have not charged my conscience with an action which will not square with the right, because if the Constitution is good enough for a young American crusader for freedom when he is at home, it should equally be good for him as we send him to Indochina or Japan or Korea or Germany, or to any other corner of the earth, to carry on the ideal and the tradition of this country.

For that reason, Mr. President, I feel, as a matter of conscience, that I must support the reservation submitted by the Senator from Ohio. If that shall fail, I see no other course to pursue than to vote against the agreement.

Mr. WILEY. Mr. President, I always listen with profit to the distinguished Senator from Illinois. I desire to invite attention, before we vote, to a few of the realities of the situation. Twelve nations have negotiated or are about to negotiate this agreement. If the Senator from Illinois had heard the distinguished Senator from Kentucky [Mr. COOPER] today as he expounded the law of the situation, he would recognize that there is nothing in the agreement which is contrary to the Constitution. The Constitution of the United States is the supreme law of this land.

Mr. President, if we shall fail to ratify this treaty, what will happen? Let us see what the realities are.

All over Europe today there are tentative agreements with municipalities, states, and nations, but under them our boys are not getting the same break as they will get if we ratify this agreement. Shall we leave it in statu quo? In statu quo, someone has said, means "in a hell of a fix." [Laughter.]

Mr. President, I have before me a letter from Mr. Frank C. Nash, in which he says:

THE SECRETARY OF DEFENSE, Washington, May 7, 1953. Hon. ALEXANDER WILEY,

United States Senate. DEAR SENATOR WILEY: I understand that Senator Bricker expects to submit a reservation to the NATO Status of Forces Agreement which would provide that, as a sending state, the United States would have exclusive criminal jurisdiction over its forces in NATO countries and as a receiving state, the United States would, on request, waive its criminal jurisdiction over NATO forces in this country.

I am disturbed by this proposed reservation simply because I am convinced that its adoption by the Senate would result in a net loss of rights and privileges for our forces in the NATO countries. This result would come about because in all likelihood the reservation would prevent ratification of the agreement.

The article on criminal jurisdiction is one of the key provisions of the agreement and was the subject of protracted negotiation. Any drastic variation in its formula-a formula which was carefully designed to take into account the interests of the sending and receiving states, the unprecedented nature of the North Atlantic Treaty Organization, and the way the forces of the member countries are organized and deployed-would, in my opinion, be tantamount to a rejection of the agreement.

If the agreement should fail, our forces would be left where they are now-covered in some countries by special or temporary arrangements and treated in others in acçordance with the individual country's views of what is customary and appropriate. These arrangements and these views vary tremendously from country to country and

That subject was argued very lucidly this afternoon by various Senators, and I am sure that those who listened came to the conclusion that under this agreement we are receiving rights; we are not giving up rights. That, I think, is very clear.

Consequently, I feel that if we were to adopt the Bricker reservation we would simply throw a monkey wrench into the works, and the result would be that we would have nothing.

There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:

UNDER INTERNATIONAL LAW ARMED FORCES OF A FRIENDLY NATION STATIONED IN FOREIGN TERRITORY ARE NOT IMMUNE FROM THE CRIMINAL JURISDICTION OF THE TERRITORY EXCEPT BY CONSENT OF THE SOVEREIGN Senator BRICKER asserted in connection with consideration of the NATO Status of Forces Treaty that under international law "Troops of a friendly nation stationed within the territory of another are not subject to the laws of the other country, but are subject to their own country's laws." From this it is argued that the treaty gives United States forces stationed abroad less immunity from the criminal jurisdiction of other NATO countries than they would have under international law, because under the treaty such forces will be subject to local law for crimes committed when not on duty.

This assertion as to the law is entirely too broad. No such exemption exists except with the consent of the receiving state, and the statement before the Senate Foreign Relations Committee that there is no doctrine in international law that the receiving nation must give such exemption correctly states the law.

The international law on the subject may be stated as follows: Armed forces of a

friendly nation stationed in foreign territory are not immune from the criminal jurisdiction of the sovereign, except by its consent.

JURISDICTION IS TERRITORIAL AND ALL EXCEPTIONS MUST BE BY CONSENT OF THE SOVEREIGN Chief Justice Marshall stated the basic principle as follows:

nation itself. They can flow from no other legitimate source." (The Schooner Exchange v. McFaddon, 7 Cranch 116, 134 (1812).) IN CERTAIN CASES CONSENT TO IMMUNITY CAN BE IMPLIED UNLESS NEGATIVED

Although sovereignty is territorial, and any limitation thereon must flow from the consent of the sovereign, it has been held that consent to a waiver of jurisdiction may be implied as well as express.

