Wilson v. Girard – Oral Argument – July 08, 1957 (Part 1)

Media for Wilson v. Girard

Audio Transcription for Opinion Announcement – July 11, 1957 in Wilson v. Girard
Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Earl Warren:

1103, Charles E. Wilson, Secretary of Defense et al., Petitioners, versus William S.Girard, United States Army Specialist 3/C and William S. Girard in 1108, Petitioner, versus Charles E. Wilson et al.

You may proceed, Mr. Solicitor General.

J. Lee Rankin:

May it please the Court.

I noticed Mr. Carroll left the courtroom, Your Honor, Shall I proceed?

He was just admitted.

Earl Warren:

Oh, oh.

We — we’ll wait for him Mr. Solicitor General, I wasn’t aware of that.

Mr. Solicitor General you may proceed.

J. Lee Rankin:

May it please the Court.

The issue in this case is whether the United States has the right to decline to prosecute a soldier and let him be prosecuted under Japanese law where there is concurring jurisdiction.

And should the United States Court review that decision?

The facts are these.

January 30th of 1957, a military unit of the United States was maneuvering on Camp Weir in Japan.

This maneuver area was an area that was part at the time assigned to the United States to use.

About 40% of the time was used by the Japanese defense troops.

And the balance, a substantial portion at that time was used by Japanese civilians for farming and other purposes.

At this time, during the maneuvers, there were so many Japanese nationals in the area that the commander decided that it was unsafe to continue to use live ammunition in the maneuvers.

And he directed that blank ammunition be used from that time on.

During an interval in the maneuvers, the respondent and another soldier by the name of Nickel were directed to guard a machine gun and some field jackets on a hill.

They proceeded to this ridge and then the respondent placed a blank cartridge in his grenade launcher and using a blank, he discharged it.

He put two times toward Japanese nationals in that area.

The second shot out of the grenade launcher of this empty cartridge case struck a Japanese married woman in the back and caused her death.

The commander of the unit of the respondent certified that this act, the killing, was an act in pursuit — in the performance of the respondent’s duties.

This was done on February 7th.

On February 9th, the Japanese protested the certificate and claimed that the machine gun was never at any time threatened by the Japanese that there was no effort to interfere or molest it.

And the action was not done in performance of official duty.

And it was not necessary to fire this empty cartridge out of the grenade launcher in the protection or a guard of the machine gun and these field jackets.

There was a procedure set up by the two Governments whereby a Joint Committee would inquire into the question if there was a dispute.

And for the —

Earl Warren:

So, before you get to that, there is in the record, an affidavit of the chief counsel of the Department of Defense, which shows more precisely what the facts of the case are.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Earl Warren:

Would you mind stating the circumstances under which those came in the record?

J. Lee Rankin:

Yes, Mr. Chief Justice.

That affidavit recites in detail the fact that there were certain witnesses who have stated, including the — the soldier Nickel that they were directed and the soldiers proceeded to throw out these empty cartridges to invite or entice the Japanese civilians to come and try to get them and take them away to sell and recover what value they could out of it.

And that there was actually a — an invitation for them to come forward and pick them up prior to the time of the discharge of this empty cartridge out of the grenade launcher.

And that goes into considerable detail in reciting these facts.

And it was presented to the lower court and was sealed at the request to the Government to protect the respondent from any adverse effect upon his trial.

The Government has no other interest in having it sealed.

And it is in this Court for its consideration in a sealed form if the Court cares to go into that detail.

But there was a very real conflict as to even the two soldiers involved in regard to the facts.

And whether there was enticement and whether these Japanese civilians were invited in fact to come forward and then have this empty cartridge launched against them out of the grenade launcher.

Felix Frankfurter:

Is there any objection to having it sealed by the respondent?

J. Lee Rankin:

No, it was examined according to the proceedings that I read in the court below over at recess.

And at first, counsel indicated that they didn’t want to consider at all but finally they appeared to agree that they would prefer to have it sealed rather than open to the public for examination.

Felix Frankfurter:

Is there any objection to its being sealed before this Court?

J. Lee Rankin:

As far as the Government is concerned, we are willing to have it considered by the Court fully.

The only purpose of having it sealed was to protect the respondent in his trial in case it occurred in Japan or court-martial depending upon the decision of this Court.

Earl Warren:

I assume then, General, from your statement that the affidavit is before us for all purposes.

J. Lee Rankin:

It is as far as the Government is concerned.

Earl Warren:

Well, I —

J. Lee Rankin:

I cannot speak for the other side but —

Earl Warren:

Well, I — does — is there any legal reason — is there any legal reason why this should not be made public if it becomes necessary to do so in the writing of an opinion in this case?

J. Lee Rankin:

No, there is not.

The only problem is whether he — the respondent will be prejudiced by it and it seems to us that if he is, the fact that he brings the matter here to this Court for its consideration, the Court is entitled to have all of the facts before it.

Felix Frankfurter:

But to that point comes before (Inaudible) can speak.

J. Lee Rankin:

That’s right.

Was there any closing affidavit made controverting this fact?

J. Lee Rankin:

They — no.

There was a denial.

And I think the record is that there is a — a denial by the respondent that there was any enticement on his part.

The affidavit does show that the other soldier goes in to some detail in describing how he was instructed by the respondent to throw out the cartridges and invite the Japanese civilians to come forward and pick them up.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

But he continues to — the respondent continues to deny that.

I think that’s right.

Felix Frankfurter:

Did the respondent wholly apart from the — the legal relevance and not — did respondent speak to raise issues of fact for the District Court?

J. Lee Rankin:

I think that a fair answer to that Mr. Justice is that the respondent did seek to raise issues of fact.

And that the Government stipulated that insofar as this particular proceeding was concerned, and for no other purpose, that this act was in the performance of official duty and thereby eliminated that kind of an issue of fact.

Felix Frankfurter:

Was the controversy about issue of the fact merely as to that question?

J. Lee Rankin:

No, that’s my understanding.

Felix Frankfurter:

So that you admitted, the Government for purpose of legal questions, admitted the issue on which there was a contest.

J. Lee Rankin:

Yes.

And the lower court found that there was no issue of fact in passing upon the case.

Now, on the certificate by the commanding officer of the respondent continues in effect.

The Government has taken the position at all times that there was never any authorization for the use of the grenade launcher and the rifle in this manner in ejecting a empty cartridge against any personnel of any kind.

And it is not — it has not been claimed up to date by the respondent that he was authorized or directed to do anything of that nature.

But for the purposes of the case here, you’re not raising any question but that this action was in line of this man’s duty.

J. Lee Rankin:

That’s right.

We are — we stipulated —

In other words we — we take the case as if he’s there with specific instructions to shoot this woman given by his commanding officer, isn’t that right?

J. Lee Rankin:

No, it isn’t necessary that there would be a direction or an order to do the shooting for it to be an act in the performance of official duty.

I don’t understand.

J. Lee Rankin:

We only go so far as to stipulate that it was an act in the performance of official duty.

What — what that means under the record and under the facts here.

So that now, it is important as we think —

Hugo L. Black:

I don’t — I don’t quite understand the — your position there.

How could it be in the line in the performance of his official duty unless it was done in allegiance and expressed or an implied order.

J. Lee Rankin:

Well, I understood the question of Mr. Justice Harlan to be possibly the implied order as distinguished — a direct order as distinguished from an implied order.

It could be under the line of official duty if it was something that was required under the agreed rules that the Joint Committee had established.

Even though no officer had ever instructed him to do this particular act.

And the inquiry, as I understand it, from Mr. Justice Harlan, is whether or not he was directed or ordered to do this act.

And we do not agree that he was ever ordered or directed or he was even authorized to use this rifle and the grenade launcher in this — in this manner.

But we do — did stipulate a law and continue to abide by it by here.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

That he was — the act was in performance of official duty in accordance with the Protocol.

I’ll put it this way.

Is the effect of your stipulation — would you concede that within the meaning of the decree, the United States had primary jurisdiction?

J. Lee Rankin:

That was our contention, yes, throughout.

Well, I mean, you concede that.

J. Lee Rankin:

And we concede that, yes.

Yes.

J. Lee Rankin:

Now, —

Simply — simply the question is then whether there has been a waiver and whether the waiver was — was —

J. Lee Rankin:

Authorized and proper.

That’s right.

Felix Frankfurter:

That is where it was the claim of the United States if they had primary jurisdiction.

J. Lee Rankin:

Yes.

Now — but there is —

Felix Frankfurter:

You make — you make a distinction I think it’s between a soldier and officer being liable, being found to be acting within the course of his duties.

And the Government of the United States, instructing a soldier to do something which might have — which might be, to say the least, not a very — a very nice thing for the Government of the United States to instruct its soldiers to do that.

In other words, single liability for an act done in the course of duty is very different from saying you go ahead and shoot a woman.

J. Lee Rankin:

That’s right.

Now, we think that it is important to the consideration of the case, these other facts of whether there was enticement or an invitation to come forward and pick up this blank or empty cartridges in that it bears upon the whole posture of the situation when the executive decided to decline to prosecute or to waive the jurisdiction assume that the United States had a right of the primary jurisdiction to prosecute in this situation because there had to be a consideration by the executive of the position of Japan that this was not within the requirements of official duty.

And that this was not authorized.

And it was not necessary because there was no threat to the machine gun and field jackets to do anything of this character.

All of that had to be considered by the executive in passing upon the question of whether or not to decline jurisdiction or waive jurisdiction, which were rights that belonged to the State rather than any individual.

Harold Burton:

And if it were not in the line of duty by then it is considered that it was the primary jurisdiction was liable to Japan, is that right?

J. Lee Rankin:

There’s no question about that under the Protocol.

Earl Warren:

General, do you make any distinction between something that is in line of duty and — and an act that was merely done while on duty?

J. Lee Rankin:

Well, there is a distinction and the Protocol deals specifically with an act done in the performance of official duty.

Earl Warren:

Yes.

J. Lee Rankin:

There have been a number of cases discussed in newspapers about where a man might be on duty but do something so far removed from what would be in performance of that duty.

