The GIrard Case

In the inevitable involvement of its military strength and influence in the everyday life of the free world, the U.S. has long sought to define a legal relationship between the rights of American servicemen stationed abroad and the inherent rights of allied nations. The U.S.'s principal instrument: a worldwide network of more than 40 "status-of-forces agreements" designed to legalize the status of 700,000 U.S. servicemen in friendly countries. The status-of-forces agreements--roughly granting to U.S. military courts the right to try G.I.s for on-duty offenses, granting to the host country jurisdiction over off-duty offenses--have worked out in a way that has become one of the wonders of international law (TIME, June 17). One day last week, in a decision that could well rank with other legal history shapers, the Supreme Court ruled 8 to 0 in effect that the status-of-forces agreements are constitutional.

A Right to Decide. The decision was handed down in the headlined case of Army Specialist Third Class William S. Girard, 21, who shot and killed a Japanese woman while on duty, but without authorization, on a rifle range in Japan last January. The sharp issue was whether the Administration had the right to decide --as it did decide--to grant a Japanese request for jurisdiction over Girard under the status-of-forces agreements. Federal District Judge Joseph C. McGarraghy had held that since Girard acted while on duty, he had a constitutional right to a U.S.'court-martial (TIME, July 1). The Supreme Court cut through the on-duty, off-duty argument, simply ruled that the Administration had discretionary authority to waive jurisdiction at will, because the agreement with Japan was legally drawn, and nothing in the Constitution or the public law infringes upon it. "The wisdom of the arrangement," said the court, "is exclusively for the determination of the Executive and Legislative Branches."

The Supreme Court went all the way back to an opinion written by John Marshall, the third Chief Justice of the U.S., to uphold the Administration's law foundation for the status-of-forces agreements. Paraphrasing Marshall, the court said: "A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders unless it expressly or impliedly consents to surrender its jurisdiction." Marshall, C.J., stated this as a legal absolute.

An Exemplary Case. The Girard decision brought few all-out editorial huzzas, plenty of jeers. The internationalist-minded Baltimore Sun approved the decision, but blamed U.S. administrative bungling for failure to give Girard full benefit of the status-of-forces agreement. The Hearst New York Journal-American thought that "the basic rights of this American soldier have been violated." New York's tabloid Daily News roared that the Supreme Court, "like Pontius Pilate . . . has washed its hands . . . This stinking affair has disgusted tens of millions of us." The News admonished Congress to get busy with remedial legislation. And Ohio's Senator John Bricker telegraphed to every Sunday paper in his home state his renewed determination to fight for his Bricker amendment, which would "make the Constitution supreme over the conflicting provisions of any treaty or executive agreement."*

In Japan, Soldier Girard telephoned his mother in Ottawa, Ill. to tell her: "Don't cry. I know I'll get a fair trial." He believed he would be acquitted by the Japanese court (presumably on a showing of accident). Maebashi District Judge Yuzo Kawachi, who will preside over Girard's trial, said the decision was "just what I expected--very good." In a banner-headline story, Tokyo's Asahi Evening News reported: "At no time since the signing of the San Francisco peace treaty have Japanese thought so kindly of the U.S. and the American ideal of justice and fair play."

Indeed, the decision had a far-reaching impact. Even as the U.S. bowed to the limitations of international law, it strengthened its expanding case for a world governed by law. By giving Soldier Girard the right to make his case, by subjecting the judgment of U.S. generals, Cabinet members and President alike to the searching inquiry of law, the U.S. had made a strong, exemplary case for the processes of justice. This, coupled with the ruling of its highest court upholding the rights of other nations, said more than a thousand guns about the kind of world that Soldier Girard and his fellow G.I.s overseas are on hand to defend.

* An argument now somewhat beside the point, because the court held that the decision was legal under the Constitution, also stated in the recent Covert-Smith case that it, too, holds the Constitution superior to treaty law.

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