It

during the course of the hearings, it seems to me, that so far as we were concerned it is not to be considered as a precedent for future agreements. I think that in the interpretation which has been offered by the distinguished Senator from Wisconsin, the chairman of the committee, that fact was made clear. After all, this agreement is made with a series of countries which have entered into mutual obligations, each with the others, for the common defense. is not only for our defense or for their defense; it is for the common defense. I do not believe, and the committee has so stated, and I have so stated in the committee to the representatives of the Department of State and of the Department of Justice, that this should be considered a precedent. I believe the Government would be amply justified in countries, other than NATO countries, which have not entered into mutual arrangements of defense, in making other provisions.

I may say to the distinguished Senator, and I think frankness requires it, that if we were proceeding de novo to get an agreement, I think it would contain different provisions from those appearing in the agreements which have been presented to the Senate at this time. I should certainly be very disappointed if the Department of State, in view of the discussions before the Committee on Foreign Relations and the discussions on the floor of the Senate, should not negotiate other agreements which would cover a number of the points which have been raised.

Mr. BRICKER. I thank the Senator from California for his contribution.

These letters, Mr. President, are from the field in most respects, and they cover individual instances showing the danger we are incurring in this treaty. I desire to read case No. 10. I shall read only one or two more of them. This letter is from a United States Air Force officer stationed in France:

How long do you think a French judge of a police court would last if he disregarded the testimony of a Communist policeman and accepted the testimony of a GI? It's hard to convince me that all of our top military and naval personnel really believe in this proposed treaty.

I have before me a letter from a pastor in Europe, in which he says:

It is inconceivable that American servicemen would be accorded just and fair trials as we understand these terms in the United States. In spite of the fact that American servicemen have gone thousands of miles from their homes on missions of liberation from tyranny in winning two of the greatest wars in world history, during a period of only 28 years, their overseas friends still think they are overpaid and pampered.

The next letter comes from the wife of a soldier stationed in Turkey, a case illustrative of another point which was emphasized a moment ago by the Senator from Nevada. This woman says:

My husband was immediately confined to a Turkish prison to await his trial. His Army friends retained two Turkish lawyers. However, from the beginning to the end the trial was a great injustice. There were not any witnesses called on my husband's behalf and the Turkish witnesses contradicted their true original statements.

My husband was sentenced to 10 months in a vermin-infested, unkempt Turkish prison, with a low class of Turkish criminals. While there he met an American, W. O. KenI am informed the warrant officer's trial neth Roberson, serving a 2-year sentence. was a disgrace. At present he is allowed no visitors except the chaplain once a week and an occasional Turkish doctor. Warrant Officer Roberson is suffering with tuberculosis.

We haven't had any hope of helping him until we read your article in the New York Times.

Mr. President, for the sake of hurrying on with this matter, I aşk unanimous consent that the remainder of these instances, which are in type, be printed in the RECORD at this point as a part of my remarks.

There being no objection, the matters were ordered to be printed in the RECORD, as follows:

DIGEST OF COMMUNICATIONS RECEIVED BY SENATOR BRICKER RELATIVE TO ΝΑΤΟ STATUS OF FORCES TREATY

On June 24, 1953, the Senate Foreign Relations Committee held a hearing on Senator BRICKER's proposed reservation to the NATO Status of Forces Treaty. The effect of the reservation would be to retain for United States service courts exclusive criminal jurisdiction over American servicemen and their dependents stationed in the NATO countries and Japan. Article VII of the treaty would subject members of American military forces to trial in foreign courts for nonmilitary offenses.

At the hearing on June 24 Senator BRICKER received permission to submit for the RECORD a digest of letters he had received on this subject. The following list includes only the letters of those who have some firsthand knowledge of American military justice, the criminal law and procedure of foreign countries, or conditions prevailing in countries where American troops are stationed.

Case No. 1, from an American judge in Western Germany:

"I read with interest of your bill to secure the legal rights of United States soldiers and civilians stationed in European countries. You are quite right about it and I am writing you because I thought perhaps I might be of help.

"At any rate, I have had to become familiar with the civil-law theory. It differs from ours in five important particulars: (1) They have an examining magistrate, 'juge d'instruction,' with quasi-inquisitorial powers. (2) No adequate rule of reasonable doubt exists.

(3) Hearsay evidence is admitted at the discretion of the trial judge. (4) Their jurors are only assessors sitting with judges and in some cases being in a minority. (5) Release on bail can be and in the majority of cases is denied. As an example: An American citizen, one Bowen, was held recently in jail for 6 months by the German courts for a currency violation. He was only released because I issued a public statement which forced the High Commissioner to act. Subsequently the charges were dismissed."

