Amicus Curiae Brief — United States ex rel. Eichenlaub v. Shaughnessy

Supreme Court of the United States

Ocrosger Tzrm, 1948

No. 255

Gernart Erser,

Appellant,

v.

Unrrep States or AMERICA,

Appellee.

=

MOTION OF AMERICAN COMMITTEE FOR PROTEC-

TION OF FOREIGN BORN FOR LEAVE TO FILE

BRIEF AS AMICUS CURIAE, AND BRIEF OF

AMICUS CURIAE

—_——— -— —

—

Lez Epstein,

70 Pine Street,

New York 5, N. Y.

Counsel for American Committee

for Protection of Foreign Born

as Amicus Curiae,

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SUBJECT INDEX

PAGE

| Motion for Leave to File Brief as Amicus Curiae .... 1

B Brief an Ansdous Curls ......0ccecccccccccsccceess 2

I. Preliminary Statement ...............0eeeeeee: 2

EE SEE 6. dwae 6 can canes coneupenseevece evades 3

TE; GIES i Sanaa Hei edd vGedchebens ceceenteds 4

SITY GE BIRD occ cctboccccccccevcteva 4

Point A. As an alien enemy the defendant was

entitled to the same rights as a Prisoner

OE WEE abi ncbw Sekt cdhsbodeateiccsce<s 7

Port B. The defendant, as a Prisoner of War,

cannot be punished for refusal to testify 8

Porst C. The immunity granted by the

Geneva Convention has not been revoked 9

EES 5-55 pchademes edeueee sanniousbanewebnane 12

Taste or Cases Crrep

In re Chapman, 166 U. S. 661 (1897) .............. ll

Cook v. United States, 288 U. S. 102 (1933) ........ 11

Eisler v. United States, 107 Fed. (2d) 273 (1948)... .. 3

Henry v. Henkel, 207 Fed. 805 (1913) .............. 11

Johnson v. Browne, 205 U. S. 309 (1907) ............ 10

Jurney v. McCracken, 294 U. S. 125 (1935) .......... ll

King v. Supt. of Vine St. Police Station, 1 K. B. 268

SEE dikdsiun coddgpaheene wadeandennsabewet 7

Maiorano v. Baltimore and Ohio RR Co., 213 U. 8S.

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PAGE

Rex v. Commandant of Knockalow Camp (Ex parte

Forman), 117 Law Times Reports 627 (1917) .. 7

Sinclair v. United States, 279 U. S. 263 (1929) ...... ll

Townsend v. United States, 68 App. D. C. 223, 95 Fed.

