B. Order of the Military Governor Confirming the Sentence Imposed on Defendant Flick HEADQUARTERS, EUROPEAN COMMAND Office of the Commander-in-Chief Order with Respect to Sentence of Friedrich Flick In the case of the United States of America against Friedrich Flick, et al, tried by United States Military Tribunal IV, Case No. 5, Nuremberg, Germany, the defendant Friedrich Flick, on 22 December 1947, was sentenced by the Tribunal to imprisonment for 7 years. A petition to modify the sentence, filed on behalf of the defendant by Dr. Rudolph Dix, his defense counsel, has been referred to me pursuant to the provisions of Military Government Ordinance No. 7. I have duly considered the petition and the record of the trial, and in accordance with Article XVII of said Ordinance, it is hereby ordered that: The sentence imposed by Military Tribunal IV on Friedrich Flick be, and hereby is, in all respects confirmed. [Signed] LUCIUS D. CLAY General, U.S.A. Commander-in-Chief, European Command and Military Governor XIII. ORDER OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, 6 APRIL 1948, DISMISSING PETITION BY DEFENDANT FLICK FOR A WRIT OF HABEAS CORPUS * IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA The above matter coming on regularly to be heard on the 6th day of April 1948, and upon consideration of oral argument of counsel and of the Petition for Writ of Habeas Corpus and the return of the respondents to the rule to show cause filed herein on the 6th day of April 1948, and it appearing to the Court that the Petitioner is not confined within the District of Columbia and is therefore not within the territorial jurisdiction of this Court, it is by the Court this 6th day of April 1948: ORDERED that the Rule to Show Cause is discharged and the Petition for a Writ of Habeas Corpus dismissed for lack of jurisdiction. ALEXANDER HOLTZOFF Justice * Reported in Federal Supplement, vol. 76, p. 979 (1948). XIV. DECISION OF THE UNITED STATES COURT OF AP- FOR THE DISTRICT OF COLUMBIA UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT Friedrich Flick, appellant V. Louis Johnson, Secretary of Defense, et al., appellees* Appeal from the District Court of the United States for the District of Columbia (now United States District Court for the District of Columbia). Argued December 16, 1948 Decided May 11, 1949 Messrs. George T. Davis and Earl J. Carroll of the Bar of the Supreme Court of California, pro hac vice, by special leave of Court, with whom Mr. Fred W. Shields was on the brief, for appellant. Mr. John D. Lane, Assistant United States Attorney, with whom Mr. George Morris Fay, United States Attorney, was on the brief, for appellees. Before Stephens, C. J., and Wilbur K. Miller and Proctor, J. J. PROCTOR, J.: Appellant, a German citizen, is in custody in Germany, within the American Zone of Occupation. He is under custody of American Army forces, serving a sentence of imprisonment imposed by a tribunal sitting in said zone. A petition for writ of habeas corpus was filed in his behalf in the United States District Court for the District of Columbia. The Secretary of Defense, the Secretary of the Army, the Provost Marshal General and the Commanding General, United States Occupied Zone of Germany, were named as respondents. Upon a rule to show cause all answered except the Commanding General, who was not served. After hearing, the court discharged the rule and dismissed the Federal Reporter, vol. 174, 2d series, p. 983 (1949). petition "for lack of jurisdiction," in that petitioner was not confined within the territorial jurisdiction of the court. The decision (76 F. Supp. 979, (1948)), rendered shortly before Ahrens v. Clark, 335 U. S. 188, was based upon McGowan v. Moody, 22 App. D. C. 148, approved in Sanders v. Allan, 69 App. D. C. 307, Sanders v. Bennett, 80 U. S. App. D. C. 32. In the Ahrens case, the Supreme Court upheld denial of the writ upon the ground that the petitioners' confinement was not within the territorial limits of the federal court to which they applied. Their detention was, in fact, within the jurisdictional area of another district court. It is here argued that the broad language in the text of the majority opinion in that case is qualified by a marginal note (p. 192) reserving decision as to a case where confinement was beyond the territorial limits of any district court. The dissenting opinion so interprets the notation. This court did likewise in an opinion filed April 15, 1949, in