Earl Warren: Mr. Robinson, you may proceed.
Joseph S. Robinson: Just as this Court recessed, the half hour was about to stay in connection with the so-called 97% of the waivers, but the fact is that even with all those waivers, we have more American soldiers in jail in any other foreign country in the world. Imagine what we would have there if there were no waivers. And in the back of the appendix, the last appendix we have attached to our brief, Your Honors will note a directive that was issued from one of the commands, by one of the commands in the Japanese area, and the substance of it is to the effect that all men must be more than careful in driving their automobiles through the streets of Japan because on to say that you can be held criminally liable in Japan on the base of criminal negligence, even though it wouldn't give rise to civil liability in the United States. And it goes on to say that if you do not want to join the other men in the armed forces in the Japanese jails, we advice that you express sympathy to the family. And then, they quote from a decision of one of the Japanese Judges, where he imprisoned one of our men and he said the reason for the imprisonment was because he failed to express sympathy to the family after an unfortunate event. And so, waiver or no waiver, the fact remains that we have more difficulty with the Japanese nation insofar as putting our men into their jails than any other country in the world. In addition to that, we have similar contracts or agreements or executive arrangements, whatever we may wish to call them were some 50 odd nations and whether this Court knows it or not. A good many of them are secret. Nobody could see them, no soldier overseas, no what -- with the States in that particular country knows what his rights or liabilities are insofar as jurisdiction is concerned. They are secret even the Senate and the Congress of the United States had difficulty trying to obtain them. As one Congress lady put it, I really challenged the right of the State Department or the Defense Department to make dealings with Americans which -- to make -- to make arrangements dealing with Americans, which have anything in them or any policy back of it or any desire to conciliate or go around which would serve to prevent those from knowing the exact terms, prevent the American people from knowing the exact terms. I cannot understand or accept the necessity of secrecy. And when the government officials of these hearings will question this that -- that these documents, they used the time-worn phrase. They are classified and we can supply no information. Now, imagine, a soldier in the United States Army assigned to some far off land and being told that he may be subject to the jurisdiction of a foreign -- of the land which he -- which he stationed without he or his lawyer or anybody else being able to know what secret arrangement the State and War Departments made with the Government wherein he is stationed. In the case of the Japanese agreement, it is not secret as such. But how did the Japanese arrangement come about? When the NATO Status of Forces contract was submitted to the Senate, and by the way it was submitted to the Senate almost three years after the agreements were made and many Senators questioned why it was being submitted at that time, the Senate, when it ratified, specifically stated that the NATO Status of Forces Agreement shall not be a precedence for similar agreements in any other country. That's not the exact language but that's the text of it. And they also reserved, they also made a reservation that in any case where a United States soldier may be -- may be deprived or denied of any constitutional right that he should not be turned over to a foreign government for trial. Those were the two mandates which the Senate expressed at the time it ratified or consented to the -- the NATO Status of Forces Agreement. At least insofar as the NATO countries are concerned, the -- they are the European countries whose system of justice is more nearly akin to ours than some of the Asiatic countries. But the Congress, nevertheless, imposed those two restrictions on any further action insofar as making these agreements with other countries who are concerned but that did not stop the men who were making them. They continued to make them, some secret, others exposed with all countries in the world and when they were asked why, they were asked by the congressional committees, "Why did you do this? Why did you surrender this jurisdiction?" They said, "It was the best we could get." And then, they were asked, “Were there any country say that they would not permit us to station our troops in that country in the event we did not surrender the jurisdiction?” There was no answer. It was -- it was asked at least 10 or 15 times by a various Congressmen and Senators, as to whether or not any country laid down as a condition to the United States having bases or troops within their area, whether we must surrender jurisdiction over our own men and no country was pointed to as having made that demand on the United States. And so, these agreements were made. First, they were wholly unnecessary. Secondly, they violated our -- the international law. And thirdly, they are unconstitutional. And before getting into the unconstitutional question, I want to state that these very officials who point to the justice of foreign countries as being excellent in something which our men must endure when they're serving in the armed forces that these very officials reserved immunity to themselves, the soldiers, they said, may submit to the jurisdiction of a foreign country, but we the officials or anybody connected with the NATO organization, and this is not the group that's in the diplomatic status, they said, we for ourselves will not submit to the foreign jurisdictions. And I think it would be enlightening to the Court to know the theory on which one group of our -- of our citizens were subjected to foreign jurisdiction and on what theory the other was not subjected. And these are questions asked of Mr. Rankin by -- by Congressman (Inaudible) page 352 of the congressional hearing record to which I have referred before. Mr. (Inaudible) From the standpoint of Attorney General's Office, couldn't the same range be made with respect to the military. I'm referring to the arrangements made for the NATO employees. Mr. Rankin "Well, it is a different right when you don't have the right of the individual because he is not forwarding the interest of the Government." Mr. (Inaudible) -- I'm skipping several questions and answers because they deal generally with the subject. Mr. (Inaudible) “But wouldn't you consider the presence of our forces there as furthering also the national interest and wellbeing the same as our diplomatic people?” And someone else answered and said, "Yes, I do," but so and so said something else. Then, there were further questions asked to Mr. Rankin as to how these agreements came about and I'll read two or three questions and answers. Mr. Bentley “If I may resume the question with you again, Mr. Rankin, I am still trying to see if we can't get a definite answer to this question. The Bill of Rights and the Constitution does not follow members of the armed forces overseas.” Mr. Rankin “That's right.” Mr. Bentley “My contention is, sir, that the Military Justice Code and the Uniform Code of Military Justice, likewise does not follow them overseas under the Status of Forces Agreement.” Mr. Rankin “It does as much as it does within this country.” Mr. Bentley “Let's not make a comparison, sir. Let's leave it to the -- let's leave it overseas. What would be -- what -- would that be correct?” Mr. Rankin “I can't answer that yes or no. As long as they are on duty, the code follows them throughout the world.” Mr. Bentley “If they are uniformed and not on duty, it does not follow them, would that be correct?” “That would be correct.” And so, we have testimony given to the effect -- a man in uniform who was not on duty is not subject to our Military Code and we have the statement made in this record that if he is on duty, he is subject to the Military Code. Now, this case, the facts -- in this case, the facts are stipulated. It was stipulated that Girard was on duty. It was stipulated in the court below that he was in the performance of duty. The code provides that if there was any issue of fact in the habeas corpus proceeding, the petitioner must be produced to give any necessary evidence in order to avoid Girard from being -- being brought to the United States to give evidence. They stipulated that whatever was done, the acts, which he committed which gave rise to the offense was committed in the course of official duty. Now, testimony has been given before the Senate, before the Congress that if a man is in the course of the performance of official duty that even under these agreements, assuming for the moment they are valid, he may not be tried by any other Government. Now, to turn to how the Japanese agreements came into effect. There was this security. First, there was the peace treaty, then there was the security pact. The security pact recites in this preempt that in order to protect Japan, not for the benefit of the United States, but in order to -- to protect Japan, the United States would be permitted to retain certain bases and stations, certain of its armed forces there that in connection with the -- I think agreements for the disposition of forces, I have to get the exact language, an administrative agreement would be -- would be entered into. An administrative agreement was entered into. It dealt with the civic matter of the disposition of forces, facilities, rights and so forth, and in addition, had contained there in the clause that exclusive jurisdiction over our armed forces shall continue to remain within the United States. And there was the added clause that in the event, the NATO -- the NATO Status of Forces Treaty should go into effect that the option of Japan, the United States may enter into a similar agreement with Japan or would enter into a similar agreement with Japan. The negotiations leading up to this similar agreement, we do not know, but we do know that a so-called protocol was then entered into, which completely reversed the situation as it had been under the administrative agreement. The Senators of the United States never was called upon and never had the opportunity of seeing this protocol. It was not in existence when they ratified the NATO Status for Forces Agreement with the two reservations. And after the protocol was drawn, it still was not sufficient to want the transfer of jurisdiction from one nation to another. And so, another instrument was entered into, called Agreed Views. These were the officials in -- in Japan, Japanese officials and the American officials sitting down and agreeing to certain views as to how or as to what the meaning of the protocol was and that wasn't sufficient. They then had some minutes of the meetings, which they attached to the protocol and said, that is a part of the protocol. Followed by that -- thereafter, there was the -- a circular which was issued and all these documents put together, the Government now contends and gave the executive department of this Government the power to strip a man who was in a duty status of the protection of the United States Code -- of the United States Military Code and turn him over to the Japanese Government for trial. And it was admitted in a -- a special hearing that was held on the Girard case on June 15th, I think it was of this year before a subcommittee of the Senate, that the power to make the determination as to who would exercise jurisdiction was in Japan and not in us, that the papers were so drawn that while the United States did protest that jurisdiction, this was jurisdiction that was -- went out assuming now that the -- the agreements were valid, that nevertheless the ultimate decision as to where the jurisdiction would lie was in the Japanese Government. And finally, in this particular --
Hugo L. Black: Do you -- do you dispute that interpretation of the protocol if it is valid?
