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during the course of the hearings, it My husband was sentenced to 10 months licking we gave them. With the ill feeling seems to me, that so far as we were con in a vermin-infested, unkempt Turkish toward us, it is not right to put us under cerned it is not to be considered as a
prison, with a low class of Turkish criminals. the Jap police." precedent for future agreements.
While there he met an American, W.O. Ken Case No. 3, from a United States Army
I think that in the interpretation which
neth Roberson, serving a 2-year sentence. officer in Formosa:
I am informed the warrant officer's trial “During the years 1946–50 I has been offered by the distinguished was a disgrace.
* did all At present he is allowed in my power to prevent the acceptance by Senator from Wisconsin, the chairman no visitors except the chaplain once a week the Armed Forces of the drafts which conof the committee, that fact was made and an occasional Turkish doctor. War tained jurisdiction articles. * * * clear. After all, this agreement is made rant Officer Roberson is suffering with “In 1946 a * * * paper on jurisdiction was with a series of countries which have en tuberculosis.
prepared by a working group of which I was tered into mutual obligations, each with
We haven't had any hope of helping him
a member. In it the basic policy of the the others, for the common defense. It until we read your article in the New York
United States on jurisdictional problems was Times.
to be stated. In 1949, after 3 years of rather is not only for our defense or for their de
fruitless bickering between the Armed Forces fense; it is for the common defense. I Mr. President, for the sake of hurry and State, a watered-down policy was finally do not believe, and the committee has so ing on with this matter, I aşk unani- produced, but it has, as far as I know, never stated, and I have so stated in the com mous consent that the remainder of
been implemented by the State Department, mittee to the representatives of the De- these instances, which are in type, be
which has always been quite hostile to the partment of State and of the Depart- printed in the RECORD at this point as
exercise of jurisdiction by the United States
Armed Forces in foreign countries." ment of Justice, that this should be con a part of my remarks.
Case No. 4, from a civilian employee of the sidered a precedent. I believe the Gov
There being no objection, the matters United States Air Force in Western Germany: ernment would be amply justified in were ordered to be printed in the REC "I wish to applaud your stand opposing countries, other than NATO countries, ORD, as follows:
the treaty which would cause American civilwhich have not entered into mutual arDIGEST OF
ians and soldiers to be tried in foreign civil
COMMUNICATIONS RECEIVED BY rangements of defense, in making other
courts and under foreign laws. This would
SENATOR BRICKER RELATIVE NATO provisions.
certainly be an unfair and unjust way of STATUS OF FORCES TREATY
handling the matter. Many foreign nations I may say to the distinguished Sena
On June 24, 1953, the Senate Foreign have laws that bear no semblance whatever tor, and I think frankness requires it, Relations Committee held a hearing on to the American laws on the same subthat if we were proceeding de novo to Senator BRICKER's proposed reservation to
ject. * * get an agreement, I think it would con the NATO Status of Forces Treaty. The "I was brought to trial in the HICOG tain different provisions from those apeffect of the reservation would be to re
court because of [a traffic) death, under the pearing in the agreements which have
tain for United States service courts ex terms of the German law. Even the prosebeen presented to the Senate at this
clusive criminal jurisdiction over American cuting attorney admitted that under Ameri
servicemen and their dependents stationed time. I should certainly be very disap- in the NATO countries and Japan. Article
can law I was not at fault. I received a
proper trial and was found guilty of 'simple pointed if the Department of State, in VII of the treaty would subject members negligence,' whatever that is, and fined. Yet view of the discussions before the Com of American military forces to trial in for the judge himself, who was an American, mittee on Foreign Relations and the dis- eign courts for nonmilitary offenses.
stated in his opinion that under German cussions on the floor of the Senate, At the hearing on June 24 Senator law he had no choice but to find me guilty, should not negotiate other agreements BRICKER received permission to submit for even though under American law I would not
be guilty. He further stated that he did which would cover a number of the points the RECORD a digest of letters he had rewhich have been raised.
ceived on this subject. The following list not know why he was not allowed to try me
includes only the letters of those who have under American law. * Mr. BRICKER. I thank the Senator
some firsthand knowledge of American mili. “This is a very bad situation for me, since from California for his contribution.
tary justice, the criminal law and procedure if the decision of the lower court is not reThese letters, Mr. President, are from of foreign countries, or conditions prevail- versed, I will be branded for life with the the field in most respects, and they covering in countries where American troops are stigma of a criminal.” individual instances showing the danger stationed.
