these agreements have not yet been made public. Either pursuant to such agreements, or to others of a less formal character, or without any agreement, members of United States forces who have committed offenses in such countries have in fact been tried by their own courts-martial, and not by the local courts.

UNITED STATES

What is the legal status of members of friendly foreign armed forces in the United States? It has been the position of the Government of the United States that, following the principles of international law laid down by Chief Justice Marshall in the case of the Exchange,81 when the United States has consented to the admission of a foreign force, the courts-martial of that force may lawfully meet in the United States, try members of that force, and impose and execute sentences, and the members of such forces are exempt from the jurisdiction of the local courts, without any further consent by the United States, agreement, executive order, or statute. Friendly visiting forces possess such privileges under international law, and international law is a part of the law of the United States.82 Therefore, the United States has enacted no statute, made no agreement, and issued no executive order expressly conceding these privileges; but, without such action, foreign courts-martial have sat in the United States, tried cases, and imposed sentence. There have been occasional cases in which members of friendly foreign forces have been arrested by local police and brought before State or municipal courts. Probably some such cases have gone to trial without the question of immunity being raised. When such claim has been made by the representatives of the nation which the arrested person served, the officers of the Federal Government have made appropriate representations to the State's attorney, the court, or the governor of the State, and in every such case the accused person has been turned over to his own forces with a view to trial by court-martial.

There are, however, certan ancillary privileges with reference to military justice which have been granted to visiting forces in foreign countries, as stated in preceding sections of this paper, which the visiting forces needed and which could not be granted to them otherwise than by legislation. Accordingly a bill was drawn and urged upon Congress by the Department of State, speaking not only for itself but for the Departments of War, Justice, and the Navy. This bill was passed and approved June 30, 1944.88 Its title is "Act to implement the jurisdiction of service courts of friendly foreign forces within the United States, and for other purposes." It will be observed that the title itself is an implied but nonetheless clear recognition by Congress of the existence without legislation by it of the jurisdiction of service courts of friendly foreign forces within the United States. Consistently with that view and with Marshall's doctrine laid down in the case of the Exchange, the act does not undertake to grant to the foreign forces a right to convene courts-martial or an exemption from local courts.

Section 1 consists of definitions. Section 2 authorizes any person in the civil, military, or naval establishments of the United States having authority to arrest, upon a specific or general request of the commanding officer of a foreign force, to arrest any member of such force and deliver him to such force for trial. Section 3 provides for compulsory attendance of witnesses before foreign courts-martial and for punishment of perjury before or contempt of such a court. Section 4 provides that members of and witnesses before such courts shall have the same immunities and privileges as members of and

81 7 Cranch 116.

82 The Paquete Habana, 175 U. S. 677, 700. 83 58 Stat. 643, 22 U. S. Code 701-706.

witnesses before courts-martial of the United States. Section 5 authorizes the confinement of military prisoners sentenced by foreign courts-martial in penitentiaries, disciplinary barracks, or guardhouses of the United States. The sixth and last section of the act provides that it shall be operative with respect to the forces of any foreign state only after a finding and declaration by the President that the privileges therein provided are necessary for the maintenance of discipline. By a proclamation dated October 11, 1944, the President made such a finding as to the forces of the United Kingdom and Canada. It is presumed that he would have made a like finding for the benefit of any other Allied Power having sufficient troops in the United States to make it worthwhile.

The War Department of the United States has issued a memorandum 85 to our own forces implementing and explaining the act. It is understood that the Department of Justice has also issued instructions to United States attorneys and marshals on the subject.

CONCLUSION

The foregoing survey of the history of the last 3 years as to jurisdiction over friendly foreign forces shows that when our troops have been on Allied territory the United States has uniformly obtained exclusive criminal jurisdiction over them in its courtsmartial. Great Britain has done the same as to her forces on friendly foreign soil. Some of our smaller allies, whose governments and forces have been in exile, have not been so fortunate. Though their courtsmartial have been permitted to sit, some of the host countries have undertaken to limit the powers of those courts and have insisted on the concurrent jurisdiction of the local

criminal courts over the visiting forces.

The courts of several countries have considered the problem. They have all quoted or cited Chief Justice Marshall's opinion in the case of the Exchange 86 nearly always with agreement and often with praise, but have shown considerable reluctance to apply Marshall's doctrine against their own country and a disposition-perhaps unconsciousto find the particular case before the court not within the scope of that doctrine.