That it couldn’t be within the requirements of the Protocol for primary jurisdiction.

But that would —

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Felix Frankfurter:

Well, if you discussed the conventional question of law of agency whether a man is — whether the principal is responsible or whether the agent is on a frolic of his own.

That’s all this, isn’t it?

J. Lee Rankin:

Well, that’s pretty generally the — the responding of superior problems what’s —

Earl Warren:

Well, General, the reason I asked you the question was because I recall you stated that the commanding officer had at all times taken the position that the respondent had no authority.

And it was not — not the custom for him to put any blank cartridge in his grenade — in his hand grenade.

J. Lee Rankin:

His grenade launcher.

Earl Warren:

His grenade launcher rather.

Now, the — would that statement on your part indicate that you make any distinction between a man doing an act merely while his on duty on the one hand and on the other hand, an act done pursuant to duty.

J. Lee Rankin:

Yes, because the — let me clarify in regard to that.

The position not only the commanding officer of the man but of the Government itself, the Defense Department is that there never was any authority for using this empty cartridge in the grenade launcher in the manner it was done.

And it was their position.

And the controversy all the time between Japan and the United States was whether this ever did come within the requirements of the Protocol on regard to primary jurisdiction for the United States Court-Martial.

And that if it was something that was unauthorized, that gave validity to their contention all the way along that there wasn’t any authority and he had no right to do this and it couldn’t comply with the requirements of the Treaty.

And the United States was continually asserting the other position before the Joint Committee in order that it should try to claim the primary jurisdiction.

But the two countries couldn’t agree in the Joint Committee in the provisions that were made under the Protocol for implementing but that was true.

And so they went on for a period of — from the middle of March to the middle of May arguing about it, whether or not it was in fact within the performance of official duty.

And if not, it was clear under the Treaty that Japan would have the primary jurisdiction.

And this was — this was a case of concurrent jurisdiction because it was a violation of both the Japanese law and the Military Code.

And if — if it was not in the performance of official duty, it was clearly something that Japan would have a right to prosecute under the Protocol under section 3 (b).

And if it was, we would be — we would have the right, the primary right.

And in any event, the Protocol provided that we could waive it or we could decline to exercise the jurisdiction.

So, we had that constant controversy in the Joint Committee that was assigned to try to resolve this kind of problem in the period between the middle of March and the middle of May.

And the Japanese continued to assert their position that it just could not be in accordance with the requirements of the performance of official duty.

And the agreed statement of what is required for that by the United States and Japan was that it had to be some act required by the particular duty.

And the Japanese asserted it just couldn’t comply with that.

And we continued, we still have that certificate in effect even after the day and continued to assert in a — a conference between the two parties and the Joint Committee that it was in the performance of official duty.

We didn’t convince them.

They didn’t convince us.

So, it then came down to the proposition of what the executives should do to try to resolve this international incident —

Earl Warren:

Yes.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

— between the two contending countries.

And the executive looking at the facts, looking at the contentions on both sides and the lack of harmony between the — the parties and the various witnesses as to what happened and the contention of — of substance that there had been enticement — inducement to — to come and get the empty cartridges before the act, considering all of it and the feeling of the Japanese and the fact that they had some 90% — 97% of the time in 5400 incidents when in a year’s time given away to the United States and waived their primary jurisdictions, the executive finally decided to waive this jurisdiction.

And the Secretary of Defense and the Secretary of State and then the President himself reviewed the matter and approved the action to decline the jurisdiction and proceed to notify Japan of the waiver.

Earl Warren:

Yes.

Well, now, General, what — what I was trying to get clear in — in my mind was — was this.

Leaving — leaving the question of waiver entirely out of the case for the moment —

J. Lee Rankin:

Yes.

Earl Warren:

— is there in this case a legal differentiation between an act done merely while on duty on the one hand and an act done pursuant to duty on the other?

J. Lee Rankin:

Well, it is the position of the Government that even if it was an act done in the performance of official duty or an act done in the line of duty which is not the technical words of the Treaty and therefore probably would give Japan jurisdiction.

Earl Warren:

Yes.

J. Lee Rankin:

That the United States has the power and authority under the law to decline jurisdiction and waive it regardless —

Earl Warren:

Yes.

J. Lee Rankin:

— of that point.

Earl Warren:

But — but do you give us one position on which we can stand either that — either that it was done pursuant to duty or — or something different from that (Voice Overlap) —

J. Lee Rankin:

I — I think our stipulation clearly binds us in this Court that this act complies with the requirement of the Protocol for an act done in the performance of duty as far as the posture of this case before this Court is concerned.

And so, the Court must take that as far as that element is concerned and assume that regardless of what the facts of the dispute regarding the facts that —

Earl Warren:

Yes.

J. Lee Rankin:

— this act is or was done in performance of official duty and therefore, complied with the requirement for primary jurisdiction of the Protocol.

Earl Warren:

Yes.

Felix Frankfurter:

Are you saying, if I understand your answer to the Chief Justice on this.

That for purposes of this case, the Government says that 3A — 3A-2 was satisfied.

This is an act of — an act in the performance of official duty.

That you admit that, for purposes of the legal question raised by such an admission or stipulation.

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

But are you saying that non-constant, it doesn’t follow that assuming that a tort action could be brought, assuming — I know that — assuming that a tort action could be brought to the District Court of United States under the Federal Tort Act.

I know I’m making an assumption.

J. Lee Rankin:

Yes.

Felix Frankfurter:

That the Government could take the position by way of defense that in fact the Government is not liable.

That this so far traveled out of the responsibility of the Government as — as the principal of this soldier that under (Inaudible) certain laws of agency and tort, the Government would not be liable.

Is that the line you’re drawing?

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

That is right, Mr. Justice.

Hugo L. Black:

What was in duty?

J. Lee Rankin:

What?

Hugo L. Black:

What was the soldier’s duty?

J. Lee Rankin:

The — the soldier is instructed —

Hugo L. Black:

You said in the performance of his official duty.

What was it?

J. Lee Rankin:

Duty was to guard the machine gun and the field jackets —

Hugo L. Black:

From what?

J. Lee Rankin:

— on the ridge.

Hugo L. Black:

From what?

J. Lee Rankin:

From anyone who might try to damage them or take them away, anything of that character.

The Japanese contended that —

Hugo L. Black:

Either what you are contending is that he went further than he should have gone in the performance of his duty guarding and shot what he shouldn’t have shot.

J. Lee Rankin:

Well, that’s what the Japanese contended Mr. Justice.

Hugo L. Black:

Yes.

J. Lee Rankin:

I — I’m not free in this Court to contend that this is an issue before this Court any longer.

I do want to — the — understood however, that I do think the facts of enticing and the detail of all of those facts have a real bearing on whether it was reasonable for the executive to take the action that he did regarding the question of declining to exercise jurisdiction or waiving jurisdiction.

But when you come to the question of where the primary jurisdiction is found under the Protocol, I think that we are bound by our stipulation in the lower court and in this Court that it was —

Felix Frankfurter:

But what the Chief Justice’s question was directed, was that latter fact.

And he explicitly put to one side for the time being the question of waiver.

J. Lee Rankin:

I — that’s what — the way I understood it, Mr. Justice.

I just want to be clear all the time that I was reserving the other consideration because I think it’s important to the case.

Now —

Then where — where is the exact language of the stipulation in the record you made below?

Isn’t that colloquy with the trial judge?

Yes.

J. Lee Rankin:

Yes.

(Inaudible)

J. Lee Rankin:

I think the last answer at the bottom of page 46A and falling on 47A would give you the commitment that the Government made at that time.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Well, that in the fact is actually the language, isn’t it, substantially of 3A-2?

J. Lee Rankin:

That is correct, Mr. Justice.

Now, it seems to the Government that the — the legal questions involved in the case are these.

The primary question is whether or not under international law there is any immunity from — in the respondent from the laws of Japan for an offense committed in Japan.

There’s no question of what the offense was committed in Japan.

And that the respondent has always been in Japan since the offense was committed.

So, we have to turn to international law to determine whether or not there is any immunity from the laws of Japan for the respondent or any soldier located in that country without a Protocol or treaties or agreements of any kind.

And we believe that in the first place, it’s the position of the United States Government, both the Executive and the Legislative branches that there is no immunity under international law for even a friendly force in a — a foreign country such as Japan.

And that goes back to the Schooner Exchange Case that that this Court has dealt with not directly but by reference from the Covert and (Inaudible) cases in which the Court referred to the fact that there would — would not be immunity.

And it was recognized in the Schooner Exchange case by this Court that any interference or any claim of immunity whatsoever in the country, with a friendly force would be a reduction in the sovereignty of that country.

And it would be taken onto the other country that claimed it, a portion of that sovereign.

And, of course, in that case, the Chief Justice Marshall recognized that even if there was an implied immunity which he recognized as to the Schooner Exchange itself that that could be modified at any time by the sovereign of the country where the friendly force was.

The host country by any agreement or by proceeding to by force or by submitting the particular force to his courts and thereby, remove any implied immunity that there might be.

Now, that the Government has not been able to find any country, any sovereign country in the world that recognizes the right of an immunity under international law.

So that it is — has been the position of the United States both in the Legislative and the Executive branches in the consideration of the NATO Status of Forces Treaty that there is no immunity of — under international law on the laws of the host country as to a friendly force.

Now, there — there is a conflict between some of the writers in regard to that.

But they cite no authority of any practice where any country has been willing to recognize such a limitation upon their sovereign.

And I think the outstanding examples in regard to the position of the United States are, that back in 1942, we considered this question in the Congress.

And the application concerning the military courts of various countries at that time and also the fact that Britain, as a part of the war effort had granted a complete immunity to United States forces.

And the British at the time, they adopted such a position stated that it was a very great departure from their practice and traditions.

It was only done because of the exigencies of the war and the position they were in at the time.

Felix Frankfurter:

Mr. Solicitor I take it that foreign forces — foreign friendly forces at various times have from time to time been stationed, for all I know, I do not know but I assume are stationed now in the United States.

J. Lee Rankin:

That is correct.

Felix Frankfurter:

Is that so?