Case No. 5, from an Army officer in the Far we are incurring in this treaty. I desire Case No. 1, from an American judge in
East: to read case No. 10. I shall read only Western Germany:
"Bravo for your strong stand against al. one or two more of them. This letter
"I read with interest of your bill to secure
lowing foreign governments to have criminal
jurisdiction over American troops stationed is from a United States Air Force officer the legal rights of United States soldiers and civilians stationed in European countries.
abroad. It would indeed be a sad travesty stationed in France:
You are quite right about it and I am writ to deprive American troops overseas of the How long do you think a French judge of a
ing you because I thought perhaps I might protection of the Government and Constipolice court would last if he disregarded the be of help. *
tution many have given their lives to detestimony of a Communist policeman and
“At any rate, I have had to become familiar accepted the testimony of a GI? It's hard
Case No. 6, from the wife of an American with the civil-law theory. It differs from to convince me that all of our top military
soldier serving in France: ours in five important particulars: (1) They and naval personnel really believe in this
"After all, our husbands and fathers are have an examining magistrate, juge d'inproposed treaty. struction,' with quasi-inquisitorial powers.
not serving overseas by their choice, but by
orders and with this bill will be left to the I have before me a letter from a pas
(2) No adequate rule of reasonable doubt
mercy of a foreign court. I am a foreign tor in Europe, in which he says:
war bride and have seen how other courts at the discretion of the trial judge. (4) It is inconceivable that American service.
operate. Their jurors are only assessors sitting with
Our soldiers could be very easily men would be accorded just and fair trials judges and in some cases being in a minority. rooked into a crime by maybe a commu. as we understand these terms in the United (5) Release on bail can be and in the majore nistic or anti-American group and then be States. In spite of the fact that American
tried by a communistic or anti-Americanity of cases is denied. As an example: An servicemen have gone thousands of miles American citizen, one Bowen, was held re
inclined judge. Or soldiers could be ganged from their homes on missions of liberation cently in jail for 6 months by the German
up on and then get a trial like Vogeler or from tyranny in winning two of the great courts for a currency violation. He was
Oatis. I think anybody should think twice est wars in world history, during a period of only released because I issued a public state
before voting for such a bill.” only 28 years, their overseas friends still ment which forced the High Commissioner
Case No. 7, from the legislative chairman think they are overpaid and pampered. to act. Subsequently the charges were dis
of a Reserve officers' association: missed."
“It is hard to believe that anyone who The next letter comes from the wife
calls himself an American would desire, by of a soldier stationed in Turkey, a case
Case No. 2, from a resident of Ohio:
treaty, to deprive the military forces of our
"I have a sister who is married to a United illustrative of another point which was
country, serving in foreign lands for the proStates naval commander, and they are living emphasized a moment ago by the Sena
tection of those same lands, to deprive him in Yokohama. Recently I received a letter tor from Nevada.
of his constitutional rights, when, in fact, This woman says: from her in which she expressed such ap
we grant those same rights to enemies resiMy husband was immediately confined preciation of your efforts in the introduc
dent within our own borders.” to a Turkish prison to await his trial. His tion of the reservation to the 14-nation pact
Case No. 8, from a resident of Cincinnati, Army friends retained two Turkish lawyers. that I thought you might like to know
Ohio: However, from the beginning to the end the
"I spent 31 years of my life and money to trial was a great injustice. There were not "It is good to know that someone is look help bring about an equitable court-martial any witnesses called on my husband's be ing out for us. Knowing what we do, none system for all serving in our Armed Forces. half and the Turkish witnesses contradicted of us want to come under Japanese police * * * Congress should take immediate actheir true original statements.
jurisdiction. They haven't forgotten the tion to forbid the further turning over of our
service personnel to foreign nations for trial for approximately 242 years [in] Newfound the French and Communist elements. He by backward and even barbaric nations and land. * * *
says further that the town nearest his post then pass the Bricker amendment so that “Repeatedly the Newfoundland police au is 50 percent Communist and that there are the people who are overwhelmingly in favor thorities made arrests of military personnel signs up all over the place which say, 'United of it can enact it into our Constitution." for nonmilitary offenses, such as assault and States go home.' * *
Case No. 9, from a retired brigadier gen battery on civilians, public drunkenness, "My husband's brother gave his life in eral:
petty larceny, et cetera, which offenses were Korea in October 1951 for this cause—now, “May I urge your utmost opposition to committed outside of the military base. The do not tell me that my husband faces a fate proposed treaty permitting trial by foreign arrested soldier was confined in a local jail, worse than death by being subject to the courts of American military personnel. * and thereafter brought before a local court above odious situation for the next 3 years. It is illogical and unreasonable and can only for trial.