*

In the schooner Exchange, Judge Marshall pointed this out, saying, "A sovereign is understood to cede a portion of his territorial jurisdiction * * where he allows the troops of a foreign prince to pass through his dominions. 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. * The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage."

**

But the Justice was careful to point out that the implied waiver of jurisdiction could be negatived by other circumstances showing the sovereign had no such intention. After stating that foreign ships of war, `entering "the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction," the Justice proceeds to point out:

"Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise."

SUMMARY OF LAW

1. The jurisdiction of a sovereign nation within its territory is exclusive and absolute.

2. Armed forces of a friendly nation stationed in a foreign territory are not immune from the criminal jurisdiction of that sovereign, except by its consent.

3. That consent may be implied under certain circumstances from the mere invitation to enter, but any such implication of consent is destroyed by any act of the soyereign which shows that he does not intend to give such consent or waiver.

The authority cited by Senator BRICKER does not conflict with the above statement, and does not support his assertion that such immunity exists as a matter of international law, absent consent of the sovereign. The author quoted (Jurisdiction Friendly Foreign Armed Forces, by Archibald King) 1 summarizes the law as follows:

over

"The invitation or permission of the host country to enter its territories carries with it, at least unless clearly denied, an implied exemption or immunity of the personnel of the visiting forces from the jurisdiction of the local courts and a consent to the functioning of the courts-martial of such forces." THE NATO COUNTRIES HAVE NOT CONSENTED TO WAIVE THEIR JURISDICTION BY PERMITTING FOREIGN MILITARY TO ENTER THEIR TERRITORIES

From the above it will be noted that the immunity is based upon the consent of the inviting sovereign, either expressed or implied. If it exists only by consent, it can be withheld by failure to give consent, thus confirming that the sovereign is under no compulsion to give its consent. This is a

136 American Journal of International Law 539, October 1942.

recognition that the immunity does not exist as of right as a result of international law, but as a result of the consent of the receiving sovereign. The only international law applicable is in the interpretation of the effect of the permission to enter, it being arguable that the permission carried with it by implication the sovereign's consent to immunity, unless such implied consent is negatived or denied.

In the case of the NATO countries, parties to the treaties, it is clear that by permitting the entry of foreign armed forces they did not intend to nor did they consent to a waiver of their jurisdiction.

The 14 NATO countries are all sovereign nations. Each possesses the right to invite or not invite the entry of the military forces of other nations into its territories, and each possesses the right to require them to leave.

These nations have made clear that their invitations to enter and to remain are on condition that a satisfactory agreement be made as to their status under the laws of the receiving state. They have all made clear that their invitation is on condition that such military forces be not exempt from the criminal jurisdiction of the receiving sovereign when not on duty, although they are willing to grant immunity with respect to acts performed in the course of duty.

This being the clear and admitted fact, there is no basis for implying a consent to a surrender of sovereignty from the fact that they are present in the foreign country by permission. The very conditions surrounding the permission clearly negative this.

If further evidence were needed to the

fact that such a consent to surrender jurisdiction is not to be implied from the permission to enter or from the presence of the military forces, it is supplied by the following:

1. The reiterated positions of the sovereigns who deny their intention to surrender their sovereignty, coupled with their power as sovereigns to withdraw their permission;

2. The establishment of interim arrangements by agreements which do not recognize such immunity;

3. The fact that numerous prosecutions of United States military personnel in the local courts of NATO countries have occurred and are occurring; 2

4. The negotiation and signing of the treaty by the 14 nations concerned, declaring the limited extent to which they are willing to surrender their sovereignty.

PRACTICE DENIES IMMUNITY

Do foreign states recognize immunity from criminal jurisdiction for foreign armed forces stationed on their territory? The experience of the United States does not so indicate.

During the war the Department of State, in support of the military authorities of the United States, sought to obtain exclusive criminal jurisdiction for our forces abroad. Negotiations to this end were pressed with every available argument of expediency and law. In some cases, notably in the United Kingdom and in Canada, it was successful. However, in neither the United Kingdom nor Canada was such jurisdiction conceded as a matter of right under international law.

