*2
lows:
MILLER,
K.
BAZE-
Before WILBUR
DANAHER,
Judges.
having
Circuit
LON and
“This
come on for
cause
on
consideration
MILLER,
Judge.
K.
Circuit
WILBUR
corpus,
writ
habeas
an order to
cause, respondents’
Keefe,
private
motion
Thomas
show
Richard
discharge
States
stationed in
dismiss
the United
cause,
argu-
France,
soldier,
another American
order
to show
guilty
counsel,
appearing
pleaded
October
ment
charge
petitioner
court to a
that
off-
the Court that the
civil
French
custody
they
respondents,
had beaten a
cab driver
hours
ju-
his taxicab. Each is now
that this Court without
and stolen
serv-
five-year
prison
risdiction
issue writ of
in a French civil
habeas
ably
day
January,
corpus,
sufficient to
it is this
show she was
2Moreover,
that relief.1
her brief seems
proposition
to be directed to the
respondents’
“Ordered, that
*3
Secretary
the
of State can effectuate the
petition and
motion to dismiss the
prisoner’s release,
legal
that
it
is his
discharge
cause,
the order to show
so,
do
to
and that the court can and
granted.”
be,
hereby is,
and the same
require
perform
duty.
should
him to
that
appeal
prosecuted from the fore-
This
argument
We understand her
to be sub
going order.
stantially this:
therefore,
question is,
The
whether
(a) In its reservation to its ratifica
refusing
to
the District Court erred
tion of the Status of Armed Forces
corpus pursuant
issue writ of habeas
a
Treaty,2 the Senate of the United States
petition
That
to the
we have described.
“specifically provided that, when the con
depends on
Keefe is
in ac-
whether
held
rights
stitutional
of an American serv
by
custody
the re-
tual or constructive
overseas,
iceman was
violated
the
[sic]
by
spondents
petition,
named in the
or
diplomatic
chief
officer should inter
persons subject
any
person
to
other
or
;
cede”
jurisdiction
District Court.
the
of the
(b)
rights
Keefe’s constitutional
have
denied,
not,
properly
for rea-
If
was
being
been
are
violated
the French
presently
sons
to be stated.
compelled
in that he was
to be a witness
petition
The
shows on its face against himself, might
cruelly
have been
custody
that Keefe is not
respondents.
the
of the
unusually punished
deportation
shows,
It also
because it
penal colony,
to a
tary servitude;
is now involun-
alleges
he is detained
French civil
authorities, that there is no one within
legal duty
(c) It is therefore the
jurisdiction
the
of the court who is re
Secretary
the
of State to intercede and
sponsible
for his detention
who
release,
obtain Keefe’s
which he can now
appropriate respondent.
would
It
representations
“by
do
to the Govern-
necessary to
therefore
dismiss the
was
petition
ment of France.”
sought
as it
writ of
insofar
a
corpus, as
court will not
habeas
issue
appellant’s premis
We discuss
person
cus
(a)
writ unless the
who has
that
tody
and (b)
es
and her
(c)
conclusion
petitioner
of the
is within reach
that order:
parte Mitsuye Endo,
process. Cf. Ex
its
(1) The Senate’s reservation in its
208,
323
65
89
U.S.
Treaty
pro
ratification of the
does not
L.Ed. 243.
that,
vide
when an American soldier’s
Although
was insufficient
rights
constitutional
are violated in a
justify
require
corpus,
or
foreign
to
habeas
we
trial,
Secretary
criminal
think it should be examined as one seek State should or shall intercede in his be
ing mandatory
requiring
order
through
diplomatic negotiations.
half
Secretary of
to
State
obtain Keefe’s re
provision
Its
is that an American observ
through
negotiations
diplomatic
lease
report
er shall attend the trial and
to the
allegations
Keefe’s
commanding
with France. Mrs.
any
officer
violation of Ar
though
respect,
sketchy,
prob
in that
are
VII,
Treaty,3**whereup-
ticle
§
The
1.
VII,
Cong.Rec.
Section. 9
Article
99
representations
can, “by
(1953),
of State
to the
8726
is as follows:
France,”
obtain Keefe’s
Government
“9.
Whenever member
a force
oi
or
prayer
only
And the
was not
release.
component
dependent
pros-
or
civilian
corpus,
of habeas
but also
a writ
“For
jurisdiction
under
ecuted
of a receiv-
and further
relief
such other
as to the
he shall
State
be entitled—(cid:127)
may
just
proper.”
seem
Court
prompt
“(a)
speedy trial;
“(b)
informed,
“Agreement
trial,
Between the Parties
to be
to the
advance of
specific
Treaty Regarding
charge
charges
North Atlantic
made
him.;
Forces,”
Cong.Rec.
against
of Their
99
Status
(1953).
8724
request
necessary
request
not think it
on that officer “shall
then
did
Department
pro-
appropriate
State
of State to take
take action
rights.
rights
protect
Keefe’s
action to
of the ac-
tect
cused.”
