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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1949
- **Citation:** 338 U.S. 883

## Text

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Geneva Convention has not been revoked 9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.

—

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

4

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0380%3A15. Public record. Not legal advice.