Case No. 2, from a resident of Ohio:

"I have a sister who is married to a United States naval commander, and they are living in Yokohama. Recently I received a letter from her in which she expressed such appreciation of your efforts in the introduction of the reservation to the 14-nation pact that I thought you might like to know it. *

* *

"It is good to know that someone is looking out for us. Knowing what we do, none of us want to come under Japanese police jurisdiction. They haven't forgotten the

licking we gave them. With the ill feeling toward us, it is not right to put us under the Jap police."

Case No. 3, from a United States Army officer in Formosa:

did all

"During the years 1946-50 I * in my power to prevent the acceptance by the Armed Forces of the drafts which contained jurisdiction articles. * * * "In 1946 a * paper on jurisdiction was prepared by a working group of which I was a member. In it the basic policy of the United States on jurisdictional problems was to be stated. In 1949, after 3 years of rather fruitless bickering between the Armed Forces and State, a watered-down policy was finally produced, but it has, as far as I know, never been implemented by the State Department, which has always been quite hostile to the exercise of jurisdiction by the United States Armed Forces in foreign countries."

Case No. 4, from a civilian employee of the United States Air Force in Western Germany:

"I wish to applaud your stand opposing the treaty which would cause American civilians and soldiers to be tried in foreign civil courts and under foreign laws. This would certainly be an unfair and unjust way of handling the matter. Many foreign nations have laws that bear no semblance whatever to the American laws on the same subject. *

"I was brought to trial in the HICOG court because of [a traffic] death, under the terms of the German law. Even the prosecuting attorney admitted that under American law I was not at fault. I received a proper trial and was found guilty of 'simple negligence,' whatever that is, and fined. Yet the judge himself, who was an American, stated in his opinion that under German law he had no choice but to find me guilty, even though under American law I would not be guilty. He further stated that he did not know why he was not allowed to try me under American law.

"This is a very bad situation for me, since if the decision of the lower court is not reversed, I will be branded for life with the stigma of a criminal."

Case No. 5, from an Army officer in the Far East:

"Bravo for your strong stand against allowing foreign governments to have criminal jurisdiction over American troops stationed abroad. It would indeed be a sad travesty to deprive American troops overseas of the protection of the Government and Constitution many have given their lives to defend."

Case No. 6, from the wife of an American soldier serving in France:

"After all, our husbands and fathers are not serving overseas by their choice, but by orders and with this bill will be left to the mercy of a foreign court. I am a foreign war bride and have seen how other courts operate. Our soldiers could be very easily rooked into a crime by maybe a communistic or anti-American group and then be tried by a communistic or anti-Americaninclined judge. Or soldiers could be ganged up on and then get a trial like Vogeler or Oatis. I think anybody should think twice before voting for such a bill."

Case No. 7, from the legislative chairman of a Reserve officers' association:

"It is hard to believe that anyone who calls himself an American would desire, by treaty, to deprive the military forces of our country, serving in foreign lands for the protection of those same lands, to deprive him of his constitutional rights, when, in fact, we grant those same rights to enemies resident within our own borders."

Case No. 8, from a resident of Cincinnati, Ohio:

"I spent 31 years of my life and money to help bring about an equitable court-martial system for all serving in our Armed Forces.

* Congress should take immediate action to forbid the further turning over of our

service personnel to foreign nations for trial by backward and even barbaric nations and then pass the Bricker amendment so that the people who are overwhelmingly in favor of it can enact it into our Constitution."

Case No. 9, from a retired brigadier general:

"May I urge your utmost opposition to proposed treaty permitting trial by foreign courts of American military personnel. * It is illogical and unreasonable and can only represent another effort to place the rights and lives of American citizens under foreign control. Service personnel have no choice in their foreign assignments but do have an inalienable right to the protection of our Constitution. Is this to be denied them by the Congress of the United States?"

Case No. 10, from a United States Air Force officer stationed in France:

"How long do you think a French judge of a police court would last if he disregarded the testimony of a Communist policeman and accepted the testimony of a GI? It's hard to convince me that all of our top military and naval personnel really believe in this proposed treaty."

Case No. 11, from a service pastor in Europe:

"It is inconceivable that American servicemen would be accorded just and fair trials as we understand these terms in the United States. In spite of the fact that American servicemen have gone thousands of miles from their homes on missions of liberation from tyranny in winning two of the greatest wars in world history, during a period of only 28 years, their overseas friends still think they are overpaid and pampered."