I implore you to get this proposal adopted represent another effort to place the rights “An effort was made to secure a release at once." and lives of American citizens under foreign of the arrested personnel for subsequent trial Case No. 19, from a sergeant in the United control. Service personnel have no choice in by military court-maritial, which effort re States Air Force stationed in Japan: their foreign assignments but do have an sulted in an agreement, difficult to operate, “I, a serviceman, am certainly opposed to inalienable right to the protection of our whereby on occasions the arrested soldier having my constitutional rights bartered Constitution. Is this to be denied them by would be handed over to the military author away by any person, and furthermore I do the Congress of the United States?”
ities, for court-martial action. However, the not believe that any official has the auCase No. 10, from a United States Air Force Newfoundland Government reserved unto thority to do it. * officer stationed in France:
itself the right to determine when and if "The greatest majority of us are serving “How long do you think a French judge of this should be done. This resulted in great in foreign lands because our Government a police court would last if he disregarded confusion and embarrassment.
saw fit to send us there, not because we the testimony of a Communist policeman "A review of international law will dis wanted to leave our own country; therefore, and accepted the testimony of a GI? It's close that, throughout recorded history, a I feel that we are entitled to retain our rights hard to convince me that all of our top mili host country has accorded a friendly nation, and the protection guaranteed by our Contary and naval personnel really believe in stationing troops by consent within the stitution." this proposed treaty."
host country borders, the right to discipline Case No. 20, from a United States Army Case No. 11, from a service pastor in Eu these troops. This right, we yoluntarily sur officer stationed in Japan: rope:
rendered when the bases agreement was "I note with a great deal of concern the “It is inconceivable that American service executed. May I assure you that, in my efforts of some person or persons to subject men would be accorded just and fair trials as opinion, such a surrender is attended by in the American soldier, his wife and children, we understand these terms in the United herent difficulties of the greatest magnitude. as well as all those come under the heading States. In spite of the fact that American "I commend you for your opposition to a of 'civilian component to the civil laws of servicemen have gone thousands of miles proposed similar surrender of disciplinary the NATO countries. Not that I don't think from their homes on missions of liberation power to NATO nations."
that the laws of any country, where such from tyranny in winning two of the greatest Case No. 16, from a United States Army
laws reflect the will of the inhabitants therewars in world history, during a period of only officer:
of, shorld not b respected and obeyed to 28 years, their overseas friends still think "I heartily agree with your important dis- the letter, but being here in Japan with my they are overpaid and pampered."
tinction between American citizens who go family and with the possibility that they Case No. 12, from the wife of a soldier sta abroad voluntarily for reasons of business or and myself, as well as other Americans servtioned in Turkey:
pleasure, and a member of the military, or ing here, might soon be in effect left with“My husband was immediately confined to his dependents, who are stationed abroad by out the protection of the rights guaranteed a Turkish prison to wait his trial. His Army virtue of military orders. Certainly those in under the maxim 'The Constitution follows friends retained two Turkish lawyers; how the latter category are entitled to the full the flag.' ever, from the beginning to the end the trial protection and safeguards granted them un. Case No. 21, from an American Legion was a great injustice. There were not any der our Constitution-particularly when the post in French Morocco: witnesses called on my husband's behalf, and systems of jurisprudence, as practiced in "We respectfully suggest that the investhe Turkish witnesses contradicted their these foreign countries, are so diametrically tigation include à tabular comparison of true original statements. * . opposed to ours.
judicial action by French courts in trying "My husband was sentenced to 10 months "Having just returned from an overseas United States naval base personnel at Port in a vermin-infested, unkempt Turkish pris tour involving 19 months on Guam, 5 months Lyautey, Morocco, with action on cases inon, with a low class of Turkish criminals. in the Philippine Islands and 15 months in volving French service personnel and French While there he met an American, W.O. Ken Japan; as well as 18 months in Europe dur civilians. * neth Roberson, serving a 2-year sentence. I ing World War II; I have had ample op
“We believe such statistics would be a am informed the warrant officer's trial was a portunity to observe jurisprudence under significant commentary on the system under disgrace. At present he is allowed no visitors these - several foreign governments. As an
consideration, in action, and would indicate except the chaplain once a week and an occa individual, I am certainly loathe to submit among other things that many more French sional Turkish doctor. Warrant officer Ro American citizens to the jurisdiction of these than American military cases are remanded berson is suffering with tuberculosis.
foreign courts where rights guaranteed under to commanding officers. “We haven't had any hope of helping him the Constitution would never be considered. "Despite the status quo agreement, France until we read your article in the New York “Protection is, of course, provided for the began to try United States Navy personnel. Times.”
State Department personnel through diplo Kenneth Griffin, ship-service man, second Case No. 13, from a dentist residing in matic or consular immunity from trial by a class, was sentenced to prison by a French Ohio:
foreign state; however, in the negotiation court, for an offense committed while the "Being a veteran of 6 years in the United of these treaties this important right should status quo was in force. States Navy and serving in such places as definitely be kept in mind for all loyal “The French claim that an arrangement Morocco, Algeria, Italy, and Great Britain, servants of the American people."
made in connection with the granting of I shudder to think of the possibility of being Case No. 17, from the wife of an American new bases gave them jurisdiction over this tried, convicted and imprisoned in any of soldier stationed in French Morocco:
personnel. However, the arrangement was those lands."