The British Government pointed out that the grant of such immunity was a "very considerable departure * * * from the traditional system and practice in the United Kingdom." The Canadian Government at all times denied such immunity as a matter of right. Nevertheless, both the United Kingdom and Canada as a matter of good

2 Senator FERGUSON presented for the RECORD a compilation showing numerous prosecutions of United States military personnel for violation of criminal statutes in NATO countries since January 1, 1951. CONGRESSIONAL RECORD, vol. 99, p. 4670.

will and wartime cooperation by unilateral acts granted the United States exclusive jurisdiction over its forces in their territories." In Great Britain this was done by act of Parliament (United States of America (Visiting Forces) Act, 1942; 5 and 6 Geo. VI), in Canada by Order in Council under wartime powers (Order in Council P. C. 9694, Dec. 20, 1943). The Canadian Order in Council lapsed and was followed by the Visiting Forces (United States of America) Act of April 1, 1947 (11 Geo. VI), under which Canada retains jurisdiction to try members of the United States forces in Canadian courts. In Great Britain, the United States of America (Visiting Forces) Act, 1942, although still in effect, was intended only as a wartime measure, and will become ineffective as soon as legislation already enacted by the British Parliament implementing the NATO Status of Forces Agreement is put into force. UNITED STATES MEASURES RESPECTING FOREIGN MILITARY FORCES

As a measure of reciprocity for the British and Canadian acts during the war, the United States Congress, at the instance of the State, War, and Navy Departments, passed Public Law 384 of the 78th Congress (22 U. S. C. 701) to implement the jurisdiction of foreign service courts in the United States. This act was brought into force, in accordance with its terms, as to the United Kingdom and Canada by Presidential Proclamation No. 2226, October 11, 1944. The act confers no jurisdiction on foreign military tribunals in the United States, and it is clear from the report of the Committee on the Judiciary of the United States Senate that the Congress did not recognize for foreign military forces any general immunity from the criminal jurisdiction of civil courts in the United States. The report stated that:

"This proposed legislation, closely related to the war, is of a temporary and conditional nature, since its operation is revocable at the pleasure of the President, as agent of the Congress, under section 6. This is an important feature of the bill. At any rate, Congress is at liberty to repeal or amend at any time.

"The committee do not concede that any foreign military court has more than conditional jurisdiction while on our soil."

Referring no doubt to information in the Secretary of State's letter to the Speaker of the House forwarding the draft legislation that in an exchange of notes the British Embassy had been advised that "the interested agencies of this Government were of the opinion that British service courts and authorities in the United States have the right under our law to exercise jurisdiction over members of their forces," the report further states:

"The committee do not recognize as treaty commitments whatever commitments on the part of the United States may be found in the international diplomatic correspondence hereinafter set forth.”

CURRENT ARRANGEMENTS RESPECTING UNITED STATES FORCES ABROAD

There are presently in force between the United States and a number of countries agreements relating to United States forces which contain provisions relating to the exercise of criminal jurisdiction over such forces:

United Kingdom-August (T. I. A. S. 2105).

1, 1950

United Kingdom-July 21, 1950 (T. I. A. S. 2099 (Bahamas Long Range Proving Ground)).

Portugal-September 6, 1951.

3 Neither Great Britain nor Canada would extend the exemption to armed forces of other nations stationed in their territories, thus demonstrating their view that such exemption did not exist as a matter of international law.

Denmark-April 27, 1951 (T. I. A. S. 2292). Japan-February 28, 1952.

Iceland-May 5, 1951 (Annex, May 8, 1951) (T. I. A. S. 2295).

Saudi Arabia-June 18, 1951 (T. I. A. S. 2290).

Philippines-March 14, 1947 (T. I. A. S.

1775).

Dominican Republic-November 26, 1951. A series of arrangements concluded with France and Italy during the last few years recognize the right of these sovereigns to exercise criminal jurisdiction over United States forces. In none of the agreements or arrangements referred to does the United States have the exclusive right to exercise jurisdiction over all offenses committed by members of its forces except in the agreement with Japan and in the agreement with Denmark, relating to Greenland, exclusive jurisdiction now exists but is to be replaced by jurisdictional arrangements like those under NATO Status of Forces.

In addition to the above agreements, the NATO Status of Forces Agreement which was concluded in a free and open negotiation by all of the NATO countries and which is now before the Senate for its advice and consent to ratification represents the largest measure of immunity from territorial criminal jurisdiction which the NATO countries were prepared to grant to each other. It seems probable that they would not be willing to grant that measure of immunity to non-NATO countries. During wartime the United States made every effort to obtain the greatest degree of immunity from local jurisdiction for its forces abroad and was largely successful in doing so. But these immunities resulted from negotiations on the subject, and were covered by agreements or statutes, and did not rest upon a recognized rule of international law that such troops were exempt from local criminal jurisdiction.

It is thus clear from the experience of the United States that foreign countries are not willing to grant complete immunity from their criminal jurisdiction to members of armed forces stationed on their territory in peacetime and that they do not recognize any obligation to do so at any time. Therefore, the NATO Status of Forces Agreement gives to such forces rights and privileges which would not exist in the absence of this treaty.

