459 F. 2d 1211 - Holmes v. Laird

This appeal presents for resolution an issue of potential concern to American servicemen stationed within the territories of our allies under the North Atlantic Treaty,1 and similarly to the many others assigned to military outposts in other parts of the world. The question is whether a court of the United States is empowered to entertain a claim of illegality in the conviction of two American soldiers in the Federal Republic of Germany with a view to enjoining their surrender for service of their sentences.2 We have carefully examined the problem in the light shed by the relevant precedents, which most numerously are controlling upon us. We conclude that the question must be answered in the negative.

* At the center of the controversy are reciprocal criminal-jurisdiction provisions subscribed to by the nations comprising the North Atlantic Treaty Organization. They are embodied in the NATO Status of Forces Agreement (NATO SOFA)3 and, with but minor variations, they extend to the Federal Republic of Germany by virtue of a subsequent multilateral agreement.4 They are designed to avoid jurisdictional clashes when military personnel5 of one country-the "sending State"6-are assigned to peacetime duty7 within the borders of another-the "receiving State."8 Jurisdiction may be either exclusive or concurrent,9 and is concurrent when the misconduct charged amounts to a crime under the law of each.10 NATO SOFA specifies that

In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:

(a) The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to

(i) offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent;

(ii) offences arising out of any act or omission done in the performance of official duty.

(b) In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction.11

These specifications are accompanied by others relating to waiver of jurisdiction12 and provisional custody of the accused by the sending nation.13 And, importantly for appellants' case, NATO SOFA surrounds prosecutions by receiving nations with fair-trial safeguards approximating some but not all of those constitutionally mandated for criminal proceedings in the United States Courts:

Whenever a member of a force or civilian component or a dependent is prosecuted under the jurisdiction of a receiving State he shall be entitled-

(a) to a prompt and speedy trial;

(b) to be informed, in advance of trial, of the specific charge or charges made against him;

(c) to be confronted with the witnesses against him;

(d) to have compulsory process for obtaining witnesses in his favour, if they are within the jurisdiction of the receiving State;

(e) to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving State;

(f) if he considers it necessary, to have the services of a competent interpreter; and

(g) to communicate with a representative of the Government of the sending State and, when the rules of the court permit, to have such a representative present at his trial.14

West Germany, as an occupied country in 1951, was not an original party to NATO SOFA, but became one in 1958. The Supplementary Agreement bringing that about,15 together with the Signature of Protocol thereto, wrought some changes respecting waiver and custody16 but none significantly affecting this litigation. NATO SOFA's fair-trial guarantees17 were left standing without any change whatsoever.

Appellants are American citizens serving in the United States Army. In July, 1970, while stationed with the Eighth Infantry Division in West Germany, they were arrested on charges of attempted rape and related offenses. Appellants tell us that the matter was investigated by their military superiors, who decided that the evidence did not warrant prosecution. The Federal Republic of Germany recalled a waiver of its jurisdiction,18 however, and appellants were later indicted. In harmony with the Supplementary Agreement,19 they were remitted to American military custody while the case proceeded in the West German courts.

Trial in the District Court (Landgericht) in Bad Kreuznach culminated in convictions and sentences to imprisonment for three years. A subsequent appeal to the Federal Supreme Court (Bundesgerichtshof) was denied, where-upon their convictions became final under German law. It then became the Army's responsibility under the provisions of the Supplementary Agreement to turn appellants over to the Federal Republic.20

Shortly prior to pronouncement of the appellate decision, appellants left West Germany without authorization and returned to the United States. Thereafter they surrendered to Army officials, in whose custody they now are, and then initiated the present litigation in the District Court. In their complaint, as amended, they claimed deprivations of rights secured to them by NATO SOFA,21 by principles of international law, and by the Constitution of the United States. They were materially prejudiced because they were not afforded a speedy trial, they allege, because they were charged in July, 1970, but were not tried until the following December. They were not furnished counsel of their choice, they say, because their request for an American civilian attorney was denied. Representation by their German counsel was ineffective, they aver, because the language barrier and incomplete relay by their court-appointed interpreter impeded communication. They were not permitted confrontation, they declare, by their accuser because they were excluded while the prosecutrix testified, or by another witness whose hearsay was admitted into evidence. And they lacked a full and accurate transcript and resultantly a fair appeal, they state, because a verbatim trial record was not provided.22 Their prayer, in substance, was for an injunction restraining the American military from surrendering them to the Federal Republic and for a judgment declaratory of the invalidity of such surrender.23

The District Court, after a hearing at which it rejected appellants' proffer of evidence to support their factual theories, denied their application for a preliminary injunction, and granted appellees' motion to dismiss for failure of the complaint to state a justiciable cause of action. The most significant feature of the court's holding was that even if appellants' allegations were proven, it was beyond the power of the judiciary to order corrective action. This appeal followed.