(2d) 352, cert. denied 303 U. S. 664 (1938) ...... ll

United States v. Thompson, 258 Fed. 257 (1919) .... 10

Tas.Le or Sratutes Crrep

Act of January 16, 1932, Article 5 (47 Stat. 2021)...8, 10

Act of January 24, 1857, c. 19, §1 (11 Stat. 155) .... 10

COOTGNNs SANUED VE cocndodsonccccescneusscebes 9

Geneva Convention, Prisoners of War, Article5.... 8

TexTBOOKS AND PeriopicaLs Crrep

American Journal of International Law, volume 37,

WD, GD CED. ccccccdencsvcccccdsvevececcer veces 7

Basic Field Manual FM 27-10, ‘‘Rules of Land War-

DP (vt been disdain con apaaseees bores dines 4

Bulletin of the Judge Advocate General, vols. 1 and2 6

Piesy, *Peteamens 06 War”. cccccvcsvcceveucetoees 7

Hackworth, ‘‘ Digest of International Law,’’ vol. 5 ...9, 10

Hyde, ‘‘International Law, Chiefly as Interpreted and

Applied by the United States” ................ 5

Lauterpacht’s edition (6th) of Oppenheim, ‘‘Interna-

OA. i inisn #5 de be Ken 60 0 ccnen0s nies epee 5, 8

Law of Land Warfare (Judge Advocate General’s

eROGS GHNORUGED coe icccsccovcescccccdvecseses 5,8

Manual of Military Law, appendix 12 (British Army) 7

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a

‘

INDEX iii

PAGE

Oppenheim, ‘‘International Law’’ (6th edition, Lau-

TEE dtaaGueabens taraesdcunbdvusdhes ecees 5, 8

Rules of Land Warfare (U. S. Army Basie Field

EAE ESS A SCE | ane Ree 4

Spaight, ‘‘Air Power and War Rights’’ ............ 9

United States Department of State Bulletin, vol. VI,

No, 152, pp. 445, 446, May 23, 1942 ............ 5

United States War Department Mobilization Regula-

tions, No. 1-11 (1 April 1940) .................. 7

Wilson, ‘Treatment of Civilian Alien Enemies’’, 37

American Journal of International Law 30 (1943) 7

Supreme Court of the united States

Octeser Term, 1948

No. 255

Geruart EIsier,

Appellant,

v.

Unrrep Srares or AMERICA,

Appellee.

ha

a

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE

May it Please the Court:

The undersigned, as counsel for American Committee

for Protection of Foreign Born, respectfully moves this

Honorable Court for leave to file the accompanying brief

in this case as amicus curiae,

Lez Epstein, f

Counsel for American Committee

for Protection of Foreign Born,

as Amicus Curiae,

SUPREME COURT OF THE UNITED STATES

Ocroser TERM, 1948

No, 255

Geruart E1sLer,

Appellant,

v.

Unrrep States or AMERICA,

Appellee.

+

» 4

BRIEF OF AMERICAN COMMITTEE FOR PROTECTION

OF FOREIGN BORN, AS AMICUS CURIAE

I

Preliminary Statement

This brief is filed on behalf of the American Committee

for Protection of Foreign Born, with the written consent

of both parties to the pending case. The members of this

Committee and associates—organizations of the foreign

born, trade unions, church, social welfare, civil liberty and

civie organizations throughout the country—recognize the

necessity, never greater than at present, of insuring to the

foreign born in our midst (citizen and non-citizen) the full

protection to which they are entitled under our laws. This

necessity is made more urgent, in the instant case, by the

fact that the country from which the defendant-petitioner

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comes, and which, under normal conditions might properly

intervene through diplomatic channels to protect his rights,

is a conquered country still under military occupation.

Even the protecting power (Switzerland) which might

have intervened in his behalf during the war, has ceased

activities since the suspension of hostilities.

The American Committee for Protection of Foreign

Born has a particular interest in the instant case because

it has been at the forefront of the campaign to secure for

the defendant-petitioner the right to leave this country in

order to return to Germany.

Il

The Facts

The defendant was subpoenaed to appear before the

House Un-American Activities Committee. While prepar-

ing to appear, he was placed under arrest as an alien

enemy (stipulated at p. 89 record, fol. 218) the day before

he was to testify. He was taken to the committee hearing

under guard and in arrest (see opinion below, Eisler v.

U. S., 170 Fed. (2d) 273, 276 (1948)).

It is the defendant’s contention that, by arresting him

as an alien enemy, the Attorney General (regardless of the

motive inspiring the arrest) conferred on the defendant

immunity from testifying, in accordance with Article V of

the Geneva Convention relating to Prisoners of War. This

contention was made by a preliminary motion to dismiss

the indictment (Record, pp. 218-220, fol. 463) by motion at

the trial (Record, p. 153, fol. 351), and by motion in arrest

of judgment (Record, p. 228, fol. 473). The point was also

raised on the appeal to the Court of Appeals (see Eisler

v. United States, 107 Fed. (2d) 273, 281 (1948)).

This brief amicus curiae is devoted solely to the point

that the charge against the defendant must fall because of

a

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the immunity against involuntary testimony granted to

arrested alien enemies by the Geneva Convention re Pris-

oners of War.