As the treaty was to be reciprocal, the status of foreign troops in this country had to be considered, and it was deemed unrealistic to assume that the Congress would grant absolute immunity to foreign troops, particularly in view of the action of the Senate Judiciary Committee indicated above in its report on Public Law 384.

Information furnished by the Department of Defense indicates many instances in which members of the Armed Forces of the United States stationed on foreign territory have been and are being tried in the local courts of NATO countries for offenses under the local law. It is apparent from this widespread practice that territorial sovereigns do not consider that such persons have any immunity from the local jurisdiction.

From the foregoing it is evident that the expression of the free will of the states referred to, in conventions and by usage, indicates that they do not recognize as of right any general immunity from their laws. It is precisely because no immunity is recognized as of right that the United States and other countries find it necessary in each case where their forces are stationed on foreign territory to negotiate concerning the measure of immunity which the territorial sovereign as a matter of mutual convenience may be willing to grant. The 12 NATO countries which negotiated the Status of Forces Agreement now before the Senate were aware of the principles of international law and were willing to abide by them.

AUTHORITIES CITED IN SUPPORT OF PROPOSITION THAT IMMUNITY EXISTS AS MATTER OF LAW DO NOT SUSTAIN POSITION

The contentions of those who claim the immunity exists as a matter of law are based on the statements of certain writers on international law and on dicta in certain decisions of the Supreme Court of the United States. An examination of these authorities indicates that they do not attempt to sustain the proposition that this immuniy exists as a matter of law, but only, as declared in the schooner Exchange, that a consent or waiver by the sovereign will be implied from an invitation to enter, in the absence of evidence that the sovereign does not intend to consent to such waiver.

International law is what nations recognize and practice, and not what writers advocate. However, since whatever authority exists for the immunity view stems either directly or indirectly from the dicta of Chief Justice Marshall in the Exchange case, brief reference will be made to that decision (The Schooner Exchange v. McFaddon, 7 Cranch 116). The case related not to armed forces but to the immunity of a naval vessel of a friendly foreign power from the local jurisdiction, an immunity recognized today. However, in the course of its decision holding such vessel immune, the court referred to "a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation." In this class he placed the case of foreign troops granted a right of passage and stated that "The grant of free passage * * * implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require."

It is first to be noted that Marshall's dictum refers only to foreign troops in transit and not to those stationed in the territory. Therefore, it is not relevant to the NATO situation or to any situation in which the United States is presently concerned.

Next, it is not clear what the Chief Justice meant by the term "jurisdiction." It is likely that he meant that the military authorities of the foreign forces should have the right to discipline their forces and to inflict the punishments which military discipline dictated. This was the view of Chief Justice Jordan in the Australian case of Wright v. Cantrell (44 S. R. M. S. W. 45 (1943)), who stated as his opinion:

"That what the learned judge [i. e., Marshall, C. J. had in mind was exercise of jurisdiction which would prevent the troops from acting as a force-something analogous to preventing a ship-of-war from being in a position to act as such, including interference by local courts with the maintenance of discipline-not exercise of jurisdiction over individual soldiers in respect of liabilities incurred or wrongs done perhaps out of all connection with their military duties."

*

Finally, Marshall's dictum is based on an implied waiver of the territorial sovereign's jurisdiction. The International Court of Justice in the Lotus case declared, "Restrictions upon the independence of states cannot* * be presumed.5 Clearly, they cannot be presumed in the face of specific denial. The fact is that the NATO countries were and are unwilling to accept a waiver of sovereign rights, except as expressed in the NATO Status of Forces Agreement.

Other cases sometimes cited in support of the contention for absolute immunity of armed forces are Coleman v. Tennessee (97 U. S. 509), Dow v. Johnson (100 U. S. 158),

4 The S. S. Lotus, Court of International Justice. II Hudson, World Court Reports (1935), 20, 33, 35.

The S. S. Lotus, supra.

and Tucker v. Alexandroff (183 U. S. 425). The first two cases involved the rights of military authorities in occupation of enemy territory during belligerency, and therefore have no relevance to the question under consideration here. Tucker v. Alexandroff dealt with the question whether a member of a visiting force in the United States of America could be arrested by the local authorities not for an offense under the local law but in response to a request for his arrest from the authorities of his own government. This case likewise is irrelevant on the facts. the facts. Moreover, it involved the interpretation of a treaty between the countries concerned and not general principles of international law.

AUTHORITIES DENYING EXISTENCE OF EXEMPTION

It is impossible in a memorandum of this length to consider all of the cases in foreign courts and all of the authorities. However, reference will be made to a few.