Eisentrager, et al., v. Forrestal, et al., No. 10053. There it is held that Germans in military custody in the American zone of occupation in Germany, serving sentences of a United States Military Commission, and thus in custody under or by color of the authority of the United States (28 U. S. C. 2241, formerly 28 U. S. C. 451, 452, 453), may sue for the writ in the District of Columbia, naming as respondents officials at the seat of Government, through whose direction the actual jailer may be required to act. In view of that decision we shall not discuss a basic question, which naturally arises, i. e., whether the writ of habeas corpus is available to an enemy alien on foreign soil. This case presents an additional question of a fundamental character. Was the court which tried and sentenced Flick a tribunal of the United States? If it was not, no court of this country has power or authority to review, affirm, set aside or annul the judgment and sentence imposed on Flick. Hirota, et al. v. General of the Army Douglas MacArthur, et al., Petitions Nos. 239, 240, 248, Misc., October Term, 1948, Supreme Court of the United States, decided December 20, 1948. We must, therefore, inquire into the origin of the Flick tribunal and the source of its power and jurisdiction to determine whether it was a court of the United States. Upon the surrender of Germany, the four victorious powers, the United States, Great Britain, France, and Russia, completed military control of the conquered land. Agreeably to plan, the armies of each occupied a separate zone. It was agreed that supreme authority over Germany would be exercised, on instructions from their Governments by the Commanders in Chief, "each in his own zone of occupation, and also jointly, in matters affecting Germany as a whole." At the same time a "Control Council" was constituted, composed of the four Commanders in Chief, as the supreme governing body of Germany. This plan of operation was expressly limited to the period of occupation "while Germany is carrying out the basic requirements of unconditional surrender." (That period has continued since, and still prevails.) Arrangements for the subsequent period were to be "the subject of a separate agreement." (Declaration of Berlin, June 5, 1945, 12 U. S. Dept. of State Bull. 1054.) In support of the foregoing arrangement for the temporary government of Germany, the President of the United States, acting through his Joint Chiefs of Staff, directed the Commander in Chief of the American Forces in Germany, in his capacity as Military Governor of the American Zone of Occupation, to carry out and support, in that Zone, the policies agreed upon in the Control Council, whose authority "to formulate policy and procedures and administrative relationships with respect to matters affecting Germany as a whole will be paramount throughout Germany." This document confirms and reinforces the supreme authority with which the American Military Governor, in his capacity as Zone Commander, was clothed by the Council. (13 U. S. Dept. of State Bull. 596, October 17, 1945.) In order to give effect to the terms of the Moscow Declaration of October 30, 1943, (9 U. S. Dept. of State Bull. 310) and the London Agreement of August 8, 1945, and the Charter issued pursuant thereto, (13 U. S. Dept. of State Bull. 222) and "in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal * * *"* the Control Council enacted "Law No. 10," December 20, 1945 (15 U. S. Dept. of State Bull. 862 (1946)). This act recognizes many crimes, which are classified and defined in broad terms. It prescribes punishment for those found guilty, and provides that "The Tribunal by which persons charged with offenses hereunder shall be tried and the rules and procedure thereof shall be determined or designated by each Zone Commander for his respective Zone.” * (Sec. 2, Art. III, C. C. Law No. 10, supra.) The Moscow Declaration and the London Agreement, referred to above, proclaimed the intention of the United Nations to bring war criminals to justice. To that end the London Agreement provided for establishment "after consultation with the Control Council for Germany" * of an International Military Tribunal for the trial of war criminals whose offenses had no particular geographical location. It was this court which tried Goering and other high Nazi leaders. The Agreement expressly provided that it should not prejudice the jurisdiction or the powers of any *Italics supplied. |