Case No. 12, from the wife of a soldier stationed in Turkey:

"My husband was immediately confined to a Turkish prison to wait his trial. His Army friends retained two Turkish lawyers; however, from the beginning to the end the trial was a great injustice. There were not any witnesses called on my husband's behalf, and the Turkish witnesses contradicted their true original statements. *

"My husband was sentenced to 10 months in a vermin-infested, unkempt Turkish prison, with a low class of Turkish criminals. While there he met an American, W. O. Kenneth Roberson, serving a 2-year sentence. I am informed the warrant officer's trial was a disgrace. At present he is allowed no visitors except the chaplain once a week and an occasional Turkish doctor. Warrant officer Roberson is suffering with tuberculosis.

"We haven't had any hope of helping him until we read your article in the New York Times."

Case No. 13, from a dentist residing in Ohio:

"Being a veteran of 6 years in the United States Navy and serving in such places as Morocco, Algeria, Italy, and Great Britain, I shudder to think of the possibility of being tried, convicted and imprisoned in any of those lands."

Case No. 14, from a member of the American Legion:

"On Monday, June 15, the 300 members of Logan Square Post, No. 405, the American Legion, Department of Illinois, in regular meeting at Chicago, unanimously adopted a resolution which I prepared, endorsing and approving your pending amendment providing for trial of all members of our armed forces in foreign countries by United States courts and under United States constitutional safeguards.

"Last night, on my motion, unanimous concurrence to that resolution was voted by the 42 posts and 9,600 members of the ninth district of this department."

Case No. 15, from a Tennessee lawyer: "I have had personal experience with the prosecution of American soldiers in foreign civil courts, while serving in the United States Army. During the recent war, I served

for approximately 21⁄2 years [in] Newfoundland. ***

"Repeatedly the Newfoundland police authorities made arrests of military personnel for nonmilitary offenses, such as assault and battery on civilians, public drunkenness, petty larceny, et cetera, which offenses were committed outside of the military base. The arrested soldier was confined in a local jail, and thereafter brought before a local court for trial.

"An effort was made to secure a release of the arrested personnel for subsequent trial by military court-maritial, which effort resulted in an agreement, difficult to operate, whereby on occasions the arrested soldier would be handed over to the military authorities, for court-martial action. However, the Newfoundland Government reserved unto itself the right to determine when and if this should be done. This resulted in great confusion and embarrassment.

"A review of international law will disclose that, throughout recorded history, a host country has accorded a friendly nation, stationing troops by consent within the host country borders, the right to discipline these troops. This right, we voluntarily surrendered when the bases agreement was executed. May I assure you that, in my opinion, such a surrender is attended by inherent difficulties of the greatest magnitude.

"I commend you for your opposition to a proposed similar surrender of disciplinary power to NATO nations."

Case No. 16, from a United States Army officer:

"I heartily agree with your important distinction between American citizens who go abroad voluntarily for reasons of business or pleasure, and a member of the military, or his dependents, who are stationed abroad by virtue of military orders. Certainly those in the latter category are entitled to the full protection and safeguards granted them under our Constitution-particularly when the systems of jurisprudence, as practiced in these foreign countries, are so diametrically opposed to ours.

"Having just returned from an overseas tour involving 19 months on Guam, 5 months in the Philippine Islands and 15 months in Japan; as well as 18 months in Europe during World War II; I have had ample opportunity to observe jurisprudence under these several foreign governments. As an individual, I am certainly loathe to submit American citizens to the jurisdiction of these foreign courts where rights guaranteed under the Constitution would never be considered.

"Protection is, of course, provided for the State Department personnel through diplomatic or consular immunity from trial by a foreign state; however, in the negotiation of these treaties this important right should definitely be kept in mind for all loyal servants of the American people."

Case No. 17, from the wife of an American soldier stationed in French Morocco:

"The French Government both in France and in French Morocco, where I have spent over 2 years with my husband who is in the military service, discriminated against Americans both individually and collectively in every possible manner.

"It is a matter of record that French courts invariably assess maximum fines and punishments against Americans. * * *

"Since American military have no choice but to go where they are sent they certainly deserve protection from the prejudice and discrimination that is present on every hand in France and French Morocco."

Case No. 18, from the wife of an American soldier stationed in France:

"It is with great apprehension that I write this letter as my husband is stationed in France and I will be joining him within the next 3 months. He informs me that our soldiers are being jailed, held without notifying our authority, tried and convicted by

He

the French and Communist elements. says further that the town nearest his post is 50 percent Communist and that there are signs up all over the place which say, 'United States go home.'

"My husband's brother gave his life in Korea in October 1951 for this cause-now, do not tell me that my husband faces a fate worse than death by being subject to the above odious situation for the next 3 years. I implore you to get this proposal adopted at once."

