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MAY v. WILSON

February 10, 1956

Alan C. MAY, Private, U.S.A., Walter R. McKenzie, Corporal, U.S.A., Kenneth J. Reynolds, Private, U.S.A., Jesse Nordyke, Private, U.S.A., Plaintiffs,
v.
Hon. Charles E. WILSON, Secretary of Defense of the United States, and Hon. Wilbur M. Brucker, Secretary of the Army of the United States, Defendants



The opinion of the court was delivered by: MCGARRAGHY

Findings of Fact and Conclusions of Law

This cause having come on for hearing on the motion of plaintiffs for a preliminary injunction or a temporary stay order, and the Court having considered the pleadings, affidavits, exhibits, memoranda, and the arguments of counsel; and, in accordance with its oral opinion rendered on February 2, 1956, denying plaintiffs' motion for a preliminary injunction, the Court now makes the following Findings of Fact and enters the following Conclusions of Law:

 'Findings of Fact

 1. The plaintiffs are American soldiers stationed in Japan.

 2. The defendant Charles E. Wilson is Secretary of Defense of the United States; the defendant Wilbur M. Brucker is Secretary of the Army of the United States.

 3. On September 8, 1951 the Security Treaty was signed by the Governments of the United States of America and Japan. Ratification was advised by the United States Senate on March 20, 1952; the President of the United States ratified the Treaty on April 15, 1952; and it entered into force on April 28, 1952. Article III of the Security Treaty provides that: 'The conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between the two Governments.'

 4. On February 28, 1952 pursuant to Article III of the Security Treaty, the Administrative Agreement between the United States of America and Japan was signed and entered into force on April 28, 1952. Article XVII of the Administrative Agreement provided that: 'Upon the coming into force with respect to the United States of the 'Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces,' signed at London on June 19, 1951, the United States will immediately conclude with Japan at the option of Japan, an agreement on criminal jurisdiction similar to the corresponding provisions of that agreement.'

 5. On September 29, 1953 the Protocol to Amend Article XVII of the Administrative Agreement which contains the presently existing jurisdictional arrangements relating to United States Armed Forces in Japan was signed by the Governments of Japan and the United States, and it entered into force on October 29, 1953.

 6. The negotiation and execution of the Administrative Agreement of February 28, 1952 and the Protocol to Amend Article XVII of the Administrative Agreement of September 29, 1953 were validly authorized.

 8. Whenever a member of the United States Armed Forces in prosecuted under the jurisdiction of Japan, the Protocol to Amend Article XVII of the Administrative Agreement of September 29, 1953 guarantees certain basic rights to American servicemen, which include the following: the right to a prompt and speedy trial; to be informed in advance of trial of the specific charge or charges against him; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to counsel of his own choice; to have the services of a competent interpreter; to have a representative of the Government of the United States present at the trial; as well as other rights secured to him by the Japanese Constitution and by administrative arrangements made pursuant to the Protocol by the respective Governments.

 9. On October 5, 1955 the United States military authorities in Japan were notified by the Japanese Ministry of Justice that Japan intended to exercise her primary right to jurisdiction over the four plaintiffs. Under the administrative procedures which have been adopted to implement Article XVII of the Administrative Agreement of September 29, 1953, such notification constituted a denial of the implied request for waiver of jurisdiction which exists in every case involving an offense over which Japan has primary jurisdiction. Following a thorough and complete review of the circumstances of this case, the United States military authorities determined that there were no special factors in this case to indicate the plaintiffs would be denied a fair trial by the Japanese courts, and no further request for waiver was submitted.

 10. On October 5, 1955 plaintiffs were indicted by the Japanese authorities for off-duty offenses against the criminal law of Japan, namely: obstructing ...


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