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

Has there been any arrangement and any provisions, any light to be shed as to the claims we make regarding offenses by foreign forces stationed on our soil?

J. Lee Rankin:

The most that we have ever conceded with regard to the soil of the United States is that and provided in the NATO Status of Forces Agreement which is reciprocal in that it provides the same kind of immunity limited in the same way that was — that is discussed in this case in regard to Japan.

We grant, as to the particular force and acts of the — that are committed by that force against its own people while on the base and so forth and we get the primary jurisdiction but —

Felix Frankfurter:

With the same limitation about in the performance of duty?

J. Lee Rankin:

Yes.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

It’s —

Felix Frankfurter:

I —

J. Lee Rankin:

— its entirely reciprocal between —

Felix Frankfurter:

But controversies may arise as they arise in the courts of law all the time as to whether it is or it isn’t in the performance of duty.

J. Lee Rankin:

Yes.

Felix Frankfurter:

And when there’s a conflict, he now can say, Canada, others from Canadian troops unless it is classified material.

I never know when anything is classified in this [Laughter].

Is that classified?

J. Lee Rankin:

We often have Canadians.

We often have Canadian troops.

Felix Frankfurter:

We have Canadians.

Now, is there — may there be a conflict between a commanding officer and the — our — our military and the Canadian military as to whether an act is or isn’t done?

J. Lee Rankin:

Yes, of course.

Felix Frankfurter:

And how is that resolved?

J. Lee Rankin:

Well, we claimed in, under the NATO Status of Forces Agreement that we have the right as to other countries to decide when the primary jurisdiction lay because of performance of official duty.

And we were not successful in maintaining that position.

The — when the matter came before the British Courts, the parliament, British Parliament — Parliament, they just would not accept.

And they insisted that there be a provision that their courts could pass upon the question of whether or not the — it was satisfied as to performance of official duty.

Felix Frankfurter:

We didn’t ask the Canadian troops on our soils.

J. Lee Rankin:

And — oh, well.

Then after that, the Canadians asserted a similar position.

And it came up for discussion in our Congress in one of the committees of the Senate.

And Senator Hickman commented upon it and said that in Iowa, they certainly wouldn’t be satisfied to have the Canadian Corps decide whether or not some Canadian soldier that would kill someone in Iowa would be acting in the line of duty.

And they would want in Iowa, certainly, to have the Iowa courts pass upon that question.

And in this Protocol, it’s provided that the Japanese court would have the right to pass upon that question.

Felix Frankfurter:

That is as to — as to the Executive as taking its position.

J. Lee Rankin:

That’s right and —

Felix Frankfurter:

Were there the same situations in reference to these Canadian soldiers in Iowa?

Suppose this kind of a situation arose in Iowa.

Would the same — the same kind of arrangements govern and the same kind of decision is taken?

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Felix Frankfurter:

That is, Canada claimed it was not within the — within the performance — as in the performance of his duty.

And he would claim it was.

And — and then there might be a deadlock between — within the committee and it might be resolved between the Governments.

Does that happen as to Canada, the same country?

J. Lee Rankin:

Yes, it could.

Felix Frankfurter:

But then the Court comes in, in case there is a trial in the — in the Court.

The Court would also then go into this question whether on the merits as it were.

It was or wasn’t in the performance of duty.

And would not be concluded by the military determination, is that it?

J. Lee Rankin:

I think that’s true.

Although our State Department contends that there would still be a possibility of having it resolved on a diplomatic level —

Felix Frankfurter:

But that’s the —

J. Lee Rankin:

— but if it didn’t — it couldn’t be resolved there and they insisted upon it, then we would get down to the place where the courts would have to act.

Felix Frankfurter:

But as I understand it — as I understand it, if I have it clearly.

You say that with reference to foreign troops Canadian, English, French, Australian or what not stationed in this country the same kind of — of — the same provisions of Treaty ,Protocol, agreement, et cetera, same kind of machinery, the same kind of determination and the same kind of relationship between the two Governments, is that right?

J. Lee Rankin:

That’s correct.

Could I ask a question there?

Before the status of forces agreements went in to effect, what was the situation with respect to Canadians and Britishers in here?

J. Lee Rankin:

We would not recognize any immunity from our laws, whatsoever.

We had visiting Canadians during the war before — before the Status of force — Forces Agreement went to effect received no immunity, did they?

J. Lee Rankin:

We — we did recognize providing there was a presidential determination that was necessary that they could court-martial such visiting troops.

But we never recognized any immunity from our courts either state or federal.

In fact, we expressly rejected any such concept.

And it was suggested by Senator Revercomb in the Senate when they were considering the — this particular provision allowing their courts-martial to discipline their troops but that kind of a procedure instead of half the immunity.

At that time, he suggested that since the British were willing to grant complete immunity to us from their courts that we should make the same grant for visiting forces of the British within the United States.

And the Congress rejected that idea.

Earl Warren:

General — oh, pardon me.

Harold Burton:

You point out in this case that waiver and if the waiver is valid, all this controversy drops out of sight doesn’t it?

J. Lee Rankin:

Yes.

Earl Warren:

General, if I may revert to the Canadian incident, so-called, again.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Earl Warren:

Assume that the Canadian forces were in this country and that an offense was committed identical with this in all respects.

Is there any precedent for determining or for saying whether this country would insist upon trying the defendant or whether it would turn him over to the Canadian Government?

J. Lee Rankin:

Well, the only precedent is the position of the Congress in this — when this matter came up as to immunity that I know of and I can’t conceive that our people would be satisfied to recognize any limitations of the constitution of — of Canada or the statutes of Canada that would be binding upon the courts of this country in regard to whether we were trying or committing some homicide against our people.

Earl Warren:

Yes, sir.

J. Lee Rankin:

It’s — the Congress rejected the idea explicitly.

And we have only recognized this to the extent of the NATO force — Status of —

Earl Warren:

Yes.

J. Lee Rankin:

— Forces Treaty —

Earl Warren:

Yes.

J. Lee Rankin:

— where there’s considerable limitations on it and there are provisions for protecting —

Earl Warren:

Yes.

J. Lee Rankin:

— the interest of the respective countries.

Earl Warren:

But General what I — what I really have in mind was this, not — not a legal precedent but is there any administrative precedent in the country?

Has anything of this kind ever happened in this country to your knowledge where we acted one way or the other in a situation comparable to this?

J. Lee Rankin:

Now, I don’t know of any —

Earl Warren:

Yes.

J. Lee Rankin:

— Mr. Chief Justice —

Earl Warren:

Yes.

J. Lee Rankin:

— but we’ll examine that.

I haven’t heard of any at all.

Earl Warren:

Yes.

J. Lee Rankin:

I think it would have come to our attention during the consideration of this case.

William J. Brennan, Jr.:

Well, Mr. Solicitor, it’s maybe actually the same question but I think you told us that in cases within primary Japanese jurisdiction, they’ve actually surrendered in 97% I think you said.

J. Lee Rankin:

Yes, there were 5400 cases in one year’s time ending November 30 of 1956, as I recall.

And 97.5% of the time the Japanese waived their primary rights.

William J. Brennan, Jr.:

Which — which is to say then, they send those soldiers over to our forces for court-martial?

J. Lee Rankin:

Yes.

Now, mainly —

William J. Brennan, Jr.:

(Voice Overlap) —

J. Lee Rankin:

— those were traffic offenses and lesser offenses.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

But there were some of real substance.

William J. Brennan, Jr.:

Well, now since the Status of Forces Agreements, we have had foreign troops stationed to this country, have we not?

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

I take it some of them had gotten in difficulties of one kind or another?

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

What have we done?

Have we tried them or have we turned them over to their nations for court-martial?

J. Lee Rankin:

Our practice has not been so liberal.

We have not waived in very many cases.

There’s one British case that I know of in which there was a waiver in order that — in the homicide case where a soldier and a girl went out in a taxicab.

And they killed the taxicab driver.

And they — the girl would obviously be a subject to the British law and the soldier would not under the Treaty and we waived in that situation.

They were both tried in Britain as

(Voice Overlap) —

William J. Brennan, Jr.:

Well, then I — what — what I’m thinking of, in our own country where the foreign troops has been involved in incidents, which ordinarily would have been exclusively for disposition in American courts.

Have we disposed of them in American courts or have we turned them over to the nations for court-martial, as you tell as the Japanese had done in 97.5% of their case?

J. Lee Rankin:

Our way — we haven’t waived very often.

William J. Brennan, Jr.:

We have not.

J. Lee Rankin:

No.

William J. Brennan, Jr.:

Did —

Felix Frankfurter:

Mr. Solicitor, could you — if I may carry on the Chief Justice’s and Justice Brennan’s questions.

Would it be possible between now and the time this argument closes to have had from the Department of Defense instances that specifically answer the questions put to you.

Namely, whether charges of major crimes by Canadians, where they’re restricted to that, by Canadians stationed on our soil whether in such a case the question has arisen in which we saw or some State, this could normally be a state prosecution, what’s — in which some State of the Union asserted its local jurisdiction and Canada invoked her interest under the Treaty to have the alleged conflict turned over to its authorities, could that be done?

J. Lee Rankin:

I’m advised Mr. Justice by my associates that we have never been asked to waive.

That there are only three or four cases of such crimes that have occurred and we were never asked to waive.

Hugo L. Black:

Where did they occur?

Did they occur on some base occupied by foreign troops in this country?

J. Lee Rankin:

I’ll try to follow that up.

Hugo L. Black:

What did you say?

J. Lee Rankin:

We’ll see if we have that information in our attention.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

(Inaudible)

Hugo L. Black:

I — I was wondering if they were similar unless that were the case.

Do we have any such situation in this country as there is in Japan for the rest of our troops?

J. Lee Rankin:

Well, I’m getting into a field that I’m not an expert in regard to what maneuvering areas we have.

But, of course, we have here, I know, troops that are engaged in the — in the study of various methods that we have in our Defense Department.

And they might very well be participating in maneuvers that our troops are engaged in but nothing of the character or the size are of a large number of troops that are involved in this particular —

Hugo L. Black:

What I had in mind was that we have in this print here or has there been in this country, foreign troops on a base where the foreign troops are required to guard the base inside the base and where a soldier has been put out on guard duty to guard a point on the base.

