One of the consequences of the transfer of prisoners within the United States is that a prisoner tried under system "X" winds up in a prison belonging to system "Y" which has different rules as to the conduct of trials. For example, a prisoner might be transferred from a State after a conviction based on a trial based on an information so that he served his sentence in a prison managed by Federal authorities who constitutionally must proceed by way of indictment. It has not been suggested that such a transfer makes the conviction a Federal one and thus renders it constitutionally inadequate.

Enforcement of Foreign Judgments.

In various situations foreign criminal convictions are given significant collateral consequences by the U.S. legal system. Aliens convicted abroad of crimes involving moral turpitude are not admissible to the United States. In Cooley v. Weinberger, 518 F.2d 1151 (10th Cir. 1975), an Iranian conviction for murder was held to be a bar to a claim for social security benefits derived through the deceased. Somewhat further afield, foreign civil judgments are given enforcement here in various cases, even where the courts recognize that the foreign procedures differ from American, even to the extent of falling below U.S. constitutional standards. For a recent summary of the rules here see materials assembled in Steiner & Vagts, Transnational Legal Problems, pp. 767-796 (2d ed. 1976). Going one step further, one finds that the act of state doctrine, where it applies, causes American courts to enforce expropriations of property carried out by a foreign government even though the same transaction, if carried out by the United States, would have been in clear violation of the Fifth Amendment guarantee against uncompensated takings. Banco Nacional v. Sabbatino, 376 U.S. 398 (1964). Thus, there are a wide variety of situations, of varying degrees of persuasiveness in this context, in which the United States has recognized and enforced actions taken abroad which cut substantially into the rights which individuals, including American citizens, would have had if the actions had been taken within the United States.

In evaluating the prisoner transfer program in relation to these precedents, one should recognize that it involves much less of an inroad into the rights of an American as measured by the United States Constitution. It would obviously be unconstitutional for an American trial abroad to take place under foreign procedures not known to our Constitution. Similarly, it would be intolerable to have American trial safeguards circumvented by collusion between American and foreign law enforcement agencies. The transfer arrangement does not affect the quality of any American trial. A transfer by American authorities to a foreign government prior to trial ensures that the accused will have neither an American trial nor American imprisonment. A transfer of a convicted prisoner back to the United States assures him that he will at least be confined subject to the protections of the Eighth Amendment. It might have been preferable in theory to obtain an arrangement providing for both trial and confinement to be under the auspices of the United States. However, it is plain that neither country could have accepted a treaty that made such inroads into

its territorial sovereignty. The Treaty should not be invalidated because, having achieved much for the prisoners in Mexico, it could not go on to reach their other problems.3

IV. The Consent of the Accused Undercuts the Constitutional Objections to the Transfer of Prisoners.

If the transfer of prisoners from a Mexican to an American prison involved a significant surrender of any rights possessed by the prisoners there would be a question as to whether the prisoner's consent would be an effective waiver. However, as we have seen, the prisoners never had a right to be tried in a Mexican court according to U.S. constitutional procedures. All that the prisoners have done is to surrender the right to serve a sentence in a Mexican prison in favor of the option to serve that sentence in an American prison. By so doing, they indicate that the American prison is, from their point of view, preferable. This obviates questions raised in the cases involving internal American transfer, supra, about the limitations on tranfers against a prisoner's will and in circumstances that increased, rather than decreased, the severity of the prisoner's sentence.

However, a strong argument can be made in support of the proposition that consent is an adequate separate basis for sustaining the continued imprisonment within the United States of one originally convicted in Mexico. The cases hold that it is constitutional to present individuals with some very difficult and unpleasant choices, so long as they are lawful ones. Recent decisions of the Supreme Court have made it apparent that a plea of guilty is effective as a waiver of almost all categories of constitutional claims as to trial safeguards in American law. E.g., Tollett v. Henderson, 411 U.S. 258(1973). Similarly, an American citizen has been held to have effectively waived the basic right of citizenship itself, even when under the pressure of a threat of being drafted to serve in a war he found repellent. Jolley v. INS, 441 F.2d 1245 (5th Cir. 1971). Thus, it appears that the consent of the accused to transfer under the terms of the Treaty will in all probability be found sufficient to waive effectively any claim to a constitutional review of the Mexican proceedings according to U.S. standards. Conclusion

It thus appears that an American has no basis for a constitutional objection to being tried in Mexico according to the procedures prevailing there and that his being transferred to the United States to serve the remainder of his sentence, under conditions which the authorities and the prisoner agree to be preferable, does not cause a new right to arise at that time. The involvement of the United States in executing on behalf of Mexico the sentence of a Mexican court does not retroactively convert the proceedings into a U.S. trial. Whatever right the prisoner had in this regard should in any case be regarded as knowingly waived by his consent to be transferred.