Case No. 19, from a sergeant in the United States Air Force stationed in Japan:

"I, a serviceman, am certainly opposed to having my constitutional rights bartered away by any person, and furthermore I do not believe that any official has the authority to do it. * **

"The greatest majority of us are serving in foreign lands because our Government saw fit to send us there, not because we wanted to leave our own country; therefore, I feel that we are entitled to retain our rights and the protection guaranteed by our Constitution."

Case No. 20, from a United States Army officer stationed in Japan:

"I note with a great deal of concern the efforts of some person or persons to subject the American soldier, his wife and children, as well as all those come under the heading of 'civilian component' to the civil laws of the NATO countries. Not that I don't think that the laws of any country, where such laws reflect the will of the inhabitants thereof, should not be respected and obeyed to the letter, but being here in Japan with my family and with the possibility that they and myself, as well as other Americans serving here, might soon be in effect left without the protection of the rights guaranteed under the maxim "The Constitution follows the flag.'

Case No. 21, from an American Legion post in French Morocco:

"We respectfully suggest that the investigation include a tabular comparison of judicial action by French courts in trying United States naval base personnel at Port Lyautey, Morocco, with action on cases involving French service personnel and French civilians. *

"We believe such statistics would be a significant commentary on the system under consideration, in action, and would indicate among other things that many more French than American military cases are remanded to commanding officers.

"Despite the status quo agreement, France began to try United States Navy personnel. Kenneth Griffin, ship-service man, second class, was sentenced to prison by a French court, for an offense committed while the status quo was in force.

"The French claim that an arrangement made in connection with the granting of new bases gave them jurisdiction over this personnel. However, the arrangement was prior to, and the assumption of jurisdiction was after, the status quo agreement was entered into. Furthermore, at that time, the United States was contending that, under treaties, American citizens were not subject to trial by French or Moroccan courts.

"This squarely brings up a question in which this post is vitally interested. May the Executive make arrangements which deprive citizens of specific important rights guaranteed by treaty?

"Reverting to Griffin-his sentence was increased from 10 months to 16 months by the appeal court reviewing his case. Trials here do not have juries as we know them, nor do officials respect certain other constitutional safeguards which we are guaranteed."

Case No. 22, from the wife of an American citizen living in French Morocco:

"We all hope that if and when the treaty is signed it will contain the proviso, and

that our thousands of military personnel in Morocco will not become a focal point for the hostility directed toward Americans by

the French colonial administration there. This resentment is becoming more open since our consulate states that we have no

effective means of opposing French action."

Mr. BRICKER. Mr. President, there

are two more letters which I wish to present. One comes from the neighboring State of Virginia, from a former resident of Ohio, which reads as follows: JULY 8, 1953.

Senator JOHN W. BRICKER,

Washington, D. C. DEAR SENATOR BRICKER: As a former resident of Ohio and faculty member of Ohio University, I am writing to express my approval of your efforts to restrict the proposed treaty under which Americans in NATO may be tried in European courts.

I have recently returned from several months in England, where I taught on our United States Air Force bases in connection with the University of Maryland overseas program. While there I observed much antiUnited States sentiment and resentment against the presence of our troops. There is good reason to believe that if our GI's came under the jurisdiction of British courts, they would be discriminated against and would be used as a target for the ill feeling toward the United States over there. Despite the reputed impartiality of British justice, community sentiment in Britain would be strong for harsh penalties against American violators of British law. A combination of complex economic, political, and psychological factors arising from the changed power relationships of the two countries enters into this situation. As a sociologist it is my belief that the present arrangement, in which our troops are under the jurisdiction of United States courts-martial, is much more preferable to the proposed plan.

I might add that these remarks are not in any way prompted by anti-British feeling. I was in fact born in England and lived there for many years before becoming an American citizen.

The second letter comes from Lakewood, Ohio, and reads as follows: JULY 9, 1953.

Hon. JOHN W. BRICKER,

United States Senate,

Washington, D. C. SIR: Please accept my sincere congratulations for the position you have taken regarding the pending NATO protocols, in connection with trial jurisdiction over United States military personnel.

It is indeed ironic that some of our leaders are indifferent to those basic rights guaranteed by our Constitution the very people

who have sworn solemnly to defend that Constitution are in danger of being deprived of its protection. I and many with which I have spoken are grateful that we are represented by you, with your courage and insistence upon the American way for Americans everywhere.

Please insist that United States Armed Forces personnel stationed abroad be assured the full protection of the Constitution in juridical matters. No expediency, NATO or otherwise, can possibly justify any other

course.

I desire to discuss, Mr. President, criminal jurisdiction in general.