Surely, in situations such as this, "[t]he controlling considerations are the interacting interests of the United States and of foreign countries, and in assessing them we must move with the circumspection appropriate when [a court] is adjudicating issues inevitably entangled in the conduct of our international relations."24 And undeniably, matters "vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference."25 It is not surprising, then, that many questions arising in connection with our treaties with other governments have been held to be nonjusticiable.26 For "[n]ot only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views."27

That is not to say that every dispute touching our foreign relations falls outside the province of the judiciary.28 As the Supreme Court has characterized its decisions, they "seem invariably to show a discriminating analysis of the particular question posed, in terms of history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action."29 Even in controversies affected in some degree by a treaty with a foreign country-areas very likely off-limits for the judiciary30-the courts may in a particular context have a legitimate and useful function to perform.31 In our view, however, this court has no such role in this case.32

Our starting point is a basic fact and an elementary proposition. All essential elements of the crimes in question were committed within the territory of the Federal Republic of Germany. From that it follows that, save only as modified by some other agreed-to alignment, West Germany's power to try and convict for those offenses was complete.33 "A sovereign nation," the Supreme Court declares, "has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction."34 "The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute; it is susceptible of no limitation, not imposed by itself."35 And "[a]ll exceptions . . . to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source."36

Thus, had appellants been present in West Germany as militarily-unattached civilians, an exercise of West German criminal jurisdiction over them would indubitably have been appropriate. It seems equally clear that, absent some countervailing international agreement, such an exertion remained unaffected by their status as American soldiers stationed there. We are advertent to the observation in Schooner Exchange v. McFaddon37 that "[t]he grant of a free passage . . . implies a waiver of all jurisdiction over the troops, during their passage,"38 but read it in context as a proposition based on real, though not expressly-conferred, consent of thehost nation emanating from the obvious necessities of the situation.39 We are also advertent to similar expressions in cases involving troops occupying hostile or conquered territory,40 where obviously there can be "no question of implying waivers of jurisdiction from consent to the presence of the forces."41 We think it now fully established that the plenary criminal authority of a friendly host nation during peacetime is undiminished by the bare fact that the accused is a member of a military force stationed there.42 Certainly there is no immunity from local prosecution contrary to the explicit terms of an agreement-like NATO SOFA-purporting to define jurisdictional areas for host and visiting countries alike.43

In this light we examine appellants' objections, addressing first the contention that their surrender to the Federal Republic of Germany would infringe rights secured to them by the Constitution. That, as we understand their thesis, not because the Constitution operates extraterritorially to surround American citizens tried for crime by foreign governments,44 but because it does extend to those who on behalf of the United States would effect the surrender. The argument, in essence, is that the turnover of an American citizen for service of a sentence imposed in culmination of an unfair foreign trial45 is a governmental involvement which the Constitution does not tolerate. On the premise that their West German trial was unfair in the respects charged in this case,46 appellants lay claim to judicial process to shield the asserted constitutional violation.47

To be sure, "no agreement with a foreign nation can confer power on . . . any . . . branch of Government, which is free from the restraint of the Constitution."48 And no more than the supremacy of the Constitution over treaties like NATO SOFA49 can its supremacy over executive augmentations like the Supplementary Agreement with the Federal Republic be doubted.50 Nor can it be doubted that our Nation's performance as well as its making of international compacts must observe constitutional mandates.51 The fatal difficulty in appellants' position, however, is that these considerations are beside the point.

Here we deal, not with an American prosecution in an American tribunal at home or abroad,52 but with a West German trial in a West German court-a trial for offenses under West German law allegedly committed in West Germany against a West German citizen. Obviously, the constitutional provisions appellants invoke exerted no force of their own upon the Federal Republic in that exercise of its sovereignty.53 And while, of course, American officials having custody of appellants are fully subject to constitutional commands, it must be remembered that the contemplated surrender is the precise response required of the United States by its treaty commitments to the Federal Republic. The Constitution plays no part in this case unless somehow it operates to negate those commitments in the circumstances appellants allege.

It is evident that if appellants' point were to be entertained, an in-depth examination of the West German trial record would become an indispensable forerunner of any endeavor to resolve their claims on the merits. We need not pause to reflect on the difficulties-practical or otherwise-of such an undertaking, for appellants' contention that the Constitution has the effect asserted is doomed, we think, by the Supreme Court's holding in Neely v. Henkel,54 An American citizen there contended that a federal statute authorizing extradition compliably with an applicable treaty to a foreign country or territory occupied by or under the control of the United States was "unconstitutional and void in that it does not secure to the accused, when surrendered to a foreign country for trial in its tribunals, all of the rights, privileges, and immunities that are guaranteed by the Constitution to persons charged with the commission in this country of crime against the United States."55 Reference, in support of this position, was made not only to particular provisions of the Constitution but also "generally to the fundamental guaranties of life, liberty, and property embodied in that instrument."56 The Court found the argument wanting:

The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country.