“The French Government both in France prior to, and the assumption of jurisdicCase No. 14, from a member of the Amer and in French Morocco, where I have spent tion was after, the status quo agreement 1can Legion:
over 2 years with my husband who is in the was entered into. Furthermore, at that "On Monday, June 15, the 300 members of military service, discriminated against Amer time, the United States was contending that, Logan Square Post, No. 405, the American icans both individually and collectively in under treaties, American citizens were not Legion, Department of Illinois, in regular every possible manner.
subject to trial by French or Moroccan courts. meeting at Chicago, unanimously adopted “It is a matter of record that French courts “This squarely brings up a question in a resolution which I prepared, endorsing invariably assess maximum fines and which this post is vitally interested. May and approving your pending amendment pro punishments against Americans. * *
the Executive make arrangements which deviding for trial of all members of our armed “Since American military have no choice prive citizens of specific important rights forces in foreign countries by United States but to go where they are sent they certainly guaranteed by treaty? * courts and under United States constitu deserve protection from the prejudice and “Reverting to Griffin-his sentence was tional safeguards.
discrimination that is present on every hand increased from 10 months to 16 months “Last night, on my motion, unanimous in France and French Morocco.”
by the appeal court reviewing his case, concurrence to that resolution was voted by Case No. 18, from the wife of an Ameri Trials here do not have juries as we know the 42 posts and 9,600 members of the ninth can soldier stationed in France:
them, nor do officials respect certain other district of this department."
"It is with great apprehension that I write
constitutional safeguards which we are Case No. 15, from a Tennessee lawyer: this letter as my husband is stationed in guaranteed."
"I have had personal experience with the France and I will be joining him within the Case No. 22, from the wife of an Amerprosecution of American soldiers in foreign next 3 months. He informs me that our ican citizen living in French Morocco: civil courts, while serving in the United soldiers are being jailed, held without noti "We all hope that if and when the treaty States Army. During the recent war, I served fying our authority, tried and convicted by is signed it will contain the proviso, and
that our thousands of military personnel in in a military rather than a civilian com of Forces Treaty, it recognizes the priyMorocco will not become a focal point for
munity. In essence, however, the same ilege against self-incrimination. the hostility directed toward Americans by principle is involved. Shall Americans If it is proper to remove American the French colonial administration there.
subject to the jurisdiction of the United servicemen from the jurisdiction of the This resentment is becoming more open
States be tried by other Americans who armed forces, then it is equally proper to since our consulate states that we have no effective means of opposing French action."
live in the vicinity of the scene of the surrender jurisdiction over American alleged crime?
civilians to an international criminal Mr. BRICKER. Mr. President, there
The first affirmative answer to that court. The principle at stake is the are two more letters which I wish to question was supplied by the Declaration same. In both cases, Americans, because present. One comes from the neighbor- of Independence. George III was casti- of the action of their own Government, ing State of Virginia, from a former resi
gated "for transporting us beyond seas would be deprived of the right to be tried dent of Ohio, which reads as follows:
to be tried for pretended offenses.” Then in accordance with American law, civil JULY 8, 1953.
came the Bill of Rights with the sixth in one case and military in the other. Senator John W. BRICKER,
amendment providing for trial in "the This introduction explains why the Washington, D. C.
State and district wherein the crime applicable rule of international law is so DEAR SENATOR BRICKER: As a former resishall have been committed."
vitally important, even though everyone dent of Ohio and faculty member of Ohio University, I am writing to express my ap
All efforts to weaken the spirit of the agrees that the rule of international law, proval of your efforts to restrict the proposed sixth amendment have so far been frus whatever it may be, can be altered by treaty under which Americans in NATO may trated. For example, in 1909 newspaper treaty. Under my interpretation of inbe tried in European courts.
editors in Indianapolis were indicted on ternational law, American troops staI have recently returned from several
a charge of criminal libel. Federal of- tioned abroad at the invitation of the months in England, where I taught on our ficers attempted to have the editors re host country enjoy immunity from crimUnited States Air Force bases in connection moved to Washington, D. C., for trial be
inal prosecution in local foreign courts. with the University of Maryland overseas program. While there I observed much anti
cause several newspapers had circulated Therefore, the pending treaty surrenders United States sentiment and resentment
there. In denying the application for rights to which Americans would be against the presence of our troops. There is removal, here is what the United States otherwise entitled. good reason to believe that if our GI's district court said:
Proponents of the treaty insist that came under the jurisdiction of British courts,
To my mind that man has read the history troops stationed in a friendly foreign they would be discriminated against and
of our institutions to little purpose who does country have no immunity from criminal would be used as a target for the ill feeling not look with grave apprehensions upon the
prosecution in the absence of treaty. toward the United States over there. Despite
possibility of the success of a proceeding From this interpretation of international the reputed impartiality of British justice,
such as this. * * * If the prosecuting of law, it follows that the pending treaty community sentiment in Britain would be
ficers have the right to select the tribunal. does not involve any surrender of jurisstrong for harsh penalties against American
* If the Government has that power, diction. It is a view of international law violators of British law. A combination of
and can drag citizens from distant States to complex economic, political, and psychologi
that places an American boy, drafted in the Capital of the Nation, there to be tried, cal factors arising from the changed power
the Army and sent overseas to defend then, as Judge Cooley says, this is a strange relationships of the two countries enters into
result of a revolution where one of the grieve foreign soil, in exactly the same position this situation. As a sociologist it is my be
ances complained of was the assertion of the as an American civilian who goes abroad lief that the present arrangement, in which
right to send parties abroad for trial. for reasons of business or pleasure. our troops are under the jurisdiction of (United States v. Smith, 173 Fed. 227.)