CRIMINAL JURISDICTION IN GENERAL

Anglo-American criminal law is rooted in the principle that the accused may be tried only by his fellow citizens and only by those citizens who reside near the scene of the alleged crime. Here we are concerned with the rights of Americans

in a military rather than a civilian community. In essence, however, the same principle is involved. Shall Americans subject to the jurisdiction of the United States be tried by other Americans who live in the vicinity of the scene of the alleged crime?

The first affirmative answer to that question was supplied by the Declaration of Independence. George III was castigated "for transporting us beyond seas to be tried for pretended offenses." Then came the Bill of Rights with the sixth amendment providing for trial in "the State and district wherein the crime shall have been committed."

All efforts to weaken the spirit of the sixth amendment have so far been frustrated. For example, in 1909 newspaper editors in Indianapolis were indicted on a charge of criminal libel. Federal officers attempted to have the editors removed to Washington, D. C., for trial because several newspapers had circulated there. In denying the application for removal, here is what the United States district court said:

*

To my mind that man has read the history of our institutions to little purpose who does not look with grave apprehensions upon the possibility of the success of a proceeding such as this. * * If the prosecuting of ficers have the right to select the tribunal. *** If the Government has that power, and can drag citizens from distant States to the Capital of the Nation, there to be tried, then, as Judge Cooley says, this is a strange result of a revolution where one of the grievances complained of was the assertion of the right to send parties abroad for trial. (United States v. Smith, 173 Fed. 227.)

Since it was improper to remove those Indiana editors to the capital of their own country for trial, by what strange logic is it deemed proper to remove American soldiers from the Armed Forces for trial in Paris, Istanbul, or Tokyo?

This incredible proposal is merely one of many recent assaults on the basic attributes of national sovereignty. Since national criminal jurisdiction is one of those primary attributes, it has been a special object of attack. Some fuzzyminded internationalists want the United States to ratify the United Nations draft Statute for an International Criminal Court. That proposed treaty would permit Americans to be tried anywhere in the world by an international tribunal for certain international crimes not yet defined. A comparison of that treaty with the NATO Status of Forces Treaty discloses the following points of similarity:

First, the President of the United

States cannot exercise his right to par

don; second, right to a public trial is not guaranteed; third, no prohibition against cruel and unusual punishment before or after trial; fourth, no prohibition against a demand for excessive bail; fifth, no presumption of innocence; sixth, no guaranty of conviction only on proof of guilt beyond a reasonable doubt; seventh, possibility of conviction by mere majority vote; and eighth, possibility of conviction by the vote of a Communist judge.

In one respect the United Nations draft statute for an International Criminal Court is better. Unlike the NATO Status

of Forces Treaty, it recognizes the privilege against self-incrimination.

If it is proper to remove American servicemen from the jurisdiction of the armed forces, then it is equally proper to surrender jurisdiction over American civilians to an international criminal court. The principle at stake is the same. In both cases, Americans, because of the action of their own Government, would be deprived of the right to be tried in accordance with American law, civil in one case and military in the other.

This introduction explains why the applicable rule of international law is so vitally important, even though everyone agrees that the rule of international law, whatever it may be, can be altered by treaty. Under my interpretation of international law, American troops stationed abroad at the invitation of the host country enjoy immunity from criminal prosecution in local foreign courts. Therefore, the pending treaty surrenders rights to which Americans would be otherwise entitled.

Proponents of the treaty insist that troops stationed in a friendly foreign country have no immunity from criminal prosecution in the absence of treaty. From this interpretation of international law, it follows that the pending treaty does not involve any surrender of jurisdiction. It is a view of international law that places an American boy, drafted in the Army and sent overseas to defend foreign soil, in exactly the same position as an American civilian who goes abroad for reasons of business or pleasure.

I sincerely doubt that the administration realizes the frightening implications flowing from its view of international law. American armed forces are stationed in many countries with which no binding agreement exists relative to their status. If the view of the administration and of other proponents of the treaty is correct, those nations can treat American troops in any way they see fit, and the United States is powerless to invoke any rule of international law for their protection. And if the adminiscountries that refuses to ratify the pendtration is right, any 1 of the 13 NATO ing treaty would have a perfect right under international law to treat them even worse than the proposed treaty law would allow.

not callously disregard the rights of Fortunately, international law does troops stationed in a friendly foreign country or the respect due the sovereign nation they represent. It is most regrettable that the NATO Status of Forces

Treaty is not frankly presented as an exception to the traditional rule of international law. By virtue of the argument presented by the administration on this treaty, every nation in the world where American troops are, or may be, stationed can claim absolute power to punish them for alleged offenses, or for real offenses, too. Having abandoned the rule of law on which the United States has always insisted, it will be difficult if not impossible, to invoke it in the future to prevent injustice.