The Status of Forces Agreement with South Korea, TIAS 6127, 17 UST 1677, art. XXII (7)(b).

2European Convention on the International Validity of Criminal Judgments, developed in the Council of Europe in 1970.

3Cf Holmes v. Laird, supra, in which the Court recognized that Status of Forces Agreements obtained as much American control over the trials in question as could be achieved under the circumstances.

Dept. of State File No. P76 0192-2389.

U.S.-Spain

The Agreement in Implementation of the Treaty of Friendship and Cooperation between the United States and Spain, signed on January 31, 1976 (TIAS 8361; 27 UST), entered into force on September 21, 1976, simultaneously with the treaty (TIAS 8360; 27 UST), and contains status of forces provisions with respect to criminal jurisdiction over U.S. personnel in Spain and claims for damages in Spanish territory. Procedural Annex XVI to the agreement sets forth requirements regarding waiver of the primary right to exercise criminal jurisdiction over U.S. personnel in Spain.

The relevant provisions of the agreement and annex follow:

Section II

CRIMINAL JURISDICTION AND CLAIMS

Article XIV

United States Personnel in Spain are obligated to respect the laws in force in Spain and to abstain from all activity inconsistent with the spirit of the Treaty existing between the United States and Spain, in particular, from all political activity in Spain. The United States assumes the obligation of adopting necessary measures to this end.

Article XV

1. Subject to the provisions of this Section:

a. The military authorities of the United States shall have the right to exercise within the territory under Spanish jurisdiction such criminal and disciplinary jurisdiction as is conferred on them by the law of the United States over United States Personnel in Spain for offenses punishable under the military law of the United States.

b. The authorities of Spain shall have the right to exercise jurisdiction over United States Personnel in Spain with respect to offenses committed within the territory under Spanish jurisdiction and punishable by the law of Spain.

2. a. The military authorities of the United States shall have the right to exercise exclusive jurisdiction over United States Personnel in Spain with respect to offenses. including offenses relating to its security, punishable by the law of the United States, but not by the law of Spain.

b. The authorities of Spain shall have the right to exercise exclusive jurisdiction over United States Personnel in Spain with respect to offenses, including offenses relating to the security of Spain, punishable by its law, but not by the law of the United States.

c. For the purposes of this paragraph and of paragraph 3 of this Article a security offense against a State shall include:

(1) treason against the State;

(2) sabotage, espionage or violation of any law relating to official secrets of that State, or secrets relating to the national defense of that State.

3. For the sole purpose of determining whether an act or omission is a punishable offense under the law of Spain or under the military law of the United States, or both. the interpretation of the law of Spain by the Spanish authorities shall be accepted by the Government of the United States, and the interpretation of the military law of the United States by the authorities of the United States shall be accepted by the Spanish authorities. When, by application of the foregoing provisions, it is determined that an act or omission is a punishable offense under both the law of Spain and the military law of the United States, thereby giving rise to concurrent rights to exercise jurisdiction, the following rules shall be applied:

a. The military authorities of the United States shall have the primary right to

exercise jurisdiction over United States Personnel in Spain subject to the military law of the United States for the following offenses punishable under such law:

(1) offenses solely against the property or security of the United States, or offenses solely against the person or property of a member of the United States Personnel in Spain;

(2) offenses arising out of any act or omission done in the performance of official duty.

b. The authorities of Spain shall have the primary right to exercise jurisdiction over United States Personnel in Spain in relation to:

(1) offenses, not included within the provisions of subparagraph 3.a.(2) of this Article, solely against the property or security of the Spanish State, or solely against the person or property of Spanish nationals;

(2) any other offense over which the military authorities of the United States do not possess the primary right to exercise jurisdiction under subparagraph 3.a. of this Article.

4. For the appropriate protection of military discipline, whenever a member of the United States Personnel in Spain is prosecuted in Spanish courts, only the courts of ordinary jurisdiction will have competence to try him.

Article XVI

1. When a member of the United States Personnel in Spain other than a dependent is charged with an offense by the Spanish authorities, the military authorities of the United States, if the circumstances warrant, will issue a certificate verifying the fact that the alleged offense arose out of an act or omission done in the performance of official duty. The certificate will be transmitted to the appropriate Spanish authorities, by whom it will be considered sufficient proof of such fact for the purpose of paragraph 3.a.(2) of Article XV of this Agreement, without prejudice to the provisions of paragraph 2 of this Article.