And where they were, under those circumstances, the — this country has claimed the right to try this foreign soldier who has injured or killed some American who had reached the base.

J. Lee Rankin:

I’ll try to find out if there’s any answer to that whether such an event has occurred, whether that has happened on any (Inaudible)

Hugo L. Black:

Is that substantial to what occurred here?

J. Lee Rankin:

Well, I — I’m —

Hugo L. Black:

I mean under the facts.

J. Lee Rankin:

Find the difference, Mr. Justice, in fact that if he was directed to guard certain weapon and certain field jackets.

Hugo L. Black:

But with regard to — was he to guard that area in which the weapons were located?

J. Lee Rankin:

The instructions were limited to the machine gun and the field jackets.

That was all of his instructions.

Felix Frankfurter:

Did I understand that (Inaudible) is apprehended?

Did I understand that this territory, I’m talking about the geography, was not an exclusive American base which was partly shared with the Japanese?

J. Lee Rankin:

That’s correct, Mr. Justice.

That about 40% of the time, it was used by the Japanese Defense Forces.

It was used a balance of the portion of the time by the United States and the remainder which was a substantial portion of the time by the Japanese civilians in farming and other activities of various kinds.

Hugo L. Black:

Was the base occupied by the troops of two different countries?

J. Lee Rankin:

Well — and also by the Japanese civilians.

Hugo L. Black:

What did they use it for?

J. Lee Rankin:

For farming and all kinds of civilian activities.

It was a maneuver area as distinguished from the ordinary base.

It was a very — it was a substantially large area.

Hugo L. Black:

Was this a firing area?

J. Lee Rankin:

This particular part was not a firing range.

But it was being used for maneuvers and there was firing on it during the first portions of the new —

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Hugo L. Black:

Practice firing?

J. Lee Rankin:

Yes, they used live ammunitions at first.

And the commander found that that was unsafe because of the Japanese civilians in the area and instructed them to use blanks.

And they did use blanks from then on.

Hugo L. Black:

And it was then the duty while that was going on of someone to guard the gun at that point from other people and the government property?

J. Lee Rankin:

That was the instruction to guard the machine gun —

Hugo L. Black:

Did that include guarding this particular shell?

J. Lee Rankin:

Well —

Hugo L. Black:

Does — does the record show that?

J. Lee Rankin:

The record in the affidavit of the general counsel of Defense Department would show that the practice was to let the Japanese civilians pick up shells before and after this period for sometime.

Hugo L. Black:

Will the case — would the case be different in your judgment if the man had been given an express order, the soldier had been given express order that was conceded?

To guard this point, keep anybody from getting the shell.

They only dispute but further, he went further than his judgment that then good judgment require?

J. Lee Rankin:

Well, I think there would a very material difference in the case if he’d been instructed to guard this machine and these cartridges or these empty cartridges.

Hugo L. Black:

In that case, would the fact that there is a general immunity so that Japan could try if they can get it?

Would that be decisive in connection with whether it was the duty of — of this country’s commander —

J. Lee Rankin:

Well —

Hugo L. Black:

— if they had ordered him to do something, to protect him so far as they could from being tried in another country for that offense?

J. Lee Rankin:

Insofar as the law is concerned, there wouldn’t be any difference insofar as — of the Japanese right to try the man because he — he would not be immune from their law.

Hugo L. Black:

But would there be any difference in the duty of the commanding officer who had required him to — to do a specific thing?

J. Lee Rankin:

Well, then you come into what the rights are under the Treaty which they contend are invalid that the Government had no authority to make them and reduced the rights of the respondent by making them because they claim that he had absolute immunity from the Japanese law.

So that their case depends upon whether or not you find under international law that there was an absolute immunity from Japanese law.

Hugo L. Black:

The point of my inquiry was that the Government have to stand or does it stand at all on the proposition.

A soldier who’s carried into a foreign country, given orders to obey orders and does obey orders.

That the country then has the right, that the commanding officers have the right after he’s obeyed their orders and done what they said and turn him over to a foreign country to try him for having obeyed the orders of his commanding officer?

J. Lee Rankin:

Well, that case isn’t here but the — the purpose of providing as the Government did in the agreements that in such cases they would have primary jurisdiction is to try to protect against that very situation.

So that he is not in conflict between the law of Japan.

And the fact that he has no immunity under that law.

And the direction of his superior for which he might be court-martialed if he didn’t comply.

And that is the reason why the Government got the provision in the Treaty to try to protect that situation.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

But even (Voice Overlap) —

Hugo L. Black:

Wouldn’t that be enough under those circumstances for the Government merely to get a provision to try to protect when he had the power to protect the soldier from them anyhow for obeying an order?

That is why I’m trying to find out if the Government is required to stand at all on the basis that if a soldier is carried to Japan or any other country, obeys orders for which he could be court-martialed if he disobeyed, the Government can then — authorities can then turn him over voluntarily on any basis to be tried by another country.

J. Lee Rankin:

Well, all the way through the agreements and the law there’s no question with what the Government has the right to decline to prosecute or — or to waive the right to prosecute.

It’s a governmental right.

It belongs to the State and not to the individual.

So that the Government has the right, even though he was acting in accordance with the instructions.

Hugo L. Black:

How do you go from that (Inaudible) to the position that the Government would have a right to subject the soldiers being tried by another country for obeying the orders of his commanding officer by which he could then court-martial if he disobeys?

J. Lee Rankin:

Well, the — the difficulty with your question, Mr. Justice, is that the Government doesn’t have any right to keep Japan from prosecuting someone who commits an offense against their law —

Hugo L. Black:

If they can get it him.

J. Lee Rankin:

— within their country.

Hugo L. Black:

If they can get it.

J. Lee Rankin:

That’s correct.

And they have the power either by insisting that he submit himself to their Courts as are — the Chief Justice Marshall recognized in the Schooner Exchange case or by the use of force because there is no immunity from their laws.

And he commits the offense against their laws.

And we can’t withhold him from that because there is no international law that recognizes that power.

Now, the only way we can possibly withhold him is to the extent that we can make treaties, which reduce that sovereign power of the other sovereign country.

Felix Frankfurter:

What you’re saying is that in any event if Japan forcibly got hold of an American, no matter how he got there, they would have unquestioned right to try him in their courts because we have held, this Court has held again and again that if you can get a man who is in one State into the other State where he committed the crime, it doesn’t matter that he was — as if were kidnapped.

So that if by force, Japan could get hold of an American who commits a crime in Japan, diplomatically, in international lawly speaking, we would have no case against him.

J. Lee Rankin:

That’s right, Mr. Justice.

Felix Frankfurter:

And what you say is that to avoid these forcible encounters, a Treaty was made.

J. Lee Rankin:

That’s right.

Now, even those writers in regard to international law that claimed that there’s an implied immunity which they are unable to support by any showing that is recognized by any country of the world or practice, agree that that immunity can be waived by agreement of the country involved.

So, we have the situation where there is no — under international law, there is no immunity, in the first place.

The most extreme position of the theorists in regard to, is that it could be waived by any kind of an agreement.

So that here we have action by the two countries who are unwilling to recognize immunity or leave it to that, provided — provided in treaties, how it should be handled.

And we have the — the Security Treaty, which was entered into between the two countries and was ratified by the action of the Senate.

And it came into force on April 28th of 1952.

Now, at the same time that the Congress considered that Security Treaty which provides in one — in a paragraph of Article III, the conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between two Governments.

At the same —

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Hugo L. Black:

Is that the only provision —

J. Lee Rankin:

That’s the only —

Hugo L. Black:

— in the Treaty —

J. Lee Rankin:

–only provision —

Hugo L. Black:

— on which bearing our name that is a right —

J. Lee Rankin:

In the Treaty —

Hugo L. Black:

— to commit trial by the Japanese?

J. Lee Rankin:

Now, that’s the only Treaty, Mr. Justice.

Hugo L. Black:

Referring to the disposition of soldiers?

J. Lee Rankin:

But as the same time that the Senate considered that Treaty, they had before it the Administrative Agreement which provided in detail for the Article XVII which gave exclusive jurisdiction to the United States.

Felix Frankfurter:

What does that mean they had before it?

J. Lee Rankin:

They — they had and considered, it was already signed and they considered this administrative agreement.

Felix Frankfurter:

You mean it was laid before or what, the whole Senate or the Committee on Foreign Relations?

J. Lee Rankin:

Yes and it — and it was published twice in the congressional record.

It was considered in the debates.

And there was a motion made by Senator Jenner to have this Treaty, this Administrative Agreement brought back to the Senate for action by the Senate before it would become effective.

And that motion was rejected by a vote of 45 to 22.

So —

Hugo L. Black:

Was that agreement with —

J. Lee Rankin:

I beg your pardon?

Hugo L. Black:

You said an Administrative Agreement between whom?

J. Lee Rankin:

Between Japan and the United States.

So that the Senate took —

Felix Frankfurter:

Isn’t that the — that that’s the agreement under which all this is — that’s the agreement printed in your brief?

J. Lee Rankin:

Yes, there’s only one more step that I have to cover.

But before leaving the administrative agreement, I want to make it clear that a part of this motion that was made by Senator Jenner was that involved the issue of whether or not the President could declare a war or the Congress could declare a war and so forth.

But the issue was squarely in the motion.

Whether or not this particular administrative agreement, which had been signed prior to that time, had to be brought back to the Senate for action.

And the —

Felix Frankfurter:

What was the date of the Treaty when the Treaty was ratified by the Senate?

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

Its on page 7A, March 20th, 1952.

Felix Frankfurter:

March 20th.

The — the Administrative Agreement I gather from your appendix was signed at Tokyo, March 20, when?

J. Lee Rankin:

1952.

Felix Frankfurter:

The Administrative Agreement was signed at Tokyo on February 28th, 1952.

J. Lee Rankin:

Yes.

Felix Frankfurter:

What you are saying it was entered into force, April 28th, 1952.