Triandafilou c. Ministere Public (the Mixed Court of Cassation of Egypt), cited in Barton, British Yearbook of International Law, 1950, p. 225, involved an accused member of the crew of a Greek warship anchored in Egyptian waters with the consent of the Egyptian Government. The accused contended that as a member of a friendly foreign force in Egypt he was, under international law, immune from the jurisdiction of the Egyptian courts. The court said in that case that there did "not exist in fact any usage of international law which legally (limited) the sovereignty of the country where the ship (was) found."

In another case in the same court, Malero Manuel c. Ministere Public (idem, p. 226), the court, after a comprehensive review of the authorities, said: "To sum up, it is clear *** that *** there exists no generally recognized rule of international law which extends the principle of immunity from jurisdiction, in the case of a sojourn of foreign troops by consent, in respect of offenses against ordinary law."

In a recent exhaustive examination of the whole subject, a British writer concluded:

"That there exists a rule of international law according to which members of visiting forces are, in principle, subject to the exercise of criminal jurisdiction by the local courts, and that any exceptions to that general and far-reaching principle must be traced to express privilege or concession." (idem, p. 234.)

GENERAL COMMENT

It must be borne in mind that this treaty covers the conditions under which large bodies of foreign troops are stationed in friendly nations in peacetime for a long period of time. It presents a radically different situation than that existing in time of war during a period of active belligerency.

The NATO nations as sovereign nations claim their right to determine when foreign troops shall enter their territories and the conditions under which they shall remain. The United States naturally takes the same position.

The argument that foreign troops should have certain rights and immunities on friendly territories can therefore rise no higher than an appeal to the friendly nation to agree upon what rights and immunities will be accorded such troops, for the friendly nation, being in a position to refuse the entry of such troops or their continued residence, must be brought to agree on the conditions under which they shall be received and entertained.

CONCLUSION

The contentions of those advocating the immunity are supported neither by the authorities nor by practice. Faced with the necessity of making practical arrangements for our Armed Forces in foreign countries which do not recognize any immunity of such forces from their jurisdiction, the NATO Status of Forces Agreement was concluded

and is regarded by all of those agencies concerned as a satisfactory solution of the problem.

The treaty gives United States troops rights and immunities they would not have in the absence of a treaty, and the United States in turn is not yielding to foreign troops on United States territory rights or immunities incompatible with our interests or sovereignty.

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

:

Mr. WILEY. I yield.

Mr. LONG. Can the Senator point out to us what rights we are acquiring in any of the nations that we do not have today? It is difficult for me to see that, under the agreement the Senator is asking us to ratify, we are gaining any more rights than we now have.

Mr. WILEY. That question was covered substantially this afternoon, but I shall place a more detailed reply in the RECORD. I have here a letter which was addressed to me by Walter Bedell Smith which enumerates quite definitely answers to the question which the Senator from Louisiana has asked. The letter is as follows:

MAY 5, 1953.

The Honorable ALEXANDER WILEY,

Chairman, Senate Foreign Relations
Committee.

MY DEAR SENATOR WILEY: My attention has been drawn to the reservation intended to be proposed by Senator BRICKER to the agreement between the parties to the North Atlantic Treaty regarding the status of their forces, signed at London on June 19, 1951, Executive T, 82d Congress, second session, which reads as follows:

"The Senate advises and consents to the ratification of Executive T, 82d Congress, 2d session, regarding status of forces of parties to the North Atlantic Treaty, signed at London on June 19, 1951, subject to the reservation, which is hereby made a part and condition of the resolution of ratification, that the military authorities of the United States as a sending state shall have exclusive jurisdiction over the members of its forces or civilian component and their dependents with respect to all offenses committed within the territory of the receiving state, and the United States as a receiving state shall, at the request of a sending state, waive any jurisdiction which it might possess over the members of a force or civilian component of a sending state and their dependents with respect to all offenses committed within the territory of the United States."

It is the opinion of the Departments of State and Defense, that it is neither necessary nor desirable for the United States to seek or have exclusive jurisdiction by treaty over its forces, civilian components, or their dependents in the NATO countries, nor to grant exclusive jurisdiction over similar foreign persons with respect to offenses committed within the territory of the United States.

It is the further view of these Departments that it would not be possible to negotiate a treaty with such provisions, for the other parties have indicated their refusal to surrender any such jurisdiction as the resolution calls for.

It seems even more clear that the United States should not grant to foreign troops and their civilian components, complete immunity from our criminal jurisdiction.