Joseph S. Robinson: Yes, sir. The United States has taken the position that because of the documents which followed the Agreed Views and the -- you see the protocol was the third step. The first step, the -- then -- then came the Agreed Views, which was the agreement between the -- the Government -- the Government representatives agreed to in a roundtable of conference and then the menace of that agreement and they claimed pursuant to those minutes attached to the Agreed Views and then the circular, which was issued thereafter that the power was vested in the Japanese Government alone to make the determinations to whether or not it was an on duty or off duty case. And in the brief, there's a reference to the fact that the Turkish Government has taken the same position in -- in another case under a similar arrangement but it did not flow from the protocol as such. The claim is that it flowed from the Agreed Views document, which they say is law. On what theory, I don't know, but they say that is the law and therefore, abiding on us.
Hugo L. Black: Why do you say it does not flow from the protocol assuming its validity?
Joseph S. Robinson: The right -- there -- there as -- if I recall correctly, Your Honor, there is nothing in the protocol which gives the right to -- to waive. I think it comes in the Agreed Views. I -- I'm not sure. There were so many documents here. What does the protocol say on this? I'm -- I'm sorry. Mr. Carl tells me that it does flow from the protocol but then they changed the definition under Agreed Views. They changed the definition of what official duty meant.
William O. Douglas: I'd like to conform (Inaudible)
Joseph S. Robinson: I don't know.
William O. Douglas: You don't know?
Joseph S. Robinson: I don't know. There -- there are so -- there are so many -- there are so many documents here that I -- I couldn't answer all. I just -- I just don't know.
Hugo L. Black: Then, if you assume that you admit and agree that the right -- that Japan tried the soldier close from the protocol, your problem is as to the validity of the protocol.
Joseph S. Robinson: But I do not agree that the protocol --
Hugo L. Black: I understand that you do not --
Joseph S. Robinson: Yes, sir.
Hugo L. Black: -- and you haven't discussed it yet, I don't (Voice Overlap) --
Joseph S. Robinson: That's right. That's right, sir. Now, let -- let us turn to the constitutional issue involved. The Constitution says that the power to --
Hugo L. Black: Did you -- did you challenge it only on a constitutional basis?
Joseph S. Robinson: No, sir. We challenged it on the interpretation. That's in -- that's part of the brief but the time is running out, Your Honor. I -- I won't be able to cover all the ground. We challenged it on the constitutional --
Hugo L. Black: But it seems to me like if -- if I may be permitted to say it --
Joseph S. Robinson: Yes, sir.
Hugo L. Black: -- because if that's the point that you need to cover or somebody needs to cover on your side whether or not that you say you challenged its validity, you challenge it on the basis that the statute does not authorize it or the treaty does not authorize it --
Joseph S. Robinson: Yes, sir.
Hugo L. Black: -- that's to be discussed.
Joseph S. Robinson: That's covered also.
Hugo L. Black: And if you discuss it on the basis of its unconstitutionality, but after you point out why you think it's unconstitutional.
Joseph S. Robinson: That's what I'm -- that's what I'm going to. The -- the treaty doesn't authorize it because the NATO Treaty that the Senate consented to had the reservations that it shall not be a question for any further treaties of -- of similar nature. And even if as Mr. Rankin says, “The agreement for jurisdiction, the Administrative Agreement, was within the knowledge of the Senators who voted to ratify the NATO Agreement that -- that particular agreement held exclusive jurisdiction in the United States. And then when the protocol was entered into, which was never brought to -- to the Senate and it was entered into by the Ambassador, the American Ambassador in Japan, he simply reversed the situation as it was and conferred almost exclusive jurisdiction on the Japanese Government with the exception of this on duty cases and one of two case involving security and property and persons of the United States. But --
Felix Frankfurter: Did you say that the Administrative Agreement, they had exclusive jurisdiction in the United States?
Joseph S. Robinson: Yes, sir.
Felix Frankfurter: But it also said such jurisdiction made in any case be waived by the United States.
Joseph S. Robinson: I understand that, Your Honor.
Felix Frankfurter: We're they qualified and part --
Joseph S. Robinson: Pardon, sir?
Felix Frankfurter: An exclusive jurisdiction that may be waived is something else than an exclusive jurisdiction period.
Joseph S. Robinson: Well, the -- the waiver raised an entirely different issue whether or not the part respecting in waiver is legal or constitutional.
Felix Frankfurter: Well, that -- that's the subject to which I think that Justice Black in part of it asked you to address yourself. All I'm suggesting is it is not correct to say that if one is restricted to the Administrative Agreement that if the United States exclusive jurisdiction --
Joseph S. Robinson: I'm -- I don't --
Felix Frankfurter: -- is to qualify the exclusive jurisdiction.
Joseph S. Robinson: I don't recall, Your Honor, whether there's anything in there about waiver or not if Your Honor has read it.
Felix Frankfurter: But it -- it is in there.
Joseph S. Robinson: I -- I don't recall.
Felix Frankfurter: You're not supposed to read it.
Joseph S. Robinson: I don't -- Your Honor, I've read so many documents for the last two weeks. I just can't remember the exact words of any specific document. I'm trying to generalize as best I can for memory what the particular document says and I'm sure that it says that the exclusive jurisdiction in the United States and if Your Honor says, it's provisions for waiver in their way, I -- I don't recall it.
Felix Frankfurter: I have no inside knowledge, except for the documents given.
Joseph S. Robinson: I -- I don't recall. What -- what did that thing say? Anyhow --
Hugo L. Black: Well, assuming that there is a provision for exclusive jurisdiction, which can be waived in the Administrative Agreement, do you challenge the validity of the Administrative Agreement on the ground that it was not authorized by the Senate and the Treaty?
Joseph S. Robinson: Yes, sir, and all the documents that follow, we challenged on this basis and we have to go back to the fundamental law. The Constitution says that the right to make rules and regulations for the Government of our armed forces is in the Congress. That means the Senate and the House of Representatives combined, a Congress has enacted a code, which is to govern our armed forces insofar as discipline is concerned. And they put a clause in there to the effect that this code -- I don't recall the words -- the words in substance out of this Code shall govern in all parts of the world. It was obviously in the intent of the Congress who were vested with constitutional power to declare crimes in the modes of -- of the procedure for its punishment and the modes of appeal and the types of evidence, all of which is set forth in the United States Code in the -- the -- that is the United States Military Code, in the manual for courts-martial which is an adjunct to the Code states what the jurisdiction is. It says it's in -- it's in the court-martial. We take the position that when the Constitution vested that power in Congress, that is the House of Representatives and the -- the Senate combined, that both the executive -- that the executive alone and the executive combined with the Senate could not take any action which would take away the prerogatives of the -- of the Congress which the Constitution vested in them. When it says that this Code shall govern our armed forces all over the world, it meant exactly that. It prescribed the character of the crimes which will be punished. It -- it prescribed the procedure that would be gone through. It refers to -- as this Court well knows, it's very detailed on the whole subject.
William J. Brennan, Jr.: What in view of that would be so that it says that a member of the armed forces accused of an offense against civil authority may be delivered upon request to the civil authority at the trial.
Joseph S. Robinson: That's correct. Historically, Mr. Justice Brennan, that came about in this way if I recall correctly. Originally, under the old Articles of War, this particular section had reference to delivery to the civil law authorities within the continental limits of the United States only. And then a case arose where an individual left Germany and returned to United States. At that time, Germany was under, more or less a civilian administration as against the former military occupation, we have the Allied High Commission functioning there, and the subject matter of being able to -- to take this individual back to Germany and deliver him to the civil law -- to our civil law authorities in Germany for trial there came up and the limitation that was contained in the old Articles of War, limiting the right to deliver to areas within continental limits of the United States only was taken out. The historical background of that enactment will indicate to Your Honors that it -- it was not the intent of the Senate to give unlimited political power or discretion in the President or the executive to transfer any person or to take away the protection of the Military Code from anyone of our men in the armed forces. And I say this that if in fact it is interpreted that that particular section -- I think it's Article XIV, I'm not sure, Your Honor, at that particular section authorize or permits the executive to strip a soldier of his -- of his protective rights under the Military Code that that section is unconstitutional because the -- the -- there is no procedure established for so doing, one. Secondly, no branch in the Government or even the three branches of the Government combined have it within their power to take the constitutional rights away from any individual.
Felix Frankfurter: If a soldier -- if a soldier commits a crime in Germany while in -- in Germany and then comes back to the United States, can the United States extradite him to Germany even without an extradition treaty?
Joseph S. Robinson: Your Honor, that came up in the Mobley-Handy case. That's the case I have --
Felix Frankfurter: Come up in several cases, come up again and again.
Joseph S. Robinson: It was not passed upon by this Court. I don't not think.
Felix Frankfurter: Yes, on the fact of case.
Joseph S. Robinson: Pardon, Your Honor?
Felix Frankfurter: The fact -- the famous factory case of --
Joseph S. Robinson: I don't -- I don't recall that one. I don't think --
Felix Frankfurter: (Voice Overlap) can he do that?
Joseph S. Robinson: I don't think so, Your Honor.
Felix Frankfurter: You don't think so.
Joseph S. Robinson: I don't think so.