J. Lee Rankin:

Which was the same —

Felix Frankfurter:

That was after the Treaty was ratified by the Senate?

J. Lee Rankin:

Yes, but they both entered into force at the same date.

You see that on page 7A, the Treaty entered and in force, the last line in April —

Felix Frankfurter:

Oh, yes.

So, what you’re saying is, you may have the exact date for all I know, is that while the Security Treaty was under discussion on a motion or appropriate proceedings for ratifications, this Administrative Agreement signed — signed so far as the Government of United States and the Government of Japan are concerned, it was completed, is that right?

J. Lee Rankin:

That’s right.

Felix Frankfurter:

And that was before the Senate before it ratified the Treaty.

J. Lee Rankin:

Yes.

Felix Frankfurter:

And you further suggest that in connection with or prior to the ratification of the Treaty, a proposal was made by Senator Jenner, I think you said.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

To the — with a view to providing that the agreement should not get into — become — go into effect until the Senate itself formally — whatever you had acted upon, is that right?

J. Lee Rankin:

Yes, Mr. Justice.

Harold Burton:

And then didn’t the Treaty itself provide that same things would have to be done by administrative agreements?

J. Lee Rankin:

Yes, it did.

Now —

Felix Frankfurter:

The Treaty authorized entering into an administrative agreement.

J. Lee Rankin:

That is correct, Mr. Justice.

Felix Frankfurter:

An Administrative Agreement within process of adoption between the two countries in Japan.

It was adopted between the two countries.

It was made before the Senate.

It was sought to make the legal — the legal validity of that agreement contingent upon Senate action and the Senate rejected that proposal.

J. Lee Rankin:

That is correct and you (Voice Overlap) debate —

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Hugo L. Black:

Where –where is the provision now in the agreement on which you specifically relied (Inaudible) the page is what, for the specific provision?

J. Lee Rankin:

On page 18A —

Hugo L. Black:

Which part?

J. Lee Rankin:

— the bottom of page of 17A, Article XVII.

So, that’s the sort of the Protocol (Inaudible)

J. Lee Rankin:

That’s right.

(Voice Overlap) —

Hugo L. Black:

It’s got plenty of details.

J. Lee Rankin:

Well, the agreement provides specifically, first, that the United States should have exclusive jurisdiction.

And in addition, that it shall have the right to waive any jurisdiction.

Then the agreement also commits the United States at the time of the signing of the agreement to give to Japan at its request whatever we do in regard to the NATO’s — NATO Status of Forces Agreement when — when that is completed.

So —

Hugo L. Black:

But where is it written on that that shows that Congress when it looked at this agreement knew that it was agreed that a soldier who was charged for some offense in the performance of his duty could be tried by defense?

J. Lee Rankin:

Well, they were given due notice —

Hugo L. Black:

Where was it given in this Treaty for this agreement.

That’s what I understood you said.

Where was it given?

J. Lee Rankin:

When the motion was under Jenner, it came up.

Hugo L. Black:

Where was it given in the agreement if it was?

It’s in Article XVII —

J. Lee Rankin:

Well, in Article XVII and on page 18A, in paragraph 2.

It was made clear that the — that the United States was already committed by this agreement to give Japan, at its request, the benefits of the Status of Forces Agreement when those were consummated.

Hugo L. Black:

It would also provide a good way.

J. Lee Rankin:

That’s right.

Hugo L. Black:

You said (Inaudible)

J. Lee Rankin:

Such jurisdiction may in any case be waived by the United States.

William J. Brennan, Jr.:

Well, that would pending to the coming into effect of the Status of Forces Agreement.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Now, one — one other thing, Mr. Solicitor, did you suggest that in the discussion of the Treaty itself, the Security Treaty, in Article III and more particular, is the language shall govern the disposition of armed forces that there is something in the debates or community hearings or something which indicates that the Congress included within disposition of the armed forces these matters covered by the administrative agreement?

J. Lee Rankin:

Well, in the — the base in concerning the Jenner —

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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William J. Brennan, Jr.:

Yes.

J. Lee Rankin:

— resolution or motion, Senator Sparkman sought to answer that motion.

And in his elaboration and he proceeded to say, described the criminal jurisdiction that would be involved that under the administrative agreement, we would have exclusive jurisdiction with the right to waive but we would have the duty and the obligation already committed by the Administrative Agreement to proceed to give Japan at its request the benefit of the NATO Status of Forces Agreement, whatever that was when it finally was -that applied and acted upon by the.

(Voice Overlap) —

William J. Brennan, Jr.:

And that can suggest this recognition that — that that was the kind of Administrative Agreement dealing with “the disposition of armed forces?”

J. Lee Rankin:

Yes.

And he — Senator Sparkman proceeded to describe the fact that there would be the problem with the criminal jurisdiction and that it was best handled by Administrative Agreement rather than having it come back to the Senate.

So that if the Senate was put on due notice that’s set out in — on page 46 and footnote 17, the — a portion of Senator Sparkman’s discussion with the matter.

So, the Senate had full notice of the nature of the administrative agreement.

In fact, that it gave exclusive jurisdiction during the interim, that it provided for a waiver, complete waiver and that the Government was already committed by that agreement to give them the benefit of the NATO Status of Forces Agreement.

Harold Burton:

In your brief, you also make the point do you not that the Treaty itself provided not merely that there’s going to be the Administrative Agreement as to disposition of truth.

But the Administrative Agreement was to cover and determine conditions which shall govern this provision of truth, giving it more than disposition.

J. Lee Rankin:

Yes and it “The Administrative Agreement sitting before the Senate at that time showed them and completely, exactly what it was.”

They had the whole thing there before them.

It was considered in the Committee as is shown by our brief.

And it was also considered in connection with this motion.

And so, they knew that on the question of the conditions as to disposition of truth.

It isn’t just disposition of conditions.

That it included not only criminal jurisdiction but taxation, the use of electric power, maneuver areas and many other considerations that had to be covered in order to handle problems of that character.

Felix Frankfurter:

What was the state of the negotiations for the NATO agreement at the time that reference to it was made in this agreement, roughly that it’s well advanced.

That –?

J. Lee Rankin:

They had been signed and sent to the Senate not yet since to the Senate, Your Honor.

Harold Burton:

They had been signed in 1951 for a long time before this was pending.

And when was it actually acted upon by the Senate as a Treaty?

J. Lee Rankin:

My recollection was in 1953.

Harold Burton:

But it was back acted on fully as a Treaty by the Senate in the (Inaudible)

J. Lee Rankin:

Yes and there was a discussion at that time of the effect that we were committed to Japan and would have to give them the benefit of it if they would request it —

Charles E. Whittaker:

The Protocol —

J. Lee Rankin:

— because the Senate had full knowledge of that.

Charles E. Whittaker:

The Protocol says that the NATO Treaty became effective August 23, 1953, does it not?

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Charles E. Whittaker:

Page 23A of your brief?

J. Lee Rankin:

That’s correct, Mr. Justice.

Then we have to — in order to get the complete steps, we have to go to the Protocol, which was executed at the request of Japan as we had already agreed and were committed by the administrative agreement, which gave them the benefit of the same provisions of the Status of Forces Agreement.

We have such agreements with over 49 different countries throughout the world.

And Japan got exactly the same, no — no less and no more than all of the other NATO countries in connection with this Protocol.

Then we get down to the provisions of a Protocol carrying this particular matter.

And that is set at — set forth on pages 24A and 25A.

The Protocol as such never got to the Board of Senate I take it.

J. Lee Rankin:

No, I —

Charles E. Whittaker:

Except to the fact that paragraph 1 of Article XVII declared its conclusion upon (Inaudible)

J. Lee Rankin:

That’s correct.

Charles E. Whittaker:

(Inaudible) into the administrative agreement?

J. Lee Rankin:

Now, we feel — the Government feels that the United States was committed and that the Senate had this before in the Administrative Agreement at — and the Security Treaty so that it knew that it was committed by those instruments to give the benefit of the NATO Status of Forces Agreement to Japan whenever that came into effect.

And it was also called to the attention of the — the Senate at the time that they acted upon the NATO Status of Forces Agreement that they were already committed to give the same thing in a — to Japan.

So, they had full knowledge about both of them.

Tom C. Clark:

Mr. Solicitor General, I assume that you had no protocols.

Then you’d have exclusive jurisdiction in the United States, wouldn’t you?

J. Lee Rankin:

Yes.

Tom C. Clark:

And the right of waiver?

J. Lee Rankin:

That’s correct.

Tom C. Clark:

So, the proposal that you may carry it and even under the provisional administrative agreement, (Inaudible) protocols, still the United States could waive and turn over a soldier to the receiving country.

J. Lee Rankin:

That is correct, Mr. Justice.

We take the position that without any agreements whatsoever, Japan would be able to prosecute.

And there were two British sailors that they proceeded to prosecute against the objection of Britain.

So, they asserted that they would recognize no immunity under the law or from their law.

And without any Security Treaty, Administrative Agreement or Protocol, they could proceed to prosecute by reason of international law because there would be no immunity.

That the —

Felix Frankfurter:

Subject — subject to an argument by us, diplomatic I take it, that they were certain implied implications from allowing our troops down there.

J. Lee Rankin:

Yes, we could make that argument.

Felix Frankfurter:

Yes.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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J. Lee Rankin:

But we don’t — we are unwilling to concede it to anybody as far as we’re concerned.

Felix Frankfurter:

What I’m saying is that — I just want to be meticulously active about the statement you made subject to a claim that there was an implication of consent to have us try by a court-martial somebody who did something within the military jurisdiction of this country.

J. Lee Rankin:

Yes, there would still be —

Felix Frankfurter:

This is very important.

J. Lee Rankin:

(Voice Overlap) —

Felix Frankfurter:

This is a provision in case of conflict between the two countries about which there are conflicts in every lower court in the United States practically everyday of the year of some provision in case of conflict about the facts.

Is that correct?

J. Lee Rankin:

Yes, Mr. Justice.

Then the Security Treaty and the Administrative Agreement gave the United States the exclusive jurisdiction with the right to waive so it could have acted just as it was done here under that waiver.

