of the "supremacy clause" 22 of the Federal Constitution in the case of McCulloch v. Maryland.23

Premised on the accepted concept of "Federal supremacy," the proposition that the national military forces may legally insist upon freedom from unlawful interference in the performance of their legitimate functions follows, both logically and reasonably. To reason otherwisei.e., that demonstrators, unlawfully propagandizing certain views by attempting to frustrate a national military function, may prevail in such an endeavor because the commander concerned is powerless to act-would, at least in theory, impose an intolerable burden upon the ability of the Government to provide for the national defense.

It should be noted that, in taking reasonable and necessary measures to ensure the accomplishment of his mission, a military commander would not be assuming a law enforcement role. Any law enforcement that might result from such circumstances would be merely incidental to the primary objective of fulfilling the mission concerned.

In the exercise of their discretion in this area, however, commanders should give consideration, if time permits, to the feasibility of requesting civil assistance before employing their own service personnel. If the available civil authorities are in fact capable of expeditiously remedying the interference, it would probably be advisable to conserve military resources.

SOME PREPARATORY MEASURES

A demonstration of any sort requires, by definition, some degree of notoriety if it is to achieve its objectives. In order to guarantee that sufficient publicity will attach to a given public display of protest, demonstration organizers are often forced to disclose their plans in advance, at least to the extent required to enable the news media to be on hand for the action. Close liaison with the local news media (usually via the public affairs officer) may serve to forewarn a commander of an impending harassment of his activities by civilian demonstrators. The receipt of this advance information could provide the time necessary for planning effective countermeasures with the civil authorities, and perhaps preclude the possibility of a requirement for the use of troops.

22. The United States Constitution, Article VI, clause 2, provides: This constitution, and the laws of the United States which shall be made in pursuance thereof; * * * shall be the supreme law of the land.

23. 17 U.S. (4 Wheat.) 316 (1819).

It should also be recognized that coping with demonstrators in relatively remote locations, with any frequency, may place an almost intolerable burden on local police resources, especially when these requirements are unexpected. For this reason, local officials may be wont to encourage the military to employ its own resources in contending with civilian demonstrations and thereby relieve pressure on the local budget. Commanders should not be misled into construing such acquiescence on the part of local authorities as a legal grant of authority for the employment of Federal forces. State and local authorities cannot, of course, authorize the employment of the Federal Armed Forces under any circumstances.

In view of the misunderstandings that may occur in this regard, close coordination and cooperation between naval and civil authorities are perhaps the most effective preparatory methods for preventing civil demonstrations from adversely affecting the fulfillment of a naval mission.

Despite the circumscriptions on the use of the Armed Forces to assist civil authorities in strictly law-enforcement situations, commanders are not prohibited from providing other forms of assistance. With regard to unified Armed Forces participation in the control of civil disturbances, the Joint Chiefs of Staff have instructed commanders to cooperate to the fullest possible extent with appropriate civil authorities by consulting with and advising such nonmilitary agencies so as to encourage the development of adequate preventive measures and plans to obviate the necessity of Federal military intervention.24 In addition to advising and conferring with civil authorities with a view toward eliminating the possibility of a requirement for the use of troops, a naval commander may, under applicable regulations, loan equipment to and provide facilities for the use of civil authorities during emergency civil disturbance situations.25

SUMMARY AND CONCLUSION

In summary, it is clear that there are circumstances in which a naval commander may justifiably employ troops in civil disturbance situations. There is at least some measure of legal support in statutes, regulations, authoritative decisions, and established precedents for the use of troops by a commander, on his own respon

24. JCS, supra note 20.

25. MARCORMAN, para. 4002.6; Navy Reg., art. 07865.

sibility, during (1) an imminent emergencywhich may or may not threaten Government property or personnel-not permitting time for seeking instructions from higher authority, and (2) an emergency which directly threatens the security of government property or personnel. These same authorities also permit the inference that a commander may, on his own responsibility, take reasonable and necessary measures to ensure the carrying out of his mission regardless of whether the prevailing circumstances constitute an emergency. In the latter instance, the question whether the Federal military forces would be infringing on the law enforcement prerogatives of the civil authorities does not arise, since any law enforcement that might result in such circumstances would be merely incidental to the primary objective of assuring the accomplishment of a task which is a legitimate function of the Federal Government directly related to national defense. In all other types of civil disturbances, however, it appears that the naval commander concerned must request instructions from the Navy Department before committing naval personnel to assist in the control of such situations.