Felix Frankfurter: That was settled very early in this country's history in the case that it was much debated in the House --
Joseph S. Robinson: I don't -- I don't --
Felix Frankfurter: -- of Representative and Senate, the famous Robbins case --
Joseph S. Robinson: If -- if --
Felix Frankfurter: -- as against the claim of jury trial and all the rest of it even without an extradition treaty.
Joseph S. Robinson: Well, we have extradition treaties, of course, to cover the Senate matter of transporting citizens from one nation to another. The Valentine case in which Your Honors are unquestionably familiar, laid down the landmark rule that the executive did not have the power to transfer an individual out of this country and I think in that case, French citizens were involved. To the French Government upon the demand of a latter Government accept that an extradition treaty so specifically provided. In that case, the opinion was written by Chief Justice Hughes, my recollection is that the -- the holding is to the effect that even if there were discretionary power vested in the President that unless there was a mandate or a decree of the Congress whereby he was authorized to act that the individual could not be turned over. In the Valentine case, the individual bought -- brought a petition for habeas corpus and the power of the President to transfer him, even under an extradition treaty was tested, and the individual was sustained, the power was not there. In another case which is referred to in the brief, an alien, a Mexican that came into this country -- I don't recall the exact phrase, but he was here in the present figure that -- decided that he was detrimental to the best interest of the United States, I think he was in Texas, and an order was issued in the name of the President to the commanding officer that that man be held in confinement. The argument was and he was acting as Commander in Chief, the same -- advance in this case, he was arguing -- he was acting as Commander in Chief of the armed forces and he can hold anyone in confinement or act as he surfeit with the individual, particularly an enemy in this country or not an enemy, a -- an alien. In that case, the District Judge who wrote the opinion stated that it was, well, it had been on the bench a long time and he felt that he was being called upon to perform one of the most difficult duties he had during the period he was on the bench. He nevertheless, directed that the individual would be free holding that even a -- an arrest that the direction of the President would not be binding on the individual. That is for the courts to decide whether or not there is any law by which an individual may be held in confinement. I -- I see I'm running -- I'm running out of my time. I want to touch, if Your Honors please, upon the subject matter of what constitutional rights are taken away. First of all, there's not only the question of -- of due process. There is the question of the equal protection of the laws. Let's assume that in this particular case, instead of an individual, a small G.I. like Girard was involved. It was an officer of high rank or even our own Commanding General in the Far East Command that he was in the Camp Weir area and in the course of attempting to scare someone from the military post, a -- a trespasser who was there, and by the way, this was a trespass because there was signs there that no -- no foreigners were permitted to come on the area, no -- note after his nozzle -- the bullet come out again. He accidentally killed someone. To me, it would be the most humiliating sight to imagine that one of -- to imagine one of our high ranking officers be in trial before the civilian courts of a former enemy nation and there is nothing in these agreements that they're valid that would prevent the Japanese Government from making demand that they'd be permitted to try, our general or some high official in -- in the military who happened to be stationed in the area, unless the President of the United States in that case would agree not to waive. And then, we have a situation where a political decision may deny to a person the equal protection of the laws. In the one case because of the rank, the individual would not be turned over. In the other case because he is a lowly G.I., he is turned over. And yet, if -- what the appellant -- what the appellants in this case contend and their exact -- their exact contentions so there'd be no -- no question about any -- any misquotation, they say, “The decision of the United States not to exercise jurisdiction in this case is a discretionary decision of the Executive Branch and the conduct of foreign affairs and the military defense of the United States and as such is a political decision not subject to judicial review.” We don't think that any individual, any American citizen can be taken outside the pail of the rights that are guaranteed by the Constitution by a political decision. They say it was done hereby a political decision. That's not our words. Those are the words of the -- of the appellants. And when you get to a point where individuals' rights are determined by political decisions of the Executive Branch of Government, I think, we are embarking upon a dangerous road to the destruction of the constitutional rights of all persons. The -- the Constitution as has been said not only by this Court and Mr. Justice Frankfurter doesn't -- as of the opinion is not the opinion of the whole Court, which is true, but by the highest military court in the United States, they had this subject before them, the case I referred to in the brief, where they said constitutional safeguards follow our soldiers wherever they are in any land and they pointed out how impossible it was for a man in our military service to be afforded the same protection in the courts of a foreign country as he -- as he is in this country. The Government points to seven rights which they say an individual has when he's on trial on foreign countries being the equivalent of constitutional rights, the right to a speedy trial. I think Mr. Justice Nolan -- Senator Nolan commented on that. He said, “Even -- even a Communist can be entitled to that” and he said the right to be -- to -- to have a copy of the charges. Well, it is a fact that in one case it's come up. The charges were -- in Japan, the charges that were served upon the man the very day he appeared in Court. They then referred to the -- I'll -- I'll give you the seven rights which we'll say the equivalent of all our constitutional safeguards. They say three witnesses must confront the accused. Well, actually in practice, we know so in France, I don't know whether it's so in -- in Japan, but witnesses do not in every case, every criminal case confront the accused. A dossier is made up by the magistrate in -- in the court below and it's handed up to the higher judge and the accused is brought in. The -- in any event, even if he is confronted by the witnesses, what good would it do? He doesn't know what this man is saying. There were no rules of evidence as we understand that prescribed what he may say then they referred to -- a right a compulsory process but they add, “If the witness is within the jurisdiction.” But what if a man is charged with murder and the witness happens to be one -- one mile all over the borderline? There's no way of getting him. And under certain part -- under the laws of certain countries and again I don't know whether it's true in Japan or not, you may produce a witness but then you can't make him testify. Here, we have our normal court procedure which requires a witness to testify when you bring him and you may compel him to testify. That is not so in all the countries of the world. Then, they say there is the right of legal representation of one's own choice. If an example of what happened in this case, any criteria of the right to which -- in which they were referred to here, a Japanese counsel was appointed for Girard and when he discharged him, he publicly announced that he was not going to be discharged and if he was, the Court will reappoint him anyhow. That is another right, the appellants point to as being guaranteed this individual insofar as foreign courts are concerned and then he has the right to have an interpreter if he wants it and a right to communicate with his own Government. Those are the seven basic rights to which the appellants referred as the -- as being the -- the same as constitutional safeguards. And if Your Honors uphold the power of the present act in this case, what is there to stop him from stripping away these rights and saying, "No, we won't give him that. We'll give him one right when he's in solitary confinement. We'll let someone visit him once a year." If the power is there, he may go that far. The question here is one of power, what are the limitations upon that power? The Government officials when questioned on this subject matter of these so-called rights that were the substitute -- substitute for our Bill of Rights, they -- they asked this witness if he was an Assistant Secretary of Defense. They asked him the specific -- I'll be in just a moment. Yes, Senator Ferguson asked Mr. Nash who is an Assistant Secretary of Defense and who said that -- in his own testimony, he was one of the top lawyers in connection with these agreements. Senator Ferguson “Do you consider the presumption of innocence does not enter into due process?” Answer “I think that if a man has a chance to prove his own case, to develop his own case and prove his own facts that that would be all, it would be absolute required in elemental justice and equity. Yes, sir.” Now, there we have the views of an Assistant Secretary of Defense given before the Senate as to what the rights of an individual are before a foreign court. We take the position that there has been a usurpation of power in connection with the execution of these agreements that the power to make rules and regulations for the Government of the armed forces of this nation vest -- is vested solely in the Congress. And that the President may not take that -- that right away. The President and the Senate combined may not take that right away, but those are rights -- that there were rights, which are guaranteed under the Constitution and while it has been said many times, the Constitution does not extend beyond the territory limits of the United States. It would appear that the more recent opinions of this Court as to the effect that it does follow the individual under certain particular circumstances. There are cases when it would not, a tourist going to France, of course, or in any other -- to any other country is not protected by the Constitution. He is there with his own volition. One of the government witnesses said that he could see no difference between a tourist going to France and a soldier who is drafted into the armed forces being ordered to go to France that they are both equally subject to the local jurisdiction. And then, one question further on it, they were asked, “Well, how about -- how about an offense when a man is on duty?” And this exact case -- the exact situation was used as an example by one of the witnesses. They said that if a man was on --
William O. Douglas: Where are you reading from now?
Joseph S. Robinson: Extracts of the testimony from -- by government witnesses.
Hugo L. Black: What page of the brief?
Joseph S. Robinson: I -- I was looking for it but I didn't have the page. I think the -- the statement was made -- oh, at page 5A of the appendix, Your Honor. Senator Ferguson asked the question to Mr. Fargo. I am interested in the point that Mr. Fargo made with respect to exclusive jurisdiction on military reservations. There's another subject now. There's an area of jurisdiction. Mr. Fargo “That is not right. If he is on army post engaged on duty, we have exclusive jurisdiction.” That's what the Senate was told and they were told many other things to which reference have been made before and reference has made in the brief but I -- I would not -- I will not have time to further go into the subject. I want to spend a few minutes if Your Honors --
Speaker: Could I ask you a question to that point?
Joseph S. Robinson: Yes.
Speaker: As I understand your argument, it's premised basically on the proposition that as a matter of international law as you call it, the United States had exclusive jurisdiction in Japan over its own troops.
Joseph S. Robinson: That is correct, sir.
Speaker: Violation of Japanese law, violation of American law, violation of both Japanese and American laws --
Joseph S. Robinson: That's correct.