Hugo L. Black:

It wouldn’t have to have the NATO extension that —

No.

— under your theory?

J. Lee Rankin:

That’s right.

Then after the Protocol came into effect, it went further insofar as the United States was concerned.

The Government does not recognize that the respondent had a right as to whether or not the United States would exercise jurisdiction or waive jurisdiction.

That is a right that belongs to the State and so recognized under the decisions.

But the State gained the benefit under the Protocol of the right to — to have a primary jurisdiction in certain situations and to decline jurisdiction and to waive jurisdiction.

And the — in this case, the Government has, after considering all of the facts, decided to exercise this right to decline jurisdiction under section 3 (c) and proceed to notify Japan and that is the act in question.

And there’s a — a number of cases in which the Court — this Court has taken the position that it will not review that action if it finds that there is a discretion in the Executive to exercise, that it will not proceed to review it and determine whether it should have been decided one way or another because it has not considered the Court competent to pass upon those various questions of foreign relations.

The Executive had to review this particular situation, the problems as to this respondent, the fact that Japan had waived in some 97.5% of all of these cases.

That we have secured waivers in 72% of some 3200 cases over a period of three years from all of the NATO Status of Forces countries including Japan.

And the effect on the foreign relations of this country and Japan, all of those factors and the knowledge that the executive had — had to come into play and be considered in determining whether to define jurisdiction or to waive jurisdiction.

And since it was a sovereign right that belonged to the State, the Executive proceeded to exercise it on behalf of the best interest of the State.

And we think that there could be no abusive discretion here.

That there’s a reasonable action.

And it was a –a right of the State and — and the Executive proceeded to exercise it.

I’d like to reserve the balance of my time.

Earl Warren:

Mr. Robinson.

Joseph S. Robinson:

May it please this honorable Court.

It is with deep respect and humility that I speak for the men and women in the armed services of the United States overseas and for those of us at home who live at this sellout program whereby the constitutional rights of American soldiers overseas are stripped from them is wrong.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

It is these men on whom this nation relies for its security, for its honor and for the respective place, which this nation has in the family of nations.

Directly involved is the person of a humble citizen born in Illinois because this Court well knows the issues in this case probe deeper and the question here to be established will determine the course that this nation will follow for a long time to come.

This Court recognized the importance of the question by calling this special session.

Upon the right, record of this case, there is no issue of fact.

They were stipulated in the court below.

They are very simple.

An 18-year old boy born not far at all from the birthplace of Abraham Lincoln, volunteered to serve in the armed forces of this nation, wherever deemed necessary.

Although, he was uneducated, the spirit of freedom and the realization of the dangers confronted this (Inaudible) without caused him to don the uniform of the American soldier of which he is justly proud.

He is not militaristic.

He did what many of the youth of this nation have done before him.

He desired to do his best, return to his home in hopes that upon return, it may be more secure and that he may live a more abundant life.

At the end of his three-year term, conditions being what they are, he volunteered for an additional term.

And the duty which was assigned him was not the easy task.

He was the foot soldier carrying the gun and the other instruments of destruction.

During his second term of enlistment and on January 30th, 1957, after a morning of target practice and sweat, he was ordered to guard American property on an American firing range known as Camp Weir.

Trespassers came on to serve their own purposes.

He fired an empty shell to scare them off, not to kill.

And unfortunately, that act resulted in the death of a Japanese national.

Our Government, being fully competent and equipped to judge on our standards, and I stress on our standards, thus it’s a very material issue in this case, whether he acted rightfully or wrongfully, then decided to let the Japanese Court pass judgment on this situation.

Admittedly, none of the constitutional safeguards which he would have or which he has as American citizen though worthy to be tried before an American Court would be carried forward with him.

I note that — that the Solicitor General has been eloquently silent on the subject of the type of trial he would receive and what would happen to this boy before the Japanese Court, who according to the press, have been clamoring to have him brought before them for justice as they understand it and in accordance with their system and under their code which an American lawyer practicing in Germany has declared is an absolute joke and one of the most antiquated systems of — of justice that exist in any nation of this world, including some of the Arab countries.

Now, how did this all come about?

And by what method did the United States, acting through the Executive, turn this boy or agree to turn this boy over to the Japanese Government to stand trial on their system of law?

And what is the historical background?

It started in this fashion.

Before the termination of World War I, the United States exercised exclusive jurisdiction over its troops in every country of the world.

Despite the statements by the Solicitor of the contrary, the fact remains that the United States exercised exclusive jurisdiction over its troops wherever they were stationed.

That is the law.

That has been the international law.

It has been recognized from time immemorial.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

And on the subject of immunity —

Earl Warren:

Now, on that — on that question, was there any differentiation between where we were conquering troops or —

Joseph S. Robinson:

No, sir.

Earl Warren:

— whether we were there as hosts?

Joseph S. Robinson:

No, sir.

Earl Warren:

I mean as — as guests of the (Inaudible)

Joseph S. Robinson:

There was no difference, Your Honor.

And I — I — on that subject —

Earl Warren:

Is there authority to — what — what authority do you — do you point to —

Joseph S. Robinson:

I will in just one moment, Your Honor.

Earl Warren:

All right.

Charles E. Whittaker:

Mr. Robinson, may I ask you?

Joseph S. Robinson:

Yes, sir.

Charles E. Whittaker:

In those instances, while — were there covenants under which —

Joseph S. Robinson:

No, sir.

Charles E. Whittaker:

There were not?

Joseph S. Robinson:

There were not.

There was the international law.

And I’ll get to that in one moment.

And while the subject matter of the immunity from foreign jurisdiction both — both personal and territorial was to be taken up by Mr. Carroll and he will go into that thoroughly, I want to make a few brief comments on that subject in passing since Your Honor raises the issue.

As we well know, international law does not change overnight or within a few years or because of views entertained by the Solicitor General, the Attorney General or some underlings working in the State Department.

Let me tell you, Your Honors, what the United States position was, only three and a half to four years before we had this complete turnabout.

And it appears in the congressional record, a hearing before the House of Representatives had on July 26th, 1935.

Earl Warren:

Is that in your brief?

Joseph S. Robinson:

No, sir.

This is something Your — Your Honor must know we burned the midnight oil until dawn.

(Voice Overlap) —

Joseph S. Robinson:

And this is one thing I only uncovered the last day or so.

Earl Warren:

Could you give us a memorandum, please, of that and any other citations that you —

Joseph S. Robinson:

I’m not referring to a citation.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Earl Warren:

Well, — or — or any other authority that you referred to so that we may have it (Voice Overlap) —

Joseph S. Robinson:

Your Honor, I will.

Hugo L. Black:

What are you reading from that congressional record?

What —

Joseph S. Robinson:

I’m reading from the brief, which was submitted by the United — I’m not reading from them.

I’m just going to give you one of the text of it, a brief which the United States Government gave to the Canadian Supreme Court on this question of immunity from foreign jurisdiction.

And these were the facts.

William J. Brennan, Jr.:

Where was that in the brief?

Joseph S. Robinson:

It appears, Your Honor, beginning at page 404 of the hearings on H.J.Res.309, Part 1.

Hugo L. Black:

H.J .Res.

Joseph S. Robinson:

Res.309.

And the dates on the bottom are July 13th, 14th, 19th, 20th, 21st and 26th.

William J. Brennan, Jr.:

What year?

Joseph S. Robinson:

I’m sorry, Your Honor.

They’re 1955.

William J. Brennan, Jr.:

1955.

Joseph S. Robinson:

1955, yes, sir.

The law up to that point had always been clear and insofar as we know it still is clear.

But this is what happened in this Canadian situation.

The Canadian Government was confronted with a large number of American forces on their territory.

It was not conquered territory.

It is our neighbor, our friendly neighbor and a country whose laws are more nearly akin to ours than any in the world.

And our today, armed forces is a naturally — it would be on bill of actions.

That’d be events that would give rise to crime.

And the issue was before the Canadian parliament as to whether or not they may make a law which would deprive our forces in Canada of the immunity which they enjoyed under the recognized principle of international law.

And the case — the problem was submitted to the highest court of Canada.

I don’t know the title of the court.

And the — the Attorney General, and as far as I really must write it quickly.

Then I know the chief justice of that court asked for a memorandum on the subject from the United States.

And we submitted a memorandum.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

It was either 1944 or 1945 or somewhere in that year, just a few years before this turnabout came.

And the memorandum — in the covering letter which came from obligation to the — to the highest court of Canada, this is the position which our Government then took, “I have the honor to enclose for such purposes you may care to make, a memorandum which sets forth the views of the United States Government on the right under international law of the members of the armed forces of the United States on Canadian territory with the consent of the Canadian Government, to immunity from local jurisdiction and criminal matters.”

Charles E. Whittaker:

Does that say on Canadian file with the consent?

Joseph S. Robinson:

Yes, sir.

I — I think I read it correctly.

Felix Frankfurter:

What’s the date of this memorandum?

You said 1955 and 1945 (Voice Overlap) —

Joseph S. Robinson:

I’m sorry — I’m sorry, Your Honor.

The exact date of the transcript of letter was May 27th, 1943.

Felix Frankfurter:

1943.

This was during the war.

Joseph S. Robinson:

This was during the war.

Felix Frankfurter:

1955 as evidenced was the date of the publication in which you found it.

Joseph S. Robinson:

That’s correct, Your Honor.

Felix Frankfurter:

All right.

Joseph S. Robinson:

That’s correct.

It came to light, as far as I was concerned, only upon my getting the chance after working on this brief under much pressure to read some of these congressional hearings and I may say in passing.

They are rich with information, which is directly contrary.

I don’t like to say it but it’s a fact, directly contrary to the information which my adversary has been given to this Court today.

Not only contrary.

Senators have stated in — in other congressional hearings that information which Mr. Rankin has given and which other high government officials has given.

I don’t like to say it, but it’s a fact that it was false, untrue and misleading.

And I will get to that subject in just a few moments.

This — and I only want to quote from a few extracts of this brief and then see what happens from that point on when you wanted to serve some selfish purpose of some small man in the State Department selling out on jurisdiction, they had to reverse the rule to suit their own purposes.