Unquestionably, rules of international law may be waived or modified by treaty. The proposed treaty can hardly be described as an intelligent waiver, because

some of its negotiators and defenders have no apparent knowledge of the international law proposed to be set aside. Others seem bent on destroying the traditional rule of international law on the theory that we must never stand up for American rights, that we must always yield to the demands of our allies, or that appeasement is cooperation. Their obvious purpose in abandoning the traditional rule of international law is to prove that the proposed treaty gives away no rights.

THE GENERALLY ACCEPTED RULE OF

INTERNATIONAL LAW

The generally accepted rule of international law is explained in the article by Col. Archibald King, beginning on page 539, volume 40, of the American Journal of International Law. That article is reprinted in the CONGRESSIONAL RECORD for May 7, 1953, and in the hearings before the Senate Foreign Relations Committee. A subsequent article on this subject by Colonel King may be found in the April 1946 issue of the American Journal of International Law. I ask unanimous consent that this later article by Colonel King be printed at the conclusion of my remarks.

Is not that carried out in the article which my distinguished colleague has quoted? I quote from the article by Archibald King:

The theory of Chief Justice Marshall's opinion in the case of the Exchange and of the other authorities quoted, is that there is an agreement between the host nation B, and nation A, implied from B's consent for A's troops to enter B's territory, that those troops while in B shall be under the exclusive jurisdiction of their own military courts. It is, however, clearly permissible, and in many cases highly desirable, to have an express agreement on the subject, rather than for the matter to be left to implication.

That is what we are trying to do by these treaties, is it not? these treaties, is it not? My question is, Does Chief Justice Marshall's opinion rest on the consent of the sovereign nations?

Mr. BRICKER. It rests on the implied consent of the country to which the troops are going. I have never contended for a moment that we cannot change that rule by treaty. That is what it is proposed to do. That is what we shall do if we do not adopt my reservation. We shall change the rule as to the implied consent of those countries, and we shall also change 150 years of traditional international law, as adopted, applied, and understood by the courts of our country. We can change that implied agreement by treaty at any time.

(See exhibit 1.)

Mr. BRICKER. Mr. President, the two King articles show a substantial unanimity of opinion among judges, international lawyers, and international agreements dealing with the subject. With rare exceptions, it has been recognized that the invitation of the host country for a foreign force to enter its territory carries with it immunity of visiting forces personnel from the jurisdiction of local courts.

Chief Justice John Marshall gave this doctrine of implied immunity its most authoritative expression in The Schooner Exchange v. McFaddon (7 Cr. 116). That case involved a libel in admiralty against a French vessel present in Philadelphia with the implied consent of the United States. The essence of the decision is that any armed force, land as well as naval, enjoys an extraterritorial status when it enters the territory of another nation with the latter's consent. As late as 1939, the highest court of the British Empire called John Marshall's opinion "a judgment which has illumined the jurisprudence of the world"-Chung Chi Cheung v. The King (1939 A. C. 160, 168). Mr. SALTONSTALL. Mr. President, will the Senator yield?

Mr. BRICKER. I yield.

Mr. SALTONSTALL. The Senator has quoted from Chief Justice Marshall's opinion. I wish to ask the Senator from Ohio the same question I asked the Senator from Nevada [Mr. MCCARRAN].

On page 135 of the United States Reports 11, Chief Justice Marshall begins his opinion as follows:

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

Then I skip to the following:

All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.

Mr. COOPER. I should like to ask the distinguished Senator from Ohio a question. It seems to me that there are two points at issue. The first goes simply to the question of whether the treaty is a wise agreement, whether or not it gives the best protection under all the circumstances to American soldiers and interests. The first issue bears simply upon the content of the agreement itself and its terms. I certainly concede that there can be disagreement over the terms of the treaty. The second issue is the important one, and that is whether under international law, we have the right of jurisdiction over our troops if they should commit violations against the nationals or property of a foreign the nationals or property of a foreign state.

Is it the Senator's contention that it is not necessary to negotiate agreement, and that our jurisdiction continues on foreign soil, as it does upon soil of the United States? The contention of the Senator is the familiar question that has been argued-Does the Constitution follow our troops and flag?

Mr. BRICKER. There is no question There is no question in my mind about that. It should. It has, It does, except in the case of a treaty which provides to the contrary.

Mr. COOPER. As I stated at the beginning, there can be disagreement about the terms of the treaty. But I believe the contention of the distinguished Senator from Ohio that our sovereignty and jurisdiction, with respect to our troops, are as complete in France or Germany or England as they are here is an incorrect one.

Mr. BRICKER. They should be, in my judgment, because we are there by invitation,

Mr. COOPER. Is it the contention of the Senator that the same rule prevails when our troops are in foreign countries in peacetime as when there in wartime?