This writer asks nothing for his own country or army which he is unwilling to concede to others. Provided the visiting

forces have an efficient court-martial sys

tem, there is no practical reason why a host country should insist on trying visiting soldiers in its own courts. The fact that such nations as France and the United States have

conceded full exemption from local criminal jurisdiction to their allies on their soil, and that Great Britain and her dominions have done so as to the troops of the United States, shows that there is nothing inconsistent with the dignity of a state in making such a concession. The real reason for the immunity is that it is necessary for military efficiency. That this is so may not clearly appear when the visiting forces are far from the battle front, but becomes more evident

the closer they approach it. In this day when

a plane can travel nearly half way round the world and drop a bomb which will wipe out a city, the country which considers itself safely remote from danger may find that its soil has in a moment become the battlefield.

In his earlier article, this writer endeavored to set forth the reasons why the immunity of the visiting forces to the local jurisdiction is necessary.87 They were, however, far better stated by Marshall over a century and a quarter earlier. This article, therefore, can

84 Proclamation 2626, 9 Fed. Reg. 12403. 85 Memorandum No. 650-45, War Department, February 19, 1945, Jurisdiction over British and Canadian Forces in the United States.

86 7 Cranch 116.

87 This Journal, vol. 36 (1952), p. 539, especially at pp. 548, 549, 560.

best close, as the former one began, with a quotation from the great Chief Justice: 88

"In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it, would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops. during their passage, and permits the for eign general to use that discipline, and to inflict those punishments which the government of his army may require."

Mr. FERGUSON. Mr. President, I believe that world conditions today place the United States in a new position. We have troops stationed within the borders of various other nations. It is true there are not many troops from other nations in our land, and in that respect we are fortunate, for the enemy of the institutions of America, the American people, and the rest of the free world is the Communist Soviet Union, which is remote from our shores; so America is in the position of not being so near as are the other nations of the NATO to what may be called the tinderbox or the keg of dynamite. Therefore, there is no need for their troops to be here; but, because of necessity, we find ourselves having troops in other lands.

A reading of the NATO Treaty discloses no provison exactly applicable to the occupation of NATO countries by our troops. We must remember that the mere existence of the NATO does not solve the problem which confronts us in connection with this treaty. We are other NATO countries are also dealing dealing with sovereign states, and the with a sovereign state, namely, the United States of America. So, we must start with the proposition that without the consent of the other NATO countries America would not have the right to In fact, they might even keep out civilhave any troops within their borders. ians, by virtue of their immigration laws and they do, just as we have the right to do and as we have done.

We are dealing with sovereign nations for mutual defense. for mutual defense. We have troops in other countries-although I do not believe they should be there without the consent of Congress, as a constitutional proposition-by virtue of their consent. We are not there because we are conquerors in a war. Our troops are not in those countries as an occupation force. sideration to the way we maintain our Each sovereign state must give due conposition there.

The presence of our troops in foreign lands is, in my opinion, to the advantage of America. Having troops, airfields, and harbors in foreign lands is for the benefit of the security of America. The harbors enable our armed vessels to touch upon the shores of other countries. If I did not think that was for the benefit of the

88 7 Cranch 116, at p. 139.

security of America I do not see how, under the Constitution, we could really give military aid to those countries. But, inasmuch as we have the right, by virtue of consent, to station troops in those countries, we must enter into agreements with them as to how our troops are to maintain their position and the regulations which shall govern them, and, likewise, with respect to any troops they may have in America.

The question is not a new one. Back in 1949 some of the countries of Europe found that it was necessary to have an international agreement. By far the most important international agreement of this kind which had been reached is that negotiated and approved by the Brussels Treaty Powers on December 21, 1949. Each of those powers-France, Luxembourg, the Netherlands, Belgium, and the United Kingdom-is a signatory of the North Atlantic Treaty, and of the instant agreement.

The 1949 agreement, relating to the status of members of the armed forces of the Brussels Treaty Powers, is designed to accomplish the same purpose as the pending agreement. The consideration accorded by that treaty to the question of criminal jurisdiction over the visiting forces is the most revealing demonstration possible of the attitude of those nations toward the applicable principles of international law.

So, Mr. President, this is not a new question. Reference has been made here today to what Justice Marshall said the international law was with respect to troops passing through a country. His decision related to a vessel which had put into the port of Philadelphia. He announced some dicta as to what would be applicable, so far as international law was concerned, to troops moving through a country. But we must always be mindful of the fact that, as the world stands today, international law so far as any particular nation is concerned is only the law which that nation will recognize as international law.