Speaker: -- as a matter of law --
Joseph S. Robinson: That's correct.
Speaker: -- as a matter of international law and I suppose in that premise, it hasn't accepted what becomes to your argument.
Joseph S. Robinson: Well --
Speaker: The constitutional argument.
Joseph S. Robinson: It does -- it does not necessarily fall.
Speaker: Well, what happens to it?
Joseph S. Robinson: If -- if the premise that we had exclusive jurisdiction is not accepted, then we can fondle with the question as to who has the power to strip an American citizen of constitutional rights.
Speaker: What is there in the Constitution assuming that your premise is wrong that forbids the trial of an American abroad for a violation of the laws of another country?
Joseph S. Robinson: The Articles of War, the so-called Military Code. The -- the individual, the citizen didn't go there voluntarily. The citizen is subject and I refer to the specific -- this particular case. Now, he is subject to the Uniform Code of Military Justice and nobody except possibly the Congress with the approval of the President could take away his right under the Uniform Code of Military Justice.
Speaker: But how can the United States Constitution take away the right of Japan to try one of our citizens where an infraction of Japanese laws committed by a citizen, an American citizen in Japan?
Joseph S. Robinson: Japan, first of all, this is a subject matter, which is reserved to Mr. Carroll, would not have jurisdiction over the Camp Weir area and Japan even under these agreements assuming they are violently executed and constitutional did not have jurisdiction over this particular offense.
Speaker: Oh, you mean it doesn't come under the agreements.
Joseph S. Robinson: Assuming the agreements are valid, Your Honor. Japan did not have jurisdiction under the -- under the agreements nor did Japan have jurisdiction over the Camp Weir area. I'm going far off field because that's a subject that Mr. Carroll is going to take up both the personal immunity and the territorial immunity. I want to raise just one more civic and that's -- that is in connection with our cross-appeal. The action -- the proceedings were brought for a writ of habeas corpus. The District Court granted a substantial part -- granted relief but not the specific relief asked for. The relief asked for was that this man to be discharged from custody. It may be said that we obtained all that we would want under the circumstances but that is not correct. The fact is this man is still held in custody even though there has been an injunction issued against the government officials from transferring him to the foreign government. He is not on the court-martial charges. There is no reason why he shouldn't be free to go as any other soldier is free to go and move about. Now, the argument of the respondents in answer is two-fold. First, they say that the Court had no jurisdiction issued therein, the same old errands against the clock coming up from the Eisenhower Forest, all of this Court is very familiar with.
Charles E. Whittaker: May I ask you a question in that connection, Mr. Robinson?
Joseph S. Robinson: Yes.
Charles E. Whittaker: Suppose that you were free too and did leave Camp Weir and were then seized by the Japanese --
Joseph S. Robinson: It would not be good.
Charles E. Whittaker: -- would we have this question at all then?
Joseph S. Robinson: No, sir. It would not be good. That -- well, the -- the writ requires them to deliver him before the Court. That's here in Washington. We applied for the writ to bring him before the Court. Now, the Code says that if there's any issue of fact even on the hearing, they must produce them before the Court. What they are saying in substance, Your Honor, I might follow the logic and the -- and the legal reasoning of what you've said, what they are saying is what Hitler said when he put thousands and thousands of people in jail saying they were there in protective custody.
Charles E. Whittaker: I --
Joseph S. Robinson: That's what they're doing --
Charles E. Whittaker: I don't think --
Joseph S. Robinson: -- in saying --
Charles E. Whittaker: -- I have made my question clear. You sought and obtained an order prohibiting the United States from turning over Girard to the Japanese, didn't you?
Joseph S. Robinson: Actually, it was the writ of habeas corpus, that's correct, (Voice Overlap) --
Charles E. Whittaker: (Voice Overlap) -- all right. Now, if the -- if he went outside this camp and were taken into custody for the Japanese, wouldn't that -- wouldn't they then try him?
Joseph S. Robinson: Oh, sure but that's --
Charles E. Whittaker: He wouldn't have this case, would he?
Joseph S. Robinson: He -- he wouldn't do that but he is not only restricted to the camp area, Your Honor. It's one thing to stay within a camp area voluntarily and it's one thing to have a police officer breathing down your back everywhere you move. According to the press, he had police officers with him when they got married the other day. That's what we're complaining about and we say the position of the Government, they have a right to hold a man in protective custody. It's not for them to say whether a man wants to be protected. We don't assume that Girard will leave this area, this sanctuary that he has this -- this area within Camp Weir and move outside where the Japanese can seize him.
Felix Frankfurter: Your whole argument thus far was that he must be tried by court-martial, is that right?
Joseph S. Robinson: No, sir.
Felix Frankfurter: Do you mean, neither -- neither Japan nor the United States has -- has any means of trying him for this --
Joseph S. Robinson: Yes, this Court -- the Code -- the Code would follow him but there's nothing that's said that the court-martial must try him.
Felix Frankfurter: No -- no, but --
Joseph S. Robinson: He's subject to the court-martial, yes, sir.
Felix Frankfurter: He's subject to court-martial.
Joseph S. Robinson: Yes, if the Government is --
Felix Frankfurter: And you say that -- you say that even if you're right thus far, he must be released at once without giving the American military authorities an opportunity --
Joseph S. Robinson: No.
Felix Frankfurter: -- to hold him in jurisdictionally?
Joseph S. Robinson: No, I didn't say that, Your Honor. If he --
Felix Frankfurter: Well, that's what -- that's what surrender would mean necessarily.
Joseph S. Robinson: No, Your Honor. He -- he is still -- he is still subject to military control. What we are --
Felix Frankfurter: But he can't be detained until an appropriate military proceeding is started.
Joseph S. Robinson: That's correct.
Felix Frankfurter: But all the cases are against him. But take all the immigration cases, which have held --
Joseph S. Robinson: I'm dealing with the Military Code only.
Felix Frankfurter: Well, I know, but the --
Joseph S. Robinson: I don't know about the (Voice Overlap) --
Felix Frankfurter: -- question is habeas corpus, whether, even if the detention is illegal. There must be immediate surrender or whether this Court can deal with the matter according to right of justice --
Joseph S. Robinson: Oh, no --
Felix Frankfurter: -- and say in due course you can -- if in due course you bring proper proceedings, you may do so and you don't have --
Joseph S. Robinson: I agree with you --
Felix Frankfurter: -- to make the matter at large.
Joseph S. Robinson: Your Honor misunderstood me I think or I misunderstood Your Honor. No, this Court is not bound to -- to release him immediately. This Court has a right under the -- under the Habeas Corpus Act to make such provision as is just and proper under the circumstances.
Felix Frankfurter: Well, that's what the District Court has done. It's given --
Joseph S. Robinson: No, sir.
Felix Frankfurter: It has given a declaration of right, which if sustained makes clear that he can't be surrendered to Japan and therefore, it must appropriately be dealt with by American authorities.
Joseph S. Robinson: Well, there's a case in our brief, Your Honor, two or three of them, where a man was held and I'll just go with the rest and then I -- I must stop but I -- I'll --
Felix Frankfurter: Well, I suggest you deal with the case of Mahler against Eby in 264 U.S.
Joseph S. Robinson: Well, this -- this is a rather late case. I don't recall the name of it, Your Honor, but in that case, a -- a -- an individual was convicted of murder in the State Court of Colorado and after the conviction, that is after the event, the Punishment Code was changed and obviously the change of the Punishment Code, it became -- it was an ex post facto law. He made application for a writ in the federal court and the federal -- and the case, I think, it came to this Court, I'm -- I'm not sure, the writ was granted. The ruling was to the effect, but if there is no basis for holding him or if the basis is illegal, he must be released but from a practical proposition. We will have the Attorney General of the State notify that the exact time was released so that he may determine whether he should be held on some other ground.
Felix Frankfurter: In other words, the writ wasn't issued according to your own statement.
Joseph S. Robinson: It was -- it was issued, Your Honor.
Felix Frankfurter: Well, not according to your statement a minute ago.
Joseph S. Robinson: Yes, Your Honor. It was issued and the Court added --
Felix Frankfurter: They said we need an issue because the Attorney General will take appropriate action.
Joseph S. Robinson: No, sir. The -- the writ -- the writ was issued and a -- an order of the Court said that the Attorney General should be notified of the time and place of his release so that he may take any action he sees fit, but the writ issued --
Felix Frankfurter: Well, I suggest you look at Mahler against Eby in 264 U.S.
Joseph S. Robinson: Well, it isn't -- I don't know whether it is referred to in the other brief or not. I -- and I -- I don't know whether we referred to it. But in any event, what we're objecting to is having these police officers breathing down his back all the time when the lower court has already ruled that he may not be held to be turned over to the Japanese Government for trial and when the United States Government has taken no action with respect to trying him. If they filed court-martial charges against him, well, certainly, they have right to detain him under the manual of the courts-martial. The -- it is not necessary for our position to go as far as asserting that it's our opinion that all these NATO Status of Forces Agreements are really -- they're unconstitutional. Certainly, those that did not receive Senate consent, the agreement involved in this particular case and the document on which they seek to turn Girard over to the Japanese Government, the so-called protocol and Agreed Views that were made under the protocol, was never submitted to the Senate and the Senate had expressly stated when it passed the NATO Status of Forces Agreement that that would not be oppressed into any further agreements. Now, at least, they could have been done if it is the policy of the United States to strip our soldiers overseas of the benefits of the Uniform Code of Military Justice, the least they could have been done would have been to submit this so-called protocol to the Senate to see if they wanted to change their original mandate.
