National Defense Industrial Association
Educational Seminar
Kara M. Sacilotto
March 16, 2009

•
•
•
•
–
Jurisdictional Issues
•
Page 2

• The Schooner Exchange v. McFaddon , 11 U.S. (7 Cranch)
116 (1812) (Justice John Marshall)
– The power of every sovereign nation is absolute
• “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.”
Id.
at 136
– Each sovereign enjoins equal independence. Realizing that they have to get along, sovereigns make exceptions:
• “The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers.”
Id.
Page 3

•
Schooner Exchange
“implied” exceptions include:
– Sovereigns themselves immune from arrest/detention on foreign soil when there with consent of receiving sovereign
–
Foreign ministers – same rule applies
–
When sovereign allows troops of a foreign sovereign to pass through territory, permission carries with it immunity from jurisdiction
• “Common Law” Doctrine of the Law of the Flag. Bases for rule:
•
Commanders better situated to monitor and discipline own troops
•
Without the ability to apply own military law, military discipline could not be maintained
• Court holds that same principles apply to foreign “vessels of war” while in port with consent of receiving sovereign
Page 4

•
Schooner Exchange distinguishes “private” persons and
“private” vessels, on the one hand, and troops and “public” vessels, on the other
– Troops and public vessels doing the will of the sovereign. Express permission to enter territory carries implied exemption from jurisdiction
–
Private persons/vessels, in contrast, enter foreign territory for their own, private interests
–
Early basis for different treatment of contractors?
•
Law of the Flag and exclusive jurisdiction of sending state over its own troops general operating principle until ~WWII and
NATO SOFA
•
Today, general understanding is that receiving state exercises exclusive jurisdiction unless there is a SOFA or similar agreement
Page 5

•
An agreement that establishes the framework under which the Armed Forces operate in a foreign country
•
SOFAs govern the presence of troops in foreign countries during peacetime (i.e., when the signatories are not at war)
•
The United States is a party to over 100 SOFA-like agreements, some of which are classified
–
~58 countries parties to NATO SOFA with U.S. through
NATO and NATO Partnership for Peace program
Page 6

•
A SOFA is usually an executive agreement
–
Executive branch agreement entered into by the Department of
State and Department of Defense
–
Usually between two countries. NATO SOFA is major exception
–
Generally, SOFAs provide for termination at the discretion of either party
•
SOFAs can be part of a treaty, but are not generally
“treaties” themselves
–
NATO SOFA is exception and was executed as part of a treaty
–
U.S. Const. Art. II, § 2 requiring advice and consent of Congress for execution of treaties is not applicable to executive agreements
•
No formal requirements for content or form of SOFAs
–
But : NATO SOFA is the model
Page 7

• Several Supreme Court decisions hold that the President has power to make “executive agreements” without requiring ratification by
Congress
–
–
American Ins. Ass’n v. Garamendi , 539 U.S. 396, 415 (2003) (“our cases have recognized that the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate
. . . this power having been exercised since the early years of the Republic”)
United States v. Belmont
, 301 U.S. 324, 330 (1937) (“an international compact . . . is not always a treaty which requires the participation of the
Senate”)
–
Dames & Moore v. Reagan , 453 U.S. 654, 679-82 (1981) (discussing practice of entering into claims settlements through executive agreements)
• Smallwood v. Clifford , 286 F. Supp. 97 (D.D.C. 1968)
–
–
Republic of Korea enjoyed exclusive jurisdiction in its own territory. Status of Forces Agreement whereby Korea ceded some of its jurisdictional authority did not require Senate approval.
“Ratification of this principle by the United States Senate is clearly unnecessary, since Senate approval could have no effect on a grant of jurisdiction by the Republic of Korea, which the United States could not rightfully claim.”
Id.
at 100
Page 8

•
–
Congressional notification not an issue for treaties because of advice and consent requirement
–
But : Congress had concerns about other executive agreements
• Case-Zablocki Act, 1 U.S.C. §
112b
• Requires Sec’y of State to transmit to Congress text of any international agreement other than a treaty no later than 60 days after agreement has entered into force
Page 9

•
Addresses the rights and privileges of Armed Forces and other covered persons while operating in the foreign jurisdiction
•
Which country can exercise civil and criminal jurisdiction over Armed Forces and other covered persons?
•
Nuts and bolts
–
Liability for taxes, customs duties, licenses
–
Entry and exit procedures
–
Carrying of weapons
–
Use of radio frequencies and telecommunications
Page 10