I am sure no one in this country will dispute that in America we believe we live under a government of law, not a government of men. I believe, as I am sure every other Member of the Senate believes, that the principles of our criminal law are the most just of any applied anywhere in the world. They are fundamental with us. The presumption of innocence, the fact that a person must be proved guilty beyond a reasonable doubt, the confrontation of the defendant by witnesses, the jury trial, and the unanimous verdict of a jury, these and all the other great principles of our criminal law are available to every American from the humblest to the highest, because in America we have equal justice under law. Anyone who passes the Supreme Court Building can see chiseled into the front of it the words "Equal justice under law." Our country is founded on those principles. I for one in my native land would not want to relinquish any of those principles.

If I had been charged with the responsibility, I would not have negotiated such a treaty. I believe it shows those who negotiated it, even though they may have been lawyers, were not mindful of

the very fundamentals which the Senator from Ohio has discussed. When the treaty, or agreement, came before the Committee on Foreign Relations I asked many questions. Even though Chief Justice Marshall stated, as a principle of international law, that if one country permits the army of another country to pass through its land, such army is subject to the discipline and laws of the army and of the country from which it came, not of the country through which it passes-that is the implied principle. Chief Justice Marshall did not state that the country through which the army marched had to allow the foreign army to pass through, or that if it did pass through, the country allowing the transit could not apply any rules or regulations it desired to apply. That is exactly what the Brussels Treaty stated back in 1949.

To show that Great Britain did not recognize international law as we did, it passed a law, which is about to expire, permitting us to have extraterritorial permitting us to have extraterritorial jurisdiction in Great Britain. We all remember the Boxer Rebellion and the principle of extraterritoriality as applied to China. Within the past few years we have abandoned the right to extraterritorially in China. We feel that the law of the land should apply.

Mr. President, if it were not for the fact that America believes it is for the benefit of America's defense that she should have troops stationed in foreign lands, she would not have troops stationed in them today.

Of course, the foreign nation should be reasonable. It has been suggested by be reasonable. It has been suggested by the Senator from Ohio [Mr. BRICKER] that we should not surrender the rights to which we are entitled. But the fact is we are not surrendering them except upon the condition that we may station our troops in those foreign lands.

The foreign nation concedes that while a soldier is in camp or while he is in the line, or performing his duties the treaty gives the military authorities jurisdiction over him. If the soldier is operating within the scope of his employment as a soldier, the military laws of America apply. However, outside of such exceptions the treaties specify that certain principles shall apply.

There is a reservation in the treaty at least I consider it as a reservationunder which we reserve the right to stop at our borders any military man, whether or not he is wearing a uniform, if we believe it would be prejudicial to the safety and security of our country to have that person present in the United States, and therefore no person whose presence is deemed to be prejudicial to the safety or security of our country can enter or remain in the United States. Mr. COOPER. Mr. President, will the Senator yield?

Mr. FERGUSON. I yield. Mr. COOPER. A moment ago the Senator referred to the surrender of rights under the treaty. It seems to me that the whole crux of the argument is whether we are surrendering any rights in this treaty.

If the concept of the distinguished Senator from Ohio [Mr. BRICKER] is followed, that the United States has the followed, that the United States has the

same jurisdiction over its troops in Europe or in any foreign land that it has in the United States for violations against the nationals of the host country then the treaty can be construed as a surrender, a derogation or limitation of rights of our country and soldiers. It could be condemned as such by the country. That is one view.

If

The other concept is that the United States does not have full judicial jurisdiction over its forces outside of this country, in peacetime for such offenses, except as negotiated by agreement. this is the correct view-and I believe it is-then the treaty does not reduce or limit any rights. To the contrary, it enlarges rights, it gives rights which we do not have under international law.

I should like to have the view of the Senator from Michigan on the question, because it is an important issue.

If the people of America are led to believe that in this treaty our country has surrendered its rights under international law, then every one supporting the treaty would be condemned by the people. They would feel that American soldiers in foreign countries had been endangered.

That is not the view that should be held, unless it is the corect view. I do not think it is the corerct view.

Mr. FERGUSON. I would say that America has no right to have any of its soldiers on any foreign soil without the consent of the country involved. We start with that principle. If we start with that principle, namely, that we have no right to occupy a country or to have soldiers in that country, that country has the right to say we may occupy the country or have soldiers stationed there, provided the foreign country establishes certain conditions.