Although military commanders may use troops on their own responsibility during certain emergency situations, the question of what constitutes an imminent emergency must necessarily be determined by the commander confronted with such a problem. This determination may well be a very difficult one, since this element may occur in a variety of forms. For example, in the incident cited in this article, the demonstrators boarded vehicles transporting munitions and in some instances secured themselves to bombs loaded on the trucks. It can be forcefully reasoned that the conduct of these demonstrators, in tampering with explosives, constituted an imminent emergency not only threatening the destruction of Government property, but also posing a perilous threat to the public safety. Following this reasoning, one might well conclude that, since the civil authorities could not arrive at the scene of the demon

stration for upwards of thirty minutes, immediate action on the part of the commander concerned would be required to preclude the possibility of an explosion. Such action would most likely require the use of troops to remove and restrain the protesters. Thus, in this particular situation, it appears that the commander, in using troops, would be operating well within the "military necessity" and "property protection" precepts outlined earlier in this article.

As indicated earlier, the circumscribing laws and policies which prohibit the Federal armed forces from aiding in the execution of the laws are probably not intended to completely proscribe action by commanders in situations where the threat to military personnel or property is such that fulfillment of a national military mission might be adversely affected. The reason for the failure of the current laws and policies to expressly accommodate this type of demonstration, i.e., one which directly interferes with a military mission, apparently is that such events have, until recent years, occurred too infrequently to cause real concern on the part of the Federal Government. If the level of this type of activity continues to increase, however, it might be desirable to seek a modification of existing laws and policies to expressly permit the military establishment the use of some "selfhelp" measures to ensure freedom from interference in carrying out domestic assignments. Such a modification could be based on the rationale that military functions directly related to national security take precedence over local law-enforcement responsibilities and should, therefore, be placed beyond the scope of the normal proscriptions relating to the use of military forces in civil disturbances.

Until such modifications are accomplished, however, commanders must operate within the limited precepts now available—that is, the doctrine of military necessity, the duty to safeguard Government personnel and property, the requirement to fulfill a military mission, and preparatory measures such as those briefly discussed in this article.

TH

HE JUNE 1964 issue of the JAG JOURNAL contains an excellent explanation of the an "State of the Law" on the right to speedy trial.1 The law in this regard has not changed since that time, therefore this article will not attempt to restate the law. The attention of the interested reader is invited to the former article. This discussion is intended to call attention to the fact that the "speedy trial" problem is still with us, and to make some suggestions directed toward eliminating it. THE PROBLEM

The Congress, in enacting the Uniform Code of Military Justice, sought to guarantee each accused the right to a speedy trial by providing in Article 10 2 thereof that:

Any person subject to this code charged with an offense under this code shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him. The issue of whether the accused has been denied his right to a speedy trial may arise in any case in which there has been an undue delay in disposing of the charges against him. Confinement or arrest of the accused while awaiting trial aggravates the situation, and in some cases it may result in a denial of due process. accused is entitled to dismissal of the charges

The

*Captain Ross is Director of the Military Justice Division in the Office of the Judge Advocate General. He was awarded the LL.B. degree by St. Johns University School of Law in 1948. He is a member of the Bars of New York, the U.S. Supreme Court and the Court of Military Appeals.

1. 18 JAG J. 290.

2. 10 U.S.C. § 810.

3. United States v. Schalck, 14 USCMA 371, 34 CMR 151 (1964).

against him if, under all the circumstances of the case, the delay was caused by the government's lack of reasonable diligence or was due to its purposeful or oppressive design.⭑

The Congress has expressed the policy that general court-martial charges against an accused should be preferred, investigated, and forwarded to the officer exercising general court-martial jurisdiction within eight days after the accused is ordered into arrest or confinement. In order to "help insure compliance with" the policy, the Congress added the requirement of a written report to the GCM authority whenever forwarding the charges within eight days is not practicable. The speedy trial implications of the policy, even though it is expressly limited to general court-martial cases, have been applied equally to special courtmartial cases by Navy boards of review."

In United States v. McKenzie, the Court of Military Appeals noted that Article 33 has been "observed more often in the breach than in following its clear terms," and suggested that "the attention of all concerned with the processing of court-martial matters be forcibly drawn to its unambiguous command." Notwithstanding this comment, improvement in the processing of cases is still needed. In recent months, several cases have been reversed by Navy boards of review on speedy trial issues, 10 and in other cases charges have been dismissed at the trial level for the same reason.

4. United States v. Callahan, 10 USCMA 156, 27 CMR 230 (1959). 5. UCMJ, Art. 33, 10 U.S.C. § 833.

6. S. Rep. 486, 81st Cong., 1st Sess. 17 (1949).

7. NCM 66-1039, Niccum, 29 Sep 1966 (unpublished); NCM 66– 2402, Jennings, 10 Nov 1966 (unpublished).

8. 14 USCMA 361, 34 CMR 141 (1964).

