dissenting in Nos. 22, 21, and 37, and
concurring in No. 58.
Within the compass of “any treaty or agreement to which the United States is or may be a party” and “any accepted rule of international law,” Article 2 (11) of the Uniform Code of Military Justice makes subject to the *250Code, and therefore prosecutable by courts-martial for offenses committed abroad, all "persons serving with, employed by, or accompanying the armed forces” outside the United States and certain other areas.1
These four cases, involving persons and crimes con-cededly covered by the- Military Code, bring before us the constitutionality of Article 2 (11) as applied to (1) civilian service dependents charged with noncapital offenses (No. 22); (2) civilian ■ service employees, also charged with noncapital offenses (Nos. 21 and 37);2 and (3) civilian service employees charged with capital offenses (No. 58). In each instance the Court holds the Act unconstitutional. While I agree with the judgment in No. 58, which involyes a capital offense, I cannot agree with the judgments in Nos. 22, 21 and 37, in each of which the conviction was for a noncapital offense.
The effect of these decisions is to deny to Congress the povter to give the military services, when the United States is not actually at war, criminal jurisdiction over noncapital offenses committed by nonmilitary personnel while accompanying or serving with our armed forces abroad. I consider this a much too narrow conception of' the constitutional power of Congress and the result particularly unfortunate in the setting of the present-day international scene. To put what the Court has decided in proper context, some review of the past fate of Article .2 (11) in this Court is desirable. . ■ •
At the 1955 Term there came before the Court in Kinsella v. Krueger, 351 U. S. 470, and Reid v. Covert, *251351 U. S. 487, the question whether two army wives could be constitutionally convicted, under Article 2 (11), of the capital offense of first degree murder, committed while stationed with their husbands at military bases abroad. Initially a divided Court, in two opinions which I joined, upheld the convictions.3. In so holding the Court relied not upon the constitutional power of Congress “To make Rules for the Government and Regulation of the land and naval Forces,” Art. I, § 8, cl. 14, but upon In re Ross, 140 U. S. 453, the so-called Insular Cases, e. g., Balzac v. Porto Rico, 258 U. S. 298, and Art. IV, § 3, of the Constitution, respecting congressional power over Territories. These factors, in combination, led the Court to conclude that the’constitutional guarantees of Article III and the Fifth and Sixth Amendments did not apply to criminal trials of Americans abroad before legislatively established tribunals; that it was permissible for Congress to conclude that persons circumstanced as those women were should be tried before a court-martial, rather than a civil tribunal; and that such trials did not offend the fundamentals of due process.
The decisions in these cases were reached under the pressures of the closing days of the Term. See 351 U. S., at 483-486. Having become convinced over the summer that the grounds on which they rested were untenable, I moved at the opening of the 1956 Term that the cases be reheard, being joined by the four Justices who had been in the minority. See 352 U. S. 901, 354 U. S. 1, 65-67.4 *252Upon a consolidated' rehearing of the cases, the Court’s, original opinions and the judgments of conviction were set aside, a majority of the Court then holding that whether the convictions should stand or fall depended solely on the Art. I, § 8, cl. 14 power, and that such power could not be constitutionally applied in those cases. Reid v. Covert, 354 U. S. 1. There was, however, no opinion .for the Court. Four Justices joined in an opinion broadly holding that “civilians” can never be criminally tried by military courts in times of peace, id., at 3-41.5 Two Justices concurred specially in the result, on the narrow ground that Article 2(11) could not be so applied to civilian service dependents charged with capital offenses, explicitly reserving judgment, however, as to whether nonmilitary personnel charged with other than capital offenses could be subjected to such trials.6 Id., at 41-64, 65-78. Two Justices dissented, adhering to the grounds expressed in the earlier majority opinions.7 Id., at 78. And one Justice did not participate in the cases.8
Thus the only issue that second Covert actually decided was that Article 2 (11) could not be constitutionally appliéd to civilian service dependents charged with capital offenses. Nevertheless, despite the wide differences of - views by which this particular result was reached— none of which commanded the assent of a majority of the Court — Covert is now regarded as establishing-that nonmilitary personnel are never within the reach of the Article I power in times of peace. On this faulty view of the case, it is considered that Covert controls the issues presently before us. Apart from that view I think it fair *253to say different results might well have been reached in the three noncapital cases now under consideration. Without needlessly traversing ground already covered in my separate opinion in Covert, id., at 67-78, I shall give my reasons for believing that while the result reached by the Court in the capital case is right, its decisions in the' noncapital cases- are wrong.
■First. The Court’s view of the effect of Covert in these noncapital cases stems from the basic premise that only persons occupying a military “status” are within the scope of the Art. I, § 8, cl. 14 power. The judgment in Covert having decided that civilian service dependents were not within the reach of that power in capital cases, it is said to follow that-such dependents, and presumably all other “civilians,” may also not be tried by courts-martial in noncapital cases; this because neither the statute nor Article I makes exercise of the power turn upon the nature of the offense involved.