Therefore, by mutual agreement both nations have sacrificed and do sacrifice a part of their sovereignty. First, they need not allow us to enter; second, we do not have to enter. They can place conditions upon our entry, as we can determine conditions under which we will enter. I believe there has been a surrender by both, in that we are allowed to go in by the consent of the other nation.

Mr. COOPER. Apparently we are in agreement. I ask the Senator whether it is his view under international law that our country does have the same jurisdiction in peacetime over its troops in a foreign land, who commits offenses against a national or the property of that country, as it has over its troops in the United States.

Mr. FERGUSON. I am not positive that we have ever passed a law, or even that we could pass one, to take military jurisidiction over persons who are outside the jurisdiction of our land.

Mr. COOPER. I wish we did have military jurisdiction over all our troops who are stationed in foreign lands. However, we are dealing with principles of law. If under international law we do not have such jurisdiction over them, we cannot assume that we do and we cannot force our sovereignity upon another country. Of course, if the argument is based upon this presumption, which I do not think is a true presumption, then the people may be made to believe that

Mr. BUTLER of Maryland. Mr. President, will the Senator from Michigan yield to me?

The PRESIDING

OFFICER (Mr. PAYNE in the chair). Does the Senator from Michigan yield to the Senator from Maryland?

Mr. FERGUSON. I yield.

Mr. BUTLER of Maryland. Are not we going to make every effort to maintain jurisdiction over our own forces, rather than simply to say that we do not have jurisdiction over them? Certainly there is just as much argument on the other side, namely, that we do have jurisdiction over them.

Mr. FERGUSON. Yes. But does the Senator from Maryland maintain that if a murder were committed tonight in Paris by an United States citizen, not a United States soldier, that citizen could not be tried in French courts for the commission of that crime?

No. But

Mr. BUTLER of Maryland. if United States troops are stationed abroad such in my opinion would not be the case. I suggest we should if necessary establish courts abroad to see that justice is done according to our system.

Mr. FERGUSON. We can do that only if the foreign country permits us to set up an extraterritorial court having jurisdiction to try our own citizens while they are in that country. We gave up that right in the case of China.

Mr. COOPER. Mr. President, will the Mr. President, will the Senator from Michigan yield to me? Mr. FERGUSON. I am glad to yield to the Senator from Kentucky.

Mr. COOPER. I should like to respond to the Senator from Maryland. I do not approve the surrender of the jurisdiction of the United States. But we must face the facts-what is the jurisdiction of the United States? I have not been able to find any rule of international law giving the United

States complete jurisdiction over United States troops stationed in foreign countries in peacetime.

Mr. FERGUSON. That is what I was saying.

Mr. COOPER. In time of war our troops are under the rule of our code of military justice. If we should occupy a country then under the rules of land warfare, as the occupier of the country we can impose its jurisdiction.

But this treaty deals with other sovereign states, countries, members with us in the North Atlantic Treaty Organization. As the Senator from Michigan has said, it must be a process of agreement.

The reason for saying that it is not the law that we have the right of criminal jurisdiction over our troops when they are stationed in other sovereign countries in peacetime, is, first of all based on the fact that each nation is sovereign in its territory. We would not for a moment agree that another country could send its troops into the United States and try its troops for crimes committed in the United States against our people and property. None would agree to that idea.

It is a fact that throughout our history we have found it necessary to negotiate such agreements in regard to

have not claimed such jurisdiction.

If, as the Senator from Maryland has said, we have full criminal and civil jurisdiction over our troops when they are stationed in foreign countries in peacetime, there would be no necessity for such agreements. In this discussion we must face that one issue of the actual extent of our jurisdiction.

Mr. BUTLER of Maryland. Mr. President, will the Senator from Michigan dent, will the Senator from Michigan yield further to me?

Mr. FERGUSON. I yield.

Mr. BUTLER of Maryland. Until the last 6 or 8 years it was never considered by anyone that when United States troops moved to other countries, they did not carry with them the the full sovereignty of the United States. We have gotten these agreements only since we have had "soft" negotiators who are willing to give away the rights of our people. I say the time has come to stop it.

Mr. KNOWLAND. Mr. President, will the Senator from Michigan yield at that point?

Mr. FERGUSON. I yield.