Mr. BRICKER. I do not see any reason for it. Undoubtedly this is a sovereign nation in peace as well as in war, and we ought to have the same protection of our nationals, wherever they may be, particularly if they are there against their will, as is the case with many of them who are sent abroad.

Mr. COOPER. It seems to me that it would be rather difficult for us to say that we will exercise our sovereignty and jurisdiction in the United States which we do, over foreign nationals and over foreign troops who may be on our soil, and yet take the contradictory position, that we have full jurisdiction over our troops in other countries, if they commit violations against their person or property.

Mr. BRICKER. I remind the Senator that that is not the position which the Senator from Ohio has taken. If the Senator will read the reservation which I have submitted, he will see that that is not the position of the Senator from Ohio at all. I think there should be reciprocity. I know of no reason why there should not be reciprocity. In fact, at the present time there is no reason for reciprocity, because there is no organized force of any of those countries in the United States..

Mr. COOPER. I have listened to this argument with a great deal of interest. As I have said, I can see that there might be disagreement as to whether or not this treaty was negotiated in a way which each one of us might approve; while I would like it to be different I have been unable to find any authority, other than in time of war, or in an occupied country, or by agreement for the proposition that under international law we have continuing jurisdiction over our troops for crimes committed against the nationals of the country in which our troops are stationed.

Mr. BRICKER. I submit to the Senator from Kentucky that there have been 150 years of international law, as recognized in this country and as recognized by England as recently as 1939, according to the statement which I made a moment ago. I do not think there has been any variation from that principle except in one small instance, and that was accomplished by executive agreement, when the President of the United States negotiated an exchange of bases for destroyers. Jurisdiction over our Armed Forces in those bases was left with the other country. That was done by executive agreement. I think that is the only instance that can be found of variance from the principle of international law.

Mr. COOPER. Is it not a fact that agreements have been negotiated throughout the years fixing the status of our troops in foreign lands; and is not that proof in itself that agreements are necessary to modify the fixed rule of international law? Each country is sovereign within its own boundaries. What is the necessity of is the necessity of negotiating an agreement at all if it is not a rule of international law that each country is sov

ereign within its own boundaries and in circumstances such as this treaty comprehends, has jurisdiction over foreign nationals who commit violations against it?

Mr. BRICKER. All the agreements until this recent episode have affirmed the traditional international law. This is the first time we have been confronted with any attempt to change the traditional international law, of which this country has been a proponent throughout its whole national life, until the proposal which is now before the Senate.

If the Senator wishes to know whether we can change the rule by treaty, there is no question about it, in the judgment of the Senator from Ohio. We can, by treaty, change the traditional principle. But the mere fact that we have acceded to the desires of nations where our troops are stationed is not proof to me that it ought to be done.

Mr. COOPER. I know that by agreement the rule as to jurisdiction can be fixed; but the contradiction of the argument of my good friend from Ohio is that he argues as a rule of international law that our jurisdiction as a sovereign state pursues our troops into a foreign land, and at the same time admits the necessity for agreements.

Mr. BRICKER. That is exactly true. That is my position. It is my position that there ought to be no agreement, so far as the status of our armed forces in foreign countries is concerned. That is exactly the point of my reservation. It would leave international law as it always has been.

Mr. COOPER. Then the Senator relies upon the proposition that, as a sovereign country, our jurisdiction follows the flag and protects and gives to the American soldier every right that he has here in the United States.

Mr. BRICKER. Under the Constitution.

Mr. COOPER. As against the sovereign power of another state in its own territory?

Mr. BRICKER. Absolutely, when we are there at their invitation.

Mr. SALTONSTALL. Mr. President, will the Senator yield?

Mr. BRICKER. I yield.

Mr. SALTONSTALL. I should like to ask a question along the line of the colloquy between the Senator from Ohio and the Senator from Kentucky.

The Senator from Ohio has stated that this is the first exception to the established rule of international law.

Mr. BRICKER. With the exception of the case of the bases, which I mentioned a moment ago.

Mr. SALTONSTALL. Is it not true that this is the first time our troops have been in a foreign country at a time when they have not been there at war, as in 1914 and 1941, or when they have not been protecting certain areas, as in the case of the Philippines and Puerto Rico? In the present instance we are confronted for the first time with a new status, a new set of facts. Our troops are not there as protectors, and they are not there to fight. That is the reason, as I see it, why these treaties are necessary to provide for the giving of express consent, because the implied

consent under international law, which the distinguished Senator from Ohio has mentioned, is certainly lacking when other countries refuse to allow us to exercise completely exclusive jurisdiction and require a written agreement setting forth the circumstances under which they will recognize our jurisdiction.