I sincerely doubt that the administra. United States courts-martial, is much more
tion realizes the frightening implicapreferable to the proposed plan.
Since it was improper to remove those
tions flowing from its view of internaI might add that these remarks are not in Indiana editors to the capital of their any way prompted by anti-British feeling. own country for trial, by what stranga tional law. American armed forces are I was in fact born in England and lived there logic is it deemed proper to remove Amer
stationed in many countries with which for many years before becoming an Ameriican soldiers from the Armed Forces for
no binding agreement exists relative to can citizen.
their status. If the view of the admintrial in Paris, Istanbul, or Tokyo? The second letter comes from Lake
istration and of other proponents of the
This incredible proposal is merely one wood, Ohio, and reads as follows:
treaty is correct, those nations can treat of many recent assaults on the basic at
American troops in any way they see fit, JULY 9, 1953. ibutes of national sovereignty. Since
and the United States is powerless to Hon. JOHN W. BRICKER,
national criminal jurisdiction is one of invoke any rule of international law for United States Senate,
those primary attributes, it has been a Washington, D. C.
their protection. And if the adminisSIR: Please accept my sincere congratu- minded internationalists want the United special object of attack. Some fuzzy
tration is right, any 1 of the 13 NATO lations for the position you have taken re
countries that refuses to ratify the pendStates to ratify the United Nations draft ing treaty would have a perfect right garding the pending NATO protocols, in connection with trial jurisdiction over United statute for an International Criminal under international law to treat them States military personnel.
Court. That proposed treaty would perIt is indeed ironic that some of our leaders
even worse than the proposed treaty law mit Americans to be tried anywhere in
would allow. are indifferent to those basic rights guaran the world by an international tribunal teed by our Constitution—the very people for certain international crimes not yet not callously disregard the rights of
Fortunately, international law does who have sworn solemnly to defend that defined. Constitution are in danger of being deprived with the NATO status of Forces Treaty country or the respect due the sovereign
A comparison of that treaty troops stationed in a friendly foreign of its protection. I and many with which I have spoken are grateful that we are repdiscloses the following points of simi
nation they represent. It is most reresented by you, with your courage and in- larity:
grettable that the NATO status of Forces sistence upon the American way for Amer First, the President of the United
Treaty is not frankly presented as an icans everywhere.
States cannot exercise his right to parPlease insist that United States Armed don; second, right to a public trial is not ternational law. By virtue of the argu
exception to the traditional rule of inForces personnel stationed abroad be assured guaranteed; third, no prohibition against ment presented by the administration on the full protection of the Constitution in
cruel and unusual punishment before or juridical matters. No expediency, NATO or
this treaty, every nation in the world after trial; fourth, no prohibition against where American troops are, or may be, otherwise, can possibly justify any other course. a demand for excessive bail; fifth, no
stationed can claim absolute power to presumption of innocence; sixth, no punish them for alleged offenses, or for I desire to discuss, Mr. President, guaranty of conviction only on proof of real offenses, too. Having abandoned criminal jurisdiction in general.
guilt beyond a reasonable doubt; seventh, the rule of law on which the United CRIMINAL JURISDICTION IN GENERAL possibility of conviction by mere ma
States has always insisted, it will be difAnglo-American criminal law is rooted jority vote; and eighth, possibility of ficult if not impossible, to invoke'it in the in the principle that the accused may be conviction by the vote of a Communist future to prevent injustice. tried only by his fellow citizens and only judge.