Mr. KNOWLAND. If that be so, why did we enter into an agreement with the British, and get the British to pass a special act in that connection? If we had that power ipso facto, nothing needed to be done. But why was it done in World War I and in World War II?

Mr. BUTLER of Maryland. I prefaced my remarks by saying that it was done only in recent years. We have not taken such action in the course of other wars, during which our troops were in many foreign countries.

Mr. HENDRICKSON. Mr. President, will the Senator from Michigan yield to me? I should like to ask a question of the Senator from Kentucky.

Mr. FERGUSON. I yield for that purpose.

Mr. HENDRICKSON. It is true, is it not, that we have sovereign rights over our troops who now are in Germany, under the rules of land warfare?

Mr. COOPER. I wish we did——

Mr. HENDRICKSON. Will the Senator from Kentucky answer my question?

Mr. COOPER. I am going to. Mr. HENDRICKSON. Very well; I am sorry.

Mr. COOPER. Today Western Germany is not an occupied territory We do not have any jurisdiction over the German people under the rules or the laws which apply in the case of an occupied territory. An agreement has been made between Western Germany and the occupying powers. I do not know in detail these agreements, but I believe that our jurisdiction to try our troops stationed in Western Germany for violations against German nationals are rights arising because of the agreements, implied or express, between that State-the Republic of Western Germany-and the United States.

Mr. HENDRICKSON. We are an occupying Nation there until that treaty is fully ratified, are we not?

Mr. COOPER. I do not know the exact relationship today between the Republic of Western Germany and the

United States, but I believe the Republic of Western Germany has been restored its attributes of sovereignty.

Mr. HENDRICKSON. I can say that until a few years ago, I was in Germany in uniform, and the United States then had sovereign control over the United States troops stationed there.

Mr. FERGUSON. But at that time we occupied Germany.

Mr. HENDRICKSON. That is true. That is the point I was endeavoring to make.

Mr. FERGUSON. I think it is clear, as a constitutional principle, that the Constitution of the United States does not have an extraterritorial effect in the case of other sovereign nations.

However, if for instance we occupied Germany as the result of a war, and if we had taken possession of Germany, we would have jurisdiction over our troops in Germany, under those circumstances.

The example I gave was that of a sovereign state. In such a case could we, by virture of our laws and Constitution, take jurisdiction over a United States soldier who committed a crime by violating one of the laws of the foreign country, not one of the laws of the United States?

Mr. BRICKER. Mr. President, will the Senator from Michigan yield to me? Mr. FERGUSON. I am glad to yield. Mr. BRICKER. The Senator recognizes, does he, that under the military code, all crimes against the law of the country in which our occupying forces are located are crimes against the military code of the United States.

Mr. FERGUSON. Yes, and I have said that those in the Military Establishment of the United States, wherever they may be, are governed by the military code of the United States, which gives the military authorities full and complete jurisdiction to try accused persons.

Mr. BRICKER. Mr. President, will the Senator from Michigan yield further to me?

Mr. FERGUSON. I yield.

Mr. BRICKER. Is it the Senator's contention that in the absence of the treaty, there is no such thing as international law in the field of jurisdiction over our forces that are stationed abroad?

Mr. FERGUSON. I say that international law is merely what the sovereignty will recognize to be the international law. That is what causes all our trouble.

Mr. BRICKER. Does the Senator from Michigan mean the sovereign receiving state?

Mr. FERGUSON. Yes.

Mr. BRICKER. Does that apply to crimes committed under the military law, as well as to crimes committed under or against the law of that country?

Mr. FERGUSON. If that country wished to exercise that jurisdiction.

Mr. BRICKER. Does that mean the foreign country could take control of our troops, if they were charged with violating the miltiary code or the military law?

Mr. FERGUSON. That is correct, and there would not be any remedy except war. That is the only way international law can be enforced as of today.

Mr. BRICKER. I thank the Senator from Michigan. I may say that if that

is the international law, we had better get our troops out of these countries.

Mr. FERGUSON. Well, it is the international law.

Mr. President, it has been suggested that if a man were tried under the jurisdiction of the military code, the President of the United States could pardon him, inasmuch as the President is the one who, under our laws, has the ultimate power of pardon.

