Johnson et al. v. Eisentrager et al.

Court	Supreme Court, United States
Case number	339 US 763
Decision title	Judgment
Decision date	5 June 1950
Parties	Johnson, Secretary of Defense et al Eisentrager alias Ehrhardt et al.
Categories	War crimes
Keywords	detention, international armed conflict, jurisdiction, war crimes
Links	Judgment
Other countries involved	Germany

Summary

On 8 May 1945, Germany unconditionally surrendered obliging all forces under German control to immediately cease hostilities. Twenty one individuals, all German nationals, were tried and convicted by a United States military commission in China for violating the laws of war, namely by continuing to engage in, permitting or ordering military activity against the United States after the surrender of Germany. They were then transferred to a German prison and remained in the custody of the United States Army.

The twenty one individuals, represented by Eisentrager, petitioned the United States District Court for the District of Columbia arguing that their continued detention violated the Constitution of the United States and they demanded a writ of habeas corpus, that is the right to be brought before a Court. The District Court denied the writ arguing that the petitioners were located outside of its jurisdiction. The Court of Appeal of the District of Columbia reversed the decision. In the present decision, the Supreme Court of the United States reversed the decision of the Court of Appeal to hold that foreign enemy nationals, not resident in the United States, have no right to a writ of habeas corpus.

Procedural history

In August 1946, the appellant, Lothar Eisentrager, and the other individuals (all German nationals) whom he represents were served with charges of violations of the laws of war on the grounds that they had engaged in military activity against the United States after the surrender of Germany. They were tried and convicted by a military commission on 14 January 1947.

Since then the appellants have been imprisoned in Germany in the custody of the United States Army. The appellants petitioned for writs of habeas corpus in the District Court of the United States for the District of Columbia on the grounds that their detention is in violation of Articles I and III of the US Constitution, of the Fifth Amendment to the Constitution, of other provisions of the Constitution and laws of the United States and of the 1929 Geneva Convention.

The District Court dismissed the action for lack of jurisdiction.

The Court of Appeal for the District of Columbia reversed the decision to hold that any individual has the right of habeas corpus where they have been deprived of their liberty by an action of the United States Government provided that their detention is in violation of a prohibition of the United States Constitution.

The decision was appealed by Johnson, the Secretary of Defense and others.

Legally relevant facts

On 8 May 1945, the Germain High Command executed an act of unconditional surrender obliging all forces under its control to immediately cease active hostilities. Eisentrager and the 20 other Respondents allegedly continued to engage in, permit or order milutary activity against the United States after the surrender of Germany.

They were convicted by a United States Military Commission and transferred to Landsberg Prison, in Germany under the command of the United States Army.

Core legal questions

Are the appellants entitled to a writ of habeas corpus as a substantive right?
Did the Military Commission lack jurisdiction to try and convict the Respondents or did it act in any other way in excess of its lawful powers for the purposes of establishing a violation of the rights of the Respondents?

Specific legal rules and provisions

Section 2241 of Title 28 of the US Code
Articles I and III of the Constitution of the United States
Fifth Amendment to the Constitution of the United States.
1929 Geneva Convention relative to the Treatment of Prisoners of War.

Court's holding and analysis

Whilst it is a principle of the common law that foreign enemy nationals who are resident in the United States enjoy a limited right of access to United States courts, this does not extend to foreign enemy nationals residing outside the territory of the United States. The Respondents in the present case have never been on the territory of the United States; their capture, trial and imprisonment were all beyond the territorial jurisdiction of any court of the United States.

The interpretation of the Constitution and the Fifth Amendment held by the Respondents would amount to a right not to be tried at all for an offense against the United States armed forces since the Fifth Amendment would protect them from military trial and the Sixth Amendment from trial by civil courts. Such immunity from military trial would invest foreign enemy with more protection than United States soldiers.

There is nothing to demonstrate that the Military Commission lacked the jurisdiction to try and convict the Respondents or that it acted in excess of its lawful powers. It is well established that military authorities have jurisdiction, during or following hostilities, to punish those guilty of violations of the laws of war. Military Commissions are lawful tribunals to adjudge enemy offenses. Furthermore, the offense of which they were convicted, breach of the terms of an act of surrender, is well-established in conventional law and the Commission did not therefore exceed its powers for trying and convicting the Respondents of this crime.

Further analysis

L.R. Nelson, 'Territorial Sovereignty and the Evolving Boumediene Factors: Al Maqaleh v. Gates and the Future of Detainee Habeas Corpus Rights', University of New Hampshire Law Review, 2011, Vol. 9, pp. 297-325;
C.I. Keitner, 'Rights Beyond Borders', Yale Journal of International Law, 2011, Vol. 36, pp. 55-114;
S.I. Vladeck, 'The Problem of Jurisdictional Non-Precedent', PrawfsBlawg, 25 June 2009;
J.T. Thai, 'The Law Clerk Who Write Rasul v. Bush: John Paul Stevens’ Influence from World War II to the War on Terror', Virgina Law Review, 2006, Vol. 92;
C. Lane, 'Shanghaied', Green Bag 2D, Vol. 7, pp. 247-256;
T. Yin, 'The Role of Article III Courts in the War on Terrorism', William and Mary Bill of Rights Journal, 2005, Vol. 13, pp. 1061-1127;
C.M. Schumann, 'Bring It On: The Supreme Court Opens the Floodgates with Rasul v. Bush', Air Fore Law Review, 22 March 2004;
C.A. Alkire, 'Habeas Corpus: Empowerement of the Supreme Court and National Security Implications', Thesis presented to San Diego State University, 2011;
T.A.O. Endicott, 'Habeas Corpus and Guantanamo Bay: A View from Abroad', Oxford Legal Studies Research Paper, no. 6/2007 (2009);
A.D. Walen and I. Venzke, 'Detention in the War on Terror: Constitutional Interpretation Informed by the Law of War', ILSA Journal of International and Comparative Law, 2008, Vol. 14, no. 1;
M. Bahar, 'Nessity Creates the Rule: Eisentrager, Boumediene and the Enemy - How Strategic Realities Can Constitutionally Require Greater Rights for Detainess in the Wars of the Twenty-First Century', University of Pennsylvania Journal of Constitutional Law, 2009, Vol. 11, no. 2;
W.C. Nicholson, Homeland Security Law and Policy, Illinois, 2005. See especially pp. 451-458.

Instruments cited

Constitution of the United States, 17 September 1789.
1929 Geneva Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1927.
Office of the Law Revision Counsel of the U.S. House of Representatives, 1983, Code of Laws of the United States of America (United States Code).

Related cases

Court of Appeal of the District of Columbia, Johnson v. Forrestal, Appeal from the United States District Court for the District of Columbia, 15 April 1949.