Ill

Argument

SUMMARY OF ARGUMENT

Point A. As an arrested alien enemy, the defendant was

entitled to the same rights as a Prisoner of War.

Point B. The defendant, as a Prisoner of War, cannot be

punished for refusal to testify.

Point C. The immunity granted by the Geneva Conven-

tion has not been revoked.

POINT A

As an arrested alien enemy, the defendant was en-

titled to the same rights as a Prisoner of War.

An alien enemy who is arrested is entitled to at least

the same protection as a prisoner of war. Basie Field

Manual FM 27-10, ‘‘Rules of Land Warfare’’, issued over

the signature of General Marshall, Chief of Staff, by

order of the Secretary of War, states (p. 16):

‘*Chapter 4. Prisoners of War.

70. Definition—Except as otherwise hereinafter

indicated, every person captured or interned by a

belligerent power because of the war is, during the

period of such captivity or internment, a prisoner

of war, and is entitled to be recognized and treated

as such under the laws of war.”’

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The same point is made in the text book “Law of Land

Warfare”, prepared at the Juage Advocate| General’s

School eondueted by the Army at Ann Arbor, Michigan

(p. 47): j

‘‘Civilian internees. Civilian aliens found in a bel-

ligerent’s own territory at the outbreak 4 war may

be interned. Such persons are, under the) American

and English practices as well as by the) weight of

authority under international law, treatefl as pris-

oners of war. The United States and the enemy

governments, namely, Germany, Italy and Japan have

agreed through the Swiss Government to treat in-

terned civilian alien enemies, on a reciprocal basis,

at least as favorably as prisoners of war.’’

The undertaking of our government is expressed as fol-

lows: ‘*This Government declared that enemy aliens whom

it might be found necessary to intern would be treated at

least as favorably as prisoners of war.’’ United States

Department of State Bulletin, vol. VI, No. 152, pages 445,

446, May 23, 1942.

This was the rule before it was restated in the De-

partment of State Bulletin. Hyde, formerly Solicitor

for the Department of State of the United States, in his

monumental work ‘‘International Law, Chiefly as Inter-

pretec. and Applied by the United States’’, says at page

1862 of volume 3:

‘If recourse is had to internment, the individuals

taken into custody, until convicted of offenses against

the local law, are believed to be entitled to treatment

as favorable as that accorded prisoners of war.’’

The leading British work states:

‘*Every individual who is deprived of his liberty,

not for a crime, but for military reasons, has a claim

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to be treated as a prisoner of war * * * The (Geneva)

Convention does not contain anything regarding the

treatment of private enemy individuals, and enemy

officials, whom a belligerent thinks is necessary to

make prisoners of war; but it is evident that they

may claim all the privileges of such prisoners. They

are not convicts, but are taken into captivity for

military reasons, and are therefore prisoners of war.’’

‘“*And the same is valid with regard to enemy

civilians who at the outbreak of war are on the ter-

ritory of a belligerent, and, for military reasons, are

interned. They are not convicts either, but are de-

prived of their liberty for military reasons only,

and are therefore prisoners of war.’’ 2 Oppenheim,

International Law (6th Edition, Lauterpacht) § 127,

pp. 299-300.

6

The Judge Advocate General of the United States Army

instructed all parties concerned that interned alien enemies

were to be treated as prisoners of war. Opinion SPJGW

19424753, October 12, 1942 reported in 1 Bulletin of the

Judge Advocate General, page 259, which states:

‘*This office has been informed orally by the Depart-

ment of State that an agreement has been made

through the Swiss government with the enemy govern-

ments that civilian enemies detained are to be treated

as prisoners of war.”’

See also opinion of the Judge Advocate General to the

Provost Marshal General, SPJGW 1943—3029, February

26th, 1943 reported at 2 Bulletin of the Judge Advocate

General, page 51, which says in part:

‘* Accordingly, to determine the position of a German

civilian internee we look, in principle, to the rights

and liabilities of a German prisoner of war charged

with the same unlawful act.’’