Hugo L. Black: Now, is it true that the protocol contains word for word the status of forces covenant of the NATO treaty?
Joseph S. Robinson: I don't know. I think it's similar but I -- I don't --
Speaker: Exact isn't it --
Earl Warren: Isn't it (Voice Overlap) --
Joseph S. Robinson: I don't know.
Speaker: -- specifically?
Joseph S. Robinson: Mr. Carroll would take that up. He -- he's probably more familiar.
Earl Warren: Mr. Robinson, before you -- just before you sit down, this morning at the opening of your argument, I understood you to say that the Solicitor General had made far joint false statements to this Court for the purpose of deceiving it and I understood you to say you would demonstrate that in your argument --
Joseph S. Robinson: No, sir. I -- I didn't say that.
Earl Warren: Now, I've -- I've listened for -- very attentively for bill in particulars along those lines but -- and, of course, if it's true, it should be said.
Joseph S. Robinson: I -- I didn't say that. If -- if my words were such, Your Honor, I -- I withdraw it. I -- I would have intend to say anything of that nature. (Voice Overlap) --
Earl Warren: You said having to reflect upon the --
Joseph S. Robinson: No question about it.
Earl Warren: -- integrity of the Solicitor General or the representation he was making for the Government.
Joseph S. Robinson: That's correct, Your Honor. Oh, no, there -- there was no intention to reflect on -- on the Solicitor General. What I said, if I recall correctly, was that certain Senators and certain Congressmen in these congressional hearings have said in substance that the government witnesses, which appeared before us, gave testimony which was misleading and confusing both on law and on fact. I think -- I think the record will bare that and I -- I made no --
Earl Warren: If there is no representation by you --
Joseph S. Robinson: No, sir.
Earl Warren: -- I -- there's no use pursuing it further, but I was going to say, if there was any such impression intended by you that I think, in all fairness, you should give a bill of particulars at this time so we could --
Joseph S. Robinson: If -- if even --
Earl Warren: -- at least answer it.
Joseph S. Robinson: Your Honor, if even there was such an inference, I offer my --
Earl Warren: Yes, yes.
Joseph S. Robinson: -- apologies to this Court and the Solicitor General --
Earl Warren: Well --
Joseph S. Robinson: -- because --
Earl Warren: May be my -- it may have been --
Joseph S. Robinson: Something --
Earl Warren: -- my mistake.
Joseph S. Robinson: -- something may have been said in the heat of argument, certainly no such intention because I don't know that. All -- all I know was what -- what the -- what certain Senators and Congressmen said in the record but I don't think there was any specific reference to Mr. Rankin as such. And -- and I apologize for -- for conveying any such impression, the impression which Your Honor says was conveyed. Thank you.
Earl Warren: Mr. Carroll, you may proceed.
Earl J. Carroll: Thank you. Well, I see my time is a little more limited than I anticipated. I will try to cover them all. I think largely the argument has gotten a little off field of -- of the issues involved in this case, which to me appear to be very simple issues. There are a couple of questions that I want to answer that I made notes about and I think perhaps before I get into the issues, I'd like to answer that last question that was asked having to do with the identity of language between the NATO agreement and this agreement. Well, one of the big troubles in this case which has not been brought out has been this. There -- substantially, the language is the same as to official duties, but the claim of the Japanese is based upon an alteration of the term "official duties" as altered in the so-called Agreed Views. Now, if anybody ever heard of Agreed Views as a means of international law, well, they are way ahead of me, but in the hearing, before the subcommittee of the armed services and I think it's attached as an exhibit in this particular manner, Your Honors will find just what has happened on page 17. I don't know whether that's before the Court and -- no, this is in the hearing of the subcommittee on armed services before the United States Senate. Now, in these hearings on page --
Felix Frankfurter: You mean, on this -- on this matter?
Earl J. Carroll: Yes, on this matter, on --
Felix Frankfurter: The other day, before -- before two Senators, whoever they were, Senator Ervin and -- and --
Earl J. Carroll: That is correct, sir.
Felix Frankfurter: All right.
Earl J. Carroll: Now, Mr. Dechert from the Defense Department outlines in that, the entire history of the documents involved. Now, these documents as it's outlined in our brief are -- are as follows. The -- the Peace Treaty, the Multi-lateral Peace Treaty, then the Security Treaty, then the Administrative Agreement, then the protocol, then some minutes, which were the result of the hearings at the time that the protocol was entered into and then, some Agreed Views. Now, these Agreed Views are the views of the representatives of -- of Japan and ourselves under Article XVI of the Administrative Agreement which calls for the appointing appointment of a Joint Committee and the language is, “The Joint Committee shall be established as a means for consultation between the United States and Japan in all matters requiring mutual consultation regarding the implementation of this agreement. In particular, the Joint Committee shall serve as the means for consultation and determine the facilities and areas of Japan, which are required for the use of the United States in carrying out the purpose stated in Article I of the Security Treaty.” Then number two, “The Joint Committee shall be composed of a representative of the United States and Japan, each of whom shall have one or more deputies and staff. The Joint Committee shall be so organized that it shall meet immediately at any time at the request of the representative of either the United States or Japan.” Now, this Joint Committee got up some agreed minutes and on page 18 of this report or some Agreed Views rather. Agreed View Number 39 is the basis of the Japanese claim that this was not in the -- in a -- that this act was not in accord with official duty. Now, it falls squarely within a definition of official duty as defined in the protocol and in the NATO agreements, but that official -- that definition has been changed by this Agreed View Number 39, which reads --
Felix Frankfurter: Is there any --
Earl J. Carroll: -- as follows.
Felix Frankfurter: -- is there any definition in the Administrative Agreement or in the NATO Agreement as to what official duty is?
Earl J. Carroll: No, sir. They --
Felix Frankfurter: Then, how can it -- how can it contradict what's -- what's not defined?
Earl J. Carroll: Well, if I read the language to you, Your Honor, I think you'll see how it changes the ordinary accepted meaning of official duty.
Felix Frankfurter: Well, I --
Earl J. Carroll: May I -- may I read --
Felix Frankfurter: I mean I would like to renew my question.
Earl J. Carroll: Well, may I read the --
Felix Frankfurter: (Voice Overlap) --
Earl J. Carroll: -- the language -- I think it answers your question.
Felix Frankfurter: Will you please -- let me put my question.
Earl J. Carroll: Yes -- yes, sir, excuse me.
Felix Frankfurter: I asked whether official duty was defined by the underlying documents and you say no.
Earl J. Carroll: Well, the language --
Felix Frankfurter: Has it been defined?
Earl J. Carroll: No, the -- not -- not other than in the language that it -- it stated here in the -- in the protocol which official duty --
Felix Frankfurter: Does -- does it define it there?
Earl J. Carroll: No, its -- it -- I'll give you the exact phrase if you call out that definition.
Charles E. Whittaker: Its set forth on page 25A of the Government's brief.
Earl J. Carroll: Offenses in -- in two, on 25A, offenses arising out of any act or omission done in the performance of official duty. Now, that's the --
Felix Frankfurter: Where is that? What -- where is that from?
Earl J. Carroll: That's from the protocol. That's the amendment to the -- that is the amendment to the -- the Administrative Agreement. Now, that's the language there. Now, note what they have done to change that language and it's based upon this change that they claim the right to have a -- a draw deliberate demand. The term official duty as referred to in paragraph 3 (a) (2) of the protocol and official minutes relating thereto is understood to be any duty or service required or authorized to be done by statute, regulation, the order of -- of a superior or a military usage --
Felix Frankfurter: I'll renew --
Earl J. Carroll: -- a military usage.
Felix Frankfurter: -- my question to you. Does -- is there anything in the protocol that defined the phrase in the performance of official duty?
Earl J. Carroll: No, sir. I think that (Voice Overlap) --
Felix Frankfurter: Very well then. Then -- then what you're saying, if I understand you, is that the phrase in the performance of official duty as such technical define closed meaning that the protocol elaboration of it is in defiance of it. Is that what you're saying?
Earl J. Carroll: That is correct. I say that --
Felix Frankfurter: But it doesn't --
Earl J. Carroll: -- I say official --
Felix Frankfurter: -- it doesn't contradict it unless you say official duty is so self-defining that the Committee can't define it more particularly. Is that what you're saying?
Earl J. Carroll: That is what I'm saying, under our standards of official duty, under -- and recognized in our military service, I think the definition is very clear.
Felix Frankfurter: You mean I can go to some book where I can find -- where I can find the definition of official duty that will satisfy every lawyer and every judge, is that right?
Earl J. Carroll: I -- I think you can, sir.
Felix Frankfurter: Well, I can find hundreds of cases which there are conflict of application of that phrase.