By means of the pending treaty we are attempting to do the best we can. I am told-and I cannot find any contrary evidence that this is the best treaty dealing with the treatment of our troops we can negotiate. But we wish to atBut we wish to attach an explanation or a warning not only to our own commanders-our generals or admirals, as the case may be but to everyone, so that all may understand that, after all, we want our forces that are stationed abroad to have the benefit of real justice. There is one way That is by by which it can be done. serving notice on the countries in question, as we propose to do by means of a reservation. Let me read it to the Senate, to see whether we have done the best we can do:

The criminal jurisdiction provisions of article VII do not constitute a precedent for future agreements.

That is always true as a legal proposition. If we pass a law today, we may repeal it tomorrow. It does not become a precedent. If we ratify a treaty today, we may refuse to ratify an identical treaty with any other nation tomorrow. There is nothing in the reservation that would foreclose the right of the Senate and of the Congress to act. But in order to make our position certain, to warn all nations, and in order that there may be no misunderstanding as to whether this would be regarded as a precedent, we say to them that it is not to be understood as establishing a precedent. The people of the European countries may not have an understanding of our law, and therefore may think that if we were to make a treaty of this kind with one nation or with one group of nations, we would be obligated to make similar treaties with all other nations. We therefore say in no uncertain words, and we write it in the sky, so that he who runs may read

The criminal jurisdiction provisions of article VII do not constitute a precedent for future agreements.

2. Where a person subject to the military Jurisdiction of the United States is to be tried by the authorities of a receiving state, under the treaty, the commanding officer of the Armed Forces of the United States in such state shall examine the laws of such state with particular reference to the procedural safeguards contained in the Constitution of the United States.

I would say to the American Supreme Commander of the NATO forces in Europe that he should have at his side one of the best criminal lawyers of the United States of America, a lawyer fundamentally versed in all the criminal laws of the United States, who understands them and who believes in them, to the end that this provision may be properly applied.

There is no doubt that the Senator from Ohio is correct in suggesting that a

very serious situation could result from very serious situation could result from the execution of one American soldier in a foreign land. It could cause great trouble in the United States of America. We know what happened recently when We know what happened recently when a man and his wife were tried in this country on charges of treason as the result of subversive activities. People around the world rose up in protest, claiming that the defendants in that case had not had a fair trial under just laws; but we all knew that that was not true. We are not unmindful of such occurrences. rences. Similar charges may be made with respect to our administration of with respect to our administration of military justice. Within the United United States, such things have been said of our courts; and a large number of people even marched to the Supreme Court of the United States to register their indignation against what they thought was a miscarriage of justice-not what they thought, but what they had been told by a foreign power, namely, Red Russia. But there are other trials that do not involve communism, as to which there are protests because of alleged injustices.

Mr. President, this is a warning to our commanding officer in Europe to look into the situaton. What does the third paragraph say? It goes even further. I read:

If in the opinion of such commanding officer, under all of the circumstances of the case, there is danger that the accused will not be protected because of the absence or denial of the constitutional rights he may enjoy in the United States, the commanding

officer shall request the authorities of the receiving state to waive jurisdiction in accordance with the provision of paragraph 3 (c) of article VII

That would require the receiving state to give sympathetic consideration to such requests. What would happen in case such sympathetic consideration were not given? What would happen in case the prisoner were not turned in case the prisoner were not turned over to us? I read:

and if such authority refuse to waive jurisdiction, the commanding officer shall request the Department of State to press such request through diplomatic channels, and notification shall be given by the executive branch to the Armed Services Committees of the Senate and House of Representatives.

That is just about as far as I think we could go. We say to the commanding officer, "If the rights of this man are not protected, notify the Secretary of State, and he will make and will press a request for waiver." Furthermore, if there is a refusal to grant a waiver, the Secretary of State will notify the Congress to that effect. I read further:

A representative of the United States will attend the trial of any such person by the authorities of a receiving state under the agreement, and any failure to comply with the provisions of paragraph 9 of article VII of the agreement, shall be reported to the commanding officer of the Armed Forces of the United States in such state who shall then request the Department of State to take appropriate action to protect the rights of the accused, and notification shall be given by the executive branch to the Armed Services Committees of the Senate and House of Representatives.

I think the provisions of the treaty as written go about as far as we could

go in a treaty. I come back to the proposition that our troops enter the NATO countries by consent; they go there in connection with what we believe to be the protection of our interests. Therefore, if a plea were made by the Secretary of State-a plea which, in effect, would mean that the President of the United States was saying to the receiving nation, “We believe that this trial is not proceeding in accordance with the rules of justice, according to the rights this person would have under the Constitution of the United States, and I ask you to waive jurisdiction in order that he may be tried under the military code of the United States"-would any one of the NATO nations refuse? The question will be answered by saying that it may refuse, since it is a sovereign na

tion.