In connection with the above proposition, we are reminded of the fact that the appellant is a citizen of the United States. But such citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States.57

As we view Neely, it governs the decision on the point under discussion. What we learn from Neely is that a surrender of an American citizen required by treaty for purposes of a foreign criminal proceeding is unimpaired by an absence in the foreign judicial system of safeguards in all respects equivalent to those constitutionally enjoined upon American trials. We do not believe that that teaching as been eroded by time,58 nor that the slight factual differences between the pretrial extradition there and the postconviction surrender here removes the instant situation from Neely's ambit. We conclude, then, that the Constitution erects no barrier to appellants' surrender to the Federal Republic in conformity with NATO SOFA and the Supplementary Agreement.

Remaining for consideration is appellants' contention that any obligation imposed upon the United States by NATO SOFA and the Supplementary Agreement to surrender them to the Federal Republic of Germany was negated by events allegedly transpiring at their West German trial.59 Assuming the position that those events violated the Federal Republic's agreement to afford American servicemen specific rights in criminal prosecutions,60 the argument is that the breach exonerated the United States from compliance with any covenants of its own. We advert once again, without consideration, to the formidable problem encountered when an American court is asked to review the proceedings at a foreign trial for the purpose of ascertaining whether it has discharged its responsibilities. Beyond that, we deem it established that even if appellants' underlying premise were correct, we lack power to make the decision they solicit.

The contention appellants make is not new; on the contrary, it has ofttimes been advanced, and it has uniformly been rejected. Not only has it consistently been held that the courts cannot command the United States to take action assertedly necessary to performance of a treaty,61 but attempts to secure judicial adjudications that nonperformance by the other party to the treaty relieved the United States from its own obligations have met the same fate.62

Quite early in the Nation's history the Supreme Court, in Schooner Exchange v. McFadden,63 when denying jurisdiction over an American citizen's in rem claim to a French warship, placed weight on "the consideration [] that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth, are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion. . . ."64 Later, in United States v. Lee,65 the Court, referring to litigation attempting subjection of property of foreign countries found within domestic territory, declared that "it has been uniformly held that these were questions, the decisions of which . . . must be primarily dealt with by those departments of the government which had the power to adjust them by negotiation,"66 and that "[i]n such cases the judicial department of this government follows the action of the political branch. . . ."67 Still later, in Underhill v. Hernandez,68 the Court, in holding that the Judicial Branch cannot entertain damage claims by American citizens against officials of a recognized foreign power, admonished that "the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory,"69 and that "[r]edress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves."70 And in 1943, in Ex parte Peru,71 where a steamship solely owned by a foreign state was libeled for alleged breach of a charter party, the Court, entertaining a mandamus proceeding having in view the release of the ship, reiterated "the court's duty to surrender the vessel and remit the libelant to the relief obtainable through diplomatic negotiations,"72 and declared "that our national interest will be better served in such cases if the wrongs to suitors, involving our relations with a friendly foreign power, are righted through diplomatic negotiations rather than by the compulsions of judicial proceedings."73

That the doctrine espoused in these cases controls the one at bar can hardly be gainsaid.74 Indeed, it has seen specific application in a situation closely approximating that now before us. In Charlton v. Kelly,75 an American citizen fought extradition from the United States to Italy pursuant to a treaty in terms requiring each government to deliver up persons within its borders, including its own citizens, when charged as fugitives from prosecution under specified laws of the other. Claim was made that the extradition treaty was not binding on the United States because Italy had refused to honor it whenever surrender of an Italian citizen was demanded. Notwithstanding a firm showing that such was the fact,76 the Supreme Court held that the objection to extradition could not prevail:

If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which, in its judgment, had occurred, and conform to its own obligation as if there had been no such breach. . . .

