* Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

1 Apr. 4, 1949, 63 Stat. 2241 (1949), T.I.A.S. No. 1964 (effective Aug. 24, 1949).

2 Appellants also present two related contentions. We treat them in note 59, infra.

3 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, [1953 pt. 2] 4 U.S.T. 1792, T.I.A.S. No. 2846 (effective Aug. 23, 1953), hereinafter cited “NATO SOFA”.

4 See text infra at notes 15–17.

5 Civilian components accompanying forces as well as military personnel are included, as are dependents of members of forces or civilian components. See text infra at note 11.

6 The “sending State” is “the Contracting Party to which the force belongs,” and the “receiving State” is “the Contracting Party in the territory of which the force or civilian component is located, whether it be stationed there or passing in transit.” NATO SOFA, supra note 3, art. I, para. 1 (d) - (e).

7 NATO SOFA, supra note 3, art. XV.

8 See note 6, supra.

9 See NATO SOFA, supra note 3, art. VII.

10 NATO SOFA, supra note 3, art. VII, para. 1.

11 NATO SOFA, supra note 3, art. VII, para. 3.

12 NATO SOFA, supra note 3, art. VII, para 3(c).

13 NATO SOFA, supra note 3, art. VII, para. 5(c).

14 NATO SOFA, supra note 3, art. VII, para. 9. See also art. VII, para. 8 (double jeopardy).

15 Status of Forces in the Federal Republic of Germany, Aug. 3, 1959, [1963 pt. 1] 14 U.S.T. 531, T.I.A.S. No. 5351 (effective July 1, 1963), hereinafter cited “Supplementary Agreement.”

In 1955, West Germany’s status as occupied territory was dissolved and membership in NATO was conferred upon the Federal Republic. Article 1 of the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, Oct. 23, 1954, [1955 pt. 4] 6 U.S.T. 4117, T.I.A.S. No. 3425 (effective May 5, 1955), incorporated, with amendments, the status-of-forces provisions of the Convention on the Rights and Obligations of Foreign Forces and Their Members in the Federal Republic of Germany, May 26, 1952, [1955 pt 4] 6 U.S.T. 4278, T.I.A.S. No. 3425 (effective May 5, 1955), thus enabling the United States to continue temporarily the exercise of criminal jurisdiction over its servicemen. Article 1 of the Protocol also incorporated the Convention on Relations Between the Three Powers and the Federal Republic of Germany, May 26, 1952, [1955 pt. 4] 6 U.S.T. 4278, T.I.A.S. No. 3425 (effective May 5, 1955), and in Schedule 1 amended, inter alia, its Article 8 to provide that the temporary status-of-forces arrangement would endure only “until the entry into force of new arrangements setting forth the rights and obligations of the forces” in West Germany and that “[t]he new arrangements will be based on” NATO SOFA, “supplemented by such provisions as are necessary in view of the special conditions existing in regard to the forces stationed in the Federal Republic.” The Senate ratified the Protocol, 101 Cong. Rec. 4232–33 (1955), and so the two incorporated conventions as amended, thus authorizing negotiation by the Executive Branch and its concurrence in the Supplementary Agreement with the Federal Republic which came later. Compare Wilson v. Girard, 354 U.S. 524, 527–29 (1957).

16 See Supplementary Agreement, supra note 15, arts. 19, 22.

17 See text supra at note 14.

18 Pursuant to Supplementary Agreement, supra note 15, art. XIX, para. 3.

19 Supplementary Agreement, supra note 15, art. XXII, para. 3.

20 Supplementary Agreement, supra note 15, art. XXII, para. 3.

21 See text supra at note 14.

22 Appellants charge additionally that an identification and rulings on witnesses’ credibility at trial are suspect.

23 The specific prayers of appellants’ amended complaint, aside from a request for a temporary restraining order, were for orders “[preliminarily and permanently enjoining the Defendant parties [and those in privity or concert] from transferring the Plaintiffs back to West Germany and surrendering them to German authorities,” and for a judgment “[d]eclaring the Defendant parties’ acts to transfer the Plaintiffs back to West Germany and to surrender them to German authorities as illegal and unconstitutional, in violation of rights secured to them by the Fifth and Sixth Amendments to the United States Constitution and the NATO Status of Forces Agreement.”