I think the “status” premise on which the Court has proceeded is unsound. Article I, § 8, cl. 14, speaks not in narrow terms of soldiers and sailors, but broadly gives. Congress power to prescribe “Rules for the Government and Regulation of the land and naval Forces.” 9 This power must be read in connection with Clause 18 of the same Article, authorizing Congress
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Thus read, the power respecting the land and naval forces encompasses, in my opinion, all that Congress may appropriately deem “necessary” for ciieir good order. It *254does not automatically exclude the regulation of nonmilitary personnel.
I think it impermissible to. conclude, as some of my brethren have indicated on an earlier occasion (see second Covert, supra, at 20-22), and as the Court now holds, ante, p. 248, that the Necessary and Proper Clause may not be resorted to in judging constitutionality in cases of this type. The clause, itself a part of Art. I, § 8, in which-the power to regulate the armed forces is also found, applies no less to that power than it does to the ether § 8 congressional powers, and indeed is to be read “as an integral part of each” such power. Second Covert, supra, at '43 (concurring opinion of FRANKFURTER, J.). As Mr. Justice Brandéis put it in Jacob Ruppert v. Caffey, 251 U. S. 264, at 300-301:
“Whether it be for purposes of national defense, or , for the purpose of establishing post offices and post roads or for the purpose of regulating commerce among the several States Congress has the power 'to make all laws which shall be necessary and proper for carrying into execution’ the duty so reposed in the Federal Government. While this is a Government of enumerated powers it has full attributes of sovereignty within the limits of those powers. In re Debs, 158 U. S. 564. Some confusion of thought might perhaps have been avoided, if, instead of distinguishing between powers by the terms express and implied, the terms specific and general had been used. For the power conferred by clause 18 of § 8 'to make all laws which shall be necessary and proper for carrying into execution’ powers specifically enumerated is also an express power. . . .”
See also United States v. Classic, 313 U. S. 299, 320.
Of course, the Necessary and Proper Clause cannot be used to “expand” powers which are otherwise constitu*255tionally limited, but that is only to say that when an asserted power is not appropriate to the exercise of an express power, to which all “necessary and proper” powers must relate, the asserted power is not a “proper” one. But to say, as the Court does now, that the Necessary and Proper Clause “is not itself a grant of power” is to disregard Clause 18 as one of the enumerated powers of § 8 of Art. I.
Viewing Congress’ power to provide for the governing of the armed forces in connection with the Necessary and Proper Clause, it becomes apparent, I believe, that a person’s “status” with reference to the military establishment is but one, and not alone the determinative, factor in judging the constitutionality of a particular exercise of that power. By the same token, the major premise on which the Court ascribes to Covert a controlling effect in 'these noncapital cases disappears.
Second. It is further suggested that the difference between capital and noncapital offenses is not constitutionally significant, and that if Article 2 (11) of the Military Code, as applied to nonmilitary persons, is unconstitutional in one case, it equally is so in the other. I think this passes over too lightly the awesome finality of a capital case, a factor which in other instances has been reflected both in the constitutional adjudications of this Court and in the special procedural safeguards which have been thrown around those charged with such crimes.
Thus, this Court has held that the Fourteenth Amendment requires a State to appoint counsel for an indigent defendant in a capital case, Powell v. Alabama, 287 U. S. 45, whereas in noncapital cases a defendant has no.such absolute right to counsel, Betts v. Brady, 316 U. S. 455. Again, the Congress in first degree murder cases has in effect put infliction of the death penalty in the hands of the jury, rather than the judge, 18 U. S. C. § 1111 (b); see also 60 Stat. 766, as amended, 42 U. S. C. § 2274 (a). *256and various States have similar statutes.10 Further illustrations of the same concern, about capital cases are the prohibition on acceptance of pleas of guilty in such cases,11 and,'in the appellate field, provisions for mandatory or automatic appeals from such convictions.12 ~ ■
In my Covert opinion I pointed out that the Government itself had in effect acknowledged that because of the gravity of the offensé, a treason case against a nonsoldier in time of peace could not constitutionally be held to be within the otherwise unlimited scope of Article 2 (11); and I expressed the view that the same constitutional limitation should obtain whenever the death penalty is involved. 354 U. S., at 77. I see no reason for retreating from that conclusion. The view that we must hold that nonmilitary personnel abroad are subject to peacetime court-martial jurisdiction either for all offenses, or for none at all, represents an inexorable approach to constitutional adjudication to which I cannot subscribe.
It is one thing to hold that nonmilitary personnel situated at our foreign bases may be tried abroad by courts-martial in times of peace for noncapital offenses, but quite another to say that they may be so tried where life is at stake.. In the latter situation I do not believe that the Necessary and Proper Clause, which alone in cases like this brings the exceptional Article I jurisdiction into play, can properly be taken as justifying the trial of nonmilitary. personnel without the full protections of an Article III court. See 354 U. S., at 77. Before the constitutional existence of such a power can be found, for me a much more persuasive showing would be required that Congress had good, reason for concluding that such a course is necessary to the proper maintenance of our military estab*257lishment abroad than has been made in any of the cases of this kind which have thus far come before the Court.