9. Id. at 364, 34 CMR at 144.

10. NCM 66-1039, Niccum, supra note 7; NCM 66-2402, Jennings, supra note 7; NCM 66–2232, Mayfield, 1 Nov 1966 (unpublished); NCM 66-1831, Lamphere, 14 Sep 1966 (unpublished, certified to USCMA).

Although there are undoubtedly many and varied factors which cause delay in processing court-martial cases, or which otherwise contribute to the speedy trial problem, several specific ones seem to recur. It is to these specific factors that attention ought to be given, in order that improvement may be made in appropriate cases. They are as follows:

1. Unnecessary pretrial confinement.

2. Failure to comply with Articles 10 and 33. 3. Prolonged criminal (police) investigation. 4. Unnecessarily complicated pretrial (Article 32) investigations.

UNNECESSARY PRETRIAL CONFINEMENT

Confinement prior to trial is authorized by the Uniform Code of Military Justice for probable cause 11 only if the circumstances require confinement to insure the accused's presence, 12 as where he has earlier indicated that his obligation to remain with his unit weighs lightly with him, or where the seriousness of the offense alleged is likely to tempt him to take leave of his surroundings.13

The Chief of Naval Operations has recently expressed his personal concern about the excessive use of pretrial confinement, pointing out that "unjustified pretrial confinements deny the service the most effective use of manpower, overcrowded brigs, and hamper the corrections program for rehabilitation of convicted offendHe directed that command attention be given to the problem, that appropriate action be taken, including the release of all pretrial prisoners unless confinement is clearly warranted, and that trial and review of cases be speeded.

ers.

99 14

The message of the Chief of Naval Operations is certain to have a salutary effect and is therefore most welcome. As previously indicated, pretrial confinement is an aggravating circumstance to be considered on any speedy trial issue, and may in some cases result in a denial of due process.

FAILURE TO COMPLY WITH ARTICLES 10 AND 33

Article 10, UCMJ,15 requires that when an accused is confined or arrested, "immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or

11. UCMJ, Art. 9, 10 U.S.C. § 809.

12. UCMJ, Art. 10, 13, 10 U.S.C. 88 810, 813.

13. United States v. Bayhand, 6 USCMA 762, 21 CMR 84 (1956); United States v. West, 12 USCMA 670, 31 CMR 256 (1962). See also para. 20c, MCM, 1951 and Article 106, Corrections Manual (NAVPERS 15825 Rev. 1963).

14. NAVOP 281427Z Nov 1966.

15. 10 U.S.C. § 810.

to dismiss the charges and release him." And, as previously noted, Article 33 requires that general court-martial charges be investigated and forwarded to the GCM authority within eight days after the accused is confined or arrested, or that a written explanation be made if that is not practicable. It would appear that these requirements are not being complied with in many commands. The result is not only an increase in "denial of speedy trial" motions at trial, but reversals of convictions on appellate review even where the issue was not raised at the trial. Such reversals may result by virtue of the fact that serious violations of Articles 10 and 33 may constitute a denial of due process, which is not waived by failure to raise the issue at trial. The importance of complying with the letter of the provisions of Articles 10 and 33 cannot be exaggerated. Specifically, when the accused is confined or placed in arrest 18 before trial, the following actions are mandatory:

17

(1) He must immediately be informed of the "specific wrong" of which he is accused. "Specific wrong" does not necessarily mean a written charge and specification. Article 10 requires in this respect only that the accused be informed of the specific criminal act which he is suspected of having committed.19 Neither the Code nor the Manual provides details on how the information is to be imparted to the accused, nor is the author aware of a regulation so providing. Perhaps the Navy form confinement order (NAVPERS 1523) could be revised to show that the accused has been informed of the specific wrong, as well as to provide a space for the accused's acknowledgement of receipt of that information.

(2) Immediate steps must be taken to try him or to dismiss the charges and release him.

16. NCM 66-1039, Niccum, supra note 7: NCM 66-2402, Jennings, supra note 7.

17. United States v. Schalck, supra note 3. An interesting question for staff legal officers, as well as for higher reviewing authorities, is how to litigate a speedy trial issue involving claimed or apparent violations of Articles 10 and 33 when the issue is not raised at trial, and thus the facts of record are insufficient to determine the issue. It is suggested that the staff legal officer ascertain, or cause to be ascertained, the facts by the most feasible and reliable means available, and make the facts a matter of record by incorporating them in his review, always remembering that the accused is entitled to the opportunity to be heard on the issue.

