158. Draft Memorandum for the President Prepared in the Department of State1
SUBJECT
- The Girard Case
There has been serious criticism in the Congress and in the public press with respect to the announced intention of Japan to try an American service man, Specialist 3/c William S. Girard, for shooting and killing a Japanese woman. The fact is that the Japanese Government indicted Mr. Girard only after the question as to who should try him had been resolved in the Joint Committee (established under the Administrative Agreement with Japan) by the statement of the United States that it had decided not to exercise jurisdiction. This statement was made under authority received from the Department of the Army. The only issue now is whether, having arrived at an agreement with the Japanese through the machinery provided by the Administrative Agreement, the waiver by the United States of the exercise of its jurisdiction should be revoked.
The significant facts as reported by the United States military authorities are as follows:
About thirty members of Girard’s company were engaged in a small unit exercise at the Camp Weir range area in central Japan. About twenty-five Japanese, engaged in salvaging expended cartridge cases, had been following the unit exercises and had interfered to such an extent that all ball ammunition had been withdrawn from the troops.
During a short recess, Girard and another soldier, Nickel, were ordered to guard a machine gun in the maneuver area. A Japanese witness says that Girard threw empty cartridge cases on the ground and indicated that it was all right to pick these up, and thus enticed him and the deceased woman to come forward to get the cases. Nickel admits to throwing out empty cartridge cases at the direction of Girard, but Girard denies that he (Girard) threw any cases. After the Japanese man and woman had drawn near and were picking up the cartridge cases, Girard suddenly shouted for them to get out, and thereupon fired one shot in the direction of the man. As the woman was running away, Girard, holding his rifle at the waist, fired a second shot at her at a distance of about eight to ten meters. Girard states that he fired from the waist over the woman’s head and did not intend to [Page 324] hit or wound her but only to scare her away. An autopsy disclosed that an expended 30-caliber cartridge case had penetrated her back to a depth of three to four inches, causing her death.
United States military authorities further report that the witnesses have “gradually changed their testimony so that it now substantially corroborates the Japanese version” except that Girard does not admit throwing brass on the ground. A lie detector test indicates that Girard is lying about this point and not aiming at the victim.
The case was handled in accordance with procedures provided for in the Administrative Agreement. Article XVII of the Administrative Agreement provides in paragraph 3 that in cases where both parties have jurisdiction (as in the present case), the United States shall have the primary right to exercise jurisdiction in relation to “offenses arising out of any act or omission done in the performance of official duty”. This is a more limited situation than “while on duty”. It is the same language found in the NATO Status of Forces Agreement and in other agreements which we have throughout the world. The question of jurisdiction which arose in the Girard case was whether the fatal shooting was an act done in the performance of official duty.
Both sides maintained that they had the right to exercise primary jurisdiction. In accordance with the Administrative Agreement, the matter was referred to the Joint Committee which was established under that Agreement “as the means for consultation between the United States and Japan on all matters requiring mutual consultation regarding the implementation” of that Agreement. Neither side was willing to concede that the other had the primary right to exercise jurisdiction. The Administrative Agreement requires that in case of failure of the Joint Committee to agree the matter shall be referred to Governments for further consideration; but the Department of the Army took the position that “resort to diplomatic channels would be unproductive and unwise”. Accordingly, after six weeks of discussion the American representative was authorized by the Department of the Army “to allow Girard to be tried by the Japanese authorities”, but without prejudice to the claim that we had the right to primary jurisdiction. Thereupon an arrangement was worked out in the Joint Committee whereby the United States representative notified the Japanese that the United States had decided not to exercise jurisdiction in this case and the Japanese in turn agreed, on a confidential basis, that the Japanese would indict Girard for the least serious offense possible and would recommend to the Japanese Court maximum mitigation of sentence under the circumstances.
The United States authorities thereupon formally notified the Japanese Ministry of Justice that “In accordance with paragraph 3(c) of Article XVII of the Administrative Agreement the United States has [Page 325] decided not to exercise jurisdiction in the case” of Girard. The Japanese then indicted Girard for bodily injuries resulting in death. The United States officials, however, still have custody of Girard.
There are three alternatives that may now be pursued: (1) abide by the agreement reached in good faith and allow the Japanese to try Girard; (2) revoke the agreement and attempt to throw the matter back into the Joint Committee with the possibility of appeal to Governments in case of continued disagreement; and (3) try Girard by court martial without either following the course already agreed upon in the Joint Committee or observing the procedures established under the Administrative Agreement.