24 Romero v. International Terminal Operating Co., 358 U.S. 354, 383 (1959).

25 Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952).

26 As examples, what nation has sovereignty, de jure or de facto, over particular territory, Jones v. United States, 137 U.S. 202, 212 (1890); Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839); the boundaries of territories ceded by treaty, as determined by executive and legislative construction, United States v. Reynes, 50 U.S. (9 How.) 127, 153–54 (1850); Garcia v. Lee, 37 U.S. (12 Pet.) 511, 516–18, 520–21 (1838) ; Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307–10 (1829); whether the representatives of a contracting power had authority to make a particular treaty provision, Doe ex dem. Clark v. Braden, 57 U.S. (16 How.) 635, 657–58 (1853) ; whether a treaty is inoperative for fraud or duress on a contracting power, United States v. Old Settlers, 148 U.S. 427, 468 (1893) ; whether a contracting power remains able to perform its obligations thereunder, Clark v. Allen, 331 U.S. 503, 514 (1947) ; Terlinden v. Ames, 184 U.S. 270, 282–90 (1902); whether treaty provisions should, in view of changed circumstances, be enforced, Johnson v. Gearlds, 234 U.S. 422, 443–47 (1914). See also Michigan Cent. R.R. v. Slack, 100 U.S. 595, 598–99 (1880). And, for the numerous cases holding that the courts cannot command either contracting power to perform treaty provisions, see notes 61–62, infra.

27 Baker v. Carr, 369 U.S. 186, 211 (1962).

28 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) ; Baker v. Carr, supra note 27, 369 U.S. at 211.

29 Baker v. Carr, supra note 27, 369 U.S. at 211–12.

30 See note 26, supra.

31 See Baker v. Carr, supra note 27, 369 U.S. at 211–14.

32 Surrender of American servicemen for foreign trial pursuant to status-of-forces agreements has received consistent judicial approval. See Wilson v. Girard, supra note 15, 354 U.S. at 530 (with Japan) ; Cozart v. Wilson, 98 U.S. App. D.C. 437, 438, 236 F.2d 732, 733, judgment vacated as moot, 352 U.S. 884 (1956) (with Japan); United States ex rel. Stone v. Robinson, 431 F.2d 548 (3d Cir. 1970) (with Japan) ; Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971) (with the Philippines) ; Smallwood v. Clifford, 286 F.Supp. 97 (D.D.C. 1968), judgment vacated as moot, No. 22,053 (D.C. Cir. May 14, 1969) (with South Korea). See also May v. Wilson, 153 F.Supp. 688, 691 (D.D.C. 1956) (with Japan). We have been referred to no case in which such a surrender has been judicially disapproved.

33 For treatments of the problem of criminal jurisdiction over visiting military forces under international law, see Re, The NATO Status of Forces Agreement and International Law, 50 Nw. U. L. Rev. 349 (1955) ; Schwartz, International Law and the NATO Status of Forces Agreement, 53 Colum. L. Rev. 1091 (1953) ; Note, Criminal Jurisdiction Over American Armed Forces Abroad, 70 Harv. L. Rev. 1043 (1957).

34 Wilson v. Girard, supra note 15, 354 U.S. at 529. See, to the same effect, Reid v. Covert, 354 U.S. 1, 15 n.29, 48–49 (1957).

35 Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 136 (1812).

36 Id.

37 Supra note 35.

38 11 U.S. (7 Cranch) at 140.

39 See Restatement of Foreign Relations Law of the United States §57, Reporter’s Note 2, §58 (1965). As there explained:

Rules prescribing the exercise of jurisdiction over forces are derived from the necessities of the force in accomplishing its mission or purpose. In the case of a force in passage through the territory of another state, the purposes of both the sending and territorial states are to expedite and facilitate a rapid transit in order that the force may proceed on its mission. The rule determining exercise of jurisdiction over forces in passage is designed to prevent delay in the territory of the territorial state.

Id. § 58, comment a.

40 See Dow v. Johnson, 100 U.S. 158, 165 (1880); Coleman v. Tennessee, 97 U.S. 509, 515 (1879).

41 Restatement of Foreign Relations Law of the United States § 57, Reporter’s Note 2 (1965).

42 Wilson v. Girard, supra note 15, 354 U.S. at 529–30; Cozart v. Wilson, supra note 32, 98 U.S. App. D.C. at 438, 236 F.2d at 733. See also other cases cited supra note 32.

