United States was involved to the degree that the Constitution applied. None of the situations is precisely like this one because no treaty of this type has ever been implemented by the United States, but no reason appears to suggest that this situation should be treated differently. Indeed, it seems a less suitable case for the application of a rule of U.S. involvement than many others.

Extradition or Surrender by the United States.

In Holmes v. Laird, supra, the court sustained the surrender by the United States of American citizens to a foreign sovereign for trial according to procedures which the court assumed would deviate substantially from American practice. It specifically rejected the contention that the entanglement of functions made the United States responsible for the whole. It is but one of a large number of cases reaching the same result, including Wilson v. Girard, 354 U.S. 524 (1957). To like effect we have a number of cases in which persons being extradited to face foreign trials argued that it was unlawful to do so when the procedures awaiting them abroad fell below U.S. constitutional standards. The courts have consistently taken the position that:

The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. Neely v. Henkel, 180 U.S. 109, 122 (1901).

This rule has been consistently followed, so that a court could say "... we have discovered no case authorizing a Federal court, in a habeas corpus proceeding challenging extradition from the United States to a foreign nation, to inquire into the procedures which await the relator upon extradition." Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960), cert. denied, 364 U.S. 851 (1960).

Surrender to the United States.

In a number of cases prisoners have challenged the process whereby they were turned over to the U.S. authorities for trial. The general answer of the courts has been that quoted above from Wentz v. United States, 244 F.2d 172 (9th Cir. 1957), that what happened in Mexico is "no legal concern of an American court." The one exception to this line of cases has been United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), which stated that a district court should inquire into allegations that agents of the United States had not only participated in forcefully bringing the accused into the country from Uruguay via Brazil without benefit of any request for extradition, but had also been involved in torturing him. The subsequent cases, e.g., United States v. Lira, 515 F.2d 68 (2d Cir. 1975), show that this constitutes a very narrow exception to the rule of noninquiry.

Procurement of Evidence Abroad.

In a number of cases the accused has made the claim that evidence procured by foreign police forces in violation of the rules that would be applicable to U.S. law enforcement agencies should be excluded from an American trial. The courts have conceded that a confession obtained abroad under extreme pressures might be untrustworthy, and hence unusable, and have further stated that if

the foreign police acted so closely with U.S. law enforcement officials as to convert their activities into a joint venture, the results of a search might be excluded. Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968). For the rest, the courts have rejected arguments that wiretapping or searches unlawful under American law is a basis for exclusion in the United States:

. no prophylactic purpose is served by applying an exclusionary rule here since what we do will not alter the search policies of the sovereign Nation of Mexico. Brulay v. United States, 383 F.2d 345 (9th Cir. 1967).

The same result has been arrived at in an increasing number of cases. E.g., Birdsell v. United States, 346 F.2d 775 (5th Cir. 1965), cert. denied, 382 U.S. 963 (1966); United States v. Cotroni, 527 F.2d 708 (2d Cir. 1975); cf. Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 154-55 (D.D.C. 1976).

Confinement.

No case is found under which the United States confined an American citizen pursuant to an order of a foreign court- as distinguished from pretrial confinement pending surrender to the foreign state for trial or punishment. The one agreement under which that is called for has not been implemented, i.e., the Status of Forces Agreement with South Korea, 17 U.S.T. 1677, Article XXII(7) (b). The United States is authorized by statute and by the typical Status of Forces Agreement to enforce sentences of imprisonment handed down in its territory by the courts-martial of friendly foreign forces. In a terse per curiam opinion, the Supreme Court in Hirota v. McArthur, 338 U.S. 197 (1949), rejected an attempt to review the trial by an international war crimes tribunal of a Jananese prisoner held in U.S. custody. Under 22 U.S.C. 257 foreign seamen may be confined for two months pursuant to a determination by the consul of the relevant foreign country. See Dallemagne v. Moisan, 197 U.S. 169 (1905). Citizens taken into custody abroad by reason of their insanity may, under 24 U.S.C. 321, be transferred into American institutions. That law has been applied to a citizen who had been convicted of a crime abroad but moved to an institution for the criminally insane. De Marcos v. Overholser, 122 F.2d 16 (D.C. Cir. 1941).

While the international movement of prisoners has been rare. transfers between two States, between a State and the Federal government, and between Federal prisons have been quite frequent. (See 18 U.S.C. 4002, 5003.) Note that generally such transfers have been challenged in situations where the transfer was involuntary and away from the prisoner's home in contrast with those under the Treaty. The courts have sustained such moves despite claims that the transfer constituted cruel and unusual punishment, e.g., Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969); Hillen v. Director, 445 F.2d 510 (9th Cir. 1972), although one decision did indicate that a hearing should be granted prior to transfer. Hoitt v. Vitek, 361 F. Supp. 1238 (D.N.H. 1973), modified, 495 F.2d 219 (1st Cir. 1974). The decision in Meachum v. Fano, 427 U.S. 215 (June 1976), although arising in an intrastate context, does indicate that the courts will regard the question. where a prisoner is held as not a matter for judicial inquiry.

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