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This rule is followed by the British opposite number

of our Manual for Court-Martial, the Manual of Military

Law, which states (appendix 12, p. 15):

‘*The following can claim to be treated as prisoners

of war:

(c) Private enemy individuals and enemy officials

whom a belligerent thinks it necessary to make pris-

oners. Although the Hague Rules and Prisoner of

War Convention do not contain anything regarding

the treatment of these individuals, they are not civil

prisoners because they are taken into captivity for

military reasons and are therefore Prisoners of War.’’

See also Flory, ‘‘Prisoners of War’’, 24-27, and Robert

R. Wilson, ‘*Treatment of Civilian Alien Enemies’’, 37

American Journal of International Law 30 (1943).

United States War Department Mobilization Regula-

tions, No. 1-11 (1 April 1940) states, at page 3:

‘*Every person captured or interned by a bellig-

erent power because of war is, during the captivity

or internment, a prisoner of war, and is entitled to

be recognized as such under the laws of war.”’

This is the position taken by the unanimous court in

Rex v. Commandant of Knockalow Camp (Ex parte For-

man), 117 Law Times Reports 627 (1917), and in King

v. Supt. of Vine St. Police Station, 1 KB 268 (1916),

where Judge Bailhache said at page 275:

‘*T have come to the conclusion that a German

subject resident in the United Kingdom, who in the

opinion of the Executive Government is a person

hostile to the welfare of this country and is on that

account interned, may properly be described as a

prisoner of war, although not a combatant or spy.’’

Be

The language may be aptly paraphrased to meet this

ease: the defendant, who was, at the time of the alleged

offense, in the opinion of the Attorney General an alien

enemy dangerous to the public peace and safety of the

United States, and on that account interned, was properly

described as a prisoner of war.

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POINT B

The defendant, as a Prisoner of War, cannot be

punished for refusal to testify.

The Attorney General has conferred upon the defendant

the status of prisoner of war, and thereby made him im-

mune from punishment for refusal to testify before the

Committee.

The Geneva Convention on Prisoners of War (ratified

by the United States in 47 Stat. 2021, January 16, 1932)

states, at Article 5:

‘*Every prisoner of war is bound to give, if he is

questioned on the subject, his true name and rank,

or else his regimental number * * * Prisoners who

refuse to answer may not be threatened, insulted, or

exposed to unpleasant or disadvantageous treatment

of any kind whatever.”’

Law of Land Warfare (op. cit.) states, at page 58:

‘*A prisoner of war is bound to give, if questioned,

his true name and rank or his serial number. The

only punishment for refusal to supply such informa-

tion or giving false information that may be imposed

is the loss of privileges accorded to prisoners of his

class. A prisoner may not be deprived of other privi-

leges because he refuses to give other information.

He may be questioned on any subject but he need

not answer nor may he be coerced into giving such

information.’’ (Emphasis in original.)

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This is in accord with Spaight, ‘‘Air Power and War

Rights’’, 340:

‘*‘Loss of privileges is the only punishment which

a refusal to state name or number entails upon a

prisoner, and he may not be deprived of any privi-

leges because he refuses to give other information.

He may, however, be questioned on any and every

subject, but he is not bound to reply.’’

Oppenheim (op. cit.) says (§ 126a, p. 294 of vol. 2):

‘“‘The (Geneva) Convention contains detailed pro-

visions concerning the information which the captor

is entitled to ask from the prisoners. Such informa-

tion is confined to a declaration of the prisoner’s

true names and rank, or his regimental number.’’

The immunity from giving testimony is, as stated above,

expressly granted by Article 5 of the Geneva Convention

on Prisoners of War—a treaty duly ratified by the United

States, and as such, the supreme law of the land. As

stated in Article VI of the Constitution, ‘‘all Treaties

made, or which shall be made, under the authority of

the United States, shall be the supreme Law of the

Land’’.’