Earl J. Carroll: Well, I don't doubt that there's a conflict of its application, but there is a definition --
Felix Frankfurter: Well, then, can this Committee -- can't this Committee then-- being an agency for taking care of conflicts define more particularly what is generally defined?
Earl J. Carroll: I don't think so when they restrict the definition to say that official duty means something that a man is specifically told to do. I don't think that's the common ordinary meaning of the term official duty.
Felix Frankfurter: Do you think we ought independently here, as though we were sitting at a -- at a trial court charging a jury, define what official duty means?
Earl J. Carroll: Well, I think as a matter of law, you have to recognize the language and the common -- the common understanding of that language and I think that's one of the very issues of this case. This -- this language to an American and to an American soldier in particular has a definite meaning. To the Japanese, it doesn't have a -- has -- have a definite meaning.
Felix Frankfurter: But as I understand you, this was an agreed meaning between American --
Earl J. Carroll: Oh.
Felix Frankfurter: -- than Japanese.
Earl J. Carroll: But by who, the Joint Committee or some -- subordinate Japanese clerk and some subordinate American clerk, who in this Joint Committee or one of its subcommittees has the right to make a definition that has the effect of law.
Felix Frankfurter: Mr. Carroll, it is agreed by the Solicitor General. It is agreed that the position of this Government is that this man was on official duty.
Earl J. Carroll: That's correct.
Felix Frankfurter: Therefore, they agree with you that this was within the most technical definition that you can give to official duty and, nevertheless, this Government exercised its duty or its right of waiver.
Earl J. Carroll: I'm only pointing out, Your Honor, that the claim of the Japanese to him is on this basis of this amended interpretation.
Felix Frankfurter: But that doesn't matter if this Government concedes your point and says, “Nevertheless, it has authority.”
Earl J. Carroll: What you say is true. Now, I want to point out one other thing about --
Earl Warren: Mr. Carroll, may I ask -- may I ask this? What pertinence does this document quoted on page 37A of the Government's brief have? It's on stationary of the United States Army Forces Far East and United States Army Administration and Military Justice and related matters. Now, that purports to -- to define what a line of duty means, does it not?
Earl J. Carroll: It -- it does.
Earl Warren: And that -- is that by the -- come from headquarters of the -- of our army in -- in Japan?
Earl J. Carroll: Well, I -- apparently, it does. I -- I don't know the source of it. They -- from this document, it says, “United States Armed -- Army Forces, Far Eastern Inc., United States Army (Rear), Circular 22-1.” Now, I -- I don't know the authority for the publication of this or who published it, but apparently, those two headquarters are responsible for its promulgation.
Earl Warren: It says the term official duty is used in Article XVII, the Official Minutes and the Agreed Views is not meant to include all acts by members of the armed forces and civilian component during periods violated on duty, but is meant to apply only to acts which are required to be done as a function of those duties which the individuals are performing. Thus, a substantial departure from the acts a person is required to perform in a particular duty usually will indicate an act outside of his “official duty”.
Earl J. Carroll: Well, I think --
Earl Warren: Now, was that the official document for the Government of the armed forces in Japan or not? I don't --
Earl J. Carroll: I -- I --
Earl Warren: -- I don't (Voice Overlap) --
Earl J. Carroll: -- think Your Honors put your finger upon exactly what I'm saying. This document is published apparently by the army in order to conform with these so-called Agreed Views, the definition of official duty. In other words, it's much more restrict than the ordinary understanding of the word official duties. That phrase as it is generally understood is much broader than this and apparently, Your Honor, I -- I can only -- only speak from seeing the date of this which is the 24th of January, 1956. Apparently, they on -- having in mind this restricted definition of official duties under the Agreed Views has then promulgated this to -- for the army to conform with this restricted definition, but my -- our point is --
Hugo L. Black: Suppose that's correct. The Government must agree and stipulate it that this man was accurate. I mean the official duty has resumed within the meaning of this definition. The definition is it would not be official duty if he had deviated from -- from his job --
Earl J. Carroll: From that viewpoint, of course, we are better off. Your -- Your Honor is correct and that's the respecting terms.
Hugo L. Black: In other words, they have stipulated that's the official duty in connection with the meaning which the army has given it.
Earl J. Carroll: They're -- they're bound by that stipulation but I'm pointing out something else. The reason I pointed that out was an answer to your question, Your Honor, as to whether or not the language was identical between the NATO treaties and these treaties. There is this further restriction on official duties. The official duty phrase in the NATO Agreements has not been so restricted as it has been here. That was the reason I brought that matter out but I agree with you Mr. Justice Black that that's the -- that's the effect of the stipulation upon the part of the Government. They have stipulated as to the much more narrow viewpoint because they've stipulated as to their interpretation of official duties. Now, we have in this case a very substantial question of -- of jurisdiction and that comes about in connection with this Camp Weir. Now, this Camp Weir, if Your Honors will turn to the brief of the appellee in the appendix on page 40A and 41A over to 42A, we have here an affidavit of this -- of Robert Dechert who is General Counsel of the Department of Defense and he tells us here that this was used, this is property that was used by the Japanese army during World War II, and he tells us that we seized at any states and it was seized by our forces on April the 11th, 1946. It's been held by our forces and then used by them as an army base. And then, he goes on to tell us that the facilities and areas, the use of which is to be granted by Japan to the United States of America in accordance with paragraph (1) of Article II of the Administrative Agreement signed at Tokyo includes this particular property. And I want to call your attention to paragraph (2) on page 41A. It is confirmed that the facilities or areas indicated pending in the schedule refer to those facilities or areas, the continued use of which is to be granted to the United States in accordance with the notes exchanged between Mr. Katsuo Okazaki, Minister of the State of Japan and Mr. Dean Rusk, special representative of the President. Then, they named the camp and gave you the number and they say on the following page under that same paragraph, the notes exchanged between Mr. Rusk and Mr. Okazaki referred to in the agreement quoted above provided that facilities and areas used by the United States prior to the date of the Administrative Agreement would continue to be used on the same basis as used theretofore until a formal agreement was reached on such facilities or areas or until such facilities or areas were released by the United States. Now, we have -- we have to have in mind that theretofore this area was used by the United States with exclusive jurisdiction over that area. And here, they have contracted to give us the continued use of this on the same basis as we previously have the use of this particular maneuvering camp area and -- and -- well, I don't want to take issue with the Solicitor General, I want to call the attention of the Court to the facts stated herein that this property was exclusively under the jurisdiction and granted exclusively to the United States.
Speaker: Is that by virtue of the Administrative Agreement?
Earl J. Carroll: By virtue of -- but -- not by virtue of the Administrative Agreement alone but by virtue of the contract that we entered into for the use of these properties if you will read further in this agreement. It says, “No formal agreement has ever been reached on Camp Weir maneuver area because the Japanese and United States representatives of the Joint Committee have not been able to reach an agreement on the exact boundaries of the area.” The dispute over boundaries arises principally from the Japanese demand that areas encroached upon by local farmers to be released from the maneuver area. At sometime late 1951 or early 1952, the United States agreed to permit the National Safety Police which later became the Japanese Self-Defense Force to use certain portions of -- of Camp Weir maneuver area for an artillery and army school. This agreement provided that the National Safety Police would be required to vacate the premises on 60 days notice by the United States. A new agreement containing the same 60-day vacate notice provision was effected on March 30th, 1954. This agreement was terminated, effective October 15th, 1954 by notice -- by giving notice to vacate on August 12, 1954, and I skip to the last sentence, at the time of the Girard incident, the area was being used solely by the United States forces.
Speaker: Insofar as criminal jurisdiction is concerned over that area, it was subject to the terms of the Administrative Agreement and later of the protocol, isn't it?
Earl J. Carroll: I don't think -- well, I -- yes, it was subject to --
Speaker: There's no --
Earl J. Carroll: -- the terms of the --
Speaker: -- dependent source of criminal jurisdiction with reference to this particular area other than the agreements that we've been discussing all day, isn't that right?
Earl J. Carroll: That is correct, but you see, these -- these agreements, if I can use the term, are very weasel-worded to say the least. It's very difficult to -- to know exactly what they mean until you go into them in -- in some detail. Now, let's take the Security Treaty, the Security Treaty in connection and prior to this particular camp, the Security Treaty language states that Japan -- there is danger to -- in Japan -- in Japan in this situation and Japan desires a Security Treaty with the United States. Japan desires as a provisional arrangement for its defense that the United States of America should maintain the armed forces of its own in and about Japan so as to deter on the attacks upon Japan. And then on Article I, Japan grants and the United States of America accepts the right upon the coming into force of the treaty of peace and of this Treaty to dispose United States land, air and sea forces in and about Japan. Well, that's as far as the Treaty goes.
Speaker: All I --
Earl J. Carroll: There, we --
Speaker: -- all I was trying to get at was to make sure that I understood it correctly. You're not advanced are you in your argument as to criminal jurisdiction by the -- what you read from the arrangements covering this area beyond what you have to stand on or assert under the other agreements as to jurisdiction.
