view of the fact that he has admitted before me that he forceably entered her room and robbed her of 20,000 yen. It is not for me to justify or derogate the findings of the Japanese tribunal. What is before me only is the question of whether the custody of this petitioner is being wrongfully claimed by the Armed Forces.
We may well conclude here that the petitioner had knowledge of the fact that the SOFA existed between the two Governments, and that it did involve an obligation as it related to him by the Armed Forces and certain rights as related to the Government of Japan. In any event no attack was made by petitioner's counsel in this regard, but only as to the argument that the Armed Forces should have disregarded the rights of Japan and returned him for discharge to the United States at the expiration of his enlistment.
Assuming the petitioner's argument as a fact that he would be entitled to be released in the United States at the end of his term of enlistment, I cannot, as he does, disregard his tie-in with the Japanese authorities, which occurred within his four year term of enlistment, when he was charged with the crime of robbery and attempted rape. He does not argue that the Government of Japan could have taken him into custody as of the date of the indictment and that the Government of Japan was not obligated to permit his custody to remain with the Armed Forces from that time forward until final disposition was made of the criminal proceedings against him.
Therefore, I conclude that his choice of custody with the Armed Forces as against commitment to a jail in Japan was a voluntary act willingly done for his own benefit. If he had not accepted this choice of custody with the Armed Forces, he would have permitted himself to be incarcerated in jail. If that had occurred, there would have been no extensions of his four-year enlistment and possibly no legal aid by the Armed Forces, although it is difficult to believe that the Government would have abandoned him in any case.
The fact remains that his presence in Japan was not as the result of any extensions of his enlistment which he may have signed, but rather of his own involvement resulting in the charges which compelled him to stay in Japan and be subject to the law of Japan. That he signed his extensions while in the voluntary custody of the Armed Service was more a concern of the petitioner to have counsel and the protective influence of the United States Government, while and during the time he was being tried rather than a coercion on the part of the Armed Forces.
There is no evidence that he had any duties to perform as a member of the Armed Forces in Japan. His area of duty was in Vietnam and there was no evidence of his transfer from there to any other place or line of duty. It is obvious that the Armed Forces routinely had his signature on the extensions only as a basis for classifying him as a member of the Armed Forces, entitled to counsel and government aid during the trial period in the courts of Japan. The evidence as presented here does not persuade me of any compulsion on the part of the United States Government for him to extend his time in the Armed Forces during such time as he was charged with the crime in Japan.
Since the United States Government had an obligation to retain custody of the petitioner pursuant to the SOFA with the Government of Japan, and the petitioner had an obligation to make himself available when wanted by the Government of Japan, neither the Government of the United States could breach its obligation to Japan, nor could the petitioner after the appellate proceedings became final, suddenly leave the jurisdiction of Japan. When he did leave the jurisdiction of Japan, it was incumbent upon the United States Government to arrest and seize him, wherever it could find him, and return him. I therefore conclude and hold that the arrest by the Armed Forces of the petitioner as of the time when he was arrested was a valid arrest and that the Government of the United States is entitled to his custody for the purpose of returning him to the jurisdiction where it was bound to hold him in custody.
There is no doubt that this petitioner has found himself in a precarious position and one may readily sympathize with him as an individual who, after enlistment, served his country well in a most disagreeable line of duty and that it was an incidental misfortune of war that brought him to the position where he committed the robbery, and which he might not otherwise have committed under ordinary circumstances. But while he deserves sympathy, justice must also be respected particularly when one is charged with the serious crime of burglary.
Stone came voluntarily to Japan. He voluntarily accepted the hospitality and benefits of that Government, and he may not now or here disavow the responsibility placed upon him, while in that country, of complying with its law as regarded his own conduct towards the citizens of Japan and the liability for such penalty as was imposed by that country's law for any breach thereof by him. He had an obligation to the Government of Japan and he cannot here disclaim it, anymore than can the Government of the United States repudiate its treaty obligations.
Also, we must recognize that while Federal courts must hesitate to interfere with the functioning of the Military or in the State processes of the United States Government and the various other nations with whom it must relate in international affairs, it is the function, nevertheless, of Federal courts to recognize and respect where and when the judicial process can or cannot interfere with the administrative or executive functions.
I hold, however, that it is incumbent upon Federal courts to examine the legal custody of members of the Armed Forces under exceptional circumstances in order to preserve the constitutional rights of such individuals. This is particularly true in a case such as this where a local member of the Air Force is being sought for removal to a far distant land such as Japan.
Since the facts of this case do not warrant an interference with the functions and obligations of the executive branch of the Government, the petition for a writ of habeas corpus will be denied.