43 Wilson v. Girard, supra note 15, 354 U.S. at 529–30; Cozart v. Wilson, supra note 32, 98 U.S.App.D.C. at 438, 236 F.2d at 733.

44 See text supra at notes 33–43.

45 We are unclear as to whether appellants would measure fairness by the Constitution or by the fair-trial standards of NATO SOFA, see text supra at note 14, although we presume the former. This makes no difference since by either standard the transpirations alleged by appellants would have rendered the trial unfair.

46 See text supra following note 21.

47 See also Comment, Due Process Challenge to the Korean Status of Forces Agreement, 57 Geo. L.J. 1097 (1969).

48 Reid v. Covert, supra note 34, 354 U.S. at 16.

49 Id. at 17; United States v. Minnesota, 270 U.S. 181, 207–08 (1926); Geofroy v. Riggs, 133 U.S. 258, 267 (1890); The Cherokee Tobacco (Boutinot v. United States), 78 U.S. (11 Wall.) 616, 621 (1871).

50 Wilson v. Girard, supra note 15, 354 U.S. at 530; Reid v. Covert, supra note 34, 354 U.S. at 17 n.33.

51 Wilson v. Girard, supra note 15, 354 U.S. at 530; Reid v. Covert, supra note 34, 354 U.S. at 16–19.

52 See O’Callahan v. Parker, 395 U.S. 258 (1969) ; McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960) ; Grisham v. Hagan, 361 U.S. 278 (1960) ; Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) ; Reid v. Covert, supra note 34; United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

53 See text supra at notes 33–43.

54 180 U.S. 109 (1901).

55 Id. at 122.

56 Id.

57 Id. at 122–23. We recognize, of course, that the statute involved in Neely made prerequisite an order of a federal judge based on evidence establishing probable cause of guilt, and similarly to NATO SOFA required the demanding state to “secure to such person a fair and impartial trial.” Id. at 112, 123. These circumstances in no wise affected the Court’s holding that substantial counterparts of American constitutional rights need not be available at the foreign trial. The “fair and impartial trial” statutorily guaranteed, the Court explained, was “not necessarily a trial according to the mode prescribed by this country for crimes committed against its laws, but a trial according to the modes established in the country where the crime was committed, provided such trial be had without discrimination against the accused because of his American citizenship.” Id. at 123.

58 In Wilson v. Girard, supra note 15, the Supreme Court, in sustaining the propriety of surrender of an American serviceman to Japan for criminal trial pursuant to an international agreement similar to those involved here, made no reference in its opinion to the procedures prevailing in the Japanese courts although their variance from those obtaining in American courts is well known. Indeed, notwithstanding the serviceman’s specific claim that the absence of due process in the Japanese judicial system would deprive him of a fair trial in the Japanese courts, Brief for Petitioner-Appellee in Nos. 1103 and 1108 at 42–49, the Court found “no constitutional or statutory barrier” to the surrender. 354 U.S. at 530. See also Gallina v. Fraser, 278 F.2d 77, 78–79 (2d Cir. 1960).

59 Appellants also submit two subsidiary arguments. One is that their situation is beyond the scope of the requirement NATO SOFA imposes upon the United States to surrender servicemen to the Federal Republic. The duty to surrender, like the other duties NATO SOFA enjoins, relates to members of a visiting “force” and, with a proviso not relevant here, “force” is denned as “the personnel belonging to the land, sea or air armed forces of one Contracting Party when in the territory of another Contracting Party in the North Atlantic Treaty area in connection with their official duties.” NATO SOFA, art. I, para. 1(a) (emphasis supplied). Appellants say that, as persons no longer in West Germany, they are not members of a “force” to which NATO SOFA applies. The answer is that appellants were in West Germany as members of a “force” at the time of the commission of the offenses with which they were charged. West German jurisdiction then attached, and neither it nor the correlative American obligation to surrender was affected by appellants’ subsequent unauthorized departure for the United States. Compare Williams v. Rogers, supra note 32, 449 F.2d at 520. Cf. Autry v. Wiley, 440 F.2d 779, 803 (1st Cir. 1971).