Felix Frankfurter:

That includes the President of the United States.

Joseph S. Robinson:

No, sir, I said —

Felix Frankfurter:

(Voice Overlap) —

Joseph S. Robinson:

— the small boy in State Department.

It does not include the President of the United States.

[Laughs]

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Felix Frankfurter:

But the President of the United States is supporting this.

You hit too hard —

Joseph S. Robinson:

I understand that.

Felix Frankfurter:

— without being discourteous to the officials of the (Voice Overlap) —

Joseph S. Robinson:

I have no intentions of being discourteous to the President of the United States, but he too may be wrong, Your Honor.

Felix Frankfurter:

He may be wrong but you can courteous in arguing even serious questions.

Joseph S. Robinson:

Very well, sir.

Quote on page 405 of the congressional record.”

One of these rules recognized immunity from local jurisdiction in criminal matters of members of the armed forces of a foreign sovereignty on the territory with mission or by the consent of the local sovereign.”

They cite many, many cases and then make this concluding statement.

This, mind you, is a brief that the United States.

I don’t know whether it’s pled by justice or the judge.

(Inaudible)

But either one I do know that during the war days —

(Voice Overlap) —

Joseph S. Robinson:

— there was liaison between the Justice Department and the Judge Advocate’s Department.

And I think at that time Mr. Justice Clark was the Attorney General.

Tom C. Clark:

No, I — I became Attorney General on 1945.

Joseph S. Robinson:

1945?

Tom C. Clark:

Two years —

Joseph S. Robinson:

To which I blame this on you, Your Honor.

Tom C. Clark:

I was in (Inaudible) at that time.

Joseph S. Robinson:

But there was liaison because I personally was in the War Department in Washington at that time and I moved many times to the Justice Department to clear on some of these memorandums that had to deal with international properties.

In any event, it was represented to be the views of the United States when it was sent to the high court of Canada.

“The authorities whom we have quoted and others who will be referred to here and after unqualifiedly recognized the right of members of the armed forces of a foreign state on the territory with the permission or consent of the local sovereign to immunity from local jurisdiction for any offense they commit.”

This is nowadays the opinion of the vast majority of writers on international law.

They then go on to say there are a few dissenting voices and they point out — they say first these dissenting voices are, one, they’re against the weight, the decided weight of authority.

Two, they are too vague and indefinite to be considered rules of law.

Three, they are contrary to the principles on which immunity from local jurisdiction for the forces is based.

And there’s a — there’s a fourth reason that they criticized the dissent.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

Four, they are not expresses.

They are not expressive of the international practice.

And I’ll agree to the Canadian Court concluded with the statement that there was absolute immunity under international law recognizing from time immemorial of the visiting force upon the sovereign territory of another nation whether they are in there by consent or by force.

William J. Brennan, Jr.:

I think you told us earlier we were going — refer to some authorities who supported that.

Joseph S. Robinson:

This — this is a brief.

William J. Brennan, Jr.:

No, I know.

I — you said earlier, I think, that you would refer us to some authorities who supported that proposition.

Joseph S. Robinson:

I don’t — I don’t follow Your Honor’s question.

William J. Brennan, Jr.:

You’ve just stated that the proposition was, it was an absolute immunity.

Joseph S. Robinson:

That’s correct.

And this is the — there — there are wholly —

William J. Brennan, Jr.:

Is this the only authority you have in that brief?

Joseph S. Robinson:

— almost they’re cited in the brief.

There are many of them cited under point 2 of the brief.

There’s a whole series of authorities.

William J. Brennan, Jr.:

And you agree?

Joseph S. Robinson:

Yes, sir.

Earl Warren:

Where is that please?

Joseph S. Robinson:

It — it begins at page — it begins at — it’s — its points 2 and 3 of the brief.

It cites a whole series of (Inaudible) this brief which the Government submitted to the — which our Government submitted to the Canadian Government, I didn’t know about it at that time, but certainly, its as strong in authority as I could get.

This was the official position of the United States taken only a few years before they decided to take another position.

Is that the position that we’ve taken on reference to foreign troops in our soil?

Joseph S. Robinson:

The question with respect to foreign troops on our soil, Your Honor, I don’t know.

Insofar as I know, we have never tried any foreign troops that happened to be stationed on our soil.

Besides the number of troops that are on our soil are insignificant as one of the — how — of one of the members of the House said, “When we have large bodies of troops on our soil, they would not be here to protect us.

They will be here to make war with us.”

(Inaudible) during the war, Mr. Robinson.

Joseph S. Robinson:

As far as I know, Your Honor, we didn’t try them.

I think — I think we permitted them to be returned to their — to the — to the Governments from which they came for appropriate trial.

I — I know of no case where we tried a –a foreign soldier in the United States.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Harold Burton:

Mr. Robinson, in your brief, the first case that you cited, the Schooner Exchange case in support of your — of your proposition —

Joseph S. Robinson:

That’s correct.

Harold Burton:

And the other side cites the same case.

Joseph S. Robinson:

That’s correct.

And I’ll tell you how that came about in just a few moments.

And for your information, Your Honor, in this Canadian brief when they told the Canadian high court that there was absolute immunity from jurisdiction of the local Government over the foreign forces, they cite as their first authority for that proposition, the Schooner Exchange case.

And now they’re cited for the other proposition.

Earl Warren:

How do you dispose of this language in the Schooner Exchange case as I — I see it cited on — or quoted on page 23 of the Government’s brief.

This language of Chief Justice Marshall.

The jurisdiction of courts is a branch to that which is possessed by the nation as an independent sovereign power.

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.

It is susceptible of no limitation, not imposed by itself.

Any restriction upon it, to writing validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and in investment of that sovereignty to the same extent in that power which could impose such restriction.

All exceptions therefore to the full and complete power of a nation within its own territory must be traced up to the consent of the nation itself.

Joseph S. Robinson:

That’s correct.

Earl Warren:

They can fall from no other legitimate source.

Joseph S. Robinson:

That’s correct —

Earl Warren:

And how do you dispose —

Joseph S. Robinson:

(Voice Overlap)

— the matter of law under international law.

That consent was implied by the fact that they agreed to have the foreign troops upon their territory.

There’s no question about the general principle that a nation is sovereign if it’s its own — own territory.

And the only waive in a limited sovereignty is by consent.

But under international law when it permitted foreign troops to enter upon its territory, it gave consent.

That is the rule of international law or that is the position which our Government took with the Canadian Government.

That is the position, which has been supported time and time again.

And that is the doctrine, which they teach the West Point Military Academy.

And — and to give you one of the short quote from what has been taught up there that appears in the brief as shown and the consent is given when you authorize the foreign — the foreign troops to come on to your territory.

“All the members of the United States Army is subject to jurisdiction of its court-martial.

Yet, while the army is within the territory limits of the United States, the civil or federal and state, have concurrent jurisdiction over the members.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

However, the jurisdiction of courts-martial becomes exclusive when the army leaves its own territorial limits as for instance when the army marches through a friendly country or stationed therein.

In such cases, consent of the friendly Government from a — or exemption from its civil and criminal jurisdiction is assumed as a matter, of course.

Should it deny this consent and act otherwise, it would give rise to serious consequences.”

We told that to the Canadian Government.

Earl Warren:

Yes.

Joseph S. Robinson:

That has been the principle until the beginning of this program to surrender jurisdiction.

Felix Frankfurter:

Did the Canadian Government accept that view here?

Joseph S. Robinson:

Yes, there was — there were dissents.

Felix Frankfurter:

Did — did the Canadian Government accept that view then?

Joseph S. Robinson:

Yes, there were some dissents —

Felix Frankfurter:

In the decision of its Supreme Court?

Joseph S. Robinson:

Yes, sir.

There were some —

Felix Frankfurter:

Are you sure about that?

Joseph S. Robinson:

Your Honor, I only know what I read in the congressional record and I can read —

Felix Frankfurter:

Well, that’s not a good place to find out what a court decides.

[Laughs]

Joseph S. Robinson:

Well, — but — but when — but when the congressional record quotes from the opinions of the judges up there, I assume that what our Congressmen put into the record and what the record contains is accurate.

And that is what we’re saying.

It is true that if we have —

What’s the citation to the Canadian decision?

Joseph S. Robinson:

I don’t know.

I don’t know but if — if the case, the name of the case is referred to, the brief is in here.

Earl Warren:

Well, is that document you’re reading from is part of the congressional record, a report of a House of Committee or is it a speech of some Congressman?

Joseph S. Robinson:

No, sir.

It — it is a — it is a full — it is the full text of the brief which was submitted to the Canadian Government, the full text quoted —

Earl Warren:

Oh.

Joseph S. Robinson:

— right in the congressional record.

We know very often they put complete documents in it.

William J. Brennan, Jr.:

Yes, but who put it in?

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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William J. Brennan, Jr.:

That’s the —

Joseph S. Robinson:

Some congressman I assume.

William J. Brennan, Jr.:

Well, doesn’t it appear?

You have the record.

Felix Frankfurter:

This was 1955 you have said after the Treaty with Japan of 1952, is that it?

Joseph S. Robinson:

I’m — I’m sorry, Your Honor.

I —

Felix Frankfurter:

You said, you’re reading from a document —

Joseph S. Robinson:

Yes, sir.

Felix Frankfurter:

— which is evidently dated if I followed you, as I’ve tried hard to, in 1955, is that correct?

Joseph S. Robinson:

That’s right.

Felix Frankfurter:

So that in 1955, some Congressman put in views, which are in direct conflict with the Treaty with Japan of few years earlier, is that right?

Joseph S. Robinson:

No, sir.

What the Congressman did was took an official document —

Felix Frankfurter:

Yes, I understand that.

But by that time that this Treaty which you are to discuss it before us and that was then in existence, is that it?

Joseph S. Robinson:

If you — if Your Honor is referring to the executive agreement, I will say but it was not achieved.

Felix Frankfurter:

Well, but there was a Treaty which referred — which authorized the making of a — an executive agreement, a joint agreement which was before the Congress, in the Senate when it ratified the Treaty.