Earl J. Carroll: Oh, no sir, because there is a rule of law and it comes under this principle of uti possidetis. Now, that principle of law is applicable in this particular case where we had an -- where you have an area of land and the authority of international law here is very clear, which I'll cite to the Court, where you have an area within another country and in -- you exercise jurisdiction -- exclusive jurisdiction over that area at the time of the peace treaty. If the peace treaty doesn't make a contrary provision as to that area, then you continue to exercise that jurisdiction and the other country has waived its right to reassert jurisdiction over that particular area. Well, that's a rule of international law that falls under this doctrine of uti possidetis and the authorities for that, I -- I will just briefly submit to the Court, the -- and -- and we -- I just don't have time to differentiate this from the things that you surrender as the Military Act, but by the principle, and this is whole on international law, the Seventh Edition, 599, by the principle commonly called uti possidetis is understood that the simple conclusion of peace, if no expressed stipulation accompanies it or insofar as expressed stipulations do not extend this and the two belligerence as absolute property, whatever they respectively have had under their actual control in the case of territory and things attached to it in the -- and in the case of (Inaudible), whatever they have in their legal possession at the moment, occupied territory, for example, is transferred to the occupying power. Now, the cases on it are a legion. There's a number of cases and I understand from the Chief Justice, we can submit these in a memoranda and I will submit the authorities on that point. And I want to call your attention --
Felix Frankfurter: Are those cases that they deal with jurisdiction?
Earl J. Carroll: Their cases which deal with the --
Felix Frankfurter: Suppose questions of (Voice Overlap) --
Earl J. Carroll: -- retaining the same rights.
Felix Frankfurter: -- because I know rights is the most -- the most traitorous of all. What do you mean by the same rights? I want to know whether these are cases in which an -- in the first place, these are -- when you say a treaty of peace, these are an occupying -- an occupying country or a conquering country has criminal jurisdiction after the treaty of peace of crimes committed on the -- on part of a territory of the defeated belligerent on the soil of which it happens to have soldiers, any of those cases of that sort?
Earl J. Carroll: Well, I thought -- no, not -- not in -- specially dealing with criminal jurisdiction, but --
Felix Frankfurter: That's what we're dealing with here.
Earl J. Carroll: Yes, I understand that, but the general rule of law is that if you occupy this particular area and you occupy it with exclusive jurisdiction that condition continues. All that -- all that the doctrine uti possidetis does is -- is to continue the -- the matter in the same status of which it was at the time of the conclusion of peace.
Felix Frankfurter: This -- the agreement which you read from Mr. Dechert's affidavit shows that they have to make an arrangement toward it.
Earl J. Carroll: Well, whether (Voice Overlap) --
Felix Frankfurter: So that they can keep something they had but they got something they didn't have.
Earl J. Carroll: Well, let's just take a look at the -- at the peace treaty now or rather the -- the Administrative Agreement and see just where -- how this falls within the -- the terms of it. I think it's on page -- I think it's on Article III, this one. Now, on Article III, let's -- on the Administrative Agreement on Article II, first, Japan agrees to grant the United States the use of the facilities and areas necessary to carry out the purpose stated in Article I of the Security Treaty. In Article III, (1), which is the only one that's printed on page 16A of the brief of the brief -- of the -- of the Government, the United States shall have the rights, power and authority within the facilities and areas which are necessary or appropriate for their establishment use, operation, defense or control. Now, here in the Administrative Agreement is a specific declaration in Article III of the rights, power and authority of the United States over the particular areas. Here's an area which we had full authority over. Here's an area that's transferred to us. We're continuing in its possession and here's Article III of the -- of the Administrative Agreement, specifically recognizing that we shall have the rights, power and authority within the facilities and areas which are necessary or appropriate for their establishment, use, operation, defense or control. In other words, this article distinguishes a difference -- different situation from offenses, which might be committed outside of those areas. In -- it says that we shall have all the necessary powers. Now, we considered it necessary to have on our military bases all over the world full jurisdiction and I -- I feel that Article III brings -- is a specific recognition of the acceptance of a condition which -- which had previously existed on this particular area and that it recognizes that we have exclusive jurisdiction insofar as that area is concerned or any other area that was similarly occupied.
Felix Frankfurter: Although the Administrative Agreement carrying out a treaty brought to the knowledge of the Senate could be opposite.
Earl J. Carroll: Well, the Administrative Agreement does not say the opposite. I'm -- I'm reading from the --
Felix Frankfurter: It makes arrangement for determining when there is conflict who should see what right he have.
Earl J. Carroll: I don't think that was ever within the contemplation of the Administrative Agreement because Article XVI reads as follows, “It is the duty of members of the United States armed forces, the civilian component and their defendants to -- to respect the law of Japan and to abstain from any activity inconsistent with the spirit of this agreement and in particular, from any political activity in Japan.” Now, it only says there, it is the duty of the members of the United States armed forces. You must remember that this agreement went beyond, if I may finish the sentence, went beyond the --
Earl Warren: You have five -- you have five minutes more. It's the red light. That is --
Earl J. Carroll: Thank you, sir.
Earl Warren: -- the end of your time Mr. --
Earl J. Carroll: This -- this agreement went beyond the NATO Agreements. This went to a civilian component. This agreement went to a civilian the components. It -- it gave exclusive jurisdiction to the United States not only to our armed forces but to civilian components and to defendants and the only defendants that excluded were Japanese defendants. Then, the question that was asked a short time ago about the fact that it said that such jurisdiction may in any case be waived by the United States was included in here, but who is here to say whether or not such jurisdiction may in any case be waived by the United States applied to the soldier and of the -- of this matter or was intended to apply to the much broader group that was encompassed in the group classified as having or which we had exclusive jurisdiction. In other words, that provision for waiver may well have gone to any -- one of our civilians or one of our soldiers who was injured out on the streets or some place. But in this case, you have to remember, he was a soldier on duty, assigned to guard duty on an area which had been under our exclusive jurisdiction, on an area which we say under international law we -- we retained exclusive jurisdiction who if he didn't carry out his guard duty was subject to courts-martial and who in carrying out his guard duty as stipulated to by the prosecution accidentally injured this woman or killed this woman. Now, how can we possibly turn a soldier who has carried out his duty under the penalty of a criminal prosecution by our own country to turn him over to a foreign country for trial? The answer to it is going to be very simple. If one of the members of the State Department turns to a marine guard in the future who is guarding while an angry mob is charging down into one of our embassies and he says to him, ”Shoot them when they come over to threshold.” The marine is going to say, “Here, shoot him yourself mister, I don't want to be tried.”[Laughs]. That's going to be the answer and it will destroy the entire morale of our -- of our whole military service. If we order this man to do -- to -- to do an act and he does it in the performance of his duty, he is entitled to have our country deterred, whether or not that was the proper performance of his duty. And I want to just call one more thing to your attention, the assistant -- one of the Assistant Judge Advocate Generals went to Japan and was asked the question by the newspapers or any court-martial proceedings have been brought against Girard and his answer was that so far there was no indication as to any reason for him being tried by courts-martial and that's the nub of this whole case. Girard was in the performance of his official duty. The army decided not to try him. The Japanese set up a clamor to try him because they don't agree with our definition of -- of official duty. And so, we are now said -- we are now told, “You must turn Girard over to the Japanese because the Japanese don't -- do not agree with our definition of official duty. And if you do this, it will destroy the morale of the armed services of this country probably forever.” Now, that's the -- that's the answer to it. It's just that simple and I thank you very much for the -- for the time that I've taken before this Court.
Earl Warren: It's all right. Mr. Carroll, on submission of your authorities, it won't be necessary for you to write any brief or to quote for many of your authorities if you can just submit to us by tomorrow morning a list of these authorities that you've relied on here in the argument and you may do it, of course, by -- in typewritten form.
Earl J. Carroll: Thank you, Your Honor. It will be done.
Earl Warren: Mr. Solicitor General.
J. Lee Rankin: May it please the Court. First, I would like to make it very clear the position of the United States Government regarding to the treaty of peace with Japan. It's on 5A of the Government's brief and in that treaty in Article I, Chapter 1, subparagraph (b), the United States Government and the allied powers recognized the full sovereignty of the Japanese people over Japan and its territorial waters. In that Act or in that same Treaty, we agreed that we would withdraw our forces within 90 days, so that we recognize the complete sovereignty of Japan the moment that Treaty was signed and ratified to all of Japan and its territorial waters and we don't claim any impingement upon that agreement whatsoever. Now, we did agree within 90 days, we would withdraw our forces and then we had the Security Treaty, which permitted us to leave forces under the terms of that Treaty order. If we didn't have that Treaty, we wouldn't have been permitted to leave those forces under the terms of that agreement and then, the Administrative Agreement that was made under which provided in greater detail. Next, I'd like to turn to the case, the Canadian case that was referred to and is reported in 4 Dominion Law Reports at page 11. It was a decision by the Supreme Court of Canada in the nature of an advisory opinion, this Court was not rendered, but the Court did not accept the position advocated by the United States in the brief that it tendered to the Court. There was a divided Court and the decision was three to two against the position of the Government. I'd like to just briefly read the syllabi of the Court because it shows the thinking of the Court and if the Court -- if this Court cares to go into it, you will find a number of authorities that the Government deals with and the position that the Canadian Court took and what it relied on, how it examined this entire subject and felt that the whole idea of immunity of foreign force was an imposition or a reduction of the sovereignty in contrary to the idea of control of such matters and prosecution for criminal offenses by the country in which the -- such forces were located.
