MARSHALL, J., dissenting

456 U.S.

As the

peals found any legitimate reason for this delay. Court of Appeals' second panel concluded: "The primary reason for the two-year delay was either a disagreement between two groups in the Justice Department as to whether the case should be prosecuted, or just simple government bureaucracy (the contention of the involved Assistant U. S. Attorney)." 632 F. 2d 258, 262 (CA4 1980) (MacDonald II). Although the FBI did conduct further tests and investigation after the grand jury was convened, the Government has not demonstrated that it could not have pursued those leads earlier.

MacDonald undeniably asserted his right to a speedy trial vigorously and often, beginning in January 1972. Although the Government's delay in pressing formal civilian charges prevented MacDonald from filing a formal motion to dismiss on speedy trial grounds, he invoked his right in the only meaningful way open to him. Indeed, the strength of his efforts is a powerful indication that he has suffered serious personal prejudice. See Barker v. Wingo, 407 U. S., at 531. The last speedy trial factor, and the most difficult to evaluate on this record, is prejudice to the accused. Proof of actual prejudice to the defense at trial is not, of course, necessary to demonstrate a speedy trial violation. Moore v. Arizona, 414 U. S. 25 (1973) (per curiam). In Moore, this Court held that a defendant's speedy trial claim should not have been dismissed without further hearing, where the defendant was tried three years after he was first charged and 28 months after he demanded a speedy trial. In this case, the period of unjustified delay is at least two years, and MacDonald demanded an early disposition prior to that period. Because of this delay, a speedy trial violation could be found in this case, even without proof of actual prejudice at trial.

riod between the CID's initial reinvestigation and the submission of its report to the Justice Department in June 1972, since the prior dismissal for insufficient evidence warranted a more extensive investigation. The period subsequent to the civilian indictment was mainly consumed by judicial proceedings to evaluate MacDonald's speedy trial claims.

1

MARSHALL, J., dissenting

The record is clear that the delay caused MacDonald to suffer other forms of substantial prejudice, including continuing anxiety, intrusive publicity, legal expense, and disruption of a new civilian career.

The proof of actual prejudice at trial in this case, although somewhat speculative, does buttress MacDonald's speedy trial claim. It is possible that Stoeckley's trial testimony would have been less confused and more helpful to MacDonald at an earlier date. This testimony was critical to MacDonald, whose principal defense was that she was one of a group of intruders who committed the murders. Although Stoeckley was hardly a reliable witness, she did testify at trial that she had no memory of the events that night, in contradiction to some of her earlier out-of-court statements. See MacDonald II, 632 F. 2d, at 264-265. Her claim of loss of memory obviously became more credible with the passage of time. It is likewise possible that the inevitable "coaching" of Government witnesses prior to their testimony would have had lesser adverse impact on the defense, and could have been minimized more effectively by cross-examination, had the trial occurred earlier. See id., at 263-264. The unusual facts of this case, recited by the majority, suggest that slight differences in trial testimony may well have influenced the verdict."

Balancing these factors, I conclude that the Court of Appeals was correct in finding a speedy trial right violation. The Government undoubtedly has an interest in renewing the investigation of a charge that has been dismissed, in evaluat

For example, a babysitter who had testified in 1970 that she had not seen an ice pick in MacDonald's home had changed her story by the time of trial. Cross-examination by the defense did not cause her to reaffirm her earlier story. Tr. 3559-3560, 3567-3572.

'I therefore disagree with the majority that the speedy trial analysis should not be influenced by the evidentiary basis for the jury verdict. Ante, at 6, n. 6. Moreover it is obvious that respondent "does not challenge the jury verdict itself," ibid., only because that issue is not directly presented on this petition.

MARSHALL, J., dissenting

456 U. S.

ing carefully whether a second prosecution should be brought, and in avoiding undue haste, especially when the charge is murder. By the same token, when such a serious charge has already been brought, and when the defendant is suffering the consequences of that public charge and of a renewed investigation, the Government must not delay its decision for reasons of indifference or neglect. The Government's interest in reaching an informed decision whether to prosecute is certainly legitimate; but vague, unexplained references to internal disagreement about prosecution cannot justify more than two years of indecision. Because the record in this case reveals no legitimate reason for a substantial period of pretrial delay, and because MacDonald may have suffered prejudice at trial and clearly suffered other forms of prejudice, I would affirm the Court of Appeals' ruling that his speedy trial right was violated.