2. In those cases where the appropriate authorities of Spain consider that discussion of a certificate of official duty, issued in accordance with paragraph 1 of this Article, is required, it shall be made the subject of review in the Joint Committee for Politico-Military Administrative Affairs, provided a request for review is received by the Committee within ten days from receipt of the certificate by the Spanish authorities. However, if within the ten day period, the Spanish authorities notify the Committee that for special reasons they wish to consider the matter further, such authorities shall have an additional period of ten days within which to present a request to the Committee for review. The Committee will complete its review expeditiously and in any event within thirty days from the receipt of the request for review.

Article XVII

If the Government having the primary right to exercise jurisdiction under paragraph 3 of Article XV of this Agreement decides not to exercise jurisdiction, it will notify the authorities of the other Government as soon as possible. The authorities of the Government having the primary right shall give sympathetic consideration to a request from the authorities of the other Government for a waiver of its right.

Article XVIII

1. Within the limits of their respective legal powers, the military authorities of the United States and the authorities of Spain shall mutually assist each other in the arrest of members of the United States Personnel in Spain who are in Spanish territory.

2. The authorities of Spain shall immediately notify the military authorities of the United States of the arrest of any member of the United States Personnel in Spain. 3. The custody of a member of the United States Personnel in Spain, who is legally subject to detention by the military authorities of the United States and over whom Spanish jurisdiction is to be exercised, shall be the responsibility of the United States military authorities, at their request, until the conclusion of all judicial proceedings, at which time the member will be delivered to Spanish authorities at their request for execution of the sentence. Nevertheless, at the conclusion of a trial at which the sentence of the court includes confinement for more than one year, the member shall, if ordered by the judge of the court, be delivered to the Spanish authorities for execution of the sentence even if the verdict of the trial is being appealed. During periods of custody by the United States military authorities, those authorities, within the legal powers given them by the military law of the United States, shall give full consideration to the decisions of the competent Spanish authorities

regarding conditions of custody. The United States military authorities shall guarantee his immediate appearance before the competent Spanish authorities in any proceedings that may require his presence and, in any case, his appearance at the trial.

4. In criminal proceedings in Spanish courts against a member of the United States Personnel in Spain who is legally subject to detention by the military authorites of the United States, the following rules will be followed:

a. If the court grants provisional liberty without bail for said member, the guarantees of paragraph 3 of this Article will satisfy the "apud acta" obligation of periodic reporting called for in Spanish laws.

b. If the court decrees provisional confinement without bail or the bail decreed has not been provided, the grant of custody of the member to United States military authorities will imply, in principle, the retention of the member in a military installation in which facilities have been granted to the United States, with restriction of movement and effective vigilance. In such case, if, because of the requirements of United States military law, the nature of the restraint initially imposed or thereafter adopted is other than that decreed by the court, United States military authorities will notify Spanish authorities of the nature of the restraint imposed, without prejudice to the guarantees provided in paragraph 3 of this Article being complied with diligently, and in such cases the decision will rest with the court as to the extent to which such alternate restraint may be credited against any sentence to confinement eventually adjudged.

c. If the court accepts bail from said member, such bail will be considered to replace the guarantees provided in paragraph 3 of this Article.

Article XIX

Confinement imposed by a Spanish court upon a member of the United States Personnel in Spain shall be served in penal institutions agreed upon for that purpose by the Joint Committee for Politico-Military Administrative Affairs. The Spanish authorities fully guarantee to the authorities of the United States the right to visit such persons at any time and to provide them with such material assistance as the authorities of the United States deem appropriate, in accordance with the pertinent Spanish prison regulations.

Article XX

1. The military authorities of the United States and the authorities of Spain shall assist each other in the carrying out of all necessary investigations into offenses, and in the collection and production of evidence, including the seizure and, in proper cases, the delivery of objects connected with an offense. The delivery of such objects may, however, be made subject to their return within the time specified by the authority delivering them.

2. The military authorities of the United States and the authorities of Spain shall assist each other in obtaining the appearance of witnesses necessary for the proceedings conducted by such authorities within Spain.

3. The military authorities of the United States and the authorities of Spain shall notify each other of the disposition, including the sentence if any, of all cases in which there are concurrent rights to exercise jurisdiction.

Article XXI

1. The military authorities of the United States may not carry out a death sentence in Spanish territory.

2. A death sentence imposed upon a member of the United States Personnel in Spain by the Spanish authorities in a case over which Spain exercises jurisdiction under the provisions of this Agreement may be carried out only by a method of execution utilized under both Spanish and United States law.

Article XXII

Where an accused has been tried in accordance with the provisions of this Agreement either by the military authorities of the United States or the authorities of Spain and has been acquitted, or has been convicted and is serving, or has served. his sentence, or his sentence has been remitted or suspended, or he has been pardoned, he may not be tried again for the same offense within the territory of Spain by the authorities of the other State. However, nothing in this Article shall prevent the military authorities of the United States from trying a military member of the United States Personnel in Spain for any violation of rules of discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of Spain.