Holmes v. Laird

• Decision Date: 24 March 1972
• Docket Number: No. 71-1518.,71-1518.
• Citation: 459 F.2d 1211
• Parties: Nathaniel HOLMES et al., Appellants, v. Melvin LAIRD, as Secretary of the United States Department of Defense, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

459 F.2d 1211 (1972)

Nathaniel HOLMES et al., Appellants, v. Melvin LAIRD, as Secretary of the United States Department of Defense, et al.

No. 71-1518.

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 1971.

Decided March 24, 1972.

Messrs. Nathaniel R. Jones, New York City, of the bar of the Supreme Court of Ohio, and James I. Meyerson, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. J. Francis Pohlhaus, Washington, D. C., was on the brief, for appellants.

Mr. Robert E. Kopp, Atty., Dept. of Justice, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen., Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and Walter H. Fleischer, Atty., Dept. of Justice, were on the brief, for appellees.

Mr. Frank D. Reeves, Washington, D. C., was on the brief for the National Conference of Black Lawyers, as amicus curiae.

Before ROBINSON and MacKINNON, Circuit Judges, and GOURLEY,^* Senior District Judge for the Western District of Pennsylvania.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

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.

I

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.

II

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, whereupon 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.

III

Surely, in situations such as this, "the 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 "not 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...