The record of the hearings before the committee makes it clear that this treaty provides the basis for satisfactory operations abroad. The statements of General Bradley, the Chairman of the Joint Chiefs of Staff, and of General Ridgway, establish this point from the military point of view. At page

34 of the record, General Bradley's statement contains the following:

"It is only fair in concluding my comments upon this treaty to add that it does not contain every single right and exemption desired by the armed services from the point of view of a sending state. This, of course, is because it is a multilateral treaty, and also because it is designed to balance the rights of each state, both as a sending state and a receiving state. The rights and exemptions which are contained in the treaty, however, provide the basis for satisfactory operations and are essential for such operations. I am confident that with good relations between our military authorities and local authorities abroad, the problems covered by this treaty will be solved to the mutual advantage of all concerned."

At page 36 of the hearings, the following statement of General Ridgway appears:

"The status of forces agreement does not fully satisfy all that the United States or any other country might desire. It does, however, represent the best common denominator of conflicting national requirements which could be agreed upon by the NATO nations. Particularly, considering that it is a reconciliation on a multilateral basis of diverse national views, its terms appear appropriate and acceptable. It is in that respect a noteworthy achievement and evidence of the NATO cooperative effort. From the point of view of my responsibility as the United States commander of United States Forces in the area, I support its ratification. Without ratification, that spirit of mutual trust and confidence, so vital to NATO's success, would sustain a very damaging blow."

Further, on page 11 of the hearings, the Secretary of Defense is quoted as stating: "Operationally, these agreements are sound. They are workable and practical. They do not contain the absolute solution for every problem which will arise, but they provide the essential framework in which these problems can be solved. They are another step forward in our program to protect the security of our country, a step which the President has called important and unprecedented. I urge that the agreements be approved."

It would therefore appear clearly to be established that exclusive jurisdiction of our forces, civilian components, or dependents abroad, is not necessary from the military point of view. I wish to add my personal endorsement, based upon my own military experience, to that conclusion.

Let us now turn to the question as to whether exclusive jurisdiction of this group of persons is desirable from the point of view of the United States.

First of all let us narrow and clarify the issue. Under the proposed treaty, the United States would have primary jurisdiction over offenses committed by any member of its forces or of a civilian component arising out of any act or omission of performance of official duty. In other words insofar as the presence of an American overseas is dependent upon the fact that he is serving with the Armed Forces, and insofar as the offense with which he is charged is connected with that service, it is quite clear that the United States has primary jurisdiction. This is covered in paragraph 3 (a) (ii) of article VII of the agreement.

It is only with respect to offenses not connected with duty that take American citizens overseas that the United States would not have exclusive jurisdiction over offenses punishable by its law.

The question then really comes to this: Is it desirable to seek to have exclusive United States jurisdiction over these American personnel for crimes which they commit abroad which are not connected with the duty which takes them there? I can see no reason why the United States should feel that such a condition should attach to these persons any more than to other American

citizens present overseas on their own or official business. The standard of conduct and of jurisdiction should be identical.

I testified at length from long and intimate personal experience that complete extraterritoriality in the field of criminal jurisdiction is not an unmixed blessing. My testimony on this subject appears on pages 23, 46, and 65 of the hearings. The essence of that testimony is that from experiences in the last war, when we did have exclusive criminal jurisdiction, we were the subject of extremely bitter criticism abroad because of the harshness of certain of our courtsmartial sentences, when local law-in that case British law-did not impose punishments of equal severity. This exemplifies the broad problem of good relations between our forces abroad and the people and governments who receive them. The impact on foreign relations arising from such a situation can be very deep and very serious, striking at the very strength of the NATO alliance.

The report of the Foreign Relations Committee, at pages 11 and 12, expresses this aspect clearly:

"Exclusive criminal jurisdiction, amounting to extraterritoriality, itself creates difficult problems. In the eyes of the local population, it sets Americans apart as a special, privileged class, and this fact acts as a constant irritant. If American courts-martial return verdicts of acquittal, or if they impose sentences which seem lenient to the aggrieved parties, they are open to charges of favoritism. If, on the other hand-as has sometimes happened-they impose sentences substantially greater than those provided by local law for the same crime, they can be accused of flouting local customs and sensibilities. Regardless of how fair and just American courts-martial may be, the existence of exclusive criminal jurisdiction seems

to the other country to be an infringement

of its sovereignty."

Finally, with respect to seeking exclusive jurisdiction of American personnel abroad, I urge that major policy considerations not be lost sight of.

First: The United States Government as a matter of policy does not seek extraterritoriality anywhere in the world. To do so, in this case, when there is neither necessity nor desirability, would give a foundation to critics of our policy, at home and abroad, on the score that we are indirectly seeking imperialistic aggrandizement and attempting to subject other nations to our activities. The fact that the proposal is reciprocal would be lost sight of in view of the predominant number of American personnel abroad in

volved.

