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

181. Memorandum of a Conversation, Washington, June 19, 1957¹

Washington, June 19, 1957

SUBJECT

• Appeal of the Girard case

PARTICIPANTS

• Solicitor General Rankin²
• Deputy Attorney General Rogers³
• Oscar Davis, of Solicitor General’s Staff
• Mr. Doub, Chief, Civil Division, Dept. of Justice⁴
• Roger Fisher, of Solicitor General’s Staff
• Assistant Secretary of Defense Sprague
• General Counsel of Defense Dechert
• General Jones, Assistant JAG
• Deputy Under Secretary Murphy (for part of the meeting)
• The Legal Adviser, Mr. Becker

The Solicitor General inquired as to the seriousness of the situation presented by the present posture of the Girard case. Deputy Under Secretary Murphy spoke briefly on its impact in Japan and attention was called to the fact that from the view of the State Department most of the relevant considerations had been set forth in the second affidavit filed on behalf of the Secretary of State.⁵ The JAG representative pointed out that it had serious repercussions in that it was probable that waivers could no longer be obtained for American troops and that they would be put in foreign jails all of the time. It would have a most unfortunate effect on the MSA Program, particularly in Congress.

After some further discussion along this line the Solicitor General expressed the view that, in view of the importance of a request under Rule 20,⁶ they would probably require an additional and possibly stronger affidavit from the Secretary of State. Mr. Becker responded that he felt that the Secretary of State had covered all the points he could in the affidavit which had specifically been prepared for use in a Rule 20 proceeding. He pointed out that the Secretary had even used the words of the rule “imperative public importance” so as to put him on record that the case was one coming under the rule. Mr. Becker stated that we needed a fresh note here and this could be secured through an affidavit on the part of the Secretary of Defense. He could pertinently cover all of the points that were not fully dealt with in the Secretary of State’s affidavit. The Defense representatives pointed out that Secretary Wilson was in Maine, but it was suggested in return that we could scarcely ask the Supreme Court to defer its vacation on the ground that the Secretary of Defense, being on vacation, was unable to make an affidavit.

Mr. Rogers expressed himself strongly to the effect that the really serious impact of this case, as he saw it, was that a decision by the President, approving a joint decision of the Secretary of State and the Secretary of Defense, could be held up for months, with grave potentiality of injury to United States interests throughout the world, by the decision of a United States District judge.

Mr. Murphy pointed out that the action with respect to the waiver of jurisdiction had been taken by the Army without prior consultation with the State Department. Mr. Dechert conceded that State had not been consulted in the sense that its advice had been requested, but insisted that the State Department was informed from the very beginning. As a matter of fact, the Girard case first came to his attention by reason of a cable from the United States Embassy in Tokyo. Moreover, an Embassy representative had attended all meetings of the Joint Commission. He also read from a cable of mid-April⁷ (the actual announcement to the Japanese was not made until mid-May) directing three weeks of further negotiation and then a waiver of jurisdiction if the Japanese did not agree. A copy of this cable had been sent to State and there was comment in a later State cable⁸ raising the question as to the Military’s right to interpret the agreement, but saying that the issue would not be pressed in view of the decision to waive jurisdiction.

Oscar Davis, on behalf of the Solicitor General, inquired whether we could not gain the same favorable results by an immediate appeal to the Court of Appeals. He felt that we could get an expeditious hearing before the full Bench, and possibly a unanimous decision in our favor by the Court of Appeals might induce the Supreme Court to deny certiorari as soon as it convened in October. This might be a very expeditious way of dealing with the case. It was pointed out, however, that the Court of Appeals did not really want to handle this case because it knew that eventually it would have to be denied by the Supreme Court. Furthermore, there were additional considerations such as the fact that Girard’s enlistment was up in October. Although his discharge might be deferred by preferring charges against him, as pointed out by JAG, this in itself might be considered a violation of the agreement by the Japanese.

During the course of this discussion Deputy Under Secretary Murphy left the meeting.

After further discussion, Mr. Becker expressed himself strongly in favor of an immediate application requesting the Supreme Court to remain in session for such period as it regarded appropriate for making a final determination of the Girard case. The Solicitor General agreed that an application for summary disposition would be out of order. Mr. Becker relied in part upon the reasons stated by Mr. Rogers and also upon the extreme importance of the case insofar as the State Department was concerned. Mr. Becker did not share Mr. Davis’ concern that we would get a black eye were the Supreme Court to deny our request. From the point of view of State, this would be a favorable factor in our dealings with the Japanese, since they would appreciate the fact that we were treating this matter as one of first importance.

Both the Solicitor General and his assistant, Oscar Davis, expressed the view that if the Supreme Court were requested to act under Rule 20 in this case it would do so.

Mr. Dechert expressed himself as in agreement with the position taken by Mr. Rogers and Mr. Becker.

The Solicitor General expressed some concern over the effect on our overall litigation position were we to irritate the Supreme Court by requesting it to remain in session when the Justices were anxious to get away. The others present at the meeting did not feel that this factor should govern the decision, but recognized that it was a consideration that Justice would have to evaluate.

Mr. Rogers commented that ultimately the question would have to be decided by the President and the Secretary of State, and Mr. Becker stated that it was his view that this had been done.

Since the Solicitor General desired to discuss this matter further with the Attorney General, the meeting broke up without any final statement of position on the part of the Department of Justice.

1. Source: Department of State, Central Files, 711.551/6–1957. Secret. Drafted by Becker.
2. J. Lee Rankin.
3. William P. Rogers.
4. George C. Doub.
5. Not printed.
6. This procedural rule allowed for appeal of lower court decisions directly to the Supreme Court.
7. Possibly a reference to DA 921933, Document 130, although it is dated April 26.
8. Reference is to telegram 2381, Document 131.