Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936; 94 L. Ed. 1255 (1950)

Facts—Eisentrager, and twenty other German nationals were convicted of war crimes by U.S. military tribunals in China (with the consent of the Chinese government) for having passed on intelligence about U.S. forces to Japan after Germany formally surrendered to the U.S. in 1945. They were repatriated to Germany where they applied for writs of habeas corpus from Landsberg Prison where they were within U.S. control. A U.S. District Court dismissed the writ, but the U.S. Court of Appeals for the District of Columbia granted it.

Issue—Do U.S. civil courts have jurisdiction over enemy aliens overseas?

Decision—No.

Reasons—J. Jackson (6–3). There are no instances where courts in the

U.S. or elsewhere have granted writs to alien enemies not within their territorial jurisdiction. “Citizenship is a high privilege.” U.S. courts have also extended rights to resident aliens, but control over enemy aliens has been deemed essential since the Alien Enemy Act of 1798, and such aliens have been “constitutionally subject to summary arrest, internment and deportation whenever a ‘declared war’ exists.” Lawful resident aliens have sometimes been permitted to bring judicial actions, but “the non resident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.” These prisoners here are “actual enemies.” To grant jurisdiction here, the Court would have to extend 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 the laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” Habeas corpus requires the production of prisoners in court. This would be quite difficult for prisoners located in Germany. Neither Ex parte Quirin, involving German saboteurs, nor In re Yamashita, involving the trial of a Japanese general, requires such an outcome. The Fifth Amendment does not apply to all persons, “whatever their nationality, wherever they are located and whatever their offenses.” Granting habeas corpus relief would “extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies.” The power of military authorities to punish violations against the laws of war is well established. “Certainly it is not the function of the Judiciary to entertain private litigation—even by a citizen—which challenges the legality, the wisdom, or the propriety of the Commander-in-chief in sending our armed forces abroad or to any particular region.”

J. Black, dissenting. Courts do have jurisdiction of this case. There is no evidence that the Germans were spies or that they did anything other than obey the orders of their Japanese superiors. Ex parte Quirin and Yamashita

v. United States both establish that enemy aliens can have standing. It is dangerous to deprive the petitioners of habeas corpus “solely because they were convicted and imprisoned overseas.” The Court has to give due deference to commanders in the field, but “When a foreign enemy surrenders, the situation changes markedly.” The scope of military review is narrow, but it exists. “Conquest by the United States, unlike conquest by many other nations, does not mean tyranny.”