But if that nation is mindful of the welfare of its people and the welfare of the free world, and if our commanding officer does his duty and has proper legal advice enabling him to distinguish between what is justice and what is not, and to understand what is correct procedure and what is not, we would have no trouble. But it may be that under certain circumstances our position in a given nation might be such that that nation would refuse to comply with the request for a waiver. If that were to occur, it would then be for us as a nation to make a choice. The choice obviously would have to be determined by answering the question as to whether the incident justified the withdrawal of our troops. The people of the United States, through their Executive, can determine that.

Mr. BRICKER. Mr. President, will the Senator from Michigan yield? Mr. FERGUSON. I yield.

Mr. BRICKER. Does the Senator from Michigan think that the NATO countries, to whom we have been fur

nishing several billion dollars a year and in which our military forces are stationed in order to defend those nations and our Nation, should refuse, under those circumstances, to give the American military commanders jurisdiction over our boys so that they may have the protection of the Constitution of the United States?

Mr. FERGUSON. I am saying that I think they would grant it.

Mr. BRICKER. I merely wanted to get accurately the position of the Senator.

Mr. FERGUSON. I would be greatly disappointed and would be the first to rise upon this floor and denounce any nation that refused to waive jurisdiction if they were not going to accord justice to the American soldier in compliance with provision No. 2 which I have read. Mr. DWORSHAK. Mr. President, will the Senator from Michigan yield? Mr. FERGUSON. I yield.

Mr. DWORSHAK. Does the Senator from Michigan know whether there is great urgency for the consideration of this treaty,

Mr. FERGUSON. I am informed that there is. The representatives of the military authority and of the State Department have told me that there is urgent need for it. The difficulty is that we are operating under an Executive agreement

which is rather indefinite and uncertain. I placed in the RECORD sentences of soldiers in Europe under NATO. I consider that in most cases the sentences were light, considering the crimes which had been committed. Without this agreement we will be proceeding under the Executive agreement. If we are without this agreement, the foreign nations

by the attached letter, which I think you should have in his absence.

The Department of Defense stands ready witnesses, statements, or background mateto furnish whatever assistance-including rial-you think would be helpful to obtaining favorable action.

Relative to the interpretation which the Senator from Michigan has been dis

edy is to withdraw or to fight; and I cannot conceive of that at the present time. Mr. DWORSHAK. Mr. President, will the Senator from Michigan yield further?

Mr. FERGUSON. Yes.

Mr. DWORSHAK. Apparently, the treaty or agreement was signed in London on June 1, 1951, more than 2 years ago. Does the Senator from Michigan know why this agreement has not been submitted to the Senate for consideration and ratification prior to this time? Mr. FERGUSON. I am informed that it was submitted last year. I shall be glad to supply that information.

Mr. DWORSHAK. I have great confidence in the ability of the Senator from Michigan to analyze some of these very difficult issues, and I should like to have some assurance from him as to the justifiable reason, if there may be a justifiable reason, why this particular agreement has not been submitted to this body during the 2-year interval since it was signed in London?

Mr. FERGUSON. I shall try to get the date.

Mr. DWORSHAK.

I should like to

thoroughly advised as to its origin. There were some questions raised before the Committee on Foreign Relations and, at the request of some of the members of that committee, the Attorney General was asked to submit comment. It was submitted to the committee, but it was not deemed by the committee to be satisfactory.

The distinguished senior Senator from Ohio [Mr. TAFT], the majority leader of the Senate, whose place I am temporarily taking during his absence, revised the language which had been submitted by the Attorney General of the United States. After it was revised substantially in the form in which the Senator from Michigan has read it, the matter was taken up with the State Department and further exchanges and discussions were had with the staff of the Foreign Relations Committee.

It came back at a meeting several days ago when a number of Senators from both parties were present, and at that time the suggestion was made that we add a proviso that when certain steps were taken, the Congress of the United States should be notified through the

own assurance.

Mr. FERGUSON. It was submitted to the Senate June 16, 1952, by the then President, Mr. Truman.

Mr. DWORSHAK. Why was there that interval between June 1951 and June 1952?

Mr. KNOWLAND. Mr. President, will the Senator from Michigan yield? Mr. FERGUSON. I yield. Mr. KNOWLAND.