POINT C

The immunity granted by the Geneva Convention

has not been revoked.

The statute under which the defendant is charged can-

not revoke the immunity of the treaty. At the outset,

it is clear that statutes should not be interpreted as in

conflict with treaties unless there is no other reasonable

1 Accord: Maiorano v. Baltimore and Ohio RR Co., 213 U. S.

268, 272-273 (1909), 5 Hackworth, Digest of International Law

(1942) 174-177.

10

interpretation but that the two are incompatible.’ If this

rule is applied, alien enemies and prisoners of war must

be held to be an implied exception from the scope of

the statute.

But if it is felt that there is a clear conflict between the

statute and the treaty, the treaty must prevail, as later

in time. ‘‘Where a treaty and an act of Congress are

wholly inconsistent with each other and the two cannot

be reconciled, the courts have held that the one later

in point of time must prevail’’.* ‘‘The latest expression

controls, whether it be treaty or an act of Congress’’.

The statute under which this charge is laid was enacted

on 24 January 1857 (c. 19, § 1, 11 Stat. 155). The treaty

was ratified seme 75 years later, on 16 January 1932

(47 Stat. 2021). The treaty therefore controls.

It may be contended that the amendment to the statute

(adding a reference to joint committees) in 1938 (52 Stat.

942), was a re-enactment of the statute which therefore

repealed the treaty. This is not its effect. In a similar

ease, a statute pre-dated a treaty, and was re-enacted,

in identical words, after the treaty was ratified. It was

urged that, because of the re-enactment, the statute was

later in time and should prevail. The Supreme Court

rejected this view, and said, per Brandeis, J.:

“‘The Treaty was not abrogated by re-enacting

§ 581 in the Tariff Act of 1930 in the identical terms

of the Act of 1922. A treaty will not be deemed

to have been abrogated or modified by a later statute

unless such purpose on the part of Congress has

been clearly expressed * * * Here, the contrary ap-

? Johnson v. Browne, 205 U. S. 309, 321 (1907).

*5 Hackworth, Digest of International Law (1942) 186.

* United States v. Thompson, 258 Fed. 257, 268 (1919).

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pears. The committee reports, and the debates upon

the Act of 1930, like the re-enacted section itself, make

no reference to the treaty of 1924. Any doubt as

to the construction of the section should be deemed

resolved by the consistent departmental practice ex-

isting before its re-enactment.’’ *

But even more conclusive than the above authority,

which is itself sufficiently determinative, are the rulings

of the Supreme Court that the statute must be construed

so as not to punish more +han NN a com-

mittee can lawfully require. Thus it does Mot punish

refusal to give testimony on a subject-matter not within

the inquiry powers of Congress, although it contains no

express reservation to that effect.° Certainly the com-

mittee of a single House of Congress cannot assume au-

thority in derogation of a solemnly ratified treaty or

even (without the most express language to that effect)

in contradiction of accepted principles of international

law.

The protection of the Geneva Convention re Prisoners

of War extends to the defendant. While under arrest

as an alien enemy, he was not under a duty to testify

hefore the House Un-American Activities Committee, and

therefore did not violate the statute under which he has

been indicted.

’ Cook v. United States, 288 U.S. 102, 119-120 (1933).

*In re Chapman, 166 U. S. 661 (1897) ; cf. Sinclair v. United

States, 279 U. S. 263 (1929) ; Townsend v. United States, 68 App.

D. C. 223, 95 Fed. (2d) 352, cert. denied 303 U. S. 664; Henry v.

Henkel, 207 Fed. 805 (S. D. N. Y. 1913); and see Jurney v. Mac-

Cracken, 294 U. S. 125, 151 (1935), citing In re Chapman with

approval.

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CONCLUSION

The conviction of the defendant-petitioner should

be reversed and the charge against him dismissed.

Respectfully submitted,

Lez Epstein,

Counsel for American Committee

for Protection of Foreign Born,

as Amicus Curiae,

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