(3)
appellant’s premises
(a)
Since
allegations
(e)
fail,
(b)
must
(2)
on and
her conclusion
Mrs. Keefe’s
made
not re-
hus-
was
information
and belief
that her
fall. The
of State
rights
quested
commanding
officer of
were violated
band’s constitutional
supported by
record,
representations
which area
to make the
were
contrary
sufficiently
him
have
is France which Mrs. Keefe would
shows that
made,
representative
request
A
of our
Even had the
been
true.
Staff make.
*4
Judge
grant
present
have been
would
Advocate was
at the trial whether
to
it
reported
Secretary’s
He
and
unconstitutional
ir-
the
discretion.
no
within
regularities.5
commanding
legal
attempt
officer
under
to
The
not
was
with,
“(c)
(which requires
receiving
to
to be
the witnesses
the
state
confronted
give
against him;
‘sympathetic
such
to
consideration’
“(d)
compulsory process
request),
if
authorities refuse
to have
and such
obtaining
they
commanding
favour,
jurisdiction,
offi-
witnesses
his
if
waive
the
jurisdiction
request
Department
State
are within the
of the receiv-
cer shall
to
of
the
ing State;
press
request through diplomatic
such
“(e)
legal
given by
representation
to have
of his
channels and notification shall be
own
for his defense or to have free
executive branch
Armed
choice
the
ices Committees of the Senate and
to the
Serv-
legal representation
or
House
assisted
under the
prevailing
being
Representatives;
conditions
for the
time
of
State;
receiving
representative
the
“4. A
of the United
“(f)
appointed by
necessary,
if he
of
considers
States to be
Diplomatic
the Chief
competent
have the services of a
inter-
Mission with the advice of the
preter;
representa-
military
senior United States
“(g)
representa-
receiving
to communicate with a
tive in the
state will attend the
sending
any
person by
tive of the Government of the
trial of
such
authorities
and,
receiving
agreement,
State
when the rules of
of
the court
state under the
permit,
representative
any
comply
pro-
to have such a
failure to
with the
present
paragraph
at his trial.”
visions of
article VII of
9 of
agreement
reported
shall be
to the
ratification,
4. The resolution of
as amended
commanding officer of the Armed Forces
Cong.
the committee
[99
reservation
of the United
in such state who
States
(1953)],
pertinent part
Rec. 8780
is in
as
request
Department
shall
then
of
follows:
appropriate
pro-
State to take
action to
giving
“In
its advice and
to rati-
consent
rights
accused,
of the
no-
tect
fication, it is the sense of the Senate that:
given by
shall
tification
the executive
jurisdiction provisions
“1. The criminal
branch
Armed Services Committees
pre-
of Article VII do not constitute Representa-
of the
Senate
House of
agreements;
cedent for future
tives.”
person subject
“2. Where a
to the mili-
jurisdiction
tary
1, 1953,
letter,
of the United
5. The
is
States
dated
to be tried
ing state,
the authorities of a receiv-
which Mrs. Keefe received from the De-
treaty
Army
partment
under the
the command-
of the
and which she sub-
court,
officer of the Armed Forces of the
mitted to the
contains the follow-
ing:
United States in such state shall examine
“ *
**
particular
According
the laws of such state with
ref-
information fur-
procedural safeguards
Judge
to the
erence
con-
office
Headquarters,
nished this
the Staff
Ad-
tained in the Constitution of the
of
United
vocate
U. S.
States;
Europe,
Zone,
Communications
the men
If,
opinion
appeal
“3.
in the
of
not desire to
such
did
their sentences.
command-
ing officer,
competent
under all
men had a
“Both
French
circumstances
at-
case,
danger
torney
reported
brought
of the
there is
who is
to have
that the ac-
protected
mitigating
possible
will
cused
not be
factors
because of
all
into the
representative
rights
argument
absence
denial
of
of
A
the case.
constitutional
enjoy
Judge
present
States,
he would
the United
of the Staff
throughout
Advocate was
commanding
request
reported
shall
officer
the trial and
the au-
he
receiving
given
thorities
all
state to
the accused were
the fundamen-
waive
jurisdiction
they
provi-
safeguards
enjoy
in accordance with the
tal
would
in a
paragraph 3(c)
sions
of article
States
VII
United
court.”
through diplomatic processes
as
The
insufficient
to obtain
was
Quite
contrary, a
the allot
Keefe’s
claim for reinstatement of
release.
to the
negoti-
being
diplomatic
the “short
commencement
ment:
it falls short of
foreign power
plain
completely
claim show
ations with
and
ing
statement
pleader
in the
to relief”
discretion of the President
that the
is entitled
8(a) (2)
required
head
the Federal
Rule
who
political agent.
his
re
This rule
The
is Rules of
Procedure.*
Executive
Civil
subject
quires
adequate
judicial
pleader
control or direc-
to disclose
Marbury
tion in such matters.
v. Madi-
claim for
information as the basis of
son, 1803,
137,
1 Cranch
5 U.S.
distinguished
aver
as
from bare
relief
60;
2 L.Ed.
cf. United
v.
States
en
and is
wants relief
ment that he
Curtis-Wright Export Corp., 1936, 299 titled to it.7
U.S.
United States Ex Relator, Gladys Keefe v. John Foster Dulles, Secretary of State
222 F.2d 390
D.C. Cir.1955Check TreatmentAI-generated responses must be verified and are not legal advice.