Congress was not in session after the conventions of last year. I will say to the distinguished Senator from Idaho that messages have been received from not only General Ridgway but from his successor General Gruenther, who, when he was last in Washington, before going back to Europe, personally told me that he felt the agreements were an essential part of the NATO defense organization.

I have messages on my desk from Admiral Carney and from the commander of our Air Force in Europe. The testimony given before the committee by representatives of the Department of State and of the Defense Establishment is very clear that the agreement is essential.

I should like to read into the RECORD a letter dated July 9 from the Secretary of Defense, Mr. C. E. Wilson, which reads as follows:

DEAR SENATOR KNOWLAND: I know you are aware of the critical importance which the Department of Defense places on ratification of the NATO Status of Forces Agreement at this session of the Congress and how failure of ratification could seriously affect Ünited States military position in Europe. This has been strongly confirmed by recent cables from our European commanders. These cables were furnished to Senator TAFT

the

ate and the House of Representatives. The part of it which had not been seen by the senior Senator from Ohio I personally sent to him by Mr. Jack Martin when he went to New York to see the Senator from Ohio. I later received a telephone message from my office which

said:

Mr. Martin, Senator TAFT's administrative assistant, called from New York. He said Senator TAFT had looked over the Status of American Forces Agreement and says it is all right.

That is what the Senator from Wisconsin [Mr. WILEY] presented as an interpretation of the agreement.

I wanted the Senator to have that background and the Senate to have that information.

Mr. DWORSHAK. I thank the Senator from California for the information, Mr. President, will the Senator from Michigan yield further?

Mr. FERGUSON. I yield.

Mr. DWORSHAK. Does the Senator Does the Senator know whether any of the other signatory nations of NATO have ratified this particular agreement?

Mr. FERGUSON. The agreement provides that it will go into force 30 days after four signatory states have deposited their instruments of ratification with the United States Government. It was ratified by France in 1952; by Norway on February 26, 1953; by Belgium on February 7, 1953. It has been ratified by four nations.

I am advised by the Senator from Massachusetts [Mr. SALTONSTALL] that

Great Britain and Canada have ratified it subject only to orders in council, waiting for United States ratification.

Mr. MANSFIELD. Mr. President, will the Senator from Michigan yield?

Mr. FERGUSON. I yield.

Mr. MANSFIELD. Is it true that

under the NATO agreement the treaty will be in force for 20 years?

Mr. FERGUSON. Yes.

Mr. MANSFIELD. Is it true, also, that if any one nation in the organization is attacked, all other nations in the organization must come to its aid?

I

Mr. FERGUSON. Not "must." think it is discretionary. It is considered in the treaty as being an attack upon that nation.

Mr. MANSFIELD. Does the appendix or protocol which the Senate is considering look toward strengthening the relationships of NATO nations on a reciprocal basis?

Mr. FERGUSON. I think so. I believe the purpose is to have an understanding in writing by way of treaty, so that the United States and foreign countries will have something specific. The United States now finds itself in the position of having nothing in writing, or at least it has executive agreements. Therefore, I have simply come to the conclusion that it is better to have something in the nature of a treaty, and to accept it as a treaty, the law of the land, rather than to allow the situation to be open at both ends by having our military personnel subject to no care taken by a commanding officer, or to an order that the President, through his Secretary of State, shall proceed to obtain waivers, with no notice being given to Congress through its committees.

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

Mr. FERGUSON. I yield.

Mr. MANSFIELD. Under the reservation proposed by the Senator from Ohio [Mr. BRICKER], United States law would apply only to United States soldiers in any country included in the agreement. Is that correct?

Mr. FERGUSON. That is correct.

Mr. MANSFIELD. By the same token, the law applicable to foreign soldiers in the United States would be the law of the country which those soldiers represented, would it not?

Mr. FERGUSON. The Senator is correct.

Mr. MANSFIELD. In other words, the reservation proposed by the Senator from Ohio, if it be accepted, would mean that the United States would have extraterritoriality. Is that correct?

Mr. FERGUSON. That is correct. Mr. MANSFIELD. If we have extraterritoriality, does not that mean that we would give up a certain degree of our own sovereignty?

Mr. FERGUSON. That is correct. I asked that question of the legal adviser of the State Department in relation to a person in, for instance, Detroit, or the State of Michigan, as to what the jurisdiction was. If the reservation of the Senator from Ohio should be accepted, I believe the United States would have to give extraterritoriality effect to try