Second: The concept of exclusive jurisdiction strikes at the very essence of the North Atlantic Treaty Organization. NATO is a coalition of sovereign powers, freely banded together in a common effort. The reservation would in effect vitiate article II of the agreement and indicate that local sovereignty was to be sacrifieced for military necessity. As I have indicated above, there is no such military necessity. To foreign eyes, whether friendly or not, this could appear an unwarranted attempt to use the stationing of forces abroad in a common defense effort as a means to secure an extension of the authority of the United States in the territory of its sovereign allies. Inasmuch as we are dealing here with countries of common cultural bonds united together in the North Atlantic Community, all of whom have advanced and fully civilized systems of law, it is apparent that the implied affront would strike at the common spirit and morale of the North Atlantic Treaty Organization.

In conclusion, let me turn to the reciprocal aspects of the proposal. Certainly they would not be proposed but as the price for exclusive jurisdiction over American per

sonnel abroad. As it has been demonstrated that this price is not worth paying, the issue

is apparent rather than real. To grant exclusive jurisdiction in the United States would be an unnecessary surrender of the sovereign rights of the 48 States and the Federal Government.

This treaty was arrived at only after long and difficult negotiations. The proposed reservation would require renegotiation of this important aspect of the treaty. I am convinced that that renegotiation would not only be long but would be fruitless. In effect, then, the acceptance of the treaty, recommended without qualification by the executive branch, would be postponed. This would not only delay the defense effort. It would create a continuing source of conflict and dispute between NATO nations. As I stated in my letter to you of April 22, 1953, this would have serious effects upon our relations with our NATO partners.

It is therefore my earnest recommendation that the reservation not be accepted. Sincerely yours,

WALTER B. SMITH, Under Secretary.

I think that is a very inclusive answer to the question.

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

Mr. WILEY. I yield.

Mr. LONG. Based on the letter the Senator has just read, can he see anything more explicit that would be gained by the United States, through ratification of the agreement, than an agreement to extend sympathetic consideration to our request; and that we would be able to negotiate further? Do we not have a right to negotiate further, based on agreements already in existence?

Mr. WILEY. What I have read speaks for itself. Even if we enter into pend

ing agreements, we will have a right to negotiate further. That is a right we always have. We do not exclude ourselves from that right.

Mr. LONG. In the letter just read by the Senator from Wisconsin, great emphasis was placed on the fact that sympathetic consideration would be given to our requests. I thought we could expect that much consideration anyway.

Mr. WILEY. I heard the distinguished Senator from Michigan [Mr. FERGUSON] make some very important remarks to the effect that this agreement represents a cooperative effort between the United States and the other nations of NATO. I trust the cooperation will continue. I trust it will not be said that my country was the one to do anything dangerous to further cooperation.

Mr. MCCARRAN. Mr. President, will the Senator from Wisconsin yield? Mr. WILEY. I yield.

Mr. MCCARRAN. Does the Senator from Wisconsin now say that cooperation will not continue unless the treaty is ratified? Is that his attitude?

Mr. WILEY. I did not say that. What I said was that I trust the United States will demonstrate that we mean, at least, to continue to cooperate, and that we will not be the first one to stick a dagger into NATO.

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

Mr. WILEY. I yield.

Mr. TOBEY. Was not what the Senator from Wisconsin really intended to say: "I do not want my country to be the one that throws a wrench into the monkey?" monkey?" [Laughter.]

(Mr.

PRESIDING OFFICER The CARLSON in the chair). A quorum is present.

Mr. LONG. Mr. President, I wish to say a very few words about this reservation.

The junior Senator from Louisiana had an opportunity to visit many of these places during the past year. During that time he was privileged to know something about some of the agreements which have been made with foreign nations. It is unfortunate that the Senate does not know more about such agreements. Many of such agreements, as I understand, are not available even to our Foreign Relations Committee. I believe that fact is being brought out in the hearings on the Bricker proposal to give the Congress some right to have a voice in connection with executive agreements.

I was particularly impressed with the fact that there was a failure to protect the rights of this Nation, particularly so far as the expenditure of our funds is concerned in acquiring air-base rights. In many cases we were spending $50 million or $100 million under circumstances in which we did not have the right to stay there even while we were spending the money. Many of us thought that would prejudice the rights of the Nation to spend tens of millions of dollars somewhere where we had no right even to be spending the money.