Felix Frankfurter: Mr. Solicitor, in the -- I have the other form of the report and I do not notice in the appearances that United States appeared before the Supreme Court of Canada.
J. Lee Rankin: I have been advised there wasn't any formal appearance at all but the United States submitted a memorandum and --
Felix Frankfurter: One or two, three, four, five, six appearances for different parties --
J. Lee Rankin: Yes.
Felix Frankfurter: -- but not for the United States.
J. Lee Rankin: And I also was advised that it was not done by the Department of Justice, although, I'm not sure just how it was handled. But in -- I think that the correct characterization (Voice Overlap) --
Hugo L. Black: The Department of Justice didn't do this?
J. Lee Rankin: I heard that it was the Department of State that submitted it and I think the correct --
Felix Frankfurter: In reference to it in any of the judgments of the Court.
J. Lee Rankin: No, it does not. The correct characterization of it was that it was an advocate's brief that was a position that had been taken by the United States in various efforts to get better terms in regard to agreements concerning immunity and it was not accepted in this Court. It never been accepted by any nation in the world up to date that we've been able to find.
Felix Frankfurter: That's what -- that's what struck me that it -- saying if United States made a representation before the Supreme Court of Canada, no appearance, no reference should be made, no -- there should be no specific appearances and no reference in any of their judgments.
J. Lee Rankin: That's right. Now, this Court has said in a number of cases that international law is not merely what the writers may say it ought to be, but its not -- and it's what the law is, what you can find from the decisions and also what the practice it is amongst the nations of the world and that's how this Court determines what international law is and it doesn't make any difference on how much you theorize about what immunity you have from the law -- criminal law of another country if you can't persuade that country that that is the law. You aren't going to get very far with that kind of a theory.
Felix Frankfurter: I -- I interrupted you when you started to tell the Court what the -- what the rulings were if you permit me to say so and you agreed that one thing they all agreed on was Chief Justice Marshall's opinion with which the Chief Justice read before lunch and they all agreed that there's an implied consent ahead.
J. Lee Rankin: That's right.
Felix Frankfurter: All right.
J. Lee Rankin: And they were not willing to extend that to Canada as to the United States and in the concurring opinion of one of the justice of the court. He said that we're involved in one of their nationals, there is certainly would be no immunity even though they would recognize it as between the United States' own people on the basis, so that was the position that the -- the Court took. Now, both sides have cited louder parts, treaties on Oppenheim's International Law, but we have cited the Eighth Edition in our brief on page 25 and the opposing counsel have cited the Seventh Edition. I don't how it happened that it was handled in this manner by a lot of facts, but if you turn from the place where he recites what is cited by counsel for the respondent, in the Seventh Edition some 48 pages later. In the Eighth Edition, you'll find the following language. However, the view which has the support of the bulk of practice is that in principle, members of visiting forces are subject to a criminal jurisdiction of local courts and that any derogations from that principle require specific agreement of the local state by figure or otherwise. Now, it's generally recognized that the executive has the authority in regard to diplomatic immunity, one of the examples that counsels cited, to waive them that in this clear exchange case that Chief Justice Marshall has discusses the fact that one of the aspects of this problem is the representing of the sovereign, its diplomatic representative. And generally, he is immune from the criminal laws of a country, which he attends, but that is subject to waiver and this Court has held in several cases and in the case -- the Kent case. The United States did waive it and permitted Kent to be tried by the British courts in regard to certain secret documents that they claimed to have been stolen and this, the Court denied his application for consideration of that case. And in the area of extradition, the Court has recognized the discretion of the State to decide, plan the person charged should be delivered up and it's entirely within the discretion of the executive to make that decision and the Court has so recognized. We do have an extradition treaty with Japan that we have had for some 17 years and under all of those principles, which we think are comparable, there would be a discretionary authority in the executive to determine whether or not to act -- for the Government to act or to permit the other country to the same situations dealt with and been recognized by this Court in regard to the Attorney General's power to deliver up a prisoner who is held in a federal penitentiary for state prosecution. And as a matter for his discretion, even though there is no statute concerning, that he can exercise that discretion and deliver the man up so he can be prosecuted under the state offense and that that penalty shall be -- shall follow whatever action he has been -- whatever action has been imposed upon him for the federal offense so that the whole area of this discretionary authority of the State in regard to these problems have been recognized by the Court and applied. Now, there was a question in regard to how many waivers had occurred with Japanese -- with Japan and the character of those waivers. The Government was asked if it would supply information to counsel for the respond in regard to this and we made an effort just to see if it could be supplied and we found that the information was not in a form that it could possibly be -- be supplied with any -- any reasonable period of time because it would mean going back to every soldier's file and try to find out any one that had -- any record of being charged and try to find out just what happened in his particular case. And with 5400 cases within one year, it was quite impossible to do. So the best that we can do is refer to the annual report to the Senate Armed Services Committee on the exercise of the criminal jurisdiction over United States service personnel by foreign courts, December 1, 1955 to November 30, 1956 presented by George W. Hickam Jr., Major General of United States Army, the Judge Advocate General, Department of the Army, and this is in a hearing. This isn't in our brief. It was in a hearing report before a subcommittee of the Committee on armed services, United States Senate 85th Congress per session dated April 9th, 1957. It's got an imprint on it, 91290, maybe of any assistance. In that -- in regard to Japan, on page 37 with a notation effective since October 28th 1953, the Defense Department describes as follows. During the period of this report, there were 5544 cases involving United States personnel subject to the jurisdiction of Japanese Courts, (3013 of these cases were traffic violations). Japan waived its jurisdiction in 5409 or 97.56% of these cases. It tried 111 cases. These trials resulted in 54 fines only, 42 suspended sentences to confinement and 15 unsuspended sentences to confinement. There is no further delineation of the character of their offenses. The only other reference that I care to make is in regard to Article XIV and counsel has stated to the Court that applied as the Uniform Code states in all places. The language is this chapter applies in all places. In Article XIV, which is a part of the code, shows the attitude and position of the Congress in regard to this matter and the civil authorities as follows. It reads, under such regulations as the secretary concerned maybe -- may prescribe a member of the armed forces accused of an offense against civil authority may be delivered upon request to the civil authority for trial so that if the Court cares to turn to that for authority, it seems clear what the attitude of the Congress is as it has expressed. And in adopting Article XIV, the Court -- the Congress expressly removed the geographical limitations that were in the old Article 74 of the Military Code.
Hugo L. Black: Was there anything in the history that indicated that it was intended by the change to make it applicable so as to turn over people to foreign countries?
J. Lee Rankin: Well, I couldn't say except I don't -- do not -- I'm not able to say that the history as recited here to the Court by response counsel is not correct in regard to that and it seems to me that indicates that the Congress was trying to meet a situation where he would be delivered up to the civil government in Germany which is different than an entirely different sovereigns since we were still in charge of that civil government.
Felix Frankfurter: What was the date of the change, Mr. --
J. Lee Rankin: 1950.
Felix Frankfurter: 950?
J. Lee Rankin: Yes, sir.
William J. Brennan, Jr.: Mr. Solicitor, Mr. Carroll's last argument as I understood it was in effect that the position the Government has taken as to the conduct of Girard being in performance of his duty for the purposes of this case, shows that the Government would not consider or the military would not consider this a violation of the Military Code, this incident, which would subject Girard to court-martial charges, is that so?
J. Lee Rankin: It's a great surprise to me. I would think that it would be a violation of the Military Code and that -- in case that this Court decided that he should not be prosecuted under law of Japan that -- that the prosecution would be followed up in that manner --
William J. Brennan, Jr.: In other words, there's nothing --
J. Lee Rankin: -- but I have not made any inquiry on it.
William J. Brennan, Jr.: Now, if there's nothing in the Government's position, that's what I want to get clear to the effect that he would not be subject to court-martial charges --
J. Lee Rankin: Not at all.
William J. Brennan, Jr.: -- in the event, he was not specific.
Earl Warren: Mr. Solicitor General, if you have any authorities that you've referred to that you like to submit, you may do so and type writing for -- by tomorrow morning if you please. Mr. Carroll, was there any new point that brief -- you might want to raise briefly if --
Earl J. Carroll: No, Your Honor. I just like to answer that Kent case.
Earl Warren: All right, you may do then.
Earl J. Carroll: The Kent case, Your Honor, which has been cited here takes up a lot of page in this brief, is simply this. An employee in May of 1940 -- I believe is 1941 of the State Department and in the embassy office was found to be engaged in espionage or at least turning over classified information to agents of Nazi Germany. He was immediately fired. The -- the documents or some of the incriminating evidence was found in his -- amongst his belongings in the embassy building. He was fired and this was in May and in -- I believe either August or September, he was prosecuted by the British authorities. Britain then was at war with Germany and we were not at war with Germany. The case stands for nothing at all insofar as the issues of this case are concerned. I thought that point should be called to Your Honors attention and I think that's about all we have at the time you allowed us.
Earl Warren: Thank you. The Court will now adjourn until a further order of the Court.