Foreign Relations of the United States, 1955–1957, Japan, Volume XXIII, Part 1

180. Memorandum From the Legal Adviser of the Department of State (Becker) to the Assistant Secretary of State for Far Eastern Affairs (Robertson)¹

Washington, June 18, 1957.

SUBJECT

• Talking paper on Girard case

The attorneys for Girard filed² in the United States District Court for the District of Columbia an application for a writ of habeas corpus naming as defendant, among others, Secretary of State Dulles and Secretary of Defense Wilson. The relief requested was that Girard be brought before the Court in order to determine the legality of the action taken by the United States, through the Joint Committee, in notifying the Japanese authorities that the United States authorities did not intend to try Girard. This is an appropriate means under United States law to determine such a question. Pending a determination of this issue, the Court issued a temporary restraining order prohibiting all concerned from turning Girard over to the Japanse authorities.

As is well known, the United States Government, acting through the United States Attorney, assisted by other attorneys representing the Department of Justice, opposed this application and filed briefs and submitted oral argument in opposition to the application by Girard’s attorneys.

The decision of the District Court³ was that the proposed delivery of Girard into the custody of the Japanese authorities for trial would violate Girard’s rights under the Constitution of the United States.

We are advised by the representatives of the Department of Justice that they believe that this decision is erroneous and they intend to appeal it, if necessary, to the United States Supreme Court. These attorneys also advise that—regardless of the result—it is practically inevitable that we shall not be able to obtain a final determination of this controversy by the Supreme Court until fall—since the Supreme Court is recessing for the summer and will not convene again until October. In the meantime, the attorneys have no doubt that the restraining order binding upon the Secretaries of State and Defense, as well as the military authorities, will be continued in full force and effect until such final determination can be secured.

As is well known, the United States, despite the strongest pressure from public opinion, has consistently taken the position that it would honor its commitment to turn over Girard to the Japanese authorities for trial. There has been no change in that position, as indicated by the decision to appeal to the upper courts, despite the District Court’s decision.

Under these circumstances, it is imperative that everything possible be done to defer a trial before the Japanese court until the American authorities are free, under our law, to comply with a request that Girard be produced for trial. While it is impossible to predict with certainty the outcome of any litigated matter, the attorneys of the Department of Justice have advised us that they believe that the decision of the District Court is erroneous and should be reversed on appeal, either by the Court of Appeals or by the Supreme Court of the United States.

By analogy to the practice in the United States courts, it would be appropriate for the Public Prosecutor to request that a trial be postponed until he had further opportunity to prepare his case. Moreover, it is customary for courts to recess during the summer months, and it is possible that the Girard case in the Japanese court could be put over until the fall upon this ground.

In the happy event that a postponement could be obtained from the Japanese court in as routine a manner as possible, there is a strong likelihood that existing public agitation over this matter, both in Japan and the United States, would subside. If we are able to secure a Supreme Court decision reaffirming the legality of the Administrative Agreement, as amended, this might also tend to lessen demands on the part of certain members of Congress that legislation be enacted requiring further changes in the Administrative Agreement, which could lead to the embarrassment of both Governments.

In this matter, time is of the essence.

If any question is raised as to why the United States Attorney did not argue that Girard’s action was not, in fact, “in performance of his duty”, it might be answered along the following lines:

1. If this issue had been raised, the court would have required that Girard be brought back to the United States in order to have that issue of fact resolved. The court so stated in its opinion.

2. The Department of Justice attorneys are of the view that the action taken by the United States authorities in this case was legal and constitutional, whether or not Girard was acting in performance of his duty.

3. Such a contention would have been a predetermination of Girard’s case before its consideration by the Japanese court and a change in a position which was not withdrawn by the United States representatives on the Joint Committee when they waived jurisdiction under the Administrative Agreement, as amended.

It may also be desirable to note that the court’s decision was made upon the express assumption that:

“…⁴ the petitioner would receive a fair trial if the defendants should deliver the petitioner to the Japanese Government for trial under the Japanese Constitution and laws.”

1. Source: Department of State, Central Files, 711.551/6–1857. Secret.
2. On June 6.
3. Rendered June 18; for text, see Marjorie M. Whiteman, ed., Digest of International Law, vol. 6 (Washington: U.S. Government Printing Office, 1968), p. 747.
4. Ellipsis in the source text.