Third. I revert to the Court’s “status” approach to the power of Congress to make rules for governing the armed forces. How little of substance that view holds appears when it is pointed- out that had those involved in these cases been inducted into the army, though otherwise maintaining their same capacities, it would presumably have been held that they were all fully subject to Article 2 (11). Yet except for this formality their real “status” would have remained the same.
Although it was recognized in the second Covert case that a person might be subject to Article 2 (11) “even though he had not formally been inducted into the military or did not wear a uniform,” 354 U. S., at 23, I think that drawing a line of demarcation between those who are constitutionally subject to the Art. I, § 8, cl. 14 power, and those who are not, defies definition in terms of military “status.” I believe that the true issue on this aspect of all such cases concerns the closeness or remoteness of the relationship between the person affected and the military establishment. Is that relationship close enough so that Congress may, in light of all the factors involved, appropriately deem it “necessary” that the military be given jurisdiction to deal with offenses committed by such persons?
I think that such relationship here was close' enough, and in this respect can draw no constitutional distinction between the army wife in No. 22 and the civilian service employees in the other cases. Though their presence at these army overseas bases was for different reasons and purposes, the relationship of both to the military community was such as to render them constitutionally amenable to the Article 2(11) jurisdiction. By the same token, being of the view that the constitutional existence of such jurisdiction has not been shown as to civilian *258service dependents charged with capital offenses, I am equally of the opinion that i¿ cannot be found with respect to civilian service employees similarly charged. For these reasons I concur in the judgment of the Court in No. 58,
Fourth. The other factors which must be weighed in judging the constitutionality of Article 2 (11) as applied to noncapital cases have,-in my opinion, been adequately satisfied. I need not add to what was said in my concurring opinion in Covert, 354 U. S., at 70-73, 76-77, with reference to the matters which originally were adumbrated by my Brother Clark in his dissent in the same case. Id., at 83-88. Nothing in the supplemental historical data respecting courts-martial which have been presented in these cases persuades me that we would be justified in holding that Congress’ exercise of its Constitutional powers in this area was without a rational and appropriate basis, so far as noncapital cases are concerned. Although it is now suggested that the problem with which Congress sought to deal in Article 2 (11) may be met in other ways, I submit that once it is shown that Congress’ choice was-not excluded by a rational judgment concerned with the problem it is beyond our competence to find constitutional command for other procedures.
I think it unfortunate that this Court should have found the Constitution lacking in enabling Congress to cope effectively with matters which aré so intertwined with broader problems that have been engendered by present disturbed world conditions; Those problems are fraught with many factors that this Court is ill-equipped to assess, and involve important national concerns into which we should be reluctant to enter except under . the ■ clearest sort of constitutional compulsion. That such compulsion is lacking here has been amply demonstrated by the chequered history of the past cases *259of this kind-in the Court. Today’s decisions are the more regrettable because they are bound to disturb delicate arrangements with many foreign countries, and may result in our having to relinquish to other nations where United States forces are stationed- a substantial part of the jurisdiction now retained over American personnel under the Status of Forces Agreements.
I wóuld reverse in Nos. 22, 21, and 58, and affirm in No. 37.
To wit: “that part of Alaska east of longitude 172 degrees west, the. Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands.” » ■. •>
In No. 37 the Government, alternatively, relies ón the “War Power,” the offense- having been committed in the American Occupied Zone of West Berlin. Cf. Madsen v, Kinsella, 343 U. S. 341. Apart from whether or not the contention is available in light- of the course of the proceedings below, I do not reach that issue.
In addition to myself, the majority opinions, written by Mr. Justice Clark, were joined by Justices Reed, Burton and Minton 351 U. S. 470 and 487. The Chief Justice and Justices Black and Douglas dissented. Id., at 485. Mr. Justice Frankfurter filed a Reservation. Id., at 481.
The three remaining members of the original majority were in dissent, 352 U. S., at 902, Mr. Justice Minton having meanwhile retired. Mr. Justice Brennan, his successor, did not participate on the motion".
The Chief Justice, Mr. Justice Black (the writer of the opinion), and Justicés Douglas and Brennan.
Mr. Justice Frankfurter and myself.
Justices Clark and Burton.
Mr. Justice Whittaker, succeeding Mr. Justice Reed who had meanwhile retired.
The Fifth Amendment excepts from its protection “cases arising,” not persons, “in the land or naval forces.”
E. g., Mass. Gen. Laws Ann., c. 265, § 2; Miss. Code Ann., § 2536; N. H. Rev. Stat. Ann., c. 585, § 4.
E. g., N.' Y. Code Crim. Proc., § 332.
E. g., Cal. Penal Code, § 1239 (b); Ore. Rev. Stat., § 138.810.