Unquestionably, rules of international by those citizens who reside near the In one respect the United Nations draft law may be waived or modified by treaty. scene of the alleged crime. Here we are statute for an International Criminal The proposed treaty can hardly be deconcerned with the rights of Americans Court is better. Unlike the NATO Status scribed as an intelligent waiver, because
some of its negotiators and defenders Is not that carried out in the article Mr. COOPER. Is it the contention of have no apparent knowledge of the in which my distinguished colleague has the Senator that the same rule prevails ternational law proposed to be set aside. quoted? I quote from the article by when our troops are in foreign countries Others seem bent on destroying the tra- . Archibald King:
in peacetime as when there in wartime? ditional rule of international law on the
The theory of Chief Justice Marshall's Mr. BRICKER. I do not see any reatheory that we must never stand up for opinion in the case of the Exchange and son for it. Undoubtedly this is a soverAmerican rights, that we must always of the other authorities quoted, is that there eign nation in peace as well as in war, yield to the demands of our allies, or is an agreement between the host nation and we ought to have the same protecthat appeasement is cooperation. Their B, and nation A, implied from B’s consent
tion of our nationals, wherever they may obvious purpose in abandoning the trafor A's troops to enter B's territory, that
be, particularly if they are there against ditional rule of international law is to those troops while in B shall be under the
their will, as is the case with many of exclusive jurisdiction of their own military prove that the proposed treaty gives courts. It is, however, clearly permissible,
them who are sent abroad. away no rights.
and in many cases highly desirable, to have Mr. COOPER. It seems to me that it THE GENERALLY ACCEPTED RULE OF
an express agreement on the subject, rather would be rather difficult for us to say INTERNATIONAL LAW
than for the matter to be left to implication. that we will exercise our sovereignty and The generally accepted rule of inter
That is what we are trying to do by
jurisdiction in the United States which national law is explained in the article these treaties, is it not? My question is,
we do, over foreign nationals and over by Col. Archibald King, beginning on Does Chief Justice Marshall's opinion
foreign troops who may be on our soil, page 539, volume 40, of the American rest on the consent of the sovereign na
and yet take the contradictory position, Journal of International Law. That tions?
that we have full jurisdiction over our article is reprinted in the CONGRESSIONAL Mr. BRICKER. It rests on the im troops in other countries, if they commit RECORD for May 7, 1953, and in the hear- plied consent of the country to which
violations against their person or propings before the Senate Foreign Relations the troops are going. I have never con
erty. Committee. A subsequent article on tended for a moment that we cannot
Mr. BRICKER. I remind the Senator this subject by Colonel King may be change that rule by treaty. That is
that that is not the position which the found in the April 1946 issue of the what it is proposed to do. That is what
Senator from Ohio has taken. If the American Journal of International Law.
we shall do if we do not adopt my reser Senator will read the reservation which I ask unanimous consent that this later vation, We shall change the rule as
I have submitted, he will see that that article by Colonel King be printed at the
to the implied consent of those coun is not the position of the Senator from conclusion of my remarks. tries, and we shall also change 150 years
Ohio at all. I think there should be The PRESIDING OFFICER. Without of traditional international law, as
reciprocity. I know of no reason why objection, it is so ordered.
adopted, applied, and understood by the there should not be reciprocity. In fact, (See exhibit 1.)
courts of our country. We can change at the present time there is no reason Mr. BRICKER. Mr. President, the two that implied agreement by treaty at any
for reciprocity, because there is no orKing articles show a substantial una time.
ganized force of any of those countries nimity of opinion among judges, inter
Mr. COOPER. Mr. President, will the
in the United States.. national lawyers, and international Senator yield?
Mr. COOPER. I have listened to this agreements dealing with the subject. Mr. BRICKER. I yield.
argument with a great deal of interest. With rare exceptions, it has been recog Mr. COOPER. I should like to ask As I have said, I can see that there might nized that the invitation of the host the distinguished Senator from Ohio a be disagreement as to whether or not country for a foreign force to enter its question. It seems to me that there are this treaty was negotiated in a way territory carries with it immunity of two points at issue. The first goes sim
which each one of us might approve; visiting forces personnel from the ju- ply to the question of whether the treaty while I would like it to be different I risdiction of local courts.
is a wise agreement, whether or not it have been unable to find any authority, Chief Justice John Marshall gave this gives the best protection under all the other than in time of war, or in an ocdoctrine of implied immunity its most circumstances to American soldiers and cupied country, or by agreement for the authoritative expression in The Schooner interests. The first issue bears simply
The first issue bears simply proposition that under international Exchange v. McFaddon (7 Cr. 116). That upon the content of the agreement itself law we have continuing jurisdiction over case involved a libel in admiralty against and its terms. I certainly concede that our troops for crimes committed against a French vessel present in Philadelphia there can be disagreement over the the nationals of the country in which with the implied consent of the United terms of the treaty. The second issue is our troops are stationed. States. The essence of the decision is the important one, and that is whether Mr. BRICKER. I submit to the Senthat any armed force, land as well as under international law, we have the ator from Kentucky that there have naval, enjoys an extraterritorial status right of jurisdiction over our troops if been 150 years of international law, as when it enters the territory of another they should commit violations against recognized in this country and as recognation with the latter's consent. As late the nationals or property of a foreign nized by England as recently as 1939, as 1939, the highest court of the British state.
according to the statement which I made Empire called John Marshall's opinion
Is it the Senator's contention that a moment ago. I do not think there has "a judgment which has illumined the
it is not necessary to negotiate agree been any variation from that principle jurisprudence of the world”-Chung Chi ment, and that our jurisdiction con except in one small instance, and that Cheung v. The King (1939 A. C. 160, 168). tinues on foreign soil, as it does upon soil was accomplished by executive agree
Mr. SALTONSTALL, Mr. President, of the United States? The contention ment, when the President of the United will the Senator yield?
of the Senator is the familiar question States negotiated an exchange of bases Mr. BŘICKER. I yield.
that has been argued-Does the Consti for destroyers. Jurisdiction over our Mr. SALTONSTALL. The Senator has tution follow our troops and flag?