The other argument is that appellants are surrenderable only pursuant to the terms of an extradition treaty. It is certainly the law that the power of the Executive Branch to invade one’s personal liberty by handing him over to a foreign government for criminal proceedings must be traced to the provisions of an applicable treaty. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 7–9 (1936) ; Factor v. Laubenheimer, 290 U.S. 276, 287 (1933); United States v. Rauscher, 119 U.S. 407, 411–14 (1886). But NATO SOFA— a treaty in every sense of the word—makes just such a stipulation, as does the Supplementary Agreement with the Federal Republic, which derives full efficacy from the provisions of still another treaty. See note 18, supra, and accompanying text. That no further authorization is prerequisite is evident from the cases where, in comparable situations, surrenders have received judicial approbation without any intimation whatever that a problem of unlawful extradition had been courted. See cases cited supra note 32.

60 See text supra at note 14.

61 Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 602 (1889) (statute barring entry of Chinese laborers into United States, which contravened prior treaties with China); Botiller v. Dominguez, 130 U.S. 238, 247 (1889) (obligation to protect property rights of Mexicans); Whitney v. Robertson, 124 U.S. 190, 194–95 (1888) (obligation to equalize duties on imports from San Domingo); Head Money Cases (Edye v. Robertson), 112 U.S. 580, 597–99 (1884) (per capita tax on immigrants, assertedly violative of treaties with friendly countries) ; The Cherokee Tobacco (Boudinot v. United States), supra note 49, 78 U.S. (11 Wall.) at 621 (statute taxing tobacco, conflicting with prior treaty with Cherokee Nation) ; United States v. Ferreira, 54 U.S. (13 How.) 40, 46, 48 (1851) (obligation to compensate Spanish officers and inhabitants for injuries sustained during Florida campaign). See also United States v. Sandoval, 167 U.S. 278, 290, 293–94, 298 (1897).

62 Ex parte Peru, 318 U.S. 578, 588–89 (1943); Underhill v. Hernandez, 168 U.S. 250, 252 (1897) ; United States v. Lee, 106 U.S. 196, 209 (1882); Schooner Exchange v. McFadden, supra note 35, 11 U.S. (7 Cranch) at 146.

63 Supra note 35.

64 11 U.S. (7 Cranch) at 146.

65 Supra note 62.

66 106 U.S. at 209.

67 Id.

68 Supra note 62.

69 168 U.S. at 252.

70 Id.

71 Supra note 62.

72 318 U.S. at 588.

73 Id. at 589.

74 See also Luftig v. McNamara, 126 U.S.App.D.C. 4, 5–6, 373 F.2d 664, 665–66, cert, denied, 387 U.S. 945 (1967).

75 229 U.S. 447 (1913).

76 That was established by an exchange of correspondence between the two nations, set forth in the Court’s opinion.

77 229 U.S. at 470–72.

78 229 U.S. at 473, 476.

79 Rainey v. United States, 232 U.S. 310, 316 (1914); Charlton v. Kelly, supra note 75, 229 U.S. at 474; B. Altman & Co. v. United States, 224 U.S. 583, 600 (1912) ; Fourteen Diamond Rings v. United States, 183 U.S. 176, 182 (1901) ; Whitney v. Robertson, supra note 61, 124 U.S. at 194; Head Money Cases (Edye v. Robertson), supra note 61, 112 U.S. at 598.

79 Head Money Cases (Edye v. Robertson), supra note 61, 112 U.S. at 598. See also Whitney v. Robertson, supra note 61, 124 U.S. at 192–95. A prominent example is a treaty conferring inheritance rights on aliens. See Kolovrat v. Oregon, 366 U.S. 187 (1961) ; Clark v. Allen, supra note 26.

80 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2.

81 Maiorano v. Baltimore & O. R.R., 213 U.S. 268, 272–73 (1909); Whitney v. Robertson, supra note 61, 124 U.S. at 194; United States v. Rauscher, supra note 59, 119 U.S. at 418; Head Money Cases (Edye v. Robertson), supra note 61, 112 U.S. at 598–99; Strother v. Lucas, 37 U.S. (12 Pet.) 410, 438 (1838).

82 339 U.S. 763 (1950).

