enemy aliens accorded rights in federal courts.
The Court then extended this argument to say that in order to entertain this suit, it would have to hold that a military prisoner was 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." 339 U.S. at 777.
This the Court was unwilling to do. Unlike resident aliens, whose enmity may only be imputed by law, these prisoners were actual enemies in the hostile service of an enemy power. The Court also distinguished these aliens from those in Ex Parte Quirin, 317 U.S. 1 (1942) and In re Yamashita, 327 U.S. 1 (1946). In Quirin, the prisoners were located in Washington, D.C., at least one claimed to be a citizen, they were prosecuted by the civil authorities, and acted, arrested, tried, and imprisoned outside a zone of active military operations, martial law, or other military control. The petitioner in Yamashita was held in the Philippines, at the time an American possession.
The Court then turned to the petitioners' claims under the Fifth Amendment. While recognizing that the Fifth Amendment speaks of the rights of "any person," it read the Amendment as a whole and determined that the prisoners' claims would amount to a right not be tried at all for an offense against the armed forces. But if they could not be tried militarily under the Fifth Amendment, the Sixth Amendment would prohibit a civil trial, because it requires that the accused be tired by an impartial jury of the State and district in whcih the crime was committed. But since their crimes occurred outside any state, the Sixth Amendment would prohibit their trial.
The Court also objected that extending the Fifth Amendment to enemy aliens such that they could not be tried by military commissions would put those aliens in a better position then our own soldiers.
The Court also believed that the extraterritorial application of the Constitution was so novel that if the Founders had intended it, it would have led to extensive debate:
"Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one woud can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. The practice of every mondern government is opposed to it." 339 U.S. at 784-85 (internal citation omitted).
The Court concluded by rejecting arguments that the actions of the military commission were ultra vires, or beyond its authority. The Treaty of Versailles specifically recognized the right of the Allied Powers to try those accused of acts of war before military commissions. Furthermore, it is not the Court's business to challenge the legality, wisdom, or propriety of the President's determination on where to wage war, so any claims that the U.S. presence in China was improper were not within the Court's jurisdiction. Therefore, the Court denied the petitions.
The Dissent: Justice Black, joined by Justice Douglas and Justice Burton, dissented. Justice Black agreed with the logic of the Court of Appeals and noted that the Constitution promises equal justice under law for all persons coming within the ambit of U.S. power.
He takes great issue with the claim that no American court can consider the jurisdiction of a military tribunal to convict and sentence these prisoners. He noted that the Court had twice unanimously rejected the claim that enemy aliens cannot claim habeas corpus in Quirin and Yamashita. He argued that the fact that the writ was eventually denied by the Court in both cases does not detract from the holding that jurisdiction was available. Because the majority expressly disclaimed any conflict with these cases, he reasoned, they could not and did not deny that if these petitioners were imprisoned in the United States they would have jurisdiction. Thus, their status as enemy aliens must be meaningless.
Does that mean, Justice Black asked, that the United States can remove a prisoner's right to test the legality of his sentence based on where it chooses to house him? He finds no support for that claim in either of the earlier cases. He believes if territorial location is the key, the Court is adopting a dangerous precedent, one the Government embraced in its brief, arguing that even American citizens tried by military commission abroad could not claim habeas corpus. Even if the Court were to later find citizenship a sufficient ground, it would deny protection to non-belligerent aliens abroad.
Justice Black recognizes that a state of actual war would raise different questions and would not require the full range of constitutional protections be extended. But once surrender is achieved, the situation changes. While he would not extend the entire Bill of Rights to temporarily occupied territoy, he does not believe "the Constitution is wholly inapplicable in foreign territories that we occupy and govern." 339 U.S. at 797.
He viewed the question here as a very narrow one - in a Government of separate and independent powers, does the judiciary have the power to test the legality of criminal sentences imposed by the executive through military tribunals in a country which we have occupied for years? He believed it does. The Court must be able to ask whether the tribunal was legally constituted and whether it had jurisdiction to impose punishment for the conduct charged. This is not so great an inquiry as to give them favored status. Thus, the dissenters would hold that the courts can exercise jurisdiction whenever any United States official illegaly imprisons any person in any land we govern.