Gathering Places

Frank Boas

Sunday, July 22, 2001


Clear rules needed to
deal with crimes of
U.S. troops in Japan

In the wake of the acrimony caused by an issue of custody of an American airman in Japan accused of rape, Secretary of State Colin Powell and the Foreign Minister of Japan, Machiko Tanaka, have agreed when they meet later this month to discuss the agreement between the United States and Japan that governs American military people alleged to have committed crimes in Japan.

In the case at hand, Air Force Staff Sgt. Timothy Woodland has been charged with raping an Okinawan woman. He has maintained that the sexual intercourse was consensual. U.S. authorities in Japan took four days to determine that Woodland's rights would be assured before turning him over to Japanese authorities, which angered Japanese who demanded that Woodland be taken into Japanese custody immediately.

The U.S. stations military forces in allied countries pursuant to agreements that are known as status of forces agreements, or SOFAs. They provide for shared jurisdiction over U.S. military people. This distinguishes the presence of our forces from occupation troops in territories where such forces are subject to the laws of the occupying power.

Typically, these agreements provide that the United States shall have primary jurisdiction over offenses against the property or security of the United States and over offenses arising out of acts in the performance of official duty. With other offenses, the host country has primary jurisdiction.

In this case, the SOFA provides that U.S. authorities shall give "sympathetic consideration" to a Japanese request that the United States waive its right to jurisdiction when Japan considers such waiver to be of particular importance. In 1957, the U.S. Supreme Court decided that the SOFA with Japan and the waiver of primary jurisdiction by the United States was permissible under the U.S. Constitution.

Shortly after that decision, a U.S. airman on a firing range in Japan shot at Japanese civilians. At that time, I was an attorney in the State Department. In a memo to the legal adviser, Loftus Becker, I recommended that the United States waive jurisdiction and accede to the Japanese request to try the airman in a Japanese court.

The legal adviser was given three minutes to present this case to Secretary of State John Foster Dulles. Secretary Dulles agreed with this course of action and telephoned Secretary of Defense "Engine Charlie" Wilson who, at that very moment, was surrounded by Air Force generals advising him to retain jurisdiction over the airman.

After a brief conversation, Dulles and Wilson decided to release the airman to the Japanese authorities. The rationale of the State Department was that this incident should not be permitted to adversely affect U.S.-Japan relations.

The SOFA with Japan provided in 1960 that the United States would, upon request, turn over offenders to the Japanese after they had been indicted. This agreement was modified in 1995 to provide that the United States would give sympathetic consideration for the transfer of custody prior to indictment in cases of murder or rape.

The problem in the Woodland case arose when U.S. military delayed his arrest because of concerns about his rights in the Japanese criminal justice system, which has a conviction rate of more than 90 percent. In addition, Woodland was interrogated in accordance with standard Japanese procedures without the presence of an attorney and with an interpreter provided by the police.

To avoid future problems with respect to custody, I recommend that the United States and Japan agree that U.S. military personnel be accompanied by a U.S. representative during police interrogation to serve as interpreter --who would also be a lawyer. This was a useful procedure when I served in the French Jurisdiction Section of the Army Judge Advocate in Paris during the 1950s.

The French police used some of the same techniques, such as long, repetitious interrogations, to obtain confessions as are apparently practiced by the Japanese police. We found that the presence of a U.S. military representative acting as interpreter, and unofficially as an attorney, prevented abuse of our military personnel.

Such a procedure should be explained as being consistent with the treatment Japanese receive in U.S. criminal proceedings where they not only have the right to an interpreter, but an attorney as well. Furthermore, in Japan, foreign nationals who are covered by consular treaties are accorded rights in criminal proceedings to which Japanese nationals are not entitled.

If this recommendation is adopted, in the unhappy event that incidents such as the Woodland case recur, they would not be so likely to endanger U.S.-Japan relations.

Frank Boas, an international lawyer, is president of the Pacific and Asian Affairs Council in Honolulu.

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