83 Convention With Other Powers Relating to Prisoners of War, July 27, 1929, 47 Stat. 2021 (1932) (effective Aug. 4, 1932).

84 339 U.S. at 789 n.14.

85 Id.

86 NATO SOFA, supra note 3, art. XVI.

87 Tag v. Rogers, 105 U.S.App.D.C. 387, 389, 267 F.2d 664, 666 (1959).

88 We note also that the “sense of the Senate” reservations upon its ratification of NATO SOFA, infra Part VI, point to diplomatic channels exclusively, and that the Defense Department’s implementing regulations, infra Part VI, follow suit exactly.

89 Compare Gallina v. Fraser, supra note 58, 278 F.2d at 79.

90 See Cox v. Wood, 247 U.S. 3 (1918); Selective Draft Law Cases (Arver v. United States), 245 U.S. 366 (1918). See also Johnson v. Eisentrager, supra note 82, 339 U.S. at 789; Lichter v. United States, 334 U.S. 742, 756 (1948).

91 See text supra at note 21.

92 We are told merely that on review of the report of an American observer at appellants’ trial, the Department of the Army determined that the trial was fair. From this we may assume at least some disagreement with appellants’ account.

93 The debates appear at 99 Cong. Rec. 4659–74, 8724–82, 8835–45 (1953). See also Schwartz, supra note 33, at 1092–93.

94 See 99 Cong. Rec. 8782 (1953).

95 The Senate resolutions did not condition the ratification of NATO SOFA since the reservations were obviously not designed to affect the text or terms of the treaty or the relations of the parties thereunder. See Fourteen Diamond Rings v. United States, supra note 78, 183 U.S. at 180, 182, 183; New York Indians v. United States, 170 U.S. 1, 22–23 (1898). Cf. Power Authority of New York v. FPC, 101 U.S.App.D.C. 132, 247 F.2d 538, vacated as moot sub nom. American Power Ass’n v. Power Authority of New York, 355 U.S. 64 (1957).

96 The views stated by proponents of ratification parallel those advanced in the Report of the Senate Committee on Foreign Relations. Exec. Rept. No. 1, 83d Cong. 1st Sess. (1953).

97 See note 98, infra.

98 The resolution provides:

In giving its advice and consent to ratification, it is the sense of the Senate that:

1.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;

3.If, in the opinion of such commanding officer, under all the circumstances of the case, 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, the commanding officer shall request the authorities of the receiving state to waive jurisdiction in accordance with the provisions of paragraph 3 (c) of article VII (which requires the receiving state to give ‘sympathetic consideration’ to such request), and if such authorities 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.

4.A representative of the United States to be appointed by the Chief of Diplomatic Mission with the advice of the senior United States military representative in the receiving state 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.

99 Cong. Rec. 8780 (1953).

99 See note 98, supra.

100 See note 98, supra.

101 See text supra at note 14.

102 See note 98, supra-

103 Status of Forces Policies, Procedures, and Information, Departments of the Air Force, the Army, and the Navy, AFR 110–12, AR 27–50, SECNAVINST 5820.4c, June 28, 1967.

104 Such was the thrust of the pleadings. No transcript of the oral argument in the District Court appears in the record on appeal.

105 See note 23, supra.

106 See Schwenk, Comparative Study of the Law of Criminal Procedure in NATO Countries Under the NATO Status of Forces Agreement, 35 N.C.L.Rev. 358 (1957).

107 This is not to suggest that the judicial process could in any event be invoked to compel diplomatic activity in appellants’ behalf. See United States ex rel. Keefe v. Dulles, 94 U.S.App.D.C. 381, 384–85, 222 F.2d 390, 393–94 (1954), cert, denied, 348 U.S. 952 (1955). But under both the Senate resolution and the Department’s regulations, a request from the commanding officer sets diplomatic machinery in motion and, despite appellants’ claims, no such request was made here. There may, of course, be good reason for this, but if so it has not emerged during this litigation.

108 22 U.S.C. § 1732 (1964) provides:

Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.

See also Zemel v. Rusk, 381 U.S. 1, 15 (1965); Worthy v. Herter, 106 U.S.App.D.C. 153, 158, 270 F.2d 905, 910, cert, denied, 361 U.S. 918 (1959).