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November 16, 1971

UNITED STATES ex rel. Daniel JACOBS, Petitioner,
Hon. Robert FROEHLKE, Secretary of the Army, and John Doe, Commanding Officer, Fort Buckner, Okinawa, Respondents

Gasch, District Judge.

The opinion of the court was delivered by: GASCH

GASCH, District Judge.

 This matter came on for hearing on relator's petition for writ of habeas corpus and was heard in open Court. Petitioner is a United States serviceman stationed in Okinawa. The appropriate military authority has brought charges against him which have been referred to a military court martial for trial. The charges are carnal knowledge in which the complaining witnesses are three young girls, the dependents of United States military personnel also stationed at this base; the additional charge involves marihuana.

 The thrust of the petition is that under O'Callahan v. Parker, *fn1" or at least within the spirit of that case, petitioner can only be tried by a court wherein he would be subject to indictment by grand jury and trial by jury. It is suggested that the civilian court set up by a directive of the High Commissioner of Okinawa who is also the United States Military Commander for that area would meet those criteria. In O'Callahan v. Parker, supra, the Supreme Court granted certiorari limited to the following question:

"Does a court-martial, held under the Articles of War, Tit. 10, U.S.C. § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?" 393 U.S. 822, 89 S. Ct. 177, 21 L. Ed. 2d 93.

 To determine the applicability of O'Callahan as a governing precedent, one should examine the criteria mentioned in the above-noted limitation: One, a crime cognizable in a civilian court; two, a crime having no military significance; and three, a crime committed off post and while on leave.

 With respect to the first qualification, the government states, and petitioner does not dispute, that in the U.S. civilian-type courts set up by the Military High Commissioner of Okinawa under Presidential authorization carnal knowledge is not included as an offense within the jurisdiction of those courts. *fn2" Only in the courts established for the trial of Ryukyuan natives is statutory rape specified as a crime. Two: While in O'Callahan the prosecution of a soldier charged with attempting to rape a civilian was regarded as a crime of no military significance, the circumstances of this case are different. Here, the children allegedly molested are the children of military personnel. Should this Court grant the petition and thus relegate petitioner's case to trial by the U.S. civilian court for Okinawa, which has no jurisdiction over the offense involved, the crime charged would be regarded as of military significance in that such an offense, if unresolved by trial, would have serious and detrimental consequences upon the maintenance of good order and military discipline. Feuding among military personnel or the attempted administering of extrajudicial punishment by those personally involved in such emotionally charged incidents is the antithesis of the maintenance of good order and military discipline. *fn3" The third point of distinction is that petitioner's apartment was located near, though not on, the military installation. The government asserts that the entire island of Okinawa is under the jurisdiction of the Military Commandant and for that reason the entire island constitutes the post. *fn4"

 Clearly the first condition of the limitation in O'Callahan is significant. The second limitation is at least arguable and to this Court, persuasive. The third limitation can be predicated directly on Mr. Justice Douglas' language in O'Callahan at page 273 of 395 U.S., at page 1691 of 89 S. Ct. wherein he noted that the offenses were "committed within our territorial limits, not in the occupied zone of a foreign country." (Emphasis supplied.)

 In O'Callahan the soldier had left his military post in Hawaii on a pass and was in civilian clothes at the time he broke into the hotel room of the complaining witness and assaulted her with intent to commit rape. Her screams drove him away but he was apprehended by an employee of the hotel and ultimately turned over to the military authorities. The civilian criminal courts in Hawaii in which the constitutional provisions of indictment by grand jury and trial by jury are required were available for disposition of these charges against O'Callahan. Thus the crime in O'Callahan was clearly cognizable in a civilian court in U.S. territory, was of little or no military significance, and was committed outside the military area.

 Here, the situation is manifestly different. Our Court of Appeals in Rose v. McNamara, 126 U.S. App. D.C. 179, 375 F.2d 924, pointed out that our country in the Treaty of Peace with Japan has signified its purpose not to hold Okinawa as a United States possession. Recently the President of the United States has committed this country to restore Okinawa to Japanese sovereignty. It is anticipated that this restoration will take place in the very near future. Thus, the U.S. civilian courts authorized by executive order will be phased out of existence shortly. *fn5" At the present time the Ryukyuan courts are limited in their jurisdiction to the trial of Okinawans. It is highly questionable that any charge against petitioner could be brought in such courts as the Japanese may establish in Okinawa in the future.

 In Relford v. Commandant, 401 U.S. 355, 91 S. Ct. 649, 28 L. Ed. 2d 102, a rape and kidnapping conviction by court martial of a soldier was sustained. There the offense was committed on a military reservation in New Jersey where the serviceman was based. The two victims were dependents of other military personnel. It was Relford's contention that O'Callahan was controlling and that his conviction by court martial should be vacated.

 The Supreme Court at page 365 of 401 U.S., at page 655 of 91 S. Ct. specified twelve criteria, *fn6" all of which were present in O'Callahan and which establish the basis on which this rule should be applied. Attention should be focused on (3), (4), and (8), which read as follows: (3) "Its commission at a place not under military control." (4) "Its commission within our territorial limits and not in an occupied zone of a foreign country." (8) "The presence and availability of a civilian court in which the case can be prosecuted."

 These key factors are not present in the instant case.

 In Relford, the Supreme Court concluded with respect to those factors ...

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