18. Whether "restriction in lieu of arrest" makes the provisions of Articles 10 and 33 applicable is an open question. The author thinks that it does.

19. Hearings on H.R. 2498 Before a Subcommittee of the House Armed Services Committee 81st Cong., 1st Sess. 905 (1949). Incidentally, the word "wrong" was used by the framers, instead of the usual "offense" or "charge", with the general article (art. 134) in mind. "To accuse a man of violating article 134 does not necessarily tell him very much." Hearings, p. 912.

The "immediate steps" required to try an accused are set forth in paragraphs 32 through 35, MCM, 1951. The accused's commanding officer should immediately order an informal preliminary inquiry of sufficient scope into the charges or the suspected offenses to enable him to make an intelligent disposition of them. Normally, this inquiry is made by the command's discipline or legal officer, without an appointing order, and serves the purposes of gathering the evidence and preferring charges preliminary to the ordering of an Article 32 investigation, if indicated. With the eight-day Article 33 standard in mind, this inquiry should normally be completed within two or three days.

PROLONGED POLICE INVESTIGATION

It is recognized that most serious cases are investigated by an investigative or police agency,20 and that, therefore, the command may feel that the Article 33 standard is not feasible in such cases because of the delay necessitated in awaiting a report from the agency. Two points should be understood in this regard:

(1) In the usual case, the "police" investigation should have been completed before the confinement of the accused. This is for the reason that, normally, probable cause for confinement will not exist until completion of that investigation.21

(2) In cases in which it is determined necessary to confine the accused before completion of the "police" investigation, the command is not authorized to delay taking "immediate steps" to try the accused simply because it is awaiting the police report. 22 In this situation the command does not lose jurisdiction of the case. Appointment of an officer to conduct the preliminary inquiry and to draft charges should not be delayed. Rather, this officer should be directed to maintain continuing liaison with the investigative agency, both to insure that the agency is acting on the case with due dispatch and to procure copies of statements of witnesses and other evidence as soon as possible. There is no necessity to await a final, formal report from the agency before proceeding with the case as directed by the MCM.

UNNECESSARILY COMPLEX PRETRIAL
INVESTIGATIONS

The most prevalent single cause of delay in Navy cases seems to be the use of unnecessarily

20. See, for example, SECNAVINST 5430.13B (Subj: Naval Intelligence Investigative Jurisdiction and Responsibilities).

21. See UCMJ, Art. 9(d), 10 U.S.C. § 809 (d). 22. NCM 58-00496, Cox, 26 CMR 764 (1958).

1

complex pretrial (Article 32) investigations. Examination of the records of trial of general court-martial cases received for review in the Office of the Judge Advocate General indicates that there must be a belief by some that the pretrial investigation is intended to be a rehearsal for the trial. There is no basis in law or regulation for that belief. In many cases the "record" of the investigation is bulkier than the record of trial. This results from such ordinarily unnecessary practices as the appointment of a "counsel for the government" and a reporter, the taking of verbatim testimony on direct and cross-examination, and the preparation of a verbatim "record." 23 Notwithstanding the admonition of paragraph 34a of the Manual that the investigation of the charges must be thorough, it is also required to be "as brief as is consistent with thoroughness and fairness, and limited to the issues raised by the charges and to the proper disposition of the case." 24 In short, it is not required to be conducted as a formal JAG Manual-type investigation, and, despite the value of the latter in appropriate situations, its complex procedures should be avoided as a plague if they will result in violations of Article 33 and raise speedy trial issues.

The investigation of charges under Article 32 has two purposes: 25

(1) It stands as a bulwark against baseless charges. This purpose requires the investigating officer to inquire into the truth of the matter set forth in the charges, to consider the form of charges, and to recommend the disposition which should be made of the case in the interest of justice and discipline.26 In performing this function, the investigating officer may consider:

(a) The testimony of available witnesses who appear at the investigation; (b) the sworn 27 statements of available witnesses whose presence at the investigation is not requested by the accused; (c) the sworn 28 statements of witnesses who are not available;

(d) any other documentary or real evidence.

(2) It operates as a discovery proceeding for the accused. In other words, the accused is informed of the witnesses against him and is af23. This is not to say, of course, that these practices should never be used. If, in the discretion of the investigating officer, they are required for a thorough inquiry, he should use them. 24. MCM, para. 34a (emphasis added).

25. United States v. Samuels, 10 USCMA 206, 27 CMR 280 (1959). 26. UCMJ, Art. 32 (a), 10 U.S.C. § 832 (a).

27. The accused may waive the requirement that such statement be sworn.

28. Ibid.