And what I’m suggesting is that your reading of document, which somebody put in, did not yet had his name, with somebody put in, in 1955 to give expression to views which are in conflict with the Treaty adopted by this — ratified by the Senate a few years earlier, is that right?

Joseph S. Robinson:

No, sir.

Felix Frankfurter:

Well, then put me straight.

Joseph S. Robinson:

The — the — these were hearings before the Congress to — to — and for — on — on the subject matter of a resolution to call upon the powers that be — to modify or change the status of forces agreements.

The main basis to be that having been that in view of the experience with these agreements.

Harold Burton:

You refer to them as agreement not as a treaty, was it not?

Joseph S. Robinson:

They’re not treaties, Your Honor.

Harold Burton:

The NATO — the —

Joseph S. Robinson:

The NATO — the NATO —

Harold Burton:

— NATO Status of Forces?

Joseph S. Robinson:

NATO — the NATO Status of Forces Agreements within one category.

This is not a NATO — NATO Status of Forces Agreement.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Harold Burton:

But the NATO Status of Forces Agreement was a treaty, was it not?

Joseph S. Robinson:

Yes, sir.

It was a treaty but the question here and we will come to it, whether or not we have the right to enter into such a treaty.

I am not — I am not at all of the opinion that the Congress of the United States with the President can enter into a treaty with any nation, which would deprive any of our citizens of constitutional rights.

Harold Burton:

Well, there were difference of opinion in the Senate about that treaty but it was adopted by a two-thirds vote, was it not?

Joseph S. Robinson:

Yes, sir.

And one senator said that it — it happened in the middle of a summer when the general NATO of forces treaties were submitted along with this one on the jurisdiction that it was hurriedly passed on.

And he said, “he wishes he had never voted for it”, and on that subject, Your Honor.

William J. Brennan, Jr.:

Am I going to find out who put that in the record?

Joseph S. Robinson:

Yes, sir.

William J. Brennan, Jr.:

Who was it?

Joseph S. Robinson:

I’m sorry but they were interruptions, Your Honor.

A — a Representative Bow — Representative Bow.

Tom C. Clark:

Representative Bow.

Joseph S. Robinson:

Yes, sir, Representative Bow — Congressman Bow of Ohio.

On the subject of how this Treaty came how this — of the NATO Status of Forces Agreements came into effect, it was being debated.

It was a very serious subject.

It was tied in with the other agreements.

And when it appeared that it would not pass, the President of the United States sent a personal letter.

And this is what it says.

And I would say that relying on the text of that letter, “Even if I were a senator, I would vote as the President request.”

Now, this is his language, “I certainly appreciate the concern of those who fear that these agreements might subject American soldiers overseas to systems of civil justice foreign to our own traditions.

I do not fear — I do not share such fears, however, because of the many years experience I have had in command of American troops overseas.

That experience convinces me that our friends abroad will continue to cooperate as they have in the past in turning over those charged with offenses against their laws to our own military courts for trial.”

That is what President Eisenhower said in a personal letter to the Senate in order to get the necessary two-thirds vote to get these NATO treaties through.

Felix Frankfurter:

That’s what these — that’s what these treaties — that’s what the NATO Treaty and the agreement, which we have before us permits.

And under which we are told 97.5% of the cases that have arisen in Japan have been so turned over at our request.

Joseph S. Robinson:

Your Honor, that’s —

Felix Frankfurter:

So that the President was not only — was not only telling his history but he was indulging in verified prophecy.

Joseph S. Robinson:

I think, Your Honor, from my knowledge of what has happened to our boys overseas in the foreign jails where they’re still permitted to use the guillotine and the firing squad and the solitary confinement that the President was not making a very fine prophecy.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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What countries are those?

Joseph S. Robinson:

You are permitted to use the guillotine in certain countries in Europe.

I think France is one.

Some countries still permit the firing squad or the —

Earl Warren:

We use that in this country, don’t we?

Joseph S. Robinson:

I don’t think so.

Earl Warren:

Well, I think the State of Utah uses that — uses that.

What was that?

Joseph S. Robinson:

If — if this Court thinks that’s constitutional and proper, well I — I won’t go any further in that circuit but.

[Laughs]

this — the — the subject matter of the 97% of the waivers, Your Honor, is meaningless unless we know how many of those that where there was a waiver did the United States military actually try.

I tried to get those figures.

They wouldn’t supply them.

Felix Frankfurter:

I don’t understand that.

The question is —

Joseph S. Robinson:

Well, I — I’ll rephrase it.

Felix Frankfurter:

— the question — I don’t understand that.

As I understand that, I am subject to correction, I know nothing except what I hear and — and read.

As I understand it, in 97.5% percent of the cases when we asked Japan to turnover people who might be subject to their jurisdiction, they consented.

And I don’t have to see what the point is of saying you want to know what we did with them.

Joseph S. Robinson:

It’s important —

Felix Frankfurter:

–The question is with Japan — Japan surrendered her authority.

That’s the vital thing.

Joseph S. Robinson:

It’s — it’s important — it’s important for this reason, Your Honor.

Most of these cases that I venture I guess that 99% of them were automobile accident cases on the streets of Japan where Japanese authorities picked up the — the GI or maybe — maybe — who probably had too much too drink or didn’t, couldn’t read the Japanese sign saying go right.

He went left to some such event.

Felix Frankfurter:

Are you speaking — are you speaking by the book or the (Inaudible)

Are those — is that statement of yours verifiable by the instances or is this just a surmise of yours?

Joseph S. Robinson:

I was trying to get those figures, Your Honor.

I can’t get them.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

It appears that it appears in the congressional record that most of these cases involved automobile accidents.

And then let’s assume there’s a — there’s a $3 slash on automobile and Japanese authorities have and we say turn them back to us.

And our military authorities get them.

They count that as a waiver.

Felix Frankfurter:

All right.

I should think the Government would be able to tell this Court whether 97.5% of — of those that in which that Japan waived what she was entitled to try were automobile cases.

That ought not to be too difficult to ascertain.

Joseph S. Robinson:

The — the vast majority of them are automobile cases, Your Honor.

Felix Frankfurter:

As long as that a vast majority?

That’s shaving if you are honest with it.

[Laughs]

Joseph S. Robinson:

I’m — I’m not trying to shave it down, Your Honor.

The — the figure of 97% is actually meaningless unless we know whether or not there was — they — they were offenses which we then brought them to — for which we brought them to trial.

And there’s another fact in which you want —

Felix Frankfurter:

But we didn’t have those grievance if such should be against this country for not enforcing the law of an authority then if Japan and 97.5% of the cases in which we requested that they turn over those accused of wrongdoing were turned over.

The fact is that Japan and 97.5% of the cases, they’ve turned over.

Joseph S. Robinson:

Even — even using your own — Your Honor’s own argument as a basis of Japan sending over 99 and nine-tenths percent, if under our law, we may not turn over one.

That’s the issue we’re concerned with here.

And for Your Honor’s information, I think for the past —

Felix Frankfurter:

It depends on your argument.

I can understand the — to proposition to the last event.

Joseph S. Robinson:

Yes, sir.

Felix Frankfurter:

But it was you who made the argument that these people are being cruelly treated.

Joseph S. Robinson:

I’ll get to that.

Felix Frankfurter:

And in backward countries of France and Great Britain and Japan.

That was your argument.

Joseph S. Robinson:

I’ll — I’ll get to that, Your Honor and show what — what treatment they’re getting.

But its not in — it’s not in the course of my argument at the present time.

I — I cannot cover the whole ground at the one time.

Felix Frankfurter:

Don’t think it’s very desirable, needlessly, to reflect on other countries where their civilizations in many respects are not inferior to our own.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

That’s very well.

But we must remember that 100 years ago, Japan wasn’t even open for civilization.

Now, we must — we must also remember that the Japanese courtesy and the Japanese ideas of — of what is right and what’s wrong, we saw an example of it on December 7th, 1941.

Felix Frankfurter:

And 150 years ago, we dealt with witches.

Joseph S. Robinson:

We’re not talking about a hundred —

Felix Frankfurter:

(Voice Overlap)

— history of other — of our civilization.

Joseph S. Robinson:

We’re not talking about 150 years ago.

We’re talking about the current generation.

To me, it is weird to take American soldiers who have sworn to sacrifice their life, if necessary, to defend the Constitution of the United States and turn them over to a foreign country for trial, needlessly, and strip them their very constitutional right.

Now, if that’s the rule, which this Court reached the status at present, there’s nothing I can say.

I’m here to —

Felix Frankfurter:

Do you think any Member of this Court doesn’t agree to the proposition that nobody can be deprived of his constitutional rights?

Do you think any Member of this Court —

Joseph S. Robinson:

I’m sure not, Your Honor.

Felix Frankfurter:

— needs to be instructed on that point?

Joseph S. Robinson:

I’m sure not.

Felix Frankfurter:

The question is what are our constitutional rights?

Joseph S. Robinson:

When this Court expressed — if the last word from this Court on what our constitutional rights appeared in Reid against Covert only decided here just about a month ago.

Felix Frankfurter:

And what did that decide?

Would you state what that decided?

Joseph S. Robinson:

On the vote that party as they decide.

Felix Frankfurter:

That was not a Court opinion.

It’s important to be accurate to these matters.

Joseph S. Robinson:

Well, it — it certainly had the effect of turning these two ladies loose.

Felix Frankfurter:

That — therefore, I ask you what the decision was.

Joseph S. Robinson:

I — I think the decision was that the writ of habeas corpus was sustained.

And that two ladies were — were turned loose and that there — there were — there were several different opinions but the — the opinion I — I think of Mr. Justice Black concurred in by the Chief Justice and two or three additional Justices to my mind, stated the law of this Court.

Now, if I’m wrong, I’m wrong.

Felix Frankfurter:

It — it — they specifically did not do that.

Audio Transcription for Oral Argument – July 08, 1957 (Part 2) in Wilson v. Girard

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Joseph S. Robinson:

Very well, sir.

That — that — but I — I think to get on with the subject matter of whether or not —

Earl Warren:

We’ll recess now, Mr. Robinson.