The Executive Department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land, and as affording authority for the warrant of extradition.77

We are mindful of the consideration that while a treaty is primarily a political compact between sovereigns,78 it "may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the country."79 We also recognize that in the domestic realm courts are not only equipped to enforce self-executing treaties affecting individual rights, but by virtue of the Supremacy Clause80 are required to do so.81 We see no room, however, for operation of these principles when the corrective machinery specified in the treaty itself is nonjudicial. That appears the clearer from Johnson v. Eisentrager,82 which held that federal courts lacked habeas corpus jurisdiction to inquire into war-crimes trials by an American military commission in China of nonresident enemy aliens captured there. The Court stated that the prisoners were entitled to the protection of the Geneva Convention83 but pointed out that "the obvious scheme of the Agreement [is] that responsibility for observance and enforcement of these rights is upon political and military authorities,"84 and that "[r]ights of alien enemies are vindicated under it only through protests and intervention of protection powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention."85

The same result is plainly dictated here, where appellants trace the rights they claim to the provisions of an international agreement the enforcement mechanism of which is diplomatic recourse only. NATO SOFA, which makes provision of the rights claimed, is explicit that "[a]ll differences between the Contracting Parties relating to the interpretation or application of this Agreement shall be settled by negotiation without recourse to any outside jurisdiction."86 Therein lies also the answer to appellants' contention that judicial redress of their grievances is called for by the international standard of justice, for "[t]here is no power in this Court to declare null and void a . . . declaration included in a treaty merely on the ground that such provision violates a principle of international law."87 In sum, intervention by an American court into the matters of which appellants complain is foreclosed by the very terms of the document from which the rights insisted upon are said to spring.88VI

We think the doctrinal considerations discussed herein apply full force to the case at bar. We think, too, that they rebut appellants' argument in each of its facets. And it goes without saying that the relevant law enunciated by the Supreme Court-as in overwhelming measure it is here-is controlling on this court. We caution, however, that we do not say that appellants' claims of trial unfairness are unworthy of executive scrutiny; on that score, we make no adjudication one way or the other. What we decide, and all we decide, is that those claims cannot be vindicated by the process appellants have solicited.

To Americans, steeped in a long and unique tradition of criminal-trial fairness, the prospect of a foreign prosecution under less protective standards is disturbing.89 That is the more so where the accused did not tread on foreign soil by choice, but rather in consequence of military assignment in the service of his country.90 Perhaps the zenith of discomfort is reached when, as here, serious deprivations of fair-trial entitlements under an applicable treaty are judicially asserted,91 and governmental litigants in position to know do not specifically deny the charges, whether technically required to do so or not.92

We are not the first to express concern. Nearly two decades ago, when ratification of NATO SOFA was pondered in the Senate, apprehensions over the subjection of American servicemen to criminal procedures variant from our own were strongly voiced.93 Indeed, an unsuccessful effort to condition ratification upon extraterritoriality for American troops abroad drew the support of a full third of the members voting.94 What seemingly carried the day for unconditional ratification95 was a feeling, not that the fears expressed were completely unfounded, but that on balance NATO SOFA was a decided improvement over existing international arrangements and any others that could realistically be envisioned.96

More significantly, ratification of NATO SOFA was forthcoming only with a resolution expressing reservations- "the sense of the Senate"97-in the form of procedures to accompany foreign criminal trials of American servicemen.98 Prior to trial, the laws of the prosecuting nations are to be examined by the commanding officer of the armed forces "with particular reference to the procedural safeguards contained in the Constitution of the United States."99 If the commanding officer is of the view that "there is danger that the accused will not be protected because of the absence or denial of constitutional rights he would enjoy in the United States," he must request a waiver of foreign jurisdiction and, if refused, must "request the Department of State to press such request through diplomatic channels."100 As a further step, an American representative is to observe the trial and report any noncompliance with NATO SOFA's fairtrial guaranties101 to the commanding officer, who in turn must then "request the Department of State to take appropriate action to protect the rights of the accused."102 To these supplications are added similar specifications in regulations of the Department of Defense promulgated in pursuance of its "policy . . . to protect, to the maximum extent possible, the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons."103

This litigation, however, as cast in the District Court, made no call for an investigation of claims that American authorities were remiss in the discharge of any such obligations owing to appellants. The case was not pitched on alleged deficiencies of that character, nor was relief demanded on that account. Instead, appellants' complaint, as amended, was directed almost exclusively toward the asserted shortcomings in their West German trial,104 and the declaration and the injunctions they sought would have had the effect only of thwarting their surrender to the Federal Republic.105 And while appellants' contentions have broadened considerably on appeal, a judicial barring of the surrender remains their single objective. That, as we have said, is an area in which we cannot intrude.

Our duty is to decide the controversy as presented. Accordingly, we do not reach the question whether the Senate reservations106 or the Defense Department's implementing regulations might have supported another approach.107 Nor do we pass upon appellants' contention that their sentences unjustly deprive them of their liberty, but simply note that such a claim has long been addressable to the President.108 Our holding is that in the circumstances here the contemplated surrender of appellants to the Federal Republic of Germany is a matter beyond the purview of this court.

Affirmed.