IV

The majority's opinion in this case is a disappointing exercise in strained logic and judicial illusion. Suspending application of the speedy trial right in the period between successive prosecutions ignores the real impact of the initial charge on a criminal defendant and serves absolutely no governmental interest. This Court has warned before against “allowing doctrinaire concepts. . . to submerge the practical demands of the constitutional right to a speedy trial." Smith v. Hooey, 393 U. S. 374, 381 (1969). The majority fails to heed that advice.

For the foregoing reasons, I dissent.

Syllabus

WEINBERGER, SECRETARY OF DEFENSE, ET AL. v. ROSSI ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1924. Argued February 22, 1982-Decided March 31, 1982 In 1968, the President entered into an agreement with the Republic of the Philippines providing for the preferential employment of Filipino citizens at United States military bases in the Philippines. In 1971, Congress enacted § 106 of Pub. L. 92-129, which prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty." Thereafter, respondent United States citizens residing in the Philippines were notified that their jobs at a naval base there were being converted into local national positions in accordance with the 1968 agreement. After unsuccessfully pursuing an administrative remedy, respondents then filed suit in Federal District Court, alleging that the preferential employment provisions of the agreement violated § 106. The District Court granted summary judgment for petitioners, but the Court of Appeals reversed.

Held: The word "treaty" as used in § 106 includes executive agreements, such as the one involved here, and is not limited to those international agreements concluded by the President with the advice and consent of the Senate pursuant to Art. II, § 2, cl. 2, of the Constitution. Pp. 28-36.

(a) In view of the fact that Congress has not been consistent in various other Acts in distinguishing between Art. II treaties and other forms of international agreements, it is not dispositive that Congress in § 106 used the term "treaty" without specifically including international agreements that are not Art. II treaties. But in the case of a statute such as § 106 that touches upon the United States' foreign policy, there is a particularly justifiable reason to construe Congress' use of "treaty" to include international agreements as well as Art. II treaties. Cf. B. Altman & Co. v. United States, 224 U. S. 583. To construe § 106 otherwise would mean that Congress intended to repudiate 13 existing executive agreements, including the one in this case, providing for preferential hiring of local nationals. Pp. 28-32.

(b) The legislative history of § 106 provides no support for attributing such an intent to Congress, but rather discloses that Congress was primarily concerned with the financial hardship to American servicemen

that resulted from employment discrimination against American citizens at overseas bases. Pp. 32-36.

206 U. S. App. D. C. 148, 642 F. 2d 553, reversed and remanded.

REHNQUIST, J., delivered the opinion for a unanimous court.

Barbara E. Etkind argued the cause for petitioners. With her on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, William G. Kanter, and Freddi Lipstein.

Randy M. Mott argued the cause for respondents. With him on the brief were Raymond J. Rasenberger, Charles J. Simpson, Jr., J. Stanley Pottinger, Warren L. Dennis, and Carolyn Dye.*

JUSTICE REHNQUIST delivered the opinion of the Court. Section 106 of Pub. L. 92-129, 85 Stat. 355, note following 5 U. S. C. § 7201 (1976 ed., Supp. IV), prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty." The question in this case is whether "treaty" includes executive agreements concluded by the President with the host country, or whether the term is limited to those international agreements entered into by the President with the advice and consent of the Senate pursuant to Art. II, §2, cl. 2, of the United States Constitution. This issue is solely one of statutory interpretation.

I

In 1944, Congress authorized the President, "by such means as he finds appropriate," to acquire, after negotiation with the President of the Philippines, military bases "he may deem necessary for the mutual protection of the Philippine Islands and of the United States." 58 Stat. 626, 22 U. S. C. § 1392. Pursuant to this statute, the United States and the

*Briefs of amici curiae urging affirmance were filed by Mark D. Roth for the American Federation of Government Employees, AFL-CIO, et al.; and by Cornelius B. Kennedy for Congressman William V. Chappel, Jr., et al.