To recall one instance, we authorized the expenditures of an enormous sum in Saudi Arabia. We had no right to remain on that base. We found the same situation to exist in many other places. There was no adequate protection of our base rights; yet we were spending many millions of dollars. This was all part of a picture. We were asked to rush American men and money all over the world to confront the Communist menace. The reason we could not protect our rights was that this Nation was so anxious to get men into those places that

we had not bargained for the protection of our interest in connection with the base rights.

The investigation of the North African Air Base illustrated that fact. We could not protect ourselves by seeing to it that we got a dollar's worth of production for every dollar we were spending, because our services and our State Department were so anxious to rush construction of the bases that precautions were not taken to get good agreements.

For example, in many cases we could not insist that the low bidder for a contract would get the work, because we had been so anxious to go in that we had to let the nation controlling the property have its way, and more or less name the terms under which we went in.

In England we found this situation: We were rushing ahead to construct air bases when we had no arrangement for the sharing of costs. The first bases we had undertaken to construct were bases with respect to which the English would put up 40 percent of the money, and we would put up 60 percent. However, this Nation was so anxious to have additional bases constructed that, with the mere understanding that there was to be some arrangement about sharing costs, we proceeded to rush in and pay the entire expense, hoping that Britain, in good faith, would be willing to put up a small amount of money later. I believe there has been a failure to protect the rights of this Nation so far as our money was concerned.

I believe the same thing will be found to be true so far as the rights of our men are concerned. I believe it will be found that in many instances our troops have been rushed to various nations and places where we were anxious to station troops, without having made arrangements to assure that we could protect the rights of our men in those nations. So perhaps there is something of a chaotic situation which should be straight ened out. But if it is to be corrected, it seems to me that it should be corrected in terms of protecting the rights of our men, as the Senator from Ohio [Mr. BRICKER] has suggested, in pursuance of the traditional international arrangement under which our men go overseas, which includes the right of the Nation to protect its own soldiers. That is the principle which I believe should prevail.

This agreement has a few little facesaving provisions. There is a provision that when an American soldier comes into conflict with a foreign national, he is to have the right to an attorney and to have an interpreter. Nevertheless, the fact remains that he is to be tried in a foreign court, under foreign law. In most places the fact is that there is a strong prejudice against the presence of American troops.

The prejudice is much greater in many other places, including France, and it may be still worse in other places. Here we are being asked to surrender to foreign powers the right to see that our men are tried under our own laws and by our own courts.

Anyone knows that in all communities where prejudice runs high against our men some of those young men have

told of civilians spitting on them on streets when they were under orders from their commanding officers that under no circumstances were they to fight. In those areas we know that when those men come into conflict with foreign nationals and they are tried before a foreign judge and a foreign jury, in a foreign court, our men stand very little chance. We might as well face that fact.

This agreement is called a Status-ofForces Treaty, providing for protection of the rights of troops when they are on foreign soil. As a matter of fact, in the case of the other nations, their troops are not on foreign soil. They are on their own soil. When Englishmen operate in France they do not build great housing establishments to house their airmen, as we do. airmen, as we do. They fly to France, conduct an exercise on a French airstrip, and fly back, in many instances the same day, to Britain, where they came from. It is the American boys who live on foreign soil.

Likewise, when French forces maneuver, it is either on their own soil or on soil that they occupy in Germany. In those areas I suppose their laws would still be supreme. They supreme. They operate in French Morocco and other areas under French sovereignty. They would have very little cause to worry about the status of their forces when they are in foreign nations, because, as a practical matter, they are not there for any length of time. Only once in a long time are their forces on foreign soil.

We have before us a treaty negotiated by 14 nations; but there is only 1 of those nations; namely, the United States, which has any substantial interest in protecting the right of its troops when they come into conflict with the rights of civilians or nationals of other countries. It seems to me that we should insist that the rights of our men be protected; and if we are negotiating with 13 other nations we should realize that of the entire number we are the only nation which has an interest in placing the rights of its troops who are stationed on foreign soil above the rights of foreign civilians.

I submit that any negotiator working to protect the rights of his people in negotiating with foreign nations could not bring in a more miserable failure than we have before us, so far as assurance of protection of the rights of Americans is concerned.

We are told-and I believe the Senator from Ohio [Mr. BRICKER] has information to prove this point-that the record establishes that we have made a commitment, and that when this agreement is ratified we shall lose the friendship of every other nation unless we apply the same concept in other areas. The Senator from Ohio pointed out to me that in the hearings it was so testified by those representing the administration. There will be discrimination against other nations in the event that we do not apply the same rule to them. It has already been agreed that when this agreement is ratified the same principle will be applied to Americans in Japan. That commitment has already been made, if I understand correctly.