Armed Forces in those bases was left quoted from Chief Justice Marshall's
Mr. BRICKER. here is no question with the other country. That was done opinion. I wish to ask the Senator from in my mind about that. It should. It by executive agreement. I think that Ohio the same question I asked the Sen has. It does, except in the case of a is the only instance that can be found of ator from Nevada [Mr. MCCARRAN].
treaty which provides to the contrary. variance from the principle of internaOn page 135 of the United States Re
Mr. COOPER. As I stated at the be tional law. ports 11, Chief Justice Marshall begins ginning, there can be disagreement Mr. COOPER. Is it not a fact that his opinion as follows:
about the terms of the treaty. But I be agreements have been negotiated The jurisdiction of courts is a branch of lieve the contention of the distinguished throughout the years fixing the status of that which is possessed by the Nation as an Senator from Ohio that our sovereignty our troops in foreign lands; and is not independent sovereign power.
and jurisdiction, with respect to our that proof in itself that agreements are Then I skip to the following:
troops, are as complete in France or necessary to modify the fixed rule of inAll exceptions, therefore, to the full and
Germany or England as they are here ternational law? Each country is soycomplete power of a nation within its own is an incorrect one.
ereign within its own boundaries. What territories, must be traced up to the consent
Mr. BRICKER. They should be, in is the necessity of negotiating an of the nation itself. They can flow from no
my judgment, because we are there by agreement at all if it is not a rule of inother legitimate source. invitation
ternational law that each country is sov
ereign within its own boundaries and in consent under international law, which enters its domain. Members of the force who circumstances such as this treaty com- the distinguished Senator from Ohio has
there commit offenses are dealt with by the prehends, has jurisdiction over foreign mentioned, is certainly lacking when
military or other authorities of the state to nationals who commit violations against other countries refuse to allow us to
whose service they belong, unless the of
fenders are voluntarily given up. (Hyde, 1 it? exercise completely exclusive jurisdic
International Law, sec. 247.) Mr. BRICKER. All the agreements tion and require a written agreement until this recent episode have affirmed setting forth the circumstances under
Mr. WILEY. Mr. President, will the the traditional international law. This which they will recognize our jurisdic
Senator yield for a question? is the first time we have been confronted tion.
Mr. BRICKER. I yield for a question. with any attempt to change the tradi Mr. BRICKER. Of course, if there
Mr. WILEY. Is it not correct to say tional international law, of which this had been any thought of depriving of
that the Marshall opinion refers only to country has been a proponent through their constitutional rights American
foreign troops in transit, not to troops out its whole national life, until the pro- soldiers, who would be taken away from
stationed in the territory? posal which is now before the Senate. their homes and sent, against their will,
Mr. BRICKER. I did not understand If the Senator wishes to know whether perhaps, to foreign countries, that ques
the question. we can change the rule by treaty, there tion should have been thrashed out be
Mr. WILEY. Does not the opinion of is no question about it, in the judgment fore the troops were sent into the for
Chief Justice Marshall refer only to of the Senator from Ohio. We can, by eign lands.
troops in transit, going through a countreaty, change the traditional principle. Mr. SALTONSTALL. Certainly we
try or marching through a country? But the mere fact that we have acceded do not want to have our boys lose their
Mr. BRICKER. Chief Justice Marto the desires of nations where our constitutional rights. But, if they are
shall's opinion made reference to troops troops are stationed is not proof to me a part of our forces in a foreign country,
on a ship which was libeled. It was not that it ought to be done. does not the Senator agree that we must
going through a country, of course. It Mr. COOPER. I know that by agree determine and provide those rights by
was stationed in the harbor of Philament the rule as to jurisdiction can be
delphia. The troops were not marching express agreements? fixed; but the contradiction of the argu Mr. BRICKER. But the treaties give
anywhere. They were not moving at the
time the libel was applied. ment of my good friend from Ohio is that those rights away.
those rights away. They fail to protect he argues as a rule of international law the rights of American soldiers stationed
Mr. WILEY. I ask whether at any that our jurisdiction as a sovereign state on foreign soil.
time Chief Justice Marshall in his opinpursues our troops into a foreign land, Mr. SALTONSTALL. I respectfully
ion refers to any troops but troops in
transit. and at the same time admits the neces- say that is where we might disagree.