• The typical SOFA defines which entity has jurisdiction over
Armed Forces and covered personnel and for which types of offenses
–
E.g., Administrative and Technical (A&T) Staff status under the
Vienna Convention on Diplomatic Relations
•
Some SOFA-like agreements treat stationed troops similar to
A&T staff, and provide immunity from local jurisdiction for actions taken within performance of official duties
–
E.g., NATO SOFA, Art. VII, includes both concurrent and exclusive jurisdictional provisions
–
Concurrent Jurisdiction
•
Military authorities of the sending State have right to exercise criminal and disciplinary jurisdiction over persons subject to military law of the sending State
•
Receiving State has jurisdiction over Armed Forces/civilian component/dependents who commit offenses punishable under the laws of the receiving State
Page 11

–
Art. VII, para. 3, defines which state has primary jurisdiction in those instances where jurisdiction is concurrent
• Depends on the nature of offense and against whom
• E.g., Sending state has primary jurisdiction over offenses solely against property/person of sending
State
–
Exclusive Jurisdiction
• Sending State has exclusive jurisdiction over offenses that are punishable under the laws of the sending State, but not the receiving State
•
Receiving State has exclusive jurisdiction over offenses that are punishable under the laws of the receiving State, but not the sending State
Page 12

• Sovereign right recognized in Schooner Exchange recently reaffirmed in Munaf v. Geren
, 128 S. Ct. 2207 (2008), with respect to Iraq’s ability to prosecute those who commit crimes while in Iraq
–
The fact that a citizen may not be afforded the same constitutional rights as in the United States is not relevant
•
• “‘When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.’” Id.
at 2222
(quoting Neely v. Henkel, 180 U.S. 109, 123 (1901))
“[I]t is for the political branches, not the judiciary to assess practices of foreign countries and to determine national policy in light of those assessments.” Id.
at
2225
–
District Court cannot exercise habeas jurisdiction to enjoin U.S. from transferring accused citizens held in Iraq by MNF forces to
Iraqi government for prosecution
•
Holmes v. Laird , 459 F.2d 1211 (D. C. Cir. 1972)
– Court did not have power to prevent surrender of service members tried and convicted in German court to Germany, even if service members alleged German trial lacked protections afforded under U.S. Constitution
Page 13

• States can waive their jurisdiction, and SOFAs usually include provision providing that state with primary jurisdiction can give “sympathetic consideration” to a waiver request
–
Wilson v. Girard , 354 U.S. 524 (1957)
•
No constitutional or legislative barrier to U.S. waiving primary jurisdiction in favor of Japan as part of SOFA
•
Therefore, waiver decision exclusively for Executive and
Legislative Branches
•
SOFA with Japan executed in conjunction with Security
Treaty permitted waiver of primary jurisdiction. No need for
Congressional approval since treaty and SOFA already approved
Page 14

•
The typical SOFA does not address specific missions, and simply addresses the rights/privileges of Armed Forces and covered personnel while in the foreign country
– Iraq Security Agreement (SOFA) Art. 4 recognizes Iraq’s request for
“temporary assistance” and authorizes U.S. mission in Iraq
•
Art. 3 of Iraq SOFA does not include U.S. contractors or U.S. contractor employees in definitions of the Armed Forces or civilian component. SOFAs not uniform on treatment of contractor employees
–
Compare NATO SOFA, Art. I, defines “civilian component” as “the civilian personnel accompanying a force of a Contracting Party who are in the employ of an armed service of that Contracting Party . . . .” with U.S-
Japan SOFA, Art.I, defining “civilian component” as “ the civilian persons of United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in Japan . . . .”
–
Result is different treatment of Armed Forces/civilian component vs. contractor employees under Art. 12 of Iraq SOFA
Page 15

•
Other SOFAs include provisions guaranteeing some basic due process rights for covered persons
–
–
E.g., U.S.-Japan SOFA, Art. XVII, para. 9; NATO SOFA, Art. VII, para. 9
Art. 12, para. 8, of Iraq SOFA includes such provisions for members of the
Armed Forces and civilian component, but no similar express guarantee for
U.S. contractors or contractor employees
• Art. 12, para. 10, of Iraq SOFA calls for review of jurisdictional
Article every 6 months
•
Implementation/refinements to be added later by committees. Art.
23
•
Art. 24 of Iraq SOFA has specific withdrawal date; other SOFA-like agreements may address particular event without specific dates
• Art. 30 of Iraq SOFA establishes set term/expiration date
Page 16

•
Page 17