Mr. BRICKER. Of course, if there had been any thought of depriving of their constitutional rights American soldiers, who would be taken away from their homes and sent, against their will, perhaps, to foreign countries, that question should have been thrashed out before the troops were sent into the foreign lands.

Mr. SALTONSTALL. Certainly we do not want to have our boys lose their constitutional rights. But, if they are a part of our forces in a foreign country, does not the Senator agree that we must determine and provide those rights by express agreements?

Mr. BRICKER. But the treaties give those rights away. those rights away. They fail to protect the rights of American soldiers stationed on foreign soil.

Mr. SALTONSTALL. I respectfully say that is where we might disagree. Mr. BRICKER. I have delineated, as has the Senator from Nevada [Mr. McCARRAN], the many respects in which the rights of American soldiers are not protected under the treaty.

Mr. LONG. Mr. President, will the Senator yield?

Mr. BRICKER. I yield.

Mr. LONG. Are we to understand that the treaty makes American boys who are sent overseas subject to the laws of the foreign country?

Mr. BRICKER. The Senator is correct.

Mr. LONG. For a violation of law those boys can be tried in foreign courts by foreign judges, and with foreign attorneys representing them?

Mr. BRICKER. That is correct.

Mr. LONG. Notwithstanding the protection they have always had prior to that time?

Mr. BRICKER. That is correct. Mr. LONG. They lose those rights without their consent when they are sent overseas?

Mr. BRICKER. Yes, if the treaty is ratified.

Marshall's opinion was three times reaffirmed by the Supreme Court, at least by war of dictum-Coleman v. Tennessee (97 U. S. 509), Dow v. Johnson (100 U. S. 158), Tucker v. Alexandroff (183 U. S. 424). In Coleman against Tennessee, for example, the Court said:

It is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place (p. 515).

Among the writers on international law, John Bassett Moore called the schooner Exchange Marshall's greatest opinion in the field of international law. And, Dr. Charles Cheney Hyde said:

Strong grounds of convenience and necessity prevent the exercise of jurisdiction over a foreign organized military force which, with the consent of the territorial sovereign,

enters its domain. Members of the force who there commit offenses are dealt with by the military or other authorities of the state to whose service they belong, unless the offenders are voluntarily given up. (Hyde, 1 International Law, sec. 247.)

Mr. WILEY. Mr. President, will the Senator yield for a question?

Mr. BRICKER. I yield for a question. Mr. WILEY. Is it not correct to say that the Marshall opinion refers only to foreign troops in transit, not to troops stationed in the territory?

Mr. BRICKER. I did not understand the question.

Mr. WILEY. Does not the opinion of Chief Justice Marshall refer only to troops in transit, going through a country or marching through a country?

Mr. BRICKER. Chief Justice Marshall's opinion made reference to troops on a ship which was libeled. It was not It going through a country, of course. was stationed in the harbor of Philadelphia. The troops were not marching anywhere. They were not moving at the time the libel was applied.

Mr. WILEY. I ask whether at any time Chief Justice Marshall in his opinion refers to any troops but troops in transit.

Mr. BRICKER. His decision was with regard to foreign troops on foreign soil. The opinion states:

Strong grounds of convenience and necessity prevent the exercise of jurisdiction over a foreign organized military force, which, with the consent of the territorial sovereign, enters its domain.

Mr. WILEY. Mr. President, will the Senator yield further?

Mr. BRICKER. I yield.

Mr. WILEY. I wonder whether in his brief the Senator from Ohio cited the opinion of Justice Jordan in the Australia case of Wright against Cantrell, in which the Justice stated the following with reference to the Marshall decision that

What the learned Judge

Referring to Marshall

had in mind was exercise of jurisdiction which would prevent the troops from acting

a force-something analogous to preventing a ship of war from being in a position to act as such, including interference by local courts, with the maintenance of discipline-not exercise of jurisdiction over individual soldiers in respect of liabilities incurred or wrongs done perhaps out of all connection with their military duties.

Has the Senator included that opinion in his brief?

Mr. BRICKER. No; I have not followed all the Australian and New Zealand cases as carefully as I should like to do, if I had the time for the research. However, I have read and I do understand the decisions of the courts of my own country.

Mr. WILEY. The Senator from Ohio is a good lawyer. When an opinion is rendered, the opinion, of course, is only law as it is applicable to the facts. If it is not applicable to the facts then it is mere dictum. For instance, of the cases that have been cited, Coleman against Tennessee, Dow against Johnson, and Tucker against Alexandroff, the first two cases involved rights of military authorities in occupation of an enemy territory during belligerency, and therefore