Mr. BRICKER. His decision was with sity for agreements.
Mr. BRICKER. I have delineated, as
regard to foreign troops on foreign soil. Mr. BRICKER. That is exactly true. has the Senator from Nevada [Mr. Mc
The opinion states: That is my position. It is my position CARRAN], the many respects in which the that there ought to be no agreement, so rights of American soldiers are not pro
Strong grounds of convenience and necesfar as the status of our armed forces in tected under the treaty.
sity prevent the exercise of jurisdiction over foreign countries is concerned. That is
a foreign organized military force, which, Mr. LONG. Mr. President, will the
with the consent of the territorial sovereign, exactly the point of my reservation. It Senator yield?
enters its domain. would leave international law as it al Mr. BRICKER. I yield. ways has been.
Mr. LONG. Are we to understand
Mr. WILEY. Mr. President, will the Mr. COOPER. Then the Senator relies that the treaty makes American boys who
Senator yield further? upon the proposition that, as a sovereign
Mr. BRICKER. I yield. are sent overseas subject to the laws of
Mr. WILEY. I wonder whether in his country, our jurisdiction follows the flag the foreign country?
brief the Senator from Ohio cited the and protects and gives to the American
Mr. BRICKER. The Senator is cor
opinion of Justice Jordan in the Aussoldier every right that he has here in the rect. United States.
tralia case of Wright against Cantrell, Mr. LONG. For a violation of law
in which the Justice stated the followMr. BRICKER. Under the Constitu- those boys can be tried in foreign courts ing with reference to the Marshall detion. by foreign judges, and with foreign at
cision that Mr. COOPER. As against the sover- torneys representing them?
What the learned judgeeign power of another state in its own
Mr. BRICKER. That is correct. territory?
Mr. LONG. Notwithstanding the pro
Referring to Marshall Mr. BRICKER. Absolutely, when we
tection they have always had prior to had in mind was exercise of jurisdiction are there at their invitation. that time?
which would prevent the troops from acting Mr. SALTONSTALL. Mr. President,
Mr. BRICKER. That is correct.
as a force—something analogous to prewill the Senator yield?
venting a ship of war from being in a posi
Mr. LONG. They lose those rights Mr. BRICKER. I yield.
tion to act as such, including interference without their consent when they are Mr. SALTONSTALL. I should like to sent overseas?
by local courts, with the maintenance of
discipline—not exercise of jurisdiction over ask a question along the line of the
Mr. BRICKER. Yes, if the treaty is
individual soldiers in respect of liabilities colloquy between the Senator from ratified.
incurred or wrongs done perhaps out of all Ohio and the Senator from Kentucky.
Marshall's opinion was three times re
connection with their military duties. The Senator from Ohio has stated that affirmed by the Supreme Court, at least
Has the Senator included that opinion this is the first exception to the estab- by war of dictum—Coleman v. Tennessee in his brief? lished rule of international law.
(97 U. S. 509), Dow v. Johnson (100 U. S. Mr. BRICKER. No; I have not folMr. BRICKER. With the exception of 158), Tucker v. Alexandros (183 U. S.
158), Tucker V. Alexandroff (183 U. s. lowed all the Australian and New Zeathe case of the bases, which I mentioned 424). In Coleman against Tennessee,
424). In Coleman against Tennessee, land cases as carefully as I should like to a moment ago. for example, the Court said:
do, if I had the time for the research. Mr. SALTONSTALL. Is it not true
It is well settled that a foreign army per
However, I have read and I do underthat this is the first time our troops have mitted to march through a friendly country,
stand the decisions of the courts of my been in a foreign country at a time when
or to be stationed in it, by permission of its own country. they have not been there at war, as in government or sovereign, is exempt from the Mr. WILEY. The Senator from Ohio 1914 and 1941, or when they have not civil and criminal jurisdiction of the place is a good lawyer. When an opinion is been protecting certain areas, as in the (p. 515).
rendered, the opinion, of course, is only case of the Philippines and Puerto Rico? Among the writers on international law as it is applicable to the facts. If In the present instance we are con- law, John Bassett Moore called the
it is not applicable to the facts then it is fronted for the first time with a new schooner Exchange Marshall's greatest mere dictum. For instance, of the cases status, a new set of facts. Our troops Our troops opinion in the field of international law.
that have been cited, Coleman against are not there as protectors, and they And, Dr. Charles Cheney Hyde said:
Tennessee, Dow against Johnson, and are not there to fight. That is the rea
Tucker against Alexandroff, the first two
Strong grounds of convenience and necesson, as I see it, why these treaties are sity prevent the exercise of jurisdiction over
cases involved rights of military authori. necessary to provide for the giving of
a foreign organized military force which, ties in occupation of an enemy terriexpress consent, because the implied with the consent of the territorial sovereign, tory during belligerency, and therefore