. NMT05-T1228
Volume VI · Page 1228
| petition "for lack of jurisdiction," in that petitioner was not
confined within the territorial jurisdiction of the court. The decision (76 F.
Supp. 979, (1948)), rendered shortly before Ahrens v. Clark, 335
U. S. 188, was based upon McGowan v. Moody, 22 App. D. C. 148,
approved in Sanders v. Allan, 69 App. D. C. 307, Sanders
v. Bennett, 80 U. S. App. D. C. 32. In the Ahrens case, the Supreme Court upheld denial of the writ upon the ground that the petitioners' confinement was not within the territorial limits of the federal court to which they applied. Their detention was, in fact, within the jurisdictional area of another district court. It is here argued that the broad language in the text of the majority opinion in that case is qualified by a marginal note (p. 192) reserving decision as to a case where confinement was beyond the territorial limits of any district court. The dissenting opinion so interprets the notation. This court did likewise in an opinion filed April 15, 1949, in Eisentrager, et al., v. Forrestal, et al., No. 10053. There it is held that Germans in military custody in the American zone of occupation in Germany, serving sentences of a United States Military Commission, and thus in custody under or by color of the authority of the United States (28 U. S. C. 2241, formerly 28 U. S. C. 451, 452, 453), may sue for the writ in the District of Columbia, naming as respondents officials at the seat of Government, through whose direction the actual jailer may be required to act. In view of that decision we shall not discuss a basic question, which naturally arises, i. e., whether the writ of habeas corpus is available to an enemy alien on foreign soil. This case presents an additional question of a fundamental character. Was the court which tried and sentenced Flick a tribunal of the United States? If it was not, no court of this country has power or authority to review, affirm, set aside or annul the judgment and sentence imposed on Flick. Hirota, et al. v. General of the Army Douglas MacArthur, et al., Petitions Nos. 239, 240, 248, Misc., October Term, 1948, Supreme Court of the United States, decided December 20, 1948. We must, therefore, inquire into the origin of the Flick tribunal and the source of its power and jurisdiction to determine whether it was a court of the United States. Upon the surrender of Germany, the four victorious powers, the United States, Great Britain, France, and Russia, completed military control of the conquered land. Agreeably to plan, the armies of each occupied a separate zone. It was agreed that supreme authority over Germany would be exercised, on instructions from their Governments by the Commanders in Chief, "each in his own zone of occupation, and also jointly, in matters affecting Germans' as a whole." At the same time a "Control Council" was constituted composed of the four Commanders in Chief, as the supreme |
